by Jason C. Ridgell – In 1984, the Maryland General Assembly enacted the Chesapeake Bay Critical Area Protection Program for the purposes of restoring the declining water quality in the Bay and protecting the natural habitats in and around the Chesapeake Bay. This legislation created the Chesapeake Bay Critical Area Commission and authorized the Commission to adopt regulations designed to implement the purposes of the Program. The waters and land included under the Commission’s authority are defined by statute and designated as the Chesapeake Bay Critical Area. Each of Maryland’s counties with land in the Critical Area, such as Anne Arundel County, is responsible for developing and implementing a local program in accordance with the Commission’s regulations and subject to the Commission’s review and approval.
Anne Arundel County’s Critical Area regulations are contained in the Anne Arundel County Code. Included among these regulations are restrictions on the clearing and development of forested land within the Critical Area. In general, clearing of forested land in the Critical Area is restricted to 30% of a particular property. Further, the County’s approval of an owner’s application for a grading permit or any other permit relating to the development of land in the Critical Area, is conditioned on the owner’s execution of a conservation easement in favor of Anne Arundel County that restricts the development of the remaining 70% of the property.
The Critical Area Protection Program has faced much criticism and many legal challenges from owners of land within the Critical Area. The Souza Roy Firm was hired a few years ago to represent one such owner. I was later appointed as lead counsel on the matter and proceeded with litigation against Anne Arundel County. Although this litigation presented several challenges, I will most remember it because of the unique solution that was pursued and that ultimately resolved this matter in favor of our client.
968 Franklin Manor, LLC owns a 25 acre parcel of forested land located in Anne Arundel County. Almost the entire parcel is located within the Critical Area. In 2004, a former owner of this property was contemplating its development and applied to Anne Arundel County for a grading permit. In January, 2005, the owner executed a conservation easement in favor of Anne Arundel County as required by Anne Arundel County Code §17-8-901 as a condition to the County’s issuance of the grading permit. The development plan became bogged down and ultimately was abandoned without the clearing of any forested land or otherwise altering the natural state of the land. 968 Franklin Manor, LLC acquired the property in 2011. The grading permit was eventually released by the County in 2018 at the request of 968 Franklin Manor, LLC.
In recent years, a market has developed for the purchasing of conservation easements by private organizations. The organization will offer to purchase from the landowner a conservation easement over the land. Such easements restrict some or all development of the property subject to the easement. The Scenic Rivers Land Trust is one such organization.
In 2018, Scenic Rivers made an offer to 968 Franklin Manor, LLC to purchase a conservation easement over its property. 968 Franklin Manor, LLC was inclined to accept Scenic River’s offer but Scenic Rivers ultimately did not go through with the transaction because the land was already subject to the easement granted to Anne Arundel County back in 2005 for the grading permit and development that never occurred. 968 Franklin Manor, LLC made numerous requests of Anne Arundel County to terminate their easement pointing out that the County’s Critical Area regulation no longer entitled the County to the easement since the grading permit had been released and 968 Franklin Manor, LLC no longer wished to develop the property. When the County continued to refuse to terminate the easement, 968 Franklin Manor, LLC hired the Souza Roy Firm.
Despite the fact that the Critical Area regulations no longer entitled Anne Arundel County to the easement, Anne Arundel County refused to terminate their easement. After months of emails and letters with Anne Arundel County officials, the County ultimately took the position that they couldn’t terminate the easement because the Critical Area regulation didn’t specifically state that the County could terminate the easement under the circumstances of this case. Anne Arundel County maintained this position even after Souza Roy made it clear that 968 Franklin Manor, LLC was going to sue the County over this issue.
Of particular interest in this situation was Anne Arundel County’s apparent conflict of interest. Through my investigation, I learned that organizations seeking to purchase private conservation easements, such as Scenic Rivers, often receive funding through public means. In this case, the funds that would have been used by Scenic Rivers to purchase the easement from 968 Franklin Manor, LLC were being obtained from the Chesapeake Bay Trust, in connection with a grant program administered by the Chesapeake Bay Trust but funded with public funds by Anne Arundel County. Given its position as a regulatory authority over land in the Critical Area, I was surprised to learn that Anne Arundel County was also a participant in the private conservation easement market. It seems inevitable that this scenario will create conflicts of interest for the County.
