Larry Carson reported in the Sun two days ago about it:
A group of development-wary residents have filed a lawsuit against Howard County that claims the government's process of making land-use decisions illegally denies citizens the right to challenge them by referendum.Among those involved are Frank Martin and Paul Kendall - critics of Turf Valley expansion plans. Philip Rousseau is also involved and was a part of the series of Wegmans lawsuits. That doesn't change how you should view the filing, but it is good to know who is involved.
The suit alleges that the county has violated the county charter for years by making land-use decisions via County Council resolutions and administrative decisions instead of by bill or ordinance. The practice, according to attorney Susan B. Gray and several independent plaintiffs, denies citizens the ability to petition decisions to referendum because only bills can go to voters.
The suit, filed Feb. 17 in U.S. District Court in Baltimore, asks authorities to declare a series of Howard laws void, seeks federal supervision of county land-use decisions and requests $10 million in damages.
It's likely that this lawsuit will go nowhere fast. The County is already calling it frivolous. I won't go that far with my comment, but this lawsuit presents moral hazard to me.
The citizens are seeking $10 million and a repeal of all land use decisions in the last three years. They want federal supervision of land-use decisions in the hopes that they could contest any land-use decision and take it to referendum, a la Council Bill 58.
They wouldn't get the money. That's frivolous and not worth discussing. The two critical points are calling for federal supervision of land-use decisions and a reversal of land-use decisions of the last three years. They won't get the latter. So, the thing to focus on is calling for federal supervision of land-use decisions.
This is an interesting claim. It is interesting because many like-minded folks to those behind this suit were up in arms when Executive Ulman sought to move soil conservation decisions to DPZ from Howard Soil Conservation District.
That, and the lawsuit claims, seem to represent a distrust of County officials in anything pertaining to land use. In that case, then, why should the County Council or Planning Board or any County entity be able to make final, binding land-use decisions? If the litigants of the lawsuit want the opportunity to contest any land-use decision, then hypothetically, every land-use decision should be put to referendum. There should be no filter for selective decisions to which a party should not be able to vote.
My question for those behind the suit, or that support it, would be what their ultimate goal is. Is it to have every land-use decision put in the hands of voters and run like a campaign? Is it something else?
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One other thing I noticed in the suit is the plantiffs are suing certain county officials in their "individual capacity" and asking for them each to be forced to pay $1,000,000 for each count they include in this suit.
ReplyDeleteNot being a lawyer myself, I am curious if someone with legal knowledge knows - does this mean the plantiffs are asking teh courts to force county officials to pay $1,000,000 out of their own pockets?
The text of the 124 page law suit can be found at http://howardcountyissues.org/ComplaintUSDistrictCourt.pdf I heard that the complete filing, with exhibits, was close to 2,000 pages.
ReplyDeleteYou may want to rethink your assumptions about whether a Federal judge will vacate potentially illegal land use decisions. If the court finds a pattern of abuse, they could very well choose that option for remediation.
Don't you find it curious that the County makes some decisions by Bill and others by Resolution, when only the former can be challenged?
Another question is why the same legal counsel (Office of Law) represents distinctly separate branches of government (which sometimes have different interests). If the lawsuit has legs, singular representation will probably end up being one of the root causes.
I don't necessarily find thousands of pages of exhibits to indicate that there's a case with constitutional merit. It may just be thousands of pages of grievances. I have made my way through a decent amount of the filing and come away wondering what the point is. Since I'm no lawyer, I can't comment on its legal merits.
ReplyDeleteI do find this distinction a quirk of the system, but I don't automatically believe that this distinction was created to screw over citizens and work in favor of developers. In that case, why wouldn't the County just make decisions through bills? Then citizens could never challenge them through referendum.
I don't find singular legal counsel to be particularly troubling. Knowing several lawyers that are federal counsel, I know that they do not advise their elected constituents on the basis of the official's opinions, but rather on the law. The same happens at the local level.
I am of the mind that calling the federal government in to overturn previous land use decisions is a signal of a series of litigants looking for any means to get their way. They don't trust their local officials, so they turn to the federal government. The federal government is not necessarily a better steward of land use, as I discovered by talking to several Wyoming ranchers this past weekend. They were in town for an invasive weed conference and were pleading with the federal government to either (a) do something about kudzu, etc, or (b) empower them to handle it locally.
