Village Square No. 1, Inc. v. Crow-Frederick Retail Ltd. Partnership

• Decision Date: 01 September 1988
• Docket Number: CROW-FREDERICK,No. 457,457
• Citation: 77 Md.App. 552,551 A.2d 471
• Parties: VILLAGE SQUARE NO. 1, INC., et al. v.RETAIL LIMITED PARTNERSHIP, et al. ,
• Court: Court of Special Appeals of Maryland

Page 552

77 Md.App. 552

551 A.2d 471

VILLAGE SQUARE NO. 1, INC., et al. v. CROW-FREDERICK RETAIL LIMITED PARTNERSHIP, et al.

No. 457, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Jan. 5, 1989.

Joseph V. Truhe, Jr. (William M. Canby and Miller, Miller & Canby, on the brief), Rockville, for appellants.

Stanton J. Levinson, Bethesda, for appellees.

Argued before MOYLAN, BISHOP and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

Village Square No. 1, Inc. and Croghan Square, Inc., appellants, appeal a decision of the Circuit Court for Frederick County. The trial court declared a portion of § 22-35 of the Frederick City Streets and Sidewalks Ordinance, concerning payment for public improvements, constitutionally invalid because it contained no due process protections for those who potentially could be liable for the costs. The sole issue in this appeal is whether the provision is constitutional. ¹ We affirm the trial court and begin our explanation by providing the factual background of this appeal.

Appellants and Crow-Frederick Retail Limited Partnership and Prospect Park Limited Partnership (appellees) are the developers and owners of adjacent tracts of land in the City of Frederick (City). In developing their property, appellants extended Prospect Boulevard and Willow Avenue, and installed accompanying curbs, gutters and storm drains. Appellants paid almost $700,000 for these improvements.

In order to develop the property, appellants were required to pay for these improvements pursuant to a combination of the City's Subdivision Regulations § 2(g), which states that no subdivision plat shall be approved until the "necessary public improvements" have been installed and accepted, and § 22-35 of the Frederick City Streets and Sidewalks Ordinance which we set forth in its entirety, or at least how it appeared in December of 1987:

"All costs of extending and placement of public facilities, including but not limited to, water, sewer, streets, curbs, and gutters, sidewalks and lighting shall be paid by the party desiring them. Should such extensions be utilized by others within ten (10) years, the cost of all or a portion of such extension, as appropriate, if collected by the City, may be reimbursed to the party who incurred such cost." (Emphasis added.)

Appellants do not state, and the record does not reveal, exactly when they undertook this construction. In fact, appellants' brief is notable in that absolutely no dates are given for the factual statements contained within. Appellees stated, however, at oral argument that appellants made these improvements in 1983, at least two years before § 22-35 was amended from requiring the cost of "[w]ater and sewer extensions" ² to "public facilities including but not limited to water, sewer, streets, curbs and gutters, sidewalks and lighting." ³ Appellants did not counter this statement in either argument or brief, so we shall assume that the improvements were made in 1983.

In any event, after the improvements were made, appellants attempted to get other landowners whose property abutted Prospect Boulevard to contribute to appellants' costs of development. Appellee Crow-Frederick's predecessors in title, ⁴ as well as other landowners, refused to contribute. Subsequently, the second sentence of § 22-35 was amended to include other improvements in addition to water and sewer extensions. Appellees suggest that the statute was amended further at appellants' special request, but provide no factual support for this assertion. Our independent research has revealed no changes in the ordinance since 1980 which would benefit appellants. Even if there were no legislative history in regard to § 22-35, it would have been helpful to this Court to have been provided with some basic information about the ordinance, e.g., a paragraph summarizing the various changes to the ordinance, or perhaps copies of the different versions of the ordinance, with relevant dates and citations. "The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal." Rule 8-501(c). It is true that none of the information we refer to was presented at the summary judgment hearing and therefore not technically a part of the record. It seems elementary, however, that we would find this information indispensable as we have been asked to review the constitutionality of this ordinance.

Perhaps the most important omission in the record was that the City, presumably in response to the trial judge's determination that the second sentence was constitutionally defective, deleted it on March 17, 1988. The ordinance in its present form is as follows:

"Sec. 22-35. Cost of public facilities.

