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County-city agreement disputed

August 27, 2003|by SCOTT BUTKI

scottb@herald-mail.com

Washington County on Monday filed court papers disputing the City of Hagerstown's contention that the two governments reached an agreement to settle a lawsuit over the city's annexation policy.

Included in the county's filing is an affidavit signed by County Commissioner William J. Wivell, who says he never represented to the city that he had authority to settle the dispute on behalf of the County Commissioners. Wivell is the county's representative on a city-county committee formed to address the dispute.

The city, in motions filed Aug. 11 in Washington County Circuit Court, asks the court to dismiss the county's lawsuit challenging the legality of the city's annexation policy and to enforce the terms of a settlement agreement.

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The city contends in its filing that Wivell told Councilman N. Linn Hendershot on June 15 that the agreement was acceptable. An affidavit to that effect by Hendershot was attached to the filing.

The city's filing included an affidavit by Hagerstown Mayor William M. Breichner indicating he thought the two bodies were close to an agreement.

The county's filing jumps on the wording of Breichner's affidavit to argue that while an agreement might have been close, one had not been reached.

"Interestingly, the city's mayor, William Breichner, suggests that the BCC (Board of County Commissioners) has not agreed to the terms of any settlement," the county's court filing says.

"He states that the parties on June 13, 2003, reached a proposed agreement which he understood would be presented to the County Commissioners for consideration," the county filing says.

"Not only was the agreement 'proposed' but he acknowledges that it was subject to consideration, presumably for acceptance or rejection, by the BCC ... he never states that he was informed that the BCC accepted the 'proposed settlement,'" the county filing says.

"I was absolutely, positively under the impression there was an agreement," Breichner said Tuesday.

Hendershot said of the county's legal response: "I can't tell you how disappointed I am for all of Washington County."

A hearing on the motion is scheduled for Sept. 3 and the trial, if the case goes forward, is scheduled for Sept. 8.

Wivell said the final version of the proposed agreement included language that was not part of earlier discussions, including that the lawsuit be dismissed "with prejudice," barring the county from future legal claims arising from the city's annexation policy.

Hendershot said the county knew the city wanted that provision.

The county's filing contends that even if Wivell did agree with the city, it would not be a binding agreement.

The city's annexation policy requires owners of properties that do not border the city to agree to future annexation before city water and sewer service will be provided to the properties.

The county contends the annexation policy violates a 1997 agreement between the two bodies. The city says it does not.

The council on July 8, and again on July 29, gave unanimous support to a proposed agreement designed to settle the county's January lawsuit over the city's annexation policy and a December 2002 lawsuit over a flow transfer agreement.

Both bodies have since approved the flow transfer agreement.

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