City of Annapolis v. Waterman

CATHELL, Judge. Appellant, the City of Annapolis (City), appeals from a decision of the Circuit Court for Anne Arundel County, which principally involves the City’s subdivision approval process as it applies to the three-phase, twenty-year plus processing of a residential development proposed by appellees, Mareen D. Waterman and Marian Waterman. Appellees filed suit against the City alleging that certain conditions contained in the subdivision approval applicable to their property constituted an unconstitutional taking of that property. Appellees’ complaint alleged in relevant part: 15. ... [T]he City Council’s decision to take all of Lot 1 results in an additional taking of 3,163 square feet over and above the 2,375 square feet required by Resolution R-20-76. 16.

There exists no essential nexus between a legitimate state interest and the subdivision condition imposed by the City Council requiring Lot 1 of Section 3 to be dedicated entirely as a recreational space.... 17. In requiring the dedication of this recreational space, the City Council has denied [appellees] all economically viable use of Lot 1. [Emphasis added.] As relevant to this appeal, the claim before the circuit court was a claim only that the conditions imposed on Lot 1 constituted an unconstitutional taking of Lot 1. The trial court accordingly dealt with an alleged taking only of that lot. The circuit court found ⁴⁸⁷ that the Annapolis City Council impermissibly conditioned approval of the Plaintiffs’ subdivision proposal where it ordered that Lot One of the Section III Proposal shall be dedicated as recreational space pursuant to Resolution R-20-76 and where it ordered that Lot One of the Section III Proposal shall not be approved for use as a residential dwelling lot.

Appellant presents the following issues for our consideration: I. Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 constituted a “dedication” of a portion of appellees’ property to the City as a public “mini-park.” II. Whether the lower court erred in failing to apply the “nonsegmentation” principle in its takings analysis by focusing only on proposed Lot 1 (the corner piece of the Parkway property) and not on the entire Parkway property.[ 1 ] III. Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 constituted an unconstitutional taking despite the fact that appellees had not lost all economically viable use of their property.

IV

Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 failed to meet the Supreme Court’s “rough proportionality test,” and thus, constituted an unconstitutional taking. V. Whether the lower court erred in awarding damages dating back to May 21, 1992 ... when the cause of ⁴⁸⁸ action did not accrue until the passage of Resolution No. R-47-95 on December 11,1995.

VI

Whether the lower court erred in calculating damages on the value of the entire Section III of the Parkway-property (valued at $328,000), instead of on the value of Lot One (valued at $40,000) that was the only portion [a]ffected by conditions one and two of City of Annapolis Resolution No. R-47-95. Appellees/Cross-Appellants pose several questions that appear to be counter arguments to appellant’s questions, rather than separate questions. We shall treat them as arguments and address them, as necessary, in our discussion of the questions presented by appellant. Moreover, because we answer appellant’s first three questions in the affirmative, and accordingly reverse the erroneous decision of the trial court, it is unnecessary to address appellant’s remaining questions, or to address any of appellees’ questions separately.

I. Facts Appellees purchased a three-acre triangular tract of land in Annapolis in the mid-1970’s for the purpose of developing it. They proposed to develop the land, called “Parkway,” in three phases. The last phase was designated as “Lot 4” during the second phase of development. While seeking subdivision approval of the first phase, appellees agreed to provide, in the subsequent phases of the subdivision, at least 2,375 square feet of recreational space for the use of the first-phase residents.

Thus, the parties agreed to defer creating the recreational space needed for the first-phase residents until a later date. The language of the 1976 resolution stated in pertinent part “[t]hat the developer agree[s] to provide 2375 square feet of recreational space in an appropriate location as part of the future development of his remaining adjacent land in addition to any recreational area required by that development.” City of Annapolis Resolution R-20-76 (Apr. 12, 1976) (emphasis added). In other words, the recreational area now at issue was required as a condition for approval of phase one (or Section I) in 1976. In return for not being required to ⁴⁸⁹ provide, at that time, recreational area within Section I for the use of Section I residents, appellees agreed to provide it in a future phase of development, in addition to providing recreational space for the needs of the residents of those future phases.

No timely challenge was made to the 1976 imposition of the future recreational area requirement. The parties to the agreement left the exact location of the agreed upon recreational space open for future approval. To some extent, the time of determining the specific location of the recreational space was dependent upon the development phase in which appellees chose to perform their part of the agreement. They put off creating the recreational space required for Section I until seeking subdivision approval for the last phase, Section III.

The 1976 agreement was incorporated as a condition into Resolution R-20-76 approving the first-phase subdivision. The following year, phase two was approved and developed. It did not contain the recreational space that appellees had agreed to provide for the first-phase residents. At that time, the remaining two contiguous triangular parcels were combined as Lot 4.

The third, and final, phase was submitted for subdivision approval in 1990. In this phase, appellees proposed to subdivide the final .87-acre parcel, Lot 4, of the development into five new lots. The five new lots were to be created from two contiguous triangular parcels that had been identified during the second phase of development as Lot 4. Four parcels of the final-phase subdivision were designated to be developed as eight duplex units.

