Dabbs v. Anne Arundel County , 232 Md. App. 314 ( 2017 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2653
September Term, 2015
WILLIAM DABBS, ET AL.
v.
ANNE ARUNDEL COUNTY, MD.
Wright,
Graeff,
Bair, Gary E. (Specially Assigned),
JJ.
Opinion by Wright, J.
Filed: March 30, 2017
This appeal arises from the Circuit Court for Anne Arundel County’s entry of a
declaratory judgment in favor of appellee, Anne Arundel County (the “County”), as to all
counts and claims stated in a class action complaint filed against it on November 4, 2011,
by appellants, William Dabbs, Sally Trapp, Samuel Craycraft, and Roberta Craycraft,
“individually and on behalf of all others similarly situated.” Appellants had sought
refunds of impact fees that, following the fiscal year (“FY”) of collection, were not
expended or encumbered within six FYs. Following a hearing on November 20, 2014,
and after receiving memoranda from the parties, the circuit court entered judgment in the
County’s favor on January 27, 2016, ordering that appellants “take nothing in this
action.” The court also denied appellants’ motion to revise class definition, as well as
their motion for an accounting of County impact fee collections, expenditures, and
encumbrances. On February 11, 2016, appellants noted this appeal.
Questions Presented
For clarity, we have combined, renumbered, and rephrased the questions presented
by appellants, as follows: 1
1. Did the circuit court err in concluding that the “rough
proportionality” or “rational nexus” test established by the Supreme
Court of the United States has no application to development impact
fees?
2. Did the circuit court err in finding that the enactment of Bill No. 27-
07 did not interfere with the vested rights of appellants to recover
impact fee refunds?
In their brief, appellants presented six questions, but their argument consisted of
1
15 subparts.
1
3. Did the circuit court err in concluding that appellants could not
recover as damages $9.9 million that the County transferred from the
General Fund to the Impact Fee Special Fund in 2008?
4. In determining the appropriate use of impact fees under its Impact
Fee Ordinance, is the County required to use the definition of “State
Rated School Capacity” that the State applies for school construction
funding purposes?
5. Did the circuit court err in denying appellants’ motion for an
accounting of County impact fee collections, expenditures, and
encumbrances?
6. Did the circuit court err in finding that the prospective repeal in Bill
No. 71-08 of the County’s impact fee refund provision, codified in §
17-11-210(b), had no effect on appellants’ vested rights to refunds?
For the reasons that follow, we affirm the circuit court’s judgment.
Facts
I. The County’s Impact Fee Ordinance
Pursuant to the authority set forth in Chapter 350, Acts of 1986, and codified in
Subtitle 2 of Title 11 of Article 17 (the “Impact Fee Ordinance”) of the Anne Arundel
County Code (“County Code”), the County may impose impact fees for the purpose of
requiring new development to pay its proportionate share of the costs for land and capital
facilities necessary to accommodate development impacts on public facilities. § 17-11-
202(1). 2 Impact fees must be paid by any person who improves real property causing an
impact on public facilities before a building permit for the improvement may be issued.
§§ 17-11-203, 17-11-206.
2
Unless otherwise specified, all citations will be to the County Code. The code
has since been amended numerous times. The language of the relevant sections at the
pertinent times is undisputed by the parties.
2
Under § 17-11-209(a), all funds collected from impact fees must be used for
eligible capital projects, that is, capital projects for the “expansion of the capacity” of
roads and schools, and not for replacement, maintenance, or operations. The County has
been divided into impact fee districts and impact fees generally must be used for capital
improvements within the “district from which they are collected.” § 17-11-209(d). The
County Planning and Zoning Officer (“PZO”) determines the extent to which capital
projects are eligible for impact fee use. See generally Impact Fee Ordinance.
Section 17-11-210(b) provides that, if the impact fees collected in a district are not
expended or encumbered within six FYs following the FY of collection, the County
Office of Finance must give notice to current property owners that impact fees are
available for refund. Section 17-11-210(e), however, allows the PZO to “extend for up to
three years the date at which the funds must be expended or encumbered.” Such an
extension may 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.”
The County began imposing impact fees in FY 1988. On December 20, 2001, the
County Council enacted Bill No. 96-01, which, effective February 3, 2002, authorized the
County to use impact fees for temporary structures (classrooms) provided they expanded
the capacity of the schools to serve new development. Then, on May 22, 2007, the
County Council enacted Bill No. 27-07, which codified the procedures which the County
had utilized to count impact fee expenditures and encumbrances for purposes of
determining impact fee refunds under § 17-11-210(b). Because Bill No. 27-07 did not
3
effect a substantive change in policy, the County Council made Bill No. 27-07 retroactive
to fees collected in FYs 1988-1996.
