Erin Cox writes in the Washington Post that the East Coast’s first outdoor, commercial cannabis harvest is underway in Cambridge.
As opioid deaths in Maryland remain a public health crisis, a Centreville doctor is calling for decriminalization and a public health approach to addiction modeled on successful reforms in other parts of the world.
Dr. Eric Ciganek, who treats recovering opioid patients in his Centreville practice, said the U.S spends “billions of dollars” a year on drug enforcement “because it’s the only thing we know.”
“In 1971 Richard Nixon announced the war on drugs, do you think we won?” he asked rhetorically during an interview with the Spy. “We lost terribly.”
Ciganek proposes a decriminalization model similar to Portugal, “where the rates of addiction, overdose and infectious diseases have dropped dramatically.”
Overdose deaths, disease transmission and drug related incarcerations fell after Portugal decriminalized drug use in 2001. Overall drug use declined and voluntary participation in treatment programs increased, contrary to the fears of opponents at the time.
“The amount of people in jail has dropped dramatically and the amount of people going in front of judges…has dropped dramatically,” Ciganek said.
He said 75 percent of the inmates in the Queen Anne’s County Detention Center are there for nonviolent crimes committed to support their habit, like shoplifting and breaking and entering.
Safe Injection Sites
Ciganek said medically supervised injection sites would lower overdose mortality and reduce the spread of Hepatitis C and other infectious diseases.
He said there’s a crisis looming with Hepatitis C — when years from now many addicts and former addicts will develop liver cancer.
“We have a national disaster on our hands that we’re not even looking at,” he said. He said people can live up to 25 years without knowing they have Hepatitis C.
There are about 100 injections sites in 66 cities around the world. Users bring their own drugs and inject themselves in a medically supervised environment with clean syringes provided by the facility. Denmark, France, Germany, Luxembourg, Netherlands, Norway, Spain, Switzerland, Australia, and Canada all have safe injection sites. The results in these countries also show reduction in overdose deaths and an increase in transition to treatment.
There are currently no sanctioned injection sites in the U.S, and recent attempts to establish them have come with a warning from the Department of Justice.
“Because federal law clearly prohibits injection sites, cities and counties should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action,” wrote Deputy Attorney Rod Rosenstein in the New York Times in 2018.
Rosenstein kept his word; in February the U.S. Attorney for the Philadelphia William McSwain sued to stop SafeHouse in Philadelphia from opening the first injection site in the U.S.
In a hearing on Sept. 5, McSwain argued that SafeHouse would violate the federal “crack house” statute that prohibits maintaining a place for drug use.
Current treatment options
Ciganek favors Suboxone with buprenorphine as a primary treatment method in his practice.
“It’s a weak opiate with almost no euphoric properties but it stimulates an opiate receptor in the brain that prevents a patient from going into withdrawal.” He said it eliminates cravings and is “well tolerated” if patients us it correctly.
Vivitrol is another treatment, a shot given that stops the effects of opioids for a month.
“It will prevent people from getting high,” he said. “It sits on an opiate receptor in the brain and blocks it.”
Ciganek favors the use of Vivitrol before patients leave rehab or prison because detoxification will have already occurred. To avoid withdrawal symptoms, there can be no opiates in the system when the shot is administered. He said almost 90 percent will use drugs within 48 hours of leaving a facility.
Vivitrol has also found its way to the court system, allowing patients to take it voluntarily as a condition of probation to avoid prison or get a reduced sentence.
MD Death toll rises in 2017 – 2018, tapers off in first quarter of 2019
There were 1,985 opioid deaths in Maryland in 2017, or 32 deaths per 100,000 of population, more than twice the national average, according to CDC data. This ranked Maryland fifth in the U.S for overdose deaths.
The majority of the deaths, 1,542, were from fentanyl, nearly a 30 percent increase over 2016. Prescription opioids and heroin deaths declined to 711 and 522 respectively from 2016, but the spike in fentanyl deaths in 2017 raised the state’s opioid death rate by 8 percent over 2016. (See figures 1 and 2)
Kent County had three fentanyl related deaths in 2017, one from heroin and two from prescribed opioids, according to Maryland Health Department records. There were two deaths in 2018, both attributed to fentanyl.
A 2018 report from the Maryland Opioid Operational Command Center showed another increase in the death toll to 2,114. And while the report indicated another decline in prescription opioid and heroin deaths, it cautioned that the declines “may be the result of displacement of heroin for fentanyl as the drug of choice for many users.”
The first quarter of 2019 marked a decline from the first quarter of 2018 statewide, a drop in 86 deaths, from 601 to 515, according to an OOCC report released in June. Fentanyl related deaths declined by 8 percent over the same period last year. Prescription opioid deaths dropped by 23 percent and heroin deaths dropped 16 percent.
