Terrapin Run Back in Court

The Board of Allegany County Commissioners joined with Terrapin Run LLC to file suit against two state agencies alleging actions tantamount to taking of the property.

The suit, filed Thursday in Allegany County Circuit Court, centers around the 935-acre tract of land in eastern Allegany County for which the state’s highest court last year ruled that county government properly granted a special exception for a proposed planned residential development. Terrapin Run LLC, an affiliate of Columbia-based PDC Inc., is seeking $16 million in damages related to being unable to develop the land.

Though the preliminary permit applications showed plans for up to 4,300 residential units, later discussions between the county and the developer limited the scope of the project to 360 units in the first 10 years and a total of about 900 units in the first 20 years.

Allegany County Commissioner Bob Hutcheson said Tuesday the lawsuit might appear more “impressive” filing jointly with the developer.

“It magnifies the fact that it had to be done,” said Hutcheson, who referred all legal questions to County Attorney Bill Rudd.

Local attorney Robert Paye, representing Terrapin Run LLC, said it was an “interesting” case with a “highly unusual” set of circumstances.

“I think (both parties) felt we were being singled out,”Paye said. “MDE and MDP together had said, ‘We’re going to disregard the rights of the county to create a (comprehensive and water and sewer) plan, disregard the rights of the developer and disregard the Court of Appeals. Both of us felt it had to be challenged ... or local governments have no right to do anything.”

To date, the Maryland Department of the Environment and the Maryland Department of Planning have refused to acknowledge the Court of Appeals decision and, in correspondence with the county since March 2008, said that ruling “has no direct effect” on the issuing of permits necessary for the Terrapin Run development to move forward. The suit names Shari Wilson, MDE secretary, and Richard Hall, MDP secretary, as individual defendants along with the agencies they lead.

Both agencies have refused to approve the development’s inclusion in the county’s master water and sewer plan. The county said it has no way of appealing the state’s position.

“As a result of disapproval without a right of a hearing or right of appeal, the county has been unlawfully deprived of the right of a local government to provide and create an appropriate plan for water and sewer facilities and services for the local jurisdiction,” the commissioners argue in court documents through Rudd.

Terrapin Run LLC, Paye argued, “has suffered loss of all development rights and rights of use of property” that is tantamount to a “taking of its property.”

The county said in the court filing that MDE “has abused the powers vested in it” and followed “erroneous, arbitrary and capricious” advice from MDP. The county wants the court to order the state agency to approve the master water and sewer plan.

The commissioners also want a declaratory judgment which absolves it from having the developer complete what MDE said is a required anti-degradation study to analyze the effects of the development’s discharge into Fifteen Mile Creek. The county contends the regulation “interferes with the right and privilege of the plaintiffs to provide for new development in the water and sewer plan.” The regulation exceeds the state agency’s authority, court documents allege, and therefore is “unauthorized, unlawful and unconstitutional.”

The county wants the court to order both MDE and MDP to review and approve the water and sewer plan without regard to whether the Terrapin Run development is “in harmony with” or “consistent with” the county’s comprehensive plan.

The named defendants have 30 days to respond to the court summons, Paye said, which were likely served Monday.

Calls to Commissioners Jim Stakem and Dale Lewis were not immediately returned. Messages left for Rudd also were not answered before deadline.

Hutcheson said Terrapin Run has been in the planning stages “for a long time.”

“I’m hoping this will bring it to the floor” for resolution, he said.

Paye said an initial hearing might be up to a year from being scheduled.

Hutcheson said the only costs shouldered by the county would be court costs, as Rudd is on staff. Paye said the developer is expected to shoulder the “brunt of the cost burden."