Dabbs v. Anne Arundel Co. , 458 Md. 331 ( 2018 )

William A. Dabbs, Jr., et al. v. Anne Arundel County, No. 23, September Term, 2017.
Opinion by Harrell, J.
TAKINGS – RATIONAL NEXUS / ROUGH PROPORTIONALITY SCRUTINY
NOLLAN AND DOLAN – APPLICABILITY – LEGISLATIVELY-IMPOSED
DEVELOPMENT IMPACT FEES
Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141 (1987), and Dolan v.
City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994), held that a unit of government may
not condition the approval of a land-use permit on the property owner’s/applicant’s
relinquishment of a portion of his property unless there is a nexus and rough proportionality
between the government’s demand and the effects of the proposed land development or
use. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 133 S. Ct. 2586 (2013),
expanded Nollan and Dolan to apply to a monetary exaction for mitigation as a condition
for issuing a land-use permit to enable development of an individual property. The
legislation at issue in the present case, Subtitle 2 of Title 11 of Article 17 of the Anne
Arundel County Code, involves a legislatively-imposed development impact fee. The
impact fee ordinance imposes predetermined impact fees, based on a specific monetary
schedule, and applies to any person wishing to develop property within the development
district. Such impact fees imposed by legislation applicable on an area-wide basis are not
subject to Nollan and Dolan scrutiny.
STATUTORY APPLICABILITY – VESTING – RETROSPECTIVE
APPLICATION – ANNE ARUNDEL COUNTY CODE
Generally, “[a] change in procedure or in a remedy, whether administrative or judicial,
which does not modify substantive rights, is ordinarily applied to pending matters as well
as to all remedial actions taking place after the effective date of the change.” State Admin.
Bd. of Election Laws v. Bd. of Sup’rs of Elections of Baltimore City, 342 Md. 586, 601,
679 A.2d 96, 103 (1996) (emphasis added). Anne Arundel County Bill No. 27-07 does not
work a substantive change in policy interfering with any vested rights of the Dabbs Class
of litigants seeking refunds of impact fees not expended or encumbered lawfully within six
fiscal years following their collection. Specifically, the definition of encumbrance, utilized
by Anne Arundel County when assessing the amount of impact fees available for refund,
before the enactment of Bill No. 27-07, conformed to generally accepted accounting
principles. Moreover, the Court determined previously, in Anne Arundel County v. Halle
Development, 408 Md. 539, 559 n.7, 560, 971 A.2d 226 n.7 (2009), that similarly situated
owners’ rights in any specific refund award were not vested. Bill No. 27-07 did not
interfere with any vested rights of the Dabbs Class.
STATUTORY APPLICABILITY – PROSPECTIVE REPEAL – VESTED RIGHTS
TO RELIEF – ANNE ARUNDEL COUNTY CODE
Rights of a purely statutory origin, untraceable to the common law, “are wiped out when
the statutory provision creating them is repealed, regardless of the time of their accrual,
unless the rights concerned are vested.” Selig v. State Highway Admin., 383 Md. 655, 676,
861 A.2d 710, 723 (2004). The effective date of the repeal of the refund provision of § 17-
11-210 (1 January 2009) of the Anne Arundel County Code occurred well before any
impact fees collected through 2003 became ripe for a refund claim, e.g., on or about 29
August 2009. Thus, the Dabbs Class’ claims for refunds of impact fees collected in FY
2003 were not vested and the repeal of § 17-11-210 barred any refund claims.
Circuit Court for Anne Arundel County
Case No. 02-C-11-165251
Argued: November 3, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 23
September Term, 2017
WILLIAM A. DABBS, JR., et al.
v.
ANNE ARUNDEL COUNTY
Adkins,
McDonald,
Watts,
Hotten,
Getty,
Harrell, Glenn T., Jr.,
(Senior Judge, Specially Assigned)
Cathell, Dale R.,
(Senior Judge, Specially Assigned),
JJ.
Opinion by Harrell, J.
Filed: April 10, 2018
“[D]espite reams of papers being filed, it is[, still to this day,] [] difficult to
tease out [precisely what the Dabbs Class’] specific contentions are except
for the assertion that they should receive a refund of some unspecified
amount.”
Memorandum Opinion (at 14), Senior Judge Dennis Sweeney (ret.), Dabbs, et al. v. Anne
Arundel County, Circuit Court for Anne Arundel County, Case No. 02-C-11-165251 (14
January 2016).
This is the latest installment of a litigation saga (although perhaps we are nearing
its end) traveling two quite kindred paths over more than fifteen years, (Halle, et al. v. Anne
Arundel County (“Halle”) and Dabbs, et al. v. Anne Arundel County (“Dabbs”)) in
Maryland’s courts. Pursuant to the power vested in the government of Anne Arundel
County, Maryland (“the County”) through 1986 Md. Laws, ch. 350, the County imposed
road and school impact fees according to County districts beginning in 1987.1 These fees
were paid usually by land developers and builders.2 Those who paid impact fees (like the
1
Subtitle 2 of Title 11 of Article 17 of the Anne Arundel County Code (the “Impact
Fee Ordinance”) explains that its adoption was done
for the purpose of promoting the health, safety, and general welfare of the
residents of the County by: (1) requiring all new development to pay its
proportionate fair share of the costs for land, capital facilities, and other
expenses necessary to accommodate development impacts on public school,
transportation, and public safety facilities. . . .
2
Section 17-11-208 specifies that there “are three separate special funds, the Anne
Arundel County Transportation Impact Fee Special Fund, the Anne Arundel County
School Impact Fee Special Fund, and the Anne Arundel County Public Safety Impact Fee
Special Fund.” Moreover, § 17-11-209(d) announces also that “[f]unds collected from
development impact fees shall be used for capital improvements within the development
Dabbs Class) might become eligible, under certain circumstances, for refunds of those fees.
See Anne Arundel County Code § 17-11-210.3 Refunds were contingent upon the County’s
impact fee district from which they are collected, so as to reasonably benefit the property
against which the fees were charged.” (emphasis added).
3
During Fiscal Years (FYs) 1997-2003 (the years in question here), § 17-11-210
provided:
(a) Notice of refund availability. If fees collected in any district during a
fiscal year have not been expended or encumbered by the end of the sixth
fiscal year following collection, the Office of Finance shall give notice
of the availability of a refund of the fees and refund the fees as provided
in this section.
(b) Publication of notice. Within 60 days from the end of a fiscal year during
which fees become available for refund, the Controller shall cause to be
published once a week for two successive weeks in one or more
newspapers that have a general circulation in the County, a notice that
development impact fees collected within a particular district for a
preceding fiscal year are available for refund on application by the
current owner of the property for which the fee was originally paid. The
notice shall set forth the time and manner for making application for the
refund.
(c) Refund application deadline. An eligible property owner shall file an
application for a refund within 60 days of the last publication of notice.
On proper application and demonstration that the fee was paid, the
Controller shall refund the fees to the property owner with interest at the
rate of 5 [percent] per year.
(d) Refund on pro rata basis. If only a portion of the fees collected in a
district during a fiscal year have been expended or encumbered, the
portion not expended or encumbered shall be made available for refund
on a pro rata basis to property owners. Each eligible property owner who
has properly applied for a refund shall receive a refund in an amount
equal to the portion of the original fee that way not expended or
encumbered.
(e) Extension. The Planning and Zoning Officer may extend for up to three
years the date at which the funds must be expended are encumbered under
subsection (a). An extension shall be made only on a written finding that
within a three-year period certain capital improvements are planned to be
constructed that will be of direct benefit to the property against which the
fees were charged.
Two bills, at the heart of this case, amended the Impact Fee Ordinance: Bill No. 27-07
(effective 22 May 2007, codifying the county’s procedures for calculating and recording
2
failure to utilize or encumber within a specified time the collected fees for present or future
eligible capital improvements, i.e., projects for the “expansion of the capacity of public
schools, roads, and public safety facilities and not for replacement, maintenance, or
operations.” § 17-11-209(a).4 The Dabbs Class’ claims are a demand for refunds of an
unspecified amount of impact fees collected by the County between fiscal years (FY) 1997-
2003.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Halle Chronicles.
A total of 12 reported and unreported opinions, orders, and memorandum opinions
have been issued to date collectively by this Court, the Court of Special Appeals, and the
Circuit Court for Anne Arundel County, in the Halle litigation (the older sibling to the
present case).5 The core contention in Halle is relevant to the present case. In 2001, the
Halle Class asserted that they were entitled to refunds of impact fees collected during FY
1988–1996 that were expended on what was ultimately determined to be ineligible capital
improvements.6 In Halle, the circuit court, on 15 December 2006, found $4,719,359 in
capital expenditures and encumbrances), and Bill No. 71-08 (effective 1 January 2009,
amending the Ordinance, to remove prospectively the refund provision provided in § 17-
11-210).
4
Unless specified otherwise, all code references herein are to the Anne Arundel
County Code.
5
Many arguments asserted by the Dabbs Class were decided in Halle. We shall
note and elaborate on prior holdings in Halle as they are intertwined with the certiorari
questions before us.
6
For a full history of Halle, see Anne Arundel County v. Halle Dev., Inc., 408 Md.
