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E-FILED

Court of Appeals
Bessie Decker
9/17/2018 11:59 AM

IN THE COURT OF APPEALS OF MARYLAND

HARFORD COUNTY, In the Court of


MARYLAND, Appeals of Maryland
September Term, 2018
Petitioner Petition Docket No. 0305
v.
MARYLAND RECLAMATION
ASSOCIATES, INC.,
Respondent

ANSWER TO PETITION FOR WRIT OF CERTIORARI

Respondent Maryland Reclamation Associates, Inc. (“MRA”), pursuant to Rule 8-303(d),

respectfully submits this Answer to the Petition for Writ of Certiorari of Petitioner Harford

County, Maryland (the “County”), and asks this Court to deny the petition.

I. INTRODUCTION

The jury in this case decided that the County effectuated an unconstitutional regulatory

taking of MRA’s Property under the seminal U.S. Supreme Court case, Penn Central

Transportation Co. v. City of New York, 438 U.S. 104 (1978), and awarded just compensation in

the amount of $45.4 million. The Penn Central analysis required the jury to engage in fact-

intensive balancing of the well-established factors for a regulatory taking and to evaluate expert

testimony to determine the appropriate award. The verdict was based, in part, on overwhelming

and largely uncontradicted evidence that, although (1) MRA had obtained zoning and site plan

approval; (2) was in the Solid Waste Management Plan (“SWM Plan”); (3) and obtained a permit

from the Maryland Department of the Environment (“MDE”) to operate a rubblefill on the

Gravel Hill Road property (the “Property”), the County embarked on a 20 year crusade to

destroy MRA’s property rights and its reasonable investment-backed expectations. This

included the passage of four laws intended to prevent the operation of the rubblefill – two of

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which were declared illegal – coupled with the County’s interference with MRA’s permit

application at the MDE. All of this was summarized in a County memorandum signed by all of

the members of the County Council instructing County employees to make the interference

appear as “business as usual.” The just compensation award was supported by expert testimony,

the financial projections of accountants with extensive experience with other rubblefills in

Maryland, and the testimony of MRA’s President, Richard Schafer, who had specialized

knowledge of the Property and had entertained several offers to purchase the Property.

And although the only issue tried to the jury was a Penn Central takings claim,

conspicuously absent from the County’s Petition for Writ of Certiorari (“Petition”) are two

words: Penn Central. Rather than confront the central issue presented at trial, the Petition

focuses on a range of zoning issues that are no longer part of this case. Despite the County’s best

efforts to confuse the issues, this case is not about zoning. For that reason, the decisions of this

Court at earlier stages of this litigation — which pertained primarily to the validity of the

County’s zoning process — bear no relation to the issues that were tried in this case. No reason

exists for this Court to bypass the Court of Special Appeals (“CSA”). The CSA is well-equipped

to evaluate the record and to narrow any potential issues that may merit further review.

Examining each of the Petition’s four questions presented, they were correctly decided or

were not determined at trial:

First, the County improperly invokes the “vested rights” doctrine, which has no relevance

to this takings claim. The County’s Petition hopelessly conflates the narrow state-law doctrine

of “vested rights,” which protects property owners against changes in zoning ordinances in

specific circumstances, MRA v. Harford Cty., 414 Md. 1, 44-45 (2010) (“MRA IV ”), and the

broader constitutional requirements for a regulatory takings claim under Penn Central. See Penn

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Central, 438 U.S. at 124; see also Rucklehaus v. Monsanto Co., 467 U.S. 986, 1000-01 (1984);

Neifert v. Dep’t. of Env’t, 395 Md. 486, 517 (2006). Those two inquiries are entirely distinct.

As a result, the Court’s prior decision in MRA IV, which held that MRA lacked a “vested right”

in the County’s zoning approval, does not govern the separate takings analysis determined at

trial.

Second, this Court’s review is not warranted to consider whether the operation of MRA’s

rubblefill would constitute a nuisance. That issue was not presented to the jury or decided at trial

because the circuit court ruled, as an evidentiary matter, that the County’s nuisance evidence was

inadmissible. The Petition, however, does not challenge that evidentiary ruling. And in any

event, the MDE permit expressly prohibited MRA from operating a rubblefill in a manner that

would constitute a nuisance. This Court should not grant a writ of certiorari to review a question

that was not presented to the jury.