On November 6, 2008, the County Council enacted Bill No. 71-08 and repealed,
prospectively, the impact fee refund provisions previously set forth in § 17-11-210. The
repeal was effective on January 1, 2009, and barred claims that were not ripe as of the
effective date of the repeal, that is, the repeal barred claims for refunds of fees collected
after FY 2002.
II. Plaintiffs’ Claims
This action is the second lawsuit in which class plaintiffs have sought refunds of
impact fees pursuant to § 17-11-210. In the first action, the circuit court ruled that it
would only resolve claims for refunds of impact fees collected in FYs 1988-1996, namely
the FYs that were ripe for review at that time. Halle Dev., Inc. v. Anne Arundel Cty.,
Case No. 02-C-01-069418. Thus, in 2011, appellants filed the present claim (“Dabbs”),
seeking refunds of fees collected in and after FY 1997.
A. Halle
In 2008, this Court, in Halle, explained the manner in which § 17-11-210 should
be applied to calculate whether impact fees are available for refund. Anne Arundel Cty. v.
Halle Dev., Inc., No. 2552, Sept. Term, 2006 (Feb. 7, 2008, on reconsideration, May 7,
2008). We ruled that the County was entitled to count impact fee encumbrances in
calculating refunds after the close of six FY periods and remanded the case to the circuit
court for the purpose of recalculating refunds accordingly. Specifically, we rejected the
County’s argument that the case should be remanded to the PZO for new extension
4
decisions, and we ruled that the County Code required any decision by the PZO to extend
the period for using impact fees be validly made before the end of the six FY period.
However, we agreed with the County that (1) in applying its procedure to count impact
fees encumbered for the purpose of determining refunds, the County was not attempting
to encumber impact fees “retroactively,” and (2) the County Code did not require the
County to count impact fee encumbrances as part of the annual budget process and within
the six FY period. We stated:
Owners contend that the circuit court’s ruling is supported by the refund
provisions in Code § 17-11-210. They argue that the County is attempting
retroactively to encumber funds. They assert that the circuit court correctly
ruled that for refund purposes a PZO determination that impact fee funds
had been encumbered, must have been made within the six years following
collection of the funds. This analysis confuses encumbrance with
extension. As we have seen in Part I, supra, there was a time limit prior to
which the fact-finding of extension must be made, and made in the required
format, in order to effect an extension. Section 17-11-210 does not
mandate any format for effecting an encumbrance.
Halle, Feb. 7, 2008 opinion at 19-20.
We also rejected the circuit court’s reliance on § 4-11-102(c)(11) for the
proposition that impact fee encumbrances had to be counted as a part of the annual
budget process, stating:
Code § 4-11-102(c)(11), also cited by the court and requiring the capital
budget and capital program to include “any amounts encumbered and
expended by April 1 of the current and prior year,” is satisfied by the
current format of that budget and program, as described above. That
information advises the County Council of matters of historic fact. The
section does not require that encumbrances be recorded in the accounts of a
particular impact fee special fund when those encumbrances are made in
the future, during the fiscal year that is the subject of a particular capital
budget.
5
Id. at 19. In short, we ruled:
Accordingly, we shall remand on the encumbrance issue for a
determination of the amount of impact fees that had been encumbered, but
unexpended, within six years following their collection.
Id. at 20.
Thereafter, the County filed a motion for reconsideration requesting that this Court
rule that the County was also entitled to count impact fees encumbered in connection
with plaintiffs’ claims for refunds of school impact fees. We granted the motion in a
May 7, 2008 opinion, stating:
[In our February 7, 2008 opinion,] we held that the circuit court erred in
failing to include in the six-year test encumbrances made within a six-year
period after the year of receipt in computing the debit against fee receipts.
* * *
This Court’s rationale in its February 7, 2008 opinion with respect to
transportation project encumbrances, argues the County, is equally
applicable to the accounting record for encumbrances for school projects.
Because we held in our February 7, 2008 opinion that the ground on which
the circuit court relied in rejecting encumbrances as a setoff under the six-
year test was erroneous, the court, on remand, should consider not only
encumbrances for transportation projects, but for school projects as well
when applying the six-year test.
Halle, May 7, 2008 opinion at 7-8.
Although Bill No. 27-07, which codified the County’s procedure for counting
impact fee encumbrances, had been enacted prior to this Court’s 2008 opinion and was
retroactive, we ruled that the amended ordinance did not modify the concept of
encumbrance which had been in the County Code from the enactment of Bill 58-87 in
1988, and thus, it was unnecessary to address the retroactivity of the legislation because it
did not change law or policy.
