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County files second suit against city

January 06, 2003|by SCOTT BUTKI

scottb@herald-mail.com

HAGERSTOWN - For the second time in a month, the Washington County Commissioners have sued the city of Hagerstown over issues tied to a disputed annexation policy.

Hagerstown Mayor William M. Breichner said he was disappointed the county filed suit Friday in Washington County Circuit Court rather than waiting to see if negotiations on the issue can be successful.

The lawsuit asks the court to block the city from imposing the annexation policy on property owners.

The disputed policy requires property along the city's borders to be annexed before city water and sewer service are extended to the area.

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Unless they can get a city exemption, owners of property that does not border the city would have to agree to future annexation before receiving city and water and sewer service. That annexation would come once their property became adjacent to city land.

In mid-November, Washington County Attorney Richard Douglas sent the city attorney's office a letter saying the annexation policy violates a 1997 sewer agreement between the county and city governments. The letter was accompanied by a draft of the lawsuit filed Friday.

At their next meeting, Hagerstown City Council members decided to set up a committee to negotiate a solution.

Breichner said he thought the negotiations put the filing of the lawsuit on hold, but Commissioner William J. Wivell said Friday the county never made that promise.

The city-county negotiating committee, which includes Wivell and Hagerstown Councilman N. Linn Hendershot, had its fourth meeting Friday, Hendershot said. At the end of the meeting, Wivell told city officials the lawsuit had been filed, Hendershot said.

In early December, the county sued the city for $2.5 million in damages because the city did not abide by the terms of a 2001 amendment to the 1997 sewer agreement. The amendment addresses flows under a proposed connection of the city and county systems.

The city has delayed signing the amendment because they want it connected to the annexation policy, Wivell said.

The city has asked the court to dismiss the December lawsuit.

Wivell said the negotiations on the annexation policy can continue while the litigation proceeds. The county can always withdraw the suit if the dispute is resolved, he said.

"We do business differently, and I certainly would not do business that way," Hendershot said.

"It is very difficult to negotiate when you have someone threatening you with legal action," Breichner said. "They don't seem to want to give it a chance."

The lawsuit lists the Home Builders Association of Washington County, Home Construction Corp. and Paul Crampton Contractors Inc. as co-plaintiffs. Crampton and Home Construction Corp. have development projects affected by the annexation policy.

All initial legal costs have been paid for by the Home Builders Association, Wivell said.

While the city defends its policy, Douglas says it violates the 1997 city-county agreement because it places conditions on the provision of service.

Douglas has also said the policy violates state case law because the city, by providing water and sewer service, is acting as a public utility. The city can't refuse to provide service to customers who refuse to agree to annexation, he said.

The annexation policy was unanimously adopted by the city May 28 and went into effect Sept. 1.

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