But Kent County has gone in the opposite direction with seven deaths occurring so far this year, three in the first quarter and four in the second — all of them are attributed to fentanyl, said Joe Jones, the local addictions authority with the Kent County Health Department.
Fentanyl’s rise as the drug of choice grew out of shortages of heroin and greater difficulty obtaining opioid prescriptions, said a recent report from University of California San Francisco. “It is about 30 to 40 times stronger than heroin and considerably cheaper to produce.”
Ciganek believes the decline in opioid prescribing fueled the rise of overdose deaths as more addicts switched to fentanyl.
“When people were doing Oxycodone they weren’t dying as much as they are now,” he said.
Gov. Larry Hogan’s announcement last week that he will only consider a third Bay Bridge next to the existing spans on Kent Island was welcome news to leaders in Kent and Queen Anne’s counties, but reaction from conservation groups was mixed.
Queen Anne’s County Commissioner President Jim Moran said Kent Island is the only reasonable choice for a new span because “the state already owns the right of way…to enlarge roadways, access roads, and overpasses.”
The Maryland Department of Transportation had considered multiple sites and on Aug. 27 announced it had narrowed the options to three, but Hogan said the next day he would only support the Kent Island option. The two remaining options would have touched down in Kent or Talbot counties.
Moran said efforts to secure right-of-ways at the other locations would bog the state down in lawsuits for a decade. He believes the permitting process would be less problematic at Kent Island and cost the state far less than the other locations.
“If a new crossing is built anywhere else you will need multiple… studies for every mile of infrastructure across water and land, and again this could take a decade to complete the process.”
He said that a new span is needed more than ever at Kent Island because improvements have been made to “move traffic as efficiently as possible across the Bay Bridge.”
“This includes years of upgrades to routes 50 and 404, and now a new toll road in Delaware that brings traffic off of Interstate 95 and dumps onto Route 301 with a direct shot to the existing Bay Bridge,” he said. “So the traffic is here, and it used to move smoothly through our county, but over the last five years the volume is more than the existing bridge can handle, and it is getting exponentially worse.”
He said the infrastructure improvements that would come with another Kent Island span could reduce beach traffic on local roads — and make it safer for bike and pedestrian traffic.
QACA Will Oppose Kent Island Option
Queen Anne’s Conservation Association, a nonprofit that promotes rural stewardship and sustainable growth said it would fight Hogan’s plan.
“We plan on aggressively opposing the span at Kent Island,” said QACA Executive Director Jay Falstad. “We believe that the state has not exhausted or fully considered other options which might reduce traffic flow and make things more efficient.”
Falstad said high-speed tolling and employing “congestion pricing” could mitigate much of the traffic problem.
Congestion pricing incentivizes motorists to travel during off-peak hours by offering a toll discount. During peak hours the toll rate is increased significantly. Falstad believes congestion could be reduced by giving beachgoers the option to choose off-peak travel times to save money.
The InterCounty Connector, which connects Gaithersburg and Laurel, has no manned tollbooths and uses congestion pricing. For motorists without E-Zpass, video snapshots of license plates are used to bill motorists at the address the vehicle is registered.
Hershey Says Hogan Plan is Best Option
Sen. Minority Whip Steve Hershey said infrastructure on the Queen Anne’s side of the spans would be a priority.
“Gov. Hogan is absolutely correct, there is only one option that will best alleviate our current and projected congestion issues while remaining sensitive to overall costs,” Hershey, R-Queen Anne’s, said in a statement to the Spy. “Our focus will be to ensure the infrastructure in Queen Anne’s County, including local roads and bridges, is considered and appropriately upgraded within the scope of the project.”
Kent County Commissioners Tom Mason and Ron Fithian support Hogan’s choice of Kent Island but were concerned that the project could fail to break ground before the end of Hogan’s second term. Mason said a new administration might not see the urgency for a third crossing, “adding years to the process.”
Kent Conservation and Preservation Alliance, which has opposed a third span touching down in Kent County, did not endorse Hogan’s plan but said the Kent Island option was a forgone conclusion based on a 2015 MDTA study.
“… if a third span is to be built the best option would be where the current bridge stands,” said Janet Christensen-Lewis of KCPA. She said KCPA would continue to oppose any plan to bring a bridge to Kent County.
Declining enrollment, small endowments, and competition from more affordable public universities will continue to threaten the existence of small liberal arts colleges well into the next decade.
Moody’s, the Chronicle of Higher Education and other education experts predict these factors will force many small private colleges to close or merge with larger institutions — and Washington College President Kurt Landgraf agrees.
He said he made his concerns known at an education conference several years ago, long before he was approached to take the helm at WC.
