Park & Planning v. Washington Grove

• Decision Date: 12 March 2009
• Docket Number: No. 55, September Term, 2008.,55, September Term, 2008.
• Citation: 408 Md. 37,968 A.2d 552
• Parties: The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. TOWN OF WASHINGTON GROVE, Maryland.
• Court: Court of Special Appeals of Maryland

968 A.2d 552

408 Md. 37

The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. TOWN OF WASHINGTON GROVE, Maryland.

No. 55, September Term, 2008.

Court of Appeals of Maryland.

March 12, 2009.

Reconsideration Denied May 1, 2009.

Adrian Robert Gardner, General Counsel (William C. Dickerson, Associate General Counsel, and Jared M. McCarthy, Associate General Counsel, The Maryland-National Capital Park and Planning Commission, Riverdale), on brief, for Appellant/Cross-Appellee.

William J. Chen, Jr. (Chen, Walsh, Tecler & McCabe, LLP, Rockville; William J. Roberts, Poolesville), on brief, for Appellee/Cross-Appellant.

Susan Silber, Kenneth Sigman, Silber, Perlman, Sigman & Tilev, P.A., Takoma Park, Robert Manzi, Knight, Manzi, Nussbaum & LaPlaca, P.A., Upper Marlboro, Brief of the Maryland Municipal League, Amicus Curiae, in Support of the Town of Washington Grove, Appellee and Cross Appellant.

Argued Before BELL, C.J., HARRELL, GREENE, MURPHY, ADKINS, BARBERA, and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.

HARRELL, Judge.

This fracas over lebensraum is essentially between the Maryland-National Capital Park and Planning Commission ("MNCPPC"), an agency of the State of Maryland exercising "planning" and "park" functions in most of Montgomery and Prince George's Counties, Md.Code, Art. 28 (1957, 2003 Repl.Vol. & Supp.2008), and the Town of Washington Grove ("Town"), a municipal corporation located in Montgomery County. They joust here over the right to possess a parcel of real property adjacent to a boundary of the Town of Washington Grove. The MNCPPC posits its claim to the property on a purported "Legacy Open Space" ("LOS") dedication from the current owner of the parcel, Toll MD II, LLC ("Toll"), as part of Toll's subdivision development proposal for a tract of which the parcel is a part. The Town proposes to acquire the property by condemnation.

Lurking within this dispute is the issue, among others, of the Town's authority to condemn property lying outside its municipal boundary; however, that question will have to wait to receive our attention, if at all, for another day. For reasons to be explained, we shall reverse the judgment of the Circuit Court for Montgomery County with respect to its denial of the MNCPPC's motion to intervene as of right in the condemnation action initiated by the Town against Toll, and remand the case to the Circuit Court for further proceedings not inconsistent with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On 14 September 2001, Toll, by its predecessor-in-interest, Oxbridge Development at Washington Grove, L.C., filed an application with the Montgomery County Planning Board ("Planning Board") of the MNCPPC seeking approval of a preliminary plan of subdivision for a 66.59 acre tract of residentially-zoned land located in Montgomery County. The application was designated as Preliminary Plan No. 1-02022. The proposed development was named the "Casey Property at Mill Creek." On 11 July 2005, the Planning Board approved Preliminary Plan No. 1-02022, with conditions.

A part of the 66.59 acres is a parcel, approximately 12 acres in size, which lies "adjacent to, and outside of, the corporate limits" of the Town. The Planning Board's approval of the subdivision plan refers to this parcel as the "LOS Parcel." The LOS Parcel is an "open field" or "meadow" which, in the Planning Board approval of Preliminary Plan No. 1-02022, was determined "to provide a valuable buffer to the significant heritage resource that is the Town of Washington Grove." The LOS Parcel is addressed by the Montgomery County Legacy Open Space Functional Master Plan,¹ and was listed, in Toll's subdivision plan, as a Class II Heritage Resource. According to the Planning Board's approval, "[t]he meadow enhances the setting of the Town, designated a National Register historic site, by maintaining the [T]own's rural character." The approval described the LOS Parcel as significant according to several Legacy Open Space criteria, including:

(a) The property has countywide and national significance in terms of its association with the Town of Washington Grove, a heritage resource of national import with exceptional architectural character and rural viewscapes.

(b) Because of its association with Washington Grove, the site contributes to the Legacy program's heritage theme of the Rail Community Cluster, of which the Town is a part.

(c) If preserved as open space, the site would serve as a protective buffer of the significant heritage resource that is Washington Grove. Over 57% of the Town is preserved as forest today, and the preservation of this open field would preserve a rural viewscape on the last remaining unprotected side of the Town.