These four parcels were contained on one of the triangular parcels within Lot 4. The other triangular part of the original Lot 4 was redesignated on the proposed third-phase subdivision plat as new “Lot 1.” The proposed new Lot 1 was located on the corner of Tyler Avenue and Hilltop Lane and consisted of 5,538 square feet. The proposed third-phase subdivision indicated that new Lot 1 would be used for a single-family residence. ⁴⁹⁰ The proposed third-phase subdivision also designated a 4,598 square foot “recreational easement” running behind and across the rear of the eight duplex units. It was appellees’ contention that this proposed 4,598 square foot recreational area would satisfy the open space and recreational condition in the 1976 resolution that approved the first phase of the development.

The Department of Planning and Zoning (DPZ) recommended denial of appellees’ third-phase subdivision request on the basis of alleged density and traffic problems. The Planning and Zoning Commission (Commission) agreed and recommended a reduction in the number of units, and also found that the third phase, as proposed, violated the recreational area condition incorporated in Resolution R-20-76, and further violated City subdivision regulations. Appellees appealed to the City Board of Appeals, which upheld the Commission’s findings. Appellees sought judicial review in the Circuit Court for Anne Arundel County.

The circuit court, in that judicial review, reversed the decision of the Board of Appeals. The trial judge, Judge Bruce C.' Williams, found: When the City Council approved the initial development of the Parkway property, its approval was conditioned on the inclusion of 2,375 square feet of recreational space on the property. [Appellees] propose[] to dedicate an easement across the rear portion of the duplex lots of the proposed subdivision to satisfy the recreational requirement. The Board of Appeals below held that such an easement would deprive ... each lot owner [the eight duplex owners] of his exclusive use of the property dedicated,[ 2 ] reducing the size of their lot below the requisite 3600 sq. ft. minimum. This Court finds that the Board of Appeals erred in finding that the lot size of each respective lot owner would ⁴⁹¹ be reduced by the provision of an open space easement on their lot.

The Annapolis City Code contemplates figuring recreation areas into, rather than out of, minimum lot size area calculations.... Section 21.74.050 D states, the area of land set aside for common open space or recreational use may be included in determining the number of dwelling units permitted.... Nothing in the Annapolis City Code authorizes such determinations by the Commission. The Annapolis Comprehensive Plan does not support the exclusion of easement dedicated space in lot size calculations. ... ...

With regard to residential lot configurations, the plan encourages the “establishment of block homeowners’ associations, with pooling of portions of long back yards as common open space or garden areas, owned and maintained by the associations.” An easement would accomplish this goal. The City Council should be afforded the opportunity to determine whether an easement would be appropriate. This Court finds that in light of changes in the Annapolis City’s zoning regulations since the passage of R-22-76, the issue of recreational space needs to be resolved by the Annapolis City Council and not the Planning and Zoning Commission.... The Commission’s denial cannot be supported by substantial evidence or its statutory authority.

ORDERED, that the decision of the Board of Appeals is hereby REVERSED and that the Waterman subdivision plat be approved by the Planning and Zoning Commission to allow this case to proceed to the Annapolis City Council in accordance with the statutory scheme established by the City of Annapolis and the State of Maryland. [Third emphasis in original; all others added.] [Citations omitted.] After the Board of Appeals affirmed the Commission’s decision, but before Judge Williams had reversed the Board of ⁴⁹² Appeals, the City enacted Ordinance 0-2-93, which required site design review prior to subdivision approval. That site design review was to be done by the DPZ. Accordingly, after Judge Williams’ reversal of the Board, appellees’ subdivision application was resubmitted to the DPZ for site design review. 3 Subsequently, pursuant to the site design review required by the newly enacted ordinance, the DPZ and the Commission again expressed their reservations about density and traffic problems in their submission to the City Council. The DPZ and the Commission recommended approval of the third-phase subdivision and recommended three conditions.

One of the conditions was that the single-family dwelling proposed for new Lot 1 be relocated. In approving the subdivision, the City Council agreed with the recommendation and imposed a limitation that no dwelling be permitted on new Lot 1. Additionally, they imposed a separate condition that the 2,375 square feet of recreational area required by the conditions for approval of the first-phase subdivision, be located on new Lot 1. See City of Annapolis Resolution No. R-47-95 (Dec. 11, 1995).

Appellees responded by filing suit in the circuit court for damages only, alleging that the conditions attached to the approval created an unconstitutional taking of Lot 1. The circuit court found in favor of appellees and awarded damages. In the liability phase, the court’s opinion initially stated: The Plaintiffs allege that there has been an unconstitutional taking of their property to the extent that they cannot ⁴⁹³ freely develop Lot One of the Proposed Section III Subdivision. Nor can the Plaintiffs exclude others from using Lot One.... ...

