Waterman Family Ltd. Partnership v. Boomer

McDonald, J. Among the powers conferred on a Maryland municipality by the General Assembly pursuant to the State Constitution are the power to zone land within the municipality’s boundaries and the power to enlarge those boundaries by annexing contiguous land. However, when a municipality exercises those powers together, there is a constraint. A State statute delays for five years the rezoning of annexed land for a use “substantially different” from that allowed by the land’s prior county zoning classification—unless the county approves the municipality’s reclassification of the annexed property before the expiration of the five-year period. Petitioner Waterman Family Limited Partnership (“Waterman”) asked the Town Commissioners of Queenstown (“the Town”), also a Petitioner, to annex farm land owned by Waterman adjacent to Queenstown in Queen Anne’s County.

At the same time, Waterman asked the Town to rezone the annexed land for purposes of a long planned development. The Town acceded to those requests. In order to make the new zoning effective sooner rather than later, the Town sought the County’s approval of the new zoning classification. Certain nearby property owners, including Respondents Kathleen B. Boomer, Marie J. McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne’s Conservation Association (collectively “QACA”), opposed the effort to obtain the County’s approval of the new zoning.

At the same time, the County government happened to be in a period of transition as a result of the November 2014 election. The outgoing Board of County Commissioners—the County’s governing body—narrowly approved the Town’s rezoning in late November 2014. Two weeks later, the newly installed Board of County Commissioners rescinded that approval. Disappointed, Waterman and the Town instituted legal action against the County.

QACA joined the fray in defense of the County’s rescission of its initial approval. Waterman’s challenge raised a question of first impression: May a county rescind its approval of a municipality’s rezoning of annexed land? The Circuit Court for Queen Anne’s County said “no.” The Court of Special Appeals said “yes.” For the reasons set forth in this opinion, we agree with the Court of Special Appeals. I Background A. Rezoning Land After Municipal Annexation 1.

Municipal Zoning The General Assembly has authorized municipalities in Maryland to exercise zoning authority over land within their respective jurisdictions. Maryland Code, Local Government Article (“LG”) § 5-213; see also Maryland Code, Land Use Article (“LU”), § 1—101(g) (definition of “legislative body” includes governing body of municipality), § 4-101 et seq. (authorizing legislative body to exercise zoning powers). 2. Municipal Annexation State law allows a municipality to annex unincorporated land contiguous to the municipality’s boundaries if certain procedures are followed.

LG § 4-401 et seq. A proposal to annex land may be initiated by the legislative body of the municipality or by residents or owners of the land in question. LG §§ 4-403, 4-404. 3. Rezoning of Annexed Land It is generally the case that unincorporated land annexed by a municipality will already have been subject to county zoning.

State law temporarily limits the rezoning and development of such land after annexation by a municipality. In particular, for a period of time the county retains some say over whether and when the land may be rezoned or developed in a way that allows for a substantially higher density or different use than that allowed by the county zoning classification that applied to the land prior to annexation. That constraint is set forth in LG § 4-416, which provides in pertinent part: (a) Existing municipal authority.—(1) Notwithstanding [a provision of the Local Government Article that limits the extent of municipal authority over planning, subdivision, and zoning] ... if an area is annexed to a municipality that has planning and zoning authority at the time of annexation, the municipality shall have exclusive jurisdiction over planning, subdivision control, and zoning in the area annexed. ⅜ ⅜ ⅜ ⅜{ (b) Different land use or density.—Without the express approval of the county commissioners or county council of the county in which the municipality is located, for 5 years after an annexation by a municipality, the municipality may not allow development of the annexed land for land uses substantially different than the authorized use, or at a substantially higher density, not exceeding 50%, than could be granted for the proposed development, in accordance with the zoning classification of the county applicable at the time of the annexation. (c) County approval of zoning classification.—Notwithstanding [a provision of the Land Use Article concerning amendment or repeal of a zoning classification] and if the county expressly approves, the municipality may place the annexed land in a zoning classification that allows a land use or density different from the land use or density specified in the zoning classification of the county or agency with planning and zoning jurisdiction over the land prior to its annexation applicable at the time of the annexation. 4.

