Lawsuit opposes Carroll County growth freeze

THE BALTIMORE SUN

A Carroll development company has filed the first lawsuit challenging a yearlong growth freeze imposed by the county commissioners in June.

The lawsuit filed by JFJME Family LLC asks a county Circuit Court judge to force the commissioners to process an application for a three-home subdivision just north of Westminster. It also asks the judge to declare the growth freeze "null and void" and to assess $1 million in punitive damages and $500,000 in compensatory damages against the commissioners.

The suit, filed Aug. 5 and served a few days later, says the commissioners lack the power under Maryland law to impose the growth freeze. The suit also says the freeze is unfair because it does not apply equally to all subdivisions in the county. It includes exemptions for low-income and senior housing projects, and it does not apply to projects in the county's eight municipalities.

"I told them ahead of time, 'If you do this, I'm going to sue you,'" said James Harris, managing member of JFJME. "And I'm following through on my promise."

Harris' corporation is seeking to subdivide an 85-acre plot off of Brehm Road into three residential lots, one for Harris' daughter and two that would be sold. Harris had received a certificate from the county saying the project would not strain school, road, water or sewer capacities. That certificate should have stood as a binding promise that the project could proceed, Harris said.

"They basically slapped me in the face and told me I couldn't move forward with my plans," he said.

The company's three lots were among 1,700 that had passed early stages of the county's development review process but cannot be processed for the next 10 months because of the freeze. Though JFJME is the first company to challenge the freeze in court, more than 20 other landowners and developers have filed administrative appeals to the county's Board of Zoning Appeals. The board is scheduled to hear the first of those appeals this month.

The county commissioners were in Ocean City for a conference last week and could not be reached for comment. County officials said legal challenges to the temporary freeze could be a distraction but will not delay the Planning Department's efforts to draft permanent changes to the county's growth laws.

'Able to continue'

"I'm sure this suit will require time from [planning director] Steve Horn and the county staff, but I believe the process will be able to continue and we'll be able to complete our efforts," county chief of staff Steve Powell said Friday. "And I think we'll be able to do it on time."

Powell said the suit was the only one of its kind to be served against the county.

The commissioners have said they imposed the freeze to give the Planning Department time to fix the county's growth laws without having to worry about a simultaneous rush of development.

The freeze closed the door to all new subdivision plans covered by the county's adequate-facilities laws, which are designed to prevent residential growth from overwhelming infrastructure. It also halted plans that had passed early stages in the county's review process. That aspect of the freeze drew the most criticism.

The freeze does not apply to developments of three or fewer lots, those in the county's towns, or developments that have been approved by the county Planning Commission. The law includes an exemption clause for low-income and senior housing projects.

Harris proposes to develop only three lots, but he is subject to the freeze because he previously subdivided two lots on the property.

The commissioners said they chose the aggressive approach because they were elected to control growth and didn't want to waver on that commitment.

The lawsuit, however, says the commissioners overstepped their bounds. The county's power to zone land and regulate development comes from Article 66B in the Maryland Code, but the article does not explicitly grant power to the commissioners to defer or freeze development, says the lawsuit, filed on JFJME's behalf by attorney Donald B. W. Messenger of Beltsville.

No hearing dates have been set, and the county has 30 days from the time it was served with the suit to respond.

'Preferential treatment'

The commissioners have adopted freezes before, but those measures were always targeted to specific growth-related problems such as school crowding or water shortages, land-use attorneys say. The commissioners have demonstrated no such crisis this time, they argue.

The lawsuit also says the commissioners have acted unfairly by freezing some subdivision applications while allowing others to continue. Though the commissioners have no power to regulate subdivisions within municipalities, the suit argues that those projects use the same infrastructure as subdivisions in the county and that, legally, one group should not be allowed to proceed while the other is frozen.

"That's giving one group preferential treatment," Harris said.

Harris is a familiar face to the commissioners, having run for a seat on the board in 1998. He also battled with a previous board to get a proposed Westminster bypass removed from the county's master plan so he would be free to develop his property without worrying that the road would cut through it one day. The county removed the bypass, which never received state funding, from its plans in 2001.

Harris said that struggle taught him to deal aggressively with the county.

"I'm going to protect my interests at this point," he said.

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