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Md. high court reviews developer’s donation, Baltimore Co. construction approval

ANNAPOLIS – A condominium association’s lawyer urged a skeptical Maryland high court Wednesday to overturn the Baltimore County Council’s approval of a seven-story medical building’s construction in Catonsville due to the alleged impropriety of a councilman having accepted illegal campaign contributions from the developer.

Attorney J. Carroll Holzer said lower courts erroneously dismissed as business as usual Councilman Tom Quirk’s acceptance of $7,500 in campaign contributions from Stephen W. Whalen Jr. in August 2011, just one month before Quirk introduced the resolution authorizing the building’s construction by Whalen Properties LLC. The councilman’s district includes Catonsville.

Quirk’s support of the project so soon after the contribution was “a clear appearance of impropriety,” Holzer told the Court of Appeals.

“Nobody has had a case this powerful, this clear,” Holzer added, citing Whalen’s subsequent guilty plea to having violated campaign finance laws in his dealings with Quirk.

Within weeks, the council approved the planned unit development, or PUD, over the objections of neighboring Kenwood Gardens Condominiums. The approval was upheld by an administrative law judge, the Baltimore County Board of Appeals, a Baltimore County Circuit Court judge and the intermediate Court of Special Appeals, which held that legislative actions are largely immune from judicial review.

Whalen ultimately paid a $53,000 fine in January 2013 for violating Maryland’s statutory $4,000 campaign-contribution limit with his payment to Quirk, which involved three illegal “straw” contributions. Specifically, Whalen paid $2,500 to three individuals, who then each wrote $2,500 checks to Quirk’s campaign fund, according to the statement of facts accompanying Whalen’s plea agreement with Maryland State Prosecutor Emmet C. Davitt.

Crossing the line?

But several high-court judges Wednesday seized on a sentence from the statement of facts noting no evidence was uncovered to indicate Quirk knew the three personal checks his campaign received were underwritten by Whalen.

Without a finding that Quirk knew of Whalen’s involvement, the condominium association has merely alleging an appearance of impropriety, said Judge Lynne A. Battaglia, a retired jurist sitting by special assignment.

That prompted Judge Sally D. Adkins to ask whether the high court has ever remanded a zoning decision based on the appearance of impropriety.

Holzer responded that Whalen’s illegal payment to Quirk so soon before the PUD’s introduction and approval “crossed over the line” of a mere campaign contribution.

“Where is the line drawn?” Chief Judge Mary Ellen Barbera asked.

“Look at the timing,” said Holzer, of Holzer & Lee P.A. in Towson.

But Whalen Properties’ attorney, G. Scott Barhight, said council members and other legislators have broad immunity from having their legislative acts – including votes – challenged in court.

Adkins interjected that legislative immunity only goes so far.

“Some body has to be able to look into unlawful proceedings,” Adkins said, adding that receiving money from a developer on the eve of a council vote looks suspicious.

Barhight responded that the mere appearance of impropriety based on a donation is insufficient to invalidate a council’s approval of a PUD.

“You are allowed to fundraise,” said Barhight, a partner at Whiteford Taylor & Preston LLP in Towson. “You are allowed to have communications with your councilmember.”

‘Political reality’

Barhight’s argument won, albeit begrudgingly, in the lower courts.

Baltimore County Circuit Judge Kathleen G. Cox, in upholding the PUD in February 2014, noted “the political reality is that developers cultivate positive working relationships with County Council members in positions to support their products.”

The Court of Special Appeals affirmed in September, stating it does “not condone or excuse the conduct of the persons involved.” The intermediate court added that “when the public learns that the developer illegally circumvented the contribution limits in state law in order to assist the elected official in meeting his stated fundraising goals, it can only inspire corrosive cynicism about the operation of government.”

The condominium association then sought review by the Court of Appeals.

The high court is expected to render its decision by Aug. 31 in the case, Kenwood Gardens Condominiums Inc. v. Whalen Properties LLC, No. 86, September Term 2015.