Nordheimer v. Montgomery County

ELDRIDGE, Judge. This case involves claims for refunds of transfer taxes paid to Montgomery County in connection with the conversion of rental property into a condominium, contentions concerning the validity of the Montgomery County taxes imposed, and a request for an injunction preventing the collection of further county taxes based on the conversion of the property. I. Before setting forth the facts of this case, it would be useful to review briefly the pertinent statutory background. In 1974 the General Assembly enacted the Horizontal Property Act, a statute applicable throughout the State.

Ch. 641 of the Acts of 1974. One provision of that statute, previously codified in Code (1974, 1980 Cum.Supp.), § 11-120(b) of the Real Property Article (now in Code (1974, 1981 Repl.Vol.), § ll-122(b) of the Real Property Article), prohibits local governments or other governmental bodies from ⁸⁸ enacting laws, ordinances or regulations imposing burdens on condominiums which are not imposed on all other similar property not subject to a condominium regime. 1 The Horizontal Property Act also specified in § 11-127 of the Real Property Article (1974, 1980 Cum.Supp.) that, in the event of a conflict between the Act and any other law, including a public general law enacted by the General Assembly, the Horizontal Property Act would prevail. 2 For a detailed discussion of the Horizontal Property Act, and particularly §§ 11-120 and 11-127, as well as the background of the statute, see Judge Rodowsky’s opinion for the Court in Rockville Grosvenor, Inc. v. Mont. County, 289 Md. 74 , 422 A.2d 353 (1980). ⁸⁹ The next relevant statute is Ch. 648 of the Acts of 1980, which became effective on July 1, 1980. In that enactment, the General Assembly amended the public local laws of Montgomery County by adding to the provisions authorizing real estate transfer taxes an authorization to levy and impose a tax of “four percent of the value of the consideration for the initial transfer of a residential unit subject to a condominium regime offered for rent for residential purposes prior to the establishment of the condominium regime.

The tax shall be paid by the initial transferor of the residential unit.” Ch. 648 related specifically, and only, to the initial transfers of units subject to a condominium regime. Pursuant to the authority set forth in Ch. 648, the Montgomery County Council enacted Bill No. 22-80, which was signed by the County Executive and became law on July 28, 1980. This ordinance, codified as § 52-21(h) of the Montgomery County Code (1972, 1977 Repl.Vol., 1981 Cum. Supp.), is the subject of the challenge in the instant case.

It requires that owners of rental units who convert their properties to condominiums pay four percent of the sales price for each unit at the time of initial sale and transfer. The ordinance further provides that transfers will be exempt from the tax if the condominium regime was established “prior to the effective date of this law.” 3 ⁹⁰ The following year, by Ch. 797 of the Acts of 1981, the General Assembly authorized Montgomery County to levy and impose a tax of “four percent of the value of the consideration for the initial transfer of stock or other evidence of membership in a cooperative housing corporation or similar entity where such stock corresponds to a residential unit which is being converted from rental status to a system of cooperative housing corporation ownership.... ” Montgomery County, by Bill No. 24-81, effective July 1, 1981, imposed such a cooperative transfer tax.

II

Turning to the facts of the instant case, Parkside Associates acquired title to the 954 unit Parkside Apartments complex by a deed dated July 31, 1980. On April 14, 1981, by recording a declaration, bylaws and condominium plats among the land records of Montgomery County, Parkside Associates converted the complex to a condominium regime and began selling units. Between April 29, 1981, and April 6, 1984, Parkside Associates transferred title to 928 of the units. Montgomery County demanded that Parkside Associates pay, and Parkside Associates have paid, a total of at least $2,741,978.17 in taxes on the initial title transfers, pursuant to § 52-21(h) of the Montgomery County Code.

