Dabbs v. Anne Arundel Cnty.

WILLIAM A. DABBS, JR., et al. v. ANNE ARUNDEL COUNTY

No. 23

COURT OF APPEALS OF MARYLAND

Argued: November 3, 2017

September Term, 2017

April 10, 2018

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

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.

"[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 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 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 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 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, 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

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...