Relating to Real Estate
County Commissioners’ “Yes” in November May Turn to “No” in December
In Waterman Family Limited Partnership v. Boomer, 456 Md. 330 (2017), the Court of Appeals held that newly elected Queen Anne’s County Commissioners had the authority to rescind the prior commissioners’ resolution that allowed for the rezoning of property recently annexed into the Town of Queenstown.
Municipalities in Maryland have the power to exercise zoning authority over the land within their jurisdictions pursuant to Local Government Article (“LG”) §5-213 and Land Use Article (“LU”) §§1-101(g) and 4-101. Additionally, a municipality may annex unincorporated land that is contiguous to it, subject to certain procedures. LG §4-401 et seq. However, land that has been annexed into a municipality may not be rezoned to permit substantial different uses for five years after the rezoning without the consent of the county. LG §4-416.
Waterman Family Limited Partnership owned 148 acres in Queen Anne’s County across Route 50 from the Queenstown outlets and adjacent to the Town of Queenstown. Waterman’s property was zoned for agricultural and low density uses, but the owner had long wanted to develop the property. On June 25, 2014, Waterman petitioned to have its property annexed into Queenstown. After review by the Town Planning Commission and the holding of public hearings, on September 24, 2014, the Town Commissioners of Queenstown annexed the property. On November 12, 2014, the Town Commissioners enacted a rezoning ordinance to allow higher density development of the property. However, as noted above, rezoning within five years of annexation was dependent on obtaining a waiver from the County Commissioners.
On November 25, 2014, the Queen Anne’s County Commissioners passed Resolution 14-31, which granted the waiver required by LG §4-416 to permit rezoning of the property within the five-year window. This occurred 22 days after new County Commissioners had been elected, and a week before they were installed. On December 9, 2014, the new County Commissioners passed Resolution 14-33, which rescinded Resolution 14-31.
Litigation followed. The Circuit Court for Queen Anne’s County held that the County Commissioners had no authority to rescind Resolution 14-31. On appeal, the Court of Special Appeals reversed. See Boomer v. Waterman Family Limited Partnership, 232 Md. App. 1 (2017), which we discussed in the May 2017 issue of Relating to Real Estate. The Court of Appeals then granted a writ of certiorari.
The Court of Appeals reviewed the legislative history of LG §4-416 but found nothing in it that addressed whether a county had the right to rescind a resolution approving municipal rezoning of annexed land.
The Court then held that generally a local government has the right to reconsider its prior actions and to adopt a measure that was previously defeated, or rescind a measure that was previously adopted, so long as no rights of third parties have vested. Because neither Waterman nor the Town of Queenstown, which teamed with Waterman in the appeals, had taken any action in reliance on Resolution 14-31 in the two weeks before it was repealed by Resolution 14-33, neither had any vested rights. The Court further noted that the right of a government to change its position is consistent with the concept that a legislative body cannot restrict the legislative actions of its successors.
Pursuant to Article XI-F, §6 of the Maryland Constitution, a code county, such as Queen Anne’s County, may enact, amend, or repeal a public local law of that county. In the Court of Special Appeals’ decision, that court found that Resolutions 14-31 and 14-33 were public local laws because they applied only to Queen Anne’s County. The Court of Appeals stated that it was “inclined to agree” with the Court of Special Appeals on this point, but that it was not necessary to do so to reach a decision in this case because the County Commissioners had the common law right to rescind Resolution 14-31.
Therefore, the Court of Appeals affirmed the decision of the Court of Special Appeals.
For questions, please contact Ed Levin (410) 576-1900.