Anne Arundel County v. City of Annapolis

CATHELL, Judge. In this case we are called upon to determine whether an annexation by the City of Annapolis, which left an area of Anne Arundel County separated from the rest of the County by waterways on three sides and the City of Annapolis on the other, violated Maryland Code (1957, 1998 RepLVol.), Article 23A, section 19(a)(2), because it created the type of enclave prohibited by that statute. We hold that under the plain meaning of the statute, the annexation by the City of Annapolis did not create a prohibited enclave because it did not create an unincorporated area completely surrounded by the City of Annapolis. Accordingly, we shall affirm the judgment of the trial court.

I. Facts and Procedural History The City of Annapolis (City of Annapolis or Annapolis) sits on a peninsula called the Annapolis Neck. On the easterly edge of the Annapolis Neck is the Chesapeake Bay and on the northern and southern boundaries of the neck are the Severn and South Rivers. Most of Annapolis is located along the peninsula’s northeastern edge, off of the Severn River. ¹²¹ Creeks, inlets, and coves pierce the body of the peninsula, creating other smaller peninsulas and projections of land. Farmers National Land Corporation (Farmers) owns a 103.647 acre tract of land in Anne Arundel County (Chrisland property) situated between Annapolis and one of the southerly smaller peninsulas that branches out from the main peninsula.

That smaller peninsula is bounded by the South River, Church Creek, and Crab Creek and is referred to as the Bywater Road Peninsula or Bywater Peninsula. The Chrisland Corporation (Chrisland) is the contract purchaser of this tract of land. On May 9, 1995, Farmers and Chrisland petitioned the City of Annapolis to annex the Chrisland property and include it within the boundaries of Annapolis. On November 4, 1996, the City Council adopted a resolution annexing this property, effective December 19, 1996.

The result of the annexation was to extend the city’s boundary into the upper portion of the Bywater Peninsula, leaving the lower portion of the peninsula beyond the new city boundary remaining under Anne Arundel County (County) jurisdiction. The non-annexed portion on the lower southern end of the Bywater Peninsula is now bounded by the newly annexed part of Annapolis to the north and on all other sides by the waters of the South River and Church and Crab Creeks, all of which are within Anne Arundel County. These waterways are not within the corporate boundaries or limits of the City of Annapolis. Thus, because of the annexation, a portion of County “fast” land is separated from the rest of “fast” land areas of the County.

The County, the original plaintiff below, and IntervenorPlaintiffs Diana H. Josephson, the Bywater Church and Crab Creek Association, Barbara Samorajczyk, and the Annapolis Neck Peninsula Federation, appellants, brought suit against the City of Annapolis, Farmers, and Chrisland, appellees, in the Circuit Court for Anne Arundel County seeking a declaratory judgment and other relief. Appellants challenged the annexation at issue as creating an enclave prohibited under ¹²² Maryland Code (1957, 1998 Repl.Vol.), Article 23A, section 19(a)(2). 1 After a hearing on cross-motions for summary judgment, in a written opinion and order docketed October 29, 1997, the circuit court found that Annapolis’s annexation of the Chris-land property did not create a prohibited enclave and granted appellees’ motions for summary judgment. The County filed a timely appeal to the Court of Special Appeals on November 25, 1997, and the remaining appellants filed their appeal on November 26, 1997. Appellee City of Annapolis filed a cross-appeal on December 3, 1997. 2 This Court issued a writ of certiorari on its own motion before the intermediate appellate court heard arguments on the matter in order to address the important issues raised by this appeal.

Appellants present the following question for our review: Should the legislature’s intent govern interpretation of Article 23A, § 19(a)(2) where a strictly literal reading of the law produces an illogical and unreasonable result which permits creation of the very tax islands which the law was drafted to prohibit? Appellee and cross-appellant City of Annapolis presents the following question: Whether an annexation that left unincorporated land bounded on several sides by waters located in the county offends a statute precluding annexations that create an unincorporated area bounded on all sides by real property in the municipality!;?] Our task is to determine the meaning of section 19(a)(2) and then to resolve whether Annapolis’s annexation of the Chris-land property violated this statutory provision. ¹²³ II. Discussion A. Statutory Interpretation: Plain Meaning We have said that “[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). Legislative intent must be sought in the first instance in the actual language of the statute, “giving those words their ordinary and natural meaning.” Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128, 1131 (1998).