The use of the Plaintiffs’ property [Lot One] as a mini-park would deprive the Plaintiffs of their right to exclude others.... ... It has long been held that “a land use regulation does not effect a taking if it ... does not ‘deny an owner of all economically viable use of his land.’ ”... .. . The Court finds that the City’s actions in applying the [recreational area and no dwelling] conditions ... are proper in light of the recommendations made to it by the various sources discussed above.... The actions taken by the City created a nexus whereby the interests of the City, most notably traffic concerns, were addressed by the imposed conditions and were a proper exercise of the City’s police powers.... ...

Rather, the condition imposed upon Lot One is an impermissible taking because it singles out only one small portion of the entire Section III Proposal where there was evidence before the Council which suggested that the entire Section III Proposal would adversely affect traffic at that location. The circuit court went on to find an unconstitutional taking by focusing on Lot One: [I]t appears to the Court that the dedication of Lot One as recreational space for use as a mini-park would prove to be at least as hazardous to traffic patterns ... as would a single family home. ... [T]he Court finds that [the] City Council’s condition ordering that Lot One of the Section III Proposal be dedicated as recreational space to serve as a mini-park is not reasonably related to the needs that would be created by the subdivision.... ⁴⁹⁴ ... [T]he Court finds that the actions ... represent an impermissible taking ... because the exactions made through the two conditions are not reasonably related to the impact [of] the proposed subdivision_ [Emphasis added.] The City filed a timely appeal to the Court of Special Appeals and we granted a writ of certiorari prior to that court’s review of the matter. We reverse the circuit court.

II

Discussion and Analysis Maryland Code (1957, 1998 RepLVol.), Article 66B, section 4.01(a)(1), contained within the subtitle “General Development Regulations and Zoning,” provides in relevant part that the policy of the State is to empower “municipal corporations ... to regulate and restrict ... the percentage of lot that may be occupied, ... the size of yards, courts and other open spaces, ... and use of ... land for ... residence or other purposes.” 4 Within the subtitle “Subdivision Control,” section 5.08(a) provides in relevant part that “the planning commission shall prepare regulations governing the subdivision of land within ⁴⁹⁵ its jurisdiction. Those regulations may provide for ... the adequate and convenient placement of ... open spaces for traffic, .. . recreation, light and air and the avoidance of congestion of population....” Section 5.04 provides that planning commissions may “agree with applicants] upon use, height, area or bulk requirements or restrictions which are designed to promote the purposes of the zoning ordinance of the jurisdiction.” The general purposes of the planning and zoning processes in the City are found in section 21.02.010 of the City of Annapolis Code (1996). They include: A. To protect the public health, safety, general welfare of the community and to promote the public comfort, convenience and prosperity; B. To ensure the integrity of, and help implement, the comprehensive master plan; C. To foster a more rational pattern of relationships between residential, business, commercial and manufacturing uses for the mutual benefit of all; H. To provide adequate standards of light, air and open space; I. To prevent the overcrowding of land and buildings and thereby to ensure proper living and working conditions and to prevent blight and slums.... In essence, planning commissions are authorized, presuming the respective jurisdictions have enacted proper subdivision controls, to review the plans for proposed subdivisions for compliance with the subdivision requirements (and compliance with separate zoning requirements).

In that review process, in addition to insuring compliance, planning commissions attempt to encourage developers to accept design features deemed appropriate for each respective subdivision. During that process, appropriate conditions may be incorporated into a subdivision approval. Albeit sometimes in the context of zoning ordinances, we have previously discussed the need and appropriateness of such governmental controls. We noted in Board of County ⁴⁹⁶ Commissioners v. Gaster, 285 Md. 283, 248-50 , 401 A.2d 666, 674 (1979): How can a county effectively plan for capital expenditures for roads, schools, sewers, and water facilities if, without regard to preexisting plans, a developer, as proposed here, might place a settlement of 1,200 or more people in the middle of a previously undeveloped area, a settlement which would overtax school facilities and which would necessitate improvement of a road whose reconstruction had not been contemplated before 1990?

Planning would be futile in such situations. In those instances the developer, not the constituted authority of the county, is in control of planning for the future of the county.... ... In the case at bar we see no basic conflict between the zoning regulations and the subdivision regulations. If there were a conflict, the subdivision ordinance in this instance provides that the more restrictive provision shall prevail.

Moreover, Art. 66B, § 3.08 specifies that once a master plan has been adopted by the local legislative body “no street ... shall be constructed or authorized ... until the location, character, and extent of such development shall have been submitted to and approved by the commission as consistent with the plan .... ” [I]f this proposed subdivision were approved, the streets contemplated in it would be spewing traffic out onto a county road “which has poor vertical and horizontal alignment, poor sight distances, and narrow width [, a] road ... not programmed for reconstruction before 1990.” Given the provisions of § 3.08, this in itself was a sufficient basis for the disapproval of the subdivision plat by the commission. ... The county here has preordained by its subdivision regulations that one who seeks to cut up a larger tract by creating a subdivision must not disrupt the master plan and that the subdivision must be compatible with that master plan. Likewise, many zoning ordinances specify relative to special exceptions that they shall be granted only if they are ⁴⁹⁷ compatible with and will not disrupt the master plan.[ 5 ] [Second alteration in original.] We outlined some basic principles of governmental regulatory authority in respect to property in Stevens v. City of Salisbury, 240 Md. 556, 562-63, 567 , 214 A.2d 775, 778, 781 (1965): After the close of the Revolutionary War, the ownership of property in this country has frequently been referred to as “allodial” in nature or that the property is held by “allodial tenure.” In its strict sense, “allodium” means land owned absolutely, and not subject to any rent, service, or other tenurial right of an overlord; however, it has been, and is, uniformly recognized throughout this country that the ownership of property is subject to the rights of government to tax the property, to regulate reasonably its use and enjoyment under the police power of the States, and to take the same, upon payment of the value thereof, when needed for a public purpose. It is an accurate statement to say that every restriction upon the use and enjoyment of property is a “taking” to the extent of such restriction; but every “taking” is not a “taking” in a constitutional sense for which compensation need be paid.

