Boomer v. Waterman Family Ltd. Partnership

³ Eyler, James R., J. The issue on this appeal is whether the Board of County Commissioners of Queen Anne’s County (“the County Commissioners”) had the authority to rescind a previously adopted ordinance in which they had approved the rezoning of a parcel of land that had been annexed and rezoned by the Town of Queenstown. We answer that question in the affirmative. On November 25, 2014, by a vote of three to two, the County Commissioners adopted Resolution 14-31, which approved Queenstown’s new zoning classification for the annexed parcel that allowed land uses substantially different, or at a substantially higher density, from what previously had been allowed. On December 2, 2014, four County Commissioners, elected at the 2014 general election, were sworn into office.

On December 9, 2014, by a vote of four to one, the County Commissioners adopted Resolution 14-33, which withdrew, rescinded, voided, and nullified Resolution 14-31. In response to the adoption of Resolution 14-33, the Town Commissioners of Queenstown (“the Town Commissioners”) and the Waterman Family Limited Partnership (“Waterman”), the owner of the subject property, filed, in the Circuit Court for Queen Anne’s County, a petition for judicial review and request for a writ of administrative mandamus. Waterman also filed a declaratory judgment action in the same court against the County Commissioners. In both cases, the Town Commissioners and Waterman alleged that the County Commissioners lacked authority to rescind Resolution 14-31.

The two cases were consolidated. Kathleen Boomer, Marie McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne’s Conservation Association (“QACA”) intervened as interested parties, all of whom were aligned with the County Commissioners. After a hearing on July 21, 2015, the circuit court entered summary judgment in favor of Waterman and the Town Commissioners and declared Resolution 14-33 “null, void and of no legal force and effect” on the ground that the County Commissioners lacked the “authority to repeal or rescind [Resolution] 14-31.” In addition, the court granted the relief ⁴ requested in the petition for judicial review and the request for a writ of administrative mandamus filed by the Town Commissioners and Waterman. The County Commissioners and the interested parties filed motions for reconsideration.

On September 30, 2015, the court denied the motions. This timely appeal followed. Subsequently, the County Commissioners voluntarily withdrew from the appeal. As a result, the parties before us are the interested parties, whom we shall refer to collectively as “the QACA appellants,” and the Town Commissioners and Waterman, appellees.

ISSUE PRESENTED The sole issue presented by the QACA appellants for our consideration is whether the County Commissioners had the authority to rescind or repeal Resolution 14-81. For the reasons set forth below, we hold that the County Commissioners did have that authority, and as a result, we shall reverse the judgments of the circuit court. FACTUAL BACKGROUND The basic facts are not in dispute. Waterman is the owner of approximately 140 acres of land in Queen Anne’s County, commonly referred to as the Wheatlands Farm property, located immediately south of U.S. Route 50 and across from a commercial development known as the Queenstown Outlets.

Prior to the events that are the subject of this appeal, the property was zoned Countryside, a designation that permitted agricultural and low density uses. On June 25, 2014, Waterman filed a petition with the Town of Queenstown seeking to have the Wheatlands Farm property annexed into the town. The goal, after annexation, was to seek rezoning. After a public hearing, the Town Commissioners voted to annex the property.

Thereafter, the Town Commissioners adopted an ordinance rezoning the Wheatlands Farm property from Countryside to Planned Regional Commercial, which permitted commercial and high density uses. The effective date of that ordinance was dependent upon a waiver by the County Commissioners of the existing zoning density pursuant to Md. Code (2013 Repl. Vol., 2014 Supp.), § 4-416(b) of the Local ⁵ Government Article (“LG”). 1 The statute provided that the property could not be rezoned to permit development for uses substantially different from previously authorized uses or uses at a substantially higher density, for a period of five years, unless the County Commissioners granted express approval and waived the five-year period. After a public hearing, on November 25, 2014, the County Commissioners passed Resolution 14-31, which granted the express approval needed to allow for rezoning to a classification that was substantially different and at a higher density.

The approval of Resolution 14-31 allowed development consistent with the “Planned Regional Commercial” classification without having to wait the five-year period referred to in LG § 4-416. On December 2, 2014, the newly elected commissioners took office. On December 9, 2014, the County Commissioners ⁶ adopted Resolution 14-33, which rescinded the express approval that previously had been granted. In response to that action, Waterman and the Town Commissioners filed the court actions described above.

