United States District Court, D. Maryland
OT, LLC, et al. Plaintiffs,
HARFORD COUNTY, MARYLAND, et al., Defendants.
L. Russell, III United States District Judge.
MATTER is before the Court on Plaintiffs OT, LLC
(“OT”), Gemcraft Homes, Inc.
(“Gemcraft”), Shades and Springs, Inc.
(“S&S”), and Ajaz Khan’s Motion for
Partial Summary Judgment and Request for Hearing
(“Plaintiffs’ Motion”) (ECF No. 196) and
Defendants Harford County, Maryland (the
“County”), County Executive Barry Glassman,
County Director of Administration Billy Boniface, County
Attorney Melissa Lambert, and County Director of Public Works
Joseph J. Siemek’s (collectively, the “County
Defendants”) Motion for Summary Judgment and Opposition
to Plaintiffs’ Motion for Partial Summary Judgment
(“County Defendants’ Motion”) (ECF No.
200). The Motions are ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md.
2018). For the reasons outlined below, the Court will deny
Plaintiffs’ Motion and grant in part and deny in part
County Defendants’ Motion.
center of this dispute is Old Trails Subdivision, a
residential subdivision in Harford County, Maryland
(“Old Trails” or the “Property”).
Although this litigation primarily involves religious
discrimination that allegedly took place after OT acquired
Old Trails in 2016, the Court’s inquiry depends in part
on certain facts arising prior to that time. As such, the
Court provides a brief history of the Property below.
Initial Development of the Property
2005, Old Trails Partnership, LLC (“OTP”), the
original owner of Old Trails, sought to develop Old Trails
into townhomes with Tousa Homes, Inc. (“Tousa”)
as its partner. To do so, OTP entered into a Storm Water
Management Maintenance Agreement and a Subdivision Agreement
with the County. (Stipulation of Facts [“Stip.”]
at 1, ECF No. 133-1). The County approved the Storm Water
Management (“SWM”) plan in September 2005, and
renewed its approval in March of the following year.
(Id.). In 2006, OTP, Tousa, and Harford County
entered into a Public Works/Maintenance Agreement for Roads
and a Public Works Agreement for Sidewalks (collectively, the
“PWAs”) and a Public Works On-Site Utility
Agreement and a Public Works Off-Site Utility and Recoupment
Agreement (collectively, the “PWUAs”).
(Id. at 1–2). In connection with the PWAs,
PWUAs, and SWM plan, Tousa procured and posted bonds from
Fidelity and Deposit Company of Maryland
(“F&D”) to secure the required infrastructure
improvements. (Id. at 1).
2007 and 2008, Tousa built four townhomes on the Property and
sold them to individual homebuyers. (Id. at 1).
Prior to those sales, OTP and Tousa installed the base course
of asphalt on the road, storm drains, and water and sewer
infrastructure, including water and sewer mains and a pumping
station, and began grading and construction of the SWM
facilities. (See Ensor Dep. Jan. 9, 2019 at
79:13–85:15, ECF No. 200-15). OTP and Tousa did not,
however, install the sidewalks or road’s top coat,
complete the SWM facilities, or reach final acceptance of the
on-site water and sewer mains because that work would
typically be completed only after the houses were built.
completing the remaining work on Old Trails, Tousa filed for
bankruptcy in early 2008. (Stip. at 1). Later that year,
Senior Assistant County Attorney Margaret Hartka emailed Rose
Baker, a management assistant in the County’s
Department of Public Works (“DPW”), and other
County employees recounting a conversation Hartka had with
OTP’s counsel about Old Trails. (Defs.’ Mot.
Summ. J. & Opp’n Pls.’ Mot. Part. Summ. J.
[“Defs.’ Mot.”] Ex. 3 [“Hartka
Email”], ECF No. 200-5). Hartka explained that she told
OTP “the County would allow the existing bonds, issued
with Tousa as the principal, to remain in place and [would]
process the new SWM permit.” (Id.). Hartka
said she “warned” OTP, however, that “if
the premiums are not paid on the existing bonds and the
bonding company sends us a notice of default, we will claim
as much as we need to in order to safeguard the situation of
the four existing homes . . . but would let the remainder of
the bonds go and simply obtain new PWAs and new bonds from
any developer who took over the project.”
