Oakland v. Mountain Lake

• Citation: 896 A.2d 1036,392 Md. 301
• Decision Date: 18 April 2006
• Docket Number: No. 60, September Term, 2005.,60, September Term, 2005.
• Parties: MAYOR AND TOWN COUNCIL OF OAKLAND v. MAYOR AND TOWN COUNCIL OF MOUNTAIN LAKE PARK, et al.
• Court: Court of Special Appeals of Maryland

896 A.2d 1036

392 Md. 301

MAYOR AND TOWN COUNCIL OF OAKLAND v. MAYOR AND TOWN COUNCIL OF MOUNTAIN LAKE PARK, et al.

No. 60, September Term, 2005.

Court of Appeals of Maryland.

April 18, 2006.

COPYRIGHT MATERIAL OMITTED

David M. Funk (Jefferson L. Blomquist, Amanda Stakem Conn, Ernest A. Crofoot, Funk & Bolton, P.A., Baltimore; Robert E. Watson, Oakland), on brief for Appellant.

William M. Rudd (Anderson, Rudd, Donahue & McKee, Cumberland), on brief for Appellees.

Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, Judge.

The primary question in this case concerns the manner of computation of time required to give notice of the hearing on an annexation resolution. In this case, two municipal corporations seek to annex the same unincorporated area located in Garrett County. The computation of time question on appeal is whether the terminal day, i.e., April 23, 2004, is to be included or excluded in computing the number of days of the statutory requirement of "not less than 15 days after the fourth publication of the notices." We granted certiorari to answer the following questions:

"I. Did the Circuit Court err in applying the common law `clear time' rule in determining that Oakland failed to set the public hearing on the Oakland Annexation Resolution for not less than 15 days after the fourth publication of the public notices of the Oakland Annexation Resolution as required by Article 23A § 19(d)?

II. Did Mountain Lake Park act in contravention of Article 23A, § 19 in holding a referendum election on the Mountain Lake Park Annexation Resolution before the end of the 45-day period during which referendum petitions may be submitted under Article 23A, § 19(f) in an effort to make the Mountain Lake Park annexation effective prior to the stated effective date of the Mountain Lake Park Annexation Resolution and the Oakland Annexation Resolution?"

Oakland v. Mountain Lake Park, 388 Md. 673, 882 A.2d 286 (2005). We shall answer both questions in the affirmative and reverse the judgment of the Circuit Court for Garrett County.

I.

On Tuesday, March 16, 2004, The Mayor and Town Council of Oakland, Maryland, introduced an annexation resolution (Oakland resolution), R2004-01,¹ at a regular meeting of the Oakland Town Council, to enlarge its corporate boundaries by annexing property of the Board of Education of Garrett County and the property of Floyd and Eleanor Arnold. Pursuant to Art. 23A § 19(d), public notice of this resolution and the area to be annexed by Oakland was published in The Republican, a newspaper of general circulation in Oakland, on March 18, 2004, March 25, 2004, April 1, 2004, and April 8, 2004. The Mayor and Town Council of Oakland held a public hearing on the annexation resolution on April 23, 2004. The Oakland resolution was enacted following the public hearing. The Oakland resolution provided that it would become effective on the forty-sixth day following its enactment, which was June 8, 2004.

The Mayor and Town Council of Mountain Lake Park introduced an annexation resolution (Mountain Lake Park resolution), Resolution No.2004-2, to enlarge the corporate boundaries of Mountain Lake Park by annexing an area known as the "Western Annexation" at a special meeting on Wednesday, March 17, 2004.² Included within the boundaries of the Western Annexation was the land sought to be annexed by Oakland, as well as additional land. Pursuant to Art. 23A § 19(d), public notice of the Mountain Lake Park resolution was published in The Republican, a newspaper of general circulation in Mountain Lake Park and the Western Annexation, on March 18, 2004, March 25, 2004, April 1, 2004, and April 8, 2004. The Mayor and Town Council of Mountain Lake Park enacted the Mountain Lake resolution following a public hearing on April 28, 2004. The Mountain Lake resolution stated that it would become effective on the forty-sixth day following its enactment, which was June 13, 2004.

Several weeks before the public hearing on the Mountain Lake Park resolution, the Town Clerk of Mountain Lake Park prepared a referendum petition that was circulated to the residents of Parkwood Village East, an apartment complex within the Western Annexation. A resident advocate of that community, after speaking with the Town Clerk, informed the residents of that apartment complex that it would be of financial benefit to them to be annexed into Mountain Lake Park, and therefore, they should sign the petition for referendum. Deposition testimony revealed that the petition was circulated only to the residents of Parkwood Village East because Mountain Lake Park officials believed that Parkwood residents supported Mountain Lake's annexation efforts.

