Gardner v. Board of County Com'rs of St. Mary's County

• Citation: 320 Md. 63,576 A.2d 208
• Decision Date: 05 July 1990
• Docket Number: No. 103,103
• Parties: Viola M. GARDNER et al. v. BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY, Maryland. Sept. Term 1989.
• Court: Court of Appeals of Maryland

Page 63

320 Md. 63

576 A.2d 208

Viola M. GARDNER et al. v. BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY, Maryland.

No. 103 Sept. Term 1989.

Court of Appeals of Maryland.

July 5, 1990.

Alfred A. Lacer (Kenney and Lacer, P.A., on brief), Lexington Park, for petitioners.

Theodore P. Weiner (Joseph R. Densford, J. Ernest Bell, II, Weiner & Weiner, P.A., on brief), Leonardtown, for respondent.

J. Joseph Curran, Jr., Atty. Gen., Carolyn A. Quattrocki, Asst. Atty. Gen. for State of Md., for amicus curiae.

Argued Before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, CHASANOW and CHARLES E. ORTH, Jr., Judge of the Court of Appeals of Maryland (retired, Specially Assigned), JJ.

RODOWSKY, Judge.

Respondents, the County Commissioners of St. Mary's County (the County), after having been petitioned to do so created a special tax district in order to build public roads in a large residential subdivision that was partially developed. On the merits the principal issue is whether the ordinance creating the special tax district was initiated by the requisite number of petition signatures. Procedurally, the principal issues are whether this litigation may properly proceed until the Attorney General of Maryland has been notified and until the owners of all of the lots in the tax district have been joined as co-defendants with the County.

Longview Beach is a platted subdivision of 870 lots lying between Maryland Route 238 and the Wicomico River. ¹ At least some of the roads shown on the plat have been laid out and graded, but none is surfaced to current County standards.

Prior to July 21, 1987, the owners of 236 lots in Longview Beach petitioned the County to improve certain of the private roads in Longview Beach and to incorporate those roads, so improved, into the County roads system. This petition was presented pursuant to a public local law authorizing the County to construct "on or along private roads after the approval of a petition of a majority of the property owners whose property will benefit from the proposed construction or improvement, requesting that the roads be taken into the county roads system." St. Mary's County Code (1978, 1989 Cum.Supp.), § 109-2.C. (1). ² On July 21, 1987, the County adopted Ordinance No. 87-10, the Longview Beach Special Taxing District Ordinance (the Ordinance). The tax district initially consists of 466 of the 870 lots in Longview Beach. The Ordinance specifically refers to block and lot designations, as shown on the recorded plat, in order to create a tax district consisting of "all improved lots and all lots fronting on one of the roads to be reconstructed." In other words, the district initially consists of unimproved lots abutting a proposed County road, improved lots abutting a proposed County road, and improved lots abutting a private road, but unimproved lots abutting a private road will not be assessed initially. The Ordinance further provides that "[i]f improvements are constructed on lots that are not currently included in the taxing district ... such lots shall, in the assessment year following such construction or subdivision, be included in the taxing district at the appropriate rate."

The total costs of the proposed County roads in Longview Beach are to be paid by benefit assessments levied against the lots comprising the tax district from time to time. ³

The criteria for determining the initial lots to be assessed create sections of the tax district which are wholly surrounded by lots which are not part of the tax district. Those criteria also produce an initial tax district of 466 lots. Inasmuch as the petition under § 109-2.C of the County Code was signed by the owners of 236 lots, the petition was signed by a majority of the owners of the lots in the tax district, as defined in the Ordinance. One issue on the merits of this case is whether the § 109-2.C requirement for "a petition of the majority of the property owners whose property will benefit from the proposed construction" has been satisfied.

This litigation began when Viola M. Gardner and others, the Petitioners, filed in the Circuit Court for St. Mary's County an order for appeal, followed by a petition for appeal, under Maryland Rules of Procedure, Ch. 1100, Subtitle B, "Administrative Agencies--Appeal From." The circuit court granted the County's motion to dismiss, but allowed Petitioners leave to amend.

In their amended complaint Petitioners alleged that they are "property owners and taxpayers in Longview Beach whose properties will be subject to a special taxing district tax." They sought a judgment declaring the Ordinance to be void and enjoining the County from implementing it. They alleged that fewer than half of the lot owners in Longview Beach petitioned for creation of the tax district. The amended complaint also alleged that the County's action violated Art. XV of the Maryland Declaration of Rights and the fifth and fourteenth amendments to the United States Constitution.

