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Nonprofit alleges city violated charter in park pipeline arrangement

Heather Cobun//Daily Record Legal Affairs Writer//April 19, 2019

Nonprofit alleges city violated charter in park pipeline arrangement

By Heather Cobun

//Daily Record Legal Affairs Writer

//April 19, 2019

A community nonprofit is suing Baltimore over the approval process for a natural gas pipeline through Gwynns Falls and Leakin Park that the group says significantly undervalues the land and violates the city’s charter.

The Friends of Gwynns Falls/Leakin Park Inc. and three area residents filed suit in Baltimore City Circuit Court on April 11 seeking a declaratory judgment and injunctive relief to prevent the Baltimore Gas and Electric Co. project from moving forward at the agreed-upon price. The complaint also names BGE.

“It is (the plaintiffs’) goal to prevent BGE from using the pipeline until adequate compensation is paid for use of the parkland,” a news release about the lawsuit states.

The endeavor is supported by the General Assembly legislators for District 41 — Jill P. Carter, Dalya Attar, Tony Bridges and Samuel I. Rosenberg — who sent a letter to Mayor Catherine Pugh on March 14 urging her to adopt the ordinance in accordance with the city’s charter.

“Baltimore City and its citizens deserve better than the fee initially agreed upon with BGE,” the legislators wrote.

Though the Baltimore City Recreation and Parks Department has valued the land at $14 million, BGE is paying only $2 million to use the property, according to the lawsuit.

“The city is undervaluing a unique resource,” said Jack Lattimore, a member of the nonprofit’s board. “That’s the really sad part about it: They claim this is a poor city yet they had this spectacular resource and they’re undervaluing it.”

A meeting of the city’s Housing and Urban Affairs Committee is scheduled for Tuesday to discuss granting a franchise to BGE to build and operate the pipeline. The lawsuit claims that the franchise agreement should have been in place before construction began in February 2018 and that the process has violated the city charter.

City Solicitor Andre M. Davis said in a statement Friday that the city was “proceeding lawfully” in bringing the transaction to a conclusion, adding, “We will respond to the matter now pending in court in due course.”

No proceedings were scheduled in the circuit court case as of Friday afternoon. Attorney Michael R. McCann said he was in the process of serving the defendants.

Charter requirements

In September 2017, BGE and the city entered an “omnibus agreement” that granted BGE the right to clear a 2.2-mile stretch of forest through the park to construct a 26-inch gas pipeline, according to the complaint. Baltimore estimated 2,800 trees would be removed for the project but said on its website that the “precise environmental impacts are uncertain.”

BGE agreed to pay $2.5 million as mitigation for the removal of the trees and for park improvements, but the agreement was otherwise silent on compensation for use of the property. The Board of Estimates approved the agreement on Sept. 27, 2017.

The lawsuit alleges the city’s charter states that city parkland is “inalienable” but authorizes the city to grant a franchise or right relating to the land “for a limited time.” An ordinance authorizing such a grant must be referred to the Baltimore City Board of Estimates, which must investigate the value of the proposal. The spending board is permitted to alter the compensation paid to the city.

The board has a duty to fix the compensation “at the largest amount it may be able to obtain” and must approve the compensation and other terms before the council can adopt the ordinance, according to the complaint. A franchise right cannot be granted for longer than 25 years.

The City Council introduced a franchise ordinance in October 2018 that does not specify an amount to be paid by BGE and that was not reviewed by the Board of Estimates, according to the complaint. The plaintiffs said they believe BGE will pay the $2 million negotiated franchise fee.

In January, the nonprofit informed the city via letter of the alleged violations of the charter and requested the council refer the franchise ordinance to the Board of Estimates and allow it to conduct an inquiry into the ordinance’s terms and conditions.

“One might characterize these violations of the City Charter as hyper-technical and argue that the City could ‘fix’ these illegalities by simply referring a proposed franchise ordinance to the Board of Estimates for retroactive approval of the Omnibus Agreement,” the letter states. “Such maneuverings would not cure the illegal nature of the grant of franchise rights in the Omnibus Agreement. Moreover, because BGE has already completed the pipeline project and assumedly paid the amount of compensation bargained for in the Omnibus Agreement, the Board of Estimates and the public at large has lost all bargaining power with BGE to obtain the compensation that the Park and the public deserve.”

McCann said the plaintiffs “didn’t take filing this suit lightly” but felt they had no alternative after the city moved forward with hearings on the ordinance.

The case is Friends of Gwynns Falls/Leakin Park Inc., et al. v. Mayor And City Council Of Baltimore et al.


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