Parkside Development Corporation and Parkside Tenants’ Association, both of which are tenants’ organizations, together with various individual tenants of Parkside Apartments, filed in the Circuit Court for Montgomery County a bill of complaint in 1981, an amended bill of complaint in ⁹¹ 1983, and a second amended bill of complaint in 1984, naming as defendants the two corporations who were general partners of and trading as Parkside Associates, Gary Nordheimer who was allegedly a Parkside Associates general partner, and Montgomery County. Among other things, the plaintiffs requested a declaratory judgment as follows: “Declare that the Condominium Transfer Tax, Section 52-21(h) does not apply to the initial transfer of condominium units at the Parkside Condominium since it violated the provisions of Sections ll-120(b) and ll-127(c), Real Property Article, Annotated Code of Maryland. “Declare that the Condominium Transfer Tax, Section 52-21(h) does not apply to the initial transfer of condominium units at the Parkside Condominium since it violates the equal protection of Article 24, Declaration of Rights, Maryland Constitution and/or the Fourteenth Amendment, United States Constitution.” Parkside Associates and Nordheimer filed a cross bill of complaint against Montgomery County seeking, inter alia, a refund of the condominium transfer taxes paid to Montgomery County on the transfers of units at Parkside Apartments which had already taken place, an injunction against requiring the payment of the condominium transfer taxes on future transfers, and a declaration “... that the Condominium Transfer Tax Law, Montgomery County Code, Section 52-21(h), was not legally effective on April 14, 1981, since it violated the provisions of Annotated Code of Maryland, Real Property Article, Sections ll-120(b) and ll-127(c) (1974, 1980 Cum.Supp.), “... that the Condominium Transfer Tax Law, Montgomery County Code, Section 52-21(h), was not legally effective on April 14, 1981, since it violated equal protection under (a) Article 24, Declaration of Rights, Maryland Constitution, and/or (b) Fourteenth Amendment, United States Constitution, “... that the past, present and future transfer of condominium units in Parkside Condominium are not sub ⁹² ject to the Condominium Transfer Tax Law, Montgomery County Code, Section 52-21(h).” Upon motions for partial summary judgment, the circuit court granted Montgomery County’s motion for summary judgment, declared “that Section 52-21(h) of the Montgomery County Code does not violate the provisions of the Annotated Code of Maryland, Real Property Article, §§ ll-210(b) and ll-127(c) ... [the Horizontal Property Act] or equal protection under Article 24, Declaration of Rights, ... and/or equal protection under the Fourteenth Amendment ... because of any classification established therein in its application to the units at issue.” The court also made the ruling final, ordering, “pursuant to Maryland Rule 2-602 and upon determination that there is no just reason for delay, that final judgment be ... entered in favor of Montgomery County ... as to all claims against Montgomery County____” 4 The order was entered on July 9, 1984, and all parties except Montgomery County filed orders of appeal. 5 We issued a writ of certiorari while the case was pending in the Court of Special Appeals.

III

In arguing that it was entitled to a favorable declaratory judgment, to a refund of all transfer taxes paid and to an injunction against the collection of taxes with respect to future initial transfers of units at Parkside Apartments, Parkside contends that the Montgomery County condominium transfer tax ordinance was invalid when signed into law on July 28, 1980, because it imposed the tax on the initial transfers of condominium units without a like tax being imposed on the initial transfers of cooperative units. Because of this discrepancy, according to Parkside, the condominium transfer tax violated the section of the Horizontal ⁹³ Property Act (now § ll-122(b) of the Real Property Article), prohibiting governmental bodies from enacting laws imposing a burden on condominiums that is not imposed on property of a similar character. Parkside does not believe that Ch. 648 of the Acts of 1980 saved the condominium transfer tax because, in Parkside’s view, the Horizontal Property Act prevails over the conflicting provisions of Ch. 648. Parkside thus argues (brief, pp. 12-13): “The Condominium Transfer Tax cannot be saved from invalidation under Md. Real Prop.

Code Ann. § ll-120(b) by reference to 1980 Maryland Laws, Chapter 648, a public local law which purported to grant Montgomery County the authority to enact the Condominium Transfer Tax. Section ll-120(b) and Chapter 648 must be read together with Md. Real Prop. Code Ann., § ll-127(c) (1974, 1980 Cum.Supp.). “Section 11-127(c) evidences the clear and unambiguous legislative intention to exempt the HPA [Horizontal Property Act] from the general rule that a public local law prevails over conflicting provisions of a public general law. Md.Ann. Code, Art. 1, § 13.