6
Following this Court’s 2008 decision in Halle, both the County and the class
plaintiffs filed petitions for a writ of certiorari in the Court of Appeals. The County
requested that the Court review the Court of Special Appeals’ ruling that the case could
not be remanded to the PZO to make new extension decisions. The class plaintiffs, on
the other hand, requested that the Court of Appeals review the Court’s ruling that the
County was not “retroactively encumbering” impact fees by utilizing the procedure
(subsequently codified in Bill No. 27-07) to count them after the case had been filed.
Plaintiffs argued that they had vested rights to an accrued cause of action to recover
refunds after they filed suit on February 21, 2001, and thus, the case could not be
remanded to permit the County to either grant new extensions, or count encumbrances.
The Court of Appeals granted the County’s petition. Anne Arundel v. Halle, 405
Md. 350 (2008). However, it denied plaintiffs’ cross-petition, thus declining to review
the encumbrances issue. The Court of Appeals then affirmed this Court on all issues for
which it granted certiorari and explained that the class plaintiffs did not have vested
rights which would preclude the County from counting encumbrances after the close of
the six FY periods. Anne Arundel Cty. v. Halle Dev., Inc., 408 Md. 539 (2009). It stated:
This case is not about vesting. It is about the PZO’s lack of authority under
the impact fee ordinance to go back and make administrative decisions that
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 it 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.
Id. at 559. In an accompanying footnote, the Court of Appeals explained:
7
The Court of Special Appeals 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
intermediate 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.
Id. at 559 n.7.
On remand, the circuit court stated that this Court’s 2008 opinion in Halle was the
law of the case and, in applying our mandate, reduced the amount of refunds from $4.7
million to $1.3 million. The circuit court, however, stated that it disagreed with part of
our opinion, and instead it expressed continued belief that the County was not entitled to
count encumbrances because the County was required to do so during the FYs under
review as a part of the annual budget process. To that end, the circuit court invited the
Court of Appeals to review the issue of encumbrances. The circuit court then made
certain “alternate findings” in the event that the Court of Appeals decided to review the
case.
Subsequently, the plaintiffs filed a petition for writ of certiorari, asking the Court
of Appeals to again review whether the enactment of Bill No. 27-07 interfered with their
vested rights. The Court of Appeals, however, declined to do so, and this Court, in 2013,
affirmed the circuit court’s final judgment ruling that our 2008 opinion was the law of the
case. Halle Dev., Inc. v. Anne Arundel Cty., No. 0327, Sept. Term, 2011 (July 29, 2013).
We stated:
8
In its March 25, 2011 opinion, the circuit court correctly ruled that
our prior holdings in this case -- and the prior holdings of the Court of
Appeals in this case -- are the law of the case which are binding on the
circuit court.
* * *
The circuit court ruled in its December 30, 2004 opinion that the
definition of impact fees encumbered, and the County’s procedure for
counting encumbrances was reasonable and lawful. The circuit court,
however, also ruled that the County could not retroactively count
encumbrances because the impact fees must be counted “as part of the
annual budget process, no later than the sixth fiscal year.”
On appeal, we held that the County was not “attempting
retroactively to encumber funds.” Accordingly, we ordered “remand on the
encumbrance issue for a determination of the amount of impact fees that
had been encumbered, but unexpended, within six years following their
collection.” Similarly, in remanding the case to the circuit court, the Court
of Appeals observed that:
[T]he circuit court’s task on remand will only require that the
court determine whether and how much refund is due, in
total, after considering all impact fee amounts that the County
has timely encumbered for eligible capital projects.
Anne Arundel Cnty. v. Halle Dev., Inc., 408 Md. 539, 571-72 (2009). The
Court of Appeals also pointed out that:
The Court of Special Appeals 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 intermediate 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.
Id. at 559, n.7 (emphasis added).
9
Here, Owners raise issues relating to the determination of impact fee
encumbrances to determine refunds. As set forth, supra, our
comprehensive 2008 opinion addressed this issue as a question of law.
Accordingly, the circuit court was bound by the law of the case as to this
legal issue.
Id. at 4-6.
We also determined that plaintiffs’ argument that the retroactivity provision in Bill
No. 27-07 unconstitutionally interfered with their vested rights was barred by the law of
the case doctrine:
Next, Owners argue that Bill 27-07 “operates retrospectively to
divest and adversely affect vested rights, impacts the obligation of
contracts, and violates the due process clause.” Owners further argue at
length that the County Council “was not permitted to retroactively modify
the County’s impact fee ordinance, by design, and reduce the amount of
impact fees refunded 20 years after the events here have occurred.” The
County argues that these arguments are barred under the law of the case
doctrine. We agree with the County that the law of the case doctrine
precludes re-litigation of these issues. The circuit court, therefore, did not
err in applying the law of the case in determining impact fee encumbrances.