See also Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45 , 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344 , 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256 , 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693 , 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35 , 660 A.2d at 429 ; Mauzy v. Hornbeck, 285 Md. 84, 92 , 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136 , 141 A.2d 734, 736 (1958). Furthermore, where the statutory language is plain and free from ambiguity and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute itself to determine legislative intent. Marriott Employees, 346 Md. at 445 , 697 A.2d at 458 ; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414 , 237 A.2d 35, 41 (1968). In Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992), however, this Court opined, in reference to construing an alimony statute: While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body.

The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a stat ¹²⁴ ute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. [Citations omitted.] Our inquiry into the meaning of section 19(a)(2) begins with the language of the statute. Section 19 provides, in pertinent part: (a) Legislative body authorized to enlarge corporate boundaries.—The legislative body, by whatever name known, of every municipal corporation in this State may enlarge its corporate boundaries as provided in this subheading; but this power shall apply only to land: (1) Which is contiguous and adjoining to the existing corporate area; and (2) Which does not create any unincorporated area which is bounded on all sides by real property presently within the corporate limits of the municipality, real property proposed to be within the corporate limits of the municipality as a result of the proposed annexation, or any combination of such properties. The annexation of the Chrisland property offends the plain language of section 19(a)(2) if it (1) created an unincorporated area, here, the Bywater Peninsula area, and (2) that unincorporated area is or would be bounded on all sides, (3) by areas within, or that after the annexation would be within, the corporate limits of the City of Annapolis.

Appellees argue that Annapolis’s annexation of the Chris-land property does not violate the plain meaning of section 19(a)(2) because the unincorporated area “is bounded on only one side by real property within the corporate limits of Annapolis.” The remaining sides are bounded by waterways that are within the County. Appellants, on the other hand, contend that the plain meaning of the language of the statute is contrary to the Legislature’s intent because the “effect” of this annexation is to isolate this property into a prohibited enclave. Appellants urge this Court to analyze the legislative history of this provision and to hold that the annexation creates an enclave of the type prohibited by section 19(a)(2). Appellees respond that, notwithstanding that no need exists ¹²⁵ for us to look beyond the plain meaning of the statute, legislative history nonetheless supports their position that the annexation of the Chrisland property does not create the type of enclave or tax island 3 the statute was designed to prevent.

We believe the plain meaning of the language of section 19(a)(2) is clear. At the heart of this issue are the meanings of the words “bounded on all sides,” “real property,” and “within” the corporate limits. First, the term “bounded” typically means “having bounds or limits.” The Random House Dictionary of the English Language 175 (unabr. ed.1983) [hereinafter Random House]. “Bounds,” as relevant to this matter, means “territories on or near a boundary” or “land within boundary lines.” Id. at 174. “Real property” is defined in Black’s Law Dictionary 847 (6th abr. ed.1991): Land, and generally whatever is erected or growing upon or affixed to land. Also rights issuing out of, annexed to, and exercisable within or about land.

A general term for lands, tenements, and hereditaments; property which, on the death of the owner intestate, passes to his heir. Real or immovable property consists of: Land; that which is affixed to land; that which is incidental or appurtenant to land; that which is immovable by law.... “Real property” is defined similarly in Random House, supra, at 1196, as “an estate or property consisting of lands and of all appurtenances to lands, as buildings, crops, or mineral rights.” “Land” is defined in Black’s Law Dictionary, supra, at 606: In the most general sense, comprehends any ground, soil, or earth whatsoever; including fields, meadows, pastures, woods, moors, waters, marshes, and rock. In its more limited sense, “land” denotes the quantity and character of the interest or estate which a person may own in land. It may include any estate or interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments.

The land is one thing, and the estate in land is ¹²⁶ another thing, for an estate in land is a time in land or land for a time. Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.... The term may be used interchangeably with “property”; it may include anything that may be classed as real estate or real property. Finally, “within” means “6. in or into the interior of or the parts or space enclosed by: within a city or its walls.” Random House, supra, at 1640. “Land” refers to waters as well as dry or “fast” land. 1 Tiffany, Real Property (3d ed. 1939 & 1998 Cum.Supp.), section 3, at 5, includes among its definitions of real property “a comprehensive expression denoting lands, tenements and hereditaments.” In section 10, 1 Tiffany, supra, at 13, notes that “[l]and includes whatever is parcel of the terrestrial globe, or is permanently affixed to such parcel.” In section 722, discussing riparian rights, 3 Tiffany, supra, at 117, states that “the right of the owner of riparian land ... is a corporeal hereditament, incident and annexed to the land, and which passes on transfer thereof as a part and parcel of it....

