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Modell v. Waterman Family Limited Partnership

Court of Special Appeals of Maryland

March 2, 2017

EDWARD G. MODELL, ET AL.
v.
WATERMAN FAMILY LIMITED PARTNERSHIP, ET AL.

          Berger, Shaw Geter, Eyler, James R., (Senior Judge, Specially Assigned) JJ. [*]

          OPINION

          Eyler, James R., J.

         The issues raised in this case are related to the issues raised in the case of Boomer, et al v. Waterman Family Limited Partnership, et al, __Md.App.__, No. 1783, September Term 2015 (filed: March 2, 2017). The underlying issue that gave rise to both appeals is whether the Board of County Commissioners for Queen Anne's County ("the County Commissioners") had the authority to rescind a previously adopted resolution in which they had approved the rezoning of a parcel of land that had been annexed and rezoned by the Town of Queenstown. In Boomer, the challenge was to the second ordinance that purported to rescind the first ordinance. On this appeal, the challenge is to the first ordinance.

         The procedural genesis of this appeal was a petition for judicial review filed on October 9, 2015 in the Circuit Court for Queen Anne's County by Kathleen B. Boomer, Marie J. McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne's Conservation Association ("QACA"), whom we shall refer to collectively as the QACA appellants. The Waterman Family Limited Partnership and the Town Commissioners of Queenstown, appellees, responded to the petition for judicial review and filed motions to dismiss. On November 9, 2015, appellant Edward G. Modell, who is proceeding in proper person in this appeal, as he did below, filed a response to the petition for judicial review in which he declared his intention to participate in the litigation. He requested that the hearing on the motions to dismiss, set for November 17, 2015, be postponed on the ground that he and several others were not given proper notice. The court did not rule on Mr. Modell's request for postponement, but the hearing was held as scheduled and was attended by all of the parties, including Mr. Modell. After the hearing, the circuit court dismissed the petition for judicial review on the grounds that it was barred by time and by res judicata. This timely appeal followed.

         QUESTIONS PRESENTED

The QACA appellants present the following two questions for our consideration:
I. Did the circuit court err when it held that appellants' petition for judicial review was not timely filed?
II. Did the circuit court err when it held that appellants' petition for judicial review was barred by res judicata?

         Mr. Modell joins in the questions presented by the QACA appellants and also asks us to consider the following issue:

III. Whether the circuit court erred in holding that collateral estoppel applied to him in this action.

         For the reasons set forth below, we hold that, although the petition for judicial review was filed timely, in light of our decision in Boomer that the County Commissioners did have the authority to rescind the prior resolution, the issues presented in this appeal are moot.

         FACTUAL BACKGROUND

         The background facts are set forth in the related Boomer case, and we duplicate the recitation of facts herein:

         The basic facts are not in dispute. Waterman is the owner of approximately 140 acres of land in Queen Anne's County, commonly referred to as the Wheatlands Farm property, located immediately south of U.S. Route 50 and across from a commercial development known as the Queenstown Outlets. The property was zoned Countryside, a designation that permitted agricultural and low density uses. On June 25, 2014, Waterman filed a petition with the Town of Queenstown seeking to have the Wheatlands Farm property annexed into the town. The goal, after annexation, was to seek rezoning. After a public hearing, the Town Commissioners voted to annex the property. Thereafter, the Town Commissioners enacted an ordinance rezoning the Wheatlands Farm property from Countryside to Planned Regional Commercial, which permitted commercial and high density uses. The effective date of that ordinance was dependent upon a waiver by Queen Anne's County of the existing zoning density pursuant to Md. Code (2013 Repl. Vol., 2014 Supp.), §4-416(b) of the Local Government Article ("LG").[1] The statute provided that the property could not be rezoned to permit development for uses substantially different from previously authorized uses or uses at a substantially higher density, for a period of five years, unless the County Commissioners granted express approval and waived the five-year period.

         After a public hearing, on November 25, 2014, by a vote of three to two, the County Commissioners passed Resolution 14-31, which granted the express approval needed to allow for rezoning to a classification that was substantially different and at a higher density. The approval of Resolution 14-31 allowed development consistent with the "Planned Regional Commercial" classification without having to wait the five-year period referred to in LG §4-416.

         On December 2, 2014, four County Commissioners, elected at the 2014 general election, were sworn into office. On December 9, 2014, the County Commissioners, by a four to one vote, adopted Resolution 14-33, which ...


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