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McClure v. Montgomery County Planning Board of Maryland-National Capital Park and Planning Commission

Court of Special Appeals of Maryland

December 2, 2014


Eyler, Deborah S., Reed, Sonner, Andrew L., (Retired, Specially Assigned), JJ.


Reed, J.

Few cases inflame such deep passions as a dispute involving individual property rights. The belief that fundamental concepts of liberty entailed strong property rights informed and influenced the Founders as they undertook the epochal task of drafting our Constitution. See Sharon A. Rose, Kelo v. City of New London: A Perspective on Economic Freedoms, 40 U.C. Davis L. Rev. 1997, 2002 (2007). Infringers of these cherished rights should beware for "nothing is better calculated to arouse the evil passions of men than a wanton and unredressed invasion of their . . . property rights." Cameron v. Chi., Milwaukee & St. Paul Ry. Co., 65 N.W. 652, 655 (Minn. 1896).

Appellant, Marquis McClure, seeks our review of the decision of the Circuit Court for Montgomery County in a land use case. Mr. McClure sought judicial review in the circuit court of an order issued by appellee, the Montgomery County Planning Board (the "Planning Board") of the Maryland-National Capital Park and Planning Commission ("MNCPPC"), which imposed a civil administrative penalty on Mr. McClure and mandated he take remedial actions to correct his violations of a forest conservation easement on his property.

Appellant raises three questions for our consideration. Based on the circuit court's opinion on his petition for judicial review, however, we rephrase and reorder those questions as follows:[1]

I. Did the Planning Board err where it found that the forest conservation easement encumbered appellant's property and appellant had actual and constructive notice of that easement?
II. Did the Planning Board err where it interpreted its statute to find an enforceable forest conservation easement and then acted according to that interpretation?
III. Did the Planning Board err where it found it had the jurisdiction and authority to enforce the forest conservation easement?

We answer these questions in the negative. Accordingly, we affirm the judgment of the circuit court and shall explain.

Factual and Procedural Background

In March 2000, Mr. McClure entered into a contract of sale for a vacant recorded lot in the Fairhill subdivision development ("Fairhill") in Laytonsville, Maryland. The Fairhill Partners Limited Partnership (the "Fairhill Partners"), which is a venture arm of the Bozzuto Group ("Bozzuto"), was the developer of the Fairhill subdivision and was selling the lots. Fairhill Partners and Mr. McClure contracted for the purchase of Lot 7, a 5.21-acre parcel of land within the subdivision.

Fairhill's intersection with Montgomery County's forest conservation laws dates back to 1992. The Fairhill subdivision was originally approved by the Planning Board in 1980 and Preliminary Plan 1-74019R was recorded at Plat 13190 in the land records of Montgomery County. This plan created 19 outlots and 27 lots, which included Lot 7.[2] The Planning Board approved Preliminary Plan 1-90057 in 1990, which would have converted four of the subdivision's outlots to lots. That plan expired, however, because the lots were not recorded. In 1995, Bozzuto approached MNCPPC regarding the development of the 27 extant lots and the potential conversion of up to 5 outlots.

In the intervening years between the approval of Preliminary Plan 1-90057 and Bozzuto's initial discussions with MNCPPC regarding its potential development of Fairhill, the Montgomery County Forest Conservation Law ("MCFCL"), Montgomery Cnty., Md., Code §§ 22A-1 et seq. (2004), was enacted. The primary reason for Bozzuto's inquiry of MNCPPC regarding Fairhill was because it wanted to know whether Fairhill was subject to the forest conservation requirements of the MCFCL. MNCPPC officials explained the 27 lots would be subject to the new conservation requirements if a new subdivision plan was approved. Bozzuto, via its Fairhill Partners venture, submitted and received approval of Preliminary Plan 1-96071 from the Planning Board. Approval of the preliminary plan was contingent on the recordation of a final record plat that delineated a forest conservation easement on the lots. A final plat was never completed and recorded, however, nor was the forest conservation easement ("FCE") specifically marked on the plats for the 27 lots, including Lot 7.

In lieu of recording an updated plat to reflect the FCE, Fairhill Partners executed a Conservation Easement Agreement (the "Agreement"). The Agreement was recorded in the County's land records on March 13, 1998. Pursuant to its terms, Fairhill Partners was required to refer specifically to the FCE in any instrument that would convey an interest in property.

Mr. McClure and Fairhill Partners settled on Lot 7 in May 2000. The deed Mr. McClure received itself contained no specific reference to the FCE—only a generic clause stating the deed was subject to easements of record.[3] Further, in his testimony before the Planning Board, Mr. McClure stated that no title insurance documents related to the settlement of the property contained any mention of the FCE.

The contract of sale, however, contained clear references to the FCE. Mr. McClure acknowledged the existence of the FCE as demonstrated by his signature. The contract also included a map demonstrating the FCE's location on the lot.

After closing on his property in 2000, Mr. McClure did what many Marylanders do with land and constructed a house. He also built a deck, mowed his lawn, and even grazed horses. Seeking to fully embrace an agrarian lifestyle, in May 2005, he sought to build a barn and a fence and received permits to that effect. During this period of construction, he learned of the specific boundaries of the FCE. It was also during this ...

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