Daily Record Legal Affairs Writer//April 6, 2011
//Daily Record Legal Affairs Writer
//April 6, 2011
The Bengies Drive-In Theatre can proceed with its light-pollution lawsuit against a neighboring Royal Farms store, a Baltimore County Circuit Court judge has ruled.
Judge Robert E. Cahill dismissed a trespass count from the lawsuit but permitted negligence and private nuisance claims to go forward. Cahill heard arguments in the case Friday and issued his one-page ruling the same day, although lawyers in the case did not receive the decision until Wednesday.
T. Wray McCurdy, a lawyer for the drive-in, said the loss of the trespass count should not significantly impact the case.
“We can accomplish the exact same relief out of the other two counts,” said McCurdy, an Essex solo practitioner.
The Bengies opened in 1956 in Middle River and is Maryland’s last drive-in movie theater. Last year, another county judge ruled the drive-in could not force the county to cite the store for light pollution. That led the Bengies to sue Royal Farms directly.
Royal Farms responded with the motion to dismiss that was argued Friday.
“We are disappointed in the decision and will defend this suit accordingly,” said Alan A. Abramowitz, the store’s lawyer.
A 2003 special exception for the Royal Farms site along Eastern Boulevard specified the lighting plan should be designed so light does not “inappropriately spill onto adjacent properties, particularly the Bengies.” The Royal Farms store opened in fall 2008.
Drive-in owner D. Edward Vogel testified last year he had to close three weeks early in fall 2008 because of the lights and must wait until the foliage appears on his trees before offering movies in the spring. (The theater opened this year on March 18.)
The county has no specific law regulating light pollution, and zoning and permitting officials have visited the area multiple times at Vogel’s request without finding an inappropriate spill of light onto the drive-in’s property.
Abramowitz, in court last week, argued Royal Farms has followed the special exception and has no duty toward the Bengies.
“If there was a duty, it was to Baltimore County,” said Abramowitz, of counsel to Bouland & Brush LLC in Baltimore.
The lawsuit also spoke to the specific nature of the drive-in business, he added, rather than the “reasonable person” standard used in negligence cases.
“The plaintiff wants the ‘I’m special’ standard and that’s not allowed,” Abramowitz said.
But Andrew M. Belt, the other lawyer for the Bengies, said it should be up to a jury to determine if the theater’s claim was reasonable under the circumstances.
“I believe the ordinary standard we are employing is the ordinary standard of the movie theater which was there first,” said Belt, a Towson solo practitioner.
McCurdy, in an interview Wednesday, also reiterated the drive-in’s position that the lack of a county citation does not mean there has been no violation of the special exception.
“The citizen has the right to enforce a special exception coming out of a zoning hearing,” he said.
Under Cahill’s order, Royal Farms has 10 days from Friday to respond to the remaining pleadings. No trial date has been set.P