Howard County v. jjM, Inc.

SMITH, Judge. At issue in this case is the validity of a Howard County statute requiring developers- to “reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general plan and included in the state’s twenty-year highway needs inventory which is located within the subdivision.” We perceive the central issue here to be whether the proposed subdivision reasonably generates the need for the highway in question. No evidence of such need has been presented. Therefore, we agree with the circuit court that when the statute is read as a whole it deprives the owner of all use of its land and hence, as applied in this case, is an unconstitutional taking of property without compensation.

Thus, we shall affirm. I Howard County is a charter county under Md. Const, art. XI-A. It is authorized by Maryland Code (1957, 1981 Repl.Vol.) Art. 25A, § 5(X) to enact local laws “relating to zoning and planning including the power to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court” and thence to the Court of Special Appeals. Pursuant to this authority Howard County Charter § 1105 established the Office of Planning and Zoning and the County enacted subdivision regulations.

Howard County Code (1977, 1980 Supp.) § 16.-113(b)(2) provides in pertinent part: “The owner shall reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general plan and included in the state’s twenty-year highway needs inventory which is located ²⁵⁹ within the subdivision. Such reservation shall be in the general location and to the right-of-way width specified by the state.” Definitions of terms used in the County’s subdivision and land development regulations are contained in § 16.108. Section 16.108(54) defines “reservation” as “the assignment of land by a developer for a specified use, to be held by him or his assignees for that use and no other use to a future time.” In the fall of 1980 appellee JJM, Inc., submitted a subdivision plan to the Office of Planning and Zoning. The plan was for the Hammond Hills Subdivision.

It involved. a 115.12 acre parcel located on the northeast side of existing Maryland Rt. 216 and approximately 1,500 feet east of U.S. Rt. 29. In compliance with Howard County Code § 16.-113(b)(2), the subdivision plat showed the right-of-way for the proposed relocation of Rt. 216 as being reserved. This right-of-way cut a wide swath through the proposed development. A small part of the tract was between the existing Rt. 216 and the proposed Rt. 216.

Most of the land was on the north side of the proposed relocated Rt. 216. The right-of-way reservation for Rt. 216 was established in 1971 when the County Council adopted the general plan of highways. The relocation of Rt. 216 was included in the State’s 1980 twenty-year highway needs inventory. The Office of Planning and Zoning approved this subdivision plan in December 1980.

On December 7, 1981, JJM submitted a revised sketch plan for the same property. The revised plan showed residential lots within the right-of-way reservation area. Because the revised plan did not comply with Howard County Code § 16.113(b)(2) and § 16.111(3), specifying that subdivision layouts “shall be in accordance with the highway part of the transportation element,” the Office of Planning and Zoning refused to approve the subdivision. JJM appealed to the Howard County Board of Appeals.

It was established in proceedings before the board that the ²⁶⁰ proposed relocation of Rt. 216 had not been included within the State’s six-year construction plan, a necessary step for its construction, and that the process of including Rt. 216 in the six-year construction plan would take at least one year, but probably longer. The Director of the Office of Planning and Zoning testified that from 1971, the time the proposed relocation was incorporated into the County’s general plan, to 1981, the time of the submission of the revised plan, all that had been accomplished was a determination that the proposed road would be built at some time in the future. He further stated that, given the circumstances of the case, there was no possibility that a variance would be granted to the developer. The Board of Appeals affirmed the decision of the Office of Planning and Zoning, stating that the latter had acted in accordance with Howard County Code § 16.113(b)(2).

JJM appealed to the Circuit Court for Howard County. It sought declaratory and injunctive relief. The circuit court held § 16.113(b)(2) unconstitutional as applied to JJM’s revised sketch plan. In so holding it first noted that JJM was required to reserve a portion of its land, without compensation, for an indefinite period of time.

