SOPHIA GERMANIDES DRYER,* et al., * Plaintiffs * v.

* BOARD OF EDUCATION OF BALTIMORE COUNTY Defendant * * * * * * * * *

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY Case No.: 03-C-09-004611

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MEMORANDUM OPINION AND ORDER OF COURT This matter came before the Court on May 21, 2009 on Plaintiffs’ Motion for Preliminary Injunction, arising out of a dispute between Plaintiffs, Sophia Germanides 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 In March 2008, in response to overcrowding in Towson area elementary schools, 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 be situated within one hundred feet of the Plaintiffs’ residences.
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The Ridge Ruxton School currently serves special education students.

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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 proposed school will result in a diminution in value of Plaintiffs’ residences.2 Plaintiffs assert that, if Defendant had complied with applicable law, the proposal would have been denied or approved only following substantial modification and limitations to the proposed construction. As such, Plaintiffs seek a declaratory judgment that Defendant 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 desist from proceeding with the construction. 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. On May 6, 2009, Defendant filed a Memorandum in Opposition to Motion for Preliminary Injunction. On May 19, 2009, Plaintiffs filed a Reply in Support of Motion for Preliminary Injunction.

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Plaintiffs also argue the proposed school will contribute to environmental degradation.

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II. Analysis Plaintiffs seek a preliminary injunction to enjoin Defendant from all actions related to the construction of West Towson Elementary School. The Court considers four factors in determining whether to grant a preliminary injunction: 1) the ‘balance of convenience’ determined by whether greater injury would be done to the defendant by granting the injunction than would result by its refusal; 2) whether the plaintiff will suffer irreparable injury unless the injunction is granted; 3) the likelihood that the plaintiff will succeed on the merits; and 4) the public interest.3 Plaintiffs have the burden of establishing that all four factors weigh in Plaintiffs’ favor, and Plaintiffs’ failure to do so precludes the entry of a preliminary injunction.4 If the facts alleged in a motion for preliminary injunctive relief, or established during an 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 In Lerner v. Lerner, the Court of Appeals of Maryland elucidated the standard applicable to preliminary injunction proceedings.6 The Court clarified that irreparable 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
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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.”).

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considering the likelihood of success on the merits, the initial determination in a preliminary injunction proceeding is the balancing of “the ‘likelihood’ of irreparable 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 an inconvenience analysis will often be subsumed by an analysis of irreparable harm. In the instant case, both parties argue that the balance of hardship weighs in their favor. Because this proceeding concerns a preliminary injunction, the Court’s

consideration of hardship is limited to hardship arising during the interim period between the present proceeding and the final injunctive proceeding. 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 construction constitutes a deprivation of Plaintiffs’ right to have the opportunity to address the impact of the construction. Plaintiffs assert that “[t]he Board’s failures have
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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.

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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 accommodated in the planning of this construction.”11 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 due to the proximity of the access road and their residences. According to Plaintiffs, the construction will persist for twelve to eighteen 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

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Memorandum in Support of Motion for Preliminary Injunction at 9. Plaintiff Exhibit 8. 13 Plaintiff Exhibit 9. 14 Plaintiff Exhibit 5. 15 Id. 16 See Plaintiff Exhibit 6. 17 Id.
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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 Defendant argues that it will be harmed by a temporary injunction in two ways.
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Plaintiff Exhibit 7. Id. 20 Id. 21 Id. 22 Id.

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First, Defendant implicitly argues that it is conferred the responsibility of maintaining “a reasonably uniform system of public education that is designed to provide quality 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 Baltimore County are provided the opportunity of a quality education.24 Second,

Defendant asserts that a delay would result in monetary losses due to delay penalties and an increase in the cost of construction.25 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 imminent threat of irreparable harm to Defendant, as opposed to the Towson community.
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MD. CODE ANN., EDUC. §4-108 (LexisNexis 2009). See Defendant’s Memorandum in Opposition to Motion for Preliminary Injunction at 16. 25 Id. at 17.

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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. III. Final Ruling WHEREFORE, it is this _____ day of June 2009, by the Circuit Court for Baltimore County, ORDERED that Plaintiffs’ Motion for Preliminary Injunction is hereby DENIED, and it is further, ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Motion for Preliminary Injunction is DENIED AS MOOT.

_____________________________ Judge Michael J. Finifter

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