Arthur E. Selnick Assocs., Inc. v. Howard Cnty. Md.

• Decision Date: 30 August 2012
• Docket Number: Sept. Term, 2010.,No. 01418,01418
• Citation: 206 Md.App. 667,51 A.3d 76
• Parties: ARTHUR E. SELNICK ASSOCIATES, INC. v. HOWARD COUNTY MARYLAND, et al.
• Court: Court of Special Appeals of Maryland

206 Md.App. 667
51 A.3d 76

ARTHUR E. SELNICK ASSOCIATES, INC.
v.
HOWARD COUNTY MARYLAND, et al.

No. 01418, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Aug. 30, 2012.

[51 A.3d 80]

Terry B. Blair, Baltimore, MD & Mark J. Hardcastle, Columbia, MD, on the brief, for appellant.

Janet Bush Handy, Baltimore, MD & William F. Gibson, II, Potomac, MD & Gary W. Kuc, Ellicott City, MD (Kristin Case Lawrence, Douglas F. Gansler, Atty. Gen., Baltimore, MD, Daniel H. Scherr, Carney, Kelehan, Bresler, Bennett & Scherr, LLP, Columbia, MD, David J. Shuster, Brian S. Southard, Kramon & Graham, PA, Baltimore, MD, Kevin P. Kennedy, Shulman, Rogers, Gandal, Pordy & Ecker, PA, Potomac, MD, Adam C. Harrison, Harrison Law Group, Towson, MD, Thomas J. Schetelich, Ferguson, Schetelich & Ballew, PA, Baltimore, MD, Joseph A. Lynott, III, Lynott, Lynott & Parson, PA, Rockville, MD, Kurt J. Fischer, Melissa L. Mackiewicz, DLA Piper, LLP (US), Baltimore, MD, Ira L. Oring, Neil Dubovsky, Fedder & Garten Professional Association, Baltimore, MD, Margaret Ann Nolan, Howard County Solicitor, Ellicott City, MD), on the briefs, for appellee.

Panel: EYLER, JAMES R.,^*HOTTEN, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

HOTTEN, J.

[206 Md.App. 674]On July 17, 2008, appellant, Arthur E. Selnick Associates, Inc. (“Selnick”), filed a Complaint seeking declaratory, injunctive, and monetary relief against Howard County, Maryland in the Circuit Court for Howard County. After a lengthy procedural history, including removal to and remand from federal court and the joinder of numerous defendants, the circuit court ruled that the passage of time had converted a temporary easement into a perpetual easement pursuant to the thirty-year limit on possibilities of reverter under Md.Code (2010), § 6–101 of the Real Property Article (“R.P.”).¹ Additionally, the circuit

[51 A.3d 81]

court ruled that it would not consider parol evidence in its review of the temporary easement or an [206 Md.App. 675]agreement between Selnick and the State Highway Administration (“SHA”).

Accordingly, the circuit court granted the defendants' motions to dismiss and motions for summary judgment, holding that the temporary easement had not terminated and reverted to Selnick. Instead, the easement had become a permanent easement as of September 6, 2004, thirty years from the grant of the temporary easement. The circuit court also held that Howard County had not constructively condemned the property over which the easement ran because the easement had not reverted to Selnick. Selnick timely appealed, presenting the following questions:

1. Did the Circuit Court err in ruling that Md. Real Prop.Code Ann. § 6–101 entitled, “Possibility of Reverter,” applied to convert the Temporary Easement into a Perpetual Easement?

2. Did the Circuit Court err in excluding consideration of parol evidence from the construction of the deed granting the Temporary Easement and Option Agreement between Selnick and the SHA?

3. Did the Circuit Court err in determining that no unconstitutional taking of Selnick's property occurred by the actions of Howard County?

For the reasons that follow, we answer the first question in the affirmative and second and third questions in the negative. Thus, we reverse the judgment of the circuit court and remand for an entry of a declaratory judgment that R.P. § 6–101 does not apply to easements.

FACTUAL BACKGROUND

As this case was decided on summary judgment, we discern the following based on the pleadings. Kaiser Aetna developed the Route 100 Business Park (“Business Park”) in the early 1970s in Elkridge, Maryland. On November 12, 1972, Kaiser Aetna recorded a subdivision plat that laid out the design of the Business Park and included a note that stated:

[206 Md.App. 676]The area bounded by (1), (4), (15), [and] (19) is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration. After the permanent entrance is built[,] the easement for access through the temporary easement will terminate and be void.

