Offit Kurman Attorney William Erskine Successfully Defends Howard County Clients in Controversial Land Use and Zoning Case

Howard County, MD | October 21, 2011 – On August 28, 2014, Maryland’s Court of Special Appeals upheld the Howard County Board of Elections’ decision to reject a petition that would bring the county’s recent zoning changes to public referendum on the upcoming November ballot. Following that decision, the Court of Appeals declined to further review the case. Offit Kurman business and real estate attorney William Erskine, who represents several developers impacted by the 2013 Comprehensive Zoning plan, has opposed the appellants, Citizens Working to Fix Howard County, during various proceedings over the course of several months. For Mr. Erskine and his clients, these recent decisions represent gratifying result both in terms of election law and the various land use projects that were put on hold due to the dispute. Mr. Erskine dates the beginning of the dispute back to August 2013, when Howard County passed its 2013 Comprehensive Zoning Plan. Soon thereafter, a group called Citizens Working to Fix Howard County (FixHoCo) initiated a petition for referendum. Upon encountering a FixHoCo canvasser outside of his church, Mr. Erskine immediately noticed an issue that raised doubt about the legitimacy of the campaign’s signature collection process: namely, that a complete copy of the zoning ordinance did not appear to be available to signees, nor could Mr. Erskine consider the petition’s summary of the bill fair and accurate. “When you read a petition, it is supposed to be nonpartisan,” he said. “You shouldn’t know which side is asking for your signature. This Petition was not only inflammatory, but also contained glaring misrepresentations and omissions of fact.” Calling upon his knowledge of election law, Mr. Erskine sent a memo to the Howard County Board of Elections, in which he outlined the petition’s deficiencies and inciteful language. The Board of Elections’ independent counsel agreed with Mr. Erskine’s assessment. The Board deemed that the petition’s summary was not fair and accurate, and thus invalidated FixHoCo’s roughly five thousand signatures all of which had been procured by FixHoCo under false pretense. In response, FixHoCo filed a petition for judicial review, along with a motion for declaratory judgment, against the board. The group followed these with several more appeals and petitions for certiorari, each of which was dismissed or denied by the Court of Special Appeals and the Court of Appeals. Witnessing the confusion that these proceedings were causing, and seeing an opportunity to unearth material evidence, Mr. Erskine subpoenaed approximately one-third of the petition circulators. His goal was to discover whether they had complied with the mandates under Maryland election law articles. In retaliation, his FixHoCo opponents employed various mudslinging and delay tactics, even going so far as to allege violations of their first amendment rights. “They filed the lawsuit,” said Mr. Erskine. “It’s ironic that a plaintiff would complain about having their depositions taken.” Equally baffling, he contends, was their allegation. “I’m not the government or a government agent,” he said, “so how could I violate their right to free speech?” Amid these accusations, Mr. Erskine remained undeterred in his pursuit of the law. Though he criticizes FixHoCo for their drawn-out series of missed court dates and failed circumventions, he said he understood their frustration. He denied that his role in the administration of justice was in any way an attempt to harass petitioners. Mr. Erskine, who has fought on the opposite side in referendum cases before, admires the group’s determination but stresses the importance of legal compliance with the requirement that a petition for referendum be “fair and accurate”. “One man’s technicality is another’s material omission,” he said. The Court, in its recent decision, agreed. It found numerous attempts on the part of FixHoCo to garner support through omissions, misleading language, and factual inaccuracies. While it expressed concerns about the Board of Elections’ initial terse reply to the petitioners—that “the Election Director provided no more information to them than his conclusion that their petition was not fair and accurate”—the Court determined that “there is no evidence that that occurred here.” Further, it found “the misrepresentations in the petition were … so manifest and substantial that it is inconceivable that appellants did not know that their summary was not a fair and accurate representation of the contested provisions of the ordinance.” As of this writing, the appellants have filed a seventh petition for writ of certiorari. A full summary of the court’s opinion is available for download here. Click here for a video of the proceedings. About William E. Erskine William Erskine WebsiteWilliam Erskine is both a business attorney and real estate attorney, whose practice is focused primarily on commercial litigation, construction litigation, real estate, zoning, and land use matters. Mr. Erskine is Chair of the Real Estate Land Use and Zoning Practice Group for Offit Kurman Attorneys at Law. Mr. Erskine is also Chair of the Board of Directors of the Howard County Economic Development Authority and is also a member of the Board of Directors of the Howard County Chamber of Commerce. Mr. Erskine has extensive experience representing clients in all land use and zoning issues. To contact Mr. Erskine about this or other land use and zoning issues please email him at or call 301.575.0363. You can also connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn. CONTACT Bryan Lawson Offit Kurman 8171 Maple Lawn Boulevard, Suite 200 Maple Lawn, MD 20759 301-575-0397