Dabbs v. Anne Arundel Cnty.

• Decision Date: 10 April 2018
• Docket Number: No. 23, Sept. Term, 2017,23, Sept. Term, 2017
• Citation: 182 A.3d 798,458 Md. 331
• Parties: William A. DABBS, Jr., et al. v. ANNE ARUNDEL COUNTY
• Court: Court of Special Appeals of Maryland

458 Md. 331

182 A.3d 798

William A. DABBS, Jr., et al.

v.ANNE ARUNDEL COUNTY

No. 23, Sept. Term, 2017

Court of Appeals of Maryland.

April 10, 2018

Argued by John R. Greiber, Jr. (Roy L. Mason, Smouse & Mason, LLC, Towson, MD; Robert H. B. Cawood, Cawood & Cawood, LLC, Annapolis, MD), on brief, for Petitioners.

Argued by Kurt J. Fischer (Venable LLP, Baltimore, MD; Nancy Duden, County Attorney, Hamilton Tyler, Deputy County Attorney, Anne Arundel, County Office of Law, Annapolis, MD), on brief, for Respondent.

Argued before: Adkins, McDonald, Watts, Hotten, Getty, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), Dale R. Cathell (Senior Judge, Specially Assigned), JJ.

Harrell, J.

"[D]espite reams of papers being filed, it is[, still to this day,] [ ] difficult to tease out [precisely what the Dabbs Class'] specific contentions are except for the assertion that they should receive a refund of some unspecified amount."

Memorandum Opinion (at 14), Senior Judge Dennis Sweeney (ret.),

Dabbs, et al. v. Anne Arundel County , Circuit Court for Anne Arundel County, Case No. 02–C–11–165251 (14 January 2016).

This is the latest installment of a litigation saga (although perhaps we are nearing its end) traveling two quite kindred paths over more than fifteen years, (Halle, et al. v. Anne Arundel County ("Halle ") and Dabbs, et al. v. Anne Arundel County ("Dabbs ") ) in Maryland's courts. Pursuant to the power vested in the government of Anne Arundel County, Maryland ("the County") through 1986 Md. Laws, ch. 350, the County imposed road and school impact fees according to County districts beginning in 1987.¹ These fees were paid usually by land developers and builders.² Those who paid impact fees (like the Dabbs Class) might become eligible, under certain circumstances, for refunds of those fees. See Anne Arundel County Code § 17–11–210.³ Refunds were contingent upon the County's failure to utilize or encumber within a specified time the collected fees for present or future eligible capital improvements, i.e., projects for the "expansion of the capacity of public schools, roads, and public safety facilities and not for replacement, maintenance, or operations." § 17–11–209(a).⁴ The Dabbs Class' claims are a demand for refunds of an unspecified amount of impact fees collected by the County between fiscal years (FY) 1997–2003.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Halle Chronicles.

A total of 12 reported and unreported opinions, orders, and memorandum opinions have been issued to date collectively by this Court, the Court of Special Appeals, and the Circuit Court for Anne Arundel County, in the Halle litigation (the older sibling to the present case).⁵ The core contention in Halle is relevant to the present case. In 2001, the Halle Class asserted that they were entitled to refunds of impact fees collected during FY 1988–1996 that were expended on what was ultimately determined to be ineligible capital improvements.⁶ In Halle , the circuit court, on 15 December 2006, found $4,719,359 in refunds were "due to the current owners of specified fee paying properties," plus five-percent interest from the date of the payment of each initial fee.⁷ The circuit court based its ruling in favor of the payors on its determination that the § 17–11–210(e) extension⁸ decisions made by the County's Planning and Zoning Officer (PZO) were invalid. The Halle Class and the County cross-appealed. The County, on appeal,

argued that the circuit court erred by refusing to permit the County to count the encumbrances in calculating the refund. In their cross-appeal, the [Halle Class] contended that (1) the circuit court improperly calculated the amount of impact fees available for refund by excluding funds that were spent on ineligible development projects; and (2) counsel for the property owners were entitled to the 40 [percent] contingency fee provided by their fee agreement with the named class representatives.