2008 and 2016, OTP engaged in limited development-related
activities relating to Old Trails, including submitting the
SWM plan for reapproval and applying for new SWM permits in
2008, 2012, and 2015. (Defs.’ Mot. Ex. 15 [“SWM
Plan”], ECF No. 200-17).
OT’s Purchase of the Property
March 2016, William Luther, Gemcraft’s president,
expressed interest in purchasing Old Trails from OTP.
(Defs.’ Mot. Ex. 16 [“Mar. 14, 2016 Dale Hevesy
Email”], ECF No. 196-18). The next month, one of
Luther’s business associates informed Luther that the
SWM plans may need to be redesigned and reapproved in the
event construction was not complete by May 2017.
(Defs.’ Mot. Ex. 18 [“April 5, 2016 Dennis
Reimann Email”] at 1, ECF No. 200-20; see also
Luther Dep. Jan. 11, 2019 at 27:14–35:15, ECF No.
200-19). On May 18, 2016, Luther executed a Letter of Intent
on behalf of Gemcraft, indicating that the “Buyer will
assume the Property ‘As-Is’ and will assume all
current and remaining developer obligations.”
(Defs.’ Mot. Ex. 20 [“Letter of Intent”] at
2, ECF No. 200-22).
entered into a Purchase and Sale Agreement (the
“Purchase Agreement”) with Gemcraft on August 17,
2016. (Stip. at 3). The Purchase Agreement provided that OTP
was not transferring “any development bonds . . . held
by or posted with any Governmental Authority . . . or other
third party with respect to any improvement, subdivision or
development obligations concerning [Old Trails].”
(Defs.’ Mot. Ex. 22 [“Purchase Agreement”]
§ 1(e), ECF No. 200-24). The Purchase Agreement also
released OTP from all responsibility for complying with or
satisfying any governmental conditions of approval or
requirements that remain unsatisfied with respect to the
Property. (Purchase Agreement § 23(D)). Further, the
Purchase Agreement acknowledged “that if the
development work approved under the current construction
drawings for the Property has not been completed on or prior
to May 4, 2017 then the remaining undeveloped portion of the
Property will be subject to the requirements set forth in the
current storm water management regulations.” (Purchase
Agreement § 11.2).
October 2016, community members began expressing concerns
about the sale and proposed development of the Property. On
October 4, 2016, a community advisory board member notified
former County Councilman Dion Guthrie about “news that
Old Trails will be sold on October 18th [to] a Muslim Group[,
]” to which Guthrie replied, “Get the Councilman
to put in [an] amendment to tighten it up.”
(Pls.’ Mot. Part. Summ. J. & Req. Hear.
[“Pls.’ Mot.”] Ex. 23 [“Guthrie
Email”], ECF No. 196-25). On October 5, 2016, Steven
Weaver, who lived near Old Trails, contacted the office of
then-Councilman Mike Perrone, Jr. “to report a possible
suspicious situation” about Old Trails after
unsuccessfully attempting to report his concerns to the
Department of Homeland Security. (Pls.’ Mot. Ex. 20
[“Oct 5, 2016 Sherriff’s Department
Email”], ECF No. 196-22). Weaver also spoke directly
with Glassman about the issue over the phone. (See
Pls.’ Mot. Ex. 22 [“Killian-Glassman
Email”], ECF No. 196-24).
in October 2016, Gemcraft was in frequent contact with the
County about acquiring permits for the Property. In
mid-October 2016, DPW informed Gemcraft that “there are
currently bonds for sediment control and stormwater which
will need to be replaced” and, as a result, the County
“would like to wait until the plans are approved
because the bonding amounts will likely need to be
adjusted.” (Defs.’ Mot. Ex. 34 [“Oct. 18,
2016 Email”], ECF No. 200-36). Nonetheless, the County
Department of Planning and Zoning (“DPZ”) issued
five building permits to Gemcraft on November 16, 2016.