Appellant has enacted subdivision controls pursuant to the authority granted it by Article 66B. Its subdivision regulations are found in Title 20 of the City Code. They provide, in relevant part, that “[t]he planning commission shall not approve a preliminary plat absent a specific finding that the plat meets the provisions of Chapter 21.98, Site Design Plan Review.” City Code, § 20.24.170. Chapter 21.98 has a general intent clause, which provides: ⁴⁹⁸ 21.98.010 Intent.

The purpose of this chapter is to ensure that property is developed with sound planning and design principles while allowing flexibility of design. The intent is to ensure reasonable consideration of, among other things, ... orderly development, and the relationship between the built and natural environments. Section 21.98.050(Q) also provides that site design plan review shall encourage open space: “Areas of usable open space should be provided on site in order to afford visual relief.” 6 The duties of the DPZ are stated in section 21.98.100, including that it shall review, approve, approve subject to modifications or disapprove ... the preliminary site design plan.... ... In reaching its decision, the [DPZ] shall determine if: A. The site design plan meets all of the requirements of the zone in which it is located; B. The locations of the buildings and structures, open spaces, landscaping, and pedestrian and vehicular circulation systems are adequate, safe, and efficient; The [DPZ] shall not approve the site design plan if it finds that the development would not achieve a maximum of compatibility, safety, efficiency, and attractiveness; and the fact that a site design plan complies with all of the stated ... regulations ... shall not, be deemed by itself to create a presumption that the proposed site plan is compatible ... and, in itself, shall not be sufficient to require approval....

To better understand the functions and public purposes of subdivision controls, it is important to note further that: ⁴⁹⁹ Today, the primary purpose of subdivision regulation is integration of a new development into an existing community.... Subdivision regulation is important for a variety of reasons. First, it enables a community to ensure (insofar as is possible) that a new development will “fit in” with the existing community character, that the existing community will be able to provide needed services ..., and that the new development will be a safe and healthy place for its citizens to live. Second, in a broader sense, subdivision controls give local governments the opportunity to attempt to ensure the success of a new development.... ...

Common [subdivision] provisions include the regulation of ... open space for recreation, light, and air.... 13 Richard R. Powell, Powell on Real Property, ¶¶ 873[l][a][i], 873[2][d][i], at 79D-8, 79D-30 (MB ed.1998) (footnote omitted). It is well settled that conditions may be imposed by a municipal planning commission in connection with the approval of a proposed subdivision map or plan. The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and protected.... The imposition of reasonable regulations as a condition precedent to the approval of the subdivision of lands and the recording of plats thereof has been held not to violate any constitutional provisions respecting uniformity of taxation and not tantamount to the taking of private property for public use without just compensation.

In Krieger v. Planning Commission of Howard County, [ 224 Md. 320 ,] 167 A.2d 885 ([ ]1961), the Court of Appeals of Maryland held that requirements of subdividers that impose a limitation of access to highways did not constitute a taking of land in the constitutional sense. ⁵⁰⁰ 3 E.C. Yokley, Zoning Law and Practice, § 17-8, at 71-74 (4th ed.1979) (footnotes omitted). “A subdivision plat may be disapproved for any number of reasons. It may be disapproved where it fails to comply with subdivision legal requirements, applicable zoning laws, or reasonable conditions imposed on the development.” 8 Eugene McQuillin, The Law of Municipal Corporations, § 25.118.30, at 443 (3d ed.1991) (footnotes omitted). Numerous courts have approved the imposition of reasonable conditions in the subdivision approval process. We said in discussing access conditions in Krieger, 224 Md. at 323 , 167 A.2d at 886 : If [the planning commission] could properly [adopt subdivision regulations], it was not arbitrary to enforce them by denying approval of a plan which did not conform.

