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Harford authorized to spend $200,000 for outside lawyers in 'rain tax,' rubblefill cases

Spending of up to $200,000 to hire outside counsel for two cases – one to appeal state requirements for stormwater remediation and the other a 25-year legal and political saga involving a rubble landfill planned near Havre de Grace – was approved this week by the Harford County Council.

County Attorney Melissa Lambert received unanimous approval Tuesday night to spend up to $100,000 so Harford can join three other counties in appealing the requirements in the Maryland Department of the Environment's MS4 (Municipal Separate Storm Sewer System) permit, which Harford County must fulfill in line with updated stormwater remediation regulations from the state and federal governments.

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Harford will join Frederick, Howard and Carroll counties in hiring AquaLaw, of Richmond, Va., Lambert said.

"They have retained AquaLaw in trying to get some type of lessening of the requirements that they are going to have to fulfill as part of their stormwater permit," Lambert told the council, explaining that working with the firm will "allow us to have a coordinated effort" and provide "a united front" with the other counties.

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"Our arguments are similar," she added.

Last year, Harford repealed its local stormwater remediation fee – widely referred to as a "rain tax," as county officials claimed they could meet stormwater control mandates with other local revenue, including a portion of the real estate recording tax.

With Harford County's rain tax no more, a new approach to paying for stream restoration and stormwater remediation projects mandated by the state and federal governments was approved by the County Council Tuesday.

In addition to challenging some of the current permit requirements, the Chesapeake Bay Foundation has litigation pending that claims the stormwater permits are not stringent enough, Lambert said, and AquaLaw will help the county rebut those claims as well.

"It's sort of annoying that government has to protect itself against government, and that is exactly what we are having to do," Councilman Jim McMahan said.

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"Of course, it's an outgrowth of the 'rain tax' and we were active in taking a position [on that] and it seems as if that will perhaps never go away," he said. "What we have to do is make sure the permits allow us to do what we said we would do and mediate the runoff, and we have addressed that straight up."

About the request to hire outside counsel, McMahan added: "Obviously, I am in agreement that we need to have our voice heard."

The council also approved spending up to $100,000 for outside counsel in connection with the latest litigation brought by Maryland Reclamation Associates, which sued the county for $100 million in 2013, claiming its 68-acre property off Gravel Hill Road was rendered valueless after the county refused to its approve plans for a rubble landfill in a former gravel pit.

Last August, the county hired Jefferson Blomquist, of Funk & Bolton, P.A. in Bel Air, after Maryland Reclamation Associates brought in a large national law firm to argue its case.

A company that sought unsuccessfully to develop a rubble landfill near Havre de Grace filed a $100 million suit against Harford County last week, claiming the county's actions had rendered its property "valueless."

The conflict between the county and MRA dates back to 1990 when the company received a preliminary go-ahead for the rubblefill project from the county that was later rescinded. In 2010, the Maryland Court of Appeals ruled the county had acted within its powers.

"This is really the second round of litigation on this property," Lambert told the council Tuesday. "The first occurred in the 1980s and 1990s; it was a zoning case at that point."

She said MRA's current suit is based on its claim of a constitutional taking of its property. As a member of the county law department staff in the 1990s, Blomquist successfully defended the county in some of the zoning-related litigation, she noted.

"We are just beginning the early deposition phase," she said, explaining her office needs another $100,000 "to successfully move forward."

A pond that has been part of Heavenly Waters Park near Bel Air for decades is being allowed to dry up, and the area it covered will revert to a more natural state under a project being undertaken by Harford County government, which owns the park.

The county has spent $96,452 on the litigation since August, spokesperson Cindy Mumby said Thursday.

"We do anticipate that this litigation will likely go on for some time, if past litigation is any indication," Lambert told the council. "However, we are being very judicious with how we spend those funds."

McMahan said the rubblefill conflict "will continue to haunt us."

"Who's funding this thing from the other side?" he wondered. "This is a lot of money."

Lambert said she believes both AquaLaw and Blomquist's firm "represent the county's best opportunity to be successful" in both cases and will ultimately save county taxpayers money.

"It's crucial that in both of these cases the county puts its best foot forward," she said.

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