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Anderson v. Great Bay Solar I, LLC

Court of Special Appeals of Maryland

December 18, 2019


          Circuit Court for Somerset County No. C-19-CV-17-000128

          Graeff, Nazarian, Arthur, JJ.


          Graeff, J.

         Appellant, William Anderson, is the owner of two agricultural properties in Somerset County. He is the sole owner of the Ira Barnes Farm, and he co-owns the Ben Barnes Farm with his son, Kevin Anderson, also an appellant. The farms abut, or are bisected by, Dublin Road and Old Princess Anne Road. On June 29, 2015, Somerset County entered into an Easement Agreement with Great Bay Solar I, LLC ("GBS"), appellee, to allow GBS to install collection systems along or below certain county roads, including Dublin Road and Old Princess Anne Road, to transport the power from their solar panels to the general electric grid.[1]

         In April 2017, GBS began laying cable under these roads in accordance with the Easement Agreement. The Andersons objected to the project, and on July 5, 2017, they filed in the Circuit Court for Somerset County a complaint against GBS, seeking a temporary restraining order, a preliminary injunction, and a permanent injunction to halt the project. The Andersons alleged that they had fee simple ownership of the roadbeds where GBS was burying the collection systems, and therefore, GBS was trespassing.

         On September 8, 2017, the Andersons filed an amended complaint. They added as a defendant the Board of County Commissioners of Somerset County (the "County"), appellee, and added a request for a declaratory judgment that they owned in fee simple the land beneath Old Princess Anne Road and Dublin Road where the roads abutted or bisected their property and that GBS's installation of high voltage electric cable constituted an unlawful trespass on their property. They also sought an order directing GBS to remove all electric cable from beneath the roadbeds.

         On October 27, 2017, GBS filed a Counterclaim for Declaratory Judgment. It requested a declaratory judgment that: (1) the County owned the roadbeds under the roads at issue; (2) alternatively, that the County possessed a sufficient interest in the roads to support the grant to GBS of rights to install the collection systems; or (3) alternatively, that the Andersons were precluded from equitable relief based on the doctrines of waiver, estoppel, and laches.

         On August 30, 2018, after a three-day bench trial, the circuit court issued a written "Opinion and Declaratory Judgment." It ruled that neither the Andersons nor the County met their burden of proof that they had a fee simple interest in the roads, that the County possessed sufficient interest in the roads to grant GBS the right to install the collection systems, that GBS had the legal right to install them, and that the Andersons were barred "from any equitable relief they seek based on the doctrines of waiver, estoppel, and laches."

         On appeal, the Andersons present the following questions for this Court's review, which we have consolidated and rephrased slightly, as follows:

1. Did the circuit court err in finding that the Andersons did not present sufficient evidence to support their claim that they have a fee simple interest in the land lying beneath the portion of Dublin Road running through and bisecting the Ira Barnes Farm and beneath the portions of Dublin Road and Old Princess Anne Road bisecting and abutting the Ben Barnes Farm?
2. Did the circuit court err in concluding that, even though Somerset County does not have a fee simple interest in the roads, it nonetheless possesses a "sufficient interest" to permit it to grant GBS the right to utilize the land beneath the roadbeds for the installation of its industrial-scale, electrical cables?
3. Did the circuit court err in concluding that the doctrines of waiver, estoppel and laches barred the Andersons' claims for equitable relief, and if not, are their claims for a legal remedy also barred?

         On cross-appeal, GBS and the County raised the following additional question:

Did the circuit court err in holding that the County failed to prove that it owned Dublin Road and Old Princess Anne Road in fee simple?

         For the reasons set forth below, we shall affirm, in part, and reverse, in part, the judgment of the circuit court and remand for further proceedings.



         The Solar Project

         Appellants, William Anderson and Kevin Anderson, have lived and worked as farmers in Somerset County all their lives. William Anderson owns both the Ira Barnes Farm and the Ben Barnes Farm, the latter of which he co-owns with his son, Kevin Anderson. The Andersons use these farms to grow barley, wheat, corn, and soybeans. The farms are located approximately two miles south of the town of Princess Anne, outside the reach of municipal utilities such as water, sewer, or cable lines.

