Weems, et al. v. County Commissioners of Calvert County (Ct. of Appeals)

Filed March 16, 2007--Opinion by Judge Dale Cathell .

Appellants filed a declaratory judgment action in the Circuit Court for Calvert County against the County Commissioners, seeking a declaration as to the westerly terminus of a public easement, a declaration as to the ownership of an area known as Leitch's Wharf, and a declaration that § 15-201 of the Calvert County Code - as it pertains to Leitch's Wharf - is unconstitutional in that the statute constitutes a taking of Appellant's property without just compensation.

After an adverse decision, Appellants raised four questions to the Court of Special Appeals, which found, in an unreported opinion, the language of the easement at issue to be ambiguous. Further, the court found that the testimony at trial, by the nature in which it was given and the failure of trial counsel to clarify the issues by connecting the testimony to the exhibits in the record, did not contain a sufficient description of the easement, as presented in that record, to resolve the ambiguity. As a result, the court found it necessary to remand the case for further proceedings and, because of its determination regarding the easement, did not resolve any of the other issues. After the remand hearing, Appellants again appealed, and this Court granted a writ of certiorari for the following two questions:

1) Whether the trial court erred in arbitarily disregarding Appellants' expert's opinion and thereafter finding that the westerly terminal of the easement granted in the 1949 Deed was located within Appellants' property.

2) Whether the trial court erred when it did not find § 15-201 of the Calvert County Code unconstitutional as applied to Appellants' property at Leitch's Wharf.

The Court reviewed two key documents to reach their determination: (1) the easement at issue, and (2) § 15-201 of the Calvert County Code. The controversial language of the easement provides:

"2. The remaining of the above mentioned parties of the first part do hereby grant a parcel or strip of ground beginning for the same at the intersection of the present County road, and the land of Thomas I. Weems and Clifton Smith, and running in a westerly direction adjacent to and through the lands of the above mentioned parties of the first part, and running with the center of the said present county road, said 30 foot strip lying 15 feet on each side at the center line thereof, and having for its westerly terminal the lands of the grantor, Lydia Leitch."

Section 15-201 of the Calvert County Code provides, in relevant part:

(a) The public shall have an easement or right-of-way over any roads or ways in Calvert County leading to . . . Leitch's Wharf . . ..

(b) The purpose for this easement or right-of-way is solely for access to the wharves and landings and enjoyment of the wharves and landings by the public.

This Court found that the language at issue in the easement (the last phrase) is not ambiguous. While confusion may exist as to who was the party of the first part, the easement being granted had its westerly boundary clearly fixed. Therefore, as relevant to the present controversy, it makes no difference who "he" was. The term "westerly" did not refer to the westerly boundary of the Leitch property; it referred to the westerly boundary of the easement. The "lands of Lydia Leitch" was, in essence, a "call" -- it defined the western boundary, which is the easement's terminus. In the case at hand, the "call" set the boundary of that property being granted by referencing the boundary of another property beyond which the lands being granted did not go. There was no dispute as to the other boundaries of the easement relevant to the instant case. This case only concerned the western boundary of the public easement and the County has no rights, under this easement, beyond that point.

In deeds granting easements, ambiguity only exists when the particular location point at issue cannot be determined; not in instances where the location point is clear from the language of the deed. If there was any ambiguity in respect to language, then, in such event, other evidence might be considered to attempt to locate the right of way. The case sub judice, however, did not require the Court to look outside the four corners of the granting document. Consequently, the Court held the relevant language of the deed of easement was not ambiguous.

The Supreme Court has remained consistent in asserting that included amongst a property owner's bundle of rights is the right to exclude others. Consistent with that assertion, this Court found it constitutionally impermissible for the government to give the public the right to use the private property of a landowner without that landowner's permission, just as it would be unconstitutional for a governmental entity to enact a statute to give the public the right to go into and reside in the private home of a citizen. The government cannot grant a license to the public to go into a homeowner's bedroom or his backyard. The legal and constitutional principals are exactly the same whether applied to a bedroom or a field, and a governmental entity may not legislatively terminate, by enactment of a statute, an individual's "right to exclude" others from their private property without providing the landowner compensation for that "taking" or without the landowner's permission.

The full opinion is available in PDF.

Cinque v. Montgomery County Planning Board (Ct. of Special Appeals)

Filed March 15, 2007. Opinion by Judge James Kenney.

This case concerns the ability of an administrative agency to reconsider a quasi-judicial decision.

