A roughly 200-year-old deed doesn't present an obstacle in Frederick County's move to privatize its nursing home and assisted living centers, attorneys for the county argue.
In response to a legal complaint filed by sale opponents, the county's attorneys assert that governments must have the flexibility to dispose of property if they feel it is the best interests of citizens. Operations at Citizens Care and Rehabilitation Center and Montevue Assisted Living have cost taxpayers more than $53 million since 2000, and county officials have the authority to decide when enough is enough, attorneys wrote in legal filings.
Those who want the county to keep Citizens and Montevue have challenged the sale with a pair of cases filed in Frederick County Circuit Court. Earlier this month, attorneys for the county submitted a defense to the larger of the two cases.
The filing zeroed in on debate surrounding a deed drawn up in 1828 when Elias Brunner sold 88 acres to the county "for the Benefit of the Poor of said County, and to and for no other use, intent or purpose whatsoever."
The plaintiffs have argued this statement clashes with the county's plan to hand over the facilities to a for-profit company. Montevue provides reduced-cost, assisted living care to residents who cannot afford to pay full price.
However, Kurt Fischer, an attorney representing the county in the cases, said the ancient deed language described the county's goal of converting the property into a farm where the poor could live and work.
"That probably made a lot of sense and was good public policy back in 1825, but the way the government deals with poverty ... has changed a lot since 1825, and that's why the government has to have flexibility to move capital out of that property and focus it on other projects," said Fischer, a Baltimore-based attorney with the law firm Venable LLP.
Fischer said the county is not bound by any restrictive covenant on the property in part because officials paid fair market value for the land. However, even if the deed did limit how the county can use the land, the state had the authority to terminate these restrictions, he argues. State lawmakers did just that in 1912, when they passed a law allowing counties to sell property that local leaders deem is no longer needed.
Plaintiffs argue commissioners failed to prove Citizens and Montevue was no longer needed before their June 25 vote to sell the facilities.
The case against the county also alleges that the appointed trustees board for Citizens and Montevue had authority to sell the facilities, not the commissioners. In addition, plaintiffs take issue with the way a management contract was awarded to the prospective buyer of the facilities.
Fischer says the county followed procurement policies by hiring Aurora Health Management to run Citizens and Montevue. Local leaders were trying to preserve continuity for facility residents and staff by hiring Aurora on a month-to-month basis to operate the centers until the sale is finalized, he said.
But the county's defense focused on the deed because it is the most meaty and complex part of the lawsuit, Fischer said.
The county's attorneys have also made a motion to dismiss the second case plaintiffs filed as they seek to block a sale.
Commissioner Paul Smith says he does not think that a judge will find merit in the two legal challenges to the sale. He said he is not sure whether the cases will succeed in delaying privatization; it depends on whether Aurora is willing to move forward to closing even if the litigation is not resolved.
Follow Bethany Rodgers on Twitter: @BethRodgersFNP.