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Annexation suit to proceed

April 01, 2003|by SCOTT BUTKI

scottb@herald-mail.com

The Washington County Commissioners' lawsuit against the City of Hagerstown over the city's annexation policy will proceed but possibly with a judge who does not live or work in Washington County, Washington County Circuit Court officials said Monday.

An attempt by the city to convince Washington County Circuit Judge John H. McDowell to dismiss the entire lawsuit on Monday did not succeed.

Washington County Circuit Judge Frederick C. Wright III, the administrative judge for the Fourth Circuit, asked the attorneys representing the city and county what they thought of the court's idea of having a judge from outside the area preside over the case, Washington County Attorney Richard Douglas said.

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Douglas told Wright the county believed local judges would do a fine job but would have no objection to an outside judge. Neither side requested an outside judge, he said.

Wright said no decision had been made about whether to use an outside judge.

Wright said he was considering asking for "someone with no interest in the case whatsoever" to preside over the trial, because "I want there to be no perception of influencing factors."

The disputed annexation policy, which went into effect in September 2002, requires property along the city's borders to be annexed before city water and sewer service are extended to the area.

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 water and sewer service. That annexation would be required once their properties became adjacent to city land.

The county says the annexation policy is illegal and violates a 1997 agreement with the city.

Douglas also has 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 don't agree to annexation, he said.

During a hearing before McDowell on Monday, John Urner and William Nairn, representing the city, disagreed with those arguments, said the policy is legal and asked McDowell to dismiss the entire lawsuit.

Instead, McDowell dismissed a portion of the suit in which the co-plaintiffs alleged the city was in breach of the 1997 contract. McDowell said he dismissed that portion because the co-plaintiffs are not parties in the contract.

Douglas and City Administrator Bruce Zimmerman said they were satisfied with the judge's decision.

Meanwhile, city and county government officials continue to meet to try to find a way to settle the issue without a trial.

In the scheduling meeting after the hearing, Wright set a September trial date for the case.

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