Spring v. Bradley

WILNER, Judge. Appellant, Rodney Spring, owns a 13.26-acre undeveloped tract of land in Talbot County that lies adjacent to the Town of Oxford. It is separated from the town boundary by a 20-foot right of way. Since 1990, in an effort to obtain water and sewer service from the town, Spring has sought to have the town annex his property.

Although at one point the town considered- annexation, it has declined to annex, and it has refused to provide municipal water and sewer service to the Spring property absent annexation. In May, 1997, Mr. Spring got tired of waiting and filed this action in the Circuit Court for Talbot County to force the town to provide water and sewer service to his property. Claiming that the town had supplied such service to other properties located outside its municipal boundaries, Spring argued that the town had acted as a public service company and was therefore obliged to provide sendee to all properties outside the town limits, or at least his property, without discrimination. He sought a variety of mandamus, injunctive, and declaratory relief, all directed at requiring the town to provide service to his property.

Finding that the town was not required to extend the service, the court entered judgment for the town and its commissioners. Spring appealed, and we granted certiorari on our own initiative before any meaningful proceedings in the Court of Special Appeals. We shall affirm the judgment entered below. BACKGROUND Mr. Spring has owned the 13.26-acre tract since 1987.

In August, 1990, he formally requested that the town annex the property so that he could construct “affordable housing” on it. In May, 1992, the town planning commission, upon finding that the subdivision planned by Spring satisfied the State growth allocation plan and environmental criteria and, with ⁸¹ one exception, met the town’s comprehensive plan, recommended that the property be annexed. The one exception was the preference expressed in the town plan that Oxford remain primarily a single family residential community. The planning commission noted, however, that the proposed subdivision would offer the town a way to start an affordable housing program “in a painless way.” In June, the town’s attorney informed Spring that the town commissioners had agreed to have an annexation resolution introduced.

The attorney warned, however, that the commissioners had not committed to final approval of the resolution, but only to consideration of the proposal. Spring was asked to prepare certain plats and other documents necessary to the resolution, which he did. At the time, the town was involved in completing the annexation of another property, known as Bachelor’s Point, which had been under consideration since 1983, and it had before it as well another annexation request. Opposition from some residents of the town also surfaced to Spring’s proposal.

At some point, not entirely clear from the record, the town commissioners decided that one annexation was enough at the time, and they declined to introduce the resolution authorizing the annexation of Spring’s property. The Bachelor’s Point property was finally annexed in April, 1993. Thereafter, the town formed a committee to look into ways of encouraging the development of low and moderately priced housing. That committee’s work was ultimately included in a revised comprehensive plan for the town adopted in 1997.

The plan calls for land to be set aside for low and moderate priced single family and duplex homes outside the older section of the town and identifies certain areas for such development. Spring’s property, along with others, is in one of those growth areas. As of the date of argument in this appeal, however, despite encouragement from the trial judge, the parties have been unable to agree to acceptable terms for an annexation, and no such annexation has occurred. Spring does not seek, in this litigation, to require the town to annex his property, although that appears to be his ultimate desire.

He seeks, instead, to require the town to provide ⁸² municipal water and sewer service to his property while it remains outside of the town boundaries and, as noted, he claims a right to that benefit based on the fact that the town has provided such service to at least three other properties lying outside the town limits. He insists that he be treated fairly and be given the same benefit afforded to others in his position. The town denies that he is being treated unfairly and contends that special circumstances attended the provision of service to each of the other properties. Town policy, it maintains, has been consistent—that, as a general rule, it provides no service to property outside the town limits, and that the only exceptions to that policy are where (1) the outlying property has a failing water or septic system, thereby creating a health problem, or (2) the property is subject to an annexation agreement or plan.

Spring’s property, it avers, meets neither of those criteria. As we shall see when discussing the controlling cases, whether the town has an obligation to provide service to Spring’s property depends, to a large extent, on how it has treated other properties outside its borders, so we shall turn to that now. The town sewer system was constructed in 1962-63. Immediately upon completion, service was provided to two tracts, known respectively as “Jack’s Point” and “Park,” that lay outside the town borders.

