District Land Corp. v. Washington Suburban Sanitary Commission, 385

• Court: Court of Appeals of Maryland
• Citation: 266 Md. 301,292 A.2d 695
• Docket Number: No. 385,385
• Parties: DISTRICT LAND CORPORATION v. WASHINGTON SUBURBAN SANITARY COMMISSION et al.
• Decision Date: 05 July 1972

Page 301

266 Md. 301 292 A.2d 695 DISTRICT LAND CORPORATION
v.
WASHINGTON SUBURBAN SANITARY COMMISSION et al. No. 385. Court of Appeals of Maryland. July 5, 1972.

Page 303

[292 A.2d 696] Jerome E. Korpeck and Stanley J. Nadonley, Silver Spring (Peter R. Hartogensis and Wheeler, Korpeck & Nadonley, Silver Spring, on the brief), for appellant.

Charles M. Byrd, Hyattsville (John B. Kenkel and J. Lloyd Niles, Hyattsville, on the brief), for Washington Suburban Sanitary Commission, part of appellees.

John B. Walsh, Jr., Asst. County Atty. (Richard S. McKernon, Acting County Atty. and Stephen P. Johnson, Asst. County Atty., Rockville, on the brief), for Montgomery County, for other appellees.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

The question presented to us in this appeal is whether the Circuit Court for Prince George's County (Meloy, J.) erred in passing an order on February 3, 1972 dismissing a Petition for Writ or Mandamus filed by the appellant, District Land Corporation (District), a Maryland corporation, to direct the Washington Suburban Sanitary Commission (WSSC), one of the appellees, to provide sewer service to apartment buildings planned for construction by District.

[292 A.2d 697] The relevant facts in this case have been stipulated. In 1967, District purchased a 209.8 acre parcel of land known as the Anderson Tract. After the purchase of the property, District began to take the necessary steps to begin the construction of apartment buildings on the 69.6 acres of the subject property which had been rezoned on October 11, 1966, from the R-R zone to the R-20, multiple-family, mediumdensity residential zoning classification. Thus, District filed Preliminary Plans of Subdivision (#1-67182) with the Montgomery County Planning Board of the Maryland-National Capital Park and Planing

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Commission, which were approved on Marcy 21, 1968, and established the zoning and park-taking lines. A preliminary Plan of Subdivision (#1-70004) for approximately 46.86 acres of the R-20 parcel was approved by the Maryland-National Capital Park and Planning Commission on July 16, 1970. Thereafter, District's request for water mains and sewer extensions was approved by WSSC on August 31, 1970, with the customary conditions attached thereto. Pursuant to the sewer authorization, District and the WSSC on May 19, 1971, entered into an Engineering Agreement and District paid to WSSC $3,750 in fees. District and WSSC entered into a Front-Foot Benefit Agreement on May 13, 1971, wherein, inter alia, WSSC agreed to extend and construct water and sewer lines to the 69.6 acre parcel and, at a later date, to permit connections to these water and sewer lines. The water lines and the sewer lines had been constructed by WSSC prior to the commencement of the suit.

It was further agreed by all parties to this action that District has complied with every condition attached to WSSC's authorization of August 31, 1971, that District has obtained, except for the permits sought in this case, all necessary and requisite governmental approvals and permits incident to the construction of the apartment units on the subject property, and, further, that District has complied with all applicable laws, rules, regulations and conditions imposed by the appropriate governmental agencies concerned with the development of the subject property.

The trunk sewer lines traversing the subject property were constructed by the WSSC in the years 1967-1968, pursuant to the Five-Year Sewerage Program (Fiscal 1967-1971), adopted September 29, 1966, and Capital Improvements Program Adopted pursuant thereto.

On June 3, 1971, by Resolution No. 7-233, the County Council for Montgomery County adopted the Comprehensive Ten-Year Water and Sewerage Plan and approved the WSSC's Six-Year Capital Improvements

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Program. Resolution No. 7-233 was transmitted to the State Department of Health, and that Resolution was not disapproved within the time prescribed by Code (1971 Repl.Vol.) Art. 43, § 387C(d) 1. Section III. J. of the Resolution contained a provision whereby sewer service to certain Montgomery County areas was to be provided by the Commission only where the development conformed to the duly adopted and approved Master Plan. The subject property lies within one of these areas, 'Gaithersburg and Vicinity.'

The Master Plan for Gaithersburg and vicinity had been approved and adopted on January 14, 1971, and recommended that the subject property should be developed in the R-R classification in which apartment units are not permitted.

On July 26, 1971, District applied to the Montgomery County Department of Inspection and Licenses for Building Permits, and paid to the County the amount of $3,986.00 as fees therefor. On August 3, 1971, that Department issued Building Permits to District authorizing the construction of 420 apartment units on the subject property.

Based upon Section III. J. of Resolution No. 7-233, the WSSC, by letter dated December 13, 1971, declined to issue the sewer and water connection permits to District, [292 A.2d 698] pending a determination by the Montgomery County Council which had before it a proposed amendment to the Ten-Year Water and Sewerage Plan and the Six-Year Capital Improvements Program, which, if enacted, would have resolved the legal controversy concerning the 420 apartment units. However, on January 25, 1972, the County Council rejected the proposed amendment.

District filed suit against the Commission for a Writ of Mandamus in the Circuit Court for Prince George's County on December 17, 1971, directing the issuance of necessary house connection permits for the 420 apartment units. Thereafter, Montgomery County, Maryland, one of the appellees, moved to intervene, and, with the consent of the other parties, was permitted to do so. A

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hearing was held on February 3, 1972; and at the close of the case, the court denied the Writ of Mandamus and granted the motion of the defendants to dismiss.

A brief summary of the relevant statutory enactments in this area will be helpful in understanding the issue at hand.

At one time, the planning and construction of water and sewerage facilities in the Montgomery County portion of the Washington Suburban Sanitary District was not subject to a legislatively expressed staging or program requirement. By the Laws of 1955, Chapter 78, the Five-Year Water and Sewer Program was established, requiring the advance planning and programming of major extensions of sanitary sewer systems. This law was amended by the Laws of 1959, Chapter 779 to specify a program period (five years) with procedures for county government and Maryland-National Capital Park and Planning Commission roles in adoption of such programs.

In accordance with the provisions of the 'Five Year Program Law' as it stood in 1966 (Laws of 1966, Chapter 637), the Commission formulated projected extensions of its sewer facilities, including Project No. 53, the 'Great Seneca Creek-Whetstone Run' trunk sewer. Construction of Project No. 53 was started and completed in the years 1967-68 and traversed District's property.

The scope of the Five-Year Water and Sewer Program was amended by the Laws of 1969, Chapter 700, which provided for a Six-Year Capital Improvements Program and added certain procedural requirements. A state-wide requirement for advance planing of water and sewer facilities was established by the Laws of 1966, Ch. 562, adding § 387C to Article 43 of the Code, providing for the...