Dinapoli v. Kent Island, LLC

203 Md.App. 452

38 A.3d 509

Michael A. DINAPOLI, et al.

v.KENT ISLAND, LLC, et al.

No. 2506

Sept. Term

2010.

Court of Special Appeals of Maryland.

March 1, 2012.Reconsideration Denied April 2, 2012.

C. Daniel Saunders (Cristina H. Landskroener, on the brief), Chestertown, MD, for Appellant.

Mark F. Gabler (Warren K. Rich, Rich & Henderson, PC, on the brief), Easton, MD, for Appellee.

Panel: ZARNOCH, WATTS, LAWRENCE F. RODOWSKY, (Retired, Specially Assigned).

WATTS, J.

Appellants, Michael A. DiNapoli, Janet DiNapoli, Leland C. Brendsel, B. Diane Brendsel, Daniel T. Hopkins, Richard M. Markman, and Queen Anne's Conservation Association, Inc., filed an action for declaratory relief and for writs of mandamus in the Circuit Court for Queen Anne's County. The Circuit Court for Queen Anne's County granted a motion filed by appellees-Kent Island, LLC (“Kent Island”), County Commissioners of Queen Anne's County (the “ County Commissioners”), Queen Anne's County Sanitary Commission (the “Sanitary Commission”), and Queen Anne's County Planning Commission (the “Planning Commission”) ¹—which asked the court to transfer the case to the Circuit Court for Anne Arundel County on the grounds of improper venue and/or forum non conveniens. After the transfer, the Circuit Court for Anne Arundel County denied a request for recusal, and then granted summary judgment in favor of appellees. Appellants noted an appeal raising four issues, ² which we have rephrased and consolidated as follows:

I. Whether the circuit court abused its discretion in granting Kent Island's motion to transfer pursuant to Maryland Rule 2–327 on the grounds of improper venue and/or forum non conveniens?

II. Whether the circuit court abused its discretion in denying appellants' Request for Recusal?

III. Whether the circuit court erred in granting summary judgment in favor of appellees?

For the reasons set forth below, we answer the first question “yes.” We shall vacate the judgment and remand the case to the Circuit Court for Anne Arundel County with instructions for the Circuit Court for Anne Arundel County to transfer the case to the Circuit Court for Queen Anne's County for a new trial. As a result of the reversal on Issue I, we shall not address Issues II and III.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves Kent Island's attempt to develop property known as “The Cloisters on Kent Island” in Stevensville, Queen Anne's County, Maryland, as a subdivision of condominium units.

2005 Kent Island Case

Kent Island has been involved with litigation regarding this property for numerous years. On February 23, 2005, Kent Island brought an action against the County Commissioners, Maryland Department of the Environment, and the Sanitary Commission in the Circuit Court for Anne Arundel County (hereinafter the “2005 Kent Island Case”). Kent Island sought a writ of mandamus and declaratory and injunctive relief. Kent Island sought to enforce its interpretation of State laws related to water and sewer service for the planned subdivision, and the State's oversight of the county's comprehensive water and sewer plans. The County Commissioners moved to dismiss or, in the alternative, to transfer the action from Anne Arundel County. The Circuit Court for Anne Arundel County denied the motion and ordered the action to proceed in the ordinary course. The County Commissioners renewed the motion to transfer and, following a hearing, the Circuit Court for Anne Arundel County again denied the motion.³ On November 5, 2007, following a two-day trial, the Circuit Court for Anne Arundel County issued an Order granting Kent Island's request for a writ of mandamus directing Queen Anne's County to grant Kent Island's property water and sewer service. The County Commissioners and the Sanitary Commission, both appellees in the present case, noted an appeal. ⁴

During the pendency of the appeal, the parties entered into a settlement agreement. On March 10, 2009, the Honorable William C. Mulford, II, Judge of the Circuit Court for Anne Arundel County, signed a document titled the “Consent Order,” which was jointly submitted to the court by Kent Island, the County Commissioners, and the Sanitary Commission (all appellees in this case), to resolve the litigation. In the agreement, Queen Anne's County agreed to dismiss the appeal and, among other things, Kent Island agreed to reduce the density of the approved subdivision and withdraw a claim for attorney's fees. ⁵

The terms of the Consent Order were, in pertinent part, as follows:

1. Extension of November 5, 2007 Court Order: Kent Island has obtained ... approval prior to the deadline imposed by this Court's Order date November 5, 2007. The parties agree that Kent Island shall have until May 5, 2014 (five years from the deadline imposed by this Court's Order dated November 5, 2007) to obtain final site plan and final unconditional subdivision approval for a 240 unit subdivision as provided herein under the laws and circumstances in effect as of November 18, 2003. All other aspects of this Court's November 5, 2007 Order shall remain in effect.