539, 543–51, 971 A.2d 214, 216–21 (2009); Halle Development v. Anne Arundel County,
No. 1299, Sept. Term, 2016 at 1-10 (Md. Ct. Spec. App. Nov. 22, 2017); Dabbs v. Anne
Arundel County, 232 Md. App. 314, 321–28, 157 A.3d 381, 385–89 (2017), cert. granted
3
refunds were “due to the current owners of specified fee paying properties,” plus five-
percent interest from the date of the payment of each initial fee.7 The circuit court based
its ruling in favor of the payors on its determination that the § 17-11-210(e) extension8
decisions made by the County’s Planning and Zoning Officer (PZO) were invalid. The
Halle Class and the County cross-appealed. The County, on appeal,
argued that the circuit court erred by refusing to permit the County to count
the encumbrances in calculating the refund. In their cross-appeal, the [Halle
Class] contended that (1) the circuit court improperly calculated the amount
of impact fees available for refund by excluding funds that were spent on
ineligible development projects; and (2) counsel for the property owners were
entitled to the 40 [percent] contingency fee provided by their fee agreement
with the named class representatives.
Halle Dev., Inc. v. Anne Arundel County, No. 1299, Sept. Term, 2016 at 6 (Md. Ct. Spec.
App. Nov. 22, 2017).9 The intermediate appellate court, in 2008, held, inter alia in an
Dabbs v. Anne Arundel County, 454 Md. 677, 165 A.3d 473 (2017); Halle Development
v. Anne Arundel County, No. 2552, Sept. Term 2006 at 1-8 (Md. Ct. Spec. App. Feb. 7,
2008).
7
Indeed,
[t]he Circuit Court determined that because (1) $4,719,359 in impact fees
collected from property owners were not thereafter timely paid or
encumbered for capital improvements within the applicable district, and (2)
the period to make capital improvements was not properly extended, the
Owners were entitled to refunds.
Halle, 408 Md. at 543, 971 A.2d at 216 (footnote omitted).
8
See § 17-11-210(e).
9
This opinion includes references to unreported opinions in the Halle litigation, in
which those litigants invoked many claims that are nearly identical to those posed in the
Dabbs litigation, although different sets of class property owners and developers and a
different stretch of fiscal years are involved in each line of cases. We may cite here or, in
one instance, refer to persuasive reasoning, as appropriate, in certain of the Halle rulings
because of their relevance and inextricable intertwinement with the Dabbs Class’
contentions and factual background. We do so under “the doctrine of . . . collateral
estoppel.” Md. Rule 1-104(b); Corby v. McCarthy, 154 Md. App. 446, 481, 840 A.2d 188,
208 (2003).
4
Collateral estoppel provides that, “[w]hen an issue of fact or law is actually litigated
and determined by a valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action between the parties,
whether on the same or a different claim.” Cosby v. Dep’t of Human Res., 425 Md. 629,
639, 42 A.3d 596 (2012); see also Rourke v. Amchem Products, Inc., 384 Md. 329, 359,
863 A.2d 926, 944 (2004) (quoting re Murray Int’l Freight Corp. v. Graham, 315 Md. 543,
547, 555 A.2d 502, 503 (1989) (“The functions of this doctrine, and the allied doctrine of
res judicata, are to avoid the expense and vexation of multiple lawsuits, conserve judicial
resources, and foster reliance on judicial action by minimizing the possibilities of
inconsistent decisions.”).
Four questions must be answered affirmatively before collateral estoppel may be
apt to the situation: (1) Was the issue decided in the prior adjudication identical with the
one presented in the action in question?; (2) Was there a final judgment on the merits?; (3)
Was the party against whom the plea is asserted a party or in privity with a party to the
prior adjudication?; and, (4) Was the party against whom the plea is asserted given a fair
opportunity to be heard on the issue? Colandrea v. Wilde Lake Cmty. Assoc., 361 Md. 371,
391, 761 A.2d 899, 909 (2000) (quoting Washington Suburban Sanitary Comm’n v. TKU
Assocs., 281 Md. 1, 18–19, 376 A.2d 505, 514 (1977)). Elaborating on the third question
– mutuality– we explained in Garrity v. Maryland State Bd. of Plumbing, 447 Md. 359,
368–69, 135 A.3d 452, 458–59 (2016), that
Traditionally, collateral estoppel contemplates a “mutuality of parties,”
meaning that an issue that was litigated and determined in one suit will have
preclusive effect in a second suit when the parties are the same as, or in
privity with, those who participated in the first litigation. The mutuality
requirement has been relaxed, however, so long as the other elements of
collateral estoppel are satisfied. See Rourke[, 384 Md. at 349, 863 A.2d at
938 (2004)]. If either the defendant or the plaintiff in the second proceeding
was not a party to the first proceeding, we refer to that application of
collateral estoppel as “non-mutual.” Id. at 341 []. Mutual and non-mutual
collateral estoppel are further characterized as either “defensive” or
“offensive”: estoppel is “defensive” if applied by a defendant and
“offensive” if invoked by a plaintiff. See Shader v. Hampton Improvement
Ass’n, 443 Md. 148, 162–63, 115 A.3d 185[, 193] (2015).
The species of collateral estoppel that is apt here is “defensive non-mutual collateral
estoppel,” which seeks to prevent a plaintiff from re[-]litigating an issue the plaintiff has
previously litigated unsuccessfully in another action against a different party.” Rourke, 384
Md. at 341, 863 A.2d at 933 (2004). We have recognized defensive non-mutual collateral
estoppel where the party bound by the existing judgment had a full and fair opportunity to
litigate the issues in question, even in a subsequent proceeding involving a different party.
See Pat Perusse Realty v. Lingo, 249 Md. 33, 44, 238 A.2d 100, 107 (1968). Thus, although
there are two different sets of plaintiffs (albeit similar in standing, the confluence of
counsel, and many nearly identical claims), the defendant, i.e., the County, was the same
5
unreported opinion, that the circuit court erred in its formulation of the mathematical
formula used to calculate that $4,719,359 in refunds were due. The County was entitled,
in fact, to count impact fee encumbrances10 when determining impact fees available for
refund. Halle Development v. Anne Arundel County, No. 2552, Sept. Term, 2006 at 8-9
(Md. Ct. Spec. App. May. 5, 2008) (the appellate court granted a motion for reconsideration
to clarify its 7 February 2008 remand instruction); Halle Development v. Anne Arundel
County, No. 2552, Sept. Term, 2006 at 52 (Md. Ct. Spec. App. Feb. 7, 2008) (the
intermediate appellate court found that the circuit court erred by refusing to allow the
County to count impact fee encumbrances in determining the amount of impact fee refunds
to which Owners are entitled under § 17-11-210(b)). The intermediate appellate court, on
remand, instructed the circuit court to recalculate appropriately the refunds with
consideration given to the encumbered impact fees. See id. The County sought successfully
a writ of certiorari from this Court to review that judgment. We affirmed, on 6 May 2009,
defendant in both streams of litigation. Halle decided, with finality, many, if not most, of
the claims asserted by the Dabbs Class. We believe also that the Dabbs class has had a
full and fair adjudication of their issues.
In point of fact, the only question or argument in this case where we find the
reasoning or conclusions of an unreported opinion in Halle persuasive is in our analysis of
the argument that Bill No. 27-07 (see infra II.a.) should not be given its intended
retrospective effect because the Dabbs Class members’ rights to refunds had vested before
the effective date of the legislation. Even there, this Court’s 2009 reported opinion in Anne
Arundel County v. Halle Development, 408 Md. 539, 559 n.7, 560, 971 A.2d 226 n.7
(2009), addressed virtually the same question, although Bill No. 27-07, which was law at
that time, was not mentioned specifically by the parties in the briefing and argument or by
the Court in its opinion.
10
§ 17-11-201(2) defines encumbrance as a legal commitment for the expenditure
of funds, chargeable against the applicable appropriation for the expenditure, that is
documented by a contract or purchase order.
6
the intermediate appellate court regarding its decision as to the encumbrances, and directed
a remand to the circuit court to calculate available impact fee refunds. See Anne Arundel
County v. Halle Dev., Inc., 408 Md. 539, 971 A.2d 214 (2009).
On 25 March 2011, the circuit court reduced the refunds for which the payors were
eligible from $4,719,359 to $1,342,360, plus interest. The Halle Class, in response, filed
a petition for a writ of certiorari with this Court. We denied the Halle Class’ attempt to
pole-vault over review by the intermediate appellate court. The Halle Class appealed then
to the intermediate appellate court. In a 29 July 2013 unreported opinion, the Court of
Special Appeals affirmed the circuit court’s 25 March 2011 order. The Halle Class
petitioned again for a writ of certiorari. We denied that petition also. The circuit court
awarded, on remand on 13 May 2014, counsel fees in the amount of 39 percent of the
$1,342,360 in refunds, plus five-percent interest on each refund, and, on 8 August 2016,
issued its final judgment. The owners appealed to the intermediate appellate court, which,
in an unreported opinion on 22 November 2017, affirmed the circuit court’s 8 August 2016
order, explaining, “in prior opinions, [the intermediate appellate court and this Court] have
already addressed all but one11 of the arguments raised by the [Halle Class].” Halle
Development v. Anne Arundel County, No. 1299, Sept. Term, 2016 at 1 (Md. Ct. Spec.
App. Nov. 22, 2017).12
11
This issue is irrelevant to the present appeal.