Third, the County is wrong that the statute of limitations barred MRA’s takings claim. In

an action like this, a Penn Central takings claim accrues “when the regulations underlying

appellant’s claim were ‘finally determined to be effective.’” Millison v. Wilzack, 77 Md. App.

676, 689 (1989). Here, MRA’s claim did not accrue when MRA’s variance was denied, as the

County suggests. Rather, the claim accrued after this Court’s March 11, 2010 decision in MRA

IV, which upheld the validity of the applicable zoning law, Bill 91-10, and affirmed the denial of

variances from that law. That decision provided the final determination that Bill 91-10 is valid

and that MRA would not be permitted to operate a rubblefill on the Property. The present

lawsuit was timely filed within three years of that final decision.

Finally, the jury’s award properly accounted for MRA’s unique property. Yancey v.

United States, 915 F.2d 1534, 1542 (Fed. Cir. 1990). The County is incorrect that MRA’s expert

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improperly considered the “capitalized valuation of projected profits” from the rubblefill’s

operation to determine the value of the Property. Petition, at 14. Rather, the very decisions cited

by the County make clear that the land’s “productive capacity,” including “gross sales” and the

land’s “proper use and purposes” are appropriate considerations for the jury. See Brinsfield v.

City of Baltimore, 236 Md. 66, 70 (1964); State Roads Comm’n v. Novosel, 203 Md. 619, 623-24

(1954); see also Dodson v. Anne Arundel County, 294 Md. 490, 495-96 (1982).

Accordingly, this Court should deny the County’s Petition for a Writ of Certiorari.

II. FACTS

In 1989, Mr. Schafer sought to purchase the Property with the intention of using the

Property’s unique topography to build and operate a rubble landfill. (Exhibit A, 4-5-2018 AM

Trial Tr. at 101:21-102:22). Extensive mining of the Property left it resembling a moonscape

with numerous steep changes in elevation. (PX 186, 187, 188).

Mr. Schafer knew that the County had a policy at that time of permitting the operation of

private rubblefills to encourage reclamation of mined land, and Mr. Schafer saw an ideal

business opportunity: MRA would operate a rubblefill on the Property, thereby generating

substantial income for the company, and when the Property was fully reclaimed, MRA would

donate the reclaimed land to the County for use as a park, thereby making beneficial use of

otherwise unusable land. (Exhibit A, 4-5-2018 AM Trial Tr. at 100:9-24; Exhibit B, 4-5-2018

PM Trial Tr. at 65:13-66:4).

In 1989 and 1990, Mr. Schafer and MRA undertook all the steps a reasonable landowner

would take in order to build and operate a rubblefill on the Property, including: (1) addressing

zoning issues with the County; (2) obtaining inclusion in the County’s SWM Plan by agreeing to

twenty-seven conditions imposed by the County; (3) obtaining County Council approval of

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MRA’s site plan; (4) purchasing the Property; and (5) taking steps to obtain its MDE permit.

(PX 14, PX 47, PX 105, PX 128). MRA ultimately invested more than $4 million in pursuit of

its plans to operate a rubblefill on the Property. (PX 68, PX 100, PX 115).

But then the political winds shifted. After the County Council approved MRA’s site plan

and included MRA’s proposed rubblefill in the SWM Plan, an election changed the makeup of

the County Council. (PX 128 ¶ 41). The new County Councilmembers sought to prevent MRA

from building and operating a rubble landfill on the Property by passing four separate pieces of

legislation (two of which were ultimately deemed illegal by the CSA and circuit court). (PX 60,

77, 78, 88). Meanwhile, the County interfered with MRA’s application for an MDE permit to

stall the permit’s issuance until the County could alter the zoning regulations to prohibit MRA’s

rubblefill. All the while, the County attempted to make its actions appear like “business as

usual.” (PX 61, PX 80, PX 80A). MRA fought back against the County for over twenty years,

but ultimately, on March 11, 2010, this Court upheld Bill 91-10, which prevented MRA from

ever building and operating a rubble landfill on the Property. (PX 191).

