18 ELR 21393 | Environmental Law Reporter | copyright © 1988 | All rights reserved
Meredith v. Talbot CountyNo. CG 0510 (Md. Cir. Ct. July 14, 1988)
The court holds that a developer's challenge to a county's refusal to allow residential development on a portion of its land pursuant to the Chesapeake Bay Critical Area Protection Program is barred by the developer's prior agreement not to build on this land. The court rejects the developer's claim that it accepted this agreement under duress to meet the Critical Area Program's deadline for submitting development plans.
[A related federal court decision is published at 18 ELR 21390.]
Counsel are listed at 18 ELR 21390.
[18 ELR 21393]
This matter is before the court on motions for summary judgment made by Talbot County and the State. I find that there is no genuine dispute as to any material fact and thus the matter is ripe for summary judgment. I shall grant summary judgment for the defendants for the reasons to be hereinafter stated.
The plaintiff is Ashby Partnership, a Maryland general partnership of which Clifford E. Meredith is the managing partner. The partnership was created for the purpose of developing a tract of real estate known as "Ashby" consisting of 200.67 acres, more or less, on the Miles River in Talbot County. On or about September 16, 1985, plaintiffs entered into a contract to purchase such land which was then classified as A-5 under the Talbot County zoning ordinance. By Chapter 794 of the Acts of 1984 the General Assembly enacted what is commonly known as the critical areas law. By Code (1974, 1983 Repl. Vol., 1987 Cum. Supp.), § 8-1813 of the Natural Resources Article from June 1, 1984, until an improved program has become effective in a local jurisdiction, the jurisdiction must make certain findings with respect to any subdivision plat approval or zoning amendment, variance, special exception, conditional use permit approval or use of a floating zone that affects any land or water area located in the critical area. The land involved in this case is in the critical area. Specifically, § 8-1813(a)(2) requires that the local jurisdiction find that:
The applicant has identified fish, wildlife, and plant habitat which may be adversely affected by the proposed development and has designed the development so as to protect those identified habitats whose loss would substantially diminish the continued ability of populations of affected species to sustain themselves.
Talbot County adopted an ordinance providing a moratorium on subdivision approvals in the critical area effective December 1, 1985. Prior thereto plaintiffs sought to subdivide the land which they had acquired. Delmarva fox squirrels and bald eagles, both of which are endangered species, were found in a part of the land acquired by plaintiffs, specifically, in what was proposed as Lots 10, 11, 12, 13, and 14.
Plaintiffs submitted their plan for subdivision approval which went through the normal channels. On November 26, 1985, the Talbot County Planning Commission recommended that in order to comply with the interim findings requirement of the critical areas law the partnership must subdivide Ashby subject to, among other things, the following conditions:
1. National Wildlife Guidelines as presented in the publication Bald Eagles in the Chesapeake: A Management Guide for Landowners, including the three protection zones.
2. Lots 10, 11, 12, 13, and 14 are to be reserved until four years after there are no eagles using the subdivision property. This must be confirmed by the State of Maryland Dept. of Natural Resources. Subdivision of lots 10, 11, 12, 13, and 14 are not approved. If subdivision is desired after the four year time limit, it may be applied for under the then current subdivision regulations.
3. The 1/4 mile restriction as outlined in the protection zones covered in #1 above applies to Lot #9.
On November 27, 1985, prior to the Planning Officer's making a final decision on the proposed Ashby subdivision, Mr. Meredith contracted her and requested that she approve the entire subdivision plat, including Lots 10 through 14, subject to the following conditions:
(1) Lots 10 through 14 would not be offered for sale to the public or any other person or entity other than a bona fide conservation organization,
(2) There will be no development of those lots except in accordance with the Planning Commission recommendations, and
(3) In the event the Ashby partnership is unable to convey the lots to a conservation organization in one year, the lots will be deleted from the subdivision plat, and the area will be designated as reserved.
After Meredith put this proposed agreement in writing the Planning Officer gave final approval to the subdivision plat and signed it subject to a statement that "Lots 10-14 are approved in accordance with agreement dated 11-27-85." Subsequently, and prior to December 1, 1985, plaintiffs recorded the Ashby subdivision plat among the Land Records of Talbot County.