In the absence of constitutional objection the power of a municipal corporation to impose reasonable conditions upon the issuance of a permit can hardly be doubted. In Prudential Trust Co. v. City of Laramie, 492 P.2d 971, 973 (Wyo.1972), the primary question for the Wyoming Supreme Court was “how much discretion does the city have in exercising its right to approve or reject a proffered plat[?]” The court opined: Our view is that the right and duty of the city to approve a plat necessarily carries with it the right to set reasonable and just prerequisites and requirements for approval of the plat, and in particular in the area of bringing the plat into conformity with other areas with respect to lots, blocks, streets, and the like. Id. at 974 . The California Supreme Court in Ayres v. City Council, 34 Cal.2d 31, 37-38 , 207 P.2d 1, 5 (1949), stated in respect to exactions and conditions that: Where as here no specific restriction or limitation on the city’s power is contained in the Charter, and none forbidding the particular conditions ... it is proper to conclude that conditions are lawful which are not inconsistent with ⁵⁰¹ the Map Act and the ordinances and are reasonably required by the subdivision type and use as related to the character of local and neighborhood planning and traffic conditions.

With regard to condition 2, that an additional ten feet be reserved for a planting strip ... the creation of the subdivision necessitated the restricted use to confine ingress and egress to and from the lots away from [the] Boulevard [and] to screen the lot owners from the traffic noises, fumes and views of the fast-moving traffic.... Other types of conditions have been upheld as well, including recreational open space conditions. See Coffey v. Maryland-Nat’l Capital Park & Planning Comm’n, 293 Md. 24 , 441 A.2d 1041 (1982) (ordinance requiring compliance with master plan); Gaster, 285 Md. 233 , 401 A.2d 666 (relieving traffic and population density); see also Pima County v. Arizona Title Ins. & Trust Co., 115 Ariz. 344 , 565 P.2d 524 (Ariz.Ct.App.1977) (paving of all interior streets in the subdivision); Ayres, 34 Cal.2d 31 , 207 P.2d 1 (buffer strip); Timber Trails Corp. v. Planning & Zoning Comm’n, 222 Conn. 380, 389-93 , 610 A.2d 620, 625-27 (1992) (installing state-approved water service and modifying lot size); Aunt Hack Ridge Estates, Inc. v. Planning Comm’n, 160 Conn. 109, 111 , 273 A.2d 880, 882 (1970) (local ordinance authorizing park and open space requirements, which “shall in all cases be available and accessible to all residents of the subdivision.”); Garvin v. Baker, 59 So.2d 360 (Fla.1952) (condition requiring on-site street and sidewalk standards); City Nat’l Bank v. City of Coral Springs, 475 So.2d 984 (Fla.Dist.Ct.App.1985) (ten-foot buffer strips, street signs and widening of street); Oakes Constr. Co. v. City of Iowa City, 304 N.W.2d 797 (Iowa 1981); 7 ⁵⁰² United Reis Homes, Inc. v. Planning Bd., 359 Mass. 621 , 270 N.E.2d 402 (1971) (construction of drainage facilities); Sansoucy v. Planning Bd., 355 Mass. 647 , 246 N.E.2d 811 (1969) (installation of underground utility lines); Ellen M. Gifford Sheltering Home Corp. v. Board of Appeals, 349 Mass. 292 , 208 N.E.2d 207 (1965) (upholding condition of not more than one dwelling on each lot); River Birch Assocs. v. City of Raleigh, 326 N.C. 100 , 388 S.E.2d 538 (1990) (conveyance of open space to the owner’s subdivision); Clark v. City of Albany, 137 Or.App. 293 , 904 P.2d 185 (1995) (on-site traffic-free area and storm drain facilities), review denied, 322 Or. 644 , 912 P.2d 375 (1996); Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448 (Tex.Civ.App.1968, writ ref'd n.r.e.) (on-site water mains); In re Denio, 158 Vt. 230, 240-41 , 608 A.2d 1166, 1172-73 (1992) (aesthetic open space requirements); Prudential Trust Co., 492 P.2d 971 (reconfiguring streets to line up with off-site public streets).

In City of Carbondale v. Brewster, 78 Ill.2d 111 , 34 Ill.Dec. 838 , 398 N.E.2d 829 (1979), appeal dismissed, 446 U.S. 931 , 100 S.Ct. 2145 , 64 L.Ed.2d 783 (1980), the Illinois Supreme Court noted that “a residential land subdivider may properly be required, as a condition to approval of the plat, to provide curb and gutter and suitable storm-water drainage facilities.” Id. at 115, 34 Ill.Dec. at 840 , 398 N.E.2d at 831 . That same court, in Petterson v. City of Naperville, 9 Ill.2d 233 , 137 N.E.2d 371 (1956), also upheld a subdivision approval subject to the condition that the developer provide curbs, gutters and drainage facilities within the subdivision. In Petterson , the court stated “[t]he privilege of the individual to use his property as he pleases is subject always to a legitimate exercise of the police power under which new burdens may be imposed upon property and new restrictions placed upon its use when the public welfare demands.” Id. at 247 , 137 N.E.2d at 379 . ⁵⁰³ In Patenaude v. Town of Meredith, 118 N.H. 616 , 392 A.2d 582 (1978), the Meredith Planning Board imposed several conditions before it would approve a subdivision plat. They included one provision that identified several proposed lots, considered unsuitable for building, to be left as open space.