“I projected…that 50 percent of liberal arts colleges would no longer be here ten years from now,” he said in an interview with the Spy on Monday. “There are macro things that are affecting not just this college but all liberal arts colleges.”
The pool of high school graduates nationwide shrank by 81,000 in 2017 and the trend continues downward. The East Coast has been hit hardest by the decline.
The shrinking freshman pool is blamed on a decrease in birth rates at the dawn of the Great Recession, called the birth dearth. This means the brood of 18-year-olds headed to college in the mid-2020s will shrink by another 15 percent.
Small colleges, including WC, have tried to overcome dwindling enrollment with drastic tuition discounts. Experts say this is leading to a fiscal crisis at many small liberal arts colleges.
“We can’t cover the expense of every new student with tuition room and board [revenue],” Landgraf said. “That’s why all colleges take money out of their endowment.”
The tuition discount for WC runs 55-60 percent off the list price of $251,00 for a bachelor’s degree, and the college normally uses 5 percent of its endowment annually for operating expenses. But in the last few years the board has allowed the administration to take 6.5 percent because of less than predicted enrollment, which resulted in higher operating costs.
In Maryland, withdraws from endowments that exceed 7 percent of their fair market value must get approval from the attorney general.
WC planned for growth as enrollment nationally began to slide
While experts were sounding the alarm of declining enrollment, Washington College was planning for growth. The construction of new dorms and a new stadium and the purchase of Stepne Manor and the armory were in anticipation of the student population climbing to 1,700. But the student population dipped and sits at around 1,350 headed into the fall 2019 semester.
“Over the last four or fives years the board expected the student body to grow,” Landgraf said. “They had every reason to believe that.”
He said during the expansion years the freshman class had swelled to 450 and the board’s predictors were based on “fundamentally sound facts.”
But the new freshman class is about 380 and the decline meant that staff reductions had to be made to help close a $6.6 million deficit, which in recent weeks has fueled concerns that the college is in peril.
Landgraf said the financial health of the college was sound but staff size had to be made commensurate with the student population and tuition revenue.
“There was a reduction in force because we had too many people…the college was built on the expectation of having 1,700 students,” he said.
The total staff reductions consisted of voluntary retirement packages for three faculty and 11 staff. Another nine positions were eliminated.
“We have to face the fact that we don’t have 1,700 students,” Landgraf said. “We’re in a recovery mode and the board is fully supportive of that; we’re doing all the things that need to be done to get us to the point where we’re back on a growth path.”
The staff cuts and additional revenues helped trim $3.6 million from the $6.6 million structural deficit, and the board allowed the administration to carry $3 million in debt into fiscal 2020.
To help further close the deficit, tuition will go up 4 percent and room and board will increase by 2 percent.
The college is also trying to sell off surplus real estate.
“The college is in a program to divest itself of nonessential real estate in Chestertown,” he said. “We’re selling everything we possibly can because we don’t need it…it’s a significant source of cash.”
When asked if senior staff had shared the pain of the budget woes, Landgraf responded that many in the upper ranks collectively agreed to take salary cuts — and in return he agreed to match it.
“Everybody said we’re in trouble, we have to face up to this and we have to participate,” he said. “I’m going to match whatever they give.”
The money will go to the Washington Fund and is estimated to reach $150,000.
Landgraf said WC was on a better financial footing than most small colleges because of its large endowment.
“Our endowment is four and five times that of smaller liberal arts colleges,” he said.
The total endowment as a March 31 is $228 million, and the Forge a Legacy campaign is nearing its goal of $150 million a year ahead of schedule. The campaign has so far earmarked $64 million from the campaign for the endowment. The numbers are expected to grow before the final tally.
Hodson Trust bears no influence on recent cuts, Landgraf says
The Hodson Trust, established nearly 100 years ago, provides scholarships and grants to Washington College, Hood College, St. John’s College of Annapolis and Johns Hopkins University.
The trust is WC’s largest benefactor, contributing over $80 million since inception. The trust is set to pay out its endowment to the four schools sometime in the next two years, when the trust is scheduled to bring its balance to zero. Speculation has circulated that the staff cuts were aimed at giving Hodson greater confidence in the college’s future.
Not so, Landgraf said. He said a large payout would certainly help with enrollment but the staff cuts were not an attempt to please Hodson. He said the potential for a large payout was not behind the decision to cut staff.
“Even if we were not one of the recipients of the Hodson Trust, there’s nothing we’re doing today that we wouldn’t do.”
But he did make clear that Hodson and other donors want assurance that their beneficiaries are financially on solid ground.
He said the Hodson requires quarterly reports to demonstrate sustainability.
