BREAKING ELECTION UPDATE: Friday Unofficial Results–Vaillancourt Over Ryan by 66; Pretlow Bests Cecil by 170

Last Updated 06/12/2020 02:32:06 PM In what is probably the last unofficial results for the primary election, in the District 5 Board of Elections race for the second spot in November, Cindy Vaillancourt has prevailed over Gene Ryan by 66 votes.

In the race for the second spot in the District 2 race, Larry Pretlow II has prevailed over James Cecil by 170 votes.

This image has an empty alt attribute; its file name is image-13.png

Official certification of the votes should occur Friday afternoon.

Last Updated 06/12/2020 02:48:46 PM The Board of Elections has posted checks for the winners.

Howard County Board of Elections Completes Canvass

The Howard County Board of Election Canvassers met remotely Friday morning June 11, 2020 and completed the canvass of the primary election ballots. The Board rejected nearly 700 ballots for a variety reasons. Sometimes it was a curiosity of what exactly the voter intended.

One voter was rejected for mailing two ballots–the email and vote by mail in the same envelope.

Nineteen were rejected for various problems with the oath. Most because the name did not match that of the voter or the signature on record. One person filed out the voter their own voter assistance form but the name did not match the name of the voter.

One person filed out the name of the voter as “Bernie Sanders.”

Another Democratic voter wrote “Donald Trump Make America Great Again” on a blank ballot.

Ten were rejected for not returning a ballot–including 6 that was just an empty envelope. One of these was an empty #10 envelope and not the pre-paid envelope.

One ballot was rejected because the voter signed with their Americanized name “Shirley” which was not in the registration for their name.

272 were rejected for no signature at all.

392 were rejected for being post marked after June 2.

On the other hand, the Board accepted a ballot where the voter hand wrote an oath on the back of a #10 envelope. The Board members gave credit to the voter for going to so much effort to write out the oath.

Kimco Reduces Albertson’s Investment

Kimco Realty Corp. will reduce its stake in grocer retailer Albertson’s next week. Among Albertson’s grocery chains are Howard County’s Safeway stores. After the sale to Apollo Global Management, Kimco will own 7.5% of Albertson’s down from its 9.29%.

Kimco states on its website that it “is one of North America’s largest publicly traded owners and Kimco Realty Corp. (NYSE: KIM) is a real estate investment trust (REIT) headquartered in Jericho, N.Y., that is one of North America’s largest publicly traded owners and operators of open-air, grocery-anchored shopping centers and mixed-used assets. As of March 31,2020, the company owned interests in 401 U.S. shopping centers and mixed-use assets comprising 70 million square feet of gross leasable space primarily concentrated in the top major metropolitan markets.”

In Howard County Kimco owns Columbia Crossing, Columbia Crossing II, Enchanted Forest Shopping Center, Long Gate Shopping Center, Snowden Square Shopping Center, and the Columbia Village Centers in Harper’s Choice, Hickory Ridge, Kings Contrivance, Dorsey’s Search, River Hill, and Wilde Lake.

BREAKING ELECTION UPDATE: Vaillancourt Leads by 50; Pretlow Over Cecil by 172

Last Updated 06/10/2020 06:16:05 PM The Howard County Board of Election continued its canvas of votes on Wednesday. The races for the second spots in the District 2 and 5 Board of Election have become more clear.

At the end of the day, Cindy Vaillancourt increased her lead over Gene Ryan to 50 votes. Vaillancourt picked up one provisional ballot; the remainder were Vote By Mail Ballots.

In the District 2 race, Larry Pretlow, II now leads James Cecil by 172 votes. Pretlow picked up a net of two provisional votes; Pretlow had 3 provisional ballots accepted to Cecil’s one. The other votes were Vote by Mail. Pretlow now leads Cecil by 1.2% in the percentage of votes cast in the District.