* * *
We also observed in our prior opinion that the retroactivity provision
of Bill No. 27-07 was not relevant to the case. In particular, we cited the
definition of an “encumbrance” as set forth in § 17-11-201(2) of the County
Code. At that time we observed that, “[a]though this statutory definition,
enacted by Council Bill No. 27-07, was not effective until May 22, 2007,
long after the events with which we are concerned here, the definition
conforms to generally accepted accounting principles (GAAP).” Further,
we pointed out that we had no occasion to consider the validity of the
retroactivity provision of the amended ordinance because the only relevant
issue was the definition of “encumbrance,” and the ordinance was cited
“simply to state the pre-existing, generally accepted meaning of the term,
‘encumbrance[.]’”
Thus, we have already defined -- as a matter of law -- the definition
of “encumbrance” that governs this case. Additionally, we have previously
held that the retroactivity provision of Bill 27-07 is not implicated, and
does not alter how impact fee encumbrances are counted for purposes of
this case.
10
Id. at 11-12.
Finally, we noted that the Court of Appeals had rejected the class plaintiffs’ claim
that they had obtained vested rights in impact fee refunds by bringing their lawsuit in
2001:
Moreover, the Court of Appeals has made clear that the retroactivity
provision of Bill 27-07 is of no consequence here. As a threshold matter,
we point out that, as the circuit court aptly observed, the key issue in a
retroactivity analysis is whether Owners have “vested rights” in their claims
for impact fee refunds. “If the legislature intends a law affecting
substantive matters to operate retroactively and the law does not offend
constitutional limitations or restrictions, it will be given the effect
intended.[”] State Comm’n on Human Relations v. Amecom Div. of Litton
Sys., Inc., 278 Md. 120, 123 (1976). In conducting the retroactivity
analysis, a court must determine whether the retroactive application of the
statute or ordinance would interfere with vested rights. Rawlings v.
Rawlings, 362 Md. 535 (2001).
Here, the Court of Appeals held that the instant case was not about
vested rights, and that Owners had no vested rights in impact fee refunds:
This case is not about vesting. It is about the PZO’s lack of
authority under the impact fee ordinance to go back and
[make] 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 on remand may be reduced if the County
is able to prove that it, in fact, encumbered the impact fee
funds within six years.
* * *
Anne Arundel County v. Halle Dev., Inc., 408 Md. 539; id. at 559, n.7
(emphasis added).
Id. at 12-13.
B. Dabbs
11
In the present case, involving impact fees collected in FYs 1997-2002, appellants
sought refunds on the ground that the impact fees were not expended or encumbered in a
timely manner under § 17-11-210(b). Appellants 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 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 appellants’ 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).
12
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. 3 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. 4
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
3
As previously stated, prior to the enactment of Bill No. 96-01, the County was
prohibited from expending impact fees to pay for temporary classrooms. Bill No. 96-01
authorized such expenditures provided they expanded the capacity of the schools to serve
new development, but it was given only prospective effect, so it applied only to
expenditures on and after February 3, 2002.
4
Notwithstanding Bill No. 96-01, appellants argued that impact fees cannot be
used to fund temporary classrooms because they are excluded from “State Rated
Capacity” as defined by the State for school funding purposes, and impact fees can only
be used for projects that expand school capacity. Appellants also argued that the “rough
proportionality” or “rational nexus” test prohibits the use of impact fees to fund
temporary classrooms.
The County disagreed with appellants’ arguments, contending that the use of
impact fees to fund temporary classrooms on and after February 3, 2002, was expressly
authorized by law and that the rational nexus test does not apply to the County’s impact
fees. Alternatively, the County prepared six FY charts that excluded all expenditures on
temporary classrooms in calculating whether impact fees were available for refund in
FYs 1997-2002. Those charts demonstrated that, even if all expenditures on relocatable
classrooms were excluded, there would still be no impact fees available for refund.
13
(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 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). 5 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,” 6 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 PZO to be eligible in the district.
5
This scholarly treatise has been relied upon repeatedly throughout the related
proceedings by this Court and by the circuit court.