12
The Halle class filed, once again, a petition for writ of certiorari to this Court
following the intermediate appellate court’s 22 November 2017 decision. The Court
denied the petition on 26 March 2018. See Halle Development v. Anne Arundel Co., Pet.
Docket No. 444, denied 26 March 2018.
7
II. The Dabbs trilogy.
We adopt, supplementing as needed, the intermediate appellate court’s recitation of
the procedural posture of this case as rendered in Dabbs v. Anne Arundel County, 232 Md.
App. 314, 328–31, 157 A.3d 381, 389–91 (2017), cert. granted Dabbs v. Anne Arundel
County, 454 Md. 677, 165 A.3d 473 (2017):
In the present case, involving impact fees collected in FYs 1997–
2002, [the Dabbs Class] sought refunds on the ground that the impact fees
were not expended or encumbered in a timely manner under § 17–11–210(b).
[The Dabbs Class] also argued that the amendments to the Impact Fee
Ordinance in Bill No. 27–07 and Bill No. 71–08 unconstitutionally interfered
with their vested rights in refunds. After hearing from the parties, [the circuit
court entered, ultimately, a declaratory judgment in favor of the County as to
all issues raised in the proceeding.] [T]he circuit court ruled that the County
had applied the Impact Fee Ordinance as required by this Court’s 2008
opinion and found that there are no impact fees available for refund under §
17–11–210. Further, the circuit court rejected [the Dabbs Class’]
constitutional and state law challenges to the Impact Fee Ordinance, finding
that most of the challenges had already been resolved against the class
plaintiffs in Halle.
More specifically, the circuit court found that the County prepared the
six FY charts in the format approved by the Halle courts, properly comparing
the amount of impact fees collected in each FY and district under review to
the amount of impact fees expended (disbursed) and encumbered as of the
end of the sixth FY following the FY of collection. Kurt Svendsen, the
County’s Assistant Budget Officer, who had been employed by the County
since September 1, 1997, was responsible for (a) the preparation of the
County’s Capital Budget portion of the Annual Budget and Appropriation
Ordinance, and (b) the monitoring of encumbrances and expenditures
recorded in connection with appropriations for capital projects. Because
Svendsen monitored expenditures and encumbrances recorded against
appropriations of capital projects on an almost daily basis, he was delegated
the responsibility for conducting the six FY test under § 17–1–210(b).
In the present case, the County prepared six FY charts for FYs 1997–
2002 in the same manner as the charts prepared in Halle for FYs 1988–2002,
but also included impact fee expenditures on temporary classrooms. The
charts indicated that all impact fees collected in FYs 1997–2002 were
expended or encumbered within six FYs following the FY of collection and,
thus, no impact fees collected in these FYs were available for refund.
8
Lastly, the circuit court found that, in applying the six FY test, the
County properly interpreted the term “impact fees encumbered” in § 17–11–
210(b) to mean:
(1) the amount of impact fees collected in a district account in a FY
which have not been expended on June 30 of the sixth FY following
the FY of collection, for which there is
(2) as of the same date, an encumbrance (purchase order) on an impact
fee eligible capital project in the district.
According to the circuit court, this definition is the only logical one
based on [generally accepted accounting principles (GAAP)], the applicable
provisions of the County Charter, and Annual Budget and Appropriation
Ordinances. Under GAAP, an appropriation states the legal authority to
spend or otherwise commit a government’s resources. See Stephen Gauthier,
Governmental Accounting Auditing and Financial Reporting at 305
(Government Finance Officers Ass’n 2001). Meanwhile, § 715(a) of the
County Charter provides that County officials and employees may not spend
or commit funds in excess of appropriations, and § 17–11–201(2) defines an
encumbrance as “a legal commitment for the expenditure of funds,
chargeable against the applicable appropriation for the expenditure, that is
documented by a contract or purchase order.” Thus, the court concluded that
when determining the amount of “impact fees encumbered,” the County was
correct in comparing the amount of unexpended impact fees in the district
account at the end of the relevant FY to the encumbrances entered in relation
to capital projects in the district that have been determined by the [Planning
and Zoning Office] to be eligible in the district.
As pertinent to the certiorari questions for which we granted the petition in this case,
the intermediate appellate court – in reliance on Waters Landing, Ltd. P’ship v.
Montgomery Cnty., 337 Md. 15, 650 A.2d 712 (1994)13 – held unfounded the Dabbs Class’
arguments that the County’s Impact Fee Ordinance is subject to the “rational nexus/rough
13
Waters Landing, Ltd. P’ship v. Montgomery Cnty., 337 Md. 15, 40, 650 A.2d 712,
724 (1994), held that the rough proportionality test did not apply to a “development impact
tax [imposed] by legislative enactment, not by adjudication.”
9
proportionality test” of Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994), and
Nollan v. California Coastal Comm’n, 483 U.S. 825, 837, 107 S. Ct. 3141 (1987).14
The intermediate appellate court held, moreover, that Bill No. 27-07 had legitimate
retrospective applicability. The court, although professing not to be bound by the law of
the case doctrine,15 explained it was unable to reach a different conclusion in this regard
than that reached in its 2008, 2011, and 2013 Halle opinions and this Court’s 2009 Halle
opinion. Specifically, given the close identity between the Halle Class’ assertions and
many of those advanced in the Dabbs Class action, the court “fail[ed] to see how [it could]
reach a different conclusion.” Dabbs, 232 Md. App. at 336, 157 A.3d at 394.
The court held valid also the prospective application of Bill No. 71-08, reasoning
that “the repeal of a statute creating a right purely of statutory origin, such as [the right to
a refund via] § 17–11–210, wipes out the right unless [it] is vested.” Dabbs, 232 Md. App.
14
Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141 (1987), and
Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994), held that “a unit of
government may not condition the approval of a land-use permit on the owner’s
relinquishment of a portion of his property unless there is a ‘nexus’ and ‘rough
proportionality’ between the government’s demand and the effects of the proposed land
use.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 133 S. Ct. 2586,
2591 (2013).
15
The law of the case doctrine operates to bar litigants from raising arguments on
questions that have been decided previously or could have been decided in that case. See
Reier v. State Dept. of Assessments & Taxation, 397 Md. 2, 20–22, 915 A.2d 970, 981–82
(2007). The law of the case doctrine is rooted in appellate framework, and its purpose is to
prevent piecemeal litigation, Reier v. State Dept. of Assessments & Taxation, 397 Md. 2,
21, 915 A.2d 970, 981 (2007), and without it “any party to a suit could institute as many
successive appeals as the fiction of his imagination could produce new reasons to assign
as to why his side of the case should prevail, and the litigation would never terminate.” Id.
(quoting Fid.-Baltimore Nat. Bank & Tr. Co. v. John Hancock Mut. Life Ins. Co., 217 Md.
367, 372, 142 A.2d 796, 798 (1958)).
10
at 341, 157 A.3d at 397. In so holding, the court rejected the Dabbs Class’ argument that
Bill No. 71-08 impaired their contractual and legal relationship with the County, also
violating the rough proportionality/rational nexus doctrine. Id.
Finally, the court held valid also Bill No. 96-01, “which, effective February 3, 2002,
authorized the County to use impact fees for temporary classroom structures provided they
expanded the capacity of the schools to serve new development.” Dabbs, 232 Md. App. at
338, 157 A.3d at 395. The court found that neither the rational nexus doctrine nor the
takings clause applied to Bill No. 96-01. Id. The court noted further that “[t]he County’s
definition of [school] capacity is consistent with the enabling law for impact fees (1986
Md. Laws, ch. 350, § 1, codified at § 17–11–214), and it is the County, not the State [Board
of Education], that determines the scope of its Impact Fee Ordinance.” Id.
On 31 July 2017, we granted the Dabbs Class’ certiorari petition, Dabbs, et al., v.
Anne Arundel County, 454 Md. 677, 165 A.3d 473 (2017), to consider only the following
questions:
I. Did the lower courts err in determining that “. . . the rough proportionality
test [or the rational nexus test] has no application to development impact fees
. . . where monetary exactions are imposed,” in contravention of Howard
County v. JJM, 301 Md. 256, 482 A.2d 908 (1984)?
II. Did the lower courts err in permitting the retroactive application of
legislation and not finding a taking under Article III, section 40 of the
Maryland Constitution?
Standard of Review
Maryland Code (1973, 2006 Repl. Vol.), § 3–409(a) of the Courts and Judicial
Proceedings Article provides that a court “may grant a declaratory judgment or decree in a
11
civil case, if it will serve to terminate the uncertainty or controversy giving rise to the
proceeding.” We have made clear that the decision to issue a declaratory judgment is
within the sound discretion of the trial court. Sprenger v. Pub. Serv. Comm’n of Maryland,
400 Md. 1, 20, 926 A.2d 238, 249 (2007). Such discretionary matters are “much better
decided by the trial judges than by appellate courts, and the decisions of such judges should
only be disturbed where it is apparent that some serious error or abuse of discretion or
autocratic action has occurred.” Northwestern Nat’l Ins. Co. v. Samuel R. Rosoff, Ltd., 195
Md. 421, 436, 73 A.2d 461, 467 (1950). An abuse of discretion
occurs where no reasonable person would take the view adopted by the [trial]
court, or when the court acts “without reference to any guiding rules or
principles. We will find an abuse of discretion when the ruling is clearly
against the logic and effect of facts and inferences before the court, when the
decision is clearly untenable, unfairly depriving a litigant of a substantial
right and denying a just result, when the ruling is violative of fact and logic,
or when it constitutes an “untenable judicial act that defies reason and works
an injustice.
