McClure v. Montgomery County Planning Board of the Maryland-National Capital Park & Planning Commission

REED, J. Few cases inflame such deep passions as a dispute involving individual property rights. The belief that fundamental concepts of liberty entailed strong property rights informed and influenced the Founders as they undertook the epochal task of drafting our Constitution. See Sharon A. Rose, Kelo v. City of New London: A Perspective on Economic Freedoms, 40 U.C. Davis L. Rev. 1997 , 2002 (2007). Infringers of these cherished rights should beware for “nothing is better calculated to arouse the evil passions of men than a wanton and unredressed invasion of their ... property rights.” Cameron v. Chi, Milwaukee & St. Paul Ry.

Co., 63 Minn. 384 , 65 N.W. 652, 655 (1896). Appellant, Marquis McClure, seeks our review of the decision of the Circuit Court for Montgomery County in a land use case. Mr. McClure sought judicial review in the circuit court of an order issued by appellee, the Montgomery County Planning Board (the “Planning Board”) of the Maryland-National Capital Park and Planning Commission (“MNCPPC”), which imposed a civil administrative penalty on Mr. McClure and mandated he take remedial actions to correct his violations of a forest conservation easement on his property. Appellant raises three questions for our consideration.

Based on the circuit court’s opinion on his petition for judicial review, however, we rephrase and reorder those questions as follows: 1 ³⁷⁴ I. Did the Planning Board err where it found that the forest conservation easement encumbered appellant’s property and appellant had actual and constructive notice of that easement?

II

Did the Planning Board err where it interpreted its statute to find an enforceable forest conservation easement and then acted according to that interpretation?

III

Did the Planning Board err where it found it had the jurisdiction and authority to enforce the forest conservation easement? We answer these questions in the negative. Accordingly, we affirm the judgment of the circuit court and shall explain. Factual and Procedural Background In March 2000, Mr. McClure entered into a contract of sale for a vacant recorded lot in the Fairhill subdivision development (“Fairhill”) in Laytonsville, Maryland.

The Fairhill Partners Limited Partnership (the “Fairhill Partners”), which is a venture arm of the Bozzuto Group (“Bozzuto”), was the developer of the Fairhill subdivision and was selling the lots. Fairhill Partners and Mr. McClure contracted for the purchase of Lot 7, a 5.21-acre parcel of land within the subdivision. Fairhill’s intersection with Montgomery County’s forest conservation laws dates back to 1992. The Fairhill subdivision was originally approved by the Planning Board in 1980 and Preliminary Plan 1-74019R was recorded at Plat 13190 in the land records of Montgomery County.

This plan created 19 outlots and 27 lots, which included Lot 7. 2 The Planning Board ³⁷⁵ approved Preliminary Plan 1-90057 in 1990, which would have converted four of the subdivision’s outlots to lots. That plan expired, however, because the lots were not recorded. In 1995, Bozzuto approached MNCPPC regarding the development of the 27 extant lots and the potential conversion of up to 5 outlots. In the intervening years between the approval of Preliminary Plan 1-90057 and Bozzuto’s initial discussions with MNCPPC regarding its potential development of Fairhill, the Montgomery County Forest Conservation Law (“MCFCL”), Montgomery Cnty., Md., Code §§ 22A-1 et seq.

(2004), was enacted. The primary reason for Bozzuto’s inquiry of MNCPPC regarding Fairhill was because it wanted to know whether Fairhill was subject to the forest conservation requirements of the MCFCL. MNCPPC officials explained the 27 lots would be subject to the new conservation requirements if a new subdivision plan was approved. Bozzuto, via its Fairhill Partners venture, submitted and received approval of Preliminary Plan 1-96071 from the Planning Board.

Approval of the preliminary plan was contingent on the recordation of a ³⁷⁶ final record plat that delineated a forest conservation easement on the lots. A final plat was never completed and recorded, however, nor was the forest conservation easement (“FCE”) specifically marked on the plats for the 27 lots, including Lot 7. In lieu of recording an updated plat to reflect the FCE, Fairhill Partners executed a Conservation Easement Agreement (the “Agreement”). The Agreement was recorded in the County’s land records on March 13, 1998.

