Kent County v. Claggett

Decision Date28 August 2003
Docket NumberNo. 2165,2165
Citation831 A.2d 77,152 Md. App. 70
PartiesCOUNTY COMMISSIONERS OF KENT COUNTY, et al. v. Herschell B. CLAGGETT.
CourtCourt of Special Appeals of Maryland

C. Daniel Sanders (Cristina Harding Landskroener, on brief), Ernest S. Cookerly (Cookerly & Barroll, LLC, on brief), Chestertown, for appellants.

Willard C. Parker, II (Wheeler, Thompson, Parker & Counts, LLP, on brief), Easton, for appellee.

Argued before MURPHY, C.J., EYLER, DEBORAH S., SHARER, JJ.

EYLER, J.

This case concerns the competing interests of wild waterfowl hunters and marina owners in Kent County. The question presented is the preemption, vel non, by state law of a Kent County ordinance that, as amended, allows certain holders of group boat mooring permits, for two months of the open season for hunting wild waterfowl, to moor vessels in waters where riparian land owners have licenses to maintain and use blind sites.

In a declaratory judgment action brought by Herschell B. Claggett, the appellee, against the Kent County Commissioners ("Commissioners"), one of the appellants, the Circuit Court for Kent County ruled that the Kent County amended ordinance in question is preempted by implication by provisions of the state wild waterfowl hunting laws, set forth in Title 10 ("Wildlife") of the Natural Resources Article, giving riparian landowners the right to license their shorelines for blind sites; and by conflict with provisions of the state wild waterfowl hunting laws and provisions of the State Boat Act, set forth in Subtitle 7 of Title 8 ("Waters") of the Natural Resources Article, and regulations adopted thereunder. That decision has been appealed to this Court by the Commissioners and by Worton Creek Marina, LLC ("WCM") and Lankford Bay Marina, Inc. ("LBM") (collectively, "the Marina Appellants"), which intervened as defendants below.

We agree with the circuit court that the Kent County ordinance, as amended, is preempted by conflict with the Maryland State Boat Act and its regulations and also is preempted by conflict with the state wild waterfowl hunting laws. Accordingly, we shall affirm the court's judgment.

FACTS AND PROCEEDINGS

On March 30, 2000, Claggett purchased a 340-acre waterfront farm on Worton Creek, in Kent County. The farm has 4,000 feet of shoreline. Pursuant to Md. Code (2000 Repl.Vol.), sections 10-607 to 10-609 of the Natural Resources Article ("NR"), Claggett applied to the Department of Natural Resources ("DNR") and obtained a license for his shoreline to establish offshore stationary blinds and blind sites for hunting wild waterfowl, for all waterfowl hunting seasons.1 WCM is located directly across Worton Creek from Claggett's farm. Pursuant to Article 68 of the Code of Public Local Laws of Kent County (1994)("KCC"), entitled "Boats and Boating," WCM obtained a permit from the Kent County Public Landings and Facilities Board ("Board")2 to maintain 54 commercial boat moorings outside its "extended property line" in Worton Creek and inside Claggett's "extended property line" in Worton Creek.3 Some of WCM's boat moorings are within 100 feet of Claggett's shoreline. According to Claggett, the boats that occupy WCM's moorings inside his extended property line box in his offshore stationary blinds and blind sites, making them unusable.

Under KCC section 68-7, a permit is required for any person (which includes a marina, see KCC section 68-1) to "place, construct or erect a mooring." KCC section 68-9(A) sets forth what are "permitted moorings." Ordinarily, permitted moorings for yachts and pleasure boats must be within "the extended property lines of the M-Marine Zone property." KCC section 68-9(A)(3). Exceptions to this requirement appear in KCC section 68-9(B), however, and include the following "grandfathering" provision for group moorings:

Group moorings used in connection with permitted marina facilities and group moorings for yacht clubs, community associations and recreation camps [are permitted moorings], subject to the general conditions of this section and provided that:
(a) All moorings must be located within the extended property lines of the applicant, except that moorings in existence prior to July 1, 1980, being used in connection with permitted marina facilities may be allowed at the discretion of the Board to be outside these property lines....

KCC section 68-9(B)(2)(a) (emphasis added). Under this "grand-fathering" provision, WCM obtained its permit for boat moorings located outside its extended property line (and inside Claggett's extended property line) in Worton Creek. LBM and five other Kent County marinas also maintain boat moorings in waters in front of property they do not own, under the "grandfathering" provision quoted above.

KCC section 68-10 sets forth "Mooring requirements." Until the enactment at issue in this case, one such requirement, enumerated at paragraph G, was that "[m]oorings in waterfowl blind areas shall be cleared of boats during waterfowl hunting season unless written permission is given by the riparian property owner." Thus, before its language was amended, the ordinance contemplated that, during wild waterfowl hunting season, boat moorings in Kent County waters would be cleared in waters where waterfowl hunting blind sites are situated so moored boats will not interfere with the use of blinds in the same waters.

The open season dates for wild waterfowl hunting are established and published annually by the DNR. NR § 10-407(b). The 2000 to 2001 waterfowl hunting season began on September 1, 2000. 65 Fed.Reg. 164, 51501 (Aug. 23, 2000) amending 50 C.F.R. Sections 20.101-.107, and .109 adopted by NR Section 10-407(b). From then until November 1, 2000, WCM kept boats at its moorings located in Claggett's extended water line, in front of his waterfront property. When Claggett asked WCM to remove the moored boats, it refused. Claggett sought relief from the Board, to no avail. He then filed an action ("the first declaratory judgment action") in the Circuit Court for Kent County, seeking a declaration, inter alia, of the meaning of "designated waterfowl hunting season," as used in KCC section 68-10(G).

