District Land Corp. v. Washington Suburban Sanitary Commission

Barnes, J., delivered the opinion of the Court. The question presented to us in this appeal is whether the Circuit Court for Prince George’s County (Meloy, J.) erred in passing an order on February 3, 1972, dismissing a Petition for Writ of Mandamus filed by the appellant, District Land Corporation (District), a Maryland corporation, to direct the Washington Suburban Sanitary Commission (WSSC), one of the appellees, to provide sewer service to apartment buildings planned for construction by District. The relevant facts in this case have been stipulated. In 1967, District purchased a 209.8 acre parcel of land known as the Anderson Tract.

After the purchase of the property, District began to take the necessary steps to begin the construction of apartment buildings on the 69.6 acres of the subject property which had been rezoned on October 11, 1966, from the R-R zone to the R-20, multiple-family, medium-density residential zoning classification. Thus, District filed Preliminary Plans of Subdivision (#1-67182) with the Montgomery County Planning Board of the Maryland-National Capital Park and Plan ³⁰⁴ ning Commission, which were approved on March 21, 1968, and established the zoning and park-taking lines. A preliminary Plan of Subdivision (#1-70004) for approximately 46.86 acres of the R-20 parcel was approved by the Maryland-National Capital Park and Planning Commission on July 16, 1970. Thereafter, District’s request for water mains and sewer extensions was approved by WSSC on August 31, 1970, with the customary conditions attached thereto.

Pursuant to the sewer authorization, District and the WSSC on May 19, 1971, entered into an Engineering Agreement and District paid to WSSC $3,750 in fees. District and WSSC entered into a Front-Foot Benefit Agreement on May 13, 1971, wherein, inter alia, WSSC agreed to extend and construct water and sewer lines to the 69.6 acre parcel and, at a later date, to permit connections to these water and sewer lines. The water lines and the sewer lines had been constructed by WSSC prior to the commencement of the suit. It was further agreed by all parties to this action that District has complied with every condition attached to WSSC’s authorization of August 31, 1971, that District has obtained, except for the permits sought in this case, all necessary and requisite governmental approvals and permits incident to the construction of the apartment units on the subject property, and, further', that District has complied with all applicable laws, rules, regulations and conditions imposed by the appropriate governmental agencies concerned with the development of the subject property.

The trunk sewer lines traversing the subject property were constructed by the WSSC in the years 1967-1968, pursuant to the Five-Year Sewerage Program (Fiscal 1967-1971), adopted September 29, 1966, and Capital Improvements Program adopted pursuant thereto. On June 3, 1971, by Resolution No. 7-233, the County Council for Montgomery County adopted the Comprehensive Ten-Year Water and Sewerage Plan and approved the WSSC’s Six-Year Capital Improvements ³⁰⁵ Program. Resolution No. 7-233 was transmitted to the State Department of Health, and that Resolution was not disapproved within the time prescribed by Code (1971 Repl. Vol.) Art. 43, § 387C (d) 1.

Section III. J. of the Resolution contained a provision whereby sewer service to certain Montgomery County areas was to be provided by the Commission only where the development conformed to the duly adopted and approved Master Plan. The subject property lies within one of these areas, “Gaithersburg and Vicinity.” The Master Plan for Gaithersburg and vicinity had been approved and adopted on January 14, 1971, and recommended that the subject property should be developed in the R-R classification in which apartment units are not permitted. On July 26, 1971, District applied to the Montgomery County Department of Inspection and Licenses for Building Permits, and paid to the County the amount of $3,-986.00 as fees therefor.

On August 3, 1971, that Department issued Building Permits to District authorizing the construction of 420 apartment units on the subject property. Based upon Section III. J. of Resolution No. 7-233, the WSSC, by letter dated December 13, 1971, declined to issue the sewer and water connection permits to District, pending a determination by the Montgomery County Council which had before it a proposed amendment to the Ten-Year Water and Sewerage Plan and the Six-Year Capital Improvements Program, which, if enacted, would have resolved the legal controversy concerning the 420 apartment units. However, on January 25, 1972, the County Council rejected the proposed amendment.

District filed suit against the Commission for a Writ of Mandamus in the Circuit Court for Prince George’s County on December 17, 1971, directing the issuance of necessary house connection permits for the 420 apartment units. Thereafter, Montgomery County, Maryland, one of the appellees, moved to intervene, and, with the consent of the other parties, was permitted to do so. A ³⁰⁶ hearing was held on February 3, 1972; and at the close of the case, the court denied the Writ of Mandamus and granted the motion of the defendants to dismiss. A brief summary of the relevant statutory enactments in this area will be helpful in understanding the issue at hand.