The General Assembly dictated that the HPA shall uniformly apply across the State, absent an express amendment to the HPA. This requirement of uniformity prevents unintentional changes to the HPA in cases where public local laws are adopted without their potential conflict with the HPA being recognized at the time of adoption. “The legislative intent evident in the unambiguous and superior command of § ll-127(c) is dispositive because the issue of whether a public general law should prevail over a public local law, or vice versa, is a question of legislative intent.” The only effect of Ch. 648, under Parkside’s argument, was “to expand Montgomery County’s potential taxing powers to include condominiums” and to enable Montgomery County to enact the condominiums transfer tax in accordance with the Horizontal Property Act {id., p. 13). ⁹⁴ Parkside asserts that the condominium transfer tax remained invalid between July 28, 1980, when it was signed into law, and July 1, 1981, when the General Assembly authorized and Montgomery County enacted the cooperative transfer tax ordinance. Parkside takes the position that the condominium transfer tax ordinance became “legally effective ... July 1, 1981, when the cooperative transfer tax went into effect.” Id., p. 11.

Consequently, the argument continues, as the Parkside Condominium regime was established in April 1981, all transfers of units in Parkside Apartments fell within the exemption in Bill No. 22-80 for transfers of units in condominium regimes established “pri- or to the effective date of this law.” Montgomery County does not dispute some of the premises upon which Parkside’s conclusion rests. Thus Montgomery County agrees that Bill No. 22-80, which enacted the condominium transfer tax, was inconsistent with the Horizontal Property Act during the period from July 28, 1980, to July 1, 1981. The County also seems to accept Parkside’s statutory construction premise that, if Bill No. 22-80 could not be validly applied until July 1, 1981, when the cooperative transfer tax ordinance was enacted, then the effective date of the condominium transfer tax law for purposes of the exemption provision was July 1, 1981, rather than July 28, 1980. 6 ⁹⁵ Montgomery County’s argument is that the condominium transfer tax ordinance was valid during the period from July 28, 1980, to July 1, 1981, that, because the ordinance was valid when enacted and signed, the effective date of the exemption provision was July 28, 1980, and that the Park-side condominium regime did not fall within the exemption provision because it was established in April 1981. Montgomery County contends that the condominium transfer tax ordinance was valid when enacted because it was authorized by Ch. 648 of the Acts of 1980.

The County further argues that Ch. 648 is in direct conflict with the Horizontal Property Act but that, because Ch. 648 is a public local law enacted by the General Assembly, it prevails over a public general law under the rule of construction set forth in Code (1957, 1981 Rpl.Vol.), Art. 1, § 13. The County also relies upon the general principles of statutory construction that a later enacted statute prevails over an earlier one* ***** 7 and that ⁹⁶ a specific statute prevails over a general statute covering the same matter. 8 Montgomery County contends that the language in the Horizontal Property Act, stating that if there is a conflict between the Horizontal Property Act and another statute, “the provisions of this title shall prevail” (now § 11-141, of the Real Property Article), is ineffective with regard to subsequent conflicting legislation. Reliance is placed upon this Court’s opinion in Montgomery County v. Bigelow, 196 Md. 413, 423 , 77 A.2d 164 (1950). Finally, Montgomery County asserts that the distinction between the tax treatment of initial condominium transfers and cooperative transfers did not violate equal protection principles.

In addition to the issues raised by the parties, a threshold question was raised at oral argument by the Court sua sponte, concerning the effect upon the case of condominium transfer taxes having already been paid to Montgomery County. We shall first address this matter and then turn to the parties’ contentions.