Pursuant to its terms, Fairhill Partners was required to refer specifically to the FCE in any instrument that would convey an interest in property. Mr. McClure and Fairhill Partners settled on Lot 7 in May 2000. The deed Mr. McClure received itself contained no specific reference to the FCE — only a generic clause stating the deed was subject to easements of record. 3 Further, in his testimony before the Planning Board, Mr. McClure stated that no title insurance documents related to the settlement of the property contained any mention of the FCE. The contract of sale, however, contained clear references to the FCE.

Mr. McClure acknowledged the existence of the FCE as demonstrated by his signature. The contract also included a map demonstrating the FCE’s location on the lot. After closing on his property in 2000, Mr. McClure did what many Marylanders do with land and constructed a house. He also built a deck, mowed his lawn, and even grazed horses.

Seeking to fully embrace an agrarian lifestyle, in May 2005, he sought to build a barn and a fence and received permits to that effect. During this period of construction, he learned of the specific boundaries of the FCE. It was also during this period that MNCPPC had received a complaint regarding unauthorized clearing and grading activity in the FCE. ³⁷⁷ Mr. McClure and officials from the MNCPPC held several meetings over the course of the next year regarding the activities on his property and the FCE. In January 2009, the MNCPPC responded to a complaint regarding vehicles and trailers parked in the FCE boundaries.

A notice of violation was issued by MNCPPC on January 7, 2009, to which Mr. McClure never responded. He was issued a civil citation on February 24, 2009. He never paid the citation nor took remedial action. The Planning Board proceeded with its administrative enforcement of the FCE and issued a Notice of Hearing.

The Board alleged in the Notice that Mr. McClure violated the FCE by: 1) cutting grass; 2) installing asphalt and stone; 3) storing and parking trailers; 4) grazing horses; and 5) installing a fence without prior approval. Two hearings were held on January 11 and 25, 2010, where the Planning Board heard testimony and received evidence regarding the alleged violations of the FCE. More than two years later, on April 10, 2012, the Planning Board issued an opinion and order in which it found Mr. McClure responsible for four of the five asserted violations of the FCE. It imposed a $102,378.80 civil penalty and mandated Mr. McClure take corrective actions, specifically: tree planting on and off-site; limited amendment of the preliminary plan and recordation of a new plat reflecting the FCE; installations of posts and signage making clear the easement’s boundaries; submission to a land survey identifying impervious surfaces within the FCE; and removal of said impervious surfaces within the FCE.

Mr. McClure sought judicial review from the circuit court of the Planning Board’s decision on May 9, 2012. Mr. McClure attacked the Planning Board’s decision on several grounds. He argued the Planning Board lacked the jurisdiction and authority to administratively enforce the FCE. He further contended the FCE was not effective because it was not recorded by reference to his plat number in the County land records.

Additionally, he averred the Agreement was not ³⁷⁸ indexed according to his lot’s parcel identifier, making the FCE invalid pursuant to § 3 — 501(a)(2) of the Real Property Article (“RP”) of the Maryland Code. Finally, he argued the Planning Board’s delay in issuing the opinion was arbitrary and capricious, and the civil penalty was excessive. A hearing was held on November 28, 2012, and the circuit court issued an opinion and order on July 8, 2013. The circuit court disagreed with Mr. McClure as to the authority and jurisdiction of the Planning Board to enforce the FCE, and further determined the FCE was effective and encumbered his property.

Moreover, although the circuit court determined that the delay in the issuance of the opinion was not arbitrary and capricious, the court found otherwise as to the civil penalty and corrective action mandated. The circuit court reversed the Planning Board’s order and remanded the case back to the agency with orders to consider the required standards in determining the penalty and corrective action. On August 1, 2013, Mr. McClure timely noted his appeal to this Court. DISCUSSION A. Parties’ Contentions Mr. McClure reiterates a number of the arguments he made before the circuit court.