Second, the court recognized not only the right of a governmental authority to regulate the development of private property by means of the police power, but also the fact that an exercise of the police power which imposes an “onerous burden” on the owner’s property rights constitutes a compensable taking. Third, the court reviewed our decision in Md.-Nat’l Cap. P. & P. Comm’n v. Chadwick, 286 Md. 1 , 405 A.2d 241 (1979). It determined that the following proposition emerged from that case: “A regulation requiring a reservation limited in scope and duration would be a valid exercise of the police power.

Section 16.113(b)(2) must therefore meet the test of reasonableness.” The court concluded that, given the facts before it, the application of the Howard County statute to JJM deprived the property owner of the right to make “any effective use of the property placed in reservation.” The court ²⁶¹ further determined that the effect of the law was to “ ‘freeze’ the property of a prospective condemnee by restricting, inhibiting and preventing the owner from improving or changing the condition of its property.” It held that these factors, combined with the absence of any opportunity for variance relief, rendered the law unconstitutional as applied. Howard County and JJM appealed to the Court of Special Appeals. We granted a writ of certiorari before consideration of the matter by the intermediate appellate court. In the view we take of this case we have no need to consider JJM’s appeal.

II JJM has moved to dismiss Howard County’s appeal. Hence, we must first decide that issue. The right of appeal is wholly statutory. Therefore, the General Assembly must expressly grant such a right.

See, e.g., Maryland Board v. Armacost, 286 Md. 353, 354-55 , 407 A.2d 1148, 1150 (1979); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500 , 331 A.2d 55, 64 (1975); Urbana Civic v. Urbana Mobile, 260 Md. 458, 461 , 272 A.2d 628, 630 (1971). We have held that a quasi-judicial agency, such as the Howard County Board of Appeals in this case, cannot institute an appeal when its decision is reversed by a circuit court absent an express grant of the right to appeal.

We have reasoned in several cases that because the agency acts in a quasi-judicial capacity, it has no interest in an appeal from a decision it has rendered and therefore it cannot be deemed an aggrieved party. See, e.g., Armacost, 286 Md. at 356-57 , 407 A.2d at 1151 ; Employment Sec. Adm. v. Smith, 282 Md. 267, 269-70 , 383 A.2d 1108, 1110 (1978); Bd. of Ex. of Land, Arch. v. McWilliams, 270 Md. 383, 386 , 311 A.2d 792, 794 (1973); Board of Zoning Appeals v. Guns, 259 Md. 368, 368-69 , 269 A.2d 833 , 833 ²⁶² (1970); Zoning Appeals Board v. McKinney, 174 Md. 551, 563-64 , 199 A. 540, 545-46 (1938). 1 JJM argues in this case that the appeal is brought on behalf of the Board of Appeals or the Office of Planning and Zoning and not on behalf of the County. To support this contention, it notes a letter written by the Director of the Office of Planning and Zoning to the County Solicitor in which an appeal from the circuit court decision was requested. Nevertheless, Howard County is named as a party on this appeal.

The County Solicitor entered his appearance on behalf of the Planning Department in the circuit court and his office has been involved in the case at least from that time. Therefore, it would appear that if the County is authorized to be a party and if the solicitor is authorized to represent the County in suits of this nature, then the appeal in this case was properly brought. Howard County Charter § 103 provides that “[t]he corporate name shall be ‘Howard County, Maryland,’ and it shall thus be designated in all actions and proceedings touching its rights, powers, properties, liabilities and duties.” Section 405(b) provides that only the County Solicitor is authorized to represent the County and its “several offices, departments, boards, commissions and other agencies.” The grant of this duty to the County Solicitor strongly implies that the drafters of the charter intended that the County should have adequate counsel in all legal matters in which it becomes involved. A catchall provision in § 904 of the charter expressly grants the County “all powers necessary and convenient for the conduct of its affairs,” which obviously should include the power to defend its subdivision regulations against charges of unconstitutionality.

The ²⁶³ Office of Planning and Zoning is the department of the County concerned with those regulations. It is logical for it to be the agency requesting the County Solicitor to proceed with an appeal in the name of the County in this case. Therefore, in construing the statute as a whole so as to avoid absurd consequences, it would seem that the County is authorized to be a party to the present appeal. See In re Special Investigation No. 281, 299 Md. 181, 200 , 473 A.2d 1, 10 (1984).