Summary The principles incorporated in the statute can be summarized as follows: • Municipality’s exclusive jurisdiction—As a general rule, a municipality that has planning and zoning authority has exclusive jurisdiction over planning, zoning and subdivision control in any area that the municipality annexes. • Five-year delay of rezoning—The exclusive authority of the municipality is subject to the proviso that, for a period of five years after annexation, the municipality may not allow development of the annexed land for uses “substantially different” from that authorized under the county zoning applicable to the property prior to annexation. In sum, municipal rezoning of annexed land may be subject to a five-year delay. • County waiver of delay—That proviso, however, is subject to a further proviso. The county—ie., the county commissioners or the county council, as the case may be—may give “express approval” for the new municipal zoning before the five-year period expires. This approval is sometimes referred to as a county “waiver” of the five-year delay.

This case raises the question whether a county that waives the five-year delay by giving express approval may rescind that waiver before any development has been undertaken in the annexed area. B, Facts and Legal Proceedings 1. The Property Waterman owns approximately 148 acres of land, known as Wheatlands Farm, located immediately south of Route 50 in Queen Anne’s County. The property is across Route 50 from a commercial development known as the Queenstown Outlets.

Before the events that gave rise to this case, the property was zoned CS (“Countryside”) by the County—a designation that permits agricultural and low density residential uses. 2. Annexation and Town Rezoning of the Property On June 25, 2014, Waterman submitted a petition to the Town to annex the Wheatlands Farm property to the Town. At the same time, Waterman asked the Town to zone the property PRC (“Planned Regional Commercial”) under the Town zoning ordinance. A month later, on July 28, 2014, a proposed annexation resolution and a proposed zoning ordinance were introduced before the Town Commissioners.

The Commissioners referred both proposals to the Town’s Planning Commission for its recommendations. The Town Planning Commission held two public hearings, concluded that the annexation and proposed zoning were consistent with the Town plan, and recommended approval to the Town Commissioners. 1 Following a public hearing on the proposals on September 24, 2014, the Town Commissioners voted unanimously to annex the property. A month later, on October 22, 2014, they held a second hearing on the rezoning proposal. On November 12, 2014, the Town Commissioners approved the rezoning.

It is undisputed that the Town’s PRC zoning classification is “substantially different” from the County CS classification and allows for a “substantially higher density” than the CS classification. Accordingly, under LG § 4-416(b), the property could not be developed with that higher density within five years after annexation, unless the County gave its express approval to the new zoning classification. In light of this requirement, the Town Commissioners made the effectiveness of the rezoning ordinance contingent in part on the County’s approval of the rezoning. 2 3. County Resolutions Related to the Rezoning During the summer of 2014, while the annexation and rezoning proposals were pending in the Town, the Town Commissioners asked the County Commissioners to grant express approval of the Town’s rezoning of the property upon annexation.

The County Commissioners referred the request to the County Planning Commission, which recommended approval. In the meantime, as a result of the election held on November 4,2014, there was a significant turnover in the composition of the County governing body, with four of the five seats to be occupied by new Commissioners. On November 25, 2014, the outgoing County Commissioners conducted a brief hearing and passed, by a 3-2 vote, County Resolution 14-31, which gave express approval for the Town’s rezoning of the annexed Waterman property. On December 2, 2014, the newly elected County Commissioners took office.

One week later, on December 9, the newly elected County Commissioners conducted a hearing and passed County Resolution 14-33, rescinding the resolution that their predecessors had passed two weeks earlier to approve the rezoning. The rescinding resolution noted that no site plan or other indication of the intended development had been provided to the County and stated that the County Commissioners wished to review the planned development of the property and its impact “in terms of traffic, population growth, infrastructure, schools, and the environment....” 4. Litigation over County Resolution 14-33 One month later, on January 7, 2015, in response to County Resolution 14-33 rescinding the County’s approval of the rezoning, Waterman filed an action styled as a “Petition for Judicial Review and Writ of Administrative Mandamus” in the Circuit Court for Queen Anne’s County. Waterman thus invoked alternative routes of judicial review of administrative action pursuant to Maryland Rule 7-201 et seq. and Maryland Rule 7-401 et seq.

The Town subsequently joined that petition. QACA filed a notice of its intention to participate in the judicial review proceeding. 3 Waterman later also filed a declaratory judgment action against the County in which it asked the Circuit Court to declare County Resolution 14-33—the resolution rescinding approval—to be void. Waterman’s two actions were consolidated in the Circuit Court. Waterman, the Town, and the County pursued an effort to settle the case without success (QACA was apparently excluded from those discussions).

