A Havre de Grace couple has filed a lawsuit against the Mayor and City Council, claiming they have interfered with the couple's property rights.
Barbara and Gary Pensell, who live at 150 Congress Avenue, along the Hutchins Park parking lot midway between the park entrance and the Susquehanna River, and 211 Congress LLC, whose sole member is listed as Robert Brandon, filed the five-count suit in Harford County Circuit Court on March 27.
In it, they are asking for compensatory damages for breach of contract, nuisance and unconstitutional taking of private property.
The Pensells and 211 Congress claim the city has erected a "party tent" within 50 feet of their properties and "conducted large, disruptive public events" in and around the tents, according to the suit.
The events have featured "loud, ear-shattering" rock bands and crowds of more than 3,000 people.
"These events have also dramatically increased in frequency and intensity since installation of the tent," the suit reads.
Before the tent was erected, one to two events were held in the park each year, but in 2016, nearly 100 events were held in Hutchins Park, according to the suit.
The tent blocks access to the 211 Congress Ave. property, restricting its development and the Pensells have at times been denied access to their property because the street is closed when some events are held, or have been forced to leave their home because the noise was so loud.
The tent and related events, the suit claims, are violations of agreements the city made with 211 Congress several years ago.
"My clients have tried in a very patient manner to work it out amicably with the city but have been rejected at every turn," George Ritchie, of the Baltimore law firm of Gordon Feinblatt LLC who is representing the Pensells and 211 Congress, said. "We look forward to our day in court."
Thursday afternoon, the city government issued a statement on the lawsuit, which reads in part:
"The Mayor and City Council of Havre de Grace have been served with a complaint for permanent injunctive and other relief asking the City to cease and desist from using Hutchins Park for outdoor arts and entertainment events. Since 2008, Hutchins Park has been designated part of the 'Arts and Entertainment' district by virtue of Resolution 2008-02, and is recognized as such by the State of Maryland. The City maintains that its use of the Park is legally permissible for such events and will defend its right to use Hutchins Park for Council approved arts and entertainment events."
According to the lawsuit, Donna Mae Asher is the former owner of the 211 Congress Ave. property and on Jan. 28, 2003, she settled a suit against the city in which she alleged the city interfered with her riparian rights with regard to the parcel.
As part of that settlement, the Pennsell lawsuit states, Asher and the city reached three agreements concerning the 211 Congress property: an amended settlement agreement and boundary line agreement; an agreement that defines and describes certain rights and duties with respect to the property, including the owners access rights during special events; and a lease in which the city agreed to lease Asher a portion of the Congress Avenue property adjacent to 211.
In October 2014, 211 Congress LLC bought the property at 211 Congress Ave. and became "successor-in-interest" to Asher under the three agreements, according to the suit.
Primary access to the property is through a gate in the fence along Congress, according to the suite, which also states that Brandon wants to develop the site and "is entitled to access anywhere along the fence line," under the agreements.
The Pensells, who are citizens of Florida, are lifelong Havre de Grace residents and owners and former operators of Tidewater Marina in the city. The only public access to the home they built on Congress Avenue is from the parking lot of Hutchins Park.
"For a number of years, and up and until the events that give rise to this case began, visitors to Hutchins Park used and enjoyed the park without interfering with the property rights of the Pensells and 211 Congress," the suit states.
The Pensells cite the Oktoberfest event in October 2015, which drew an estimated 3,000 people to Hutchins Park, as preventing them from getting to their home, according to the suit.
When the Pensells complained to the city, officials agreed the crowd was too large and Oktoberfest would not be held there again, the suit states. It returned in 2016, however, and the Pensells again could not get to their home via Congress Avenue between 8 a.m. and 8 p.m. because Congress Avenue was closed.
In August and September 2016, the city hosted two bands. Noise levels from the first were "excessive and well-beyond what any reasonable home owner should have to experience," the suit states. The second band was even louder, causing windows in the Pensells home to shake and them to leave.
A portable ice skating rink, erected in the park the past two winters, has created an undue nuisance four nights a week in the winter with bright lights and loud music, according to the suit.
"Plaintiffs now understand that the city plans to move its annual Fourth of July Carnival to the area of the tent" with amusement rides that "is certain to equal if not exceed the size and disruption caused by the Oktoberfest events," the suit contends.
Despite numerous attempts by the Pensells and 211 Congress LLC to address their complaints with the city by letter or through public forums and social media, the city has "refused to take any steps to alleviate these problems," according to the suit, which adds that the Pensells and 211 Congress have been ignored and the city has increased the frequency and intensity of events in the park.
The following are the counts of the suit:
Count 1: breach of quiet title, plaintiff 211 Congress LLC only - the tent, frequency of events and noise level associated with them as well as letters from the city in which the city has threatened to dishonor its agreements have made it impossible for 211 Congress to enjoy the leased property.
Count 2: breach of access agreement, plaintiff 211 Congress LLC only - according to the access agreement, any owner, resident or occupant of 211 Congress "will have pedestrian and vehicular access... during any special events" held on Congress Avenue; when the city holds events in the tent, access to 211 Congress is blocked.
Count 3: public nuisance, all plaintiffs - the city has "created a public nuisance" by allowing the large and loud events that have prohibited the Pensells and 211 Congress owner from enjoying their property.
Count 4: private nuisance, all plaintiffs - when the city has used the tent for an event, the "noise, crowds and associated road closures cause substantial and unreasonable interference with the Plaintiffs' use and enjoyment of their respective properties.
Count 5: state constitutional claims, Article 23, all plaintiffs - the article prohibits the city from taking plaintiffs properties without compensation and the city has violated and continues to violate the article with each event.
In each count, the defendants are seeking compensatory damages to be determined by a jury but at least $75,000, as well as an injunction to permanently remove the tent.
No court dates have been set.