Town of New Market v. Milrey, Inc.-FDI Partnership

BISHOP, Judge. Appellant, Town of New Market (the “Town”), appeals from an order of the Circuit Court for Frederick County (Stepler, J.) that granted summary judgment in favor of ⁵³¹ appellee, Milrey, Inc.-FDI Partnership (“MFP”). MFP was formerly known as NVR-FDI Associates. A Notice of Substitution of a Party was filed pursuant to Md. Rule 2-241 substituting Milrey, Inc.-FDI Partnership for NVR-FDI Associates.

Throughout our opinion, we refer to appellee as “MFP.” ISSUES PRESENTED The Town presents the following issues: I. Did the trial court err in granting MFP’s motion for summary judgment by failing to give legal effect to the Town’s curative actions to correct allegedly defective wording in its October 11, 1989 Annexation Resolution?

II

Did the trial court err in granting MFP’s motion for summary judgment by construing Md. Ann.Code art. 23A, § 19 to require precise mathematical certainty in the courses and distances description in municipal annexation resolutions? We hold that the trial court did not err in either respect. FACTS AND PRIOR PROCEEDINGS This case returns to this Court after remand to the circuit court in an unreported opinion, Town of New Market v. NVR-FDI Associates, No. 2003, September Term, 1989, filed October 17, 1990. The facts of that case are pertinent to our current discussion.

On July 12, 1989, certain residents of Frederick County presented a petition for annexation to the Town. On October 11, 1989, the Town Council adopted a resolution of annexation (the “Annexation Resolution”). As described by the Town in a document entitled Outline for the Extension of Services, the area to be annexed was 139.308 acres: 96.71 owned by MFP; 26.37 owned by the Board of Education; and the remainder owned by private individuals. The only description in the Annexation Resolution of the property to be annexed was a courses and distances description. ⁵³² On October 17, 1989, MFP filed a Complaint for Declaratory, Injunctive and Other Relief in the Circuit Court for Frederick County containing three counts.

These counts are not the subject of this appeal. Thereafter, the Complaint was amended to contain a fourth count that alleged that the courses and distances description in the Annexation Resolution failed to close, leaving a gap of over 500 feet, and, thus, the resolution failed to comply with Md.Ann.Code art. 23A, § 19. MFP subsequently filed a Motion for Summary Judgment on Count IV of the Amended Complaint pursuant to Md. Rule 2-501. In November 1989, after a hearing, the circuit court granted MFP’s request for an interlocutory injunction.

The order stayed the 45 day time period in which to petition for a referendum on the Annexation Resolution. A hearing on the motion for summary judgment on Count IV was held on January 11, 1990. At the hearing, the Town produced for the consideration of the court “A Resolution Amending A Resolution To Correct Defects In Wording” (the “Amending Resolution”). The Amending Resolution was purportedly adopted by the Town Council at a regularly scheduled meeting held the evening before, January 10, 1990, and intended to correct defects in the previous description.

It stated that: “[t]he courses and distances description of the area proposed to be included in the change of the corporate boundaries contained an error in wording,” and “[i]t was the intention of the Mayor and Town Council of the Town of New Market to accurately describe the area to be annexed[.]” The Amending Resolution contained several pages of a courses and distances description intended to replace the inaccurate description in the Annexation Resolution. It is uncontested that the Amending Resolution was adopted without first publishing it. According to an affidavit supplied by MFP, two lots were sold during the time period between the adoption of the Annexation Resolution and the Amending Resolution. The Town also produced for the trial court’s consideration the affidavit of a registered land surveyor who stated that ⁵³³ the Annexation Resolution and the Amending Resolution together described the exact area proposed to be included in the annexation.

Counsel for the Town suggested that the Amending Resolution “rendered moot th[e] fourth count in [MFP’s] Complaint, as well as the summary judgment motion.” The court, however, responded that the Amending Resolution and the affidavit were not before it and granted MFP’s motion for summary judgment on Count IV. The Order of the court granting MFP’s motion for summary judgment as to Count IV of the Amended Complaint stated: the description of the property to be annexed in the Resolution of annexation adopted by the Town of New Market fails to comply with the requirement of Article 23A, § 19(b) that the resolution describe by a survey of the courses and distances ‘the exact area proposed to be included in the change.’ It is undisputed that the description in the Resolution fails to close by over 526 feet. Accordingly, this Court finds and declares that the annexation Resolution adopted by the Town of New Market on October 11, 1989 is void and not effective to annex the property[.] This decision rendered the other three counts moot and was a final appealable judgment. The Town appealed from the Order contending that the trial court committed reversible error in failing to consider the Amending Resolution and the affidavit of the registered land surveyor.

This Court vacated the judgment of the trial court and remanded the case for further proceedings. On remand we directed the trial court to rule on the admissibility of the affidavit and the Amending Resolution. We stated that if the court determined that the documents were admissible, it should determine the effect, if any, of the documents. If the documents raised a genuine dispute as to a material fact, the court should not grant summary judgment.