Following a submission of the requisite number of signatures on a referendum petition, the referendum election was scheduled for May 22, 2004 at Parkwood Village East, and public notice of this election was published in The Republican on April 29, 2004 and May 6, 2004 pursuant to Art. 23A § 19(i). Thirty-one residents of Parkwood Village East³ voted in the referendum election on May 22, 2004, and a majority of those persons voted in favor of annexation by Mountain Lake Park.

Two days before the end of the forty-five day period permitted for the submission of a referendum petition on the Mountain Lake resolution, on June 10, 2004, a resident of the Western Annexation, not residing in Parkwood Village East, submitted another referendum petition on the resolution. Mountain Lake Park did not accept this second petition.

The Mayor and Town Council of Mountain Lake Park filed in the Circuit Court for Garrett County a Complaint for Declaratory Relief pursuant to Md.Code (1973, 2002 Repl.Vol., 2005 Cum.Supp.), § 3-403 of the Courts and Judicial Proceedings Article, seeking a declaration that the Oakland resolution, No. R2004-01, was void because the Mayor and Town Council of Oakland did not comply with the notice requirement of Art. 23A § 19(d). The Mayor and Town Council of Oakland filed a Counter-Complaint seeking a judgment declaring the referendum election on the Mountain Lake resolution void and having no impact on the effective date of the Oakland resolution, that the effective day of the Mountain Lake Park resolution could not have been prior to June 12, 2004, which was forty-five days after its enactment, and that the Mountain Lake resolution was ineffective because the Oakland resolution was effective first.⁴

The Complaint alleged that the annexation resolution adopted by the Mayor and Town Council of Oakland on April 23, 2004 was not in conformance with Article 23A § 19. The facts were not in dispute. Oakland held its annexation resolution hearing on April 8, 2004, and adopted the resolution on April 23, 2004. The notice was published four times in The Republican, with the last publication date on April 8, 2004. The pertinent provision of the annexation statute requires that there be fifteen days between the fourth publication of the notices and the public hearing on the annexation resolution. The question before the Circuit Court was whether April 23rd was to be included in determining whether there was not less than fifteen days before the hearing was held.

The Circuit Court held that the town of Oakland had not complied with the requirements of Art. 23A § 19, and that the hearing which was held on April 23, 2004 was less than fifteen days after the publication of the last advertisement.⁵ The Court voided Oakland's annexation on the ground that Oakland failed to comply with the notice requirements of Art. 23A § 19(d), and that Mountain Lake's annexation of the disputed area was valid. The Court ruled as follows:

"When the statute reads `not less than 15 days from the date of the last publication,' it means not less than 15 full days from the last publication. In determining compliance in this situation, the Court counts forward beginning with the day after the last date of publication, and 15 days is not 14 and ½ days. As to the consequences of the breach of time, one could speculate, but it simply cannot be measured. The only recourse is to start over again, if possible. So, the first ruling the Court makes is that the Doctrine of Substantial Compliance does not apply.

"Now, Mt. Lake Park's petition to annex the same, and additional property, was enacted, and on the very next day a petition for referendum was filed. Was this petition to defeat Oakland's time? Well, it certainly has that aroma to it. But it was timely filed; it was published conspicuously, and the people were able to vote on it. It was not defeated; it passed. Mr. Tinsley was from the same area and wanted to file his own petition. The petition from the affected area had already been filed, and to have another petition would simply be confusing to say the least.

"The [Board of Garrett County] Commissioners could have filed a petition, and the citizens from Mt. Lake Park could have filed a petition, but they didn't. The referendum was filed from the affected area. It was voted on and it passed, and the rest is speculation.

"So the ruling of this Court is that Oakland did not comply with its time, and that the Mt. Park Annexation is valid."

Oakland noted a timely appeal to the Court of Special Appeals. This Court granted Oakland's petition for writ of certiorari while Oakland's appeal was pending before the intermediate appellate court. Oakland v. Mountain Lake Park, 388 Md. 673, 882 A.2d 286 (2005).

II.

The question of the sufficiency of the notice turns on the construction of Md. Code (1957, 2005 Repl.Vol.), Art. 23A § 19(d) and Md.Code (1957, 2005 Repl. Vol.), Art. 1 § 36. The issue in this case is the proper method of calculating the notice period described in the statute. Art. 23A § 19 sets out the procedure for annexation of land in Maryland. Art. 23A § 19(d) provides that after the introduction of an annexation resolution into the legislative body of a municipality,...