“If they felt this college was not going to be here 200 years from now, that would impact how much money they would give us,” he said. “The Hodson Trust pays attention to sustainability. We’re better than sustainable, but in the next couple years they’ve got to know that we’re doing everything we can to make sure we’re still here 200 years from now.”
The Maryland Court of Appeals reaffirmed on Tuesday that the Maryland Public Service Commission is the final arbiter on the location and approval of solar projects larger than two megawatts—and can preempt local jurisdictions after giving “due consideration” to local zoning ordinances and comprehensive plans.
The ruling cites the historical “intent” of the Maryland General Assembly in passing public utilities law as well as recent amendments enacted in 2017 that reinforced the PSC’s “decision-making” authority.
The court affirmed that it has always upheld the broad powers of the PSC given to it in statute by the legislature “to execute its principal duty of assuring adequate electrical service statewide.”
And while the court recognized local government as a partner in the decision process, “the ultimate decision-maker is the PSC, not the local government or local zoning board.”
The court did, however, note the PSC’s obligation to consider local land use laws when approving applications for solar projects that require a Certificate of Public Convenience and Necessity.
Local zoning laws are “nevertheless a statutory factor requiring due consideration by the PSC in rendering its ultimate decision,” the ruling said.
The recent court ruling comes from a case in Washington County where local residents fought Perennial Solar, LLC ‘s application in late 2015 for a variance to build an 86-acre solar farm near the village of Cearfoss.
The Washington County Board of Zoning Appeals approved the application, ruling that the project conformed to the comprehensive plan. Residents soon petitioned the Washington County Circuit Court to kill the project because it would blight the rural landscape.
But Perennial filed a motion challenging the jurisdiction of the circuit court on the grounds that state law gave the PSC final authority under the state’s Public Utilities Article, passed by the Maryland General Assembly, to approve the placement of solar energy generating systems. The circuit court agreed.
The Washington County Commissioners and a group of citizens appealed to the Maryland Court of Special Appeals, which sided with the circuit court in affirming the state’s preemptive authority.
The Washington Commissioners brought the case to Maryland Court of Appeals in late 2018 on the grounds that the General Assembly had “prescribed a role for local government” through local planning and zoning that was not preempted by the PSC.
But the appeals court sided with Perennial, citing case law, the 2017 amendments to public utilities article, and bills that failed in the General Assembly to allow for greater local control.
“Our holding that the General Assembly’s intent to preempt local comprehensive planning and zoning on matters related to the ultimate siting and construction of generating stations is bolstered by the recent amendments to the statute, as well as our consideration of the proposed bills, which were rejected,” the court said.
“If the General Assembly intended to change the existing law, it certainly had the opportunity to do so,” the court said.
The recent ruling received a cool response from Queen Anne’s Conservation Association Executive Director Jay Falstad, who highlighted the PCS’s obligation to local jurisdictions in the ruling.
“Given everything we’ve heard about the great importance of allowing land-use decisions to be made by the Counties rather than by the State, we’re somewhat surprised that the Court of Appeals has ruled unanimously that it’s the State, not the Counties, that will decide where in a County any big solar project is to be located,” Falstad wrote in an email to the Spy. ”But the Court is very careful to emphasize many times over that the PSC is legally required to listen to the County’s views and to give “due consideration” to how the County treats solar projects in its comprehensive plan and zoning regulations. So, as an environmental organization that strongly supports solar projects when they are built in the right places, we at QACA will go on working at both levels, state and local, for good decision-making about solar in Queen Anne’s County and its neighbors.”
Though disappointed with the ruling, the Kent Conservation Alliance, through its attorney Chris Drummond, said the PSC over the past few years has actually been more proactive in working with local communities on renewable energy projects.
“The Kent and Queen Anne’s County Commissioners are surely disappointed with the Court of Appeals decision,” Drummond wrote in an email to the Spy. “However, the attitude among state agencies regarding local land use and zoning concerns seems to have changed in the past few years. Now, the state agencies that provide information and recommendations to the Public Service Commission actively seek local input and include those concerns in reports to the PSC. Recently, solar applications have been approved by the PSC with conditions that require compliance with local site plan and landscaping requirements. We will work to make sure that the state agencies continue to take local concerns and land use regulations seriously.”
Drummond filed an amicus brief in support of the Washington County Commissioners.
Maryland Association of Counties said the decision was a disappointment but said the organization would “continue to advocate for a county voice in the decision-making process” and that the 2017 legislation did not sideline local governments in the approval process.
“The court’s decision reiterated important parts of state law that require the Commission to give due consideration to the position of a local government on an energy generation projects,” said Les Knapp, chief policy counsel for MACo in an email to the Spy.
But the attorney representing the Washington County citizens group, William Wantz, was not as optimistic and said Western Maryland and the Eastern Shore would soon feel the encroachment of solar farms.