Those tracts contained existing lots of record, some of which were improved with houses. At that time, Maryland Code, Article 66B, § 4.05(d) gave incorporated towns in Talbot County planning and zoning jurisdiction over all land within one mile of their respective boundaries. Jack’s Point and Park were within the mile and therefore were thought to be subject to the town’s extra-territorial planning and zoning authority. In 1976, we declared the statute providing that extended authority unconstitutional, Gordon v. Comm’rs of St. Michaels, 278 Md. 128 , 359 A.2d 543 (1976), but the existing service nonetheless continued.

In 1988, those tracts were formally annexed by the town. ⁸³ The town claims that, apart from Jack’s Point and Park, the only extensions of service, other than to land subject to annexation, was to one residence and one gas station that had failing septic systems. Spring argues to the contrary. The dispute is over the tract known as Bachelor’s Point, and it essentially boils down. to the fact that utility service was provided by the town to that development before annexation and, indeed, before there was a mutually binding annexation agreement, although not until there was a fairly clear consensus, evidenced in a written agreement, that the tract would be annexed. Bachelor’s Point is a 90-acre waterfront subdivision located about % of a mile from Spring’s property.

Annexation efforts began in 1983, but were stalled when the proposed annexation, which would then have included 60 homes on a 28-acre parcel, was defeated in a referendum election. Negotiations continued, and, in April, 1987, the developer and the town entered into an extension of service and annexation agreement. Under that agreement, the proposal for 60 homes was modified to permit only 19 homes on the 28 acres. The developer agreed to record covenants irrevocably committing the lot owners to agree to annexation by the town should the town seek annexation.

The town agreed to an extension of water and sewer service from a designated facility, with all costs of the extension to be paid by the developer. The developer was to obtain bids and then determine, from them, whether the project was economically feasible. If it concluded that the project was not feasible, it was required to notify the town and the agreement would be rescinded. Otherwise, the developer was responsible for entering into the necessary construction contracts.

The agreement clearly anticipated annexation of the lots, although it did not irrevocably commit either party to that end. At some point, the developer declared the project feasible, and the parties began to implement the agreement. Covenants committing the lots to annexation were recorded in January, 1988. The developer proceeded with the construction, at a cost of over $330,000.

In September, 1988, following the completion of construction, sewer service was extended to ⁸⁴ the 19 lots and a commercial marina, and, in April, 1993, the property was formally annexed. As noted, it was during this latter period that Spring’s annexation effort surfaced. DISCUSSION We have dealt with the issue presented here in three earlier cases, all decided within a five-year period. In Bair v. Mayor and City Council of Westminster, 243 Md. 494 , 221 A.2d 643 (1966), the plaintiffs, who owned a tract of land just outside the bounds of Westminster, sought mandamus to compel the city to provide water service to their property.

They alleged that they had entered into an agreement with a private water works company for the extension of a water main to the property, that the city subsequently acquired that company, and that the city then refused to honor the agreement. They contended that the city was in the business of supplying water both inside and outside its corporate limits, that it had supplied water to other consumers outside the city, and that the plaintiffs property was within a reasonable distance of an existing water main. The appeal came to us from the sustaining of the city’s demurrer, which we reversed. In at least three earlier cases—Merryman v. Baltimore, 153 Md. 419 , 138 A. 324 (1927); Home Oumers’ Loan Corp. v. Mayor and City Council of Baltimore, 175 Md. 676 , 3 A.2d 747 (1939); and Lewis v. M. & C.C. of Cumberland, 189 Md. 58 , 54 A.2d 319 (1947)—we had dealt with other issues relating to the provision of utility service by a municipality, and we summarized in Bair some of what we had said in those cases.

The more relevant point was our general conclusion that “a municipality