If, however, the documents did not affect the validity of the original resolution then, we stated, the court might grant MFP’s motion for summary judgment. ⁵³⁴ After remand, the trial court entered an injunction staying the remainder of the 45 day period in which to petition for referendum, and later extended the injunction. A hearing on the merits as to the remand was held on March 19, 1991. The court first ruled that the affidavit of the registered land surveyor was not admissible because it was not based on personal knowledge. It then stated: But the real question here is[: I]s the Town of New Market allowed to pass an amendment to a resolution of this type without going through the due process requirements that [are] set out under Article 23A, § 19[.] The court then explained that Article 23A, § 19 sets out very specifically what should be a part of your resolution, what you have to describe, what you have to have, percentages, what notice you have to give, publication, how you have to advise people of the hearing that’s to be held, how you may initiate it either by the town or the county or a group of registered voters.

When the Town passed the Amending Resolution, the court explained, it was really “passing another resolution of annexation” that would have to “follow the due process requirements that are set out.” “[I]f you do amend a resolution^] essentially what you end up with is a new resolution that would have to comply with the due process notice requirements under § 19.” The court concluded: It is perfectly obvious ... that it was painstaking [sic] by the legislature to set out the requirements to be sure that there was due process noted that every single person that could be affected by this annexation would know that it was proposed and that it was published that you give notice to the county, etc., etc., etc. And that definitely has not occurred here. The court then granted MFP’s motion for summary judgment and thereafter filed an Order stating: [MFP’s] Motion for Summary Judgment is granted because the description of the property to be annexed in the ⁵³⁵ Resolution of annexation adopted by the Town of New Market fails to comply with the requirement of Article 23A, § 19(b) that the resolution describe by a survey of the courses and distances 'the exact area proposed to be included in the change.’ It is undisputed that the description in the Resolution fails to close by over 526 feet. * * * * * sic [Neither the affidavit of the surveyor nor the Amending Resolution] raise a material issue of fact because the adoption of the amending resolution was in violation of Article 23A, § 19, for the reasons expressed in my oral opinion on March 19, 1991. * * * * * * [T]he [Amending Resolution] is void and not effective to annex the property of the plaintiff, individual defendants or the Board of Education of Frederick County into the Town of New Market. DISCUSSION We affirm the judgment of the trial court for the reasons stated infra. I. Effect of the Amending Resolution The authority of the Town to pass resolutions affecting its charter is conferred upon it by the Maryland Constitution and the Code.

The Maryland Constitution provides that a municipal corporation has: power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this Article. ⁵³⁶ Md. Const, art. XI-E, § 3. This constitutional provision is implemented by Md.Ann.Code art. 23A, § 1 (1990), which provides: The inhabitants of every incorporated municipality in Maryland constitute and shall continue to be a body corporate ... and may pass and adopt all ordinances, resolutions or bylaws necessary or proper to exercise the powers granted herein or elsewhere. Annexation of land to municipal boundaries is governed by Md.Ann.Code art. 23A, § 19.

Subsection (a) of § 19 provides that the legislative body of every municipal corporation in Maryland “may enlarge its corporate boundaries as provided in this subheading [.]” Md.Ann.Code art. 23A, § 19(a). (Emphasis added.) An annexation proposal may be initiated by either the legislative body of the municipal corporation or by written petition signed by certain persons who reside in the area to be annexed. Id. at § 19(b), (c). Subsection (b), which deals with changes initiated by the legislative body, mandates in pertinent part: The resolution shall describe by a survey of courses and distances, and may also describe by landmarks and other well-known terms, the exact area proposed to be included in the change, and shall contain complete and detailed provisions as to the conditions and circumstances applicable to the change in boundaries and to the residents and property within the area to be annexed.

Id. at § 19(b). (Emphasis added.) The requirement that the resolution set forth the “exact area” to be annexed also applies when the annexation is initiated by petition. See Md.Ann.Code art. 23A, § 19(c) (“The resolution in form and content shall conform to the requirements of this section.”). Section 19 further requires: (d) Notice and hearing. — After the introduction of the resolution into the legislative body of the municipal corporation, the chief executive and administrative officer of the municipal corporation shall cause a public notice ⁵³⁷ thereof to be published not fewer than four times at not less than weekly intervals in a newspaper of general circulation in the municipal corporation and the area to be annexed, briefly and accurately describing the proposed change and the conditions and circumstances applicable.

The public notices shall specify a time and place at which a public hearing will be held by the legislative body on the resolution^] Md.Ann.Code art. 23A, § 19(d). “Immediately” after the first publication of the public notice, a copy of the notice must be provided to the county government and to any regional or State planning agencies that have jurisdiction in the county. Id. These agencies, the State, and the county have the first right to be heard at the public hearing on the resolution. Id.