(Stip. at 3–4). Several months later, DPW requested
that Gemcraft submit a “new set of plans” for six
storm water permits and the grading permit, noting that the
permits were set to expire on June 24, 2017 and July 16,
2017, respectively. (Defs.’ Mot. Ex. 35 [“Mar.
29, 2017 Email”], ECF No. 200-37).
April 5, 2017, OT entered into an Option Agreement with
S&S, a non-profit organization associated with the
Ahmadiyya Movement in Islam, Inc., USA
(“AMCUSA”). (Stip. at 4). The Option Agreement
permitted S&S to purchase as many as forty-five lots in
the Old Trails Subdivision. (June 4, 2018 Hearing Transcript
[“Tr. I”] at 65, ECF No. 128). The Option
Agreement also obligated OT to seek approval for the
construction of a community center on the Property that could
be used by residents of Old Trails as a gathering place for
prayer and other activities. (Id.). To celebrate the
Option Agreement, S&S and Gemcraft held a groundbreaking
ceremony at the Property on April 22, 2017. (Id. at
108–09). After the ceremony, AMCUSA posted to its
website photographs depicting Ahmadi men dressed in
culturally traditional attire praying over the site.
(Id.; Pls.’ Mot. Ex. 18 [“Photos of
Groundbreaking Ceremony”], ECF No. 196-20).
awarded Gemcraft a grading permit for the Property on May 9,
2017. (Defs.’ Mot. Ex. 39 [“Grading
Permit”], ECF No. 200-41). DPZ then issued four
building permits to Gemcraft on May 10, 2017, and an
additional four permits on May 11, 2017. (Stip. at
4–5). On May 12, 2017, Baker, the DPW assistant,
emailed Gemcraft to explain that, although the County had
“recently issued a builder phase grading permit . . .
[and] approved several building permits” for the
Property, “the storm water permits [and] public works
agreements (currently under Old Trail Partnership LLC [and]
Tousa Homes Inc) will also need to be permitted [and] bonded
under OT LLC.” (Defs.’ Mot. Ex. 40 [“May
12, 2017 Baker-Luther Email”] at 2, ECF No. 200-42).
Further, Baker cautioned Gemcraft that “the County will
no longer approve any future building permits until this is
resolved.” (Id.). Despite this warning, DPZ
issued one additional building permit to Gemcraft on May 24,
2017. (Stip. at 5).
June and August 2017, County employees communicated
internally and with OT and Gemcraft about permitting
requirements for Old Trails. On July 10, 2017, Tina Rawl, the
permits review supervisor in DPW’s Division of Water
and Sewer, informed a colleague that she could not sign off
on a water and sewer hook-up worksheet for the lots on the
Property that the County had permitted on November 16, 2016
because DPW is “requiring the developer to enter into a
new PWA and post new bonds . . . .” (Defs.’ Mot.
Ex. 42 [“July 10, 2017 Rawl Email”], ECF No.
200-44). Rawl also expressed her belief that “we need
to require a new PWUA and new bonds as well.”
17, 2017, upon learning that Gemcraft had submitted five new
building permits, Rawl instructed several employees who had
been reviewing permit applications for the Property that
“until the bonds are reposted and a new PWUA is
executed[, ] we should not be approving building
permits.” (Defs.’ Mot. Ex. 43 [“July 17,
2017 Rawl Email”], ECF No. 200-45). Later that day,
Rawl notified Luther of the same: Gemcraft would need to
submit a new PWUA and replacement bond for the water and
sewer utilities in order for DPW to approve any future
permits. (Pls.’ Mot. Ex. 27 [“July 17, 2017
Rawl-Luther Email”], ECF No. 196-29; Defs.’ Mot.
Ex. 44, ECF No. 200-46). Then, on July 18, 2017, following up
on her May 12, 2017 email, Baker informed Luther that OT
needed to renew and bond the storm water permits under
OT’s name, update the SWM plans, and reassign and bond
the PWAs for roads and sidewalks to OT. (Pls.’ Mot. Ex.
28 [“July 18, 2017 Baker-Luther Email”], ECF No.
