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The first legal fight over Frederick County's proposed incinerator ended before it ever saw a courtroom, but the county's lead attorney is not yet ready to call back his battle plan.

Frederick County Attorney John Mathias said Monday he will wait 30 days before dismissing the legal challenge he filed on behalf of commissioners against the county Planning Commission.

The Planning Commission on Oct. 14 found that the county's Solid Waste Management Plan, which includes an incinerator, is inconsistent with the county's long-term growth plan.

That finding outraged the Frederick Board of County Commissioners, which said planners had overstepped their authority and that such an inconsistency could have delayed the permitting and design process for the incinerator.

Commissioners asked Mathias to appeal the planners' ruling in Frederick County Circuit Court, which he did on Nov. 13.

Five days later, the Planning Commission reversed its ruling, and voted 4-1 that the incinerator does not create an inconsistency between the Solid Waste Management Plan and the long-term growth plan.

But Mathias said he wants to wait 30 days in case someone appeals the Planning Commission's reversal of itself, even though he knows no one who plans to.

"We can dismiss it, but I won't dismiss it right away, because there is a possibility someone may want to appeal the Planning Commission's most recent decision. ... This is a lawyer being way overly cautious. I've heard nothing at this time. It's just a matter of being cautious."

Commissioner Kai J. Hagen (D), liaison to the Planning Commission and the lone commissioner against the incinerator, said Monday he has no plans to appeal. "I don't know of anyone," he said. "But I wouldn't be surprised if someone did."

Hagen said to appeal the Planning Commission's reversal of itself would be useless because his commissioner colleagues will find some way to build the incinerator. "They have so many ways to move forward with the incinerator," he said. "It's just not operative to appeal."

The incinerator, or what some people call a "waste-to-energy facility" because it burns trash to produce electricity, is 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.

Commissioners approved it in June. The Northeast Maryland Waste Disposal Authority, which helps counties plan and develop ways to dispose of its trash, is in the process of designing it. Wheelabrator Technologies, based in New Hampshire, has been hired to build it.

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