Former CD7 Republican Candidate Ray Bly Lost Case in Federal Court Against Howard County Court Officials

In the days leading up to the June 2 Primary, self-professed “Mentally Ill Child Abuser” Republican 7th Congressional District candidate Ray Bly quietly lost his lawsuit in the 4th Circuit Court of Appeals filed against the Circuit Court for Howard County, Circuit Clerk Wayne Robey, former Administrative Judge Lenore Gelfman, and unnamed Does “One or more individuals sued in his or her or their individual capacities, and in his or her or their respective capacities as state agents or actors directed or knowingly permitted to perpetrate acts and/or omissions knowingly and intentionally violative.”

The lawsuit relates to Bly’s apparent unresolved issues regarding his 1987 criminal convictions. The Appeals Court’s opinion was short and without elaboration: “We have reviewed the record and find no reversible error.”

Bly’s life issues are apparently discussed more in his “book.” The “book” is actually long pages of posts on his blog. For some reason, rather than editing his posts, he claims that his “book” was “hacked and much derogatory material has been added.”

BREAKING ELECTION UPDATE – Vaillancourt Gains 11 Vote Lead Over Ryan; Pretlow and Coleman Expand Leads

8:50 PM May 5, 2020 Howard County Primary Election Update

In the back and forth race for the second spot in the District 5 Board of Education race, Cindy Vaillancourt has pulled ahead of Gene Ryan by 11 votes-3610 to 3599. Both have 23.5% of the total vote. Should a free recount become an issue, it will need to be within 0.1% difference between Vaillancourt and Ryan–currently 7 votes.

In the race for the second spot in the District 2 Board of Education race, Larry Pretlow II has increased his lead over James Cecil to 138 votes.

Quincy Coleman has opened a nearly 3000 vote lead in the Democratic Primary for Circuit Court Judge over incumbent Judge John Kuchno.

This image has an empty alt attribute; its file name is image.png


Approximately $500,000 is available for other purposes if Howard County would follow the law and not provide parochial busing to ineligible schools. Council Chair Deb Jung publicly stated her commitment to fixing this in the FY21 HCPSS Budget. Councilmember Christiana Rigby is supportive of this too. Apparently, however County Solicitor Gary Kuc has inexplicably concluded that this is not the responsibility of the Council but rather the Board of Education. The County Code clearly gives the responsibility of the appropriation to the County Council.

The memo I submitted to the County Council with hyperlinks to background materials may be found here:


Testimony of Joel Hurewitz
May 18, 2020

CB33-2020 is well-intended, but poorly drafted legislation. Short-term protection in the pandemic emergency is appropriate. However, long-term application to an emergency that might last many months or even years is very problematic. In addition, it is not clear why the protections afforded many tenants in the CARES Act are not sufficient. As Peter Engel stated in his letter on CB33-2020: “property owners are subject to numerous local, state, and federal restrictions on the operation of housing. Some of these restrictions come from the sources used to buy or develop the property. Other new requirements are in the CARES Act. CB 33-2020 should be amended to ensure that such existing requirements take precedence in the event of conflicts. “ The conflicts alluded to by Engel also appear to include the Howard County Charter and even the Maryland Constitution.

Ambiguous Drafting Could be Interpreted to Apply to Short-Term and Event Rental Agreements

The clause on Page 2, Line 25 states that the section applies to “rented commercial space of all kinds.” Furthermore, Page 3, Line 7 prohibits the termination of a “lease or rental agreement.” Taken together these clauses could be interpreted to apply not only to hotels and storage facilities, but to event and meeting rentals at hotels or village and neighborhood centers, churches, volunteer fire departments, Recreation and Parks facilities, restaurants, bowling alleys, miniature golf or pools and would prohibit their termination during an emergency. This is particularly paradoxical because it is in fact the health emergency and the social distancing rules which are requiring the cancellation of events including those at Recreation and Parks facilities including many weddings at Belmont. An amendment is needed to make it clear that the bill does not apply to short-term rentals or to “rental agreements” for event or meeting spaces.

