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Waterman Family Limited Partnership v. Boomer

Court of Appeals of Maryland

November 20, 2017

Waterman Family Limited Partnership, et al.
v.
Kathleen B. Boomer, et al.

          Argument: October 11, 2017

         Circuit Court for Queen Anne's County Case Nos. 17-C-15-019608, 17-C-15-019683

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Rodowsky, Lawrence F. (Senior Judge, Specially Assigned), JJ.

          OPINION

          McDonald, J.

         Among the powers conferred on a Maryland municipality by the General Assembly pursuant to the State Constitution are the power to zone land within the municipality's boundaries and the power to enlarge those boundaries by annexing contiguous land. However, when a municipality exercises those powers together, there is a constraint. A State statute delays for five years the rezoning of annexed land for a use "substantially different" from that allowed by the land's prior county zoning classification - unless the county approves the municipality's reclassification of the annexed property before the expiration of the five-year period.

         Petitioner Waterman Family Limited Partnership ("Waterman") asked the Town Commissioners of Queenstown ("the Town"), also a Petitioner, to annex farm land owned by Waterman adjacent to Queenstown in Queen Anne's County. At the same time, Waterman asked the Town to rezone the annexed land for purposes of a long planned development. The Town acceded to those requests. In order to make the new zoning effective sooner rather than later, the Town sought the County's approval of the new zoning classification. Certain nearby property owners, including Respondents Kathleen B. Boomer, Marie J. McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne's Conservation Association (collectively "QACA"), opposed the effort to obtain the County's approval of the new zoning.

         At the same time, the County government happened to be in a period of transition as a result of the November 2014 election. The outgoing Board of County Commissioners - the County's governing body - narrowly approved the Town's rezoning in late November 2014. Two weeks later, the newly installed Board of County Commissioners rescinded that approval.

         Disappointed, Waterman and the Town instituted legal action against the County. QACA joined the fray in defense of the County's rescission of its initial approval. Waterman's challenge raised a question of first impression: May a county rescind its approval of a municipality's rezoning of annexed land?

         The Circuit Court for Queen Anne's County said "no." The Court of Special Appeals said "yes." For the reasons set forth in this opinion, we agree with the Court of Special Appeals.

         I Background

         A. Rezoning Land After Municipal Annexation

         1. Municipal Zoning

         The General Assembly has authorized municipalities in Maryland to exercise zoning authority over land within their respective jurisdictions. Maryland Code, Local Government Article ("LG") §5-213; see also Maryland Code, Land Use Article ("LU"), §1-101(g) (definition of "legislative body" includes governing body of municipality), §4-101 et seq. (authorizing legislative body to exercise zoning powers).

         2. Municipal Annexation

         State law allows a municipality to annex unincorporated land contiguous to the municipality's boundaries if certain procedures are followed. LG §4-401 et seq. A proposal to annex land may be initiated by the legislative body of the municipality or by residents or owners of the land in question. LG §§4-403, 4-404.

         3. Rezoning of Annexed Land

         It is generally the case that unincorporated land annexed by a municipality will already have been subject to county zoning. State law temporarily limits the rezoning and development of such land after annexation by a municipality. In particular, for a period of time the county retains some say over whether and when the land may be rezoned or developed in a way that allows for a substantially higher density or different use than that allowed by the county zoning classification that applied to the land prior to annexation. That constraint is set forth in LG §4-416, which provides in pertinent part:

(a)Existing municipal authority. - (1) Notwithstanding [a provision of the Local Government Article that limits the extent of municipal authority over planning, subdivision, and zoning] . . . if an area is annexed to a municipality that has planning and zoning authority at the time of annexation, the municipality shall have exclusive jurisdiction over planning, subdivision control, and zoning in the area annexed.
(b)Different land use or density. - Without the express approval of the county commissioners or county council of the county in which the municipality is located, for 5 years after an annexation by a municipality, the municipality may not allow development of the annexed land for land uses substantially different than the authorized use, or at a substantially higher density, not exceeding 50%, than could be granted for the proposed development, in accordance with the zoning classification of the county applicable at the time of the annexation.
(c)County approval of zoning classification. - Notwithstanding [a provision of the Land Use Article concerning amendment or repeal of a zoning classification] and if the county expressly approves, the municipality may place the annexed land in a zoning classification that allows a land use or density different from the land use or density specified in the zoning classification of the county or agency with planning and zoning jurisdiction over the land prior to its annexation applicable at the time of the annexation.

         4. Summary

         The principles incorporated in the statute can be summarized as follows:

• Municipality's exclusive jurisdiction - As a general rule, a municipality that has planning and zoning authority has exclusive jurisdiction over planning, zoning and subdivision control in any area that the municipality annexes.
• Five-year delay of rezoning - The exclusive authority of the municipality is subject to the proviso that, for a period of five years after annexation, the municipality may not allow development of the annexed land for uses "substantially different" from that authorized under the county zoning applicable to the property prior to annexation. In sum, municipal rezoning of annexed land may be subject to a five-year delay.
• County waiver of delay - That proviso, however, is subject to a further proviso. The county - i.e., the county commissioners or the county council, as the case may be - may give "express approval" for the new municipal zoning before the five-year period expires. This approval is sometimes referred to as a county "waiver" of the five-year delay.

         This case raises the question whether a county that waives the five-year delay by giving express approval may rescind that waiver before any development has been undertaken in the annexed area.

         B.Facts and Legal ...


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