The Frederick County Commissioners are taking a decision by their own planning commission to court.The commissioners voted 2-1 Thursday to appeal a planning commission finding that could block construction of a trash incinerator, known as a waste-to-energy plant, because it will create electricity.
The appeal will be filed in Frederick County Circuit Court by next Friday, county attorney John Mathias said.
The county might reverse the decision to appeal before the papers are filed, but the appeal is going forward for now.
The planning commission voted last month that plans to build a waste-to-energy plant were not consistent with the county's comprehensive plan, a document that gives a 20-year look at how the county should grow and develop.
Planning commission members argued that the plant's smokestack and its proximity to both the Monocacy River and the Monocacy National Battlefield were inconsistent with preservation and environmental goals.
That decision blocked the county commissioners from changing the Solid Waste Management Plan, a document that must conform with the waste-to-energy plant to get a permit from the Maryland Department of the Environment.
After a last-minute agenda change Thursday, Commissioner John L. Thompson Jr. asked the county to appeal.
He argued the commissioners should move forward before they run out of time. Next Friday is the last day to file an appeal, Mathias said.
Without the appeal, the decision would stand for all time and the county would have difficulty working around the finding, Thompson said.
"If that decision stands, it stands, warts and all."
Commissioners President Jan Gardner was not at Thursday's meeting. Through County Manager Ron Hart, she asked that the discussion be delayed.
Commissioners Thompson and David Gray decided to start the appeal process, saying they could always stop it next week.
"This gives us the full options," Gray said.
Commissioner Kai Hagen, an incinerator opponent, voted against the appeal, saying he preferred to wait for Gardner's return.
Gardner said later she objected to Thompson and Gray adding the item at the last minute, knowing she would be at a meeting of the Maryland Association of Counties.
She thinks the county could have found a better solution. Mathias would have briefed the board on its options at a later, unspecified date, she said.
"I think we should try to work things out in some more amicable way before we look to the courts," Gardner said. "The court is also an expensive way to work things out."
She said she will raise the topic again Tuesday, and can move that the appeal decision be rescinded.
Who will testify?
If the appeal is heard in court, it is possible no one will represent the planning commission.
Mathias, who oversees the county's staff of attorneys, said when a someone appeals a judge's decision, that judge does not come to court to argue for his ruling.
In this case, no third party argued for the planning commission to make its decision.
No one offered public comment, and Mathias said he wasn't sure if e-mails were sufficient to make concerned residents part of the case.
Anti-incinerator activist Caroline Eader wrote to the planning commission before its finding.
She said Thursday she did not know if citizens would try to get involved in the court proceedings.
"Are private citizens supposed to step up and hire attorneys to represent the viewpoint of the comprehensive plan?" she asked. "That just doesn't seem right to me."
The commissioners should have had a solid waste management plan that included waste-to-energy before they signed a contract to build the plant, she said.
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