The Howard County Charter Prohibits Emergency Legislation from Creating a Vested Right or Interest

Section 209(d) of the Howard County Charter provides in part that emergency bills “shall not include any measure creating or abolishing any office; changing the compensation, term, or duty of any officer; granting any franchise or special privilege; or creating any vested right or interest.” (emphasis added). There appear to be scenarios where a vested right or interest is created in the tenant who is either on a month-to-month lease or for a lease which expires during the emergency.

Surprisingly, there do not appear to be court cases in Maryland interpreting similar emergency legislation clauses in other county charters, State law, or the Maryland Constitution. (There are even few cases interpreting provisions in other states. See Matthews v. Bailey, Governor, 131 S.W.2d 425 (Ark. 1939) However, the Maryland Court of Appeals has stated that

“The definition of “vested rights” is more tricky. A most natural definition of the term “vested” is “accrued” or, as dictionaries put it, “completed and consummated.” But in that sense, any claim or interest which has come into being and been perfected as “a right” would have to be said to be vested…. … Justice Holmes once remarked with reference to the problem of retroactivity that “perhaps the reasoning of the cases has not always been as sound as the instinct which directed the decisions,” and suggested that the criteria which really governed decisions are “the prevailing views of justice.” The problem is to comprehend what real considerations influence judgment in application of “the prevailing views of injustice.” ….

… It is impossible to discover the precise meaning of the term through which all of the decisions can be consistently explained. Most of the numerous attempts at definition are essentially circuitous in nature, as in the pronouncement that “a vested right, as that term is used in relation to constitutional guarantees, implies an interest which it is proper for the state to recognize and protect, and of which the individual may not be deprived arbitrarily without injustice.” Thus “vested right” means simply a right which under particular circumstances will be protected from legislative interference. Another definition notes that a vested right is an immediate right of present enjoyment or a present fixed right of future enjoyment. 2 id. §§ 41.05, 41.06, at 369-70, 379 (footnotes omitted). See Washington Nat’l Arena Ltd. Partnership v. Treasurer, 287 Md. 38, 46 n. 4, 410 A.2d 1060, 1065 n. 4 (“[I]t has long been recognized that the term `vested right’ is conclusory—a right is vested when it has been so far perfected that it cannot be taken away by statute.”) (quoting Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692, 696 (1960)), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980).

Langston v. Riffe, 754 A. 2d 389, 2000. CB33-2020 appears to create a fixed lease term for the duration of the emergency plus an additional three months. Thus, a tenant with a month-to-month or expired lease would by operation of law be given what amounts to an option to renew and would be entitled to a fixed lease or a vested right to occupy the premises. As the Courts have stated, this “is an immediate right of present enjoyment or a present fixed right of future enjoyment.”

The difficulty in interpreting whether there is a vested right for the tenant is complicated because the landlord also has a vested right to repossess the property. The Court of Appeals has stated that “Maryland’s Declaration of Rights and Constitution prohibit the retrospective reach of statutes that would have the effect of abrogating vested rights” Muskin v. Assessments, 30 A. 3d 962, (2011) (citing Dua v. Comcast Cable of Md. Inc., 370 Md. 604, 630 n. 9, 805 A.2d 1061, 1076 n. 9 (2002)).

The Muskin Court continued

Our holding in Dua applies completely to the questions presented in the present case. We said there that [i]t has been firmly settled by this Court’s opinions that the Constitution of Maryland prohibits legislation which retroactively abrogates vested rights. No matter how “rational” under particular circumstances, the State is constitutionally precluded from abolishing a vested property right or taking of a person’s property and giving it to someone else.

Id. To determine whether Chapter 290 is constitutional under Maryland law, we evaluate whether the statute purports to apply retrospectively and abrogates a vested right or takes property without just compensation. If a retrospectively-applied statute is found to abrogate vested rights or takes property without just compensation, it is irrelevant whether the reason for enacting the statute, its goals, or its regulatory scheme is “rational.”Id. (stating that the relevant standard for determining whether a retrospective statute is constitutional is “whether the vested rights are impaired and not whether the statute has a rational basis.” (emphasis in original)).