The New Hampshire Supreme Court stated: [W]hen an owner intends to develop his land in a manner that will result in a significant number of people forming a community on that land, adequate recreational space is a necessity.... [T]he Meredith Planning Board clearly intends that those moving into the subdivision will have an adequate recreational area. Thus the limitation in use is necessitated by the subdivision itself and need not be compensated. Id. at 623 , 392 A.2d at 586 . With the above in mind, it is important to understand that not all conditions attached to subdivision approvals or imposed on approved subdivisions are “subdivision dedications,” and that no such conditions are “common-law dedications.” Subdivision dedications and common-law dedications are different creatures as well.

Dedications required under subdivision regulations should be distinguished from common law dedications. Common law dedication involves an offer to dedicate and a corresponding acceptance by a local government. Under common law dedication a developer is estopped from later questioning the acceptance. In subdivision regulation dedication, however, questions of legislative authority and constitutionality arise.

Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Control Law 315 (1998). Generally, common-law dedications are voluntary offers to dedicate land to public use, and the subsequent acceptance, in an appropriate fashion, by a public entity. Common-law dedications are not mandated by statute. The offers are generally, although not exclusively, made by showing roads, parks or similar facilities on plats without any limitations on ⁵⁰⁴ dedication, and the recording of those plats.

Generally, acceptance is made by an express recorded document or by the appropriate entity assuming control and maintenance of the property offered. With acceptance, common-law dedication is complete. Referring to common-law dedication in Carr v. Hopkin, 556 P.2d 221, 224 (Wyo.1976), the Wyoming Supreme Court stated, “[t]here must be intent of the owner to devote the property to a public use ... and there must be an acceptance. This last requirement is most important to protect municipalities from having someone impose upon them the responsibility for maintenance and repair of streets or highways.” 8 (Citations omitted.) In Priolo v. City of Dallas, 257 S.W.2d 947, 958 (Tex.Civ.App.—Dallas 1953, writ ref d n.r.e.), the Texas Court of Appeals noted the difference between a statutory dedication and a common-law dedication: Prior [to the statute at issue], ... an offer of dedication was accepted in one of the three well-recognized methods, (1) by the municipality through proper authorities; (2) estoppel created by sale of lots to persons relying on such plat dedicating streets; or (3) actual public user....

It is therefore with reference to a common law offer of dedication that the foregoing methods of acceptance are applicable in contrast to an offer under the statute. “A common-law dedication by a plat may be revoked in whole or in part by the filing of an instrument vacating the plat or a part of it....” The court noted further: “ ‘Dedication’ is a setting apart of land for the public use, and may be either statutory or at common law, the distinc ⁵⁰⁵ tion between a statutory and a common-law dedication being that the statutory dedication operates as a grant, while the common-law dedication operates by way of estoppel in pais.... ” Id. at 953 n. 2. “A subdivision exaction [including a “subdivision dedication”] is a type of subdivision regulation that requires developers to make public improvements or install public facilities (or to finance them) at their own expense.” 13 Powell, swpra, ¶ 873[2][d][ii], at 79D-33 (emphasis added). Subdivision exactions typically take two forms: (1) a statutory dedication or (2) a payment of a fee in lieu of such dedication. Id. ¶ 873[3][c][i], at 79D-45. For example, the court in Coulter v. City of Rawlins, 662 P.2d 888 (Wyo.1983), reviewed a subdivision regulation that imposed a dedication or fee requirement: “a.

All residential subdivisions shall provide for public parks and recreational sites by dedication of land.... [Dedication of such sites and land areas to the City or ... in lieu thereof ... payment to the City of a sum of money equal to the value of the land which would otherwise be dedicated to the City.... Dedication of such sites and land areas shall be made at the time of final platting in one or any combination of the following ways: “1. By dedicating to the City ... on the final plat. “2. By granting the land area in fee simple or general warranty deed to the City....” Id. at 893 (emphasis added).

A “[r]eservation[, a type of condition,] ... is a setting aside of specified land for a specific public purpose. It effects no conveyance to the government, but it restricts the right of the subdivider to use the reserved land.” 83 Am.Jur.2d Zoning and Planning § 563, at 451 (1983). We noted this distinction in Howard County v. JJM, Inc., 301 Md. 256, 270 , 482 A.2d 908, 915 (1984), when we quoted from D. Hagman, ⁵⁰⁶ Urban Planning and Land Development Control Law § 140, at 259 (1975): “Dedication ordinarily involves the conveyance of an interest in land by the fee owner to the public; usually to the local government having jurisdiction over the land. Reservation, on the other hand, involves no conveyance but restricts the right of the subdivider and others to use the land for anything but the restricted purpose.” [Emphasis added.] River Birch Associates v. City of Raleigh, 326 N.C. 100, 108 , 388 S.E.2d 538, 542 (1990), further explains this public versus private conveyance distinction: A conveyance creates a “dedication” only when the conveyance benefits the public at large and not merely a portion of it, such as the property owners within a particular subdivision. “[Tjhere is no such thing as a dedication between owner and individuals.