6
According to the County, in the Annual Budget and Appropriation Ordinances,
the County Council appropriated only sums of money for capital projects, and did not
appropriate from a specific funding source. The County states that there are numerous
sources for the funds disbursed to pay invoices relating to capital projects, including
impact fees, general funds, federal grants, state grants, and developer contributions. It
also notes that funding sources for County capital projects are identified by the County’s
Office of Finance after invoices are paid from the Central Cash Fund.
14
Additional facts will be included as they become relevant to our discussion, below.
Discussion
Md. Code (1973, 2013 Repl. Vol.), § 3-409(a) of the Courts & Judicial
Proceedings Article provides that “a court may grant a declaratory judgment or decree in
a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the
proceeding, and if . . . [a]n actual controversy exists between contending parties.”
(Emphasis added). “It follows that ‘declaratory judgment generally is a discretionary
type of relief.’” Sprenger v. Pub. Serv. Comm’n of Maryland, 400 Md. 1, 20 (2007)
(quoting Converge Servs. Grp. v. Curran, 383 Md. 462, 477 (2004)). “Thus, we
generally review a trial court’s decision to grant or deny declaratory judgment under an
abuse of discretion standard.” Id. at 21.
The Court of Appeals has “defined abuse of discretion in numerous ways, but has
always enunciated a high threshold.” Sumpter v. Sumpter, 436 Md. 74, 85 (2013)
(citations omitted). Previously, this Court has stated:
“Abuse of discretion” is one of those very general, amorphous terms that
appellate courts use and apply with great frequency but which they have
defined in many different ways. It has been said to occur “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.”
It has also been said to exist when the ruling under consideration “appears
to have been made on untenable grounds,” when the ruling is “clearly
against the logic and effect of facts and inferences before the court,” when
the ruling 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.”
There is a certain commonality in all of these definitions, to the extent that
they express the notion that a ruling reviewed under an abuse of discretion
15
standard will not be reversed simply because the appellate court would not
have made the same ruling. The decision under consideration has to be
well removed from any center mark imagined by the reviewing court and
beyond the fringe of what that court deems minimally acceptable.
North v. North, 102 Md. App. 1, 13-14 (1994) (internal citations omitted).
I. “Rough Proportionality” or “Rational Nexus” Test
Appellants first argue that the circuit court erred in determining that the rough
proportionality test, or the rational nexus test, has no application to the development
impact fees in this case. Rather, according to appellants, the County must demonstrate
that “its expenditure of impact fees was reasonably attributable to new development and
each such expenditure reasonably benefitted ‘new development’ and/or individual
‘against whom the fee was charged.’” (Citations omitted). In advancing their argument,
appellants assert that the circuit court’s decision runs contrary to Dolan v. City of Tigard,
512 U.S. 374 (1994), Waters Landing, Ltd. P’ship. v. Montgomery Cty., 337 Md. 15
(1994), Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013), and several
out-of-state cases.
In response, the County avers that, “[u]nder settled law, the rough proportionality
or rational nexus test does not apply to legislatively enacted fees or taxes of general
application, such as the County’s impact fees” in this case.
The United States Supreme Court established the “rough proportionality” test in
Dolan, 512 U.S. at 391. In that case, a property owner applied for a building permit to
construct a commercial building, and the City of Tigard conditioned the issuance of the
permit on the dedication of (1) a portion of the property for a “greenway” to control
16
flooding, and (2) another portion for a pedestrian and bicycle path. Id. at 379-80.
Although the Supreme Court found that an “‘essential nexus’ exists between the
‘legitimate state interest’ and the permit condition exacted by the city,” pursuant to
Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987), it nonetheless ruled that
the City of Tigard failed to demonstrate that the required dedications were consistent with
the takings clause of the Fifth Amendment because the extent of the exaction was not
roughly proportional to “the impact of the proposed development.” Dolan, 512 U.S. at
386-96.
Approximately six months following the Dolan decision, the Maryland Court of
Appeals ruled that the rough proportionality test did not apply to a “development impact
tax [imposed] by legislative enactment, not by adjudication.” Waters Landing, 337 Md.
at 40. The Court reasoned:
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. While the facts in Dolan are somewhat similar to
the facts before us, the Court, in reaching its holding, specifically relied on
two distinguishing characteristics that are absent in the instant case. First,
the Court mentioned that instead of making “legislative 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.” Id. at ___, 114 S. Ct. at 2316, 129
L. Ed. 2d at 316. 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
17
far’” so as to be “‘recognized as a taking.’” Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, ___ 112 S. Ct. 2886, 2893, 120 L. Ed. 2d
798, 812 (1992) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415, 43 S. Ct. 158, 160, 67 L. Ed. 322 (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.” Id. at ___, 112 S. Ct. at 2893, 120 L. Ed. 2d at 812-
13[.]