The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "MCPB"), first approved a preliminary plan for a subdivision in Montgomery County's Agricultural Reserve, then reconsidered its decision and denied the proposed plan, and then reconsidered its denial and ultimately approved the application. Appellants, individual property owners and various organizations, argued that the MCPB violated its own Rules of Procedure and the McKinney test in granting the second reconsideration and approving the proposed subdivision.

An administrative agency may grant reconsideration pursuant to a statute or regulation. In the absence of such express authority, an agency has the inherent power to reconsider its decision in the event of fraud, surprise, mistake or inadvertence. Miles v. McKinney, 174 Md. 551, 199 A.2d 502 (1938). In this case, MCPB regulations provided that the agency may reconsider upon "a clear showing that the [agency] did not conform to relevant law or its rules of procedure." Accordingly, when the MCPB accepted the argument of the property owner that the denial of the application was not in accordance with the development standards of the applicable zone, it had a valid ground to grant reconsideration. Neither the fact that the membership of the MCPB had changed nor the fact that one member had reversed his own views made the reconsideration decision an impermissible change of mind.

The opinion is available in PDF.

People's Counsel for Baltimore County, Maryland v. Elm Street Development, Inc. (Ct. of Special Appeals)

Filed March 2, 2007. Opinion by Judge Peter B. Krauser.

In a case so replete with procedural issues specific to Baltimore County subdivision ordinances that it almost defies synopsis, the Court of Special Appeals upheld the decision of the Circuit Court for Baltimore County approving a red-lined revised subdivision plan pursuant to applicable sections of the Baltimore County Code and consistent with applicable regulations.

In affirming that decision, the Court of Special Appeals held that while the County Board of Appeals must find "substantial evidence" that a subdivision development plan approved by several County departments meets the requirements of applicable ordinances and regulations before affirming that approval on administrative appeal, those agencies need not state "facts and reasons" justifying those regulatory approvals for the Board of Appeals to affirm such a development plan. The Court of Special Appeals noted that the more rigorous "facts and reasons" requirement may apply in many zoning appeals as distinguished from subdivision development plan appeals.

The opinion is available in PDF format.

River Walk Apartments, LLC v. Twigg (Ct. of Appeals)

Decided January 10, 2007--Opinion by Judge Lynne A. Battaglia, with Judges Dale R. Cathell and Glenn T. Harrell, Jr. joining in the judgment only.

In November 2000, the Mayor of the City of Frederick entered into an agreement ("November Agreement") with Property Owners wherein the Property Owners would dedicate to the City for no charge "any and all rights-of-way needed for the upgrade and widening of Gas House Pike along the frontage of the Property," which was to be made "free and clear of all liens and/or encumbrances." It is unclear from the Agreement whether the conveyance was fee-simple or merely encumbered the land with a thoroughfare for the use of the public. The Property Owners also agreed to give their consent and sign all necessary documents to subject the properties to a "Tax Increment Financing District" (TIF) to enable the City to finance the completion of Monocacy Boulevard, with the caveat that the Property Owners shall have no additional tax assessment or liability as a result of the TIF.

In consideration for the Property Owners’ dedications and agreement to the TIF, the contract provided that the Properties and Property Owners would be subject to a "deferred contribution special assessment" of $1.00 per square foot of each building to be constructed to be paid once to the City "upon application to the City for the Shell Construction Permit for such building." The contract was signed by a representative of each of the Property Owners and by Mayor James Grimes for the City of Frederick.

In October 2002, the City of Frederick passed Ordinance G-02-19, §1, which titled Chapter 11 of the City Code, a reserved chapter, "Fees," and levied impact fees for the first time in the City for the purpose of requiring that new residential, commercial, institutional and industrial development pay for its appropriate share of capital improvements to the city’s water and sewer treatment and distribution systems through the imposition of water and sewer impact fees which will be used to finance, defray and reimburse the city for all or a portion of the costs of capital improvements to the city’s water and sewer treatment and distribution systems. Another fee imposed by the new chapter was the "Park Facilities development impact fee," which states in relevant part, "Any person who undertakes a residential development project shall pay a park facilities development impact fee and shall not receive a building permit until such park facilities development impact fee is paid."

In June 2004, then Mayor Jennifer Dougherty and the Property Owners entered into a second agreement entitled "Agreement to Defer Public Improvements" ("Deferral Agreement"), granting the Property Owners an exception to the Subdivision Regulations of the City of Frederick which required installation and acceptance of necessary public improvements prior to the final approval of subdivision plats.