On September 6, 1974, Kaiser Aetna deeded land for the planned roadways in the Business Park to Howard County in fee simple. Kaiser Aetna, however, only deeded a temporary easement to Howard County over the portion of land that was to become part of Amberton Drive and serve as an entrance to the Business Park. The entrance was to be built as part of Howard County's Route 100 Road Extension Project. An exhibit to the deed contained a legal description of the land over

[51 A.3d 82]

which the temporary easement was to run, and the deed itself stated:

In addition to the foregoing, [Kaiser Aetna] does hereby grant to [Howard County] a revertible easement for a public road for use as a temporary entrance only, in, over and through the following described parcel, it being understood and agreed that upon completion of all improvement, grading and paving by the State Highway Administration of a permanent entrance to said Route One Hundred Business Park at the location described in Exhibit I hereto, and the availability thereof for use by the owners, occupants and tenants of the Route One Hundred Business Park and their respective employees, customers and invitees, the said revertible easement hereby granted will automatically terminate and be and become null and void and all rights therein shall automatically then revert to [Kaiser Aetna], its successors and assigns:

Temporary entranceway, 100 feet wide and approximately 453 feet long, leading from U.S. Route 1 to Amberton Drive, as shown on a Plat of Subdivision of Route One Hundred Business Park recorded among the Land Records of Howard County, Maryland on November 24, 1972 in Plat Book 24, folio 14, and more particularly described in Exhibit J hereto.

[206 Md.App. 677]On September 30, 1975, Kaiser Aetna entered into an Option Agreement with the SHA, whereby SHA:

propose[d] to lay out, open, establish, construct, extend, widen, straighten, grade and improve as a part of the State Roads System of Maryland, a highway and/or bridge, together with the appurtenances thereto belonging, shown on the plans designated as Contract No. HO 362–3–771 for the improvement to Md. Rte. 100 in Howard County.

The agreement went on to state that:

it is hereby understood and agreed that the [SHA] will do the following: Amberton Drive now being used by the [Business Park] as its main access street into U.S. Route 1 is a temporary facility and will be replaced at the time of the improvement to this project with a new constructed tie-in at Hunting Mills Drive projected to U.S. Route 1 at the expense of the [SHA] and will replace in kind. (A dual within a 100' R/W).

A plat recorded on December 7, 1983 in the Land Records for Howard County that includes the parcel now at issue includes the following language:

* Note:

In accordance with understanding set forth in a letter from Kaiser Aetna to Mr. D.H. Fisher, State Highway Administration, dated June 28, 1972[,] the area bounded by the points 1 to 7, to 23, to 19, to 1, is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration. After the permanent entrance is built the easement for access through the temporary entrance will terminate and be void.

Howard County constructed a four lane road, known as Amberton Drive, with a median and traffic signal over the temporary easement, and the public has used the road to access the Business Park since the county completed construction.

On December 28, 1983, Selnick purchased, in fee simple absolute, a lot in the Business Park. The purchase included the land comprising the temporary easement, and the deed [206 Md.App. 678]stated that the land was “[s]ubject to part of a Revertible Easement and a Temporary Entrance, as shown on [the] plat.” The plat reiterated

[51 A.3d 83]

the “Note” from the December 7, 1983 plat.

On or about November 14, 1989, based on prior conversations, the local right of way agent for SHA, William Ravenscroft, informed Selnick that SHA was in the process of securing the right of way for a new entrance road into the Business Park. Mr. Ravenscroft informed Selnick that a new entrance would be constructed when a ramp leading from eastbound Route 100 onto U.S. Route 1 northbound was completed. The new entrance would make the temporary easement unnecessary, and SHA would provide an aesthetically pleasing permanent barrier to close the road over the temporary easement. On November 27, 1989, based on the discussions, Selnick granted SHA an option to purchase a portion of its property in conjunction with “improvements to Maryland Route 100 from I–95 to east of Maryland Route 713.” The Option Agreement was later replaced by an almost identical agreement dated June 12, 1990; sections M and M1 of both agreements stated:

(M) It is hereby understood and agreed that [SHA] will do the following:

(M1) At the time Amberton Drive is closed SHA will provide a well defined break in the roadway to prevent all traffic from entry from the ramp.

The Route 100 Extension Project ended in 1998, but due to expenditure of funds, SHA did not construct a new entrance into the Business Park. SHA deferred construction “until traffic warrants closure/relocation of U.S. 1 Amberton Drive intersection.” Selnick was advised of the deferral.

Since Selnick acquired its property in the Business Park in 1983, traffic over the temporary easement increased significantly. A 350 unit condominium and townhouse project used the temporary easement as the sole entrance and exit. Selnick noticed the increased traffic across the temporary easement and claimed to have lost a valuable tenant in its building [206 Md.App. 679]as a result of a lack of parking. Selnick then inquired as to Howard County's plans to construct a new entrance to the Business Park and close the road...