“The availability of farmland at reasonable cost will periodically result in a disproportionate concentration of solar farms displacing agriculture in Western Maryland and the Eastern Shore, where rural land prices are cheap.”
As Maryland’s minimum wage rises to $15 by 2025 so do concerns that direct support staff serving Maryland’s developmentally disabled will make a career change to McDonald’s, where working the drive-thru pays almost the same.
“Support staff wear many hats” and the work is stressful, said Kent Center’s Executive Director Karine Ireland at a legislative breakfast on June 28 to commemorate nearly 50 years of serving clients in Kent County. “The staff needs increased training and increased pay.”
Low wages continue to plague recruitment and retention, which caregiver organizations in Maryland have called a “crisis.” They say starting wages must exceed the minimum wage by a wider margin than currently exists to recruit and retain a workforce.
There are over 200 organizations in Maryland like Kent Center that serve 25,000 developmentally disabled; they rely almost exclusively on Medicaid and state dollars that flow through the Maryland Developmental Disabilities Administration to pay support staff.
A third of new DDA support staff in the state quit after six months and nearly half resign after one year. The attrition is the result of high stress and low wages, according to the Maryland Association of Community Services, a group that advocates for caregiver organizations. Courtney Williams, administration director for Kent Center, said their retention rate was close to the state average.
Ireland said all support staff require emergency medical training and certification to administer medications. They also undergo extensive training in conflict resolution and mentoring — in order to provide the job coaching and life skills clients need to integrate into the community.
The breakfast included a tour of the facility on Scheeler Road where job readiness and mentoring programs are run. There are currently 12 clients employed in the community with the help of the center’s Supported Employment Services.
Delegates. Jay Jacobs, R-Kent, and Steve Arentz, R-Queen Anne’s, attended the breakfast and blamed the rising minimum wage on the chronic staff shortages in DDA funded facilities.
“A $15 minimum wage actually hurt this place, it didn’t help it at all,” Jacobs said. “That $15 may sound good in the outside world but it actually harmed the workers in the pay scales.”
Arentz and Jacobs voted against the $15 wage hike that passed in Annapolis this year.
But caregiver organizations lobbied in Annapolis for “the fight for $15” and asked for a 7% bump in DDA’s budget. The legislature cut the request back to 3.5% for 2020 and 4% for years 2021-2026.
As the minimum wage rises, entry-level workers in 2025 will make about 60 cents more than new hires at McDonald’s, the difference could be even less if the burger chain is paying more than the minimum wage by then. See figure 1.
The average starting wage in DDA facilities is $10.50 to 11.00. The Kent Center’s starting wage is $10.66 — just 56 cents above the current minimum wage, a gap of just 5%.
The staff turnover over at the Kent Center is 22%, which is slightly lower than the state average of 25%. The center needs 50 more recruits by February to run programs at the facility and staff 14 full-time residences in the community. The center currently has 150 support staff for roughly 80 clients.
In 2006 the reimbursement rate was 69% above the state minimum wage; this year the gap has narrowed to 19%. But new employees are actually paid much closer to the minimum wage because providers, mostly community nonprofits, must reward employees with tenure at a higher wage to maintain retention.
The state tried to address the gap in the Minimum Wage Act of 2014 and tied the reimbursement rate to the minimum wage. The Act came with a mandate that set the reimbursement rate to a level above the state’s minimum wage in order to attract and maintain the workforce.
“The current rate is not enough when you can [start] at Giant earning $12.35,” said Laura Howell, executive director of Maryland Association of Community Services in brief phone interview. She said the vacancy rate was compromising the safety of staff and clients in facilities like the Kent Center.
Ireland spoke of one success story at the center where a client landed a better paying job than the support staff who trained him. Williams said there were other instances where staffers quit after learning they could earn more where their former clients had found work.
The workforce shortage has also raised concerns among aging parents whose children rely on the Kent Center.
“If I’m not there or my husband is not there, someone has to be,” said Linda Cades, whose 40-year-old son has relied on the Kent Center for 20 years. “We need to get good people to do this. We need to know that our kids are safe because they are extremely vulnerable.”
She said the center provided the socialization her son needed to know people with and without disabilities. Her son was also able to perform work, participating in the contract mailing and shredding services the center offers.
In their 70s, Cades said she and her husband worry about their son’s care after they pass on.
“I need to know that when I’m not here to run interference he’s going to be OK, in a place where people care about him,” she said. “Wages have been so low over the years that it extremely difficult to recruit, train and retain people.” She said the staff vacancies were putting greater burdens on the existing staff doing “very difficult work” for as low as $21,000 a year.
