School building standards discussed at court hearing

Council, school system and residents offer three interpretations

December 17, 2003|By Tricia Bishop | Tricia Bishop,SUN STAFF

Attorneys for the Howard County Council, the school system and a Marriottsville residents group outlined three very different legal interpretations during a hearing in Circuit Court yesterday to determine which construction standards should be used in building schools.

But the only view that matters is that of Judge James B. Dudley, who said he will issue an opinion "as fast as I can."

The residents' group, represented by attorney and school board candidate Allen Dyer, asserts that education laws imply schools should be built to rigid county zoning codes and cannot break from the formula without a proven need.

The County Council's attorney, Paul T. Johnson, said the current process governed by local laws is best. That method states that government agencies, including the school system, can build however officials like, as long as construction variances fall within the relatively lenient standard of being in the "public interest," which council members determine.

The Board of Education, speaking through lawyer Richard B. Talkin, said the school system doesn't have to follow county zoning rules - though it typically does out of courtesy - because it is a state agency and therefore immune to such local codes.

"We're here because the law says nothing," said Dudley, who called the case a legal first. "[All] sides are arguing based on inference."

The hearing resulted from an appeal filed by the group of Marriottsville residents fighting the placement of a new high school in their neighborhood. The appeal claimed that the County Council arbitrarily granted 11-foot height and 5-foot setback variances for the school without considering adverse consequences.

In that case, Dudley ruled in October that there was no right of appeal to the decision. But he also allowed for the follow-up hearing to examine which standards should be applied when allowing school variances. The Board of Education asked to join in the case, and its motion was granted yesterday.

"It is appropriate that all parties are represented and have an equal opportunity to present the law as they understand it," Dudley said.

On Dec. 1, council members unanimously passed a bill that reinforced the current process of granting variances for government agencies, which Dudley characterized as an effort to provide political cover, saying the legislation "closes the barn door after the horse has [escaped]."

Johnson disagreed with Dudley's "ex post facto" theory, saying the move is a clarification that put into writing the process as it has existed for years.

Using stricter standards could "thwart the ability" of the Board of Education to provide adequate school facilities, Talkin argued, and Johnson agreed. But Dyer said the argument was "beyond the pale."

"There's no evidence it is impractical to comply with the zoning code," Dyer said. "The variance requests are not particularly demanding variances."

The high school that the residents oppose is under construction and set to open in August 2005. Whatever the judge decides, the school is unlikely to bear any consequences from the ruling.

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