Powell v. Breslin, 430 Md. 52, 62, 59 A.3d 531, 537 (2013) (internal citations and quotation
marks omitted).
Analysis
I. Nollan and Dolan - Impact Fees & the Rough Proportionality/Rational
Nexus Test.
The Dabbs Class argues that the intermediate appellate court erred in concluding
that the rough proportionality test/rational nexus test of Nollan and Dolan has no
application to the present case.16 As this argument goes, the County must “demonstrate
The Dabbs Class argues sweepingly that Nollan and Dolan apply to the County’s
16
Impact Fee Ordinance, impact fee expenditures, and ineligible impact fee expenditures.
12
that its expenditure of impact fees was attributable reasonably to new development and
each such expenditure reasonably benefitted ‘new development’ and/or individual ‘against
whom the fee was charged.’”
The County responds, consistent with its position asserted in Halle and the lower
courts in Dabbs, that, in Waters Landing, 337 Md. at 40-41, 650 A.2d at 724, we held that
the individualized determination of rough proportionality required by Dolan is not
applicable to development impact fees or taxes that are imposed legislatively and set on a
general basis across a jurisdiction or district.
At the outset, it must be remembered that the Takings Clause of the Fifth
Amendment and Article III, § 40B of the Maryland Constitution do not prohibit the
government from taking property for public use; rather, it requires the government to pay
“just compensation” for any property it takes. U.S. Const. amend. V; MD Constitution,
Art. 3, § 40. For “just compensation” to be paid, however, an actual taking of property
must occur. The Nollan and Dolan line of cases was expanded recently to apply to a narrow
set of monetary exactions, i.e., a condition of the payment of money for favorable
governmental action on a required permit application for a specific parcel of land. See
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 133 S. Ct. 2586, 2591
(2013).
In Koontz, the Florida legislature enacted a regulation making it illegal for anyone
to “‘dredge or fill in, on, or over surface waters’” without a Wetlands Resource
Management (WRM) permit acquired from the St. Johns River Water Management District
(the District). Koontz, 570 U.S. at 601, 133 S. Ct. at 2592. Moreover, Florida enacted the
13
Water Resources Act, authorizing each district to regulate construction impacting
waterways in the state. Id. Under this regulation, “a landowner wishing to undertake such
construction must obtain from the relevant district a Management and Storage of Surface
Water (MSSW) permit, which may impose ‘such reasonable conditions’ on the permit as
are ‘necessary to assure’ that construction will ‘not be harmful to the water resources of
the district.’” Id.
Koontz proposed to develop the northern 3.7 acres of his 14.9 acre property, which
would affect local waterways. Id. He applied to the District for WRM and MSSW permits.
Id. The District reviewed Koontz’s permit applications and approved them upon his
agreement to either of two conditions:
the District proposed that [Koontz] reduce the size of his development to 1
acre and deed to the District a conservation easement on the remaining 13.9
acres. To reduce the development area, the District suggested that [Koontz]
could eliminate the dry-bed pond from his proposal and instead install a more
costly subsurface storm water management system beneath the building site.
The District also suggested that [Koontz] install retaining walls rather than
gradually sloping the land from the building site down to the elevation of the
rest of his property to the south. In the alternative, the District told [Koontz]
that he could proceed with the development as proposed, building on 3.7
acres and deeding a conservation easement to the government on the
remainder of the property, if he also agreed to hire contractors to make
improvements to District-owned land several miles away. Specifically,
[Koontz] could pay to replace culverts on one parcel or fill in ditches on
another.
Koontz, 570 U.S. at 601–02, 133 S. Ct. at 2592–93. Koontz argued that the District’s
mitigation demands were excessive, and that he was entitled to money damages if the state
agency’s actions constituted a taking without just compensation. Koontz, 570 U.S. at 602,
133 S. Ct. at 2593. The Supreme Court held that a monetary exaction for mitigation as a
14
condition for issuing a land-use permit to enable development of an individual property
must meet the nexus and rough proportionality requirements of Nollan and Dolan. Koontz,
570 U.S. at 612, 133 S. Ct. at 2599. The Supreme Court stressed that the requirements of
Nollan and Dolan were the same for monetary exactions as for when “the government
approves a permit on the condition that the applicant turn over property or denies a permit
because the applicant refuses to do so.” Koontz, 570 U.S. at 606, 133 S. Ct. at 2595
(emphasis in original).
In Koontz, the Supreme Court explained that its holding was distinguished from
Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131 (1998) (plurality opinion),17
explaining that “[u]nlike the financial obligation in Eastern Enterprises, the demand for
money at issue here ‘[operated] upon . . . an identified property interest’ by directing the
owner of a particular piece of property to make a monetary payment.” Koontz, 570 U.S. at
613, 133 S. Ct. at 2599. Thus, the District’s proposed monetary exaction burdened
Koontz’s ownership and development of a specific parcel of land. Id. (emphasis added).
17
In Eastern Enterprises[] the United States retroactively imposed on a
former mining company an obligation to pay for the medical benefits of
retired miners and their families. A four-Justice plurality concluded that the
statute’s imposition of retroactive financial liability was so arbitrary that it
violated the Takings Clause. Although Justice Kennedy concurred in the
result on due process grounds, he joined four other Justices in dissent in
arguing that the Takings Clause does not apply to government-imposed
financial obligations that d[o] not operate upon or alter an identified property
interest. Relying on the concurrence and dissent in Eastern Enterprises,
respondent argues that a requirement that petitioner spend money improving
public lands could not give rise to a taking.
Koontz, 570 U.S. at 613, 133 S. Ct. at 2599 (internal quotation marks, citations, and
parenthetical omitted).
15
The Court elaborated further that Koontz resembled cases holding “that the government
must pay just compensation when it takes a lien—a right to receive money that is secured
by a particular piece of property.” Koontz, 570 U.S. at 613, 133 S. Ct. at 2599. In holding
that the proposed monetary exaction in Koontz was subject to Nollan and Dollan, the Court
emphasized that “[t]he fulcrum this case turns on [is] the direct link between the
government’s demand and a specific parcel of real property.” Koontz, 570 U.S. at 613, 133
S. Ct. at 2599 (emphasis added).
The Court affirmed that taxes and user fees, however, are not takings subject to
Nollan and Dolan, and assured that its holding did not affect the authority of governments
to “impose property taxes, user fees, and similar laws and regulations that may impose
financial burdens on property owners.” Koontz, 570 U.S. at 615, 133 S. Ct. at 2601.
The Dabbs Class’ surfeit of arguments relating to Koontz’s application to the
County’s development impact fees does not convince us that they have a sound
jurisprudential basis.18 Koontz did not hold that land-use regulations are generally subject
18
The Dabbs Class asserts that
this case is specifically directed at the restricted use of lawful collected
special funds, separated into trust accounts, and their restricted use [] to
ensure that the fees and all interest accruing to Special funds are designated
for improvements reasonably attributable to new development and are
expended to reasonably benefit the new development. [Additionally, the
Impact Fee Ordinance] restricts the use of these special funds stating,
development impact fees shall be used for capital improvements within the
development impact fee district from which they are collected, so as to
reasonably benefit the property against which the fees were charged.[Thus,]
it is beyond dispute that the County’s impact fee ordinance is a land use
permitting ordinance, as without payment in money or land, no permit will
issue to develop a particular property.
16
to a takings analysis under Nollan and Dolan; rather, it held that challenges to
governmental demands for money (except application fees) in connection with the permit
review process for a specific property are subject to nexus and rough proportionality
analysis. Koontz, 570 U.S. at 618-19, 133 S. Ct. at 2603. The Court went out of its way to
stress that it was not expanding Nollan and Dolan much beyond its narrow confines:
[Koontz’s] claim rests on the [] limited proposition that when the government
commands the relinquishment of funds linked to a specific, identifiable
property interest such as a bank account or parcel of real property, a per se
[takings] approach is the proper mode of analysis under the Court’s
precedent.
Koontz, 570 U.S. at 614, 133 S. Ct. at 2600 (citing Brown v. Legal Foundation of Wash.,
538 U.S. 216, 235, 123 S. Ct. 1406, 1419 (2003)) (emphasis added and internal quotation
marks omitted). Thus, that direct link lead the Court to conclude
that this case implicates the central concern of Nollan and Dolan: the risk
that the government may use its substantial power and discretion in land-use
permitting to pursue governmental ends that lack an essential nexus and
rough proportionality to the effects of the proposed new use of the specific
property at issue, thereby diminishing without justification the value of the
property.
Id. The exactions concept protects citizens against abuses of power by land-use officials
concerning proposed quasi-judicial or administrative action for permit or other
development approvals relative to an individual parcel of land. There is no analogy to the
Koontz scenario present here.19 The County’s Development Impact Fee Ordinance is
Simply making naked contentions such as these, without appropriate citation of
authorities or cogent legal analysis, is unconvincing.
19
Koontz’s opinion did not alter Enterprises v. Apfel, 524 U.S. 498, 540, 118 S. Ct.