         This appeal relates to the roads that bisect and border these two farms. Dublin Road runs east-west and bisects both farms across their northern portions. Old Princess Anne Road is perpendicular to Dublin Road, running north-south, and it establishes the western border of the Ben Barnes Farm. Dublin Road terminates at Old Princess Anne Road at the northwest border of the Ben Barnes Farm.[2]

         In 2014, before obtaining an easement from the County to install the collection system under the roads, representatives from Pioneer Green, the former parent corporation of GBS, approached the Andersons about leasing or buying a portion of their farmland as a site for a wind project.[3] The Andersons refused to sell or lease their farms. The company subsequently proposed leasing a right-of-way to place a collection system through the property, and they reached a verbal agreement to a "40 foot right-of-way adjoining Dublin Road." When the company drew up the paperwork, however, the terms of the agreement had been changed, without notice, to a 50-foot right-of-way for no additional compensation. The Andersons advised that they were not interested "in doing business with dishonest people." That ended GBS's attempt to lease land from the Andersons.

         Kevin Anderson testified that, in June or July 2015, during a meeting on another issue, GBS informed him that it did not need the right-of-way from him anymore because the County had granted them permission to "run their cables down [the County's] right-of-way." Kevin Anderson replied: "I don't believe the [C]ounty can give you the authority to do what you're trying to do, I think you need the landowner's permission." Although Kevin Anderson testified that GBS did not say specifically what the plans were, he testified that, in February or March of 2015, he saw GBS surveying roads in the area, particularly Dublin Road and Arden Station Road. He testified that this was the first time that he became "aware that they were contemplating burying cables in these roads."

         In February 2015, Kevin Anderson met with Woody Barnes, head of the County Roads Department, regarding the surveying. Kevin Anderson stated his belief that he owned the section of Dublin Road that bisected his property, and the County merely had a right-of-way to maintain a public road. Mr. Barnes said that he understood Mr. Anderson's concern, but he worked for the County, and his "job was to facilitate this venture, not obstruct it."[4]

         On June 29, 2015, GBS entered into an agreement (the "Easement Agreement") with the County that allowed GBS to lay collection systems under various county roads, including Dublin Road and Old Princess Anne Road. The Easement Agreement authorized GBS to

access and utilize County roadways, install facilities in, through, along, over or under, and make necessary improvements to, County right-of-way and other real property in order to transport equipment used in electric generation facilities and transmit electricity and electrical connection services through Public Ways of the County[.]

         "Public Way" is defined in the agreement as "the surface of, and the space above and below, any public right-of-way . . . now or hereafter held in fee simple title or any other lesser or conditional estate, grant or leasehold interest by the County in those certain rights-of-way" as identified on an attached map showing the roads and properties pertinent to this appeal. The Easement Agreement was recorded in the land records for Somerset County in Liber 0904, folio 0461.

         The GBS project was discussed at multiple meetings of the Somerset County Planning and Zoning Commission (the "Commission"). The Planning Commission was responsible for reviewing the solar project and approving the site plans for each of the sites where solar panels were proposed. Kevin Anderson, a Commission member since 2013, and Vice Chairman since 2016, testified that the role of the Planning Commission is to prepare recommendations for the County Commissioners' approval, not to "have the final say on whether [an action] is approved or rejected."

         Kevin Anderson was present for all but one of the meetings during which the GBS project was discussed. In a meeting in 2014, Jim Porter, the Commission's attorney, stated that, based on his research in the context of setbacks for the project in its early stages, he determined that most county roads in Maryland were rights-of-way, not property owned by the County.

         At a meeting held on May 7, 2015, Gary Pusey, the Somerset County Planning Director, informed the Commission that GBS was pursuing a solar project, as opposed to the initial wind turbine project. The power generated would be used "entirely off-site."

         On September 3, 2015, Mr. Pusey provided the update that the project was being reviewed by the Public Service Commission. He gave Commission members a map showing "what sites were possibly being considered."

         At the January 7, 2016, meeting, Mr. Pusey informed members that the project had received approval by the Public Service Commission, with the condition that the Planning Commission give site plan approval. He advised that there had been a roads agreement with the County. Mr. Pusey stated that the Planning Commission would review the plans "for zoning issues, setbacks, buffering issues, and so on."

         The minutes reflect that Kevin Anderson was not present for this meeting. He testified, however, that he talked to Mr. Pusey at the January meeting about his concern regarding "the roads issue" and the site plans. He stated that Mr. Pusey responded that the Planning Commission was responsible only for the site plans, which "would not contain anything to do with the roads," which would be handled by the Roads Board.

         On February 4, 2016, Mr. Pusey informed the Commission that plans for the five solar sites and a substation were under review by planning staff and would be presented to the Planning Commission at the next meeting. Kevin Anderson wanted to ensure that the County addressed drainage. The minutes reflect that "Mr. Anderson stated concerns of setbacks from roads and ensuring proper maintenance of the ditches."

