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Frederick County commissioners voted 2-1 Thursday to appeal a decision by the county Planning Commission that has delayed the permitting and design of a $500 million incinerator, but will revisit the issue Tuesday when a full board is present.

To meet a Nov. 13 deadline, commissioners voted Thursday to file an appeal with the Frederick County Circuit Court to overturn an Oct. 14 decision by the county's Planning Commission that has delayed the permitting process of the incinerator.

But commissioners will revisit that vote on Tuesday at the request of Commissioners President Jan H. Gardner (D), who was absent from Thursday's meeting along with Commissioner Charles A. Jenkins (R).

Both are expected to return on Tuesday, Gardner said Friday.

On Oct. 14, the Frederick County Planning Commission undertook a routine review of proposed changes to the county's Solid Waste Management Plan.

But in a surprise move, commission members ruled the changes — including the county's new recycling efforts and incinerator construction plans — were not consistent with the Solid Waste Management Plan or the county's comprehensive plan.

The comprehensive plan, which commissioners are updating, serves as a blueprint for growth, and provides information on development, land use, transportation patterns and water resources.

The Planning Commission ruled the view of the incinerator's smokestack and the incinerator's proximity to the Monocacy National Battlefield are not consistent with the comprehensive plan, which calls for the preservation of historic sites, such as the battlefield, and the protection of the Monocacy River.

The incinerator — or what some people call a "waste-to-energy facility" because it burns trash to produce electricity — is planned to be built at the McKinney Industrial Center off Md. Route 85, south of the City of Frederick near the county's wastewater treatment plant.

On Thursday, County Attorney John Mathias told commissioners that since the incinerator is also inconsistent with the Solid Waste Management Plan, which outlines how the county will dispose of its trash, the Maryland Department of the Environment will not approve permits to build it.

Mathias is looking into legal options the commissioners can take to overrule the Planning Commission's decision, and has yet to present them to the board.

Knowing the deadline to file an appeal is Nov. 13, one month from when the Planning Commission issued its ruling, Commissioner John "Lennie" Thompson Jr. (R), in a last-minute move, added the issue to Thursday's meeting agenda.

Commissioner David P. Gray (R), Commissioner Kai J. Hagen (D) and Thompson were the only members at the meeting to vote on the issue.

Gary and Thompson voted in favor of filing an appeal. Hagen, the lone commissioner against the incinerator, voted in opposition.

Jenkins (R) was absent because of medical reasons, and Gardner was at meeting of the Maryland Association of Counties in Annapolis.

As the discussion began, County Manager Ronald Hart told the commissioners present that Gardner called asking them to defer the discussion until the board meets on Tuesday so she can weigh in on the issue.

"[Gardner] objects to adding this the last minute to the agenda, and not having a full board of county commissioners," Hart said. "She'd like to be present for the discussion."

Hart tried to have the board delay the vote.

"I just think out of courtesy to the president of the board, that you defer action and reschedule for Tuesday," Hart said.

Gardner said in an interview Friday that she thinks any move to take legal action should be a decision by the full board. "I don't think you should go to court with two out of five commissioners [in favor]," she said.

But Thompson pushed to move forward.

"If we don't do this in a timely manner, the [Planning Commission] decision stands for all time," Thompson said. "It's very difficult to revisit the issue. We have invested a lot of money into the design of this thing [incinerator], and I don't think it's very prudent of us to duck the issue."

Gray, who as vice president of the board ran the meeting in Gardner's absence, agreed with Thompson, but added the item to Tuesday's agenda.

E-mail Sherry Greenfield at sgreenfield@gazette.net.