The public must be a party to every dedication. In fact the essence of a dedication to public uses is that it shall be for the use of the public at large.” Jackson v. Gastonia, 246 N.C. 404, 409 , 98 S.E.2d 444, 447 (1957) (quoting authorities). The ordinance in this case states unequivocally that the conveyance of common areas shall be in fee simple to the home owners’ association, which is composed of the property owners of the subdivision. [Alteration in original.] [Citation omitted.] The recreational area condition on appellees’ subdivision request does not constitute a dedication because the proposed recreational space is not for general public use; it is intended only for the use of those residing within the Parkway development. The recreational space requirement is a condition.

A subdivision dedication can be distinguished from a condition imposed on a subdivision approval (whether a reservation or otherwise) depending on the intended recipient. A subdivision dedication requires a developer to give the public the right to use a portion of his property or gives one of the incidents of ownership (e.g., an “in lieu” fee) to the public at ⁵⁰⁷ large to use. A subdivision condition, like the provision at issue in this case, merely limits the method in which a property owner may thereafter use the property. A subdivision dedication is an exaction generally governed by the standards discussed by the Supreme Court in Dolan v. City of Tigard, 512 U.S. 374 , 114 S.Ct. 2309 , 129 L.Ed.2d 304 (1994):(1) whether there is an essential nexus as described in Dolan ; and, if so, (2) whether the property interest taken is roughly proportional with the demand on public services created by the development.

A condition not equating to an exaction normally is governed by “regulatory takings” analysis: (1) whether, as with statutes in general, a public purpose exists, and, if so, (2) whether the regulation deprives the property owner of all viable economic use of the entire property at issue, 9 which in the case at bar is, at the least, the entire third phase of the development. 10 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16 , 112 S.Ct. 2886, 2894-95 , 120 L.Ed.2d 798 (1992). The Nollan/Dolan [exaction] requirement takes the form of a two-part test: ... a permit condition imposed by government: (1) must have an “essential nexus” to a legitimate state interest; and (2) be “roughly proportionate” to the projected impacts of the proposed development.... Accordingly, the Nollan/Dolan unconstitutional conditions subset of regulatory takings law possesses its own legal ⁵⁰⁸ standards, and is conceptually distinct from “partial,” “total” or “temporary” regulatory takings principles. Dwight H. Merriam, What is the Relevant Parcel in Takings 'Litigation?, in 1999 Zoning and Planning Law Handbook 353, 370 (Deborah A. Mans ed.1999).

For instance, the Oregon Court of Appeals in Clark, 137 Or.App. at 301-02 , 904 P.2d at 190 , concluded that the condition [to create an on-site traffic-free area] is not an exaction; it is essentially a traffic regulation. Regulations of that kind are not “exactions” and are not subject to the Dolan test, as distinct from the tests for pure “regulatory takings.” Condition 10 is a simple limitation on use, and petitioner makes no regulatory taking argument. [Citation omitted.] The two concepts are very different, although exactions and regulatory takings both may arise from statutes. Cf. Lucas, 505 U.S. at 1015 , 112 S.Ct. at 2893 , 120 L.Ed.2d 798 .

The statute in Lucas , for instance, prohibited Mr. Lucas from building anything on his property. It did not require him, for instance, to give any of the incidents of his property ownership, or any part of the property, to the State, nor did it require him to permit the public at large to use his property or exercise any of the incidents of ownership over his property. The Supreme Court said: We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical “invasion” of his property.

In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation. For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 , 102 S.Ct. 3164 , 73 L.Ed.2d 868 (1982), we determined that New York’s law requiring landlords to allow television cable companies to emplace cable facilities in their apartment ⁵⁰⁹ buildings constituted a taking, even though the facilities occupied at most only 1/6 cubic feet of the landlords’ property. See also United States v. Causby, 328 U.S. 256, 265 , and n. 10, 66 S.Ct. 1062, 1067 , and n. 10, 90 L.Ed. 1206 (1946) (physical invasions of air space); cf. Kaiser Aetna v. United States, 444 U.S. 164 , 100 S.Ct. 383 , 62 L.Ed.2d 332 (1979) (imposition of navigational servitude upon private marina). The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.

As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests [essential nexus] or denies an owner economically viable use of his land.” Id. at 1015-16, 112 S.Ct. at 2893-94 , 120 L.Ed.2d 798 (some citations omitted). The Lucas Court meant that in these two instances, even if there is a valid, connected public purpose, i.e., an essential nexus, there still must be compensation for the taking. There are two prongs to both exaction and regulatory takings. The first prong for both is generally the same, the essential nexus between the legitimate public purpose and the requirement.

In practice, the essential nexus may need to be more specific in pure exaction cases because of the more specific nature of the taking, i.e., it may need to relate more specifically to the need for the exaction. The second prong for exactions is the rough proportionality analysis; the second prong for regulatory takings is whether there remains viable economic use of the entire tract involved. If the taking is an exaction, it is an actual taking and whether remaining viable economic use exists is irrelevant. 11 If it is a “regulatory taking,” whether the limitation is “roughly proportional” to the demands for public services is irrelevant. This distinction is important because exactions now are scrutinized typically under Fifth Amendment Taking Clause jurisprudence pursu ⁵¹⁰ ant to Dolan, 512 U.S. 374 , 114 S.Ct. 2309 , 129 L.Ed.2d 304 (1994), while “regulatory takings” usually are examined under Lucas, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 , and related cases.

