Referendum foes make case

Appeals court asked to reject review of invalidation of ballot measure

July 21, 2006|BY A SUN REPORTER

In a strongly worded filing, an attorney representing opponents of a referendum seeking to overturn dozens of rezoning cases asked the state Court of Appeals to deny a review of a lower court's ruling that invalidated the ballot measure.

The attorney, Harry B. Siegel, also asked the court to rebuff the last-minute attempt by a citizens group that had pushed the referendum to intervene in the case.

The Howard County Board of Elections, in sharp contrast, objected to neither.

There was another notable distinction: The board's filing took four pages while Siegel's, including exhibits, consumed 102.

The filings were made yesterday, setting the stage for the state's highest court to decide whether scores of rezoning cases, approved last year during what is commonly referred to as "Comp Lite," will be subject to voter consent.

A loosely formed group, Citizens for an Open Process for Everyone (COPE), whose principal supporter is former County Councilwoman Angela Beltram, collected thousands of signatures to place the referendum on the November ballot to challenge rezonings.

Last month, the state Court of Special Appeals nullified the ballot measure, ruling that the petitions signed by the public violated requirements by not fairly informing voters of the specifics of the Comp Lite legislation.

After the Board of Elections declined to appeal that decision, COPE asked the Court of Appeals this month to review the ruling and grant intervention in the case.

In one filing, Siegel characterized COPE's motion to intervene as "a desperate attempt" by Beltram "to seek additional review of her failed attempt" to keep the referendum on the ballot.

He accused her of seeking to punish the entire Comp Lite legislation "because she takes issue with one small aspect ... in her own neighborhood."

Siegel represents Morsberger LLC, which is controlled by developer Donald R. Reuwer Jr. and several others, including property owners whose rezonings have been stalled by the referendum.

Siegel also argued that COPE chose not to intervene while lower courts were considering the case, and that it is too late to do so now. More important, Siegel claimed that the group does not exist.

"It is a shell through which she [Beltram] has been operating for marketing and media purposes," Siegel said in the filing.

However, the Board of Elections told the court that it neither objects to COPE's intervention nor to a full review of the decision nullifying the referendum.

"We have felt all along that COPE should have been a party to this," Guy L. Harriman, president of the board, said in an interview. "There is no reason to oppose them at this point.

"The court can obviously indicate that it's too late to come in or not too late."

It is unclear when the Court of Appeals will decide whether to hear the case, but it is widely accepted that it will be soon.

"The court is not unaware of what is going on," said Harriman, referring to next month's deadline to finalize the ballot for the general election. "My suspicion is that COPE will ask for a very, very quick response."

That could come as early as Tuesday, said Katherine L. Taylor, the attorney representing COPE. The Board of Elections took no position on a motion seeking an examination of the ruling invalidating the ballot measure.

Attorney Malcolm B. Kane told the court in a filing that the board "was not entirely satisfied" with the decision by the Court of Special Appeals, "particularly because it gave no guidance" as to how similar cases should be handled in the future.

Yet, Kane said, the board "was satisfied that substantial justice" was achieved by the lower court's ruling.

Taylor described the board's position as "wishy-washy."

Siegel, in a second filing, said COPE lacks legal standing to seek judicial review. Further, he argued that it has raised issues that are not subject to appeal because they were not part of the lower court cases.

Siegel also claimed that COPE "takes an all-around `minimalist' approach to the requirements of the relevant statutes."

He said COPE's arguments contesting the lower court's decision are "flawed" and fly "in the face of existing case law."

Taylor said she was "not at all surprised" by Siegel's filings. "I certainly would have expected that."

And Beltram said she was pleased that Siegel was focusing on her.

"I am glad," she said. "It shows how the developers feel about my leadership."

The ruling by the Court of Special Appeals on June 21 addressed 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 the petitions seeking the ballot measure.

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 contains 38 map amendments and 49 pages of text amendments, totaling 91 pages, the court's opinion noted.

"We conclude ... [the petition] does not satisfy the `fair and accurate summary' requirement imposed by state law," the court ruled.

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