A Frederick County judge made clear Thursday that it is for a jury to decide whether the sale of the former Citizens Care and Rehabilitation Center and Montevue Assisted Living facilities violates a 186-year-old restrictive covenant.
In March, Judge Theresa M. Adams filed an opinion concluding that the 1828 deed, crafted when Elias Brunner sold 88 acres to Frederick County, created a restrictive covenant by including language that the land be used “for the Benefit of the Poor of said County, and to and for no other use, intent or purpose whatsoever.”
However, she did not conclude whether a sale of the land to a for-profit company would violate that covenant.
That is a substantive dispute of fact that a jury should decide, Adams said Thursday.
The lawsuit, and others, were filed by a group of individuals against the Board of County Commissioners in August.
Marta Harting, an attorney representing the county Thursday, asked Adams to certify her opinion so the county can file an appeal before the rest of the case moves forward.
Harting argued that Adams’ decision about the restrictive covenant might also forbid many of the property’s other current uses. The property, near Montevue Lane and Rosemont Avenue, is the site of buildings for county animal control, transit, emergency services, and fleet and highway operations. A warehouse, the University of Maryland extension service building and the Scott Key Center are also on the land.
She said the county faces uncertainty and insecurity, along with economic loss associated with the sale of the facilities, without immediate appellate review.
Leslie Powell, an attorney representing the group opposed to the sale, said the entire case should be considered together for judicial efficiency.
Adams said she could consider only the issues before her, which don’t concern the other uses on the land.
Powell said the county’s claims of economic hardship without the ability to immediately appeal were unfounded.
The county “is not, assuming it ever was, hemorrhaging 4 to 5 million dollars a year” in connection to the facilities, Powell said.
In denying the county’s request for the immediate appeal, Adams said the current situation doesn’t meet the threshold required by Maryland’s appellate courts when it comes to reviewing part of a case on appeal before a trial court decision on the full case.
Adams also found in favor of the plaintiffs on a related matter Thursday.
Harting also asked Adams to dismiss a new claim filed by the group seeking to block an asset purchase agreement the county reached with Millersville-based Aurora Health Management on May 1.
Powell said the final claim should be allowed to move forward because it is based on new conduct by the county and relates to the same legal issues in the rest of the lawsuit.
The county handed ownership of center operations to Aurora on May 1. The company now controls the finances and employs the staff, but the building and the land still belong to the county. Officials plan to sell the buildings and property to Aurora at a later date.
Harting argued that the claim should be stricken because the same argument could be made in a separate legal case.
Adams said it would be prejudicial to require the plaintiffs to file another lawsuit when there’s a trial scheduled in just over six months. She denied the county’s request.
Also on Thursday, Adams heard from attorneys representing the city, county and the citizens group about a separate administrative agency appeal.
In that matter, the county challenged a decision by the city’s Zoning Board of Appeals to stop the subdivision of the county’s land. The land must be subdivided for the sale to go forward.
The city’s Planning Commission has since reapproved the subdivision.
Adams said she will file a written opinion in that case.
Follow Danielle E. Gaines on Twitter: @danielleegaines.