The Muskin Court dealt with legislation for ground rent leases considered the meaning of “vested rights:”

B. Vested Rights.

A ground rent lease creates a bundle of vested rights for the ground rent owner, a contractual right to receive ground rent payments and the reversionary interest to re-enter the property in the event of a default or if the leaseholder fails to renew. These two rights cannot be separated one from the other; together they are the essence of this unique property interest, and as such, vested rights analysis must consider them together. As pointed out by the SDAT, there is no Maryland case on point that has held that the rights created under a ground lease are vested rights. Courts have struggled with the difficulty of determining a precise definition of vested rights.

A vested right is “something more than a mere expectation based on the anticipated continuance of the existing law; it must have become a title, legal or equitable, to the present or future enjoyment of a property.…” Allstate Ins. Co. v. Kim, 376 Md. 276, 298, 829 A.2d 611, 623 (2003) (citing Godfrey v. State, 84 Wash.2d 959, 963, 530 P.2d 630, 632 (Wash.1975)(emphasis in the original)). The ground rent owner has a legal title that is vested and a firm expectation for the future enjoyment of ground rent payments. The right to re-enter the property or eject the leaseholder secure the ground rent owner’s future enjoyment of ground rental income. In Dua, we said that vested rights include “that which is regarded as a property right under Maryland property law.” 370 Md. at 631, 805 A.2d at 1077. There can be no reasonable doubt that the reversionary interest to real property and the contractual right to receive ground rent are vested rights under Maryland law. Heritage Realty, 252 Md. at 11, 248 A.2d at 904 (recognizing the importance of the reversionary interest, stating that “[t]he owner [of the reversionary interest] is entitled to receive fair market value on condemnation”). As such, our holding in Dua, that retrospective statutes may not abrogate vested property rights, leads us to the conclusion that the extinguishment and transfer provisions of Chapter 290 are unconstitutional.

Muskin. Note again how the Court stated that “Courts have struggled with the difficulty of determining a precise definition of vested rights.”

Similar to the right to re-enter with a ground rent, a landlord with a regular lease has a vested right to repossess the property at the termination of the lease. Maryland law provides that a landlord may give the tenant a Notice to Quit:

(b) Notice to quit. —

(1)(i)Where any tenancy is for any definite term or at will, and the landlord shall desire to repossess the property after the expiration of the term for which it was leased and shall give notice in writing one month before the expiration of the term or determination of the will to the tenant or to the person actually in possession of the property to remove from the property at the end of the term, and if the tenant or person in actual possession shall refuse to comply, the landlord may make complaint in writing to the District Court of the county where the property is located.

Md Real Property Code Ann § 8-402. By forcing the landlord to renew the lease would appear to deprive the landlord retrospectively of the statutorily vested right to repossess the property from the tenant.

Does § 8-402 of the Real Property Code Preempt Local Legislation?

In addition, it would appear that § 8-402 preempts local law regarding the notice to quit. This is particularly evident where there are specific provisions applicable to Baltimore City and Montgomery County. See § 8-402 (3)(ii) and (iii). Thus, if CB33-2020 is preempted, it cannot prohibit a landlord from repossessing the property pursuant to a notice to quit. Tangentially related is what happens where the owner is unable or even does not want to renew its Howard County residential rental license? The bill cannot be drafted to force a landlord to allow a tenant to remain in possession after the expiration of lease or rental agreement.

Amendment 1 – Exception for Commercial Tenants in Default at Time of the Emergency

The exception for tenants in default at the time of the emergency is declared only applies to commercial tenants. Thus, does the bill give an incentive to residential tenants who were already in default or encourage those not in default to go into default and remain in possession of the leased property for months or even years?

Amendment 3 – Bill Should Only Apply to the Current Pandemic Emergency

Had it been in effect for the Ellicott City flooding, CB33 would have applied to the Flood State of Emergency. It could potentially also apply to an emergency caused by fire, tornado, snowstorm or civil unrest. The bill makes no allowance for terminating a lease or rental agreement when the facility is inaccessible or has been destroyed in the emergency. Nor does the bill have an exception for a property which becomes uninhabitable during the pandemic due to storm damage or fire. To give rental relief when there is an emergency from a tornado or flooding for just a few days does not necessarily have a nexus to rentals especially throughout the whole County. As stated in Engel’s letter, the bill should only apply to the current pandemic emergency.