Due to its extreme topography, there is no other economically viable use MRA can make

of the Property other than to operate a rubblefill. (Exhibit C, 4-11-2018 PM Trial Tr. at 71:8-24;

Exhibit D, 4-10-2018 AM Trial Tr. at 65:4-15; Exhibit E, 4-6-2018 AM Trial Tr. at 45:6-9). The

County’s actions destroyed the Property’s value and effectuated a taking of the Property without

providing just compensation to MRA. (Exhibit F, 4-6-2018 PM Trial Tr. at 7:18-8:12; Exhibit

C, 4-11-2018 PM Trial Tr. at 80:10-82:11). MRA brought the present lawsuit against the County

to recover the just compensation owed. Following a two week trial, on April 17, 2018, a six-

person jury found that the County’s actions resulted in a taking of MRA’s Property and awarded

MRA $45,420,076 in just compensation. (Exhibit G, 4-17-2018 AM Trial Tr. at 9:1-13).

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Now on appeal, the County has set forth four questions that it urges this Court to hear

without prior review by the CSA. Its Petition should be denied.

III. ARGUMENT

A. The County’s Petition Does Not Meet the Standards For Certiorari.

Maryland law provides that this Court, in its discretion, may grant certiorari if a case is

“desirable and in the public interest.” Md. Cts. & Jud. Proc. § 12-203 (2006). The issues, as

presented in the County’s Petition, do not rise to that standard. First, the Petition ignores Penn

Central, which was the only issue determined by the jury. Any challenge to that verdict involves

substantial and fact-bound determinations requiring a review of the sufficiency of the evidence.

That review can and should be performed, in the first instance by the CSA. Second, the County

is incorrect that this case is governed by this Court’s prior rulings at earlier stages of this dispute.

This case arises following a two-week jury trial that determined that the County had taken

MRA’s Property and the amount of just compensation. The prior rulings of this Court had

nothing to do with a takings claim and involve separate and distinct legal issues not presented in

the Petition.

1. The Verdict In This Regulatory Takings Action Required The Jury To Make
Factbound Determinations That Do Not Warrant Bypass Review.

This Court should not bypass the CSA to review the jury’s verdict, which was decided

under the Penn Central test for regulatory takings. A Penn Central claim requires that the

factfinder balance three factors: (1) the extent to which the regulation has interfered with a

party’s reasonable investment-backed expectations; (2) the economic impact on the property; and

(3) the nature and character of the County’s actions. Penn Central, 438 U.S. at 124. The jury

was properly instructed on the applicable Penn Central test—indeed, the County’s Petition does

not challenge the jury instructions or other legal rulings at trial. The U.S. Supreme Court has

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expressly recognized that factual determinations predominate the Penn Central analysis. See

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720 (1999) (“[W]e have

described determinations of liability in regulatory takings cases as ‘essentially ad hoc, factual

inquiries,’ requiring ‘complex factual assessments of the purposes and economic effects of

government actions.’”) (internal citations omitted).1 The Petition attempts to circumvent that

factual determination by seeking review of issues not presented to or decided by the jury.

2. Certiorari Is Unwarranted in Light of MRA’s Conditional Cross-Appeal.

Although the County fails to acknowledge it, MRA filed a conditional cross-appeal,

asking the CSA to determine whether the trial court erred by granting Harford County’s motion

for summary judgment on MRA’s claim that the County had effectuated a complete regulatory

taking under Lucas v. South Carolina Coastal Council, 505 U.S. 103 (1992). That question

should have been submitted to the jury, as there was a dispute of fact whether the County’s

misconduct had deprived the Property of all economically viable use. See City of Monterey, 526

U.S. at 720-21 (“[W]hether a landowner has been deprived of all economically viable use of his

property is a predominantly factual question . . . this question is for the jury.”). The issues

raised in the cross-appeal present a significant, alternative basis for the County’s liability under

Lucas. MRA, however, does not seek or desire a writ of certiorari on its cross-appeal at this

time. Granting the Petition would improperly bifurcate the case and ignore MRA’s alternative

grounds in support of the verdict.

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See also Ghinger & Ghinger, A Contemporary Appraisal of Condemnation in Maryland, 30
Md. L. Rev. 301, 323 (1970) (“It was undoubtedly contemplated by the framers of article III
section 40 [of the Maryland Constitution] that the best method for protecting the property owner
was to entrust the final decision as to the value of the condemned property to twelve good men
and true.”).