The Commissioners participated as defendants in the first declaratory judgment action. The court held a hearing and on May 5, 2001, issued a declaration that KCC section 68-10(G) applies to all waterfowl hunting seasons in Kent County, as those seasons are designated by the DNR; that the section applies equally to shore blinds, offshore blinds, and offshore blind sites used in hunting waterfowl, as defined in the Natural Resources Article; and that the section requires the removal of all boats moored or maintained by a permit holder within 250 yards of any licensed shore blind, offshore blind, or offshore blind site used in connection with hunting of waterfowl prior to any waterfowl season in Kent County, as the season is designated by the DNR.

No appeal was taken from that judgment.

On July 3, 2001, by emergency legislation, the Commissioners passed Bill Number 7-2001, which amended KCC section 68-10(G) by deleting the words "designated waterfowl hunting season" and replacing them with language stating that all vessels on commercial mooring buoys shall be removed by November 1 of a given year until March 1 of the following year, unless written permission to maintain the vessels during that time period is given by the riparian property owner. Thus, by virtue of the amendment, commercial mooring buoys in Kent County no longer are required to be removed by the beginning date of the waterfowl hunting season established by the DNR; instead, they may remain in place until November 1 of any given year. Because the wild waterfowl hunting season usually begins in early September, the practical effect of the amendment is to allow "grandfathered" marinas to moor boats in the shoreline waters of riparian property owners for two months of the wild waterfowl hunting season.

By designation of the DNR, the 2001-2002 wild waterfowl hunting season commenced on September 1, 2001. 66 Fed. Reg. 162, 44010 (Aug. 21, 2001) amending 50 C.F.R. sections 20.101-20.107, and 20.109, adopted by NR section 10-407(b). That year, Claggett had obtained a state permit licensing his shoreline for wild waterfowl blinds. Pursuant to KCC section 68-10(G), as amended by Bill Number 7-2001, WCM refused to remove boats from its commercial moorings in Claggett's extended property lines in Worton Creek until November 1, 2001.

On August 16, 2001, in the Circuit Court for Kent County, Claggett filed the declaratory judgment action at bar, seeking a determination that the amendment to KCC Section 68-10(G) was invalid, illegal, and of no force and effect, under the doctrine of preemption, or otherwise was in violation of the Maryland and federal constitutions. He further sought an injunction prohibiting the Commissioners from enforcing the local ordinance, as amended. As noted, the Marina Appellants, of which WCM is one, were permitted to intervene as defendants. The court held an evidentiary hearing on September 13, 2001. On November 19, 2001, it heard closing arguments from counsel and made an oral ruling from the bench. The court reviewed the history of the Boat and Boating Article of the Kent County Code; the state legislation governing waterfowl hunting in riparian waters, including provisions specifically applicable to Kent and Queen Anne's Counties; the case law addressing preemption of local law by state law; and the largely undisputed facts of this case.

The court found as a fact that the presence of boats at WCM's moorings in Claggett's extended property lines in Worton Creek from the beginning of the waterfowl hunting season until November 1 made impracticable Claggett's use of his offshore blinds in those waters during that time. The court ruled that KCC section 68-10(G), as amended, is preempted by state law because it is in direct conflict with the state general laws...

To continue reading

Request your trial
9 cases
  • Harris v. State
    • United States
    • Maryland Court of Appeals
    • 8 Junio 2022
    ... ...           ... Circuit Court for Baltimore County Case No. 03-K-18-002254 ...           Getty, ... C.J., [*] ... Watts, ... 462, 482-83, 168 A.3d 824, 835- 36 (2017); Cty ... Comm'rs of Kent Cty. v. Claggett, 152 Md.App. 70, ... 91, 831 A.2d 77, 89 (2003), aff'd sub nom. Worton ... ...
  • Harris v. State
    • United States
    • Court of Special Appeals of Maryland
    • 8 Junio 2022
    ...868, 872 (2019) ; Chateau Foghorn LP v. Hosford , 455 Md. 462, 482–83, 168 A.3d 824, 835–36 (2017) ; Cty. Comm'rs of Kent Cty. v. Claggett, 152 Md. App. 70, 91, 831 A.2d 77, 89 (2003), aff'd sub nom. Worton Creek Marina, LLC v. Claggett, 381 Md. 499, 850 A.2d 1169 (2004). Furthermore, this ......
  • Worton Creek v. Claggett, 90
    • United States
    • Maryland Court of Appeals
    • 7 Junio 2004
    ...preempted by conflict, of the `frustration of purpose' sort, with the State wild waterfowl laws." County Commissioners of Kent County v. Claggett, 152 Md.App. 70, 95, 831 A.2d 77, 91 (2003). With regard to the State Boat Act, the Court of Special Appeals As amended, however, the local ordin......
  • Marina v. Claggett, No. 90, September Term, 2003 (MD 6/7/2004)
    • United States
    • Court of Special Appeals of Maryland
    • 7 Junio 2004
    ...preempted by conflict, of the `frustration of purpose' sort, with the State wild waterfowl laws." County Commissioners of Kent County v. Claggett, 152 Md. App. 70, 95, 831 A.2d 77, 91 (2003). With regard to the State Boat Act, the Court of Special Appeals As amended, however, the local ordi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT