Carroll County v. Forty West

• Citation: 178 Md. App. 328,941 A.2d 1181
• Decision Date: 11 February 2008
• Docket Number: No. 1531, Sept. Term, 2006.,1531, Sept. Term, 2006.
• Parties: COUNTY COMMISSIONERS FOR CARROLL COUNTY, Maryland, v. FORTY WEST BUILDERS, INC., et al.
• Court: Court of Special Appeals of Maryland

941 A.2d 1181

178 Md. App. 328

COUNTY COMMISSIONERS FOR CARROLL COUNTY, Maryland, v. FORTY WEST BUILDERS, INC., et al.

No. 1531, Sept. Term, 2006.

Court of Special Appeals of Maryland.

February 11, 2008.

Kenneth R. West and Stanley D. Abrams (James L. Parsons on the brief), Bethesda, for Appellant.

Anthony P. Palagigos (Thomas A. Bowden on the brief), Timonium, Clark R. Shaffer on the brief, Westminster, for Appellee.

Panel: HOLLANDER, BARBERA, CHARLES E. MOYLAN, JR., (Retired, specially assigned), JJ.

HOLLANDER, Judge.

This matter is before us for the second time, and concerns two contiguous residential subdivision projects: Eagles Crest and Ridgewood Estates, both located near Mt. Airy in Carroll County (the "Projects"). Harrison Farm, LLC ("Harrison") and Ridgewood, LLC ("Ridgewood"), appellees, hold title to the real property upon which the Projects were to be built by the developer, Forty West Builders, Inc. ("Forty West"), appellee.¹

The County Commissioners for Carroll County, appellant (hereafter the "County," the "Board," or the "Commissioners"), challenge an Order issued by the Circuit Court for Carroll County on October 17, 2005.² Among other things, the Order enjoined the County from applying to the Projects an adequate public facilities ordinance enacted in 2004, because in December 2002 the County had granted a Concurrency Management Certificate ("CMC") for each project, pursuant to an earlier and less stringent adequate public facilities ordinance.³ The court also found the County in constructive contempt of its November 2003 order, in which the court had granted Forty West preliminary injunctive relief.

Appellant presents three issues on appeal, which we quote:

1. Whether the trial court erred or abused its discretion when it found the County to be in constructive contempt of the November 13, 2003 Order.

2. Whether the trial court erred in granting injunctive relief to Forty West based on a finding contained in its grant of partial summary judgment that the CMC constitutes a contractual obligation.

3. Whether the trial court lacked jurisdiction over Forty West's claims based upon. Forty West's failure to exhaust its administrative remedies.

For the reasons that follow, we shall affirm the finding of contempt and the court's order granting additional injunctive relief, and remand for further proceedings.

I. THE LEGISLATIVE SCHEMES

We begin with an overview of the relevant provisions of the Maryland Code ("Code") and the Carroll County Code (the "County Code").

Boards of county commissioners constitute the governing bodies of the counties of the state, such as Carroll County, that have not adopted home rule under Article XI-A (the "Home Rule Amendment") of the Maryland Constitution. See Maryland Code (1957, 2005 Repl.Vol.), Art. 25. A board of county commissioners functions as the county government and "is the county body politic; in performing its various functions, it exercises legislative, quasi-legislative, executive, and quasi-judicial authority, sometimes in combination." Queen Anne's Conservation, Inc. v. County Comm'rs Of Queen Anne's County, 382 Md. 306, 323, 855 A.2d 325 (2004) (citation omitted). The county commissioners sometimes wear "different hats," by which they "perform[ ] a legislative action followed by an administrative/executive action." Id. at 326, 855 A.2d 325.

Maryland Code, Article 25 sets forth the nature and powers of county commissioners and the manner of exercising their powers. Casey v. Mayor and City Council of Rockville, 400 Md. 259, 280, 929 A.2d 74 (2007). These powers pertain to matters such as road and bridge construction, land drainage, and public watershed associations. They are supplemented elsewhere in the Code, notably here by Article 66B, pertaining to land use.

Maryland Code, Article 66B, commonly known as the "enabling act," Congressional School of Aeronautics, Inc. v. State Roads Comm'n, 218 Md. 236, 244, 146 A.2d 558 (1958); 58 Op. Att'y Gen'l 521, 522 (1973), "generally regulates land use (planning and zoning) in Maryland's non-charter, Code home rule counties, Baltimore City, and municipalities possessing planning and zoning powers[.]" Queen Anne's Conservation, 382 Md. at 308-09 n. 1, 855 A.2d 325.⁴ However, Article 66B, § 10.01(a)(1) permits any local jurisdiction to enact ordinances "to facilitate orderly development and growth . . .," and to enact "ordinances or laws providing for or requiring . . . adequate public facilities. . . ."

