Rezoning ballot question voided on clarity issues

Judges rule referendum is not an accurate summary of `Comp Lite'

June 28, 2006|BY A SUN REPORTER

A citizens referendum challenging scores of rezoning cases has suffered a major, and perhaps fatal, setback now that Maryland's second-highest court has invalidated the ballot measure on grounds that it gave residents too little information about what the measure would do.

The decision, by a three-judge panel of the state Court of Special Appeals, will stand without a successful last-minute appeal to the Court of Appeals, Maryland's highest court. Because the referendum was scheduled for the November ballot, the case is being handled on an expedited basis, giving the Howard County Board of Elections until July 6 to appeal.

Reactions to the ruling were as divided as they have been on the propriety of the referendum itself.

"I've been saying this all along," said County Councilman Charles C. Feaga. "This decision is a good one. I hope it stands."

But Angela Beltram, a former councilwoman and a principal in the organization that pushed the ballot measure, said future referendums would be jeopardized if the ruling is not overturned.

Guy L. Harriman, president of the Board of Elections, said a decision on what to do next has not been made.

"We reviewed the court's decision, but we've decided we will study it further," he said. "We have taken no action on whether to appeal."

The referendum has been controversial from the start. It raised questions about the county's planning and zoning processes and threw into limbo dozens of rezoning applications approved last year during a process nicknamed "Comp Lite," a follow-up to the county's once-a-decade comprehensive rezoning process.

The ruling by the Court of Special Appeals, made June 21, addresses neither the county's process nor its approval of the rezoning cases, but only whether citizens were properly informed of Comp Lite's provisions when signing a petition seeking the referendum.

Maryland law, the judges wrote in their opinion, requires that a referendum petition contain either an accurate summary of the provisions being challenged or the full text of the legislation enacting the zoning changes.

The Comp Lite legislation, approved by the County Council last year, contains 38 separate and distinct map amendments and 49 pages of text amendments, totaling 91 pages, the court's opinion notes.

The opinion also points out that the organizers of the petition drive had considerable difficulty in writing a summary of the Comp Lite provisions. The Board of Elections, the court noted, rejected their first five attempts as legally insufficient.

In the final version, the organizers used essentially the title of the Comp Lite legislation, which the board accepted.

Even that language, critics of the ballot measure claimed, was "not comprehensive in scope" and thus could not meet state requirements. The court agreed. "We conclude . . . [the petition] does not satisfy the `fair and accurate summary' requirement imposed by state law," the three-judge panel ruled.

The opinion stated that the title of the bill "simply does not comply with the essential requirements" of a referendum to fairly inform voters of the act's purpose in a clear manner, and that summary must not deceive the public of the meaning of the law that would arise from the referendum question.

Chief Judge Joseph F. Murphy Jr., who wrote the opinion, said previous courts have held that the public must be informed of whether rezoning "upzoned" or "downzoned" property, and he noted that the petition's summary failed to tell voters that few of the Comp Lite cases were controversial and faced no opposition from nearby residents.

He also noted that courts have held that "those seeking to exercise the right of referendum ... must, as a condition precedent, strictly comply with the conditions prescribed."

The panel consisted of Murphy, Judge James P. Salmon and retired Judge Robert L. Karwacki.

The decision overturns a ruling in December by the Howard County Circuit Court. Morseberger LLC, which is controlled by developer Donald R. Reuwer Jr., and several others, including property owners whose rezonings were stalled by the referendum, appealed that ruling.

David A. Carney, a partner in the law firm Reese & Carney LLP and who represents several developers, said he was not surprised by the appeals court's decision.

"We always thought we had an effective [case]," he said, because the Board of Elections erroneously approved the petition that was badly flawed in explaining Comp Lite's provisions.

Beltram, who helped form Citizens for an Open Process for Everyone (COPE) to push for the ballot measure, said the court's rejection of the petition summary could threaten future referendums, particularly those that deal with complicated issues for which a brief synopsis is difficult.

"The Board of Elections approved it, and it seems to me they have to appeal," she said. "I hope they would appeal, or when are you going to have a referendum?"

Frank Martin, a frequent critic of the county's planning process, denounced the ruling.

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