Howard County Times
Howard County

Special appeals court strikes down Howard zoning referendum

Maryland's second highest appeals court has struck down a citizen-led effort to bring more than a dozen zoning changes in Howard County to the ballot in November. 
In a ruling released Wednesday, three judges from the Court of Special Appeals affirmed Howard County Board of Elections Director Guy Mickley's decision to deny a petition by the Citizens Working to Fix Howard County, a grassroots group hoping to put the breaks on multiple zoning decisions in the county's comprehensive zoning bill, which was passed by the County Council last July. 
Several controversial Howard County developments were involved in the case, including plans to build town houses in Maple Lawn South, development on land including a pet and human cemetery in Elkridge and zoning changes in the rural Highland crossroads community. The petitioners had also taken issue with a few text amendments, including one that they allege opened the door to allowing "treated human waste" for use as fertilizer.  
In its opinion, the court declined to look at each zoning decision listed in the petition, citing time constraints.  Petitioners had until Aug. 18 to submit ballot language to the Board of Elections.
"We have addressed and highlighted several provisions of the petition that we believe are so misleading, imprecise, and inaccurate that they left the Election Director with little choice to deny the certification," wrote Chief Judge Peter A. Krauser. 
At issue was whether the referendum group's petition, which was signed by more than 6,000 people, provided a "fair and accurate summary" of the comprehensive zoning decisions they wanted to take to the ballot.
After confirming that the group had collected more than the 5,390 signatures required for a referendum to make it onto the ballot, Mickley rejected the petition's language, informing the group in November that it was not "fair and accurate."
Mickley later expanded upon his reasoning in an affidavit for the Circuit Court, noting that two of the zoning changes included in the petition -- a piecemeal rezoning of Ellicott City's Normandy Shopping Center and a conditional-use approval for a mortuary in Clarksville -- were not mentioned by the comprehensive zoning bill. 
Krauser affirmed Mickley's reasoning in the court's decision, pointing to the inclusion of Normandy Shopping Center and the Clarksville funeral home, as well as the "treated human waste" amendment and the petition's statement that the Maple Lawn property had been rezoned to a "much higher intensity use," all of which he called misleading. 
However, Krauser did express some reservations about Mickley's initial decision to deny the petition without elaborating on his reasoning for doing so.
"Admittedly, we are deeply concerned that, by not specifying, with particularity, the deficiencies found in the petition, the Board of Elections leaves the door open to sidelining a referendum petition until it is too late to refer it to referendum.
"But," he continued, "there is no evidence that that occurred here."
Although we have reservations about whether the law concerning the substance of the Election Director's determination and notification adequately serves a necessary and vital public procedure, the misrepresentations in the petition were, in our view, so manifest and substantial that it is inconceivable that appellants did not know that their summary was not a fair and accurate representation of the contested provisions of the ordinance," Krauser concluded. 
Kevin Karpinski, the lawyer representing the Board of Elections, said he didn't have much to add to the court's opinion. 
"Judge Krauser laid it out," he said. "Obviously, I'm pleased that the court said that the board correctly determined that the petition didn't include a fair and accurate summary." 
Karpinski conceded that the elections board could have provided more details for the denial upfront. 
"I think Mr. Mickley was relying upon advice he was given," he said, "and I think in hindsight it would have been beneficial to provide a more detailed explanation of what made the summary not fair and accurate." Moving forward, he added, he thinks the board will elaborate on its future decisions. 
"It's a relief to have the appellate court affirm what we have believed all along," said Bill Erskine, a lawyer for several developers involved in the case. 
"I feel like I can say it now," he added, "as a land-use attorney and with some background in referendum law, I knew within 60 seconds of reading this petition that it would not be on the ballot."
An attorney for the petitioners, Susan Gray, said she had not yet seen the decision and was sending someone to Annapolis to pick it up.
"At this point, I know nothing," she said.  
However, Gray noted she had already heard the opinion was unpublished, meaning it cannot be used as precedent for future cases. 
"Unreported opinions are the way the appellate courts do their political dirty work... that tells you a lot," she said. 
Lisa Markovitz, a leader of the Citizens Working to Fix Howard County, said she hadn't seen the decision either, though she knew it wasn't in the petitioners' favor. 
"Of course we’re disappointed," she said. "We felt the law was on our side and this was a very political issue, with a lot of influences going around." 
Markovitz said the group planned to appeal the decision to the state's highest court, the Court of Appeals.