Last Wednesday marked another bad day for the administration of Baltimore County Executive Johnny Olszewski.

The county’s Board of Appeals delivered a stunning rebuke to the administrative law judge that Olszewski promoted to be head of the Office of Administrative Hearings.

This comes just weeks after The Brew and Baltimore Sun reported that top Olszewski aides engineered a secret $83,675 payout to a firefighter with personal and business ties to the county executive.

Last year, Administrative Law Judge Maureen E. Murphy denied approval of Greenspring Manor, a plan for 61 upscale homes on 33 acres of undeveloped land on Joppa Road in Brooklandville. In April, she reversed that decision and approved the plan.

But on Wednesday, the board overturned her April decision and reinstated her original ruling.

Murphy’s denial in 2023 was based in part on her findings that, contrary to the determination by the county Department of Public Works and Transportation (DPWT), the public sewers serving the site of the proposed project were inadequate to safely convey sewage from existing development in the service area, let alone the waste produced by 61 more homes.

The project has been Exhibit A in the claim by environmental activists that the county continues to greenlight projects that lead to sanitary sewer overflows (SSOs) in the Jones Falls sewershed.

Such overflows impact the environment along the waterway’s course through Baltimore county and city, fouling the environment, backing up in basements and dumping finally into Baltimore Harbor and the Chesapeake Bay.

In its opinion, the board concluded that Murphy’s decision to reverse her own ruling “resulted from an unlawful procedure by the denial of due process and further, in light of the record as submitted, was unsupported by the evidence.”

Criticism of an administrative proceeding by an appellate tribunal doesn’t get much harsher than that, attacking both the fairness of the hearing and Murphy’s evaluation of the evidence.

It’s worth taking a look at what happened and why.

Developer Gets a Do-over

The Greenspring Manor project has been closely watched by its many opponents, a group that includes not only environmentalists and community organizations, but also the Baltimore County People’s Counsel.

For them, Murphy’s initial decision in 2023 to deny the project came as welcome validation.

But the developer, Atapco Properties, filed a motion on August 30, 2023 asking Murphy to reopen the hearing so that the company could call a “DPWT representative” to the stand to correct alleged “misunderstandings” by Murphy of internal DPWT emails and other documents that formed the basis of her original decision.

The representative was David Bayer, a DPWT engineer.

The developer’s counsel made no claim that Bayer was unavailable on the original hearing dates and could not have been called to testify then.

The motion was nothing more than a request for a do-over on presentation of the developer’s case. Here is how Peter Max Zimmerman, who at the time was People’s Counsel, described it:

“We cannot emphasize enough that the [development team’s] reconsideration motion effectively to call David Bayer is the epitome of a ‘sour grapes’ effort to reopen the case and take a bite at the apple which they didn’t want to touch in their main case or even in rebuttal. It is an injustice, untimely and unacceptable.”

Zimmerman died of cancer last month. He served as People’s Counsel for over 30 years. He knew what he was talking about and, if anything, understated the inappropriateness of the reconsideration.

The board, however, noted that county law establishes no criteria for evaluating a motion for reconsideration and held that Murphy acted within her discretion by granting the developer’s motion to reconsider her decision.

The lack of criteria is a problem the Baltimore County Council should fix immediately.

“Unsupported and erroneous”

Although it held that Murphy did not abuse her discretion by reopening the case to allow additional testimony, the board picked apart the manner in which she conducted the hearing in no uncertain terms.

First it took aim at a letter from County Attorney James Benjamin, Jr. that Murphy admitted into evidence on her own motion.

The letter attempted to put to rest concerns raised during the original hearing about whether Johns Hopkins University was obligated to complete improvements to segments of the “sewer path” serving the site of the proposed project as part of the construction of its medical facilities at Green Spring Station.

The board stated that the letter had “no probative value” and that relying on its contents as evidence offering assurances that the improvements would be completed was “unsupported, unproven and erroneous.”

I’m surprised that an experienced  administrative law judge like Murphy believed that the letter could be used as evidence of the truth of its contents.

In my opinion, the letter from Benjamin was a desperate attempt to patch a hole in the developer’s case.

The board ruled that the judge denied opponents the fundamental fairness required by due process.

The board also held that Murphy erred by refusing to allow lawyers for the opponents of the project to cross-examine Bayer on the county’s triennial update of its Water Supply and Sewerage (W&S) Plan.