         Also in February 2016, Kevin Anderson met again with Woody Barnes, who told him that GBS would be laying the collection system "down the center of the road[s]" pursuant to the Easement Agreement. Mr. Anderson testified, however, that Mr. Barnes did not specify the roads to which he was referring.

         At the March 3, 2016, meeting, approval of the site plan for GBS's solar project was a central topic of discussion.[5] Mr. Anderson understood that GBS was waiting for the County's permission "to go ahead with the site plans." The locations for the solar farms were discussed, but Mr. Anderson testified that the site plans introduced at the meeting did not include any reference or depiction of the collection systems that were going to transfer the electricity generated on the sites to the substation. Mr. Pusey testified that, prior to the approval of the site plans, there was a statement that the transmission lines would be located in the roads, including Old Princess Anne Road and Dublin Road. Mr. Anderson testified that, in response to this comment, he stated that he wanted to hear more about this, but he was advised that it did not impact the site plan, and the Commission had no "say over it." The minutes reflect that Mr. Anderson made several comments, but he ultimately voted to approve the proposed site plans.[6]

         Following this meeting, Mr. Anderson began having conversations with County officials more involved with the Roads Department. He met with Charles Fisher, a County Commissioner, and explained his view that he held title to the property, the County had only a right-of-way through the roads for a public way, and he did not "think the [C]ounty had the ability to transfer their right-of-way to another private entity." Mr. Fisher told Mr. Anderson that, although the County owned the roads and could do anything they wanted with them, Mr. Anderson should not worry about the solar project because there were problems with concrete under the road, and the project was a "dying issue" that "wasn't coming." Moreover, Mr. Fisher informed Mr. Anderson that the economic viability of the project was being reviewed because the value of Emission Reduction Credits had dropped.[7]After Mr. Anderson was told that the project probably would not go forward, and he witnessed no further activity on the roads in the ensuing months, Mr. Anderson "dropped [his] guard down" and ceased to be actively concerned.

         Mr. Anderson also met with Rex Simpkins, another County Commissioner. Mr. Simpkins stated that the County was confident that it owned the roads and that the Andersons' claims had no merit. Mr. Anderson testified that, during these discussions, he never saw any documentation regarding exactly how or where the collection systems were going to run.

         GBS, meanwhile, was working on its plan. It obtained zoning certificates and building permits in February 2017.

         On March 29, 2017, and April 5, 2017, the local newspaper posted a temporary road closure notice, stating that "construction and feeder routes to the solar farms of [GBS]" would begin on April 17, 2017, and it named Old Princess Anne Road and Dublin Road as affected areas. Kevin Anderson testified that he saw this notice in the paper. Also on March 29, 2017, the Andersons received a form letter from Algonquin Power advising them that the company had been authorized "to begin work within the County Right of Way for the completion of the Great Bay Solar I Project[, ]" and that work would begin the week of April 3, 2017. Construction began on the project on April 19, 2017.[8]

         Kevin Anderson testified that he was "aware that they were contemplating burying cables in the roads" when he saw GBS surveying Dublin Road and Arden Station Road in Spring 2015. He first learned that the cables were going to be buried in Dublin Road and Old Princess Anne Road from the public notice. The following colloquy then ensued about his knowledge of the plan:

[Mr. Anderson]: The public notice that was in the paper didn't tell us where and how, it just told us that these roads would be closed for installation of cable. I mean I never knew that they were going - I never knew that they were going down the road excavating out a trench and backfilling it with concrete until they started the work.
[Counsel for the Andersons]: Well, you must have had some awareness or some idea that they were going to be doing this on Dublin Road and Old Princess Anne Road bordering your farms when you went to see the commissioners and county attorney?
[Mr. Anderson]: I knew that it was proposed and it was a possibility but, for instance, Arden Station Road had been in the project, had been surveyed and been a part of all of this investigation but Arden Station Road was never used. And the description from what they had signed with the county, they had multiple roads listed. I mean they had more roads listed than they used. So it was very vague, you know, and nobody ever came - nobody ever came to us offering to give us information, even though I was certainly asking for it. I did not actually know the plan for Dublin Road until the construction people got there and started putting up the signs and I asked them. I didn't know if they were going to trench it down the side of the road like they bury existing electrical cable. Delmarva Power usually doesn't dig up the road or excavate material out, they use something called a plow and plow it in. And I didn't know what technique they were going to use.

         After receiving the notice, Mr. Anderson went to the GBS work site construction trailer to advise that he had a problem with the project, and they were trespassing on his property.