It is like the land itself, real property____” Accordingly, the term “real property” includes “land” in its broadest sense—including air space, the surface, the subsurface, and waters. Turning to the language of the statute and giving the words their ordinary and natural meanings, section 19(a)(2) allows for the annexation of real property, i.e., land in its most general sense, by Annapolis or any other municipality, so long as that annexation does not create an unincorporated area, such as the remaining County-controlled Bywater Peninsula, which is enclosed on all sides by an area currently, or proposed to be, within the city limits of Annapolis. This is not what occurred in the case before us. ¹²⁷ To be sure, the annexation of the Chrisland property created a pocket of County fast land separated from other County fast land by water on three sides and Annapolis on the remaining side. But the water surrounding the unincorporated area on three sides is not within Annapolis.

Simply stated, by annexing the Chrisland property, Annapolis does not surround or enclose on all sides the remaining Bywater Peninsula area. The waters surrounding the Bywater Peninsula are not presently and will not be incorporated as part of the municipality of Annapolis. That the annexation of the Chrisland property creates an area of Anne Arundel County separated from the rest of the County by the municipality on only one side and by the waterways on the other sides is of no consequence under this statute. Under the plain meaning of section 19(a)(2), that separate tract of land is not bounded on all sides by an area within the corporate limits of the City of Annapolis and, therefore, the annexation is not prohibited by this statute.

B. Legislative Intent Notwithstanding that we believe the plain meaning of section 19(a)(2) is clear, we shall also examine the history of this statute to confirm whether the legislative intent is expressed in the plain language. In doing so, we believe the history behind this statute supports our conclusion that the annexation of the Chrisland property did not violate section 19(a)(2). We turn first to the Session Laws. The title section of the bill ultimately passed into law states: FOR the purpose of providing that an annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality; providing that, under certain conditions, the legislative body of a municipal corporation need not obtain the consent of certain persons in proposing to alter the corporate boundaries through annexation; providing that under certain conditions, a resolution of annexation is not subject to certain referendum provisions; providing that this waiver ¹²⁸ of consent and referendum provisions shall be void as of a certain date____ 1983 Md. Laws, Chap. 593 (emphasis added).

This bill came about as a compromise between two proposed Senate Bills, S.B. 100 and S.B. 551. Prior to this time, annexation law require[d] that 25% of the residents registered as county voters as well as owners representing a total of 25% of the value of the real property in the area must give their approval before a municipality may annex a piece of land. These requirements ... resulted in “tax islands” or enclaves of unannexed land within many municipalities. Hearing on S.B. 551 Before the Senate Constitutional and Pub.

Law Comm. 1 (Feb. 24, 1983) (testimony of City of Rockville). 4 At the time of the Legislature’s consideration of S.B. 551, some municipalities had failed in attempting to annex certain property, often due to the objection, through referenda, of the citizens within those areas the municipalities sought to annex. The referendum process, therefore, sometimes created pockets of unincorporated area totally surrounded and enclosed by the incorporated area of the annexing municipality. The result was forty-five different enclaves throughout the state, with seven in Rockville alone. The problems inherent to enclaves or tax islands were that the residents within the resulting enclaves paid only county taxes yet used city facilities and services such as snow removal, parks, police protection, and health and environmental services.

See id. Additionally, the enclaves caused general confusion because citizens were unclear as to the enclaves’ basic geographic location. See id. at 2. See also Letter from Bd. of County Comm’rs of Frederick County, Maryland, to Chairman Norman R. Stone and the Senate Constitutional and Pub.

Law Comm. 1 (Jan. 31, 1983) (explaining that enclaves often result ¹²⁹ ed in “confusion in the delivery of public services and facilities ... in the enclave.”). S.B. 551 was drafted to rectify this problem. As proposed, S.B. 551 would lift the referendum requirement for a short time and under certain conditions so the various municipalities could annex enclaves existing at the time without resistance from the landowners or residents. S.B. 100 was being considered by the Legislature at nearly the same time as S.B. 551.

