Pro­posed Elk­ton methadone clinic law­suit set­tled

Of­fi­cial: In­surer pays out $400K



— Dur­ing an ex­change with op­po­nents of a pro­posed chicken farm last month, Ce­cil County Coun­cil Pres­i­dent Robert Hodge dis­closed a pre­vi­ously un­pub­li­cized fact: the county’s in­surer set­tled a long-fought fed­eral law­suit with a pro­posed methadone clinic ear­lier this year, pay­ing out up­wards of $400,000.

The law­suit, filed in De­cem-


ber 2012 by an in­vest­ment group that looked to open a methadone clinic at the for­mer Rose’s Diner off Route 40 in Elk­ton, al­leged that the county en­gaged in a pat­tern of leg­is­la­tion that sought to dis­crim­i­nate against those with an addiction, as the Amer­i­cans with Dis­abil­ity Act cov­ers sub­stance abuse dis­or­ders as a med­i­cal dis­abil­ity.

In an­nounc­ing the law­suit in 2012, Steven G. Polin, the Wash­ing­ton, D.C. lawyer, who rep­re­sented CC Re­cov­ery Inc., told the Whig, “The county’s ac­tions against CCR and its clients is very un­set­tling. This is a clas­sic ex­am­ple of a county gov­ern­ment al­low­ing the il­le­gal prej­u­dices of its con­stituency to dic­tate its de­ci­sion-mak­ing process.”

The case is draw­ing re­newed at­ten­tion at the county level, as op­po­nents to a dif­fer­ent zon­ing is­sue are call­ing for the same rem­edy reached in the Rose’s Diner case. Mean­while, the Route 40 site is mov­ing through a new process for de­vel­op­ment af­ter be­ing an­nexed by the town of Elk­ton.

In­ten­tional dis­crim­i­na­tion? At the time the law­suit was

filed, the is­sue was a topic of hot de­bate amongst the cit­i­zens and elected of­fi­cials of Ce­cil County.

CC Re­cov­ery, along with Acorn In­vest­ments, a part­ner­ing in­vest­ment com­pany, leased the prop­erty at 722 E. Pu­laski High­way in the spring of 2011. Through­out that sum­mer, the part­ners spent about $40,000 out­fit­ting the build­ing for a re­cov­ery treat­ment cen­ter, ac­cord­ing to court records.

When their plans be­came pub­lic, how­ever, an in­creas­ing num­ber of neigh­bors vo­cally spoke out against the project, draw­ing in the sup­port of then-Ce­cil County Com­mis­sioner Diana Broomell. While the county had no zon­ing codes on the books con­cern­ing drug treat­ment cen­ters at the time, Broomell or­ga­nized an ef­fort to pass re­stric­tive mea­sures be­fore the clinic re­ceived state ap­proval.

An ini­tial ef­fort in May 2011 sought to re­strict drug treat­ment clin­ics to heavy in­dus­trial zones with the likes of as­phalt plants, haz­ardous waste re­cy­cling fa­cil­i­ties and pris­ons, de­spite other med­i­cal-type fa­cil­i­ties cur­rently be­ing lo­cated in zones of business in­tense, light in­dus­trial and business gen­eral – the lat­ter be­ing the zone of Rose’s Diner. Af­ter the Plan­ning Com­mis­sion rec­om­mended against the amend­ment, the bill was with­drawn.

In Novem­ber 2011, Broomell for­warded a new amend­ment that sought to re- quire Mary­land De­part­ment of Health and Men­tal Hy­giene li­cen­sure be­fore the county would is­sue a cer­tifi­cate of oc­cu­pancy to any med­i­cal clinic, de­fined as an of­fice with more than two physi­cians. The is­sue is that DHMH re­quires a cer­tifi­cate of oc­cu­pancy be­fore it will is­sue such a li­cense, cre­at­ing a Catch-22 for the ap­pli­cant. The amend­ment also in­creased set­back min­i­mums, among other changes.