Id.
Like in Waters Landing, the impact fees at issue here were imposed by legislative
enactment, and do not require landowners to deed portions of their property to the
County. Moreover, appellants cannot claim “that the impact tax” here “compel[s] the
property owner to suffer a physical ‘invasion’ of his property,” or “denies all
economically beneficial or productive use of land.” Id. at 40-41. Therefore, as the Court
of Appeals concluded in Waters Landing, we similarly hold that “the Takings Clause
being inapplicable, Dolan does not affect our decision.” Id. at 41.
We disagree with appellants’ assertion that Koontz runs contrary to this
conclusion. In that case, the development exactions at issue involved discretionary
exactions made on the basis of an individualized determination; it did not involve a
legislatively imposed tax of general application. See Koontz, 133 S. Ct. at 2591. Thus,
the Supreme Court ruled that the “so-called ‘monetary exactions’ must satisfy the nexus
and rough proportionality requirements of Nollan and Dolan.” Id. at 2599. The Koontz
Court clarified, however, that “[i]t is beyond dispute that [t]axes and user fees . . . are not
takings,” and that its decision should not be read to “affect the ability of governments to
18
impose property taxes, user fees, and similar laws and regulations that may impose
financial burdens on property owners.” Id. at 2600-01 (internal citation omitted).
For these reasons, the circuit court did not err or abuse its discretion in declining to
apply the rough proportionality or rational nexus test to the County’s impact fees. 7
II. Effect of Bill No. 27-07
Next, appellants argue that Bill No. 27-07 cannot be applied retroactively. In
support of their argument, appellants aver that “[n]o Court of Appeal has determined [this
issue],” and they further contend that “completed capital projects are not subject to
retroactive legislation.” In sum, appellants believe that the retroactivity of Bill 27-07
interfered with their vested rights, and that impact fee refunds are due.
In response, the County asserts that “[t]his Court and the Court of Appeals ruled in
the Halle case that the retroactivity of Bill 27-07 did not interfere with any vested rights .
. . because the bill did not effect a change in policy.” We agree with the County.
As we outlined above, in Halle, we ruled that Bill No. 27-07 did not modify the
concept of encumbrance, which had been in the County Code from the enactment of Bill
58-87 in 1988, and thus, it was unnecessary to address the retroactivity of the legislation
in our 2008 opinions because it did not change law or policy. Thereafter, upon granting
the Halle plaintiffs’ petition for writ of certiorari, the Court of Appeals explained that the
class plaintiffs did not have vested rights which would preclude the County from
counting encumbrances after the close of the six FY periods. Then, in 2013, we
7
Because the test does not apply to the impact fees in this case, we need not
address the merits of whether the County complied with the test’s requirements.
19
reiterated that the retroactivity provision of Bill No. 27-07 was not implicated in Halle,
that it did not alter how impact fee encumbrances were counted, and that Halle was not
about vesting. We fail to see how we can reach a different conclusion here, especially
when we have previously made clear that the holdings in our 2008 opinion and the
subsequent holdings of the Court of Appeals in Halle are the law of the case as to this
very issue.
Appellants’ reliance on Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604
(2002) is misplaced. Dua involved challenges to two retroactive laws, regarding refund
of late fees associated with cable contracts, passed by the General Assembly during its
2000 session. 370 Md. 610-11. There, the Court of Appeals stated that neither law could
be applied retroactively, as “they represented major changes of legislative policy.” Id. at
643. In addition, at the time the legislation took effect in Dua, the petitioners’ ability to
recover the refunds was not subject to any future review, act, contingency, or decision to
make it secure and, therefore, the Court concluded that “there is a vested right in an
accrued cause of action and that the Maryland Constitution precludes the impairment of
such right.” Id. at 632.
By contrast, here, Bill No. 27-07 did nothing more than codify the County’s
procedure; it did not retroactively change County law or policy, nor did it purport to take
away an accrued cause of action for refunds. See id. at 643; Cf. Prince George’s Cty. v.
Longtin, 419 Md. 450, 500 (2011) (holding that retroactive application of damages cap
constituted a substantive change in law and policy that occurred after the cause of action
had fully accrued, and would thus violate the Maryland Declaration of Rights).
20
Accordingly, the calculation of refunds with consideration of encumbrances pursuant to
the County’s procedure in Bill No. 27-07 did not interfere with vested rights.