2131, 2154 (1998) (Kennedy, J. concurring), where Justice Kennedy, in a plurality
concurrence, joined by four dissenters (Justices Stevens, Souter, Ginsberg and Breyer),
17
imposed broadly on all properties, within defined geographical districts, that may be
proposed for development. The legislation leaves no discretion in the imposition or the
calculation of the fee, i.e., the Impact Fee Ordinance demonstrates how the fees are to be
imposed, against whom, and how much. The Ordinance is aimed at
[a]ny person who improves real property and thereby causes an impact upon
public schools, transportation, or public safety facilities shall pay
development impact fees as provided in this subtitle [and] Any person who
subjects an existing use to a change of use or improvement that causes any
impact on public schools, transportation, or public safety facilities shall pay
a fee based on the net increase in impacts attributable to the change of use or
improvement.
§§ 17-11-203, 206. Unlike Koontz, the Ordinance here does not direct a property owner to
make a conditional monetary payment to obtain approval of an application for a permit of
any particular kind, nor does it impose the condition on a particularized or discretionary
basis. See Monterey v. Del Monte Dunes at Monterey, Ltd. 526 U.S. 687, 702, 119 S. Ct.
1624, 1635 (1999) (“[W]e have not extended [until the narrow holding in Koontz] the
rough-proportionality test of Dolan beyond the special context of exactions—land-use
held that the Coal Act, which imposed a financial burden on mine owners without regard
to a specific parcel of property, did
not operate upon or alter an identified property interest, and it is not
applicable to or measured by a property interest. The Coal Act does not
appropriate, transfer, or encumber an estate in land (e.g., a lien on a particular
piece of property), a valuable interest in an intangible (e.g., intellectual
property), or even a bank account or accrued interest.
Until today, however, one constant limitation has been that in all of the cases
where the regulatory taking analysis has been employed, a specific property
right or interest has been at stake.
18
decisions conditioning approval of development in the dedication of property to public
use.).
The imposition of an impact fee under the Ordinance here, as the dissent in Koontz
and the plurality dissent in Eastern Enterprises put it, applied on a generalized district-
wide basis, making no determination as to whether an actual permit will issue to a payor
individual with a property interest. See Koontz, 570 U.S. at 628, 133 S. Ct. at 2608 (Kagan,
J. dissent) (“The majority might, for example, approve the rule, adopted in several States,
that Nollan and Dolan apply only to permitting fees that are imposed ad hoc, and not to
fees that are generally applicable”); Eastern Enterprises, 524 U.S. at 540, 118 S. Ct. at
2154 (Kennedy, J., concurring in the judgment and dissenting in part) (“[The Act] does not
operate upon or alter an identified property interest, and it is not applicable to or measured
by a property interest.”). The legislatively-imposed development impact fee is
predetermined, based on a specific monetary schedule, and applies to any person wishing
to develop property in the district. See §§ 17-11-101, 203, 206, 209(d). This case falls
squarely within Dolan’s recognition that impact fees imposed on a generally applicable
basis are not subject to a rough proportionality or nexus analysis. Dolan, 512 U.S. at 385,
114 S. Ct. at 2316 (“the city made an adjudicative decision to condition petitioner’s
application for a building permit on an individual parcel,” rather than involving an
“essentially legislative determinations classifying entire areas of the city.”).
The Dabbs Class obscures its argument further by looking for support in Howard
County v. JJM, Inc., 301 Md. 256, 281, 482 A.2d 908, 921 (1984), where we held “that in
order to exact from a developer a setting aside of land for highway purposes there must be
19
a reasonable nexus between the exaction and the proposed subdivision [of the parcel to be
developed].” Although we utilized the rational nexus test there (as it was formulated circa
1984), we are not convinced that its application is apt in the present proceedings. In fact,
JJM cuts against the Dabbs Class due to its explanation of the application of Maryland’s
taking jurisprudence. See id. (a statute requiring developers to reserve a right-of-way for a
proposed state road was an unconstitutional taking of developer’s property without just
compensation.). JJM’s application of the rational nexus test in a traditional taking analysis
does not support the Dabbs Class’ contention that the rational nexus text extends (or should
extend) to the context of development impact fees.
The Dabbs Class maintains that, if we find inapplicable Nollan and Dolan to the
present impact fee ordinance, we would be walking against the wind of the majority of our
sister states that have held to the contrary. The Dabbs Class offers-up in this regard a single
case from the Ohio Supreme Court, Home Builders Ass'n of Dayton & the Miami Valley v.
Beavercreek, 89 Ohio St. 3d 121, 128, 729 N.E.2d 349, 356 (Ohio 2000), holding impact
fee expenditures, or the imposition of an impact fee ordinance, subject to Nollan and Dolan.
This is waver-thin support for the Dabbs Class’ contention that the rough
proportionality/rational nexus test is the “most widely used standard for examining
development [i]mpact fees or [] monetary exactions.”20 In fact, reality suggests the
20
The Dabbs Class makes repeated assertions that the majority of courts in this
country apply Nollan and Dolan to impact fees or monetary exactions. Yet, the Dabbs
Class offers little to no legal basis for this assertions. For example, it asserts that:
[the Dabbs Class] will demonstrate and review the fact that sister
states have, to [the Dabbs Class]’s knowledge, all held Nollan and Dolan are
20
embodied in the Rational/Dual Rational Nexus Test in deciding a challenge
to impact fee expenditures[;]
The rational nexus test or doctrine is the most widely used standard
for examining development Impact fees or development monetary
exactions[;]
The Ohio Supreme Court and those of all sister states have each
recognized, as does §§ 208, 209 and 210 of the County’s Impact Fee
Ordnance, that Nolan and Dolan’s rough proportionality test is tantamount
to the rational nexus test uniformly embraced by all Courts of Appeal[; and,]
Respectfully, the Court [of Special Appeals] below, appears to have
accepted at face value a mistaken premise argued by the County that was
rejected not only by U.S. Supreme Court, but all Courts of Appeal who have
held that, even prior to Koontz, the rational nexus test/dual rational nexus test
was applied to impact fee exactions.
21
opposite conclusion.21 We re-affirm our holding in Waters Landing,22 and, thus, conclude
that Koontz is inapplicable to the Impact Fee Ordinance in this case. Impact fees imposed
21
See California Bldg. Indus. Assn. v. City of San Jose, 351 P.3d 974, 991 n.11 (Cal.
2015) (a post-Koontz case explaining that, despite Koontz, it agrees with its prior cases
holding “that legislatively prescribed monetary fees [of general application] that are
imposed as a condition of development are not subject to the Nollan/Dolan test.”); City of
Olympia v. Drebick, 126 P.3d 802, 808 (Wash. 2006) (“the dissent [fails to] mention that
neither the United States Supreme Court nor this court has determined that the tests applied
in Nollan and Dolan to evaluate land exactions must be extended to the consideration of
fees imposed to mitigate the direct impacts of a new development, much less to the
consideration of more general growth impact fees imposed pursuant to statutorily
authorized local ordinances.”); Rogers Mach., Inc. v. Washington County, 45 P.3d 966, 978
(Or. Ct. App. 2002) (concluding “that the [Traffic Impact Fee] is [a applicable generally
development fee imposed on a broad range of specific, legislatively determined
subcategories of property], and [the court was] persuaded by the reasoning of other state
courts, representing a nearly unanimous view, that Dolan’s heightened scrutiny test does
not extend to development fees of that kind.”); Krupp v. Breckenridge Sanitation Dist., 19
P.3d 687, 698 (Colo. 2001) (“the [Plant Investment Fee] does not fall into the narrow
category of charges that are subject to the Nollan/Dolan takings analysis.”); Home Builders
Association of Central Arizona v. City of Scottsdale, 187 Ariz. 479, (1997) (explaining that
Dolan is inapplicable because the case before it involved a generally applicable legislative
decision by the city); Ehrlich v. City of Culver, 911 P.2d 429, 446-47, 450-52 (Cal. 1996)
(“it is not at all clear that the rationale (and the heightened standard of scrutiny) of Nollan
and Dolan applies to cases in which the exaction takes the form of a generally applicable
development fee or assessment—cases in which the courts have deferred to legislative and
political processes to formulate ‘public program[s] adjusting the benefits and burdens of
economic life to promote the common good.’” (quoting Penn Cent. Transp. Co. v. New
York City, 438 U.S. 104, 124, 98 S. Ct. 2646 (1978))); McCarthy v. City of Leawood, 257
Kan. 566 (Kan. 1995) (“There is nothing in the opinion, however, which would apply the
same conclusion to Leawood’s conditioning certain land uses on payment of a fee. The
landowners cite no authority for the critical leap which must be made from a fee to a taking
of property.”).
22
Waters Landing held that a
development impact tax is not a special benefit assessment because it is not
a tax imposed by law on real property; rather, it is an excise tax imposed
when an owner seeks to develop its land. . . . We think Dolan, which
concerned the Fifth Amendment Takings Clause, is irrelevant to the issue of
special benefit assessments and generally inapplicable to this case. [Dolan],
specifically relied on two distinguishing characteristics that are absent in the
instant case. First, the Court mentioned that instead of making “legislative
22
by legislation applicable on an area-wide basis are not subject to Nollan and Dolan
scrutiny.