While the trend of the cases in the last twenty years has been towards a formulaic approach tending to include all “takings” analysis within either the Lucas “regulatory takings” analysis or the Dolan “exactions” analysis, there remain other relevant “takings” issues that do not fit into current “mainstream” concepts. We stated as much in Maryland Port Administration v. QC Corp., 310 Md. 379, 388 , 529 A.2d 829, 833 (1987): “To date courts have not developed a test which can be comprehensively and consistently applied to determine whether a government has taken property.” While at the time of QC Corp. the impact of the “modern” takings cases, Lucas, Dolan, Nollan, and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987), was not yet apparent, there is no indication in those more recent cases that they are to supplant completely the areas of “takings” law that, even with the broad limits of the modern cases, do not fit within their framework. Moreover, some of the early cases were based in substantial part on Maryland constitutional law. They include Grant v. Mayor & City Council, 212 Md. 301 , 129 A.2d 363 (1957), where we noted that the property owner was challenging the ordinance at issue there under state constitutional grounds: “the enforcement of Ordinance 711 ... would take from them [rights of property] without compensation contrary to Art. 3, Sec. 40 of the Constitution of Maryland.” See also Stevens, 240 Md. 563 , 214 A.2d 778 , (“appellants insist that § 42 is an attempt to ‘take’ their property ... which is proscribed by Article 23 of The Declaration of Rights, Article III, § 40 of the Maryland Constitution ....”) See also Leet v. Montgomery County and Richmond Corp. v. Board of County Comm’rs, infra.

We have not limited the consideration of Maryland constitutional issues to the “regulatory takings” (loss of viable economic use) analysis of the Supreme Court’s Mahon/Lucas ⁵¹¹ line of cases or the federal standard for exactions under Nollan/Dolan (although our Howard County v. JJM, Inc., infra, case, in essence, was a precursor of the Nollan/Dolan rough proportionality standard). An example of one type of case that generally would not fit within the Lucas/Mahon or Nollan/Dolan lines of cases would be when a governmental entity desires to prohibit altogether the operation of certain types of uses and enacts a statute that requires the cessation and subsequent demolition of an already existing use. In the absence of sufficient and proper amortization and nonconforming use provisions, constitutional “takings” issues could arise, even if remaining viable economic use would exist after the termination of the use and even if no exactions would result. Grant v. Mayor of Baltimore, 212 Md. 301 , 129 A.2d 363 (1957), and Stevens, 240 Md. 556 , 214 A.2d 775 , illustrate one of our pre Nollan and pre Lucas approaches to regulatory takings.

These two cases show that, given the appropriate circumstances, we have held certain restrictions on existing nonconforming uses to be unconstitutional regardless of whether they effected deprivations of all economically beneficial use of property. In Grant, billboard companies and two owners of land leased for billboard use sought to invalidate a zoning ordinance establishing a five-year amortization period at the expiration of which all billboards in residential districts had to be taken down. This Court remarked that state courts across the nation have held that “it is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful,” Grant, 212 Md. at 308 , 129 A.2d at 365 , and cited, inter alia, the prior Maryland decision of Amereihn v. Kotras, 194 Md. 591, 601 , 71 A.2d 865, 869 (1950) (“Manifestly this cannot be done, because it would amount to a confiscation of the property, and nonconforming use is a vested right and entitled to constitutional protection.”). This Court, however, then distinguished between regulations requiring immediate cessation of nonconforming uses ⁵¹² and those demanding cessation only after a reasonable amortization period.

We reasoned that every regulation “impairs some vested rights because it affects property owned at its effective date”; therefore, the “distinction between an ordinance that restricts future uses and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss.” Grant, 212 Md. at 314, 315 , 129 A.2d at 369 . We further stated that the “significance and effect of difference in degree in any given case depends on circumstances, environment and length of the period allowed for amortization.” Id. at 316 , 129 A.2d at 370 . In Grant, the Court then conducted an in-depth consideration of the facts and competing interests involved in the particular case. The Court held that the amortization period was not unconstitutional for a number of specific reasons.

First, it noted the extensive legislative findings that billboards depreciated property values and otherwise contributed to the detriment of residential neighborhoods. This demonstrated that there was a valid public purpose behind the ordinance. Next, the Court observed that the five-year amortization period was fair because the billboard companies themselves used a five-year depreciation rate for federal tax purposes. Even if the billboards proved to have a useful life beyond the five-year period, they could be transferred to commercial and industrial districts.

Moreover, the billboards in residential districts constituted only 5% of the companies’ total number of billboards in the City, and the companies’ leases with landowners all contained clauses exempting the companies from liability for rent if the municipal ordinance required the billboards to be taken down. Thus, the Court concluded that, with regard to the billboard companies, the character of the governmental action was fair and reasonable