III. $9.9 Million
Appellants argue that the County knowingly violated the Impact Fee Ordinance by
denying them a refund of $9.9 million, which is the amount the County transferred from
the General Fund to the Impact Fee Fund to replace fees that were improperly spent on
ineligible projects. In response, the County avers that this Court had already ruled, in
Halle, that class plaintiffs are not entitled to “dollar for dollar” refunds of impact fees
spent on ineligible projects. The County is correct.
The impact fee refund at issue here stems from appellants’ claim concerning the
impact fees collected in FYs 1997-2002. At the time of appellants’ original claim,
however, those impact fees were expended or encumbered within six FYs following the
FY of collection and, as such, no impact fees were available for refund. § 17-11-201.
Thereafter, the circuit court determined that the County funded certain projects
with money from the Impact Fee Fund and that those projects were ineligible from
impact fee use. According to the court, the County should have used the General Fund or
another source instead. As a result, in FY 2008, the County credited the Impact Fee Fund
for the expenditures that the circuit court had determined were improperly spent on
projects ineligible for impact fee use, totaling $9.9 million.
As the County correctly states, this accounting adjustment does not violate any
County or State law, and does not constitute a basis for a refund. In Maryland, a taxpayer
is entitled to a refund where the refund is specifically authorized by statute. Bowman v.
21
Goad, 348 Md. 199, 202 (1997) (“any statutorily prescribed refund remedy is
exclusive”). No statute authorizes a refund of money transferred from the General Fund
to the Impact Fee Fund to replace funds erroneously expended. Therefore, we reject
appellants’ contention that they are now entitled to a $9.9 million refund.
IV. “State Rated School Capacity”
In late 2001, the County Council enacted 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.
Appellants argue that this change in policy was simply “the County’s attempt to prevent
the refund of impact fee expenditures.” In addition, they contend that Bill No. 96-01
violates the rational nexus doctrine, effects a taking, and is preempted by State regulation.
As we explained in detail above, neither the rational nexus doctrine nor the takings
clause applies here. With regard to appellants’ contention that impact fees cannot be
expended for temporary classrooms because movable structures do not expand the
capacity of schools as measured by the Maryland State Department of Education’s
(“MSDE”) State Rated Capacity (“SRC”), we conclude that nothing in MSDE’s
definition of SRC was intended to preempt the County’s authority.
Under Maryland law, “State law may preempt local law in one of three ways: (1)
preemption by conflict, (2) express preemption, or (3) implied preemption.” Worton
Creek Marina, LLC v. Claggett, 381 Md. 499, 512 (2004) (quoting Talbot County v.
Skipper, 329 Md. 481, 487-88 (1993)) (footnote omitted). Here, appellants assert that
there is conflict preemption. Under that theory, “when a local government ordinance
22
conflicts with a public general law enacted by the General Assembly, the local ordinance
is preempted by the State law and is rendered invalid.” Id. at 513 (citations omitted).
As the circuit court ruled, there is nothing in the State definition of SRC that
prohibits the County from applying a definition of capacity for purposes of determining
the scope of its use of impact fees broader than the definition used by MSDE for school
finance purposes. The County’s definition of capacity is consistent with the enabling law
for the impact fees (1986 Md. Laws Ch. 350, § 1, codified in § 17-11-214), and it is the
County, not the State, that determines the scope of its Impact Fee Ordinance. As such,
appellants’ challenge to Bill No. 96-01 fails.
V. Motion for Accounting
Next, appellants continue to challenge the retroactivity of Bill No. 27-07 and to
assert their right to a refund of the $9.9 million replenishment, by arguing that the circuit
court erred in denying their motion for an actual accounting by the County. Specifically,
appellants assert that the County should have been ordered to provide an accounting of
the impact fees “without the new accounting procedures in retroactive Bill 27-07 and the
2008 replenishment.” (Emphasis in original). This is because, according to appellants,
the County’s records governing impact fee collections, expenditures, encumbrances, and
eligibility are complicated, unorganized, and solely in the County’s possession.
Contrary to appellants’ assertion, our opinion in Alternatives Unlimited, Inc. v.
New Baltimore City Bd. of Sch. Comm’rs, 155 Md. App. 415 (2004), squarely addresses
this issue. In that case, we explained that the traditional criteria for an accounting in
equity were as follows:
23
The general rule is that a suit in equity for an accounting may be
maintained when the remedies at law are inadequate.
* * *
The instances in which the legal remedies are held to be inadequate
are said to be as follows: First, where there are mutual accounts between
the plaintiff and the defendant; second, where the accounts are all on one
side, but there are circumstances of great complication, or difficulties in the
way of adequate remedy at law; and third, where a fiduciary relation exists
between the parties, and a duty rests upon the defendant to render an
account.