II. But, Did the Dabbs Class’ Rights to Refunds Vest Before the County
Extinguished the Refund Process?
a. Bill No. 27-07.
The Dabbs Class argues (as best we are able to perceive) that: 1) “[r]etroactive Bill
[No.] 27-07 cannot be applied to capital projects that were completed and closed long
before its enactment as an emergency ordinance on [23 May 2007];” 2) “Bill [No.] 27-07
determinations classifying entire areas of the city,” the City of Tigard “made
an adjudicative decision to condition [the landowner’s] application for a
building permit on an individual parcel.” [Dolan, 512 U.S. at 385, 114 S. Ct.
at 2316]. Second, the Court noted that “the conditions imposed were not
simply a limitation on the use [the landowner] might make of her own parcel,
but a requirement that she deed portions of the property to the city.” Id. In
contrast, Montgomery County imposed the development impact tax by
legislative enactment, not by adjudication, and furthermore, the tax does not
require landowners to deed portions of their property to the County.
Furthermore, Dolan is inapplicable because it concerns the Takings Clause,
which is not implicated in the case before us. To the extent that this tax is a
regulation on the development of land, it is not a regulation that “‘goes too
far’” so as to be “‘recognized as a taking.’” Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, [1015], 112 S. Ct. 2886, 2893[] (1992) (quoting
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160 []
(1922)). A regulation does not “go too far” unless it either “compel[s] the
property owner to suffer a physical ‘invasion’ of his property,” or “denies all
economically beneficial or productive use of land.” [Pennsylvania Coal, 505
U.S.] at [1015], 112 S. Ct. at 2893[]; see also Pitsenberger v. Pitsenberger,
287 Md. 20, 34, 410 A.2d 1052[, 1060] (1980) (“To constitute a taking in the
constitutional sense, so that the State must pay compensation, the state action
must deprive the owner of all beneficial use of the property.”). . . . Petitioners
have not claimed, nor could they claim, that the impact tax has either of these
two regulatory effects. Therefore, the Takings Clause being inapplicable,
Dolan does not affect our decision.
337 Md. at 39-41, 650 A.2d at 724.
23
was not an emergency ordinance as alleged;” 3) “Bill [No.] 27-07 interfered with the
judicial process;” and, 4) “Bill [No.] 27-07 affects substantive rights.”23 Restated, the
Dabbs Class argues that the County counted improperly impact fees encumbered during
the 1997-2003 FYs, and cannot remedy that error now through an unlawful retrospective
application of Bill No. 27-07 in violation of their vested rights to obtain impact fee refunds.
The County responds that this Court, the Court of Special Appeals, and numerous
adjudications by the circuit court rejected the Dabbs Class’ argument regarding the
County’s “ineligible expenditures” and the retrospective nature of Bill No. 27-07. The
Country avers that it has been decided, profusely, that “Bill No. 27-07, which did nothing
more than codify the County’s existing [administrative] procedures for counting impact fee
expenditures and encumbrances [] did not retroactively change County policy or purport
to take away an accrued cause of action for refunds.”
We subscribe to the following from the circuit court’s 14 January 2016
memorandum opinion regarding the Dabbs Class’ argument regarding the retrospective
effect of Bill No. 27-07:
23
The Dabbs Class relies, in support of this contention, on a Halle circuit court
holding where a judge purportedly “found in his approved findings of fact and conclusions
of law that ‘Bill 27-07 [and its] retroactive effect . . . provided a new definition for
encumbrance of impact fees which was not part of the prior ordinance. It sought to
eliminate the prior requirement for timely recording in capital project funds of unused
impact fees encumbered. If applied retroactively, this provision would eliminate the right
of many impact fee payers to refunds, and, thus, it presents a substantive and not merely a
procedural change of the law.’” No citation of specific origin follows this quotation , which
might aid us in appreciating its lineage. In any event, these findings run counter to the
intermediate appellate court’s 2017, 2013, and 2008 Halle opinions and this Court’s 2009
Halle opinion.
24
In pressing their retroactivity argument about encumbrances, [the Dabbs
Class] seem to cling to an interpretation of the impact fee ordinance and its
amendments that was made by their predecessor plaintiffs in the Halle
litigation which counsel in this case[24] made with great vigor when
representing those plaintiffs. That argument was soundly rejected in great
detail in an unreported opinion by Judge Lawrence F Rodowsky. [] Halle [],
[] No. 2552, Sept. Term 2006 [at] 15 - 20.[25] Since this litigation has
different parties and a different period of time for the collection of the impact
fees, it is technically not a law of the case holding applicable to this case nor
as an unreported opinion it is not a citable holding that in binds this Court in
this case.
This Court’s view is however identical to that of Judge Rodowsky’s and there
is no need in this document to rehash it or restate it except to say that the
ordinance since its inception in 1987 has contained the terms “expended or
encumbered” which were not otherwise defined in the Ordinance and that the
way the County has interpreted these terms since the inception were the
commonly accepted meaning of these terms under GAAP. The fact that the
County eventually codified and refined its practices in Bill No. 27-07 does
not mean that [the Dabbs class] are entitled to their own peculiar methods
which would enhance the possibility of refunds.
We see no value in hashing anew the Dabbs Class’ warmed-over and repetitious
arguments. As was explained in great detail in the Halle chronicle,26 the intermediate
24
Lead counsel for the Dabbs Class here was also co-counsel for the Halle Class.
25
Judge Rodowsky found it unnecessary to determine “whether the express
retroactivity of [Bill No. 27-07] is valid” because the definition of “encumbrance” used in
present § 17-11-201(2) was the “pre-existing, generally accepted meaning of the term . . .”
and properly adherent to GAAP. Halle, No. 2552, Sept. Term, 2006 at 1-8. He, in
determining that the circuit court erred in not considering encumbered impact fees in its
impact fee refund analysis, held that the circuit court is to determine “the amount of impact
fees that had been encumbered, but unexpended, within six years following their
collection.” Id. at 20.
26
Halle Development, Inc. et al v. Anne Arundel County, No. 1299, Sept. Term,
2016, at 16 (Md. Ct. Spec. App. Nov. 22, 2017) (“To the extent that appellants attempt to
reargue that the circuit court retroactively applied Bill No. 27-07 because of our use of its
definition of ‘encumbrance’ in our 2008 opinion, we have already explained, in both our
2008 and 2013 opinions that” this case is not about vesting and the owners’ rights in any
specific refund award are not vested); Halle Development, lnc. et al. v. Anne Arundel
County, No. 0956, Sept. Term 2011 at 11-14 (Md. Ct. Spec. App. 29 July 2013) (“[T]he
25
appellate court (in four separate opinions) and this Court ruled that the retrospective
application of essentially Bill No. 27-07 has no applicability to the Halle litigation. We
made clear that “[a] change in procedure or in a remedy, whether administrative or judicial,
which does not modify substantive rights, is ordinarily applied to pending matters as well
as to all remedial actions taking place after the effective date of the change.” State Admin.
Bd. of Election Laws v. Bd. of Sup’rs of Elections of Baltimore City, 342 Md. 586, 601,
679 A.2d 96, 103 (1996) (emphasis added).
We state, with hopeful finality, that Bill No. 27-07 does not work a substantive
change in policy interfering with any vested rights of the Dabbs Class. As record evidence
indicates, Bill No. 27-07 codified the County’s pre-existing (though unwritten until Bill
No. 27-07) administrative procedures for counting impact fee encumbrances and did not
change County policy. Cf. Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604, 643,
805 A.2d 1061, 1084 (2002). Bill No. 27-07 (effective 22 May 2007) defined, among other
law of the case doctrine precludes re-litigation of these issues.” “The Court of Appeals’
conclusion that Owners have no rights vested in impact fee refunds further buttresses our
holding that the retroactivity of the Ordinance is not implicated here. Accordingly, we
hold that Owners’ arguments regarding the retroactivity provision of Bill 27-07 are not
relevant to this case”); Order (at 6), Judge Philip Caroom, Halle Development, lnc. et al.
v. Anne Arundel County, Circuit Court for Anne Arundel County, Case No. C-01-69418
(25 March 2011) (the circuit court found that we decisively ruled that, “because impact fee
payer’s rights are not vested, the County [] properly could provide for rules providing for
retroactive accounting entries as to encumbrances. The law of the case doctrine . . . [binds
the court].”); Halle, 408 Md. at 560, n.7, 971 A.2d at 226, n.7 (“This case is not about
vesting.” “Accordingly, the determination by the Circuit Court as to the amount of the
refund may be modified on remand, and the Owners’ rights in any specific refund award
are not vested.”); Halle,[] No. 2552, Sept. Term 2006, [at] 15 n.15 (“Because we consider
the definition in present §17-11-201(2) simply to state the preexisting, generally accepted
meaning of the term, ‘encumbrance,’ in the context, it is unnecessary for us to determine
whether the express retroactivity provision of the amended ordinance is valid.”).