Section 52 of the County Code provides for the creation, jurisdiction, powers and duties of the Planning and Zoning Commission of Carroll County (the "Planning Commission"). Pursuant to § 52-5, the Planning Commission "shall have all the powers, functions and duties as provided in Article 66B of the Annotated Code of Maryland, as amended."

On March 5, 1998, the County adopted Ordinance No. 161, entitled "Public Facilities and Concurrency Management," codified as Chapter 167 of the County Code. The stated aim of Chapter 167 was to "permit[ planned residential growth to proceed at a rate that will not unduly strain public facilities, especially schools, roads, water, and sewer facilities, and police, fire and emergency medical services." County Code, § 167-1.A.

Chapter 167 required a developer to apply for a CMC at the outset of the development process. County Code, § 167-6.A, titled "Concurrency Management approval," provided:

No development project subject to this chapter may be approved by the Board of County Commissioners, the Planning and Zoning Commission, the Board of Zoning Appeals, or any other county official having the authority to grant approval, until the project has satisfied the requirements of this chapter and a concurrency management certificate has been issued by the Department of Planning.[⁵]

To obtain a CMC, the developer had to submit "a concept plan . . . and a concurrency data form containing sufficient information for the county to determine the impact of the proposed project on public facilities." County Code, § 167-6.G.(1). In particular, the developer had to show that the proposed project satisfied various "threshold" requirements as to school capacity; road capacity; availability of fire, police, and emergency medical services; and water and sewer services. County Code, § 167-5.C. With regard to school capacity under Chapter 167, the developer had to demonstrate that "[p]rojected enrollment at schools servicing a proposed project was at 120% or less of the state-rated capacity." County Code, § 167-5.C.(1)(a).

A developer who received a CMC was permitted to "proceed with recording and development, as long as the developer [met] specified milestones, dates by which certain stages must be completed." County Code, § 167-1.B. Put another way, "milestones" are deadlines "by which a developer must submit the next stage of a project to the Department of Planning for approval." County Code, § 167-2.⁶ If "available threshold, capacity" ("ATC") did not exist at the concept plan stage, the project was to be "assigned a place in a queue." County Code, § 167-1.C. Of import here, § 167-6.E stated: "Once a project has received a concurrency management certificate, no further approval for adequate facilities and services will be required for the project if the project is completed in accordance with its milestones." County Code, at § 167-6.E. Moreover, § 167-6.G(7) provided:

Any person aggrieved by a decision of the county denying a concurrency management certificate in whole or in part and alleging this chapter has been erroneously applied may appeal to the Board of Zoning Appeals. Any further appeal shall be to the Circuit Court.

Effective June 10, 2003, the County enacted Ordinance No. 03-11 (the "Deferral Ordinance"). It mandated a twelve-month deferral of the "submittal, acceptance, review, processing and approval of all residential subdivisions and site plans for residential development . . . except for those plans approved by the Planning and Zoning Commission prior to the effective date [of June 10, 2003.]"

On April 22, 2004, the County enacted Ordinance No. 04-13, which repealed Chapter 167 and replaced it with Chapter 71, titled "Adequate Public Facilities and Concurrency Management." It states, in part:

§ 71-5. Adequacy approval.

A. ATC ["Available Threshold Capacity" or "ATC"] is required for all years in the current six-year CIP ["Capital Improvement Program" or "CIP"].

B. No project may be approved by the Commission if a public facility or service is inadequate or projected to be inadequate during the current CIP, unless a relief facility is planned to address the inadequacy or the developer provides mitigation acceptable to the County. No residential plat may be recorded or final residential site plan approved until a relief facility planned to address the inadequacy in the current CIP has been completed and is operational or the developer provides mitigation acceptable to the County.

C. For projects that received preliminary approval by the Commission after March 5, 1998, and prior to April 22, 2004, the developer shall submit the, project to the Commission for issuance of a recordation schedule and building permit reservations. For projects that received preliminary approval by the Commission prior to March 5, 1998, the project shall be tested for adequacy when final plan approval is sought pursuant to § 71-6E.

D. Threshold requirements.

(1) Adequacy.

(a) Schools. An elementary or high school servicing a proposed project is adequate, for the purposes of this chapter, when projected enrollment equals or is less than 109% of the state-rated capacity. A middle school serving a proposed project is adequate, for the purposes of this chapter, when projected enrollment equals or is less than 109% of the functional capacity. . . .

* * *

(2) Approaching inadequacy.

(a) Schools. An elementary school serving a proposed project is approaching inadequate, for...