See also Baltimore City v. Borinsky, 239 Md. 611, 616 , 212 A.2d 508, 510-11 (1965) (Court concluded that Baltimore City was a proper party to a suit given that the zoning ordinance at issue was a proper exercise of its police power and that Baltimore City had a legitimate interest in upholding its policies). JJM, in urging that we dismiss the County’s appeal, cites § 501(d) of the Charter, which states that the Board of Appeals “shall be a party to all appeals and shall be represented at any such hearing by the Office of Law.” That section, however, deals with appeals to, not from the circuit court. In Howard County v. Mangione, 47 Md.App. 350 , 423 A.2d 263 (1980), the Court of Special Appeals determined that § 501(d) did not attempt to bestow on the Board of Appeals the right of appeal normally granted an “aggrieved party.” The court stated: “While it may be administratively expedient to require the Board to be a party in the circuit court in order to provide that court on appeal with all the pertinent information which the Board had before it and upon which the Board reached its conclusion, there is nothing in this scheme which suggests that the charter intended to clothe the Board with the duty to represent Howard County in upholding the integrity of its zoning laws.” 47 Md.App. at 356 , 423 A.2d at 267 . Thus, § 501(d) does not alter the conclusion, based on other provisions of the charter, that Howard County is authorized to be a party to the present appeal. ²⁶⁴ Ill The County argues that the requirement that a developer reserve a right-of-way in a subdivision for a proposed state road constitutes a valid exercise of the police power, not an unconstitutional taking of property without compensation.

It says that under the circumstances here the subdivision regulation does not deprive JJM of all beneficial use of the property. Further, the possible diminution in the value of the property does not render application of the regulation a taking: diminution of value alone is not a proper basis for invalidating a police power regulation. It argues that the lower court not only overlooked this legal proposition, but also failed to recognize that the purpose of the reservation provision was to prevent the placément of improvements in the path of a proposed highway. JJM contends that the reservation provision constitutes an unconstitutional taking of property without compensation.

Relying on our decision in Chadwick, 286 Md. 1 , 405 A.2d 241 , JJM points out that no time limitation on the reservation of this property exists and no benefits or payments are to be made to it while the property is reserved. Accordingly, it is contended that JJM is deprived of all beneficial use of the property because reservation of that portion necessary for the relocation of Rt. 216 would disrupt development of the entire tract. JJM further argues that Howard County is not authorized to act as the State’s agent for the purpose of reserving land for the use and benefit of the State. The County urges that this case is controlled by Krieger v. Planning Commission, 224 Md. 320 , 167 A.2d 885 (1961).

Krieger also was a Howard County case. There a planning commission created under a public local law denied approval of a subdivision plan because it failed to take into consideration the fact that a road abutting the property in question was designated a “primary road,” to have a minimum width of 100 feet. Further, the lot areas shown on the plan were not sufficient, excluding the bed of the planned road, to comply with the 20,000 square feet minimum lot size speci ²⁶⁵ fied in the zoning regulations. In that case, the Court determined that the planning commission’s action was reasonable: “As the trial court pointed out, the purpose of these sections was to avoid subdivision and improvement of land in the path of a projected highway or in the path of a projected enlargement of an existing highway.

If the Planning Commission were powerless to require compliance, the whole purpose of planning and zoning, which looks to the future, would be frustrated.” 224 Md. at 323 , 167 A.2d at 886 . Judge Henderson went on to say for the Court in that case: “Planning with reference to future streets is no novelty in Maryland. See Clarks Lane Garden Apts. v. Schloss, 197 Md. 457, 460 [, 79 A.2d 538 (1951)]. On the other hand, as noted in Congressional School v. State Roads Comm., 218 Md. 236, 241 , [ 146 A.2d 558 (1958),] there seems to be general agreement among the authorities that zoning cannot be used as a substitute for eminent domain proceedings so as to defeat the constitutional requirement for the payment of just compensation, in the case of a taking of private property for public use, by depressing values and so reducing the amount of damages to be paid.