S.B. 100 sought to prohibit the creation of future enclaves by municipalities. 5 The Summary of the Senate Constitutional and Public Law Committee Report for S.B. 100 stated: SUMMARY OF BILL: This bill provides that an annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality. The bill retains the existing prohibition on enlarging a municipality by incorporating non-contiguous territory. BACKGROUND: There are 45 enclaves in Maryland spread among 17 municipalities. LEGISLATIVE INTENT: The intent of this bill is to prevent municipal corporations from creating enclaves (unincorporated territory completely surrounded by the municipality) when they enlarge their corporate limits.

The purpose of the bill is to prevent any increase in the number of existing enclaves. Department of Legislative Reference, Comm. Report System, Summary of Report of Senate Constitutional and Pub. Law Comm., S.B. 100 (1983).

At some point, S.B. 100 was voted down, but an amendment to S.B. 551 later added essentially the same language from S.B. 100 prohibiting future enclaves. In a letter supporting the amendment of S.B. 551 to include ¹³⁰ the language from S.B. 100, the Executive Director of the Maryland Municipal League tellingly stated that “this bill only applies to those areas bounded on all sides by the municipality. Some enclaves are bounded on one side by federal land. These would not be included in the bill.” Letter from Jon C. Burell, Executive Dir., Maryland Municipal League, to the Maryland Senate 1 (Mar. 1, 1983).

Amended S.B. 551 ultimately was passed as 1983 Maryland Laws, Chapter 593. Appellants argue that to hold as we do today promotes an illogical interpretation of section 19(a)(2) because “[i]t is clear from the legislative history that the legislature’s primary intention was to prohibit creation of ‘tax islands’ which have the effect of isolating property into enclaves.” In support of this assertion, appellants argue that the annexation in the case sub judice, because of the geographic uniqueness of the Bywater Peninsula, isolates the peninsula’s residents from the jurisdiction to which they pay taxes, Anne Arundel County, and creates the same practical difficulties of the “tax islands” that existed, for example, in the City of Rockville. Appellees, on the other hand, maintain that the legislative history makes clear that the statute was intended to be read more narrowly to prohibit the creation of enclaves of unincorporated areas situated entirely within the annexing municipality, such as what had occurred previously in Rockville and other municipalities. Specifically, appellee Annapolis states that “[t]he annexation before this Court did not create any unincorporated area within Annapolis; it left unincorporated territory outside of the City.” An area of land left surrounded by water within the County on three sides and a municipality on the other, appellees argue, is not the type of enclave contemplated by the Legislature.

Our research into the legislative history behind section 19(a)(2) supports the interpretation that the type of enclave prohibited by that statute includes only unincorporated areas completely surrounded on all sides by the incorporated area of the annexing municipality. Throughout various documents in the bill files of S.B. 551 and S.B. 100, phrases suggest the ¹³¹ notion of a municipality encircling an unincorporated area. See Department of Legislative Reference, supra, at 1 (summarizing bill by stating that annexation by incorporated municipality “may not create an enclave of unincorporated territory within the municipality” and describing an enclave as an “unincorporated territory completely surrounded by the mu nicipality” (emphasis added)); Department of Fiscal Services, Revised Fiscal Note to S.B. 551, at 1 (May 4, 1983) (“This enrolled bill provides that the legislative body of an incorporated municipality may annex ... [that] which does not create an unincorporated area which is bounded on all sides by land within the corporate limits of the municipality.” (emphasis added)); Written Statement from Maryland Ass’n of Counties, Inc., to the Senate Constitutional and Pub. Law Comm. 1 (Jan. 26, 1983) (supporting S.B. 100 and describing its effect as preventing enclaves of “unincorporated property within incorporated municipalities” (emphasis added)).

The title clause of Chapter 593 likewise supports this position. 1983 Md. Laws, Chap. 593 (providing that the “annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality ” (emphasis added)). In addition to the obvious plain language of the statute, we believe the legislative history makes clear that unincorporated areas completely surrounded and enclosed by the city limits of the incorporated annexing municipality are the only types of enclaves intended to be prohibited by this statute. C. Other Issues Having discerned the plain meaning of section 19(a)(2) and having determined that the legislative history supports that plain meaning, we also shall address appellants’ related argument that because the Bywater Road Peninsula is bordered on three sides by Church and Crab Creeks and the South River, it is surrounded by State land and, therefore, separated from Anne Arundel County as an enclave. 6 Appellants essentially ¹³² argue that the submerged lands are not County lands but lands of the State and, therefore, help to create a “natural” barrier separating the Bywater Peninsula from the rest of Anne Arundel County. After reviewing two areas of law tangentially related to this issue, we are convinced the County is incorrect.

