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Judge makes move to dismiss some Cortpark claims

December 20, 2005|by MARLO BARNHART

marlob@herald-mail.com

In what Hagerstown City Attorney John Urner described Monday as a "significant legal victory," a Washington County Circuit Court judge has granted motions to dismiss $25 million in claims sought by attorneys for the Cortpark apartment complex off Leitersburg Pike.

Judge Frederick C. Wright III did leave actionable the issue of the city's refusal to issue all of the building permits sought by the owners of the project. A trial date of April 28 has been set to hear that remaining argument, court records said.

"It's the city's position that they need to comply with the city's sewer capacity allocation plan," Urner said, referring to Cortpark. He added that a new plan - which he described as a work in progress - will be coming out in 2006.

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"What it will say and what effect it will have on Cortpark isn't known yet," Urner said.

At issue is a state allocation agreement that kept the City of Hagerstown from fully approving sewer service for the North End apartment project, the city's response to a lawsuit said in September.

Two limited liability companies building the apartments, Cortpark LLC and Cortpark II LLC, sued the city July 21, asking for the rest of the permits they need, $25 million or both.

The city and the state reached the agreement on the sewer capacity allocation last January.

By that date, the owners of the Cortpark apartment project had asked the city for sewer service for some buildings but not for others, the city's response said.

The apartments are part of a larger development mix that includes town houses and duplexes. Cortpark's 432 apartments have been broken into two development phases, each with 18 buildings.

The lawsuit says the city "without cause or justification, failed and refused to issue" 27 of the 36 building permits the plaintiffs sought for the apartments.

The plaintiffs say the lack of building permits disrupted their construction schedule and puts them at risk of defaulting on an $18.5 million loan.

But the city's motion for dismissal or for summary judgment, filed Aug. 25, says the plaintiffs had to apply for and receive sanitary sewer service before they received building permits.

The city's response says the developers were approved for service for six buildings before Hagerstown entered into its sewer agreement with the state.

The applications for buildings 7, 8 and 9 - each with 12 units - came in after the agreement took effect. However, since the agreement allowed 40 units to receive sewer service, the city approved service for the 36 units in those three buildings, the response said.

The response says the developers also applied for - and did not receive - service for buildings 10 through 18 after the city's agreement with the state took effect.

More units in the development will be on the 2006 list for sewer allocation, the city's response said.

Attempts to reach Scott Schubel, attorney for Cortpark, were unsuccessful. His office said late Monday morning that he was traveling to Annapolis.

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