In that case we found it unnecessary to decide the validity of a zoning classification claimed to have been made to hold down the cost of subsequent acquisition by condemnation for highway use. Nor do we find it necessary to decide the question in the instant case. “There is nothing in the record to show a present taking, as distinguished from a regulation of use, or to indicate that if, or when, the strip of land adjacent to the existing highway is condemned for purposes of widening, the owner will not be paid the full value thereof. Nor is the appellant precluded from putting the twenty-foot strip to whatever permissible use he pleases. There is no change in the use classification.

He is simply denied a right to include it in computing the areas of lots fronting ²⁶⁶ on the road so that in the event of future widening in conformity to the master plan the lots will still comply with the applicable area requirements. The action of the Commission is not designed to keep the strip in an unimproved condition so that the cost of condemnation would be less. The setback provisions would prevent its development in any case. Moreover, it is not shown that the present or future value of the land would be diminished by compliance with the master plan and regulations.

It may well be that its value would be enhanced or that the developer could recoup any additional expense from prospective lot purchasers.” 224 Md. at 323-24 , 167 A.2d at 887 . The Court rejected not only the contention of appellant that the absence of a guarantee from the State Roads Commission that the road would be widened in the future rendered the planning commission’s action unreasonable, but also the argument that the planning commission had no authority to act as the State’s agent in such a matter. The Court perceived no merit in these contentions because: the local code authorized adoption of a master plan; there was evidence that the County and the State Roads Commission coordinated road plans and highway development; and there was a foreseeable need for widening primary and arterial roadways in the County because of population expansion. 224 Md. at 325 , 167 A.2d at 888 . The Court concluded, “[TJhere is no violation of constitutional principle.” 224 Md. at 326 , 167 A.2d at 888 .

The difference between this case and Krieger is the definition of reservation contained in Howard County Code § 16.108(54), which requires a developer to assign the land “for a specified use, to be held by him or his assignees for that use and no other use to a future .time.” It will be recalled that § 16.113(b)(2) requires the owner to “reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general plan,” and further states that “[sjuch reservation shall be in the general location and to the right-of-way width specified by ²⁶⁷ the state.” Although the County suggests that the reserved land could be farmed, such a use would not be for highway purposes: the clear language of the statute provides that reserved land may be used for “no other use” than that for which it is reserved. In Chadwick, 286 Md. 1 , 405 A.2d 241 , we held that the Maryland-National Capital Park and Planning Commission unconstitutionally deprived landowners of property without just compensation because it compelled them to place land in public reservation for a period not to exceed three years. Although the land was exempt from taxes during this period, the statute in question specified that “any land so reserved [should not] be put to any use whatsoever, except upon written approval of the board,” other than permission to “remov[e] weeds or trash from property so reserved ____” 286 Md. at 5, 405 A.2d at 243 . We concluded that the “Commission’s resolution placing appellees’ land in reservation for a period up to three years stripped the landowners, for that extended period of time, of all reasonable use of their property and was tantamount to a ‘taking’ without compensation as the lower court declared.” 286 Md. at 12, 405 A.2d at 247 .

Chief Judge Murphy said for the Court: “We construe the ordinance under which the Commission acted as not permitting the landowner to make, as a matter of right, any use of the property placed in reservation (other than to remove trash and weeds). We further construe the ordinance as not authorizing the planning board to permit, upon the landowner’s application, any use of the reserved property which conflicts with the flat prohibition contained in the ordinance against grading the land, erecting any structures thereon, or removing trees, top soil or other cover. Restrictions of such totality upon the use of property placed in reservation for a three-year period bring this case within the principle, so well illustrated in Pennsylvania Coal [Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922) ], that a governmental restriction imposed on the use of land may be so ²⁶⁸ onerous as to constitute a taking which constitutionally requires the payment of just compensation.” 286 Md. at 13, 405 A.2d at 247 (emphasis in original). The Court further stated: “The resolution does not merely circumscribe a beneficial use of the property; it inhibits all beneficial use for up to three years, without any guarantee that the property will be acquired in the future.