196-30; Defs.’ Mot. Ex. 45 [“July 18, 2017
Luther-Baker Email”], ECF No. 200-47). Luther replied
to Rawl and Baker with similar messages, explaining that
“Old Trails is a community of finished lots, completed
and bonded by another developer” and that
Luther’s engineer would be in contact “to get an
understanding as to what you are requesting.”
(Defs.’ Mot. Ex. 46 [“July 18, 2017 Luther-Rawl
Email”], ECF No. 200-48; July 18, 2017 Luther-Baker
Email at 1).
19, 2017, Rawl forwarded the email chain with Luther to
Siemek, Hartka, and two senior employees of DPW’s Water
and Sewer Division, writing that she “was following the
procedure we/County has required on other developments
[where] the original developer has abandoned the
project” and listing two examples. (Defs.’ Mot.
Ex. 47 [“July 19, 2017 Rawl Email”], ECF No.
200-49). In her email, Rawl also flagged the portion of the
Purchase Agreement providing that OT “hereby assumes
all of the obligations of [OTP] first accruing after the date
of this Agreement” including “[a]ll rights and
appurtenances[, ]” explaining that “[water and
sewer] is often referred to in this manner.”
(Id.). Rawl followed up with Luther on July 20,
2017, offering to discuss the issue at any time, to which
Luther responded that “a meeting with Billy Boniface
will be necessary.” (Defs.’ Mot. Ex. 48
[“July 20, 2017 Luther-Rawl Email”], ECF No.
Plaintiffs attempted to obtain permits from the County,
residents from neighboring communities continued to oppose
the Old Trails project. From around June 20, 2017 to July 4,
2017, Weaver made several calls inviting Glassman, Boniface,
and other County officials to attend a public meeting with
Gemcraft set for July 10, 2017 to address the
community’s concerns about the Property. (See
Pls.’ Mot. Ex. 24 [“July 3, 2017 Killian-Boniface
Email”] at 2, ECF No. 196-26; Pls.’ Mot. Ex. 25
[“July 20, 2017 Killian Email”] at 2, ECF No.
196-27). Around the same time, local real estate agent Gina
Pimentel contacted County officials about her concerns and
shared inflammatory information about the Property on her
social media pages. (See June 5, 2018 Hearing
Transcript [“Tr. II”] at 82–159, ECF No.
131). Additionally, in July 2017, after receiving several
e-mails and phone calls about Old Trails from constituents,
Defendant Delegate Patrick L. McDonough (“Del.
McDonough”) had a private conversation with Glassman in
which he told Glassman to “get your County Attorney
[Lambert] to investigate this. . . and do not issue any
permits.” (See Preliminary Injunction Hearing
Ex. 163 [“Audio Recording”] at 48:52; Tr. II at
Boniface, Siemek, and Hartka met privately on August 2, 2017,
to discuss the Property. (See Pls.’ Mot. Ex.
29 [“Aug. 2, 2017 Siemek-Lambert-Hartka Email”],
ECF No. 196-29). On August 3, 2017, Siemek sent an email to
Boniface, Lambert, and Hartka, stating, “[p]er our
meeting, here are the general steps required in the various
areas of DPW to be able to approve building permits in a
development that is taken over by a new owner.”
(Defs.’ Mot. Ex. 49 [“Aug. 3, 2017 Siemek
Email”], ECF No. 200-51). Siemek’s email also
referenced the requirement that “[i]f the SWM
facilities on the site were not constructed and certified to
be as-built by May 4, 2017, new SWM design, calculations and
plans will need to be submitted in compliance with the
current MDE criteria.” (Id. at 2).
August 14, 2017, at Plaintiffs’ request, Lambert,
Boniface, and Siemek met with Luther and counsel for OT,
Gemcraft, and S&S to discuss the County’s refusal
to issue more building permits. (Stip. at 5; Tr. II at 56).
Boniface stated during this meeting that “[w]e have to
cross our t’s and dot our i’s here because of the
mosque issue” and the “greater scrutiny over what
we are doing with this project.” (June 7, 2017 Hearing
Transcript [“Tr. IV”] at 99, ECF No. 130).