"All costs of extending and placement of all public facilities including but not limited to water, sewer, streets, curbs and gutters, sidewalks and lighting shall be paid by the party desiring same."

Because the issue was neither briefed nor argued, we merely observe that there is a serious question as to whether appellants could get pro rata costs from appellees. When the City deleted the second sentence, it stated that:

"this Ordinance shall take effect from the date of its passage, and that all other ordinances or parts of ordinances inconsistent with the provisions of this Ordinance be and the same are hereby repealed to the extent of such inconsistency."

Ord. G-88-2, approved on March 17, 1988. The City, therefore, would now be unauthorized to collect any costs.

In May of 1986, appellants filed a Petition for Declaratory Judgment, naming appellee Prospect Park, other adjacent landowners, ⁵ and the City as defendants. In the petition, appellants requested that the trial court declare that § 22-35 "authorizes and requires the City to assess and collect from owners utilizing such improvements the appropriate portion of the cost thereof and reimburse the party who incurred such cost...." Cross-motions for summary judgment were filed. At the hearing of cross-motions, appellees argued that the second sentence of § 22-35 should be declared invalid because it was vague and provided no due process protections. The City's attorney stated the following when the trial judge asked for his input:

"MR. ROBERTS: I just have one. Your Honor, I know a lawyer has an obligation to zealously assert his client's rights, but when I can't assert them without misstating the law, I don't say anything.

"I personally think this ordinance is hopelessly illegal. I don't see how it could possibly be enforced.

"I also feel that if the Court simply says that the ordinance says what it says--if that's the Court's declaration, that that is going to continue, all sorts of problems. I don't think we even have a justiciable controversy here, because it is just hopelessly illegal, for constitutional reasons, for contractual reasons.

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"There's all sorts of legislative background here which I think is irrelevant to the Court's declaration. It isn't even necessary to know that for the Court to read it and say that there's no way that this can either be enforced or implemented.

"So for those reasons, that's the reason I haven't put anything in writing. But I just thoroughly disagree with plaintiff's position here.

"THE COURT: Aren't you glad I asked him the question?"

In its order dated February 24, 1988, the trial court denied appellants' motion for summary judgment, holding that the City was not required to assess and collect costs under the ordinance because the language of the ordinance was permissive, not mandatory. ⁶ The trial court granted appellee Crow-Frederick's cross-motion for summary judgment, stating that the second sentence of the ordinance was unconstitutional because it had no due process guarantees, such as notice to anyone who might be affected by the section of exactly what improvements made during the last 10 years could result in liability.

--The Ordinance--

We begin our review of this legislation by setting forth the City's attorney's comments at the summary judgment hearing because they shed more light on the meaning of § 22-35 than anything provided by either party:

"MR. ROBERTS: Your Honor, if I might proffer what might have come out had there been a trial, it is simply developers come into the City and they have to front quite a bit of costs, there's no question about it. And what is said by the City to developers is, you pay it. If there's any way we can get it from people who later come in, we'll be happy to do it and repay you. But the City of Frederick does not build roads, the City of Frederick does not build sewers for new development. Every bit of development that you've seen in this growing town, outside of the downtown which is already settled, is at the cost of the developers, who then pass it on to the subsequent owners of the property, the ultimate owners of the property.

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"I understand the developer's gripe here, but they've been told numerous time[s] that this is unfortunate; it's the cost of they [sic] being here first.

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"And I would like to proffer one other piece of information. This ordinance has been around for years and years and years, not just since 1985.

"THE COURT: Now wait a minute. You're saying--

"MR. ROBERTS: It was amended.

"THE COURT: You're saying now the entire ordinance is unconstitutional? Not ordinance, but 22-35 in its entirety is unconstitutional?

"MR. ROBERTS: Yes. 22-35 was created years and years ago when the old general developers' policy was stricken, and that one said--just for historical reference, that said that the developers would get tax breaks--they would front the money for public improvements and they would get subsequent tax breaks. That was taken out, I believe, in the late sixties, and was substituted with what you mostly see in front of you, except it had a five-year cap instead of a ten-year cap.

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* * * "Let me retract...