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Bill would require bond in lawsuits that delay hospital

March 07, 2007|by ANDREW SCHOTZ

ANNAPOLIS - Prompted by a legal challenge over a new Washington County Hospital, some lawmakers are considering a bill to hold appellants liable for construction costs tied to court delays.

Del. LeRoy E. Myers Jr. said Washington County Health System, the hospital's parent company, requested the bill, which would force litigants to post a bond when challenging medical-facility zoning or land-use decisions in court.

The county's state delegation plans to file the bill, said Myers, the delegation chairman. Del. John P. Donoghue, D-Washington, said it's not certain the bill will be filed.

Washington County Health System has local zoning and planning approvals to build a new facility on Robinwood Drive. Hospital officials have said the current facility on East Antietam Street is outdated.

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A challenge by five residents to county zoning variances has delayed the project. The variances were upheld in Washington County Circuit Court, but the case is pending in the state's Court of Special Appeals.

"This ends up costing the citizens of Washington County money - more money with more delays," said Myers, R-Washington/Allegany.

"I think there comes a time in our community where enough's enough ...," Del. Christopher B. Shank, R-Washington, said. "The people who have brought forth this suit are substituting their judgment for the community's judgment ...."

He called the court challenge a "frivolous" effort to "derail the project."

The original challenge had eight appellants, but three dropped out last year.

The remaining five - Gordon A. Bartels, Janet E. Bartels, Sally R. Hatch, Robert C. Hatch and Charles B. Hongell - have been pressured to drop their appeal.

The Health System has taken out large newspaper ads. Health System officials, accompanied by a Washington County commissioner and Hagerstown's mayor, made a public plea.

William C. Wantz, a Hagerstown attorney representing the appellants, characterized the draft bill, as a reporter described it to him, as a SLAPP suit, referring to the acronym for Strategic Lawsuits Against Public Participation.

He said SLAPP bills have been proposed in Maryland before, but have failed.

The Health System is trying to prevent the case from being decided on its merits, Wantz said.

Hongell couldn't be reached for comment, but he previously said the new hospital proposal has him concerned about traffic and public safety.

"We're letting the process work itself out," Sally Hatch said, adding that she'd say more at a hearing Monday on the Health System's request to amend the county's zoning ordinance.

A key effect of the draft bill - whether it would apply to the current litigants - was uncertain Tuesday.

Robert Zarnoch, a counsel to the Maryland General Assembly, said the bill doesn't have a retroactive clause, but "it's a question of legislative intent."

Appeals bonds are not unusual in court challenges involving money or property. In this case, there's no clear indication of how much the appellants would have to post.

The most recent project cost estimate was $255 million. In January, James Hamill, the Health System's president and CEO, said a court case could delay the project up to 18 months and could add $150 million to the cost.

Through a spokeswoman, Hamill declined to comment Tuesday because the bill hadn't been filed yet.

The bill says a court hearing would determine the effect a legal challenge would have on a project's cost. An appeal would be presumed to delay a project for 24 months.

If litigants appeal a circuit court decision to a higher court, they'd have to post an additional $100,000 bond or deposit, the draft bill says.

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