More legal salvos filed in Harford rubblefill case; other counties join in support

A new round of legal salvos has been filed in lawsuit over a failed rubble landfill venture near Havre de Grace that resulted in a $45 million-plus judgment against Harford County government earlier this year.

Lawyers for the county have petitioned the Maryland Court of Appeals, the state’s highest court, to directly hear the county’s appeal of the judgment a Harford Circuit Court jury entered in favor of Maryland Reclamation Associates, the rubblefill owner, after a civil trial in April.

The jury awarded $45,420,076 in damages, ruling that the county, through a series of adverse administrative and legislative actions over more than 25 years, had deprived Maryland Reclamation of the just use of its 55-acre property off Gravel Hill Road, by engaging in a regulatory taking without providing just compensation.

At the heart of the lawsuit was the Harford County Council’s 1991 passage of a law that changed development regulations for landfills, setting a new minimum area and setback requirements that Maryland Reclamation could not meet. The law, which Maryland Reclamation unsuccessfully challenged in the courts, was enacted after the company had received some preliminary state and county approvals for the rubblefill under a prior county administration and county council.

The county appealed the adverse judgment after the judge who heard the case at the Circuit Court level denied its petition to set aside the verdict and the damage award.

The judgment is believed to be the highest monetary damage award ever entered against the Harford County government.

The county’s petition for what is known as certiorari was filed Aug. 31. If granted, the appeal process would bypass the intermediate Court of Special Appeals and go directly before the higher court, which could end up saving the county money in the long run, both in terms of legal fees and judgment costs, regardless of the final outcome.

In order to appeal the case, the county had to post a bond covering the amount of the judgment and a year of post-judgment interest, which by state law is set at 10 percent annually. That alone is costing the county more than $12,000 daily, pending the success or failure of the appeal.

The Harford County Council approved a request in early May by County Attorney Melissa Lambert to retain outside counsel from the firm Rosenberg Martin Greenberg LLP, of Baltimore, to represent Harford at the state appellate level.

Maryland Reclamation’s lawyers are opposing the county’s certiorari motion and filed an 18-page motion of their own against the county’s on Sept. 17.

Meanwhile, the county government announced last week that four other Maryland county governments, three municipal governments and two statewide local government organizations have signed on as friends of the court and have filed what is known as an amicus curiae brief in support of Harford County’s petition for certiorari to the Court of Appeals.

“In support of Harford County’s petition, Montgomery County submitted an amicus brief to the Maryland Court of Appeals on Sept. 17, joined by Prince George’s, Howard, Carroll and Cecil counties along with the municipalities of Westminster, Rockville and Gaithersburg,” the Harford administration stated in a news release. “The Maryland Association of Counties and Maryland Municipal League also signed onto the brief in support of Harford County’s request for review.”

Cindy Mumby, spokesperson for the county administration, said Monday that Harford approached the other jurisdictions for their potential support.

“Following standard legal practices, we made other potentially affected parties aware of our appeal and provided them with court documents to assist them in conducting their own research” Mumby explained in an email. “Montgomery County decided to write an amicus brief based on their review and the others signed onto Montgomery’s submission.”

The briefs and other documents filed on behalf of Harford government can be viewed on the county website www.harfordcountymd.gov.

“Zoning flexibility is of great importance to local governments because they must make changes to respond to growing populations, changing communities and citizen demands,” the amicus curiae brief, which was written by the Montgomery County Law Department, reads in part. “In the last thirty years, tracts of previously abundant agricultural land have become suburban, and certain suburban parcels have been redeveloped into dense transit-accessible neighborhoods. Further, environmental concerns and standards have changed substantially. Attitudes and practices regarding proper waste management and recycling have evolved, and materials like asbestos which were once considered safe are now known to be unsafe and hazardous.”

“Local governments must be able to effectively balance and protect the needs of communities by using zoning laws to respond to changes and to provide for development in a manner consistent with the goals and visions of the community,” the brief states.

In reaction to the most recent filings in the case, Richard D. Schafer, Maryland Reclamation’s founder and president, issued a written statement Sept. 20.

“Harford County has requested The Court Of Appeals to grant certiorari on the MRA trial verdict where a jury found that the County did in fact do a regulatory taking of MRA’s property and awarded just compensation in the amount of $ 45,420,076,” the statement reads. “The County also has encouraged other Maryland Counties and jurisdictions to file an amicus curiae brief. MRA has filed its answer asking the court to deny these requests. The jury decided this case under a US Supreme Court case Penn Central Transportation Co. v. City of New York.”

“I feel the county has misled the other jurisdictions and never made them aware of the fact that this was a Penn Central case and not a zoning case,” Schafer wrote. “In addition, they keep arguing that we missed the statue of limitations. If they would only read Section 709 of the County Charter, [which] makes it crystal clear as to that issue.”

“At trial, Harford County’s expert on zoning testified that he had never read Section 405 of the Harford County Charter. This section shows the duties of the Planning and Zoning Director and qualifications. This is quite telling and makes one question the competency of the Glassman Government,” added Schafer, who also questioned the “competency” of the county administration.

“Instead of settling this case, Harford County would rather spend 12,500 dollars a day in interest and thumb its nose to the county taxpayers and jurors,” he wrote. “The verdict was for $45,420,076 and with interest it’s now approximately $47,220,076 and rising daily.”

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