Ig­nor­ing Plan­ning Com­mis­sion ques­tions about the def­i­ni­tion of a “clinic,” Broomell moved the amend­ment to a vote by the Board of County Com­mis­sion­ers on Jan. 3, 2012. Then-com­mis­sion­ers Robert Hodge and Tari Moore — who to­day serve as county coun­cil pres­i­dent and county ex­ec­u­tive re­spec­tively — raised grave con­cerns about Broomell’s in­sis­tence to not hold a pub­lic hear­ing and ig­nore the Plan­ning Com­mis­sion’s con­cerns with the amend­ment. Re­gard­less, Broomell along with then­com­mis­sion­ers Jim Mullin and Michael Dunn — a com­mon vot­ing bloc of the pe­riod — ap­proved the leg­is­la­tion in a 3-2 vote.

Af­ter­ward, CC Re­cov­ery was no­ti­fied that it no longer qual­i­fied for a cer­tifi­cate of oc­cu­pancy. The de­vel­oper ap­plied for a set­back vari­ance in the spring of 2012 while also ap­peal­ing the county’s rul­ing. In June 2012, the Ce­cil County Board of Ap­peals, fol­low­ing tes­ti­mony from more than 20 con­cerned res­i­dents, de­nied both CC Re­cov­ery’s set­back vari­ance and rea­son­able ac­com­mo­da­tion waiver. Six months later, CC Re­cov­ery filed suit in U.S. Dis­trict Court in Bal­ti­more.

The de­vel­oper noted in its law­suit that just months prior to its waiver de­nial, the ap­peals board ap­proved such a waiver for West Ce­cil Health Cen­ter, a men­tal health treat­ment cen­ter.

“The county is treat­ing CCR and its pa­tients in a dis­crim­i­na­tory fash­ion, and is im­pos­ing far more strin­gent land use re­quire­ments than it im­poses upon com­pa­ra­ble med­i­cal sues for pa­tients who are not suf­fer­ing from chem­i­cal de­pen­dency,” Pollin wrote in their law­suit.

Re­newed at­ten­tion More at­ten­tion is now be­ing drawn to the law­suit due to its sim­i­lar­i­ties to another on­go­ing zon­ing fight over pro­posed chicken farm projects in the Zion area.

Coun­cil Pres­i­dent Hodge men­tioned the Rose’s Diner case’s Jan­uary set­tle­ment dur­ing an Aug. 2 Cit­i­zens Cor­ner meet­ing with chicken farm op­po­nents.

While the terms of the set­tle­ment with CC Re­cov­ery are sub­ject to a con­fi­den­tial­ity agree­ment and of­fi­cials de­clined to dis­close them, Hodge told at­ten­dees at that Cit­i­zens Cor­ner meet­ing that the county’s in­surer, Lo­cal Gov­ern­ment In­surance Trust (LGIT), a non­profit gov­ern­men­tal in­surance co­op­er­a­tive, paid the clinic’s de­vel­oper up­wards of $400,000.

County Ad­min­is­tra­tor Al Wein and County At­tor­ney Ja­son Al­li­son re­cently said the county only had to pay its $5,000 de­ductible for the le­gal de­fense by Karpin­ski, Co­laresi & Karp, of Bal­ti­more. Par­tic­i­pat­ing LGIT gov­ern­ments pay their pre­mi­ums and de- ductibles to the co­op­er­a­tive, which in turns funds the de­fense, set­tle­ments and losses of all mem­bers.

When asked if this set­tle­ment could raise fu­ture in­surance rate quotes, Al­li­son said rates would be deter­mined by an ac­tu­ary, who would re­view prior rates, claims and payout his­tory of the county.

“I can’t tell you how this might or might not im­pact those rates,” he said.

Al­li­son added that the de­ci­sion to set­tle the case is not an ad­mis­sion of fault by the county, but a de­ci­sion reached by LGIT alone. Be­cause of that fact though, Hodge con­ceded that some may in­cor­rectly be­lieve the county lost the law­suit on its mer­its.

“I per­son­ally think that (LGIT) made a business de­ci­sion on the case, be­cause I think they deter­mined it was go­ing to cost them a lot more to de­fend it,” Hodge said. “This is a prob­lem with in­surance com­pa­nies, be­cause I think in some cases they set­tle rather than hold­ing firm on prin­ci­ple. (LGIT) has al­ways in­sisted that we were in the right and it was legally de­fen­si­ble, but in this par­tic­u­lar case they felt it was bet­ter to set­tle.”