On February 21, 1986, an attorney, acting on behalf of the plaintiffs, asked the Planning Officer whether:
(1) A building permit could be issued for one house on Lots 10 through 14, or
(2) Whether the lots could be subdivided into two 20 acre parcels and a building permit issued for each parcel.
The Planning Officer responded that the attorney might request a change but it probably would not be granted.
On April 4, 1986, the same attorney on behalf of plaintiffs petitioned the Talbot County Board of Appeals for a waiver of its decision with respect to the Ashby Subdivision. This was denied on April 8, 1986.
In plaintiffs' second amended complaint Talbot County, its Planning Officer, the State of Maryland, Department of State Planning and Department of Natural Resources, and the Attorney General of Maryland have been sued as defendants. This is what might be styled an action for inverse condemnation. In Count 1 it is alleged that the defendants' actions and policies have deprived plaintiffs of all beneficial use of the property, that they can make no economic use whatever of it; they cannot secure subdivision approval or obtain a building permit to erect any structure upon the property; and they cannot forest or farm the property. It is alleged that the defendants' actions have taken the plaintiffs' property without compensation for a public purpose and to achieve a public benefit at the expense of the plaintiffs, all in violation of the Fifth Amendment to the Constitution of the United States and of 42 U.S.C. § 1983 and in violation of Art. 3, § 40 of the Constitution of Maryland "as well as Title 12, Eminent Domain, of the Real Property Article of the Maryland Code." Count 2 repeats all of the allegations of Count 1 and alleges that the defendants "have acted arbitrarily and capriciously, and in violation of state and local law," and that they have thus "violated the Fourteenth Amendment and 42 U.S.C. § 1983, as well as the 'due process clause' of the Constitution of Maryland, to-wit: Article 24 of the Declaration of Rights."
Defendants invoke Prince George's Co. v. Blumberg, 288 Md. 275, and assert that under the doctrines of exhaustion of administrative remedies and res judicata they are entitled to summary judgment based upon the failure of the plaintiffs under § 502(3) of the Talbot County charter to appeal the final decision of the Planning Officer on their application to the Talbot County Board of Appeals as well as the failure to appeal to the circuit court from the Board of Appeals' denial of the February 21, 1986, request. On the latter issue the State points to Hope v. Baltimore County, 288 Md. 656 (1980), which is factually similar. They likewise contend thatplaintiffs may not now challenge the Planning Officer's November 27, 1985, decision because that decision was made pursuant to a binding agreement proposed by the plaintiffs.
The failure to exhaust administrative remedies has much appeal as a ground for decision. However, to rule upon such grounds I would have to find that the Supreme Court's determination in Patsy v. Florida Board of Regents, 437 U.S. 496, 516 (1982), that the exhaustion of State administrative remedies should not be required as a prerequisite to bringing an action pursuant to 42 U.S.C. § 1983 is not applicable to a State court § 1983 action. As Judge Eldridge pointed out for the Court in Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 12 (1986), "While Patsy involved a § 1983 action brought in a federal court, the majority of State court decisions since Patsy have taken the position that the Patsy holding [18 ELR 21394] is applicable to a State court § 1983 action." In that case it was not necessary for the Court to take a position as to the applicability of the Patsy doctrine in a Maryland State court action. Defendants urge that the minority view as reflected in the cases cited by Judge Eldridge for the Court, 307 Md. 13, represent the better view. It is not necessary for me to decide that point since I see other grounds for granting the motion for summary judgment.
I think, and hold, that plaintiffs' action here is barred by Meredith's voluntary agreement on behalf of the partnership. I realize full well that plaintiffs claim that he was acting here under duress. I think the defendants are correct when they say that the actions of Meredith here were not under such duress as would bar the agreement and they cite Board of Trustees v. Fineran, 75 Md. App. 289 (1988), which seems to me to be in point.
Accordingly, defendants' motion for summary judgment is granted and the complaint herein is dismissed with costs.
18 ELR 21393 | Environmental Law Reporter | copyright © 1988 | All rights reserved