Howard County officials are considering invoking the power of eminent domain to seize private land in Ellicott City on behalf of a landowner and private developer to right an error they say was committed 35 years ago.

However, County Council Chairwoman Courtney Watson, and the residents whose land the county is eyeing, said the use of eminent domain in the situation would constitute an abuse of the county's power to take land, which can be exercised only for public, and not private, uses.

County Executive Kenneth Ulman said that he believes the use of eminent domain in the case would be warranted because the land is needed for a public purpose. However, he added that he believes that the owners will agree to sell the land to the developer and that the county will not, in the end, have to exercise its power of eminent domain.

"The last thing I want to do is use eminent domain," Ulman said. "I don't think we'll ever get to that point."

The conflict can be traced to a land recordation mistake committed more than 30 years ago that has now forced the county to consider putting a sewer line through private land -- and, if necessary, seizing that private land -- in order to fulfill its responsibility to provide public utilities to an Ellicott City couple whose property has been unfairly blocked from receiving sewer service due to the error, officials said this week.

After an article about the county's consideration of eminent domain in the case appeared in this newspaper last week, county officials contacted the paper to point out that the 35-year old recordation mistake was among the county's key reasons in pursuing the easement.

In 1973, Ellicott City developer Frank Lancelotta set aside a 35-foot wide easement that could be used to provide a sewer line to property that is owned by Georgia and Paul Miller, county government spokesman Kevin Enright said this week. However, the deed of easement was never recorded in the county's land records.

The original easement was intended to run through a portion of the property which is now owned by Sanford Berman, said James Irvin, Howard's Public Works director, adding that the mistake might have been made by a county clerk or the developer's agent.

Two sewer locations possible

The new sewer line would serve a 4-acre property owned by the Millers.

Developer Ron Carter hopes to buy the Millers' land and has won preliminary approval from the county to build six single-family houses on it. Both Carter and county officials say they would prefer it if the houses were served by the public sewer, as opposed to septic systems.

Officials are considering two locations for the sewer line: a quarter-acre owned by the Spring Ridge Homeowner's Association, or the parcel on which Berman lives.

Officials have said they would consider using eminent domain to condemn the land if sales negotiations between Carter and the landowners fail. The constitutional right of eminent domain allows a government to condemn private land for public uses, as long as it pays fair market value for the land.

As part of his proposed capital budget for fiscal 2009, Ulman has proposed spending $40,000 to buy the property for the line, either through a settlement or the use of eminent domain, Irvin said. Carter would reimburse the county for the cost of acquiring the land.

That request must be approved by the County Council, which is set to vote on Ulman's capital budget proposal May 22.

Sides not close to agreement

The Spring Ridge open space would be the most logical place for the easement, since it would have the least impact on existing houses, Irvin said.

Had the 1973 mistake been discovered earlier, the county could have required an easement leading to the Millers' land in the development plans for the Spring Ridge community, which was built in the 1990s, Enright added.

"We firmly believe that the Millers -- who have been paying ... taxes for sewer services they have not been getting -- own property that was intended to benefit from an easement providing sewer service," he said.

Monica Machovec, president of the Spring Ridge Homeowner's Association, said she believes the county's involvement in the matter is premature because Carter has not made an adequate effort to negotiate with her group.

She also believes that the county would be misusing eminent domain in the case because construction of the sewer line would benefit Carter, as evidenced through the county's requirement that he repay it for the cost of buying the land, she said.

Watson, an Ellicott City Democrat, said she believes the county is unfairly targeting the Spring Ridge land to make up for a mistake made on a different parcel.

The threat of condemnation is putting undue stress on Spring Ridge residents, Watson said, adding that Ulman plugged the $40,000 project into his capital budget request prematurely, before the developer attempted negotiations with residents.

Carter said he has offered the homeowner's association $10,000 and agreed to plant elsewhere on the property two trees to replace each one that would be cut down for the sewer line. He is currently weighing a counter-offer from the association, he said.

Berman was unable to be reached for comment.

However, he testified at a Jan. 8 meeting of the county Board of Public Works that he was concerned that the sewer line excavation would be close to his home and damage the environment.

The Millers declined comment on the matter.

In 2005, the County Council passed a resolution -- introduced by then-councilman Ulman -- pledging to "limit the exercise of the power of eminent domain so that the power is used only for public purposes and not for private economic development."

Ulman this week said he stands by that pledge and that he is "personally troubled" by the original recordation mistake.

"We're trying to right a mistake that never should have happened," he said.

E-mail Jennifer Broadwater at jbroadwater@patuxent.com.

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