State's high court to hear challenge to building freeze

Carroll judge allowed development to proceed

April 02, 2004|By Hanah Cho | Hanah Cho,SUN STAFF

Maryland's highest court has decided to hear a case that challenges Carroll County's freeze on residential growth.

It is the latest development in a legal battle in which a Carroll circuit judge granted developers temporary relief from the freeze.

In September, the Maryland Court of Appeals will hear arguments from attorneys for the county and a real estate developer about a preliminary injunction issued by the lower court.

In December, John W. Pfaff Builders asked the Circuit Court for the preliminary injunction to allow development plans to proceed despite the freeze.

In February, Circuit Judge Michael M. Galloway granted the request and ordered the county to resume processing the 153-lot Windy Hills subdivision just north of Westminster.

The county filed an appeal with the Maryland Court of Special Appeals. But last week, the state's highest court decided to take the case.

"If they see something of particular importance ... they will pluck it out and take it," County Attorney Kimberly A. Millender said.

Added Pfaff's attorney, John Maguire: "There is no indication as to what caused the higher court to act on this particular case.

"From the perspective of an attorney, it's the same appeal, the same record and same issue," Maguire said. "It's skipping one level of appeals and going to the highest court."

Three similar cases are pending before the Court of Special Appeals, the state's second-highest court. As with the Pfaff case, Galloway granted requests for preliminary injunctions, forcing the county to also resume processing those development plans.

The facts were similar in each case - the developers had received certificates from the county before the freeze was initiated. The certificates stated that the proposed projects would not strain school, road and water capacities and could thus move forward.

The freeze interrupted about 90 projects - with some 1,700 lots - in various stages of development, including those that had received certificates from the county. The freeze halted subdivision projects that were subject to the county's adequate public facilities law.

Attorneys for the developers have argued in court that these certificates are legal contracts that cannot be broken.

The county, however, has contended that the certificates offer timelines for the projects but not guarantees that the developments will move forward.

The county's freeze, which expires in June, would be over by the time the state Court of Appeals hears the arguments in September. Nevertheless, Millender said, there could be legal issues that need to be resolved.

Westminster land-use lawyer David Bowersox said it is hard to know why the state's highest court chose this particular case.

"It's safe to assume that the court recognizes that there is an issue that's important - either it is something that needs to be settled by the state's highest court or it is something that will come to them over and over," Bowersox said.

He has filed five similar lawsuits seeking injunctions, as well as a request for summary judgment to invalidate the growth freeze.

There have been no decisions in those suits.

In the meantime, Millender said, the county plans to file a request asking the Circuit Court to delay its rulings on Bowersox's five cases pending the appeal before the Court of Appeals.

The same request will also be made to the Court of Special Appeals regarding the other three pending cases, she said.

"We're not going to spin our wheels over and over," Millender said.

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