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Dryer V BOE IV - Memorandum and Order
Dryer V BOE IV - Memorandum and Order
et al.,
* CIRCUIT COURT
Plaintiffs
* FOR
v.
* BALTIMORE COUNTY
BOARD OF EDUCATION OF
BALTIMORE COUNTY * Case No.: 03-C-09-004611
Defendant *
* * * * * * * * * * * *
This matter came before the Court on May 21, 2009 on Plaintiffs’ Motion for
Dryer, Kurt and Cynthia Polins, Theodore and Christie Root, and Henry and Karen Vail
and Defendant, the Board of Education of Baltimore County. The Court holds that
Plaintiffs failed to establish that the balance of hardship weighs in their favor.
I. Statement of Facts
Defendant proposed building an addition to the Ridge Ruxton School, located at 6916
North Charles Street. Parents of children attending the Ridge Ruxton School objected to
the proposal, and Defendant subsequently withdrew the plan in April 2008. 1 On May 6,
2008, Defendant adopted a proposal to build West Towson Elementary School on the
grounds of the Ridge Ruxton School, as opposed to building an addition to the Ridge
Ruxton School. The project involves the construction of a three-story building, which is
designed to accommodate four hundred and fifty-one students. The school will allegedly
1
On April 23, 2009, Plaintiffs filed a Complaint for Declaratory Judgment,
Injunctive Relief, and/or in the Alternative, Writ of Mandamus. Plaintiffs allege that
Defendant failed to comply with policies, rules, and statutes in adopting the plan for West
Towson Elementary School. Furthermore, Plaintiffs argue that the construction of the
proposed school will create a public nuisance and result in trespass. Additionally, the
assert that, if Defendant had complied with applicable law, the proposal would have been
failed to comply with numerous policies, rules, and statutes, and a declaratory judgment
that Defendant and the Superintendent must comply with the law in adopting the proposal
for the new elementary school. Plaintiffs also seek an injunction precluding Defendant
from proceeding with the construction process, and a writ of mandamus ordering
Defendant to comply with the applicable law and compelling Defendant to cease and
On April 27, 2009, Plaintiffs filed a Motion for Temporary Restraining Order,
which was denied on April 28, 2009. Plaintiffs filed a Motion for Preliminary Injunction
and a Memorandum in Support of Motion for Preliminary Injunction on April 24, 2009.
Preliminary Injunction. On May 19, 2009, Plaintiffs filed a Reply in Support of Motion
2
Plaintiffs also argue the proposed school will contribute to environmental degradation.
2
II. Analysis
related to the construction of West Towson Elementary School. The Court considers four
Plaintiffs have the burden of establishing that all four factors weigh in Plaintiffs’ favor,
evidentiary hearing, are not “‘full and sufficiently definite and clear, in support of the
right asserted, and that such right has been violated,’ the court will not order preliminary
relief.”5
harm must be evaluated pursuant to the “balance of hardship test.”7 The Court relied
significantly upon the opinion in Blackwelder Furniture Co. v. Seilig Manufacturing Co.,
Inc., in which the U.S. Court of Appeals for the Fourth Circuit held that prior to
3
Schade, et al. v. Maryland State Board of Elections, 401 Md. 1, 36 (2007). For the sake of clarity, the
Court has presented the factors in a modified order.
4
Id.
5
State Department of Health and Mental Hygiene v. Baltimore County, 281 Md. 548, 554 (1977).
6
Lerner v. Lerner, 306 Md. 771, 783 (1986).
7
Id. at 784 quoting Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 195 (4th Cir.
1977)) (“Where the questions presented by an application for an interlocutory injunction are grave, and the
injury to the moving party will be certain and irreparable, if the application be denied and the final decree
be in his favor, while if the injunction be granted[,] the injury to the opposing party, even if the final decree
be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually
will be granted.”).
3
considering the likelihood of success on the merits, the initial determination in a
harm to the plaintiff against the ‘likelihood’ of harm to the defendant.”8 A moving party
must establish that the alleged irreparable harm is “‘neither remote nor speculative, but
actual and imminent.’”9 However, “while ‘irreparability’ may suggest some minimum of
probable injury which is required to get the court’s attention, the more important question
is the relative quantum and quality of plaintiff’s likely harm.” 10 Therefore, the Court
must compare the actual and imminent harm that may result from the Court’s grant or
denial of a preliminary injunction prior to determining the likelihood that Plaintiffs will
succeed on the merits. Furthermore, in many cases, the application of the balance of
hardship test effectively conflates the irreparable harm and inconvenience analyses, since
In the instant case, both parties argue that the balance of hardship weighs in their
consideration of hardship is limited to hardship arising during the interim period between
Plaintiffs argue that the Court’s denial of a preliminary injunction would result in
injury in two ways. First, Defendant’s failure to comply with the law in proceeding with
address the impact of the construction. Plaintiffs assert that “[t]he Board’s failures have
8
Id. at 783 (quoting Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 194 (4th Cir.
1977)).
9
Direx Isreal, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (quoting Tucker Anthony
Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)); ECRI v. McGraw-Hill, Inc., 809 F.2d 223,
226 (3d Cir. 1987) (“Establishing a risk of irreparable harm is not enough. A plaintiff has the burden of
proving a clear showing of immediate irreparable injury.”).