26
things, the word “encumbrance” as now used in §17-11-201(2). The intermediate appellate
court and the circuit court in Halle, and in the present litigation, pronounced that the
definition utilized before the enactment of Bill No. 27-07 conformed to generally accepted
accounting principles (GAAP).27 Moreover, the intermediate appellate court declared in
its 2008 opinion, the 2006 circuit court’s reference to the County’s procedure for showing
an encumbrance (conforming to GAAP, but notwithstanding the 2006 circuit court’s
holding that the County shall not consider encumbrances in the budget process) for
deploying impact fees, to be “a reasonable one.” Halle, No. 2552, Sept. Term, 2006 at 15,
20 (overturning, nevertheless, the 2006 circuit court’s decision and remanding “on the
encumbrance issue for a determination of the amount of impact fees that had been
unencumbered, but unexpended, within six years following their collection.”). Suffice it
to say, we agree.
In our 2009 Halle opinion, we contemplated that the Halle Class had no vested
rights in impact fee refunds via the method of calculation codified in Bill No. 27-07:
This case is not about vesting. It is about the [County’s Planning and Zoning
Officer’s] [(]PZO’s[)] lack of authority under the impact fee ordinance to go
back and made administrative decisions it failed to effectively execute when
permitted. Indeed, the Owners may not be vested in their right to a refund.
Whether they are entitled to a refund and in what amount will be determined
by the Circuit Court on remand. The full refund amount determined by the
Circuit Court may be reduced if the County is able to prove that it, in fact,
encumbered the impact fee funds within six years.
* * *
27
Under GAAP, an encumbrance is a legal commitment, such as a purchase order,
entered in relation to an appropriation.
27
The intermediate appellate court held in its May 7, 2008 unreported opinion
that the Circuit Court, on remand, should re[-]determine the amount that the
County had timely encumbered for eligible capital improvements, and in
doing so, “should consider not only encumbrances for transportation
projects, but for school projects as well when applying the six-year test.” We
did not grant certiorari as to this issue, and thus the decision of the
[I]ntermediate appellate court is law in this case. Accordingly, the
determination by the Circuit Court as to the amount of the refund may be
modified on remand, and the Owners’ rights in any specific refund award
are not vested.
Halle, 408 Md. at 559, n.7, 971 A.2d at 226, n.7 (emphasis added). We are perplexed that
we, the intermediate appellate court, and the circuit court have been called upon continually
to beat, with a judicial gavel, the proverbial dead horse on this point. Although this case
deals with impact fees collected from FYs 1997-2003, as opposed to the FYs implicated in
Halle (1988-1996), given the closely intertwined and similar nature of the arguments and
allegations advanced in the two litigation streams, we fail to see how (or any reason why)
we should reach a different conclusion than that reached in Halle. Bill No. 27-07 did not
interfere with any vested rights of the Dabbs Class. We decline to address any remaining
arguments the Dabbs Class asserted relating to Bill No. 27-07.
b. Bill No. 71-08.
Finally, we confront a legitimately novel question. Neither we, nor any Halle court,
have had the prior opportunity to consider whether Bill No. 71-08, i.e., repealing
prospectively on 1 January 2009, the impact fee refund provision of § 17-11-210, interfered
with any rights vested in a Dabbs Class member with regard to impact fee refunds. The
Dabbs Class argues “[t]his ordinance is yet another clear abuse of government power that
attempts to dictate the outcome of this litigation by a rear[]view mirror exclusion of FYs
28
2002 - 2008 collected fees, making a ripeness argument.” We understand this to mean that
the Dabbs Class contends that a prospective application of the repeal means that the repeal
applies only to impact fees collected after the effective date of Bill No. 71-08 (1 January
2009).
The County, on the other hand, contends that Bill No. 71-08 “eliminated [the Dabbs
Class’] right to recover available refunds of fees collected after FY 2002, and did not
interfere with vested rights of [the Dabbs Class].” Thus, the prospective repeal of a
substantive right to assert a claim grounded within a statute bars any unvested claim before
the effective date of the repeal of the availability of refunds effected by the statute.
Statutes are given presumptively purely prospective effect. Grasslands Plantation,
Inc. v. Frizz-King Enterprises, LLC, 410 Md. 191, 226, 978 A.2d 622, 642 (2009)
(explaining that “[t]he basic reason we presumptively apply new legislation prospectively
is our concern that a retrospective application may interfere with substantive rights.”);
Traore v. State, 290 Md. 585, 593, 431 A.2d 96, 100 (1981). Dal Maso v. Bd. of County
Com’rs of Prince George’s County, 182 Md. 200, 206–07, 34 A.2d 464, 467 (1943),
explained that
[the] Legislature can amend, qualify, or repeal any of its laws, affecting all
persons and property which have not acquired rights vested under existing
law; all of the courts agree on this. It has been frequently held that this rule
applies also to boards and agencies to which legislative power has been
delegated and that they may undo, consider and reconsider their action upon
measures before them. It is a general rule, subject to certain qualifications
hereinafter noted, that a Municipal Corporation has the right to reconsider its
actions and ordinances, and adopt a measure or ordinance that has previously
been defeated or rescind one that has been previously adopted before the
rights of third parties have vested. Moreover, in the absence of statute or a
rule to the contrary, the Council may reconsider, adopt or rescind an
29
ordinance at a meeting subsequent to that at which it was defeated or adopted,
at least where conditions have not changed and no vested rights have
intervened.
(internal citations and quotation marks omitted); see also Waterman Family Ltd. P’ship v.
Boomer, 456 Md. 330, 344, 173 A.3d 1069, 1077 (2017). Indeed, “[a]bsent a contrary
intent made manifest by the enacting authority, any change made by statute or court rule
affecting a remedy only (and consequently not impinging on substantive rights) controls
all court actions whether accrued, pending or future.” Aviles v. Eshelman Elec. Corp., 281
Md. 529, 533, 379 A.2d 1227, 1229 (1977); see also State Admin. Bd. of Election Laws,
342 Md. at 601, 679 A.2d at 103; Grandison v. State, 341 Md. 175, 257, 670 A.2d 398,
437 (1995) (“Despite the presumption of prospectivity, a statute affecting a change in
procedure only, and not in substantive rights, ordinarily applies to all actions whether
accrued, pending or future, unless a contrary intention is expressed.”).
Rights, of a purely statutory origin, untraceable to the common law, “are wiped out
when the statutory provision creating them is repealed, regardless of the time of their
accrual, unless the rights concerned are vested.” Selig v. State Highway Admin., 383 Md.
655, 676, 861 A.2d 710, 723 (2004) (quoting Beachwood Coal Co. v. Lucas, 215 Md. 248,
256, 137 A.2d 680, 684 (1958)). Thus, once the repealed sections of a statue fade into the
mist, any claim to relief traced to a repealed section disappears as well. McComas v.
Criminal Injuries Comp. Bd., 88 Md. App. 143, 149, 594 A.2d 583, 586 (1991) (quoting
Aviles, 281 Md. at 535, 379 A.2d at 1231) (“This rule of statutory construction is as
applicable to an amendment that limits a purely statutory right as it is to one that completely
repeals a right created by statute.”).
30
A legislative body is free to react proactively to changing circumstances and repeal
or supplement acts or ordinances it finds inadequate or inappropriate to address present-
day circumstances. See Waterman Family Ltd. P’ship, 456 Md. at 344-45, 173 A.3d at
1078 (“Were it otherwise, legislative action would be frozen in time with local officials
unable to react to changed circumstances or to pursue policies presently preferred over
those previously adopted. The general power of a governing body to rescind a prior law
or policy on a matter subject to its jurisdiction may be constrained in particular
circumstances, as when a party has acquired a vested right in the governing body’s prior
policy decision. Absent such circumstances, the governing body retains the option of
changing its mind.”).
The right to rescind a statute, however, is not absolute. “If rights were to vest during
the interim between the enactment of a resolution and its rescission, the County would lose
its ability to rescind, at least to the extent that rights had vested.” Boomer v. Waterman
Family Ltd. P’ship, 232 Md. App. 1, 12, 155 A.3d 901, 908 (2017) (citing Dal Maso, 182
Md. at 206-07, 34 A.2d at 467) aff’d, 456 Md. 330, 173 A.3d 1069 (2017). We have
explained “vested” to mean an accrued right or one that has been completed or
“consummated so precocious” it becomes impossible to be eradicated statutorily. See, e.g.,
Langston v. Riffe, 359 Md. 396, 420, 754 A.2d 389, 401 (2000). In other words, to be
vested, a right must be more than a mere expectation based on the anticipation of the
continuance of an existing law; it must have become a title, legal or equitable, to the present
or future enforcement of a demand. McComas, 88 Md. App. at 150, 594 A.2d at 586.
(quotation marks and brackets omitted).
31
We agree with the theoretical premise in the present proceeding that “claims for
refunds of impact fees collected in FYs 1997–2002, which were not expended or
encumbered within six [fiscal years] following the year of collection, were ripe prior to the
repeal and may be pursued in this case,” if any exist. Dabbs, 232 Md. App. at 342 n.8, 157
A.3d at 397 n.8. That premise is of no assistance to the Dabbs Class because the County’s
evidence (accepted as credible and convincing by the circuit court) demonstrated “that the
impact fees collected in [FY 1997-2002] were in fact reasonably expended or encumbered
during the following six-year period such that no refunds are available to the plaintiffs or
the class they represent.”
The Dabbs Class contends that all fees collected between FY 1997-2003 were ripe
for refund at the time the trial in this matter took place in 2010-2011. We disagree; rather,
refunds for impact fees collected and unexpended or unencumbered through 2003 were not
ripe for collection.
McComas v. Criminal Injuries Compensation Board is convincing on this question.