Halle Dev., Inc. v. Anne Arundel County , No. 1299, Sept. Term, 2016 at 6, 2017 WL 5629677 (Md. Ct. Spec. App. Nov. 22, 2017).⁹ The intermediate appellate court, in 2008, held, inter alia in an unreported opinion, that the circuit court erred in its formulation of the mathematical formula used to calculate that $4,719,359 in refunds were due. The County was entitled, in fact, to count impact fee encumbrances¹⁰ when determining impact fees available for refund. Halle Development v. Anne Arundel County , No. 2552, Sept. Term, 2006 at 8–9 (Md. Ct. Spec. App. May. 5, 2008) (the appellate court granted a motion for reconsideration to clarify its 7 February 2008 remand instruction); Halle Development v. Anne Arundel County , No. 2552, Sept. Term, 2006 at 52 (Md. Ct. Spec. App. Feb. 7, 2008) (the intermediate appellate court found that the circuit court erred by refusing to allow the County to count impact fee encumbrances in determining the amount of impact fee refunds to which Owners are entitled under § 17–11–210(b) ). The intermediate appellate court, on remand, instructed the circuit court to recalculate appropriately the refunds with consideration given to the encumbered impact fees. See id. The County sought successfully a writ of certiorari from this Court to review that judgment. We affirmed, on 6 May 2009, the intermediate appellate court regarding its decision as to the encumbrances, and directed a remand to the circuit court to calculate available impact fee refunds. See Anne Arundel County v. Halle Dev., Inc. , 408 Md. 539, 971 A.2d 214 (2009).

On 25 March 2011, the circuit court reduced the refunds for which the payors were eligible from $4,719,359 to $1,342,360, plus interest. The Halle Class, in response, filed a petition for a writ of certiorari with this Court. We denied the Halle Class' attempt to pole-vault over review by the intermediate appellate court. The Halle Class appealed then to the intermediate appellate court. In a 29 July 2013 unreported opinion, the Court of Special Appeals affirmed the circuit court's 25 March 2011 order. The Halle Class petitioned again for a writ of certiorari. We denied that petition also. The circuit court awarded, on remand on 13 May 2014, counsel fees in the amount of 39 percent of the $1,342,360 in refunds, plus five-percent interest on each refund, and, on 8 August 2016, issued its final judgment. The owners appealed to the intermediate appellate court, which, in an unreported opinion on 22 November 2017, affirmed the circuit court's 8 August 2016 order, explaining, "in prior opinions, [the intermediate appellate court and this Court] have already addressed all but one¹¹ of the arguments raised by the [Halle Class]." Halle Development v. Anne Arundel County , No. 1299, Sept. Term, 2016 at 1, 2017 WL 5629677 (Md. Ct. Spec. App. Nov. 22, 2017).¹²

II. The Dabbs trilogy.

We adopt, supplementing as needed, the intermediate appellate court's recitation of the procedural posture of this case as rendered in Dabbs v. Anne Arundel County , 232 Md. App. 314, 328–31, 157 A.3d 381, 389–91 (2017), cert. granted Dabbs v. Anne Arundel Co. , 454 Md. 677, 165 A.3d 473 (2017) :

In the present case, involving impact fees collected in FYs 1997–2002, [the Dabbs Class] sought refunds on the ground that the impact fees were not expended or encumbered in a timely manner under § 17–11–210(b). [The Dabbs Class] also argued that the amendments to the Impact Fee Ordinance in Bill No. 27–07 and Bill No. 71–08 unconstitutionally interfered with their vested rights in refunds. After hearing from the parties, [the circuit court entered, ultimately, a declaratory judgment in favor of the County as to all issues raised in the proceeding.] [T]he circuit court ruled that the County had applied the Impact Fee Ordinance as required by this Court's 2008 opinion and found that there are no impact fees available for refund under § 17–11–210. Further, the circuit court rejected [the Dabbs Class'] constitutional and state law challenges to the Impact Fee Ordinance, finding that most of the challenges had already been resolved against the class plaintiffs in Halle .

More specifically, the circuit court found that the County prepared the six FY charts in the format approved by the Halle courts, properly comparing the amount of impact fees collected in each FY and district under review to the amount of impact fees expended (disbursed) and encumbered as of the end of the sixth FY following the FY of collection. Kurt Svendsen, the County's Assistant Budget Officer, who had been employed by the County since September 1, 1997, was responsible for (a) the preparation of the County's Capital Budget portion of the Annual Budget and Appropriation Ordinance, and (b) the monitoring of encumbrances and expenditures recorded in connection with appropriations for capital projects. Because Svendsen monitored expenditures and encumbrances recorded against appropriations of capital projects on an almost daily basis, he was delegated the responsibility for conducting the six FY test under § 17–1–210(b).

In the present case, the County prepared six FY charts for FYs 1997–2002 in the same manner as the charts prepared in Halle for FYs 1988–2002, but also included impact fee expenditures on temporary classrooms. The charts indicated that all impact fees collected in FYs 1997–2002 were expended or encumbered within six FYs following the FY of collection and, thus, no impact fees collected in these FYs were available for refund.

Lastly, the circuit court found that, in applying the six FY test, the County properly interpreted the term "impact fees encumbered" in § 17–11–210(b) to mean:

(1) the amount of impact fees collected in a district account in a FY which have not been expended on June 30 of the sixth FY following the FY of collection, for which there is

(2) as of the same date, an encumbrance (purchase order) on an impact fee eligible capital project in the district.

According to the circuit court, this definition is the only logical one based on [generally

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