The Kent Center receives 99% of its revenue from DDA. Only 1% comes from private donations, said Kent Center Chairman Randy Cooper. He is also the founder of Radcliffe Corporate Services in Chestertown.
Cooper said a $500 donation earns a $250 tax credit on the Maryland tax return.
The US Department of the Interior announced yesterday that the Blackwater National Wildlife Refuge in Dorchester County will receive just shy of $6 million to conserve 2,500 acres of habitat to protect migratory birds.
The funds were approved by the Migratory Bird Conservation Commission, which allocates funds to the Interior Department to acquire and conserve migratory bird habitat in the National Wildlife Refuge System.
The commission meets twice a year to allocate funds and Blackwater Refuge was one of only five projects nationwide to receive grants in the announcement.
The Blackwater grant is aimed at protecting “migrating and wintering American black ducks, mallards, Canada geese and greater snow geese, as well as habitat for black rail, salt-marsh sparrow and other wetland-associated migratory birds. The project will add over 2,600 acres to the refuge’s public hunt program, expanding public opportunities for white-tailed deer, sika deer, turkey, and waterfowl hunting,” according to a press release on June 19.
The funds are made possible from the Duck Stamp program and will go directly to the U.S. Fish and Wildlife Service to manage the project. The stamp program was established in 1934 and 98% of the revenue goes to the buy and protect wetlands.
After losing her campground business to decades of raw sewage contamination, the Maryland Court of Appeals has ruled 4-3 that Gail Litz of Goldsboro can finally sue Maryland Department of the Environment for not enforcing a consent order that could have saved it.
“This is a major decision as it relates to the duties and liabilities of state and local government to take responsibility for their actions, and their inactions, when they are so obligated by the rule of law,” said a statement from Chestertown attorney, Phil Hoon, who has represented Litz in her six-year struggle to get a jury trial. “Ms. Litz will finally have her day in court. The matter will now proceed to a jury trial in the Caroline County Circuit Court.”
Hoon hopes a victory for his client at trial can set a precedent that mandates MDE to enforce its consent orders.
“How can the State effectively enforce environmental laws and regulation against farmers, industry and other property owners if it cannot diligently and effectively pursue its own enforcement actions against well-known sources of municipal pollution,” Hoon said in statement in 2010 before the case was initially thrown out of Caroline County Circuit Court.
Litz is seeking $7 million in damages for the loss of her 140-acre campground after MDE and the Town of Goldsboro failed to execute a 1996 consent order to stop failing septic systems in the town from dumping into Lake Bonnie, a 28-acre lake on the campground that was the center of activity, and Litz’s livelihood, since the 1950s.
Lake Bonnie empties into the Choptank River, considered one of the most polluted rivers on the Chesapeake Bay.
The 1996 consent order, 20 years ago, came a year after the Caroline County Health Department closed Lake Bonnie for swimming – and it remains closed today due to the high levels of fecal coliform (human waste).
Under the consent order MDE ordered the Town of Goldsboro to approve a plan and start construction of a public sewer system by 1997. But no sewer system was built and MDE failed to take any enforcement action against Goldsboro, which included a $100 per day fine for non-compliance. By now fines would have exceeded $700,000, Hoon said in a brief interview with the Spy.
In the 29-page decision on Jan. 22, the Maryland Court of Appeals ruled in Gail B. Litz v. Maryland Department of the Environment that Litz’s claim of inverse condemnation, the taking of her property by the government without adequate compensation, has merit and can now go to trial in Caroline County Circuit Court on constitutional grounds, which means MDE cannot seek protection under government immunity.
“Maryland Constitution does not provide sovereign immunity to state or local governments for an unconstitutional taking,” the opinion said.
Litz put full faith in MDE to enforce the consent order against Goldsboro that would have restored her lake and saved her business, Hoon said. “She trusted the government to do what it said it was going to do [and] she lost everything.”
The campground went to foreclosure in 2010, 14 years after MDE ordered the Town of Goldsboro to take immediate measures stop the septic runoff.
Since it was initially dismissed by Caroline County Circuit Court in 2010, Litz’s case has been twice before the Maryland Court of Special Appeals (the lower court) and the Maryland Court of Appeals (the higher court) before it was remanded back to Caroline County Circuit Court for trial in the recent ruling. Hoon said it was extremely rare for the Maryland Court of Appeals to hear a case twice.
The case is groundbreaking in Maryland because it challenges the government’s “inaction” rather than the intentional “action” in condemning, or taking, of a property.
Normally inverse condemnation occurs when the government uses an official act or regulatory action that takes (condemns) private property without compensation, giving cause for the property owner to sue. In 2010 MDE successfully argued this in motions before the Caroline Circuit Court that the condemnation of Litz’s property was not from an official or regulatory act by MDE to take her property. The Maryland Court of Special Appeals later sided with the Circuit Court that “discretionary inaction” did not rise to the level of an inverse condemnation claim; the Maryland Court of Appeals struck down this argument in their latest ruling.