The parties then filed cross motions for summary judgment. After hearing legal argument, the Circuit Court held that the County Commissioners had “no statutory right of reconsideration” once the County had granted express approval waiving the five-year delay under LG § 4-416. On July 23, 2015, the Circuit Court issued a declaratory judgment that County Resolution 14-33—the resolution rescinding approval—had “no legal force and effect.” 4 The Circuit Court denied the County’s motion for reconsideration, which QACA had joined. QACA and the County appealed. 5 The Court of Special Appeals reversed the Circuit Court’s judgment.

Boomer v. Waterman Family LP, 232 Md.App. 1 , 155 A.3d 901 (2017). The intermediate appellate court held that, while LG § 4-416 itself does not explicitly provide that a county may rescind approval of a new zoning classification of land recently annexed by a municipality, the Maryland Constitution generally authorizes the county commissioners of a code home rule county to repeal a public local law by resolution, as occurred here, and that a county ordinarily has inherent authority to rescind a measure, absent the vesting of rights based on that measure. Waterman and the Town filed a petition for a writ of certiorari, which we granted to consider whether the County had authority to rescind the initial resolution approving the rezoning.

II

Discussion A Standard of Review The Circuit Court issued its decision on the basis of cross motions for summary judgment. A ease may be resolved on summary judgment when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(f). There is general agreement in this case that no material facts are in dispute and that the issue before us is purely legal.

Accordingly, we review that legal issue without according any special deference to the conclusions of the Circuit Court or the Court of Special Appeals. See Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598 , 80 A.3d 269 (2013). B. Whether a County May Rescind a Resolution Approving Municipal Rezoning of Annexed Land Waterman and the Town contend that the County, having given its express approval to the rezoning of the tract in County Resolution 14-31 on November 25, 2014, lacked authority to rescind that approval two weeks later. There is no contention that Waterman or the Town took any action in reliance on County Resolution 14-31 during the two week interval before the new Board of County Commissioners rescinded it.

Thus, the question is whether the County generally has the power to rescind such an action. 6 LG § Jp—Jj-16 As Waterman and the Town point out, nothing in LG § 4-416 authorizes a county to rescind its approval once it is given. It is true that the statute does not explicitly address whether a county may withdraw its approval of a municipal rezoning of recently-annexed land. It is equally true, however, that the statute does not address whether a county that initially denies approval may later reverse that determination and grant approval. Waterman and the Town take the position that a county may do the latter—that is, approve a rezoning after initially declining to do so.

In their view, the statute is a one-way ratchet: Approval, once given, may not be withdrawn. Once denied, however, it may later be given. But the text of the statute provides no support for this view. 7 It is simply silent. A review of the extant legislative history of the statute is unenlightening on this question.

The key provisions of the statute were enacted before the General Assembly began to retain bill files in 1976 and thus we do not have the benefit of the types of legislative materials that are available for more recent legislation. In Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 548-61 , 814 A.2d 469 (2002), Judge Harrell provided a comprehensive history of the enactment of the key provisions that now make up LG § 4-416, prior to their 2013 recodification in the Local Government Article. We need not repeat all of that analysis, but note only the critical junctures in the development of the statute that relate to the question before us. In 1954, the State Constitution was amended to provide for municipal home rule.

Chapter 53, Laws of Maryland 1954, ratified November 2, 1954 (adding Article XI-E to the Maryland Constitution). To implement municipal home rule, the General Assembly enacted various provisions the following year that were codified in Article 23A of the Maryland Code. Chapter 423, Laws of Maryland 1955. Included among those enactments were certain provisions concerning annexation and municipal zoning that appeared in §§ 9 and 19 of Article 23A.

Two years later, the General Assembly provided that if a municipality had zoning power—not all municipalities had such power at that time—the municipality would have exclusive zoning authority over land that it annexed. Chapter 197, Laws of Maryland 1957. In Rylyns, Judge Harrell referred to this as the “highwater mark” of municipal power “with respect to the initial zoning of annexed lands.” Rylyns, 372 Md. at 557 , 814 A.2d 469 ; see also Prince George’s County v. Mayor and City Council of Laurel, 262 Md. 171, 182-83 , 277 A.2d 262 (1971); Beshore v. Town of Bel Air, 237 Md. 398, 410-11 , 206 A.2d 678 (1965). The tide receded from that highwater mark 14 years later when the Legislature decided that a municipality should temporarily share with the county its otherwise exclusive zoning authority over annexed land.

In 1971, the General Assembly amended Article 23A, § 9(c) to