Under the circumstances of this case, Scenic Rivers was offering to purchase a conservation easement over land owned by 968 Franklin Manor, LLC using public funds from Anne Arundel County. Scenic Rivers later discovered that the same land was already subject to an easement held by Anne Arundel County. Even though Scenic Rivers supported our request that the County terminate the 2005 easement so that Scenic River’s transaction could proceed, Anne Arundel County maintained position that there was no language in the Critical Area regulation that specifically permitted the County to release the easement. Considering that the terms of the conservation easement sought by Scenic Rivers would encompass 100% of the property, as opposed to the County’s easement, which protected only 70% of the property, it would seem that the County’s policies for the protection of land in the Critical Area would be better served by terminating the 2005 easement thereby paving the way for Scenic Rivers to purchase the more restrictive easement over the property. On the other hand, if Anne Arundel County already holds an easement over 968 Franklin Manor, LLC’s property, why would the County voluntarily terminate its easement so that Scenic Rivers could use public funds from the County to purchase an easement over the same property? The obvious incentive for Anne Arundel County in this situation would be to refuse to terminate the 2005 easement. The Chesapeake Bay Trust could then allocate the public funds it had intended to provide to Scenic Rivers for the acquisition of the easement over 968 Franklin Manor, LLC’s property for the acquisition of conservation easements over other property. In other words, why would Anne Arundel County want to pay for an easement over property when it had already received an easement over that property by operation of the Critical Area regulations?
To be fair, my investigation into this matter didn’t provide any direct evidence of Anne Arundel County’s true motivations for refusing to terminate the 2005 easement. It is inescapable, however, that the practical result of Anne Arundel County’s refusal to terminate the 2005 easement was that the County could retain the easement it already possessed and the funds that Anne Arundel County intended to provide to the Scenic Rivers through the Chesapeake Bay Trust could be used to acquire conservation easements over other properties.
Souza Roy filed suit on behalf of 968 Franklin Manor, LLC against Anne Arundel County for the termination of the easement. Litigation was proceeding in the normal course with discovery and pre-trial motions. It was expected that the matter would have to be decided at trial before the Circuit Court for Anne Arundel County. At one point during the litigation process, however, the client asked the following question to me: “If Anne Arundel County’s position is that it cannot terminate the easement because the Critical Area regulation does not specifically state that the County can terminate the easement, why don’t we try to change the law so that it requires the County can terminate the easement.” I admit that my initial response to this question was something to the effect of, “wouldn’t that be nice.” In that moment, I did not give serious thought to changing the law as a possible solution. There is an old saying attributed to Abraham Maslow that says, “If the only tool you have is a hammer, you tend to see every problem as a nail.” As a litigator, I am generally focused on maneuvering a client’s claims through the civil justice litigation process and obtaining a favorable verdict. My focus was no different in this case.
Over the next few days, the client and I continued to discuss this possibility. With little hope that it would amount to anything, I began assisting the client by writing to the members of the Anne Arundel County Council. My letter explained the problem and suggested the change in the county code needed to solve the problem, not only for 968 Franklin Manor, LLC, but also for any property owner faced with the County’s refusal to terminate an easement granted under similar circumstances. Councilperson Jessica Haire of the Seventh District understood the situation and agreed to advocate for the change being requested. At Councilperson Haire’s request, I drafted proposed language to revise Anne Arundel County Code §17-8-901. My proposed language ultimately became Bill No. 62-21 of the 2021 Legislative Session of the County Council. With the assistance of Councilperson Haire, Bill No. 62-21 was unanimously approved by the Council and signed by the County Executive in July 2021. As with all changes to Anne Arundel County’s Critical Area regulations, Bill No. 62-21 required the approval of the Chesapeake Bay Critical Area Commission in order to become law. Commission approval was obtained and the new Code §17-8-901 became effective October 8, 2021.
Armed with the new Critical Area regulation, Souza Roy demanded that the County terminate the easement against 968 Franklin Manor, LLC’s property. On November 2, 2021, and in compliance with the new regulation, the County recorded a Deed of Abandonment and Release of Deed of Easement and Agreement. With the termination of the easement, the subject matter of the litigation was effectively resolved, and the case was voluntarily dismissed.
Termination of the easement by the County was a great result for 968 Franklin Manor, LLC. Although I expected this result at the conclusion of a contested trial, obtaining this result by changing the Anne Arundel Code through the legislative process saved our client thousands in legal fees, eliminated the uncertainty of trial, terminated the easement several months before a verdict would have been rendered in the litigation, and created a lasting solution to the problem available to all owners of land in the Critical Area, not just 968 Franklin Manor, LLC. Changing the applicable law will not always be an alternative solution to litigation, but my experience with this matter reminds me that although litigation may provide a possible solution to a client’s legal problem, it is beneficial to explore other possible solutions as well. Going forward, I intend to try and be mindful that there may be tools in the box to help solve a problem other than a hammer.
ALL BUSINESS.™