In hearing the case for a second time, both the majority and dissenting opinions in the Maryland Court of Appeals agreed that a claim of “taking” of property due to “inaction” is outside the historical lane of inverse condemnation claims. The court then looked at cases in California, Florida, and Minnesota for precedent and found cases applicable in Maryland law. The court found that an inverse condemnation claim had merit when a government entity failed “in the face of an affirmative duty to act.”
“…It is not frivolous to hypothesize that state, county, and municipal agencies may have duties to step in to protect the public health, as illustrated by the execution of the 1996 Consent Order,” the opinion said.
The Appeals Court found persuasive the history of “inaction” by MDE as a cause of action to sue. The septic pollution had been known to health officials since 1973 and in 1985 Caroline County Health Department said “immediate action was necessary,” the opinion said.
By 1988 the health department reported they were “elevated levels of fecal coliform” in shallow drinking wells.
In 1995 the health department reported that the “use of the stormwater management system in the Town as a sewage system has gotten to crisis proportions.”
That same year MDE acknowledged there were “actual water quality impacts on Lake Bonnie… It now appears that the situation has deteriorated and created environmental concerns that will need to be addressed.”
Nine months later in 1996 MDE signed a consent order with the Town of Goldsboro, requiring the town to draw up plans and begin construction of a sewer system – clearly stating that fines would be assessed for non-compliance.
In 2004, with no sewer system in place, the health department warned against issuing more septic permits in areas with known problems and lamented that MDE and the town were ignoring the consent order.
“The Town has failed to comply with any of the material terms of the Consent Order and MDE has enforced no part of it,” the health department wrote.
Dan Menefee is the publisher of the Kent Guardian
After two days of wide speculation and rumors about a missing and allegedly armed Washington College student, local police and college officials finally gave details to a story that closed the college indefinitely, possibly through the Thanksgiving holiday.
It turns out a missing student, sophomore Jacob Marberger, may have been a victim of bullying on campus, said officials in a press conference held on campus at 2:30 p.m. on Tuesday.
The campus closed Monday after Marberger’s parents reported to college officials that their son, a respected speaker of the student senate, had gone home to Pennsylvania to retrieve a gun. He has not been seen since but Chestertown Police Chief Adrian Baker believes Marberger is still in Pennsylvania.
In the video below Washington College President Sheila Bair insists Marberger was never a threat to anyone and explains her decision to close the college until further notice.
Still only classified as a missing person, Baker issued a warrant for Marbeger’s arrest, charging him with having a dangerous weapon on school property, possession of a firearm by a minor, and possession of a handgun on his person. Marberger is 19 and the charges are all misdemeanors.
The gun was an unloaded antique .22 rifle revolver, Baker said.
Back on Oct. 7 Marberger was subject to a prank where a bucket of water was placed over the door of his room in a manner to make it douse him when the door swung open.
“He felt very hurt by that,” said the college’s director of public safety, Jerry Roderick at Tuesday’s press conference. “He thought people were [trying] to ridicule him in some way.”
The bullying may have been ongoing.
“Speaking with Jacob he did feel persecuted by several students on campus,” Roderick said.
Roderick insisted there was never any report of Marberger threatening or retaliating against anyone, nor did any student ever feel threatened.
“Investigators never once found any actions with the weapon that were overt acts of violence or threats,” Roderick said. He said Marberger simply displayed the gun as a kind of showpiece.
Washington College President Sheila Bair, standing with a cadre of law enforcement officials, echoed Roderick that Marberger never threatened anyone.
“I would like to emphasize…that the gun was unloaded, he was not pointing at anybody, he wasn’t threatening anybody [and] it sounds like he was bragging about it as an antique,” Bair said.
It is against school policy to have a gun on campus and it wasn’t reported to college officials until Oct. 23, two weeks after Marberger displayed it.
A search of his room in Cecil Hall revealed no weapon but the investigation remained opened but inactive because reports had been vague, Roderick said.
Roderick said more credible information came to the public safety office on Oct. 27 and by Oct. 29 they were able to recover the antique gun from an off-campus residence, at which time Marberger was placed on temporary suspension and forced to undergo a psychological evaluation.
“This is when we took immediate steps to look at the safety of our campus, the safety of our students and the safety of Mr. Marberger,” Roderick said. “A decision was made that Mr. Marberger had to separate from the campus at the time to allow public safety to continue its investigation and to have Mr. Marberger evaluated professionally.” Roderick said it was needed to determine if Marberger could return to campus.
