Challenge to Howard government goes to Maryland's high court

Two Howard County residents challenging more than 100 government decisions involving a wide range of issues including sewer system hookups and the construction of highway interchanges and homes have won a hearing in Maryland's highest court.

Rejected by federal and lower state court judges, the challenge was granted one more forum last month, as the Maryland Court of Appeals agreed to consider whether the residents have the legal standing to challenge years of decisions by several county agencies. The two argue that the county's way of carrying out these actions deprived them of their right to referendum, constrained their free speech and voting rights.

"I feel passionate about it, the people involved feel passionate about it," Susan B. Gray, the lawyer who represents one of the residents in the appeal, said in an interview. "These are the most fundamental rights we have."

Gray, who has been active in land-use law in Howard County for more than 25 years, said the point of the case is not to undo county actions — in some cases that would involve destroying buildings and roads — but to change the way the county does business.

Asked to respond to a question about the potential effect of the case, the county's Office of Law responded in an email, saying the plaintiffs "ask the court to declare invalid over [one] hundred land-use approvals that were lawfully obtained by private property owners, and to nullify various long-standing laws and procedures used by county government."

Paul F. Kendall of Turf Valley Road, one of the residents pursuing the appeal, said the case is meant to force the county to change its ways.

"Howard County persists in failing to follow its own rules when it comes to zoning," said Kendall, who said he was drawn into this fight after the Turf Valley development — an 800-acre golf course community — failed to follow an original traffic plan, which he argues will put much more traffic on streets around his house than they were built to handle.

Kendall, a Washington lawyer who is representing himself in the appeal, said county officials "decide on a result they want ... the law be damned."

The county has argued successfully up to this point that the residents do not have the legal standing to challenge the array of decisions — most of which are related in one way or another to land use — because they cannot show they were harmed by the county actions. The residents argue that the harm was depriving them of the option of challenging these decisions through referendum votes, which they say violates the county charter.

In written arguments against having the case heard in the highest court, county lawyers said this standard of legal status would open floodgates of charter violations cases, giving "each and every 'person in the County' the right to sue for any past, present or future perceived violation of the Charter."

The Court of Appeals is to consider two issues: whether the Circuit Court was wrong to dismiss the case for the plaintiffs' lack of legal standing; and whether the lower court was wrong to dismiss the case because the plaintiffs had not brought in all the parties who could be affected by the outcome of the case.

Oral arguments are scheduled for February in the case, which residents have pursued through federal and state courts since 2009, when a larger group of plaintiffs lost in U.S. District Court and in the U.S. Court of Appeals for the 4th Circuit. The appeals court rejected the case, finding that the plaintiffs lacked legal standing.

In early 2010, a Howard County Circuit Court judge granted the county's motion to dismiss the complaint. According to the hearing transcript, Judge Timothy J. McCrone ruled from the bench, saying he based his decision on three key points: The plaintiffs lacked standing; the "enormous number of individuals" who could be affected if the plaintiffs prevailed were not parties to the case; and the plaintiffs could challenge the various actions they cited in the case by other means.

The Maryland Court of Special Appeals affirmed McCrone's ruling this year, leading to the appeal now before the higher court.

The plaintiffs — Kendall and Frank Martin — have cited roughly 118 actions, chiefly since 2006, by the County Council, the Zoning Board, the Planning Board and the Department of Planning and Zoning, saying these agencies ran afoul of a portion of the charter enacted in 1994. That provision said any "amendment, restatement or revision" to the county's General Plan, zoning rules or zoning maps — other than changes made to correct errors — should be considered a legislative act that can be carried out only by a council bill.

A bill, which becomes part of the county code, can be petitioned to referendum, while a resolution, or an action of a county administrator, cannot. That's the rub, said Gray, who argues that since the 1994 provision was enacted, the county has found ways around the requirement — by having the council act through resolutions or by having legislative actions carried out by administrative agencies.

Some actions cited in the case affect the whole county; others apply only to individual pieces of property.

For instance, the case cites council resolutions approving changes to the Master Plan for Water and Sewerage that expanded the scope of public utilities, as well as changes to building and road design standards. Also cited is a resolution to close portions of five roads in the western part of the county to make way for the Burntwoods Road interchange on Route 32. The plaintiffs cite the decision by the County Council acting as the Zoning Board to change the zoning on about seven acres at Gorman Road to allow housing for seniors, and a resolution to sell 26 acres of county land in Ellicott City that officials agreed were no longer needed for public purposes.

Gray acknowledges that many of the actions cited are hardly controversial, and would not likely be challenged by referendum in any case. She said the point is to change government practice.

If the plaintiffs were to prevail, "it would say you cannot systematically keep violating people's rights to referendum," Gray said. "It is the pattern and the practice of how the county does business."

The practical effect, she said, would not be very dramatic: "All the county would have to do is have the county re-pass everything as a bill. … It would clean up the process."

The county insists the plaintiffs treat the potential effect too lightly, arguing that the plaintiffs have not taken seriously the potential "real world consequences" of the case and the rights of property owners who could be affected. The Court of Special Appeals cited a portion of the county argument in its opinion issued in April: The residents cannot ask the court to "dismantle the property interests held by the stakeholders and beneficiaries of specific land-use decisions, only to assert that an independent legislative body may attempt to 'remedy' or re-assemble these property rights later on. This notion flies in the face of equity, fairness and due process."

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