He again attacks the validity of the FCE, arguing that there is a lack of substantial evidence in the record to demonstrate the Agreement was properly indexed and, therefore, that he had no actual or constructive notice of the easement. He additionally challenges the Planning Board’s jurisdiction and authority to enforce the FCE. He explains that there was no enforceable easement pursuant to the MCFCL, and that the statute does not grant the Planning Board the authority to impose the civil penalty and mandate corrective action. Finally, Mr. McClure offers a rephrased argument on appeal, stating that because the Planning Board did not follow its own regulations, which required the FCE to be shown on the record plat at the time he purchased his property, the Planning Board took unauthorized ³⁷⁹ action pursuant to United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954) (the “Accardi Doctrine”). The Planning Board disagrees on all fronts. First, the Board contends Mr. McClure is bound by the FCE because he purchased his property with actual and constructive notice of the easement, and that the Real Property Article does not automatically invalidate a non-indexed instrument. The Board also explains that the County Code does grant it the authority to enforce unplatted easements, as well as to issue administrative penalties and order corrective action.

Finally, the Board argues that Mr. McClure’s Accardi Doctrine argument is not preserved for our review. In the event that it is preserved, however, the Board contends the doctrine does not apply to the present case because re-platting of pre-existing lots was not required to demonstrate new forest conservation easements. B. Standard of Review This case comes to us on appeal from an order of a circuit court regarding a petition for the judicial review of a decision of an administrative agency. Our standard of review for such cases is well-established.

When we review the decision of an administrative agency or tribunal, “we [assume] the same posture as the circuit court ... and limit our review to the agency’s decision.” Anderson v. Gen. Gas. Ins. Co., 402 Md. 236, 244 , 935 A.2d 746 (2007) (internal citation omitted).

The circuit court’s decision acts as a lens for review of the agency’s decision, or in other words, “we look not at the circuit court decision but through it.” Emps. Ret. Sys. of Balt. Cnty. v. Brown, 186 Md.App. 293, 310 , 973 A.2d 879 (2009), cert. denied, 410 Md. 560 , 979 A.2d 708 (2009) (emphasis in original) (internal citations omitted).

We “review the agency’s decision in the light most favorable to the agency” because it is “prima facie correct” and entitled to a “presumption of validity.” Anderson v. Dep’t ³⁸⁰ of Pub. Safety & Corr. Servs., 330 Md. 187, 213 , 623 A.2d 198 (1993) (internal citation omitted). The overarching goal of judicial review of agency decisions is to determine whether the agency’s decision was made “in accordance with the law or whether it is arbitrary, illegal, and capricious.” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md.App. 264, 274 , 47 A.3d 1087 (2012) (internal citation omitted).

With regard to the agency’s factual findings, we do not disturb the agency’s decision if those findings are supported by substantial evidence. See id. (internal citations omitted). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998) (internal citations omitted) (internal quotation marks omitted).

We are not bound, however, to affirm those agency decisions based upon errors of law and may reverse administrative decisions containing such errors. Id. C. Analysis (i) Efficacy of the FCE Mr. McClure seeks to invalidate the Planning Board’s remedial actions by arguing the FCE is not binding upon him because it was not properly indexed in the Montgomery County Land Records as required by the Real Property Article of the Maryland Code, and he did not receive actual or constructive notice of the FCE. We disagree with Mr. McClure’s statutory interpretations and determine there was substantial evidence in the record that he received both actual and constructive notice of the easement.

Mr. McClure’s contentions are undermined by the evidence in the record that well-supports the existence of a recorded easement on his property. The clerk of the circuit court certified that the Agreement was recorded on March 13, 1998, at 11:52 AM in Liber 15627, Folio 293-330. Schedule A to the Agreement sets forth with great specificity the boundaries of the FCE. Part 3 of the FCE, described at Folio numbers 310- ³⁸¹ 312, states that this part of the easement encumbers a section of Mr. McClure’s lot, Lot 7.

Part 5 of the FCE is described at Folio numbers 314-315, and similarly encumbers part of Lot 7. Then, at Folio number 315, Part 6 of the FCE is described as including a section of Lot 7. At Folio number 326, a graphical representation of Lot 7 is reproduced and shows the placement of the FCE on Mr. McClure’s property. Part 5 of the FCE covers a small, southwesterly segment of Lot 7, and Part 6 similarly covers a small segment in the northwest area of the property.