2. Reduction of Density: Within one hundred twenty (120) days following the execution of this Consent Order by the Court, Kent Island shall submit a revised final site plan and a revised final subdivision plat for review and approval by the Queen Anne's Planning Commission reducing the density of the proposed Cloisters on Kent Island subdivision from 273 condominium units to 240 condominium units ... All other aspects of the ... plans which were approved by the Planning Commission on November 13, 2008 shall be the same and the Planning Commission shall review the revised final site plan and revised final subdivision plat in accordance with the same criteria and standards that applied to the plans that were approved on November 13, 2008.

* * *

Kent Island shall have until May 5, 2014 to satisfy conditions imposed by the Planning Commission and shall not be required to obtain an extension from the Planning Commission to extend its deadline for compliance to May 5, 2014.

3. Public Works Agreement: Within ninety (90) days after approval of Kent Island's revised final subdivision plat with conditions and revised final site plan from the Planning Commission showing 240 units, Kent Island and [the County Commissioners and the Sanitary Commission] shall execute a Public Works Agreement which shall ... provide, among other things, a schedule for the start and completion of all site improvements. The Public Works Agreement shall also provide that Kent Island shall pay the costs of its water and sewer allocation and shall post its infrastructure bonds prior to May 5, 2014 as conditions to the signing of its revised final site plan and revised final subdivision plat by the Planning Commission.

* * *

A specific schedule of construction will be negotiated between Kent Island and the Queen Anne's County Department of Public Works that defines each phase and the site improvements that will be constructed for each phase and shall be included in the Public Works Agreement.

* * *

5. The Parties agree and the Court hereby orders that any actions taken by Queen Anne's County to modify its subdivision requirements, zoning or planning laws, ordinances or regulations will not impact the status of Kent Island's approvals and that there will be no impediment provided by Queen Anne's County to the ultimate development and completion of a 240 condominium unit age restricted development on parcel 279 provided that Kent Island satisfies the requirements of this Consent Order.

* * *

8. Dismissal of Appeal: Within ten (10) days of the execution of this Consent Order by this Court, [the County Commissioners and the Sanitary Commission] shall dismiss its appeal of this Court's November 5, 2007 Order.

9. This Consent Order shall be binding upon each of the parties' successors and assigns and shall be binding upon Queen Anne's County and all of its agencies and departments.

Present Case

In this case, appellants Hopkins, Markman, Michael A. DiNapoli, Jane DiNapoli, Leland C. Brendsel, and B. Diane Brendsel brought suit as residents and taxpayers of Queen Anne's County. Appellant Queen Anne's Conservation Association, Inc. brought suit as a “Maryland corporation concerned with issues raised in th[e] action.” On December 17, 2009, appellants filed a Complaint for Declaratory Judgment against appellees in the Circuit Court for Queen Anne's County, seeking a determination that the Consent Order dated March 10, 2009, is null and void. On February 8, 2010, appellants filed an Amended Complaint in the Circuit Court for Queen Anne's County, seeking declaratory relief as well as writs of mandamus.

In the Amended Complaint, appellants alleged that the Consent Order in the 2005 Kent Island Case is null and void because it is (1) an illegal zoning contract, (2) an unlawful attempt to create a Development Rights and Responsibilities Agreement, and (3) a denial of appellants' Equal Protection rights. Appellants claimed, among other things, that the Consent Order “confers a special privilege and effectively re-zones one property, which renders it a special law.” Appellants requested a writ of mandamus ordering the County Commissioners to cease all performance under the Consent Order.

Motion to Transfer

On January 22, 2010, Kent Island filed a Motion to Dismiss Pursuant to Maryland Rule 2–322 and in the Alternative Motion to Transfer Pursuant to Maryland Rule 2–327. Kent Island sought dismissal “on the grounds that the Queen Anne's County Circuit Court is not empowered to overturn a Consent Order entered by the Circuit Court for Anne Arundel County[,] and that Queen Anne's County is an improper venue for requesting such relief.”

In the alternative, Kent Island requested that the case be transferred to Anne Arundel County “where the Consent Order was entered and where the litigation that led to the entry of the Consent Order...