         In April 2017, the Andersons retained legal counsel, who drafted a letter to GBS stating the Andersons' objections. Lacking the requisite contact information for the contractors working on the project to copy them on the letter, counsel asked Mr. Anderson to return to the work site trailer to inquire about this information. On this second visit to the trailer on May 11, 2017, Mr. Anderson spoke with a handful of contractors, and for the first time, he saw the official plans for the installation of the cable under Dublin Road. Mr. Anderson reiterated his position that his property rights were being infringed upon, and he requested that the contractors stop immediately. One of the contractors testified that Mr. Anderson stated during this visit that he had no legal right to Old Princess Anne Road because it used to be a state highway, but he argued that Dublin Road was his property.

         David Philpott, Senior Project Manager for Algonquin Power, and GBS's expert witness, testified that they began installing cables on Old Princess Anne on approximately April 19, 2017. On May 17, 2017, GBS received a cease and desist letter from an attorney for the Andersons.[9] On May 24, 2017, GBS's attorneys replied, stating that GBS had been granted easement rights from the County, the owner of the public road. The letter asserted many of the claims raised here, and it requested copies of any documents showing that the Andersons owned the property. Additional correspondence ensued.[10]

         On July 5, 2017, failing to resolve the issue out of court, the Andersons filed a complaint. Kevin Anderson testified that the reason for the delay between the final letter on June 16 and the initial complaint on July 5 was because they were waiting on a search of the deeds and tracking down proper titles. GBS asserts that, by the time the complaint was filed, it had completed 90-95% of the work installing collection systems along Dublin Road and Old Princess Anne Road.[11] Mr. Philpott testified that the cost of installation under these roads was nine to ten million dollars, and it would cost approximately two million dollars to remove the cables.


         Procedural History

         In the July 5, 2017, complaint against GBS, the Andersons sought a temporary restraining order and a preliminary and permanent injunction enjoining GBS from trespassing on their land to bury the collection systems beneath the roadbeds and a permanent injunction requiring GBS to remove the collection systems already laid and restore the roadbeds to their preexisting condition.[12] The Andersons stated that, unless GBS was restrained from continuing to place "encased high voltage electric cables" beneath the roads, they would suffer "irreparable injury" because the concrete wall would "severely limit and may even preclude Plaintiffs from being able to run irrigation pipes and public utility companies from being able to run ordinary utility lines under and across the roads to provide needed service," due to "the depth that would be required for such crossings to maintain adequate separation from the high voltage cables." They alleged that granting injunctive relief was in the public interest because it would reduce the amount of work needed to remove the concrete walls and cables, which the Andersons noted would "be more complicated, expensive and time consuming than their installation, the cost of which is impossible to even estimate."

         The court held a hearing on August 8, 2017. On September 7, 2017, the court issued an order granting a preliminary injunction. The court noted that, at the time of the hearing, GBS had completed the installation of cable in the portion of the roads at issue on appeal, and the request for an injunction prohibiting further cable installation was moot. The court issued a preliminary injunction restraining GBS from placing new asphalt on the road or installing cable under other portions of Old Princess Anne Road.

         The next day, September 8, 2017, the Andersons filed an Amended Complaint for Declaratory Judgment, Injunctive and Other Relief. The amended complaint added the County as a defendant, and it requested a declaratory judgment that the Andersons owned in fee simple the land beneath Old Princess Anne Road and Dublin Road where the roads abut the Andersons' farms and that GBS's cable installation constituted an unlawful trespass on their property. It also sought an order directing GBS to remove the collection systems, refill the trenches, and repave the road surfaces, as well as an order granting the Andersons a permanent injunction restraining GBS from burying electrical cable under the roads.

         On October 27, 2017, GBS filed a Counterclaim for Declaratory Judgment, requesting that the court declare that the County either owned the roadbeds or had an interest sufficient to grant GBS the right to install the collection systems. Alternatively, it requested a declaration that the Andersons were "precluded from the equitable relief they seek based on the doctrines of waiver, estoppel and laches."

         In this regard, GBS alleged that, after providing notice on March 29, and April 5, 2017, the installation of the collector lines would begin, GBS began installing the cables in the roadbed of Old Princess Anne Road "in plain view of" the Andersons, and they completed the work on approximately May 19, 2017. They began installation under Dublin Road on approximately June 19, 2017, and at the time of the filing of the counterclaim, it had completed the installation of 9, 750 feet of collector lines.

