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Howard County wins massive land-use fight

Four Howard County residents have suffered yet another defeat in their bid to undo more than 100 land-use decisions made by the county during the past two decades.

The Court of Special Appeals last week rejected the residents’ claim that the county violated their right to vote by enacting zoning decisions through resolutions rather than by ordinance. The difference is that resolutions are not subject to referendum, while ordinances can be put to popular vote.

The residents lost a similar federal claim a year ago, when a U.S. appeals court said they lacked standing to bring the challenge.

Susan B. Gray, the residents’ attorney, assailed both decisions on Friday.

“The people’s right of referendum has been nailed by every court in sight” in this case, said Gray, a Highland solo practitioner. “The courts say you have no standing when your most fundamental of constitutional rights has been violated.”

But the Court of Special Appeals, in its 3-0 decision, said the residents’ claim was merely a general complaint that planning officials were violating the Howard County Charter, which provides for referendum challenges to ordinances.

The right to vote had not been implicated because the residents had never mounted a petition drive to bring a contested decision to a popular vote, Judge Robert A. Zarnoch wrote for the appellate court.

“In the words of Baker v. Carr … a ‘concrete injury’ to fundamental voting rights has not yet occurred,” Zarnoch wrote, referring to the Supreme Court’s seminal 1962 voting-rights decision. “What we are left with is [the residents’] assertion of an abstract, generalized interest in the county’s compliance with … the charter.”

Zarnoch added that the residents remain free to challenge county zoning decisions under state law “without any reliance on voting rights.”

The 4th U.S. Circuit Court of Appeals had likewise found the residents’ claim too general last April.

Gray, however, said the residents’ assertions are neither abstract nor general but go to the core of the rights to petition and vote. Howard County has “circumvented” the residents’ constitutional, statutory and charter right to a referendum vote by passing zoning rules by resolution rather than by ordinance, she said.

“Once created under state law, that right to referendum is protected,” Gray added. “If you can’t get in the courthouse door, how does that right have any value whatsoever? It doesn’t. It doesn’t.”

Gray said the issue goes back about 18 years, when Howard County passed its development plan by resolution, in violation of the 1994 charter, which calls for zoning decisions to be passed as ordinances subject to referendum.

“That’s what people were so, so outraged about,” Gray said. “It is a practice that is so endemic in Howard County.”

Gray said Friday that she had not yet read the decision nor discussed with her clients whether to seek review by the Court of Appeals.

Louis P. Ruzzi, senior assistant Howard County solicitor, said in a statement that he is “pleased” the court affirmed the February 2010 dismissal of the residents’ challenge.

“The series of lawsuits filed by plaintiffs jeopardized the property rights of hundreds of innocent county taxpayers who had followed proper legal channels,” said Ruzzi, who argued the case before the appellate court. “These legal challenges were initiated by plaintiffs years after the individual approvals had been obtained and any appeal periods had expired.”

Howard County Circuit Court Judge Timothy J. McCrone, in dismissing the case, had urged the residents to appeal so they could “stop dancing, get some resolution.”

The case, had it been allowed to proceed to trial, would have required the residents’ to bring many of their Howard County neighbors into the litigation as “necessary parties [because] it is inconceivable that many property owners would not be adversely affected by judicial invalidation of land-use decisions previously thought settled,” Zarnoch wrote.

The four residents are Paul F. Kendall and Frank Martin of Ellicott City, Phillip Rousseau of Columbia and C. Edward Walter of Woodstock.

WHAT THE COURT HELD

Case:

Paul F. Kendall et al. v. Howard County, CSA No. 0235, Sept. Term 2010. Reported. Opinion by Zarnoch, J. Argued May 3, 2011. Filed April 11, 2012.

Issue:

Did the circuit court judge err in holding that the county residents lacked “voter standing” to bring suit?

Holding:

No; the residents lacked standing because their claim asserted merely an “abstract, generalized interest” in the county’s compliance with its charter.

Counsel:

Susan B. Gray for appellants; Louis P. Ruzzi for appellee.

RecordFax # 12-0411-00.