In addition to, but not as a part of, the resolution, the legislative body of the municipality must provide “a proposed outline for the extension of services and public facilities into the area proposed to the annexed” for “public review and discussion” at the public hearing. Id. at § 19(o). The statute states: The outline shall be open to public review and discussion at the public hearing, but amendments to the outline may not be construed in any way as an amendment to the resolution, nor may they serve in any manner to cause a reinitiation of the annexation procedure then in process. Id.

After the public hearing, the legislative body may enact the resolution “in accordance with the usual requirements and practices applicable to its legislative enactments.” Id. at § 19(e). The resolution may not, however, become effective until at least 45 days after its final enactment. Id. Within these 45 days, certain residents and qualified voters located in the area to be annexed may petition the chief executive and administrative officer of the municipal corporation for a referendum on the resolution.

Id. at § 19(f). Similarly, other qualified voters of the municipal corpora ⁵³⁸ tion may petition for a referendum, id. at § 19(g), and the governing bodies of the county or counties in which the municipality is located may petition for a referendum. Id. at § 19(h). The Town contends that the circuit court erred in failing to give effect to the Amending Resolution.

The Town argues: (1) the Town Council derived its power to cure the defective wording in its Annexation Resolution from legislative power granted by Article 23A, § 1; (2) that the power to annex property into the Town is an express grant of power by the State government subject not only to the specific procedures of Article 23A, § 19 but also to the Town Council’s legislative power granted by Article 23A, § 1; and (3) that the Town Council’s exercise of its legislative power to cure the Annexation Resolution created no conflict with or derogation of the procedural strictures of Article 23A, § 19. With regard to this last contention the Town adds: “The Annexation statute states in very certain terms that the process for adopting the Resolution for Annexation after the Town Council holds a hearing is the same as enacting any other municipal legislation.” We are not persuaded. Municipalities are creatures of the State. Cotham and Maldonado v. Board of County Comm’rs, 260 Md. 556, 562 , 273 A.2d 115 (1971). “It is universally recognized that every municipal corporation is subject to absolute control by the Legislature.

However great or small its sphere of action, it remains the creature of the State exercising privileges and powers subject to the sovereign will.” Id. (quoting Neuenschwander v. Washington Suburban Sanitary Comm’n, 187 Md. 67, 74 , 48 A.2d 593 (1946)). The legislature has given the inhabitants of incorporated municipalities the power to “pass and adopt all ordinances, resolutions or bylaws necessary or proper to exercise the powers granted herein or elsewhere.” Md.Ann.Code art. 23A, § 1. (Emphasis added.) Furthermore, the legislature has provided a mechanism by which “[t]he legislative body ⁵³⁹ ... of every municipal corporation in this State may enlarge its corporate boundaries[.]” Id. at § 19(a).

The Town argues that the Town Council had power to cure any defects in the Annexation Resolution by exercising the power granted to it under Article 23A, § 1 and passing an Amending Resolution that corrected the defects in the Annexation Resolution. The Town contends that the power to annex property into the Town is subject to the Town Council’s legislative power granted by Article 23A, § 1. The Town misreads this section. Section 1 only confers on the Town the power to pass resolutions as necessary and proper to exercise other powers granted by the legislature.

Section 1 is a general grant of power and must be exercised in accordance with directives contained in other specific statutory grants of power. Here, the Town Council’s power to pass resolutions annexing property into the Town must comply with the legislative directives of § 19. May the Town Council pass an annexation resolution amending the description of property contained in a prior resolution without publishing the amending resolution or holding a public hearing with regard to it? Based on our review of § 19, we hold that a resolution that changes the description of property to be annexed contained in a previous annexation resolution is subject to all the statutory safeguards, including notice and public hearing, to which the original annexation resolution was subject.

In construing a statute, we strive to ascertain and effectuate the intent of the legislature. Jones v. State, 311 Md. 398, 405 , 535 A.2d 471 (1988). In determining legislative intent, we look first to the language of the statute. State v. Patrick A., 312 Md. 482, 487 , 540 A.2d 810 (1988).

The only point at which amendments are mentioned in § 19 is in subsection (o), which deals with the proposed outline of extension of services that must be provided by the legislative body of the municipal corporation. Subsection (o) provides in pertinent part: The outline shall be open to public review and discussion at the public hearing, but amendments to the outline may ⁵⁴⁰ not be construed in any way as an amendment to the resolution, nor may they serve in any manner to cause a reinitiation of the annexation procedure then in process. Md.Ann.Code art. 23A, § 19(o). This subsection indicates that the legislature did contemplate the “reinitiation of the annexation procedure.” It distinguished, however, between the outline for the extension of services and the resolution; it did not intend for amendments to the outline to reinitiate the annexation procedure.

The statutory scheme of § 19 requires the reinitiation of the annexation procedure, when, as in the case sub judice, an amending resolution that contains a new description of the property to be annexed is introduced to the Town Council. Section 19 requires that, after the introduction of an annexation resolution into