First, as we shall indicate, statutes and case law extend the jurisdiction of counties out to the channel or middle of bodies of water that serve as boundaries between counties. A natural collorary is that a county’s general jurisdiction extends to bodies of water entirely within its boundaries except to the extent preempted by State law. Second, municipal corporations generally may extend their boundaries across rivers and streams without violating the “contiguous” land requirement. If a municipal corporation like Annapolis can exercise such an annexation and call it “contiguous,” then two portions of county fast land left separated by bodies of navigable water after a municipal annexation also must be considered contiguous. 1.

County Jurisdiction over Navigable Waters The navigable waterways within Maryland’s boundaries and the lands beneath them generally are “held” by the State for the benefit of the inhabitants of Maryland. See Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 204-05 , 707 A.2d 829, 836 (1998); People’s Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 499 , 560 A.2d 32, 36 (1989); Board of Pub. Works v. Larmar Corp., 262 Md. 24, 46 , 277 A.2d 427, 437 (1971) (citing Kerpelman v. Board of Pub.

Works, 261 Md. 436, 445 , 276 A.2d 56, 61 (1971)). 7 See also ¹³³ Smith v. Maryland, 59 U.S. (18 How.) 71, 74-75 , 15 L.Ed. 269 (1855); Harbor Island Marina, Inc. v. Calvert County, 286 Md. 303, 314 , 407 A.2d 738, 744 (1979); Caine v. Cantrell, 279 Md. 392, 396 , 369 A.2d 56, 58 (1977); Department of Natural Resources v. Mayor of Ocean City, 274 Md. 1, 5 , 332 A.2d 630, 633 (1975); Causey v. Gray, 250 Md. 380, 387 , 243 A.2d 575, 581 (1968); Green v. Eldridge, 230 Md. 441, 446 , 187 A.2d 674, 677 (1963); Clark v. Todd, 192 Md. 487, 492 , 64 A.2d 547, 549 (1949); Adams v. Carey, 172 Md. 173, 182 , 190 A. 815, 819-20 (1937). These waterways are not held by the State “absolutely, but as a quasi trustee for the public benefit and to support the rights of navigation and fishery to which the entire public are entitled.” Mayor of Baltimore v. Baltimore & Philadelphia Steamboat Co., 104 Md. 485, 494 , 65 A. 353, 356 (1906). See also Bausch & Lomb Inc. v. Utica Mutual Insur. Co., 330 Md. 758, 783 , 625 A.2d 1021, 1033 (1993).

Therefore, the State does not hold those areas “[t]o the exclusion of all others.” Black’s Law Dictionary 565 (6th ed.1990) (definition of “exclusively”). Subject to the State’s paramount rights and the doctrine of preemption, a county, as we shall discuss, may exercise authority over waters within its boundaries. Our holding, therefore, is based upon the jurisdiction of Anne Arundel County over the waters surrounding the Bywater Peninsula, not any traditional concept of ownership. It is true, as the County maintains, that, as a political subdivision of the State, its jurisdiction over these waterways is subject to the paramount jurisdiction of the State.

The General Assembly, nonetheless, has granted counties numerous powers to regulate within their navigable waters and adjacent lands. First, we note the law governing borders between counties. Unless a statute provides to the contrary, the jurisdiction of Anne Arundel County, or any other county, generally extends to the channel of any river that serves as a ¹³⁴ boundary between it and another county—the Patapsco and Patuxent Rivers, for example. See Md.Code (1957, 1998 Repl.

Vol.), Art. 75, § 81; Department of Natural Resources v. France, 277 Md. 432, 463 , 357 A.2d 78, 95 (1976) (holding jurisdiction of Wicomico and Somerset Counties intersects at channel of Wicomico River). 8 Since colonial times, several counties have been created with navigable waters serving as their borders with all lands between the channel or middle of those waters and the shoreline belonging to each respective county sharing the border. 9 See generally Raab v. State, 7 Md. 483 (1855)