The 11 July 2005 Planning Board approval acknowledges that approximately four years of negotiations had taken place, in particular between Toll and the Town, to preserve the LOS Parcel "as parkland" to "ensure[] compatibility between the Town and the new development" and "enhance[] the preservation of the rural character of Ridge Road." In particular, the approval cites the testimony of the Town's Mayor, who participated in public hearings in December 2004 held by the Planning Board regarding the subdivision plan proposal, proclaiming that the Town's "overriding concern was to ensure the protection of the 13-acre Legacy Open Space parcel to provide a buffer between the new project and the existing Town communities." The Board also heard the testimony of members of preservation organizations and Town residents who collectively voiced the view that the "meadow was critical to the long-term protection of the Town as a historic resource."

In its approval of the subdivision plan, the Planning Board² included 28 "Conditions of Approval." Of particular relevance to the case at hand is Condition 15, which states:

Within the earlier of 24 months of the issuance of the [approval] for Preliminary Plan 1-02022 or the recordation of the initial plat of Phase I, Applicant to dedicate to [the MNCPPC] the area shown on the plan as "Legacy Open Space Natural Area" totaling approximately 12 acres.

Thus, Toll was required to dedicate the LOS Parcel in order to obtain approval and recordation of the initial final plat of subdivision for development of the 66.59 acre project, if Toll wished to pursue development pursuant to Preliminary Plan No. 1-02022. See Md.Code, Art. 28 § 7-107 (1957, 2003 Repl.Vol. & Supp.2008); Montgomery County Code ("County Code"), Ch. 50 ("Subdivision of Land") (2008).³

The Planning Board mailed notice of the 11 July 2005 subdivision approval to parties of record who appeared and participated in its proceedings. The parties of record included the Town and the applicant/developer of the development at the time, an entity known as "Oxbridge Development at Washington Grove, L.C."⁴ Neither the Town nor any other party of record elected to pursue judicial review of the Planning Board's action.⁵

On 6 September 2005, the Town Council of Washington Grove adopted its Resolution No. 2005-06 authorizing the institution by the Town of an eminent domain action in the Circuit Court to acquire the LOS Parcel. The Resolution explains that the Town's interest in acquiring the LOS Parcel by means of condemnation was due to the fact that members of the County Council had pressured the Planning Board to delay approving Preliminary Plan No. 1-02022, and in particular the dedication of the LOS Parcel, because the County Council was considering using the LOS Parcel as the site of a public school. The Resolution states the Town Council's belief that instituting the condemnation action was necessary to ensure that "the LOS remains a public park and recreational resource in a natural state and also continues to afford protection to the historic character of the Town into the future as intended by the Planning Board" when it approved Preliminary Plan No. 1-02022. The Town Council believed that "the surest means to achieve [its] goals is [for] ownership and maintenance of the LOS [Parcel] be vested in the Town."

On 2 December 2005, the Town filed a complaint in the Circuit Court for Montgomery County asserting its power of eminent domain to acquire the LOS Parcel. Oxbridge Development at Washington Grove, L.C. was named as the sole defendant in the action as the fee simple owner of the LOS Parcel.⁶ Toll⁷ filed an answer to the complaint on 11 January 2006. On 9 February 2006, Toll filed in the condemnation case a "Third Party Complaint for Declaratory Judgment" naming the MNCPPC as a third-party defendant. As part of the relief sought by Toll in the third-party complaint, the Circuit Court was asked to "declare and determine, to the extent the condemnation requested by Washington Grove is granted, that such condemnation fulfills the condition in the Preliminary Plan requiring the dedication of the [LOS Parcel] to [the MNCPPC]." Toll's interest was to ensure that the MNCPPC would be bound in its capacity as the approver of the subdivision plan if the Town was successful in condemning the LOS Parcel; in other words, Toll sought to avoid a situation in which the Town acquired the parcel thereby, making it impossible for Toll to comply with the 11 July 2005 subdivision approval, in particular Condition 15, and preventing Toll from moving forward with the development based on Preliminary Plan No. 1-02022.

On 30 March 2006, the MNCPPC filed an answer to Toll's third-party complaint. Thereafter, it participated broadly and actively in the proceedings in the Circuit Court, filing a designation of experts; an answer to the Town's 23 August 2006 amended complaint on 15 September 2006;⁸ a motion to realign parties,⁹ stay proceedings and stay amended scheduling; a motion to separate a legal question for decision by court; and, motions and supplemental memoranda in support of summary judgment (discussed infra).

Concurrently, while the litigation was in full flight, Toll...