The Weekly Writ: Maryland Legal News You Can Use for December 7, 2020

Today on December 7, 2020, read about:

Of course, if these or any other legal questions are impacting you and your family, then don't hesitate to reach out to JC Law for your free initial consultation with one of our expert domestic, criminal, or civil litigation attorneys.

Eastport Shopping Center Hits Another Snag in Annapolis

Original Story

What's Going On:

Annapolis, Maryland's Department of Planning and Zoning will yet again see the Eastport development project land in their development laps.

The mixed redevelopment project for the Eastport Shopping Center hit another legal snag last week when the Annapolis Board of Appeals unanimously voted that the developer's plans for police service, traffic control, recreation space, non-auto services and wastewater management had still not been met in the developer's latest submitted proposal.

City code specifies that development cannot leave the community worse off than before development. So, development plans must account for necessary public services.

As of today, Solstice Partners -- the Eastport Shopping Center developer -- has not figured out how to maintain those public services in the development plans to the Board of Appeals's standards.

That said, the Board of Appeals is willing to let a third proposal be submitted before asking for a completely new proposal. After all, the current lot is underutilized, and redevelopment is overdue.

(We wonder why.)

Why This Matters To You:

On the one hand, Annapolis has set out rules for development and enforces them to keep Marylanders safe. These standards allow for new businesses to form, keep the region in compliance with state and federal laws -- particularly environmental regulation -- and overall increase the neighborhood's prosperity.

But, developer Solstice Partners has submitted proposals about the public services for the Eastport development project twice over now -- it's just not up to the standards the Board of Appeals.

In this specific real estate case, though, it might not be all the developer's fault for the repeated failures.

The city of Annapolis has been asked to be more specific in their request in what, exactly, needs to happen regarding public services in the development proposal. There is hope that the next proposal will include the necessary public service plans.

A real estate attorney can place pressure on the Annapolis Board of Appeals, leveraging the law to get the project moving or at least started.

After all, it takes two to tango, and there may be legal ways to prove that Annapolis just doesn't want to dance and is purposefully obstructing the project.

Having the right plans, permits, and proposals will go a long way in getting the Eastport redevelopment project off the ground. Hopefully, the city of Annapolis and Solstice Partners will have their ducks in a row the next go-around and a long awaited public improvement to the city will finally move forward.

More About Maryland Real Estate Matters

"Reopen Maryland" Found New Legal Leg to Stand On

Original Story

What's Going On:

Maryland Governor Larry Hogan’s emergency COVID-19 restrictions are headed for another legal challenge even after the state-level District Court dismissed the initial case.

Last week, the Supreme Court ruled 5-4 against restrictions on religious services in New York.

Even if the case specifically covered a New York state mandate, since the federal Supreme Court made the decision, it gives all state-level challenges to religious gathering restrictions -- including the "Reopen Maryland" group's lawsuit -- renewed leverage.

As a reminder, the Reopen Maryland plaintiffs argue their rights to free exercise of religion were threatened by the governor’s orders to limit in-person gatherings during the pandemic.

The group has recently appealed the suit, hoping that the 4th Circuit U.S. Court of Appeals in Maryland will look at the Supreme Court ruling and see validity in the appeal.

Hogan’s reps are confident this appeal will be dismissed, too, since they argue the executive orders are constitutional, reasonable, and science-based.

Why This Matters To You:

Of course, no one wants their constitutional rights trampled on or ignored, whether in Maryland, New York, or in any part of the United States. And, Reopen Maryland certainly has the right to feel their religious freedoms to congregate and worship have been violated.

However, state- and federal-level emergencies give our elected officials broader powers than they normally would. A pandemic -- during which gathering in large groups can cause innocents to die -- certainly constitutes a legal emergency, hence the governor's mandates.

Previous lawsuits ruled that the governor's orders have been based on public health safety information in an attempt to lessen the spread of COVID-19, and are therefore valid.

However, this appeal occurs after the legal landscape has changed from the Supreme Court ruling for the New York case despite that governor's emergency powers.

We'll be keeping a close eye on this case to see if the new federal ruling sways the Maryland court of appeals, or if the state courts' previous decisions have greater priority.

More About the Appeal Process

Recreational Marijuana in 2021?

Original Story

What's Going On:

Legalization of the recreational use of marijuana will officially be on the docket in 2021 when lawmakers return to Annapolis.

Some Maryland representatives are wary of the possible negative effects of full decriminalization, while others argue tax revenue that could be generated can be used for education and substance abuse programs, as well as COVID-19 relief in areas that need it.

Many officials believe if it does not pass this year, decriminalization is only a matter of time. After all, many states have already done so, and Maryland already has medical cannabis use laws.

Why This Matters To You:

Many have seen a difficult time in attaining a good job or rebuilding their reputations following an arrest or imprisonment for marijuana charges.

Decriminalization could allow these records to be expunged and improve many Marylanders lives, while also increasing tax revenue for additional services in the state.

The timing of this decriminalization push seems rather too good to be coincidental. The pandemic has laid a pounding on projected tax revenues, leaving lawmakers scrambling to find alternative funds in the face of Washington deadlock on a federal-level relief package.

Having tax money coming in from recreational marijuana sales could help solve that pressure -- or, at least, help a little bit.

Decriminalization of marijuana for recreational use may also allow for expungements of drug-related charges, giving former felons a new lease on life without a public criminal conviction hanging over their heads.