While he as­serts that the county’s ac­tions were le­gal in the Rose’s Diner case, Hodge also be­lieves that it was not fair to bur­den the ap­pli­cant retroac­tively.

“I think it’s un­fair and un­rea­son­able to retroac­tively change any of those pro­vi­sions, in or­der to pre­vent the farmer from build­ing the pro­posed chicken houses,” he said. “And that’s ex­actly what the com­mis­sion­ers did in the Rose’s Diner case … it was very ob­vi­ous and in­ten­tional.”

Fu­ture fall­out While the Route 40 site at the heart of the Rose’s Diner case sat un­changed through the course of the law­suit, new ef­forts aim to see it de­vel­oped into a com­mer­cial plaza.

On Sept. 7, the Elk­ton Board of Com­mis­sion­ers unan­i­mously ap­proved an an­nex­a­tion re­quest for the 10,600-square-foot par­cel, which cur­rent owner, Acorn In­vest­ment Com­pany II LLC, hopes to sell to the Se­gall Group, a com­mer­cial real es­tate firm that fo­cuses on de­vel­op­ing shop­ping cen­ters. The idea is to turn the land into a shop­ping cen­ter, which could in­clude a fast-ca­sual restau­rant, a cof­fee shop and business with a fo­cus on med­i­cal use.

Un­like the prior pro­posal for a methadone clinic, how­ever, the idea for com­mer­cial de­vel­op­ment was largely met with­out crit­i­cism by the pub­lic. One neigh­bor­ing home­owner ex­pressed con­cern over the town’s lack of zon­ing re­stric­tions for med­i­cal clin­ics, such as the con­tro­ver­sial ones passed at the county level.

“I think my client made it very clear that they don’t have any deal­ings with methadone clin­ics. That would ac­tu­ally be in­con­sis­tent with the ar­range­ments with the other ten­ants and the cen­ter that they want to con­struct,” Dwight Thomey, le­gal coun­sel for the pe­ti­tion­ers, told the town and au­di­ence at the Sept. 7 meet­ing. “They’ve been very firm about the fact that it would be it would be a real detri­ment to them to even con­sider hav­ing that kind of use on the site be­cause it would make it very dif­fi­cult, if not im­pos­si­ble to rent out the rest of the com­mer­cial space in the cen­ter.”

While the Rose’s Diner prop­erty may be get­ting a sec­ond look, the leg­is­la­tion that pre­vented its pre­vi­ous pro­posal isn’t. When asked if the law­suit’s set­tle­ment may re­sult in changes to the county zon­ing code to re­move the re­stric­tive Catch-22 sce­nario it cre­ated, both Hodge and Moore said that it was not a pri­or­ity at the mo­ment. They ex­pect to brief the in­com­ing county coun­cil and county ex­ec­u­tive on the is­sue, but ul­ti­mately leave the de­ci­sion in their hands.

“When there’s a set­tle­ment, none of the or­di­nances get proven to be valid or in­valid,” Hodge said. “I don’t think any­body wants to en­cour­age methadone treat­ment fa­cil­i­ties in Ce­cil County, but it’s also not rea­son­able to pro­hibit them.”

Moore called the law­suit a “valu­able les­son” for the county, one that should re­mind of­fi­cials to “not change the rules mid-game.”

“Or­di­nances are liv­ing, breath­ing doc­u­ments and they should be up­dated on a reg­u­lar ba­sis,” she said, not­ing that the lat­est out­cry over the Horst chicken farm has sparked such a re­view on con­tained an­i­mal feed­ing op­er­a­tion reg­u­la­tions in the county. “The sit­u­a­tion that we ran into four or five years is not one we want to re­peat.”

Hodge noted that a few other med­i­cal clin­ics, in­clud­ing West Ce­cil Health Cen­ter, have had to con­tend with the re­stric­tive law, essen­tially forc­ing them to re­ceive a waiver from the Catch-22 pro­vi­sion.

“It’s one more layer of rules and reg­u­la­tions, hoops and hur­dles that they have to jump through to get some­thing done,” he said, not­ing the county would love to host as many pri­mary care physi­cians as pos­si­ble.


Rose’s Diner still stands to­day on Route 40, years af­ter the site be­came a point of con­tention be­tween the county and a de­vel­oper and ended in a set­tled law­suit.

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