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Ronald V. R. Spring v. William J. Bradley, Jr. et al. No. 121, September Term, 1998

Circumstances under which municipality may have duty to provide utility service to property outside its corporate limits.

Circuit Court for Talbot County Case No. 20-C-97-003183 OC IN THE COURT OF APPEALS OF MARYLAND

No. 121 September Term, 1998 ______________________________________

RONALD V. R. SPRING

v.

WILLIAM J. BRADLEY, JR. et al.

______________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: July 28, 1999

Appellant, Rodney Spring, owns a 13.26-acre undeveloped tract of land in Talbot County that lies adjacent to the Town of Oxford. It is separated from the town boundary by a 20-foot right of way. Since 1990, in an effort to obtain water and sewer service from the town, Spring has sought to have the town annex his property. Although at one point the town considered annexation, it has declined to annex, and it has refused to provide municipal water and sewer service to the Spring property absent annexation. In May, 1997, Mr. Spring got tired of waiting and filed this action in the Circuit Court for Talbot County to force the town to provide water and sewer service to his property. Claiming that the town had supplied such service to other properties located outside its municipal boundaries, Spring argued that the town had acted as a public service company and was therefore obliged to provide service to all properties outside the town limits, or at least his property, without discrimination. He sought a variety of mandamus, injunctive, and declaratory relief, all directed at requiring the town to provide service to his property. Finding that the town was not required to extend the service, the court entered judgment for the town and its commissioners. Spring appealed, and we granted certiorari on our own initiative before any meaningful proceedings in the Court of Special Appeals. We shall affirm the judgment entered below.

BACKGROUND Mr. Spring has owned the 13.26-acre tract since 1987. In August, 1990, he formally requested that the town annex the property so that he could construct "affordable housing"

on it. In May, 1992, the town planning commission, upon finding that the subdivision planned by Spring satisfied the State growth allocation plan and environmental criteria and, with one exception, met the town's comprehensive plan, recommended that the property be annexed. The one exception was the preference expressed in the town plan that Oxford remain primarily a single family residential community. The planning commission noted, however, that the proposed subdivision would offer the town a way to start an affordable housing program "in a painless way." In June, the town's attorney informed Spring that the town commissioners had agreed to have an annexation resolution introduced. The attorney warned, however, that the commissioners had not committed to final approval of the resolution, but only to consideration of the proposal. Spring was asked to prepare certain plats and other documents necessary to the resolution, which he did. At the time, the town was involved in completing the annexation of another property, known as Bachelor's Point, which had been under consideration since 1983, and it had before it as well another annexation request. Opposition from some residents of the town also surfaced to Spring's proposal. At some point, not entirely clear from the record, the town commissioners decided that one annexation was enough at the time, and they declined to introduce the resolution authorizing the annexation of Spring's property. The Bachelor's Point property was finally annexed in April, 1993. Thereafter, the town formed a committee to look into ways of encouraging the development of low and moderately priced housing. That committee's work was ultimately included in a revised comprehensive plan for the town adopted in 1997. The plan calls for land to be set aside for low and moderate priced single -2-

family and duplex homes outside the older section of the town and identifies certain areas for such development. Spring's property, along with others, is in one of those growth areas. As of the date of argument in this appeal, however, despite encouragement from the trial judge, the parties have been unable to agree to acceptable terms for an annexation, and no such annexation has occurred. Spring does not seek, in this litigation, to require the town to annex his property, although that appears to be his ultimate desire. He seeks, instead, to require the town to provide municipal water and sewer service to his property while it remains outside of the town boundaries and, as noted, he claims a right to that benefit based on the fact that the town has provided such service to at least three other properties lying outside the town limits. He insists that he be treated fairly and be given the same benefit afforded to others in his position. The town denies that he is being treated unfairly and contends that special circumstances attended the provision of service to each of the other properties. Town policy, it maintains, has been consistent -- that, as a general rule, it provides no service to property outside the town limits, and that the only exceptions to that policy are where (1) the outlying property has a failing water or septic system, thereby creating a health problem, or (2) the property is subject to an annexation agreement or plan. Spring's property, it avers, meets neither of those criteria. As we shall see when discussing the controlling cases, whether the town has an obligation to provide service to Spring's property depends, to a large extent, on how it has treated other properties outside its borders, so we shall turn to that now. -3-

The town sewer system was constructed in 1962-63. Immediately upon completion, service was provided to two tracts, known respectively as "Jack's Point" and "Park," that lay outside the town borders. Those tracts contained existing lots of record, some of which were improved with houses. At that time, Maryland Code, Article 66B,

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