Newest `Comp Lite' front forms as motion to dismiss suit is filed

March 21, 2007|by a sun reporter

Several parties, including property owners whose development plans are jeopardized, have joined the continuing battle over "Comp Lite," by claiming that a lawsuit challenging the legislation that last year approved scores of zoning changes "proposes a disastrous scenario" for the county.

In a motion filed late last week, the Circuit Court was asked to dismiss the lawsuit.

It does not defend the legality of the rezoning, but argues that the case should be dismissed because of the large number of known and potential people who could be adversely affected if the lawsuit succeeds.

But it is impossible to identify everyone who falls into the potential category, and thus they would be denied legal protection, said attorney William E. Erskine, who represents a client whose property was rezoned through Comp Lite and has now intervened in the court case.

"There are so many other people who have a stake in this action or who could be affected that the court can't adequately administer justice without [their] being a party to the case," he said.

The lawsuit seeking to nullify Comp Lite was filed in October by attorney Katherine L. Taylor on behalf of 14 residents.

It claims that numerous state and county laws were violated, and it says that there was no legal basis for the Comp Lite process.

County officials have consistently said that the process was a legal extension of the 2004 comprehensive rezoning. They have also acknowledged the resulting firestorm of protest and said it is not likely that Comp Lite would be used again.

The county deferred several cases during comprehensive rezoning and dealt with them, and others that were added, the next year. That process had never before been employed.

The lawsuit challenges the process and the resulting changes that were enacted March 7 last year by the County Council.

The Comp Lite legislation rezoned 38 properties and included 49 pages of amendments to the county's zoning regulations. It has been an issue from the beginning. The lawsuit was filed after opponents failed to place a voter referendum on the Comp Lite legislation on the November general election ballot.

Although the opponents collected sufficient signatures to qualify for the referendum, the ballot measure was invalidated in June by the state Court of Special Appeals, which ruled that the ballot's wording was grossly inadequate because it provided the public with too little information about what the measure would do.

A challenge of that ruling failed when the Court of Appeals, Maryland's highest court, declined to accept the case.

The lawsuit named the County Council and Planning Board as defendants.

They have been joined by several parties who have intervened in the case. They include Morsberger LLC, which is controlled by developer Donald R. Reuwer Jr.; Bethel Korean Presbyterian Church; and Nancy Cavey on behalf of the Carroll E. and Ruth Braun estate.

"In seeking to have Comp Lite, in its entirety, declared unconstitutional, the plaintiff's [lawsuit] proposes a disastrous scenario that could potentially repeal not only the approved zoning changes ... but also the potentially hundreds of private individuals" who later obtained rezoning by complying with the new regulations, the motion filed last week by the defendants says.

"There is, potentially, an entire class of affected persons who have applied for zoning approvals under Comp Lite since its inception who are unknown to the defendants and are persons who have a vested interest in the outcome of this case," the motion says.

Taylor said the motion "goes too far" because it essentially suggests "that everyone in the county has to be added as a party."

She also said that Morsberger argued during the referendum that others did not need to be added as parties because their interests could be satisfactorily protected by the Board of Elections.

"They are arguing against themselves" by now suggesting the Office of Law can't protect the interests of others, Taylor said.

Erskine, a partner with Reese & Carney LLC who represents Cavey, said the defendants will defend the legality of Comp Lite if their latest motion fails.

That motion consolidates two others filed earlier seeking dismissal of the lawsuit on the point of legal standing.

To have legal standing, the opponents must show that they are "specially aggrieved," meaning that they would be adversely affected more than the general public would.

"There is no presumption of special damages for adjoining, confronting or nearby owners," says a motion to dismiss filed in December by the county's Office of Law.

The lawsuit alleges that the county erred by:

Deferring for a year consideration of numerous issues during the normal comprehensive rezoning process of 2004 and initiating Comp Lite.

"There existed no authority for the council to extend or defer the process, or to later reconsider properties considered during that process," the lawsuit says.

Enacting an ordinance granting itself the authority to reconsider the deferred rezoning cases.

Failing to inform the public that the legislation authorizing Comp Lite was "intended to be retroactive" to 2004.

Implementing the Comp Lite process and adding to it properties that had not been considered and deferred during 2004.

Taylor has two weeks in which to file with the court a response to the defendants' latest motion.

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