IV

As previously mentioned, as of April 6, 1984, 928 of the 954 units in Parkside Apartments had been transferred to purchasers, and the condominium transfer taxes had been paid to Montgomery County on these transfers. At the oral argument before this Court, counsel represented that there were only “a few” units which had not been transferred and on which the transfer taxes had not been paid. Thus, the principal relief sought against Montgomery County is a refund of the taxes previously paid. Under the circumstances, however, Parkside is not entitled in this litigation to a refund of taxes paid or a declaratory judgment with respect to taxes paid, regardless of the validity or interpretation of the condominium transfer ⁹⁷ tax ordinance.

The applicable principles of Maryland law have been set forth by this Court time after time. For example, in Apostol v. Anne Arundel County, 288 Md. 667, 672-673 , 421 A.2d 582 (1980), we stated: “It is firmly established in this State that once a taxpayer voluntarily pays a tax or other governmental charge, under a mistake of law or under what he regards as an illegal imposition, no common law action lies for the recovery of the tax absent a special statutory provision sanctioning a refund. This is true even if payment is made under protest. Moreover, in these circumstances, no common law or declaratory judgment action lies to challenge the validity of a tax so paid.

Where there is a special statutory provision sanctioning a refund, although no particular statutory remedy is provided, an action in assumpsit is available. However, where there is statutory authorization for a refund and a special statutory remedy set forth, that remedy is exclusive. These principles have recently been reviewed at length in Baltimore County v. Xerox Corp., 286 Md. 220 , 406 A.2d 917 (1979); White v. Prince George’s Co., 282 Md. 641, 650-654 , 387 A.2d 260 (1978); and Rapley v. Montgomery County, 261 Md. 98 , 274 A.2d 124 (1971). “Furthermore, the rule that no action lies to challenge the validity of a tax paid under a mistake of law, except for any refund sanction specifically provided by the Legislature, has been applied consistently by this Court, regardless of the nature of the legal attack mounted or the type of mistake of law claimed. See, e.g., White v. Prince George’s Co., supra, 282 Md. at 646, 654 [ 387 A.2d 260 ] (tax claimed to be unconstitutionally retroactive); Rapley v. Montgomery County, supra, 261 Md. at 110 [ 274 A.2d 124 ] (tax claimed to be arbitrary and discriminatory, violative of the Maryland Constitution, and invalidly adopted); Wasena Housing Corp. v. Levay, 188 Md. 383, 392 , 52 A.2d 903 (1947) (tax attacked on the ground that the procedure used to assess property was improper); Red Star Line v. Baughman, 153 Md. 607, 611 , 139 A. 291 (1927) (license fees claimed to be unconsti ⁹⁸ tutional under the Commerce Clause); Helser v. State, 128 Md. 228, 231 , 97 A. 539 (1916) (inheritance tax claimed to be invalid because of the situs of the mortgage involved); Baltimore v. Harvey, 118 Md. 275 , 84 A. 487 (1912) (mistake as to the applicability of certain tax rates to particular real property); Mayor, &c., of Baltimore v. Hussey, 67 Md. 112 , 9 A. 19 (1887) (personal property tax attacked on ground that it was invalidly applied to a nonresident); Lester v. Mayor and City Council of Baltimore, 29 Md. 415 (1868) (tax payment made under assessment subsequently declared invalid); Morris v. Mayor & C. C. of Balt. 5 Gill. 244, 248 (1847) (tax assumed by Court to be unauthorized and invalid); M. & C.C. of Balt. v. Lefferman, 4 Gill. 425 (1846) (governmental charge imposed under unconstitutional statute).

The cases make it clear that actions to challenge taxes paid under mistakes of law ‘are matters of grace with the Legislature.’ Wasena Housing Corp. v. Levay, supra, 188 Md. at 389 [ 52 A.2d 903 ].” Recent cases reaffirming these principles include Wash. Sub. San. Comm’n v. Mitchell & Best, 303 Md. 544, 572-573 , 495 A.2d 30 (1985); Vytar Associates v. City of Annapolis, 301 Md. 558 , 483 A.2d 1263 (1984); and Potomac Elec.

Power v. P.G. County, 298 Md. 185, 189-191 , 468 A.2d 325 (1983). Accordingly, in this case no cause of action exists against Montgomery County