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3. The Issues in This Case Are Distinct from Those Decided in MRA II-IV

Although this case has been before this Court on three prior occasions,2 those prior cases

do not inform this stage of the litigation. Thus the fact that this Court previously granted

certiorari in MRA II-IV does not require the same result now. See Petition, at 2. Rather, the

Petition ignores the striking differences in legal and procedural posture between this case and

MRA II-IV.

Those prior cases involved challenges to the validity of the zoning ordinances and Bills

91-10 and 91-16, as applied to the Property. See MRA II, 342 Md. at 486; MRA III, 382 Md. at

350. This Court, in MRA IV, ultimately upheld the County’s authority to enact Bill 91-10 and the

denial of a variance. 414 Md. at 64-65. And importantly, in that case, this Court evaluated a due

process challenge to a zoning ordinance – a distinctly different standard than that applied to a

takings case. In those prior decisions, this Court did not address whether the County’s actions

constituted a taking, which is the central issue decided by the jury in this lawsuit.

For this and the other reasons in this Answer, the Petition should be denied.

B. The County’s Petition Is Without Merit.

1. Vested Rights Do Not Apply In a Regulatory Takings Claim.

The County’s assertion that vested rights are germane to a takings analysis contravenes

Maryland law and is contradicted by its own Petition. See Petition, at 10-12. The state-law

doctrine of vested rights narrowly applies in zoning estoppel cases and protects property owners

from retroactive application of statutes affecting their property. See MRA IV, 414 Md. at 44-45.

To establish a “vested right” under that doctrine, a property owner must obtain a valid permit,

“make a substantial beginning” towards “committing the land to the permitted use before the

2
MRA v. Harford Cty., 342 Md. 476 (1996) (“MRA II”); MRA v. Harford Cty., 382 Md. 348
(2004) (“MRA III”); MRA IV, 414 Md. 1 (2010).

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change in the zoning ordinance has occurred.” Id. at 45. This Court held in MRA IV, that MRA

did not establish a “vested right” to a zoning rule that permitted the operation of the rubblefill.

Id. But MRA IV determined only that the zoning rule applied to MRA’s Property; it did not

decide whether the County’s actions amounted to a regulatory taking. 3

The regulatory takings analysis serves a distinct purpose and is determined by a different

legal standard than “vested rights.” See Penn Central, 438 U.S. at 124; see also Rucklehaus, 467

U.S. at 1000-01. A takings claim must be predicated on a “constitutionally protected property

interest.” See Neifert, 395 Md. at 522. Ownership of real property is the quintessential example

of such an interest, and was plainly established by MRA’s ownership of the Property. 4 The

County, however confuses that basic constitutional requirement with the wholly unrelated

“vested rights” doctrine. See Petition, at 4. In addition, the vested rights test is distinct from the

Penn Central factors: the “reasonable investment-backed expectation” of the property owner,

the economic impact on the property, and the nature and character of the County’s actions. Penn

Central, 438 U.S. at 124. This Court should not review the Petition’s “vested rights” theory, as it

had no application to a regulatory taking.

2. MRA IV Did Not Address Whether MRA’s Property Constituted a Nuisance

The nuisance doctrine also does not apply and was not presented to the jury. The County

argues that MRA did not suffer a taking when it prohibited the operation of the rubblefill because

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The County’s reliance on Grassland Plantation, Inc. v. Frizz-King Enterprises, LLC, 410 Md.
191 (2009) and McHael v. DCW Dutchship Island, LLC, 415 Md. 145 (2010), is misplaced,
because these cases are not takings cases. Those cases relate to the whether a zoning law applies
retroactively or prospectively – an issue that has already been determined by this Court in MRA
IV and was not litigated in this case.
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While the Court in MRA II found that MRA was not denied of a constitutionally protected
property interest without due process of law, the Court did not opine on whether MRA had a
constitutionally protected property interest. 342 Md. at 499.

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a rubblefill is a “common law nuisance.” Petition, at 4-5. The County did not present evidence

of nuisance at trial because the trial court precluded it from doing so on evidentiary grounds.

The County does not contest that evidentiary ruling in its Petition and points to no other rulings

from the present litigation related to nuisance. Further, in its Petition, the County does not cite to

anything in the record of the present case related to nuisance.

