Howard County v. JJM, Inc.

Decision Date01 September 1983
Docket NumberNo. 140,140
Citation482 A.2d 908,301 Md. 256
PartiesHOWARD COUNTY, Maryland v. JJM, INC. ,
CourtMaryland Court of Appeals

Paul T. Johnson, Sr. Asst. County Sol., Ellicott City (Timothy E. Welsh, County Sol., Ellicott City, on the brief), for appellant-cross/appellee.

Lewis Straughn Nippard, Ellicott City, for appellee-cross/appellant.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, * RODOWSKY and COUCH, JJ. and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

SMITH, Judge.

At issue in this case is the validity of a Howard County statute requiring developers to "reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general plan and included in the state's twenty-year highway needs inventory which is located within the subdivision." We perceive the central issue here to be whether the proposed subdivision reasonably generates the need for the highway in question. No evidence of such need has been presented. Therefore, we agree with the circuit court that when the statute is read as a whole it deprives the owner of all use of its land and hence, as applied in this case, is an unconstitutional taking of property without compensation. Thus, we shall affirm.

I

Howard County is a charter county under Md. Const. art. XI-A. It is authorized by Maryland Code (1957, 1981 Repl.Vol.) Art. 25A, § 5(X) to enact local laws "relating to zoning and planning including the power to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court" and thence to the Court of Special Appeals. Pursuant to this authority Howard County Charter § 1105 established the Office of Planning and Zoning and the County enacted subdivision regulations. Howard County Code (1977, 1980 Supp.) § 16.113(b)(2) provides in pertinent part:

"The owner shall reserve within a proposed subdivision such part(s) of the right-of-way for a new state road designated on the general plan and included in the state's twenty-year highway needs inventory which is located within the subdivision. Such reservation shall be in the general location and to the right-of-way width specified by the state."

Definitions of terms used in the County's subdivision and land development regulations are contained in § 16.108. Section 16.108(54) defines "reservation" as "the assignment of land by a developer for a specified use, to be held by him or his assignees for that use and no other use to a future time."

In the fall of 1980 appellee JJM, Inc., submitted a subdivision plan to the Office of Planning and Zoning. The plan was for the Hammond Hills Subdivision. It involved a 115.12 acre parcel located on the northeast side of existing Maryland Rt. 216 and approximately 1,500 feet east of U.S. Rt. 29. In compliance with Howard County Code § 16.113(b)(2), the subdivision plat showed the right-of-way for the proposed relocation of Rt. 216 as being reserved. This right-of-way cut a wide swath through the proposed development. A small part of the tract was between the existing Rt. 216 and the proposed Rt. 216. Most of the land was on the north side of the proposed relocated Rt. 216. The right-of-way reservation for Rt. 216 was established in 1971 when the County Council adopted the general plan of highways. The relocation of Rt. 216 was included in the State's 1980 twenty-year highway needs inventory. The Office of Planning and Zoning approved this subdivision plan in December 1980.

On December 7, 1981, JJM submitted a revised sketch plan for the same property. The revised plan showed residential lots within the right-of-way reservation area. Because the revised plan did not comply with Howard County Code § 16.113(b)(2) and § 16.111(3), specifying that subdivision layouts "shall be in accordance with the highway part of the transportation element," the Office of Planning and Zoning refused to approve the subdivision.

JJM appealed to the Howard County Board of Appeals. It was established in proceedings before the board that the proposed relocation of Rt. 216 had not been included within the State's six-year construction plan, a necessary step for its construction, and that the process of including Rt. 216 in the six-year construction plan would take at least one year, but probably longer. The Director of the Office of Planning and Zoning testified that from 1971, the time the proposed relocation was incorporated into the County's general plan, to 1981, the time of the submission of the revised plan, all that had been accomplished was a determination that the proposed road would be built at some time in the future. He further stated that, given the circumstances of the case, there was no possibility that a variance would be granted to the developer.

The Board of Appeals affirmed the decision of the Office of Planning and Zoning, stating that the latter had acted in accordance with Howard County Code § 16.113(b)(2). JJM appealed to the Circuit Court for Howard County. It sought declaratory and injunctive relief.

