Court of Special Appeals of Maryland, No. 1031, September Term, 2013, December 2, 2014: Conservation easement enforceable, civil penalty for violation valid.
The case concerns the validity and enforceability of a forest conservation easement (“FCE”) on a subdivision lot purchased by Appellant McClure and the authority of a County board to issue a corrective order and impose penalties for violation of the FCE. As a condition for approval of the subdivision the Montgomery County Planning Board (the “Planning Board”) of the Maryland-National Capital Park and Planning Commission (“MNCPPC”) had imposed a requirement for grant and recording of the FCE on the subdivision developer who sold the lot to McClure.
While the FCE was never formally granted as a separate instrument, nor delineated on the subdivision plan of record, a Conservation Easement Agreement (the “Agreement”), which described and located the FCE in detail, had been recorded before McClure bought his lot. When McClure bought his lot, his deed made no reference to the FCE or the Agreement.
In the course of building a house and associated work, McClure altered the lot in was prohibited by the FCE as described in the Agreement. The MNCPPC issued a notice of violation and the Planning Board imposed civil penalties and ordered McClure to take corrective actions.
The court found that under Maryland statutes, McClure actually knew of the FCE and had constructive knowledge of it (was responsible for knowing, even if he didn’t have actual knowledge) and therefore the FCE was binding on him. The evidence showed actual knowledge because McClure signed various closing documents that referred to the FCE. He had constructive knowledge because the Agreement was recorded in the appropriate land records, where it could readily be found, and it specified in detail the boundaries of the FCE; this amounted to substantial evidence of the existence of an FCE on McClure’s lot. The question remained of whether, regardless of McClure’s knowledge, the FCE was valid without recording of a separate FCE instrument. The court held the failure of the County and developer to record a separate FCE instrument did not affect its validity, and the description of the FCE in the recorded Agreement was effectively the recording of the FCE.
The court also held, contrary to McClure’s position, that the Board has authority to enforce a conservation easement which was not recorded by deed. At issue was interpretation of the Montgomery County Forest Conservation Law (“MCFCL”), Montgomery Cnty., Md., Code §§ 22A-1 et seq. (2004). McClure argued that the MCFCL required that the FCE should have been noted on a re-platted subdivision to indicate its existence and without such replatting the Board could not enforce the FCE. The court rejected that reading of the MCFCL. Next, the court held that the MCFCL did not require an FCE to be stated in a deed restriction for the Board to enforce it, but rather a deed restriction is merely one of several methods by which a forest conservation plan may be “advanced.” Lastly the court held that under the MCFCL an agreement or restriction, such as an easement, that is “closely connected” with a forest conservation plan can lead to penalties for its violation. Because the court had found that a forest conservation plan existed for McClure’s lot, the court held that the Board had authority to issue a corrective order and impose civil penalties for violation of the MCFCL.
The court ordered McClure to pay the County’s court costs.
Decision available at http://www.mdcourts.gov/opinions/cosa/2014/1031s13.pdf.