At no time during the course of this litigation have the Petitioners sent notice of their suit to the Attorney General of Maryland, despite the County's having raised by answer Md.Code (1974, 1989 Repl.Vol.), § 3-405(c) of the Courts and Judicial Proceedings Article (CJ). ⁴ The County's answer also asserted that "at least 466 property owners are to be in this taxing district and would be possibly affected by the outcome of this case and, therefore, should be included as necessary parties in this case."

The circuit court essentially severed for separate trial, on stipulated facts, the issue involving the number of signatures on the petition. That court concluded that the owners of a majority of the benefited lots had not signed so that the Ordinance was void.

The County appealed to the Court of Special Appeals which vacated the judgment of the circuit court and remanded for further proceedings, to be conducted after notice to the Attorney General in accordance with the requirements of CJ § 3-405(c). Board of County Comm'rs of St. Mary's County v. Gardner, 79 Md.App. 417, 557 A.2d 260 (1989). The appellate court concluded that § 3-405(c) must be followed even though the trial court had not predicated its judgment on constitutional grounds. The Court of Special Appeals, however, expressly disclaimed "ruling that notice to the Attorney General is jurisdictional." Id. at 419, 557 A.2d at 261.

The intermediate appellate court also held that the owners of lots assessed under the Ordinance were directly impacted by any ruling on its validity. Relying on CJ § 3-405(a) and Maryland Rule 2-211, the court held that "[i]nclusion of persons owning property within the scope of the [O]rdinance is, therefore, mandatory." Id. at 421, 557 A.2d at 262. ⁵ The court did not reach the merits.

We issued the writ of certiorari at the request of the Petitioners. That petition included the following questions:

"1. Whether the failure to notify the Attorney General in a declaratory judgment action, pursuant to ... Section 3-405(c), is harmless error when the Circuit Court enters the declaratory judgment based on non-constitutional grounds.

....

"3. Whether the Plaintiffs, in a taxpayer's suit seeking a decree enjoining the implementation of an ordinance illegally creating a special taxing district, are required to join all other property owners located in the special taxing district pursuant to Maryland Rule 2-211 (1989).

....

"5. Whether the ordinance creating a special taxing district is illegal or ultra vires since a class of property owners who will be taxed in the future if they improve their property were not permitted to vote on, nor counted toward, the proposed taxing district."

The Attorney General also obtained leave to file a brief as amicus curiae, in order to address only the issue involving CJ § 3-405(c).

I

As a threshold matter the County submits that the circuit court had no jurisdiction. We consider this contention, despite the absence of a cross petition for certiorari, because lack of jurisdiction over the subject matter may be raised at any time. Md.Rule 2-324.

Petitioners' first pleading invoked the B Rules which confer no substantive right to judicial review of legislative enactments. The County seems to say that the misconception by Petitioners of their remedy rendered the circuit court powerless to act in any aspect of the case. Courts have jurisdiction, as in the case here, to rule that an initial claim for relief does not state a claim upon which relief can be granted. Maryland Rule 2-341 permits amendments which "shall be freely allowed when justice so permits." An amendment may seek to "change the nature of the action." Md.Rule 2-341(c)(1).

II

We now turn to the effect of Petitioners' violation of CJ § 3-405(c). By the clear terms of that statute the Petitioners should have given notice to the Attorney General when they filed their suit alleging, inter alia, the unconstitutionality of the Ordinance. The purpose of § 3-405(c) is to give the Attorney General "the opportunity to decide whether to intervene on behalf of the State or any State agency affected." Pressman v. State Tax Comm'n, 204 Md. 78, 86, 102 A.2d 821, 826 (1954).

CJ § 3-405(c) is § 11 of the Uniform Declaratory Judgment Act, 12 U.L.A. 516 (1975). One court has said:

"The purpose of this provision is to enhance the quality of constitutional litigation by notifying the Attorney General of the pending action.... While it is not contemplated that the Attorney General will actually appear in every case in which he is served, still, from a copy of the proceedings, he can identify the parties and issues and decide whether the State, with the forces it can muster, should step in and support the enactment. If, in a particular case, the Attorney General decides to appear in court, as this statute permits, his presentation of evidence and argument may provide the court with that additional crucial matter which will demonstrate that an...