Marberger returned to campus on Nov. 9 after he had passed his evaluation, Bair said.
Bair said that Marberger still faced possible suspension or expulsion by the college’s honor board after his return and that that process had not yet played out.
On Sunday, Nov. 15 Marberger participated in a local Rail Trail cleanup in Chestertown with other students and local residents and later that evening was asked by a fellow member of student government to resign. Marberger complied.
Marberger returned to his Pennsylvania home in the early morning hours of Nov. 16 where he allegedly retrieved the gun.
He remains missing and is described as 5’4 weighing 135 pounds. He has brown wavy hair.
Dan Menefee is a contributing writer to the Chestertown Spy. He is the publisher of the Kent Guardian.
On Saturday Maryland became the 16th state in the US to pass legislation decriminalizing marijuana. The bill needs a signature from Gov. Martin O’Malley who expressed grave reservations about decriminalization and legalization when the session began in January.
A Senate bill sponsored by Sen. Bobby Zirkin of Baltimore County passed the House of Delegates in a 78-55 vote after amendments offered by opponents were rejected during two hours of intense debate.
Lawmakers in both chambers have lauded the efforts of Del. Keiffer Mitchell and the Legislative Black Caucus for resuscitating the bill after Del. Joe Vallario, the powerful chair of the judiciary, tried to kill it with a task force study over the next two years.
Vallario, D-Prince George’s, has been historically opposed to decriminalization.
But a wave of Democrats revolted against Vallario knowing there were ample votes for passage. On Friday morning Mitchell led with a floor amendment to kill the task force idea and bring Zirkin’s original bill to a vote—citing a long history of racial disparity in enforcement of the marijuana laws.
“It is my belief and others that we in good conscious cannot allow a task force to take place for two years while there is racial disparity,” Mitchell, D-Baltimore City, told his colleagues on Friday. “We believe it is not something that should be continued to be studied…as the facts continue to stare us in the face.
The bill was then sent back to the judiciary where the task force idea was scrapped and only minor changes were made to Zirkin’s original bill.
If signed into law by O’Malley, possession of 10 grams or less would become a fineable civil offense with no jail time. The measure also provides privacy protections that shield civil citations from public inspection and prohibit publication on the Maryland Judiciary website.
The law would take effective Oct. 1 and require mandatory court hearings and treatment for violators under the age of 21. Anyone over 21 would only have to appear on the third offense and be subject to a drug treatment program. First, second and third offenses would carry fines of up to $100, $250 and $500 respectively.
Anyone under 18 would be referred to the juvenile system in a manner similar to under age drinking.
A source in the Senate told the Spy “there are no foreseeable issues with the House amendments. It will most likely pass.”
The changes mirror the recommendations in an ACLU report last year.
The report said that 88 percent of all drug arrests in the US from 2001 to 2010, over seven million arrests, were for possession. In 2010 alone the states spent $3.6 billion enforcing marijuana possession laws.
Maryland’s marijuana possession laws have been blamed for kludging the legal and law enforcement systems. An analysis from the Maryland Department of Legislative Services cited 19,828 arrests in 2013 for amounts of 10 grams or less–and resulted 3,099 cases of fines and incarceration.The report also said that blacks were nearly four times more likely to get arrested than whites “who use marijuana at similar rates.”
Del. Heather Mizeur, whose running a distant third in Maryland’s Democratic gubernatorial primary, said the bill had the support of 90 percent of Marylanders and would remove a barrier to housing and employment.
“Every year that we lack the courage to move forward on this issue means that 23,000 more people are dragged through our criminal justice system,” Mizeur, D-Montgomery, said during floor debate on Saturday. “[These are] people who have real consequences on whether they can find employment, keep housing and get access to their scholarships.”
Del. Mike Smigiel, a lawyer on the judiciary, and the legislature’s most staunch libertarian, told opponents that Maryland’s marijuana laws had failed and that moving enforcement to civil court would not cause an increase in marijuana use.
“It isn’t going to stop all the problems because we say you’re not going to go to jail,” Smigiel said. “Everyone of the states that has either legalized, or went to decriminalization, has had no increase, there’s been no problems.”
“This is going to be an opportunity to stop taking people who make a mistake and turning them into criminals for using something and doing something that isn’t harming another,” He said. “We stand up here all the time…and rally about getting government out of our lives, and to let us live our lives, and now we’re getting government out of your life.”
He said that many police officers testified before committees this session in favor of decriminalization. Smigiel was one of only three Republicans in the House and the only Eastern Shore legislator in either chamber to support the bill.
In the audio at right, Del. Herb McMillan, R-Anne Arundel, spoke in support of decriminalization and said people should’t go to jail for possessing a small amount of marijuana.