In McComas, the court considered whether the “amendment to Md. Ann. Code art. 26A
(1987) [(of the Criminal Injuries Compensation Act]), are applicable to [McComas’] claim
before the Criminal Injuries Compensation Board (“Board”) which was filed before the
effective date of the amendments.”28 McComas, 88 Md. App. at 145, 594 A.2d at 583-84.
McComas, who filed a criminal injuries claim29 and was heard by the Board before the
28
The only amendment at issue in McComas that is relevant to our present analysis
limited the amount of compensation the Board may award a claimant.
29
Before the amendment took effect, McComas “had been awarded compensation
in the amount of $666.80 and had a pending claim for additional benefits.” The pending
32
amendments took effect, averred that the amendments should not be applied to his claim
retrospectively because they affected his substantive rights. McComas, 88 Md. App. at
146–47, 594 A.2d at 584. The court began its analysis by noting the general rule that rights
of pure statutory origin, “unless vested, are subject to repeal or amendment at the will of
the legislature.” McComas, 88 Md. App. at 147, 594 A.2d at 584-85. Moreover, the court
explained that any claimant seeking compensation under the Criminal Injuries
Compensation Act does not have a vested right to compensation from the State until the
Board finds the claimant is eligible for such an award. McComas, 88 Md. App. at 148, 594
A.2d at 585 (emphasis added).
The court amplified, in In Re Samuel M., 293 Md. 83, 95, 441 A.2d 1072, 1078
(1982), that:
Treatment as a juvenile is not an inherent right but one granted
by the state legislature [;] therefore the legislature may restrict
or qualify that right as it sees fit, as long as no arbitrary or
discriminatory classification is involved.
This is also supported by . . . Beechwood Coal Co. [v. Lucas, 215 Md. 248,
255–56, 137 A.2d 680, 684 (1958),] wherein [we] stated:
Our views are reinforced by the special rule of statutory
construction that rights[,] which are of purely statutory origin
and have no basis at common law are wiped out when the
statutory provision creating them is repealed, regardless of the
time of their accrual, unless the rights concerned are vested.
claim for additional benefits awarded him $45,000 – the amended statutory maximum.
McComas v. Criminal Injuries Comp. Bd., 88 Md. App. 143, 146, 594 A.2d 583, 584
(1991).
33
The court held ultimately that McComas “did not have a vested, legally enforceable right
to compensation beyond $666.80 [and McComas’] award of compensation made after the
amendments were enacted was correctly limited to $45,000.” McComas, 88 Md. App. at
151, 594 A.2d at 586
We applied this principle of statutory construction in Aviles (in the context of a
repeal of a mechanics’ lien statute) that a mechanic’s lien, a creature purely of statue, is
“obtainable only if the requirements of the statute are complied with.” Aviles, 281 Md. at
536, 379 A.2d at 1231 (quoting Freeform Pools v. Strawbridge, 228 Md. 297, 301, 179
A.2d 683, 685 (1962)). Thus, claimants would be unsuccessful in seeking a mechanic’s
lien, under what was codified in Md. Code §§ 9-101-108, 9-111 and 9-113 of the Real
Property Article (1974 & 1995 Cum. Supp.), because “the repealed sections of the statute
as they existed prior to May 4, 1976, have disappeared as affecting this case to the same
extent as though they never existed.” Aviles, 281 Md. at 535, 379 A.2d at 1230.
The repeal of the impact fee provision of § 17-11-210 took effect on 1 January 2009.
Under the prior amended § 17-11-210(b), within 60 days following the end of the sixth
fiscal year30 from when impact fees were collected, the County was to give notice to the
public of the availability of impact fee refunds, if any. Upon the notice’s publication, an
eligible property owner must apply for a refund within 60 days of the publication of the
last notice. The County, following an assessment that the applicant had paid rightfully the
fees, would refund any available unexpended impact fees to the eligible property owner,
30
The parties agree that the relevant fiscal year here runs from July 1 through the
following June 30.
34
with interest. Until such time, property owners in the district from which funds were
collected were not entitled to refunds.
Here, impact fees collected from the Dabbs Class through FY 2003 (the last year in
the applicable six-year period and which was the basis of the refund claims asserted here)
would be eligible for refunds (if any existed) on or about 29 August 2009, i.e., six years
(and the 60-day notice period) following the fiscal year of impact fee collection. The
effective date of the repeal of the refund provision of § 17-11-210 occurred well before any
impact fees collected through 2003 became ripe for a refund claim. The rationales of
McComas and Aviles evince a transparent legislative practice that if a party’s rights have
not vested before a statute’s repeal, there can be no claim as of right to the relief the statue
once granted. Here, as in McComas, the County, before paying any potential impact fee
refunds, had to determine (after a petition by an eligible property owner) if refunds were
due from the FY of relevant collection. Until such time, no eligible owner had vested rights
in the refunds. Thus, the Dabbs Class’ claims for refunds of impact fees collected through
FY 2003 was not ripe until 29 August 2009 - after the effective date of the repeal of the
refund provision in § 17-11-210.
The Dabbs Class protests that this constitutes a “cooking of the books,” i.e., the
County misrepresented intentionally facts to the court, and the passage of Bill No. 27-07
and Bill No. 71-08 were done with intent to deprive the Dabbs Class of money they were
owed. We disagree, and in response, associate ourselves with the eulogy pronounced by
the circuit court in dispensing with this argument,
35
[the Dabbs Class] seem to broadly suggest that when the Impact Fee
Ordinance was enacted that those provisions that pertained to accounting of
the fees paid and the possibility of a refund at some future time, were
somehow frozen in amber unable to be revised or improved by the County as
experience demonstrated a need. This would be a surprising result given that
as explained above, development impact fee provisions were novel in
Maryland and in the County and in some respects were an on going
experiment in fiscal funding of the needs arising from development projects.
It is exactly the type of legislation that over time may need review and
revision to accomplish its intended goals.
(emphasis added). Although the timing of the adoption of Bill No. 27-07 and Bill No. 71-
08 may appear, on their faces, opportunistic, they do not exceed the bounds of what the
County was authorized by law to do. See Aviles, 281 Md. at 535, 379 A.2d at 1230.
The Dabbs Class asserted sporadically its dissatisfaction with Bill No. 96-01 in the
circuit court and intermediate appellate court in this case. Bill No. 96-01, effective 3
February 2002, authorized, inter alia, the County to use impact fees for temporary
classroom structures provided the structures expand the capacity of the schools. It appears
that they have abandoned, however, any argument to this effect before us. The Dabbs
Class maintains that they cited Bill No. 96-01 “passim” throughout its brief. We, however,
could find only two instances where the Dabbs Class referred to Bill No. 96-01 in its brief31
and one reference in its reply brief where it notes that “[t]he Class because of limited space
adopts its arguments on Bill 71-08 and State Rated Capacity precludes impact fee
31
First, “[a]nd while the County’s 2008 replenishment of pre 1996 fees and their
reallocated expenditure on 2008 capital projects was a per se taking, the character of the
County’s actions in enacting Bills 96-01, 27-07 and 71-08 during pending litigation, each
designed to prevent refunds, bears additional consideration as a regulatory taking . . . .”
Second, “Anne Arundel County, in a trilogy of ordinances, Bill 27-07, 96-01 and 71-08
presented a fluctuating legislative policy, knowing who would, in pending litigation,
benefit from each ordinance it enacted, the County.”
36
expenditures ‘countywide’ for relocatable classrooms.” We cannot discern where (or if)
the Dabbs Class asserted meaningful legal arguments (with supporting authorities)
regarding the applicability of Bill No. 96-01.32
Moreover, the Dabbs Class asserts and re-asserts a plethora of alternative arguments
“supporting” their claim to its entitlement to impact fee refunds.33 We adopt, in response
to those arguments, once more, “[w]e did not grant certiorari as to [these questions], and
thus, the decision of the intermediate appellate court is the law in this case.” Halle, 408
Md. at 559 n.7, 971 A.2d at 226 n.7.
We find no error or abuse of discretion by any court in this case.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED; COSTS
TO BE PAID BY PETITIONERS.
32
The County, nevertheless, responds briefly that, under conflict preemption (the
apparent basis the Dabbs Class asserts in support of its argument), “there is nothing in the
State definition of [State Rated Capacity] [(]SRC[)] that prohibits the County from
applying a definition of [school] capacity for purposes of determining the scope of its use
of impact fees broader than the definition used by the State Department of Education for
school finance purposes.”
33
We do not address the Dabbs Class’ following naked arguments, and allegations,
including, but not limited to, that: (1) the December 2000 impact fee study committee’s
report to the county executive made clear the rational nexus test was the legal foundation
of the county’s impact fee ordinance; (2) “[t]his Court cannot now condone the County’s
unconscionable shell game gimmickry, it made through known misrepresentations to all
courts, regarding its alleged exclusion of the identical fees it now admits were “dollar for
dollar” replenished and then reallocated in 2008 to support projects not even in existence
in 1996; (3) Bill No. 27-07 was not an emergency ordinance as alleged; (4) Bill No. 27-07
is an abuse of legislative power; (5) Bill No. 27-07 interfered with the judicial process;
and, (6) claims relating to the County’s 9.9 million “dollar for dollar” replenishment of
expended pre-1996 ineligible impact fees.
37