More serious was the judge’s refusal to allow the opponents to call their own witnesses to testify on the alleged “misunderstandings” at issue.

The board ruled that the procedural rule governing re-hearings anticipates that “each side” be given the opportunity to address the issues being reconsidered and that, by refusing to allow the opponents to present witnesses or evidence in rebuttal of Bayer’s testimony, Murphy denied them the “fundamental fairness required by due process.”

I have no idea why Murphy thought it was proper to deny opponents the right to call witnesses to rebut Bayer’s testimony, especially after she, in effect, called her own “witness” – Benjamin’s letter – to support it.

Last but certainly not least, the board discredited the evidence that Murphy relied on in reversing her original decision.

It stated that Bayer’s testimony was “sometimes vague and inconsistent with prior documentary evidence that he authored or approved,” and it did not refute the need for sewer line improvements before the development plan could be approved.

In other words, the board held that even though Murphy improperly protected Bayer’s testimony from being rebutted by the testimony of witnesses and evidence introduced by the opponents, his testimony was not enough for Murphy to overturn her original decision.

Murphy has been an administrative law judge (ALJ) for 14 years and is a former member of the Board of Appeals.

How could she get things so wrong?

I don’t know the answer to that question, but do I know that her decisions on Greenspring Manor had ramifications that went well beyond their impact on a single residential development.

Systematically Wrong

Until recently, the activists’ claim that the county is violating state and federal law – together with the terms of a 2005 Consent Decree between the county and the Maryland Department of the Environment (MDE) and Environmental Protection Agency (EPA) – fell on deaf ears.

In 2019, another ALJ, now retired, denied approval of the Bluestem Village housing project near Lake Roland because of the inadequacy of the sewerage.

His decision, rejecting DPWT’s findings to the contrary, was upheld by the Board of Appeals.

The Greenspring Manor decision in July 2023 gave activists the leverage they did not have before – that a series of decisions in which DPWT’s determinations of the adequacy of public sewerage could not survive scrutiny when the county’s own hearing officers weighed those determinations against the testimony of outside experts.

There’s something wrong with the way DPWT assesses the adequacy of sewers to support new development.

The decisions all but proved the activists’ claim that something is systematically wrong with the way DPWT assesses the adequacy of county sewers to support new development.

A proposal by the Green Towson Alliance increased the stakes.

Last September, the alliance issued a statement that cited the Greenspring Manor and Bluestem Village decisions in seeking an amendment to the county’s state-mandated W&S plan.

The amendment would require review by an independent engineering consultant of DPWT’s process for determining the adequacy of public sewerage to support new development.

The group’s proposal, supported by Blue Water Baltimore, is now in the hands of MDE as part of its triennial review of the county’s W&S plan. MDE has the power to order the amendment.

The proposal raised the stakes not only for the credibility of DPWT and the Olszewski administration, but also for the fate of future development proposals in the Jones Falls and other sewersheds where DPWT may be misrepresenting the capacity of the county’s aging sewer pipes to safely convey additional sewage.

And if problems with the sewer pipes are being obscured by DPWT, so too is the cost to taxpayers of upgrading them.

Two weeks after the Greater Towson Alliance issued its statement, Murphy agreed to reconsider her decision denying the Greenspring Manor housing plan.

Troubling Rebuke

DPWT has made it abundantly clear for years that it doesn’t want anyone looking too closely at its decisionmaking process when it comes to the adequacy of public sewers, fighting requests for information at every turn.

Murphy’s decision reversing herself and approving the Greenspring Manor plan took a considerable amount of the steam out of the activists’ efforts to get MDE to intervene – at least until now when the Board of Appeals reinstated her original decision.

It’s abundantly clear that the need for accountability in county government extends to the Office of Administrative Hearings.

The need for accountability extends to the Office of Administrative Hearings.

The Greenspring Manor case is a high-profile and important case.

The justifiable rebuke by the Board of Appeals of the manner in which the reconsideration hearing was conducted is troubling – a term I use a lot when referring to the Baltimore County government.

As in other cases in which development plans are contested, the case pitted David against Goliath, with residents on one side and the developer and the county on the other.

Especially given the mismatch in resources, with residents compelled to pay for lawyers and expert witnesses, it is imperative that residents are assured of a fair and impartial hearing before an ALJ. The board’s opinion in this case does not offer such assurance.

It is incumbent on both the County Executive and County Council to take the action necessary to reduce the chances of what happened in this case happening again.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and on X @dplymyer.