10
Blackwelder Furnitures Co., 550 F.2d at 196.
4
harmed the Plaintiffs by denying them the right and opportunity created by the applicable
statutes, policies, and rules to have their property rights acknowledged, considered, and
Second, Plaintiffs argue that they will suffer immediate injury caused by the
construction, and will suffer long-term damage resulting from the decline in the value of
the Plaintiffs’ residences. Plaintiffs assert that the plans include the construction of an
access road. Plaintiffs Vail reside at 1204 Boyce Avenue, which is adjacent to the west
side of the proposed construction site and less than forty feet from the proposed access
road.12 Similarly, Plaintiffs Polins reside at 1200 Boyce Avenue, which is also adjacent to
the west side of the construction site, and less than forty feet from the proposed access
road.13 The entrance of the access road will be across the street from Plaintiff Dryer’s
home. Plaintiffs assert that the quiet enjoyment of their residences will be compromised
months. The contractors are required to work Monday through Saturday, eight hours per
day.14 Furthermore, night, Sunday, and holiday work will be required if necessary to
complete the contract work.15 The school will be built within one hundred feet of
Plaintiffs’ homes. 16 Thus, Plaintiffs assert that the noise and activity of the construction
process will interfere with the quiet enjoyment of their homes as well.17
11
Memorandum in Support of Motion for Preliminary Injunction at 9.
12
Plaintiff Exhibit 8.
13
Plaintiff Exhibit 9.
14
Plaintiff Exhibit 5.
15
Id.
16
See Plaintiff Exhibit 6.
17
Id.
5
Plaintiffs also express concern regarding the long-term impact of West Towson
Elementary School on their residences. Plaintiffs Root reside at 1109 Boyce Avenue,
across the street from the proposed elementary school.18 Plaintiffs Root assert that the
proposed construction will substantially increase the impervious surfaces existing on the
site, which will incidentally result in an increase in sediment and water emptying into a
pond located on the property of Plaintiffs Root.19 Plaintiffs Root aver that the increase in
sediment and water will have a detrimental effect on the value of his residence.20
Plaintiffs Vail also assert that the completed school will have a detrimental effect
on the value of the property due to the following: 1) the school building will be 45 feet
from the Vail property; 2) a three story brick wall will face the Vails’ backyard; 3) the
service road and service parking will be eighty-two feet from the Vail property; 4) the
dumpster will be located 120 feet from the Vail property; 5) a 100 KW generator, propane
tank, and transformer will be 50 feet from the Vail property; 6) the plans do not provide
for a blast wall between the propane tank and the Vail property; 7) the air handling and
chiller equipment will be placed on the roof of the western edge of the building.21
Plaintiffs Polins are also concerned about a decrease in the value of their
residence. The plan provides that a parking lot will be built in the area that is currently
occupied by an athletic field. Christine Dahdah, the Polins’ listing agent, asserts that the
proposed parking lot and associated lighting, as well as the construction entrance and
access road, will have a detrimental effect on the value of the Polins property.22
18
Plaintiff Exhibit 7.
19
Id.
20
Id.
21
Id.
22
Id.
6
First, Defendant implicitly argues that it is conferred the responsibility of maintaining “a
education and equal educational opportunity for all children.”23 A temporary injunction
will prevent Defendant from fulfilling its function of ensuring that the students of
Defendant asserts that a delay would result in monetary losses due to delay penalties and
The Court has reviewed the pleadings and exhibits filed by the parties, and finds
that both parties have failed to establish actual or imminent irreparable harm or
inconvenience. Plaintiffs’ first contention regarding the deprivation of the right to have
an opportunity to be heard identifies an important principle, but any injury arising from
the contravention of such principle during the interim period is merely speculative.
Plaintiffs submitted numerous affidavits to support the assertion that Plaintiffs will suffer
injury if the construction proceeds. The Court is not persuaded by the affidavits of
Plaintiffs. Additional evidence might have assisted the Court in its determination of
hardship; however, Plaintiffs did not offer such evidence. Therefore, the Court holds that,
based upon the available evidence, the nature and extent of the harm that Plaintiffs
contend would arise during the interim period in the absence of injunctive relief is
speculative.
Similarly, Defendant failed to corroborate its claims that it would suffer hardship
if the Court granted a preliminary injunction. Defendant failed to establish an actual and
23
MD. CODE ANN., EDUC. §4-108 (LexisNexis 2009).
24
See Defendant’s Memorandum in Opposition to Motion for Preliminary Injunction at 16.
25
Id. at 17.
7
Therefore, the Court holds that the parties failed to provide sufficient evidence with
which the Court can determine the balance of hardship. As such, the Court holds that
Plaintiffs failed to establish that the balance of hardship weighs in their favor. Since the
Court holds that Plaintiffs failed to satisfy their burden of establishing inconvenience and
irreparable harm, the Court need not consider the remaining factors.
WHEREFORE, it is this _____ day of June 2009, by the Circuit Court for
Baltimore County,
_____________________________
Judge Michael J. Finifter