Part 3 of the FCE, however, covers the largest area of Lot 7, a sweeping segment that includes the center and northeasterly corner of the lot. Without a doubt, there were very specific descriptions of the FCE on Lot 7 recorded in the County’s land records. These detailed descriptions in the recorded Agreement amount to substantial evidence of the existence of an FCE on Lot 7. This evidence, along with plain language of the Real Property Article, therefore, creates barriers to our acceptance of Mr. McClure’s arguments.

First, RP § 3-501 does not, as Mr. McClure contends, create a sui generis recording system for Montgomery County. The general rules for recordation across the entire state — including Montgomery County — are set forth in RP § 3-101. See, e.g., Washington Mut. Bank v. Homan, 186 Md.App. 372, 392 , 974 A.2d 376 (2009) (citing § 3-101 in support of basic statewide recording principles applicable to a property dispute in Montgomery County).

We think § 3-101 is clear on account of its simplicity: “Except as otherwise provided in this section, no ... limitation of use ... may pass or take effect unless the deed granting it is executed and recorded.” RP § 3-101(a). Moreover, “[sjubsection (a) ... does not limit any other method of transferring or creating ... a[ ] limitation which is permitted by the law of the State except to the extent required by law.” Id. § 3-101(b). Section 3-101 sets forth the recording requirements across the State for the effectiveness for, among other things, an easement. ³⁸² Unlike § 3-101, which is devoted to requirements for the effectiveness or transfer of interests in property, § 3-501 is narrowly focused on the indexing of instruments in Montgomery County. Subsection (a) explains the responsibilities of the clerk for the Circuit Court for Montgomery County, which are to “[ajssign to each parcel of real property in the county an individual parcel identifier, numerical or otherwise; and [Record by parcel identifier in a parcel index any instrument or reference to an instrument presented for recording after June 30, 1981.” RP § 3-501(a) (emphasis added).

That subsection further provides that ^Information recorded by parcel identifier in a parcel index shall be the legal record of interests affecting any parcel.” Id. § 3-501(a)(2). Subsection (b) further describes the technical requirements for recording instruments in Montgomery County, as well as exceptions to the provisions of that subsection. 4 Notably, subsection (b)(3) states that “[a]n instrument is not rendered invalid by failure ³⁸³ to comply with the requirements of this section.” (emphasis added). These provisions, therefore, are not conditions to validity but, rather, how these enforceable interests must be organized by the clerk. Critically, the statute explains in no uncertain terms that the validity of an instrument is not affected by non-compliance with the requirements of the section.

In view of the two separate purposes of §§ 3-101 and 3-501, Mr. McClure cannot claim the failure to record the FCE on the specific parcel identifier for Lot 7 renders the easement invalid. For, “[a]n instrument is not rendered invalid” where an easement is not recorded according to the requirements of § 3-501. And, to be sure, the FCE was certainly recorded in the County’s land records as discussed supra. It is this fact of recordation that also persuades us that Mr. McClure received both actual and constructive notice of the FCE.

Although Mr. McClure wishes to play the ostrich and secrete away his head from the signatures on his deed and contract of sale, he will find no solace in the sands. An easement binds any person who acquires title to land with actual or constructive notice of that easement. Arthur E. Selnick Assocs., Inc. v. Howard Cnty., Md., 206 Md.App. 667, 703 , 51 A.3d 76 (2012), cert. denied, 429 Md. 529 , 56 A.3d 1241 (2012) (citing Columbia Hills Corp. v. Mercantile-Safe Deposit & Trust Co., 231 Md. 379, 381-82 , 190 A.2d 635 (1963)). Mr. McClure’s signature appears on several documents related to the settlement of Lot 7, all of which note the existence of a conservation easement.

First, on the list that describes the documents he received from the listing broker, Mr. McClure acknowledges by signature the receipt of, among other documents, a copy of the Conservation Easement Agreement for Fairhill. Next, Item B in General Addendum I to his contract of sale states that conservation easements have been established on Lot 7 to preserve and protect the trees on the property. He acknowledged the FCE by signature on that document as well. In addition to those two documents, in Exhibit C to the contract of sale, there is depicted a diagram ³⁸⁴ of the FCE on Lot 7, which Mr. McClure also acknowledged with his signature.

We think all those documents are certainly demonstrative of actual notice. 5 Notwithstanding Mr. McClure’s assertions that he never received actual or constructive notice, we determine that not only did he receive actual notice, but also he received