The County also incorrectly contends that this Court determined in MRA IV that the

operation of rubblefill on the Property constituted a nuisance. In MRA IV, this Court held that

the Board of Appeals had sufficient evidence to deny MRA’s variances on the grounds that a

rubblefill would be “detrimental to adjacent properties.” 414 Md. at 25-26. It did not address

whether that constituted a common-law nuisance. The undisputed testimony at trial was, had

there been a nuisance on the Property, the rubblefill would have been shut down under the terms

of the MDE permit. Review of the County’s nuisance argument is unwarranted.

3. MRA’s Claim is Not Barred By the Statute Of Limitations

This Court has made clear that the three-year statute of limitations for an inverse

condemnation action does not begin until the taking is complete. See Litz v. MDE, 434 Md. 623,

654 (2013). Where, as here, MRA challenged the validity of the County’s zoning rules, the

taking was not complete until “the regulations underlying appellant’s claim were ‘finally

determined to be effective.’” Millison, 77 Md. App. at 689.

The County therefore is plainly incorrect that the taking of MRA’s Property accrued

when the Board of Appeals denied MRA’s requests for variances from the provisions of Bill 91-

10. Thereafter, MRA appealed the denial of those variances, and similarly appealed a prior

Board of Appeals’ decision that Bill 91-10 applied to the Property. MRA IV, 414 Md. at 23. The

claim did not accrue until this Court decided MRA IV, and, affirmed both the denial of variances

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and the application of Bill 91-10 to MRA’s Property. Id. The decision in MRA IV provided final

confirmation that MRA would not be permitted to construct and operate a rubble landfill on the

Property. The present lawsuit was timely filed within three years that final decision.

The County’s reliance on Arroyo v. Bd. of Ed. for Howard County, 381 Md. 646 (2004) is

misplaced. Arroyo was not a takings case but a wrongful termination case in which the plaintiff

was required to exhaust his administrative remedies with the State Board of Education before

seeking court intervention. Id. at 649. This Court found that the statute of limitations for the

plaintiff’s tort claim accrued on the date of the State Board of Education’s determination. Id. at

671. The accrual of the claim in Arroyo does not apply to this takings claim, which did not

accrue until the regulation promulgated by the County was finally determined to apply to MRA’s

Property. Millison, 77 Md. App. at 689.

3. The Jury Award Was Properly Based On The Value Of MRA’s Unique Property.

The jury’s award properly considered the profitability of operating a rubblefill on the

Property in determining just compensation. Contrary to the County’s suggestion, the jury’s

damages verdict does not “contravene settled Maryland law” by resting on testimony about the

“capitalized valuation of projected profits.” Petition, at 14. Rather, the very decisions cited by

the County make clear that the land’s “productive capacity,” including “gross sales” and the

land’s “proper use and purposes” are appropriate considerations. See Brinsfield, 236 Md. at 70;

Novosel, 203 Md. at 623-24; see also Dodson, 294 Md. at 495-96.5

In Novosel, for example, this Court recognized that the land’s “productive capacity . . .

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The just compensation award is further supported by additional evidence, including the
contemporaneous financial projections prepared by MRA’s accountants, Coughlin & Mann, the
County’s auditors, who had extensive experience projecting the performance of other Maryland
rubblefills. Mr. Schafer also testified to the Property’s fair market value based on his specialized
knowledge of the Property and his review of other offers to purchase it.

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has an important bearing on value,” and therefore recognized “[a]s a practical matter, a

prospective purchaser would hardly fail to consider whether or not the business conducted on the

premises had proved profitable.” Novosel, 203 Md. at 623-24. The Court left the “precise

weight to be accorded to this factor” to the jury. Id. Similarly, in Brinsfield, this Court affirmed

the lower court’s admission of expert testimony considering gross sales to value property in a

takings case. 236 Md. at 70; see also Dodson, 294 Md. at 495-96 (“[T]he value of the land, with

reference to its use and purposes, is the essential factor to consider.”).

The nature of the Property makes the profitability of the rubblefill all the more relevant.