In October 2004 and again in March 2005, applications were submitted for shell construction permits along with payment of the $1.00 per square foot for each proposed structure, as required by both the November and the Deferral Agreements. The City denied the applications, stating that "in addition to the $1.00 per square foot fee, all impact fees must be paid prior to the issuance of any of the aforementioned building permits," to include payment of water, sewer and park fees. Consequently, a complaint for a writ of mandamus and specific performance was filed against the City requesting they be directed to issue shell construction permits based on the municipality being bound by its contracts. The City responded, in part, that the Agreements only exempted the property from regulatory fees, not water, sewer and park facility impact fees, and that even if the Agreements did exempt the Property Owners from those fees, because they constitute taxes, they can only be waived by the Maryland General Assembly and therefore, without such authorization, the waiver was ultra vires and not enforceable.

Upon timely appeal of a finding for the Property Owners, the City maintained that the legislative body of the municipality must enact ordinances in order to establish impact fees and that the two Agreements were not legislatively authorized, but instead constituted private agreements between the Property Owners and the two mayors. The Court of Special Appeals reversed the Circuit Court holding that Section 2 of Article 23A and Section 7 of Article II of the City of Frederick Charter mandate that all fees imposed by the City, and any waiver thereof, must be authorized by ordinance, and because no ordinance authorizing either the November or the Deferral Agreement was enacted, both contracts were ultra vires and therefore void ab initio.

Before the Court of Appeals, the Property Owners contended that the Mayor possesses the executive power to purchase or condemn property, such as the rights-of-way at issue in this case, and as an executive act, no ordinance or legislative act was required in order for the City to enter into the Agreements. The Agreements represented nothing more than the implementation of an already authorized and existing public project and, as such, constituted executive, not legislative, actions, which the Mayor, as the chief executive officer of the City, possessed the requisite authority to do on behalf of the City. Conversely, the City maintained, in part, that before any fee can be imposed by the municipality, it must be legislatively authorized. The waiver of fees is a corollary to the imposition of fees, so it, too, would require legislative authorization.

The Court held that neither the Mayor who signed the November Agreement, nor the Mayor who signed the Deferral Agreement, possessed the requisite authority to create a special fee or to waive impact fees; those actions required legislative authority, which was never obtained. A municipality is not bound by those actions which transcend its authority and the authority of those allegedly acting on its behalf; those actions are ultra vires and unenforceable.

Judges Cathell and Harrell join in the judgment only consistent with their position in J.P. Delphey L.P. v. Mayor and City of Frederick.

The full opinion is available in PDF.

Laurel Sand & Gravel, Inc. v. Philbrick (Maryland U.S.D.C.)(not approved for publication)

Memorandum Opinion and Order dated January 3, 2007, by Judge J. Frederick Motz (not approved for publication)

In a brief letter memorandum, Judge Motz awarded a "hat trick" to the defendants, finding three separate grounds for dismissal of this case, which involved challenges by a mine owner/operator to the Maryland Dewatering Act.

The first grounds raised were based on principles of res judicata and collateral estoppel, claiming that the earlier Maryland case of Maryland Aggregates Ass'n, Inc. v. State of Maryland resolved or could have resolved the issues in this case. For res judicata claims, the federal courts are to apply the law of the state in which the prior case was heard, in this case Maryland. The court found that two of the requisite elements were not in dispute, namely that there was a final judgment on the merits and the parties were the same, and after some consideration found the final element, that the claims were substantially similar (though the court noted that, had the other bases for dismissal proved unavailing, he might have considered certifying the question to the Maryland Court of Appeals for resolution).

The second ground was that the plaintiff's claim failed as a matter of law, in that the Dewatering Act did not deprive the plaintiff of any property right in requiring the dewatering mine operator to pay for new wells for adjacent landowners presumptively affected by the dewatering operation, and the plaintiff had failed to identify any "property interest" that the state has invaded.

The third ground was a claim that the abstention doctrine of Younger v. Harris precluded the federal court from interfering with an ongoing state proceeding which involved important state interests and provided an adequate opportunity for the plaintiff to raise the federal constitutional claims advanced in the federal suit. Here, the plaintiff had admittedly failed to appeal the result of a Maryland administrative proceeding that had denied its claims, and thus voluntarily gave up the right to resolve those matters in the Maryland courts). The judge also found an important, substantial and vital state interest, even though the Fourth Circuit has not yet specifically identified regulation of water use for Younger purposes, finding at least an analogy to zoning and regulation of land use which have long been held to justify federal abstention.

The full opinion is available in PDF, as is the order.