Additionally, Lambert told Luther that Gemcraft would need to
post new bonds for the project because Lambert could not find
Tousa’s original bonds or, alternatively, the bonds
were expired or canceled. (Tr. I at 123; Tr. II at 58; June
6, 2017 Transcript [“Tr. III”] at 206–07,
ECF No. 129). In response, Luther explained that he had
copies of the bonds and offered to send them to Lambert. (Tr.
I at 124). Following the meeting, counsel for OT, Gemcraft,
and S&S sent Lambert a disc containing copies of the
bonds and followed up with a letter explaining that the bonds
were still in place. (Pls.’ Mot. Ex. 36 [“Aug.
16, 2017 Jay Young Ltr.”], ECF No. 196-38; Pls.’
Mot. Ex. 37 [“Aug. 23, 2017 Jeffrey Scherr
Ltr.”], ECF No. 196-39).
the August 14, 2017 meeting, County employees attempted to
collect additional information and documentation relating to
the existing bonds. Hartka emailed Baker asking for the bonds
on August 15, 2017. (Tr. III at 123–24). The following
day, an administrative assistant from F&D provided the
County with a printout entitled “Agency Bill Premium
Advice, ” purporting to show that the bonds had been
canceled. (Pls.’ Mot. Ex. 40 [“Aug. 16, 2017
F&D Email”], ECF No. 196-42). When Lambert and
Boniface met again with Luther and counsel for OT, Gemcraft,
and S&S on August 28, 2017, Lambert presented the
printout from F&D and stated that the previous bonds
“aren’t any good.” (Tr. I at 126). Lambert
later admitted that the printouts did not appear to be
cancellation notices. (Tr. III at 213).
and County Defendants also continued to disagree about the
County’s permitting requirements after the August 14,
2017 meeting. On August 15, 2017, Rawl emailed Luther a draft
of the PWUA for the Property, asking him to review and
approve the document. (Defs.’ Mot. Ex. 51 [“Aug.
15, 2017 Rawl-Luther Email”], ECF No. 200-53). On
August 16, 2017, Siemek, who had been copied on Rawl’s
email from the previous day, warned Rawl to “expect
some pushback like you did before.” (Defs.’ Mot.
Ex. 52 [“Aug. 15, 2017 Siemek-Rawl Email”], ECF
No. 200-54). Later that day, Luther replied to Rawl, writing:
“I had a meeting with Billy Boniface and Joe Siemek on
Monday 8/14 to resolve these issues. You have a PWUA and a
bond posted on this job with the developer. Was this email
generated before the meeting or as a result of the
meeting?” (Defs.’ Mot. Ex. 53 [“Aug. 16,
2017 Luther-Rawl Email”], ECF No. 200-55). Also on
August 16, 2017, Baker forwarded Siemek the 2008 email from
Hartka in which Hartka explained that the County would
“obtain new PWAs and new bonds from any developer who
took over the project.” (Defs.’ Mot. Ex. 54
[“Aug. 16, 2017 Baker-Siemek Email”] at 2, ECF
No. 200-56). Baker explained to Siemek, “[i]t was my
understanding that if a new Developer were to take over the
project, they would need to update all of the plans, permits
& bonds in the new Developer name.” (Id.
September 5, 2017, Lambert sent a letter to counsel for OT
and Gemcraft setting forth “a list of the steps
required for the Old Trails property to obtain building
permits for additional lots.” (Defs.’ Mot. Ex. 55
[“Sept. 5, 2017 Lambert Ltr.”] at 1, ECF No.
200-57). The letter instructed OT that it needed to submit
new PWAs and PWUAs, update the SWM plan to comply with
current stormwater management regulations, and obtain new
bonds for the PWAs, PWUAs, and SWM permits. (Id.).
The letter stated that “[u]pon verification by the
County of these finalized documents, building permits for
additional lots may be obtained.” (Id.). To
date, OT and Gemcraft have not submitted new PWAs, PWUAs, SWM
plan, bonds, or any other documents the County requested in
the September 5, 2017 letter.
Approval of ...