I am of the mind that local jurisdictions figure out to make land use decisions work for them. When the processes don't seemingly work, then it is up to the people to remove those officials who defend the processes and install new officials that will change the processes for the better.
In the end, though, I just do not see this case going anywhere. The point of local land use decisions is rendered moot if every decision can be challenged with a very small signature threshold. Just leave every land use decision to the will of the people and turn each one into a political campaign.
You may want to consult professionals with experience in Federal "due process" and "voter rights" cases. Try as they might, the county's attorneys are going to have their hands full trying to convince a federal judge to dismiss this.
ReplyDeleteWithout taking a position on the merits of the case, it looks like Paul Kendall and Susan Gray have crafted an action that the county's attorneys will have a hard time moving out of the federal courts.
Did you see today's Columbia Flier story about the county asking the judge to remove the officials and individuals from the lawsuit? If they didn't do anything wrong, why are the lawyers doing this? Looks like county officials are circling the wagon.
ReplyDeleteMary, I didn't. Do you know what the article is titled? Would be glad to look at it on Explore Howard.
ReplyDeleteAnon, like I said, I'm no lawyer. So I can't take a position on the merits of the case. From what I do know of legislative and non-legislative binding decisions, there are valid reasons for such distinctions in other applications. The threshold for Gray and Kendall would be to prove a pattern of activity that does not support the reasons for the distinctions in the first place.
ReplyDeleteRyan, the following story was in last week's Columbia Flier.
ReplyDeleteMotion filed to strike officials from lawsuit
By Derek Simmonsen
Posted 3/05/09
Howard County officials want to dismiss most of the defendants named in a recent federal lawsuit over the right of residents to take land-use issues to referendum.
The county filed the motion March 2 asking that the Howard County Council and the council acting as the Zoning Board, the county Planning Board, County Executive Kenneth Ulman, former County Executive James Robey and County Solicitor Margaret Ann Nolan be dismissed from the complaint.
The county argues that by naming the county as a defendant, it is not necessary to name all of the other defendants, the motion reads. In addition, the County Council, Planning Board and Zoning Board cannot be sued under Maryland law, according to the motion.
A group of 13 county residents sued Feb. 17 in U.S. District Court in Baltimore seeking to overturn past land-use decisions and get federal oversight of the county's land-use policies. The suit claims the county has essentially violated the residents' right to vote by approving land use policies in a way that keeps citizens from challenging the decisions through referendums.
The county has not formally responded to these claims, but a county spokesman described the lawsuit as "meritless."
U.S. District Judge J. Frederick Motz signed an order March 3 granting the county additional time to respond to the lawsuit as a whole. He has not ruled on the motion to dismiss.
http://www.explorehoward.com/news/16334/motion-filed-strike-officials-lawsuit/
Mary, thanks for the link - had a tough time in finding it. I would think that they're trying to get the case dismissed by removing the individuals from the lawsuit because they're implied by suing these county entities. And then they're trying to take out several entities by motioning that these bodies cannot be sued for monetary amounts.
ReplyDeleteRegarding Ryan's comment on the sidebar, that is not how he's tracking our IP addresses. Ryan, at least be honest about how you're doing it, even if you have to keep your sources 'anonymous'.
ReplyDeleteMy process for tracking IP addresses is simple and standardized across any site that I run. I use one of two tools: StatCounter (statcounter.com) or Google Analytics. These tools are used across the world to find out basic facts about people that come to the website. What I learn about any one visitor to the site is:
ReplyDelete1. How they get to the site - were they referred by a link elsewhere, or just came to the site on their own?
2. When they came to the site and for how long they stayed.
3. Through what ISP they came to the site. For people using services like Comcast or Verizon, all I know is that you came from their servers. I don't know specifically from where you come, but rather the location of the Web server through which you got to here. If you work for a company that has their own Web servers, then I can tell the corporation from which you are coming, but not your specific name.
One anonymous user has outted themselves on this space. My "source" for that was a link posted by the user to a website which could be used to email an article/cause to another person. At that link was the anonymous user's name, which is a tacit admission of the person's true identity. So, the "source" was self-supplied.