         GBS also alleged that roads have a nominal value of one dollar in the context of condemnation proceedings. As another alternative, GBS requested that the Andersons were entitled to payment of one dollar for GBS's use of the roadbeds.

         The circuit court held a three-day bench trial on June 20-22, 2018. On August 30, 2018, the court issued an Opinion and Declaratory Judgment. It included, among other things, the following factual findings:

4. Somerset County has maintained Dublin Road and Old Princess Anne Road for decades. In addition to maintaining the surface of the roads, the County has maintained the subsurface of said roads, including the maintenance of drainage pipes and culverts underneath the roadbeds. These pipes and culverts benefit the farms that Plaintiffs own.
5. In March and April of 2015, Plaintiffs negotiated with Great Bay to lay cable under Plaintiffs' farms, the negotiations failed and, on or about 29 June 2015, Great Bay entered into an Easement Agreement with Somerset County to lay cables under certain County roads.
6. In January 2016, Plaintiffs began surveying Old Princess Anne Road.
7. In February 2016, Plaintiffs learned the County and Great Bay had entered into an Easement Agreement to install the cables under County roads.
8. On 3 March 2016, Plaintiff Kevin Anderson participated in a Planning and Zoning Commission meeting in which cable installation under Old Princess Anne Road, Dublin Road, and Arden Station Road was discussed; he also voted to approve the proposed cable installation.
9. In late 2016, both Plaintiffs informed County Commissioners Charles Fisher and Rex Simpkins that they objected to cable installation under Old Princess Anne Road, Dublin Road, and Arden Station Road, on the theory that they actually own the roads; Mr. Fisher and Mr. Simpkins responded that the County owns the roads, and Mr. Simpkins said, "If you disagree, that's why we have a courthouse."
10. On or about 29 March 2017, Plaintiffs received a form letter from the County informing them that portions of Old Princess Anne Road, Dublin Road, and Arden Station Road would soon be closed to accommodate cable installation; and, at about the same time, Plaintiffs saw a notice to that effect in a local paper.
11. On or about 5 April 2017, Plaintiffs again saw a notice in the local paper warning that the three roads which are the subject of this suit would soon be closed to accommodate cable installation.
12. Shortly thereafter, cable installation began on Old Princess Anne Road, and was completed by early May, when cable installation began on Dublin Road.
13. On or about 16 May 2017, Plaintiff Kevin Anderson entered a trailer serving as a field headquarters for Great Bay work crews installing the cable, informed the workers that he and his father were asserting ownership to Dublin Road, and asked for contact information so he or his attorney could write Great Bay demanding installation stop.
14. On 17 May 2017, [counsel for the Andersons] wrote on behalf of Plaintiffs to Great Bay, asserting that Plaintiffs own Old Princess Anne Road and Dublin Road, or portions of them, and demanding installation stop.

         After setting forth these factual findings, the court then stated that it had reached the following "conclusions of law":

a. Neither Plaintiff has met his burden of proof that he has a fee simple ownership interest in either Dublin Road or Old Princess Anne Road;
b. Somerset County has failed to prove that it owns a fee simple interest in said roadbeds whether by patent, deed, adverse possession, eminent domain, dedication, or any other method.
c. Somerset County is lawfully maintaining the surface of both Dublin Road and Old Princess Anne Road, as well the subsurface culverts, drains, pipes, and gutters used for water run-off; and
d. By virtue of the finding of fact in paragraphs 4-14 above, Plaintiffs are barred from any equitable relief they seek based on the doctrines of waiver, estoppel, and laches.

         The court ultimately ruled that the County "possesses sufficient interest in Dublin Road, and Old Princess Anne Road to grant to Great Bay Solar I, LLC the right to install the collection system in such roadbeds in accordance with the terms of the Easement Agreement," and therefore, GBS had "the legal right to install its collection systems in the roadbeds." Accordingly, the court denied the request for permanent injunction requiring GBS to remove the collection systems and prevent additional installation of the systems.

         The Andersons' appeal, and the cross-appeals of GBS and the County, followed.


Md. Rule 8-131(c) provides:
When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

         The Court of Appeals has further described the standard of review under Md. Rule 8-131(c), as follows:

We give due regard to the trial court's role as fact-finder[, ] and will not set aside factual findings unless they are clearly erroneous. The appellate court must consider evidence [that is] produced at the trial in a light most favorable to the prevailing party[, ] and[, ] if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous[, ] and cannot be disturbed. Questions of law, however, require our non-deferential review. When the trial court's decision involves an interpretation and application of Maryland statutory and case law, [this] Court must determine whether the trial ...

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