The Property is a former sand and gravel mine, resembling a moonscape, and the testimony at

trial established that a rubblefill is its only valuable use. In takings cases where “profits derived

from its use are the chief source of its value, evidence of such profits is admissible as a criterion

of the property’s value.” 4 NICHOLS ON EMINENT DOMAIN § 12B.09 (2016) (emphasis added);

see also Yancey, 915 F.2d at 1542 (holding valuation “can include an assessment of the

property’s capacity to produce future income if a reasonable buyer would consider that capacity

in negotiating a fair price for the property.”).6 No error was presented in the jury’s property

valuation.

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Moreover, where the operation of a particular business is dependent on the unique nature of the
property, the property owner may recover business losses. Dep’t of Transp. v. Kendricks, 148
Ga. App. 242, 246-47 (Ga. Ct. App. 1978); see also City of St. Louis v. Union Quarry & Constr.
Co., 394 S.W. 2d 300, 305-06 (Mo. 1965), (where “the land is devoted to the only apparent use
to which it could be most advantageously and profitably applied . . . evidence of such profits was
properly admitted and is relevant as a criterion of the value of the property”).

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5. MRA Presented Overwhelming Evidence That The County Effectuated an
Unconstitutional Taking of MRA’s Property

At trial, MRA presented substantial evidence – much of which was uncontroverted – to

prove a regulatory taking under the three Penn Central factors. The jury verdict was fully

supported by the record.

i) The Application of Bill 91-10 Interfered with MRA’s Reasonable Investment-Backed


Expectations

MRA presented overwhelming evidence that it possessed a reasonable investment-backed

expectation that it would be permitted to operate a rubblefill on the Property. The evidence

showed that the County had a longstanding policy of permitting the reclamation of mined-out

sand and gravel pits through the operation of private rubblefills, and that the County was initially

in favor of MRA’s rubblefill. (PX 128, ¶¶ 18, 67). Moreover, MRA took steps to ensure its

venture would be lucrative, by having its accountants periodically prepare reports to project

MRA’s income from its rubblefill, which demonstrated that the planned rubblefill would have

generated tens of millions of dollars in net income for MRA. (PX 68, PX 100, PX 115).

MRA further presented evidence of the steps it took to develop and use the Property as a

rubblefill. Before MRA purchased the Property, it had (1) addressed potential zoning issues and

had been assured that it complied with existing zoning regulations, including specific assurances

that it satisfied the County’s 200-foot buffer zone requirement; (2) obtained inclusion in the

County’s SWM Plan, subject to 27 conditions set forth by the County Council; (3) obtained

County Council approval of MRA’s site plan; (4) purchased the property; and (5) received its

MDE permit. All in all MRA spent more than $4 million developing the Property as a rubblefill.

The evidence therefore established a reasonable, investment-backed expectation that the Property

could be used for the planned rubblefill. (PX 14, PX 34, PX 47, PX 105, PX 128 ¶ 28, PX 191)

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ii) The County’s Actions Had a Severe Economic Impact on MRA’s Property

MRA presented substantial evidence that demonstrated that Bill 91-10 not only severely

impacted the value of the Property, but indeed deprived it of any viable, economic use. MRA’s

witnesses testified that, because of the unique topography of the Property, it could not be used

for any other business or economically viable business, other than the planned rubblefill.

(Exhibit C, 4-11-2018 PM Trial Tr. at 72:3-75:2; Exhibit D, 4-10-2018 AM Tr. at 65:4-15;

Exhibit E, 4-6-2018 AM Trial Tr. at 45:6-9). A rubblefill is the “chief source” of the value of the

Property. (Exhibit C, 4-11-2018 PM Trial Tr. at 78:1-9). In addition, the accounting reports

prepared by MRA’s accountants demonstrated that the planned rubblefill would have generated

tens of millions of dollars in net income for MRA. (PX 68, 100, 115). This evidence

demonstrates that the County’s actions, which prevented MRA from building and operating a

rubblefill on the Property, had a severe economic impact on MRA. To date, the Property

remains a giant hole in the ground that appears as a moonscape. The evidence shows that the

County eliminated any economically viable use of the Property.

iii) The Nature of the County’s Actions Constitutes a Taking

The trial evidence also demonstrated that the County acted in bad faith. The County

instituted a 20-year legislative assault against MRA, passing four pieces of legislation to prevent

MRA from operating a rubblefill. This started with Resolution 4-90. Introduced on February 13,