The circuit court held § 16.113(b)(2) unconstitutional as applied to JJM's revised sketch plan. In so holding it first noted that JJM was required to reserve a portion of its land, without compensation, for an indefinite period of time. Second, the court recognized not only the right of a governmental authority to regulate the development of private property by means of the police power, but also the fact that an exercise of the police power which imposes an "onerous burden" on the owner's property rights constitutes a compensable taking. Third, the court reviewed our decision in Md.-Nat'l Cap. P. & P. Comm'n v. Chadwick, 286 Md. 1, 405 A.2d 241 (1979). It determined that the following proposition emerged from that case: "A regulation requiring a reservation limited in scope and duration would be a valid exercise of the police power. Section 16.113(b)(2) must therefore meet the test of reasonableness." The court concluded that, given the facts before it, the application of the Howard County statute to JJM deprived the property owner of the right to make "any effective use of the property placed in reservation." The court further determined that the effect of the law was to " 'freeze' the property of a prospective condemnee by restricting, inhibiting and preventing the owner from improving or changing the condition of its property." It held that these factors, combined with the absence of any opportunity for variance relief, rendered the law unconstitutional as applied.

Howard County and JJM appealed to the Court of Special Appeals. We granted a writ of certiorari before consideration of the matter by the intermediate appellate court. In the view we take of this case we have no need to consider JJM's appeal.

II

JJM has moved to dismiss Howard County's appeal. Hence, we must first decide that issue.

The right of appeal is wholly statutory. Therefore, the General Assembly must expressly grant such a right. See, e.g., Maryland Board v. Armacost, 286 Md. 353, 354-55, 407 A.2d 1148, 1150 (1979); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55, 64 (1975); Urbana Civic v. Urbana Mobile, 260 Md. 458, 461, 272 A.2d 628, 630 (1971). We have held that a quasi-judicial agency, such as the Howard County Board of Appeals in this case, cannot institute an appeal when its decision is reversed by a circuit court absent an express grant of the right to appeal. We have reasoned in several cases that because the agency acts in a quasi-judicial capacity, it has no interest in an appeal from a decision it has rendered and therefore it cannot be deemed an aggrieved party. See, e.g., Armacost, 286 Md. at 356-57, 407 A.2d at 1151; Employment Sec. Adm. v. Smith, 282 Md. 267, 269-70, 383 A.2d 1108, 1110 (1978); Bd. of Ex. of Land, Arch. v. McWilliams, 270 Md. 383, 386, 311 A.2d 792, 794 (1973); Board of Zoning Appeals v. Guns, 259 Md. 368, 368-69, 269 A.2d 833, 833 (1970); Zoning Appeals Board v. McKinney, 174 Md. 551, 563-64, 199 A. 540, 545-46 (1938). 1

JJM argues in this case that the appeal is brought on behalf of the Board of Appeals or the Office of Planning and Zoning and not on behalf of the County. To support this contention, it notes a letter written by the Director of the Office of Planning and Zoning to the County Solicitor in which an appeal from the circuit court decision was requested. Nevertheless, Howard County is named as a party on this appeal. The County Solicitor entered his appearance on behalf of the Planning Department in the circuit court and his office has been involved in the case at least from that time. Therefore, it would appear that if the County is authorized to be a party and if the solicitor is authorized to represent the County in suits of this nature, then the appeal in this case was properly brought.

Howard County Charter § 103 provides that "[t]he corporate name shall be 'Howard County, Maryland,' and it shall thus be designated in all actions and proceedings touching its rights, powers, properties, liabilities and duties." Section 405(b) provides that only the County Solicitor is authorized to represent the County and its "several offices, departments, boards, commissions and other agencies." The grant of this duty to the County Solicitor strongly implies that the drafters of the charter intended that the County should have adequate counsel in all legal matters in which it becomes involved. A catchall provision in § 904 of the charter expressly grants the County "all powers necessary and convenient for the conduct of its affairs," which obviously should include the power to defend its subdivision regulations against charges of unconstitutionality. The Office of Planning and Zoning is the department of the County concerned with those regulations. It is logical for it to be the agency requesting the County...

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