Calvert v. Howlin

• Decision Date: 04 June 2001
• Docket Number: No. 61,61
• Citation: 772 A.2d 1209,364 Md. 301
• Parties: CALVERT COUNTY PLANNING COMMISSION, v. HOWLIN REALTY MANAGEMENT, INC.
• Court: Maryland Court of Appeals

772 A.2d 1209

364 Md. 301

CALVERT COUNTY PLANNING COMMISSION, v. HOWLIN REALTY MANAGEMENT, INC.

No. 61, Sept. Term, 2000.

Court of Appeals of Maryland.

June 4, 2001.

John A. Yacovelle, St. Leonard, on brief, for petitioner.

Robert L. Gray, Prince Frederick, on brief, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ WILNER, Judge.

The two issues before us are (1) whether the Calvert County Planning Commission was a proper party in the Circuit Court for Calvert County, in an action for judicial review of the Commission's decision to rescind a subdivision approval it had granted three years earlier, and (2) whether the Commission provided due process to the owner of the subdivided lots in the hearing that it conducted on the matter. The Court of Special Appeals answered the first question in the affirmative and the second in the negative. We shall answer both in the affirmative and therefore reverse the judgment of the intermediate appellate court.

BACKGROUND

The Calvert County Planning Commission was created in 1962, pursuant to the provisions of Article 66B of the Maryland Code. Among the powers vested in the Commission by that Article is the power to approve or disapprove subdivision plats. See §§ 5.01, 5.02, 5.04 of Article 66B.

We are concerned here with the Hickory Creek Subdivision, which was created in 1993 by Claudette McLaughlin, William McLaughlin, and Eva Roth. The preliminary plan, approved by the Commission in August, 1993, showed a 93-acre subdivision divided into 43 lots, with 50% open space and three separate recreation areas. The approval included a number of conditions, one of which stipulated that 3.931 acres of recreation area be provided pursuant to then-current § 5.83 of the Calvert County Subdivision Regulations and that those recreation areas be dedicated to the lot owners of the proposed subdivision. In October, 1993, six final plats were approved by the Commission and recorded among the land records. Plat One contained Recreation Area A, consisting of 0.662 acre; Plat Two contained Recreation Area B, consisting of 1.643 acres; and Plat Six contained Recreation Area C, consisting of 1.626 acres.

In August, 1994, all of the lots in the subdivision, exclusive of roads, recreation areas, and common areas, were deeded to Edward Howlin. The McLaughlins and Roth continued to own the three recreation areas. Four months later, the county adopted a Recreational Fund Ordinance, which allowed developers of subdivisions containing less than 50 lots to pay a recreational fee to the county in lieu of providing on-site recreation areas. In July, 1995, the McLaughlins and Roth applied to convert the platted recreational areas into residential lots by paying the recreational fees provided for in the ordinance, in accordance with the revised provisions of § 5.83 of the Subdivision Regulations. The Commission granted the request, subject to the condition that re-subdivision of the recreation areas conform to the county subdivision requirements. In September, 1995, Randy Barrett, a surveyor with the firm of Hugh W. Wilkerson & Assoc., filed an application with the Department of Planning and Zoning, on behalf of the owners of the three recreation lots, to convert Recreation Area A into one building lot and to subdivide Recreation Area B into three building lots. Recreation Area C would remain as an undeveloped recreation area. Although the subdivision regulations in effect at the time are not in the record before us, the parties agree that those regulations required, as a condition of approval, that the owners of all lots in the Hickory Creek Subdivision consent in writing to the conversion of Recreation Area A and the resubdivision of Recreation Area B. By that time, Howlin had sold a number of the building lots to other people. Barrett's letter noted that some lots had already been conveyed and that others were under contract, but he asserted that "[i]n each case an agreement was signed by the lot owners and contract purchasers acknowledging that they were aware that the recreation area would be subdivided into buildable lots" and that "[c]opies of all of the agreements are included with this application." He stated that, because the lot owners and contract purchasers had no actual ownership interest in the recreation area, their signatures did not appear on the subdivision application, but that "their signed acknowledgments of the owner/applicants intent is provided in the agreements."

