EDWARD G. MODELL, ET AL.
WATERMAN FAMILY LIMITED PARTNERSHIP, ET AL.
Berger, Shaw Geter, Eyler, James R., (Senior Judge, Specially
Assigned) JJ. [*]
James R., J.
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.
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.
The QACA appellants present the following two questions for
I. Did the circuit court err when it held that
appellants' petition for judicial review was not timely
II. Did the circuit court err when it held that
appellants' petition for judicial review was barred by
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.
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.
background facts are set forth in the related Boomer
case, and we duplicate the recitation of facts herein:
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"). 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.
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.
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 ...