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Court of Special Appeals hears Howard referendum case

With just two weeks left to submit questions for the November general election ballot, attorneys on both sides of a Howard County referendum case made their arguments before three Court of Special Appeals judges in Annapolis Monday morning. 

The case centers on a citizen-led petition drive to bring more than a dozen land-use decisions from last year's comprehensive zoning legislation to a vote. Both the Howard County Board of Elections and lawyers for the developers involved in the suit argue that the referendum petition's language was not "fair and accurate," while the citizens contend they have led a "squeaky clean" referendum drive and are being derailed by powerful special interests. 

"This has been a procedural nightmare, whereby the County Council, Board of Elections and developers have worked together to ensure the people don't have a vote on zoning matters," Susan Gray, one of two attorneys representing referendum group Citizens Working to Fix Howard County, told the court. 

Outside the courtroom, about 50 citizens, dressed in red, sat in support of the petition. The group had arrived early to stand outside the courthouse, waving signs that asked the court to "support citizens' rights, not developers' money," and to "uphold the people's right to petition for referendum." 

Gray asked the judges to clear the way for the petition to be placed on the ballot, arguing that to reaffirm the Board of Elections' one-line rejection of petition language -- the board said it was not "fair and accurate" -- would be to uphold an arbitrary decision. 

Board of Elections lawyer Kevin Karpinski called concerns about the board's ruling "a red herring." 

He said the election board's decision-making process was not "an administrative hearing" and was bound by tight deadlines that precluded lengthy explanation. 

But Chief Judge Peter B. Krauser wondered why the petitioners didn't get a few more details. 

"Without giving them specific deficiencies, how are they going to correct them?" he asked Karpinski. "As a policy, doesn't this put the board in a position where it can ambush the petition?" 

At the time of the election board's decision, it was already too late for the citizen group to correct its petition, Karpinski responded.

"In 20/20 hindsight, it would have been better to include a justification... but that's a red herring because this is a pure question of law, as far as I'm concerned," he said. 

Another major sticking point in the case is the inclusion of two zoning decisions made separately of the comprehensive zoning bill: a piecemeal zoning change for the Normandy Shopping Center in Ellicott City and conditional-use approval for a funeral home in Clarksville. Gray said it was necessary to place those items on the petition in order to prevent a catch-all phrase in the comprehensive zoning bill affirming previous zoning decisions from overriding appeals of Normandy and the funeral home working their way through the courts. 

Bill Erskine, an attorney for several of the developers involved in the case, said the comprehensive zoning bill had no impact on those decisions: "I suggest it was not affected because its [underlying zoning] was carried over unchanged... There's simply no justification for bringing in the Normandy property and the funeral home.

"The only reason it was added to the referendum was because it was the site of a lot of contention" that helped petitioners garner signatures, he said. 

Krauser said the court would strive to hand down a quick decision. Petitioners have until Aug. 18 to submit a referendum question for the general election ballot. Until a final decision is reached, land-use decisions included in the petition are on hold, freezing certain development plans. 

Copyright © 2014, The Baltimore Sun
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