Ultimately, the circuit court concluded that the County Commissioners “had no authority to repeal and rescind Resolution 14-31.” On July 21, 2015, the court granted summary judgment in favor of Waterman and the Town Commissioners, and granted the relief requested in the petition for judicial review and writ of administrative mandamus. It also issued a declaratory judgment providing that “Resolution 14-33 adopted by the County Commissioners of Queen Anne’s County on December 9, 2014, ... hereby is declared to be null, void and of no legal force and effect.” After the court denied motions for reconsideration, the County Commissioners and the QACA appellants noted appeals to this Court. Subsequently, the County Commissioners dismissed their appeal. 2 DISCUSSION I. The QACA appellants contend that the circuit court erred in granting summary judgment in favor of Waterman and the Town Commissioners because, under Article XI-F, Section 6 ⁷ of the Maryland Constitution, the county had the legal authority to adopt Resolution 14-33, thereby rescinding Resolution 14-31. They argue that both Resolutions were public local laws, not public general laws; that LG § 4-416 cannot restrict Queen Anne’s County’s power under the Maryland Constitution to repeal a public local law like Resolution 14-31; and that even absent an express power to rescind a resolution, the County Commissioners have the inherent power to do so.

Appellees argue that, in this context, the County Commissioners’ sole source of authority to act was LG § 4-416, a public general law; thus, Resolution 14-33 cannot be a public local law under the Maryland Constitution. Pointing out that LG § 4-416 does not contain an express right to rescind and relying on language in the statute providing that, once waiver has been granted, the Town Commissioners have “exclusive jurisdiction” over zoning, appellees conclude that the plain language of the statute prohibited the rescission of Resolution 14-31. Maryland’s Constitution provides that “[a] code county may enact, amend, or repeal a public local law of that county by a resolution of the board of county commissioners. The General Assembly may amplify the provisions of this section by general law in any manner not inconsistent with this Article.” Md. Const, art.

XI-F, § 6. The Constitution defines “public local law” as: a law applicable to the incorporation, organization, or government of a code county and contained in the county’s code of public laws; but this latter term specifically does not include (i) the charters of municipal corporations under Article 11E of this Constitution, (ii) the laws or charters of counties under Article 11A of this Constitution; (iii) laws, whether or not Statewide in application, in the code of public general laws, (iv) laws which apply to more than one county, and (v) ordinances and resolutions of the county government enacted under public local laws. Md. Const, art. XI-F, § 1.

There is no dispute that Queen Anne’s County is a code county. See Kent Island Def. League, LLC v. Queen Anne’s ⁸ County Bd. of Elections, 145 Md.App. 684, 689 , 806 A.2d 341 , cert. denied, 371 Md. 615 , 810 A.2d 962 (2002). Thus, the issue to be resolved is whether Resolutions 14-31 and 14-33 were public local laws.

Our decision in Kent Island Def. League provides guidance on that issue. Kent Island Def. League arose out of two ordinances enacted by the Queen Anne’s County Commissioners approving a petition to re-designate property pursuant to the Chesapeake Bay Critical Area Protection Program, which had been enacted by the General Assembly.

Kent Island Def. League, LLC, 145 Md.App. at 686-87 , 806 A.2d 341 . A voters’ organization known as Kent Island Defense League, LLC, presented to the Queen Anne’s County Board of Elections a petition to refer the two ordinances to the voters of the County. Id. at 688 , 806 A.2d 341 .

The Elections Director determined that the petition was legally deficient because the ordinances were not subject to referendum and the petition was deficient in form. Id. Kent Island Defense League, LLC and its president, who was a registered voter in Queen Anne’s County, filed, in the Circuit Court for Queen Anne’s County, a petition for judicial review of that decision. Id.

The developer of the property that was the subject of the referendum petition and others filed a complaint for declaratory judgment seeking a declaration that the petition for referendum was legally deficient. Id. After a hearing, the Circuit Court for Queen Anne’s County held that the ordinances were not subject to referendum. Id.

Kent Island Defense League, LLC appealed. In affirming the circuit court’s judgment, we addressed the issue of whether the ordinances were “public local laws” within the meaning of Article XI-F, Section 7 of the Maryland Constitution which provided, in part, as it does now, that “[a]ny action of a code county in the enactment, amendment, or repeal of a public local law is subject to a referendum of the voters in the county[.]” Id. at 689 , 806 A.2d 341 . We held that the ordinances in question were enacted under the authority of the public general law that established the Chesapeake Bay Critical Area Protection Program and not pursuant to the ⁹ county’s home rule powers. Id. at 692 , 806 A.2d 341 .

As a result, the ordinances were not public local laws. Id. In reaching that conclusion, we discussed the process of determining whether a law is general or local as follows: The classification of legislative action as general or local is based on “subject matter and substance and not merely on form,” Cole v. Secretary of State, 249 Md. 425, 433 , 240 A.2d 272 (1968), and is determined by applying “settled legal principles to the