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Judge again rules against growth freeze

THE BALTIMORE SUN

In another legal blow against Carroll County's growth freeze, a Circuit Court judge granted a preliminary injunction yesterday that would force the county to process a developer's subdivision plan just outside of Westminster.

It is the third time Judge Michael M. Galloway ruled against the county's one-year freeze on residential development, which expires in June.

In November, Galloway ordered the county to resume processing two subdivision plans after he granted similar injunctions. Appeals in those cases are pending in the state's second-highest court.

In each of the three cases, the developer had received a certificate from the county before the freeze was initiated saying that its proposed project would not strain school, road and water capacities and could thus move forward.

The freeze interrupted progress on about 90 projects - involving 1,700 lots - in various stages of development, including those that had received certificates from the county.

The contention that the certificates are legal contracts has been the thrust of the developers' arguments in all three court cases. In yesterday's decision, which closely parallels those in the two earlier cases, Galloway wrote that the certificates include "mutual promises and signatures of the parties and is considered a contract by the [county] and developers in the community.

"Therefore, plaintiffs are likely to succeed on the merits on their claim that defendant breached the contract between them," Galloway wrote in his opinion.

The judge ordered that the county resume processing Michigan-based Pulte Home Corp.'s 49-lot subdivision plan, called Clearfield, on Old Westminster Pike.

John Maguire, a Westminster attorney who represented Pulte at the injunction hearing in December, said the developer was pleased with the decision.

"It's consistent with the county's initial certification that the facilities were adequate for this project," said Maguire, who also represented Kohler Development Co., one of the other two developers who were granted similar injunctions.

Commissioners Dean L. Minnich and Perry L. Jones Jr. said yesterday that the county would not back away from the growth freeze it implemented in June and would appeal the decision.

"We are getting irritable but not discouraged," Minnich said. "We will keep on keeping on.

"We initiated this deferral to give the staff time to fend off assaults from pressure groups," he continued. "We anticipated lawsuits, but we felt we had good, solid law on our side. That is why we are appealing."

Jones said Galloway's decisions have left the county no choice but to engage in costly appeals. He finds the process frustrating, he said.

"It appears that developers have no concept of what we are trying to do to keep this county a good place to live," Jones said. "We cannot continue to grow like we have in the past, and still make sure Carroll is a place that people want to move to."

The county's growth freeze halted subdivision projects that were subject to the county's adequate public facilities law. The law is designed to keep residential growth from overwhelming schools, roads, utilities and emergency services such as fire and police protection.

The commissioners imposed the freeze to give the county's planning department time to suggest amendments to the county's growth laws. Last week, the commissioners voted to set a public hearing on proposed revisions to Carroll's adequate public facilities law, which would require more stringent standards, including two tests for adequacy.

During Pulte's injunction hearing, the county argued that the certificates are not contracts because they offered timelines for the projects but no guarantees that the projects would move forward.

Cathy Borten, a Bethesda attorney who represented the county in the hearing, said that Pulte still had a lot of work to complete, including a traffic and hydrogeological study. Therefore, Borten said, the developer had no guarantee that it would receive the necessary permits to proceed.

Galloway noted in his opinion that county Planning Director Steven C. Horn testified that he "used the word 'contract' to show how the ... certificate is viewed by the developers and that he did nothing to dispel the belief among developers that a ... certificate was a 'contract.'"

Galloway's decision does not apply to any other subdivisions.

Several land-use attorneys said yesterday that Galloway's recent decision seems to indicate that other similar lawsuits could also prevail in court. More than six lawsuits involving developments seeking preliminary injunctions are pending in Carroll Circuit Court.

"They are going to keep getting these blows," said Baltimore-based lawyer Anthony Palaigos, who represented Forty West Builders Inc. of Ellicott City, the other developer that was granted an injunction. "In the bigger picture, no one is saying that the county can't legislate what it believes to be in the best interest of county residents, but what we're saying is that you don't get a free hand to affect already existing rights."

Added Westminster land-use attorney David Bowersox, "Because these decisions seem to be consistent in recognizing rights under the ... certificate, [the county] closed the gate in the wrong place and could be opening themselves up to liability."

Bowersox, who has filed five similar injunction requests in Circuit Court, said he also recently filed requests for judicial review of the administrative decisions by the county's Board of Zoning Appeals. The board denied or dismissed most of the appeals related to the growth freeze.

Sun staff writer Mary Gail Hare contributed to this article.

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