That the Commission’s resolution is tantamount to a taking is, we think, clearly buttressed by cases in other jurisdictions.” 286 Md. at 15, 405 A.2d at 248 . We concluded the opinion by saying: “The Commission, supported by a well-prepared amicus curiae brief filed by the Attorney General, urges that we apply the rationale of cases like Headley v. City of Rochester, 272 N.Y. 197 , 5 N.E.2d 198 (1936), and State v. Manders, 2 Wis.2d 365 , 86 N.W.2d 469 (1957), sustaining the constitutionality of so-called official map laws — statutes which establish the location of existing and planned streets and place restrictions on the issuance of permits to build structures in the bed of proposed roadways. These statutes restricting development in the bed of mapped streets contain provisions for variances to assure the landowner of a reasonable return on affected property, including the granting of a building permit to prevent substantial damage accruing to the owner where that course of action is required by justice and equity. Maryland’s statute controlling development in mapped streets is similar to those involved in Headley and Manders.

See Maryland Code (1957, 1978 Repl.Vol.) Art. 66B, § 6.01 et seq.[ 2 ] ²⁶⁹ “The facts of the present case clearly distinguish it from the cited cases involving the reservation of street locations. As in those cases, we recognize the need to promote intelligent planning by placing reasonable restrictions on the improvement of land scheduled to be acquired for public use. We do not, therefore, condemn as beyond the police power the enactment of reservation statutes which are reasonable in their application both as to duration and severity. Our holding today is a narrow one, limited to the facts before us.

We conclude only that the Commission’s resolution passed pursuant to § 50-31 of the County Code, placing appellees’ land in reservation for up to three years, without any reasonable uses permitted as of right, was tantamount to a ‘taking’ in the constitutional sense.” 286 Md. at 17-18, 405 A.2d at 249-50 (footnote omitted). To similar effect see Lomarch Corp. v. Mayor of Englewood, 51 N.J. 108 , 237 A.2d 881 (1968), involving a one-year reservation. Compare Carl M. Freeman, Inc. v. St. Rds. Comm ’n, 252 Md. 319, 330 , 250 A.2d 250 (1969), in which we held unconstitutional a Montgomery County statute which provided that “[a]ny area reclassified by a local or sectional ²⁷⁰ or District plan map amendment sh[ould] exclude and be held to exclude any portion of the area l[ying] in the bed of a road, street, or alley, whether existing or proposed on a plan adopted by the Commission or other duly constituted public authority.” We come down to the issue in this case, which is whether the Howard County subdivision regulation requiring JJM to reserve land for a proposed State highway constitutes an exercise of the County’s police power or a taking.

If the regulation is determined to be a valid exercise of the police power, then JJM has no legal cause for complaint. If, on the other hand, the regulation is determined to be a taking of the property, the County has no right to require the reservation for the proposed highway. D. Hagman, Urban Planning and Land Development Control Law § 140 (1975) defines the terms dedication and reservation: “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.” Id. at 259.

See also R. Anderson, American Law of Zoning § 23.25 (2d ed. 1977). Anderson comments in § 24.03: “The adoption of an official map, implemented by statutes prohibiting the improvement of areas depicted as streets, highways, drainage systems, or other public installations, raises constitutional questions which have troubled the courts as deeply as the more extensive controls imposed by zoning restrictions and subdivision regulations. While an official map, in the usual case, has less impact upon a landowner’s free use of his tract than is true in the case of an ordinance which imposes restrictive zoning, or one which prohibits subdivision unless expensive improvements are installed, such a map may ²⁷¹ wholly deny him the use of a small area. Attorneys react sharply to such a deprivation, and some courts have been similarly disturbed.

The notion that a municipality can deny to a landowner the use of