Emergencies unrelated to the pandemic would not necessarily affect the ability of tenants to pay their rent. Governor Hogan placed Maryland under a opioid state of emergency in 2017. In no way has this emergency affected most individuals financial situation and generally has become background noise as society and government continued to function until the COVID-19 state of emergency. More importantly, while Governor Hogan first declared the COVID-19 state of emergency on March 5, 2020 there was no practical effect on Maryland society until the Governor’s Order of March 12, 2020 Prohibiting Large Gatherings and Events and Closing Senior Centers. Therefore, it seems likely that an underlying state of emergency for the pandemic now in its third month will last throughout the remainder of 2020 and into 2021. If the emergency lasts for more than a year, it could prohibit rent increases or terminations well into or even beyond 2021. Thus, there is an incentive for tenants to just not pay and await the landlord’s lawsuit for damages.  

While Amendment 3 makes it clear that it only applies to the COVID-19 emergency, it also addresses a technicality that the Governor’s proclamation are for 30 days subject to renewal. It also clears up an interpretation of whether it is necessary for the emergency to be declared by both the Governor and County Executive. However, by not striking lines 22 and 23 there is an unclear reference to County Executive Orders without the antecedent provision.

Amendment 5 – Prohibiting Late Fees Might Be Unconstitutional Retrospective Legislation

Amendment 5 which prohibits late fees in existing leases and rental agreements would appear to deprive the landlords of their vested rights retrospectively as discussed above.


CB33-2020 needs to be amended and stripped-down to only those elements which afford protections to tenants. The ambiguous application to event and meetings rental agreements needs to be clarified. Those elements which are in conflict with the Charter, State law, or the Maryland Constitution need to be stricken.

Hogan Vetoes HB310/SB184 University of Maryland, Baltimore – Study on the Health Effects of Air Traffic Noise

As part of his veto of any legislation which created a new program or had a fiscal impact during the Pandemic, Governor Hogan vetoed HB310/SB184. “University of Maryland, Baltimore – Study on the Health Effects of Air Traffic Noise.” The legislation would have required “the University of Maryland, Baltimore to study the health effects of air traffic noise on communities near Baltimore-Washington International Thurgood Marshall Airport since the implementation of the Next Generation Air Transportation System; requiring the study to evaluate health outcomes and certain costs; requiring the Governor to provide in the 2022 budget at least $100,000 for the study.”

The Senate bill was sponsored by District 12 Senator Clarence Lam and was cosponsored by Howard County Senators Guy Guzzone and Katie Fry Hester. The House bill was sponsored by District 12 Delegate Terri Hill, and the cosponsors included Howard County Delegates Eric Ebersole, Jessica Feldmark, and Jen Terrasa.

HoCo Detention Center: No Inmates with COVID-19

Jack Kavanagh, Director of the Howard County Detention Center told the County Council that as of Saturday morning April 25, 2020 no staff or inmates at the Howard County Detention Center have tested positive for COVID-19. Kavanagh made his comments during a rare Saturday Council work session on capital projects at the detention center. Even rarer, the work session was held remotely and Kavanagh called in by phone.

However, Kavanagh added that one part-time evening shift nurse has tested positive for COVID-19. Video confirms that she wore her personal protective equipment the entire time and that she stayed in the medical suite. Thus, Kavanagh believes that there was only minimal contact with inmates or other staff.

Though Kavanagh complimented the inmates for their cooperation and social distancing for COVID-19, he told the Council that three inmates were on medical observation for drinking hand sanitizer. One drank nearly a whole bag, Kavanagh told the Council who expressed disappointment at hearing this news. The sanitizer is 70% alcohol. The inmates have told the staff that they sprinkle the hand sanitizer with salt to make it more drinkable.

Kavanagh also stated that staff are screened for COVID-19 and questioned on their travel history.