Id. at 508-09 (internal citations and emphasis omitted). With regard to the second
instance, which applies to appellants’ complaint here, we clarified:
[W]hereas an equitable claim for an accounting once served a necessary
discovery function, that function has been superseded by modern rules of
discovery.
[W]here there is no other ground of equity jurisdiction, a bill for
discovery alone has been practically superseded by an adequate, complete
and sufficient remedy at law.
. . . [I]t is sufficient that the new rules furnish means for discovery,
at law or in equity, which are broader than the former inherent equity
jurisdiction.
Id. at 510 (internal citations and emphasis omitted).
In this case, not only was discovery a fully effective means for appellants to obtain
the information they sought in their motion for an accounting, but the County also
provided them with the six FY charts and documents necessary for appellants to
determine whether impact fees were available for refund. As the County notes,
appellants have not pointed to a single piece of information relevant to the calculation
that they were not provided. The circuit court, therefore, properly denied appellant’s
motion.
24
VI. Effect of Bill No. 71-08
Finally, appellants contend that Bill No. 71-08, which prospectively repealed the
impact fee refund provisions previously set forth in § 17-11-210, interfered with their
vested rights to impact fee refunds in violation of the contracts clause and takings clause
of the United States Constitution. According to appellants, Bill No. 71-08 “operates as a
substantial impairment of a contractual relationship between the County and special
taxpayers” and “is facially unconstitutional for it violates the rational nexus doctrine by
eliminating the County’s burden to demonstrate a need for the collection of [impact]
fees.”
“As a general rule, statutes are presumed to operate prospectively and are to be
construed accordingly.” Washington Suburban Sanitary Comm’n v. Riverdale Heights
Volunteer Fire Co. Inc., 308 Md. 556, 560 (1987) (citations omitted). A legislative body
is authorized to “amend, qualify, or repeal any of its laws, affecting all persons and
property which have not acquired rights vested under existing law.” Dal Maso v. Bd. of
Cty. Comm’rs of Prince George’s Cty., 182 Md. 200, 206 (1943). “Thus many courts
adhere to the proposition that in the absence of a contrary expression of intent, a cause of
action or remedy dependent upon a statute falls with the repeal of a statute.” State v.
Johnson, 285 Md. 339, 344 (1979) (citations omitted). In sum, “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.” Beechwood Coal Co. v. Lucas, 215 Md. 248,
256 (1958) (citations omitted).
25
Appellants suggest that prospective application of the repeal in this case applies
only to impact fees collected after Bill No. 71-08’s effective date of January 1, 2009.
Appellants are mistaken. As explained above, the repeal of a statute creating a right
purely of statutory origin, such as § 17-11-210, wipes out the right unless the right is
vested. Stated differently, the prospective repeal of the substantive right to assert a claim
means that the repeal bars any claim that could not have been made (i.e., not ripe) as of
the effective date of the repeal. See McComas v. Criminal Injuries Comp. Bd., 88 Md.
App. 143, 148 (1991) (“Because the rights and obligations created [at issue] originated
with the statute itself, amendments apply to all claims to which the Board has not granted
an award.”); Aviles v. Eshelman Elec. Corp., 281 Md. 529, 533 (1977) (restating the
“well established” principle that “[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”) (footnote and citations omitted).
In this case, § 17-11-210 originally required the County to refund fees that had not
been expended or encumbered within six FYs following the FY of collection. Pursuant
to § 17-11-210(b), the County was required to determine whether impact fees were
available for refund within 60 days following the end of the FY. Thus, a claim for a
refund of impact fees collected in FY 2003 could not be ripe until August 29, 2009.
Because this date is after the effective repeal date of January 1, 2009, the circuit court
26
correctly ruled that appellants were barred from claiming fees collected after 2002 and
that they have no vested right that precludes the repeal. 8
Finding no error or abuse of discretion on the part of the circuit court, for all of the
foregoing reasons, we affirm the circuit court’s judgment.
JUDGMENT OF THE CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
8
Bill No. 78-01 was not given express retroactive effect, and therefore, the repeal
of § 17-11-210 was prospective. See State Farm Mut. Auto. Ins. Co. v. Hearn, 242 Md.
575, 582 (1966) (“The general presumption is that all statutes, State and federal, are
intended to operate prospectively and the presumption is found to have been rebutted
only if there are clear expressions in the statute to the contrary.”) (Citations omitted).
Accordingly, unlike fees collected in FY 2003, claims for refunds of impact fees
collected in FYs 1997-2002, which were not expended or encumbered within six FYs
following the year of collection, were ripe prior to the repeal and may be pursued in this
case.
27