1990—four days after MRA closed on the Property—and passed on May 8, 1990, Resolution 4-

90 was “[a] RESOLUTION amending the Harford County Solid Waste Management Plan to

delete the Gravel Hill Road Rubble Landfill.” (PX 60). The day after it passed this Resolution

(which would later be declared illegal), the County Council sent a letter to the MDE explaining

that the Gravel Hill Road site had been deleted from the SWM Plan. (PX 61). That letter

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resulted in an eight-month delay in MDE’s review of MRA’s application for a permit, which

otherwise would have been issued in late 1990. (Exhibit H, 4-10-2018 PM Trial Tr. at 12:8-13).

Although the Circuit Court for Harford County invalidated Resolution 4-90, the eight-

month delay in review of MRA’s permit gave the County time to develop the following scheme

to prevent MRA from operating a rubblefill: (1) Bill 91-10, introduced “as an emergency

measure so that it could take affect [sic] before MDE issued a permit to MRA” (PX128, Par. 72),

changed the zoning requirements for rubblefills that did not have an MDE permit by February

12, 1991; (2) Bill 91-16, introduced as emergency legislation, authorized the County Council to

remove a property if it did not have its MDE permit within 18 months of being placed in the

SWM Plan; and (3) Resolution 15-91, deleted MRA’s property from the SWM Plan because it

did not have its MDE permit within 18 months. (PX 77, PX 78, PX 88). Of course, the only

reason MRA did not have its MDE permit in time was because the County passed and used an

illegal resolution to interfere with MRA’s permit application – thereby delaying the issuance of

the permit long enough to ensure that the rubblefill could never comply with the new zoning

requirements.

IV. CONCLUSION

The County’s Petition fails to meet the standards for granting a writ of certiorari prior to

the CSA’s review. Accordingly, this Court should deny its Petition.

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Respectfully submitted,

/s/John R. Greiber /s/Nicole Kozlowski


John R. Greiber, Jr. (CPF 7012010071) Brett Ingerman (CPF 9412140078)
Ellen E. Dew (CPF 0812180158)
Nicole Kozlowski (CPF1612130353)
SMOUSE & MASON LLC DLA PIPER LLP (US)
225 Duke of Gloucester Street 6225 Smith Avenue
Annapolis, MD 21401 Baltimore, MD 21209
(410) 269-6620 telephone (410) 580-3000 telephone
(410) 269-5452 facsimile (410) 580-3001 facsimile
jrg@smouseandmason.com brett.ingerman@dlapiper.com
ellen.dew@dlapiper.com
nicole.kozlowski@dlapiper.com

Rachael Kessler (CPF 1412170090)


DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020-1004
(212) 335-4749 telephone
(212) 884-8605 facsimile
rachael.kessler@dlapiper.com

/s/ William D. Hooper /s/ Robert H.B. Cawood


William D. Hooper, Jr. (CPF 6310010038) Robert H. B. Cawood (CPF 9506210065)
CAWOOD & CAWOOD, LLC
1718 Mews Way 209 West Street, Suite 303
Fallston, MD 21047 Annapolis, MD 21401
(410) 790-6667 (410) 280-2618 telephone
william.hooper@comcast.net (410) 280-2923 facsimile
rhbc@cawoodlawfirm.com

Counsel for the Plaintiff, MRA


Dated: September 17, 2018

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CERTIFICATION OF WORD COUNT AND
COMPLIANCE WITH MARYLAND RULE 8-112

1. This Answer contains 4,770 words, excluding the parts exempted from the word

count by Maryland Rule 8-503.

2. This Answer complies with the font, spacing, and type size requirements stated in

Maryland Rule 8-112.

/s/Nicole M. Kozlowski
Nicole M. Kozlowski

17
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 17th day of September, 2018, a copy of the foregoing
Answer to Petition for Certiorari was delivered via MDEC and First Class Mail to:

Andrew H. Baida
Benjamin Rosenberg
Jamar Brown
Rosenberg Martin Greenberg LLP
25 South Charles Street, 21st Floor
Baltimore, MD 21201
abaida@rosenbergmartin.com
brosenberg@rosenbergmartin.com
jbrown@rosenbergmartin.com

/s/Nicole M. Kozlowski_________
Nicole M. Kozlowski

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