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Editorial Advisory Board: A salute to Judge Harrell

The retirement of Associate Judge Glenn T. Harrell Jr. from the Court of Appeals of Maryland this past June is a loss to that court, the Bar and to the state. (Fortunately, Judge Harrell has agreed to sit until his replacement has been named.) Practitioners will miss him because he was courteous, albeit incisive, in argument — a real gentleman, in other words. That view is confirmed by the affection his law clerks have for him, a feeling that cannot be faked — he even officiates at their weddings.  They — and we — will certainly miss their boss.

The Bar will miss Judge Harrell at least as much, because his opinions are readable, understandable, and loaded with common sense; a Harrell opinion contains no unnecessary fillips or digressions, and it can be understood immediately. What you see is what you get, a bonus appreciated by all practitioners.

A 1970 graduate of the University of Maryland School of Law, Judge Harrell practiced in Prince George’s County, with stints as an associate county attorney and a hearing examiner for the State Board of Education. Judge Harrell was a protégé of Prince George’s legal scion Peter O’Malley and ultimately a named partner at O’Malley, Miles, and Harrell. Under the tutelage of Peter O’Malley, Judge Harrell honed his skills of working behind the scenes to affect change, leaving the credit for others. The firm and its attorneys have left a lasting impact on Prince George’s County.

He was appointed to the Court of Special Appeals by Gov. William Donald Schaefer in 1991 and to the Court of Appeals by Gov. Parris N. Glendening in 1999. During his tenure on the bench, he has been very active in the Maryland Judicial Institute, especially in its ASTAR Program (advanced science and technology for judges), and he has received numerous awards for his work in administrative law.

While Judge Harrell has written respected opinions across the spectrum of legal issues, his most notable perhaps were in the area of land use. Two of those opinions illustrate Judge Harrell’s care in working with precedent, his respect for legislative desires, and his sensitivity to policy concerns.  The first of those opinions is Mastrandrea v. North, 361 Md. 107 (2000), where he reconciled the federal Americans with Disabilities Act, the authority of the Critical Area Commission, and a local disability code. A difficult task to be sure, but one that makes complete sense.

The second, perhaps more momentous case, was one where he led the dissent, Trail v. Terrapin Run, LLC, 403 Md. 523 (2008). Judge Harrell’s dissent in this 4-to-3 decision was the catalyst for the 2009 Smart and Sustainable Growth Act, Gov. Martin O’Malley’s legislative agenda requiring that local zoning decisions be consistent with, and not contrary to, periodically-reviewed local comprehensive plans.

Terrapin Run sought a special exception to construct a planned unit development on land designated for urban growth in the county’s comprehensive plan in bucolic Allegany County. The circuit court eventually remanded the case back to the county to determine if its decision was “consistent with” the county’s comprehensive plan.

The Court of Appeals affirmed, noting that the law did not require a local jurisdiction to adopt a zoning ordinance or comprehensive plan, but only enabled the county to do so. Judge Harrell’s dissent argued that the majority view was neither consistent with the plain reading of the Article nor with the court’s prior decisions, arguing that in delegating zoning authority to local jurisdictions, the General Assembly established requirements for the exercise of that authority, including that any land use decision “conforms to the plan and is compatible with the existing neighborhood.”

“…[T]he view that Article 66B provides local jurisdictions with mostly mere ‘suggestions’ is undermined by the fact that the General Assembly painstakingly detailed the form and substance of local administrative zoning bodies,” Judge Harrell wrote.

This wise reasoning came too late in the 2008 legislative session for the General Assembly to respond, but in 2009 the legislature expressly overturned the Terrapin Run decision, affirming Judge Harrell’s dissent, and mandated that local jurisdictions review comprehensive rezoning every six years and that zoning decisions be consistent with, and not contrary to, the comprehensive plan.

Terrapin Run illustrates Judge Harrell’s sensitivity to the law, both as written and as it should be. That sensitivity shone in many other opinions as well, and no doubt helps explain the fondness that his clerks have for him. We shall miss his sensitivity, his courtesy, his clarity, and most of all, his wisdom. We thank Judge Harrell for his service and give him our very best wishes in his retirement.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Ericka King

Stephen Meehan

C. William Michaels

William Reynolds

Norman Smith

Tracy L. Steedman

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.