On April 17, 1996, without any apparent opposition, the Commission approved the application to re-subdivide Recreation Area B into three new building lots—Lots 44, 45, and 46. A year later, those lots were sold to Howlin Realty Management, Inc. (HRM). Soon thereafter, several of the residents noticed Recreation Area B being staked for building lots and made inquiry of the Commission, complaining that they had never consented to the resubdivision of that area. The Commission staff responded in August, 1997, that "the required documentation was provided with the preliminary plan submission package" and that the documentation "was reviewed and deemed adequate."

In September, 1997, John Jones, an attorney retained by two of the residents, Mr. and Mrs. Bennett, informed the Commission that, in response to the August letter, he had inspected the Commission file and found that, although there were some written consents to the conversion of Recreation Area A, there were none to be found regarding the re-subdivision of Recreation Area B. The Bennetts, he said, had reviewed their own files and had not located any documents indicating their consent to the re-subdivision of Recreation Area B. The attorney further advised that, while at the Commission office, a call had been placed to Mr. Wilkerson's office, asking that Mr. Barrett review his file for the missing consents, and that no response had been forthcoming. Jones asked that his letter be treated as a formal request that the Commission (1) void or set aside the re-subdivision plat of Recreation Area B, based on the failure to provide evidence of the consent of all parties whose interest in that area vested prior to the submission, and (2) refrain from issuing any building permits on the lots created by the resubdivision plat. At Jones's request, the Commission scheduled a hearing on the matter for the evening of October 15, 1997.

On the morning of the 15th, HRM filed an action in the Circuit Court for Calvert County to enjoin the proceeding. The record in that case is not in the record now before us, but it appears that, among other things, HRM complained that (1) the Commission had no authority to reopen the matter, the Bennetts only remedy having been to seek judicial review of the initial decision, and (2) it was likely to be denied due process because it was not aware of how the Commission intended to proceed, in part because the Commission had failed to adopt any rules that would govern the proceeding. The court denied the requested injunction.

At the commencement of the hearing later that evening, counsel to the Commission attempted to deal with some of the procedural issues. He advised the Commission that, because the previous approval was presumed to be valid, the burden would be on the Bennetts to prove otherwise, to show that there was some fraud, mistake, or irregularity in the approval in that required written consents had not been obtained. He observed that, if the Commission were so to find, it might then have to deal with the rights of any intervening bona fide purchasers of the resubdivided lots. Counsel told the Commission that "fair play has to be accorded to everyone"—that there was no rule book, but that there were requirements of "fundamental fairness in due process of law." Witnesses, if any, were to be sworn, and would be subject to direct and cross-examination. HRM asked the Commission not to proceed because it was unaware of what the procedure would be—whether the hearing would be informal or involve the taking of evidence—and that "we have no clue as to what's going on." He complained again that the Commission had failed to adopt regulations or rules of procedure and that the Commission had no authority to reopen the matter. In response to a formal request from HRM, the Commission determined that it intended to conduct an evidentiary hearing on the merits of the issue and would first hear from Mr. Jones, counsel for the Bennetts.

Prior to any testimony, the relevant plats and Mr. Barrett's letter were placed into evidence, along with several deeds and agreements that were found in the Commission's file. The deeds were for the conveyance of lots in the Hickory Creek subdivision to Gilchrist and Dredger, Johnson, Stone, Dickerson, and the Bennetts. The agreements were from Gilchrist, Dredger, and Dickerson, each of whom consented to any future subdivision of Recreation Area A. John Bennett testified that he and his wife purchased Lot 23— three lots away from Recreation Area B— in July, 1995, that he had no recollection of ever consenting to a re-subdivision of that Area, and that, although he asked about that area during the contract negotiations, he did not recall any discussion about Recreation Area B being re-subdivided. Bennett acknowledged that it was possible that one of the several documents he signed at settlement was a consent to the re-subdivision of Recreation Area B, but he said he had no recollection of any such document and that it was not discussed. Mrs. Bennett gave similar testimony. Mr. Dickerson identified his deed, conveying Lot 38 to him in March, 1995, and his agreement consenting to the re-subdivision of Recreation Area A, but testified that he never consented to the re-subdivision of Recreation Area B. Like the Bennetts, he acknowledged that it was possible that, among the various documents he signed, there was a consent regarding Recreation Area B.

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