Although recent state-level convictions can be expunged today, those with federal marijuana charges may still be in a pickle. Federal law overrides state law, and Congress has yet to officially vote to decriminalize marijuana.

More About Maryland Drug Charges

Comptroller Peter Franchot Ready to Use Board Powers to Widen Highways

Original Story

What's Going On:

Maryland Comptroller Peter Franchot will use his power on the Board of Public Works to help push Gov. Hogan’s highway widening plans.

Hogan believes the state can expand the Capital Beltway and I-270 at no cost to taxpayers if the private sector builds toll lanes in exchange for keeping the toll revenue.

Unfortunately, detractors are still disenchanted by the waste and ultimate scrapping of Baltimore's Purple Line project to think Gov. Hogan has any real incentive for fixing public transportation -- or ability in his administration to properly execute any of it.

Pushback still remains on the Board of Public Works, as fellow board member Treasurer Nancy K. Kopp consistently voices concerns about the highway project no matter what proposals come before them, pointing to the dragged-out Purple Line project as a possible reason to temper expectations.

Why This Matters To You:

Finally, more lanes for the Capital Beltway and I-270!

While that sounds awesome, the likelihood that it happens soon is slim. Not all legislators are on board or supportive of the idea, but if they had to commute down I-270 or around the Beltway everyday, they may quickly get on the same page.

Jokes aside, infrastructure appears to be a hot button issue heading in to the next legislative session. The pushback is valid from a legal standpoint, considering the possible misuse of public funds over previous transportation projects.

The inclusion of private contractors could lead to further white-collar charges such as embezzlementfraud, or graft.

However, if you think the Maryland state government learned its lesson from the Purple Line catastrophe, it may be a good idea to let your representative know you would like a less stressful commute.

More About White Collar Embezzlement Charges

NAACP Sues Baltimore Police Department

Original Story

What's Going On:

NAACP’s Legal Defense and Educational fund has filed suit against the Baltimore Police Department challenging their use of aerial surveillance on constitutional grounds.

(Big Brother has been watching Baltimore from above!)

Back in April 2020 -- right in the middle of the Maryland Covid-19 pandemic lockdown -- the city’s police relaunched an aerial surveillance pilot program in response to the uptick in violent crime in Baltimore.

Over a six-month trial period, the police department used three planes to watch and record public movements of city residents across 90% of the city for 12 hours a day, retaining the data for 45 days.

NAACP argues that since the city police have a long history of discriminatory and unconstitutional practices in Black communities, they should not be allowed to have even greater access to possible privacy-breaking surveillance programs.

Even before the pilot program launched, the ACLU stepped in and sued the department for violating the 4th Amendment. That suit was dismissed by a Maryland district court judge, and led to a split ruling from the U.S. Court of Appeals.

The ACLU is now seeking a rehearing of the appeal before the whole Fourth Circuit due to the restart of the program.

Why This Matters To You:

Cases like this show the fine line between policing and privacy.

Baltimore's Police Department wants to lessen criminal activity by using new technologies to keep tabs on the city. However, residents have a basic "right to privacy," particularly in their own homes and property.

Technically, it is illegal for police to "snoop" on you without justifiable cause. The aerial surveillance may violate those 4th Amendment protections by giving the police a way to search without warrants.

The long and short of it? Aerial surveillance in "spy planes" may be illegal, even if they might help stop crimes.

More About Illegal Search & Seizure in Maryland

ADA Lawsuits Are Now Defensible

Original Story

What's Going On:

For years, disability activist Debra Laufer has filed frivolous lawsuits against hotels, claiming they were in violation of the federal Americans with Disabilities Act (ADA) just because they didn't post lists about ADA accommodations they did have on their websites.

As it was, many hotels just settled out of court for these suits because it was easier and cheaper.

However, a company in Laurel, Maryland -- Ft. Meade Hospitality, LLC -- managed to get a Laufer lawsuit thrown out altogether.

Relying on Fourth Circuit federal court precedent, a Maryland state judge found that Laufer only "tested" these websites to see if the hotel's ADA guidelines were post. She wasn't actually trying to use the accommodations, and had no intention of doing so in the future.

Therefore, since she was just a tester and no actual legal issues arose with a legitimate stay as a current or potential customer or employee, the court ruled that it was dumb to punish a hotel for not posting accommodations it actually has, and threw the case out altogether.

(Actually, the judge said the lawsuit was "frivolous," but that's just legal speak for "dumb and wastes time.") 

Why This Matters To You:

Businesses have followed ADA guidelines for roughly 30 years and must comply with them in order to operate.

However, lawsuits like this make it difficult for everyone, since it becomes a situation where owners are darned if they do or darned if they do not.

After all, defending stupid lawsuits costs business owners money in attorney and court fees that they could have reinvested into the business -- for more ADA upgrades, even!

At the same time, civil lawsuits like this one can still be a powerful tool for the average consumer. They force businesses to comply with set guidelines and give teeth to otherwise abstract laws.

Of course, this particular lawsuit by ADA activist Laufer was rightfully thrown out, since the sued Fort Meade business did actually have the accommodations. Hopefully, this precedent will discourage more dumb -- err, "frivolous" lawsuits while still giving consumers the legal tools they need to succeed in life and leisure.

More About Civil Litigation in Maryland