At one time, the planning and construction of water and sewerage facilities in the Montgomery County portion of the Washington Suburban Sanitary District was not subject to a legislatively expressed staging or program requirement. By the Laws of 1955, Chapter 78, the Five-Year Water and Sewer Program was established, requiring’ the advance planning and programming of major extensions of sanitary sewer systems. This law was amended by the Laws of 1959, Chapter 779 to specify a program period (five years) with procedures for county government and Maryland-National Capital Park and Planning Commission roles in the adoption of such programs. In accordance with the provisions of the “Five Year Program Law” as it stood in 1966 (Laws of 1966, Chapter 637), the Commission formulated projected extensions of its sewer facilities, including Project No. 53, the “Great Seneca Creek-Whetstone Run” trunk sewer.

Construction of Project No. 53 was started and completed in the years 1967-68 and traversed District’s property. The scope of the Five-Year Water and Sewer Program was amended by the Laws of 1969, Chapter 700, which provided for a Six-Year Capital Improvements Program and added certain procedural requirements. A state-wide requirement for advance planning of water and sewer facilities was established by the Laws of 1966, Ch. 562, adding §. 387C to Article 43 of the Code, providing for the establishment of a Ten-Year Water and Sewer Plan for each county to be submitted to the State Department of Health no later than January 1, 1970. In Prince George’s and Montgomery Counties, the WSSC was designated as the agency responsible for preparing the plan for submission to the governing bodies of those ³⁰⁷ counties.

The governing bodies were then responsible for reviewing the plans, causing appropriate modifications, approving the plans and submitting the plans to the State Department of Health. As mentioned above, on June 3, 1971, the County Council for Montgomery County, by Resolution No. 7-233, adopted the comprehensive Ten-Year Water and Sewer Plan, and approved WSSC’s Six-Year Capital Improvements Program. It is District’s position, inter alia, that the denial of sewer service by the WSSC, pursuant to Resolution No. 7-233, was not authorized by either the Laws of 1969, Chapter 700 (the Six-Year Capital Improvements Program) or by Code, Article 43, § 387C., In our opinion, the decision in this appeal turns upon a question of statutory construction in order to ascertain the intention of the County Council in adopting Resolution No. 7-233, with particular reference to subsection J. We must determine inter alia whether the words, “service is to be provided only to developments which conform to the duly adopted and approved master plan,” applicable to the area of Gaithersburg and vicinity, in which the subject property is located, were intended to apply to developments for which sewer lines would be constructed pursuant to the Six-Year Capital Improvements Program or whether they were intended to apply to developments for which water and sewer lines had already been constructed pursuant to a prior Five-Year Sewerage Program and Capital Improvements Program. In determining the legislative intent, we examine the words used as the primary source for discovering that intent.

Maryland Medical Service, Inc. v. Carver, 238 Md. 466, 478 , 209 A. 2d 582, 588 (1965). If the words are clear and unambiguous, generally speaking, the search for the legislative intent ends. If, however, the words are not clear and unambiguous, then the well-established rules of statutory construction apply. Clerk of the Circuit Court for Calvert County v. ³⁰⁸ Chesapeake Beach Park, Inc., 251 Md. 657, 663-64 , 248 A. 2d 479, 482-83 (1968).

In view of the language in subsection J. that the additional service restrictions are “under Six Year Program,” it appears that it was intended to exclude developments for which sewer lines had been constructed under the prior Five-Year Sewerage Program. On the other hand, the word “developments” is not otherwise defined or limited in the body of subsection J. so that its meaning is left open to construction. Hence, we turn to the rules of statutory construction to determine the legislative intent. We first consider the statutory authorization by the General Assembly of Maryland, Laws of 1969, Ch. 700, pursuant to which the Six-Year Capital Improvements Program was adopted.

In this Act the purpose was stated to be: “to establish procedures for the preparation by the Washington Suburban Sanitary Commission of a six-year capital improvements program with respect to water and sewerage facilities, specifying the information and schedules to be included in the Commission’s programs and the procedures for consideration thereof, and action thereon, by the governing bodies of the two counties in the Washington Suburban Sanitary District.” The Act in Section 1(a) requires WSSC to: “prepare and submit to the governing body of each county in the Sanitary District a six year projected program of capital improvements with respect to water and sanitary sewerage facilities, the same hereinafter being referred to as the Commission’s capital improvements program.” (Emphasis supplied.) It also provides that the Six-Year Capital Improvements Program include: “a statement of the objectives of the several projects or individual programs therein and their relationship to the long-range development plans of the respective county governing bodies, as the same shall have been designated to the Commission by the county governing body. The Commission’s capital improvements program shall, for each project, show a projected construction schedule, an esti ³⁰⁹ mate of cost, and a statement of funding sources, including contributions which may be required for the