*1 GROSVENOR, ROCKVILLE INC. et al. v. COUNTY, MONTGOMERY MARYLAND et al.
APARTMENT AND OFFICE BUILDING ASSOCIATION COUNTY, MONTGOMERY
et al. v. MARYLAND et al. 146, Term, September
[No. 1979.] Decided November 1980. *3 J., argued cause was before and Murphy, Smith, C. and JJ.
Digges, Eldridge, Cole, Rodowsky, Davidson Cromwell, James J. Tavel, with whom were James W. Cromwell, John Spriggs, Myers, W. Neumann and Nicholson & Spire, Barry P.A. and M. Fitzpatrick and McKeever, Fitzpatrick brief, & Canada on the for appellants. H,
Clyde Sorrell, County Attorney, Assistant with whom McGuckian, were County Attorney, Paul A. and Robert G. brief, County Attorney, for Jr., on Tobin, Deputy al.; by Kenneth B. Maryland et and County, Montgomery Commission Housing Opportunities for Tecler County, appellees. Montgomery Court. Cot.k J., opinion delivered Rodowsky, in part. JJ., part in and dissent concur and Davidson, J., in concurring part opinion an filed
Davidson, J., infra, joins. in dissenting part page in at Cole, Montgomery In the summer of 1979 Council its response of local laws in County enacted a series housing as a shortage of rental finding that there was apartment from rental developments result of conversions of apartment regimes. facilities to condominium Owners in the Circuit projects challenged these laws two actions They only partially County. for were Court appealed from the denial of the balance successful have granted no We cross-appeals. of the relief claimed. There are prior appeals certiorari the consolidated to consideration Appeals. principally the Court of The statutes Special (1) liability relate to converter tenants for displaced issue (2) expense, right relocation conferred on certain buy facility rental organizations to an entire which is Because proposed condominium conversion. these Property law local conflict with Horizontal (1974, (HPA), Maryland Supp.), Act Cum. Code Article, §§ 11-128 through Property of the Real we aspects. shall reverse as to those
I *4 of to the sale regulation relating has local There been beginning with County in Montgomery condominium units §58, ch. 1 which added County, of Montgomery 1974 Laws "Condominiums,” A, title, Montgomery 11 to the Chapter (1972). basically a consumer County Code This was a condominium protection developer statute. A disclosure setting forth prepare "property report” required was developer and the concerning information specified 78
physical, legal aspects and financial project. of the The prop erty report was to be filed with the County Office of Consumer Affairs and furnished to prospective purchasers. situations, In conversion written notice to each prior conversion, tenant together with a property report, by were to be developer. furnished As first enacted the 1 notice period county under law was days. 120 These appeals involve at least 6 local laws dealing with condominium conversion which were enacted between July 3, 12, February 1979 and 1980. According to a study2 by County transmitted Executive Council July 3, on approximately 10,400 1979 apartment county townhouse units in the had been converted from ownership rental to during period January through May 67,900 originally .1979. Of some units constructed for rental operation, converted, about 15.3% had been leaving a 57,500. net rental stock roughly 5,422 Approximately units had been during converted In period 1972-1975. January 1979, 1978 through May 4,000 units were converted or scheduled for conversion.3 day period originally public gen 1. The 120 enacted was consistent with law, (1974, 1974 Supp.), Property eral Md. Code Cum. 11-102.1ofthe Real by By Article as added Ch. 704 of the Acts of 1974. Ch. 786 of the Acts of Property 1975 the notice under 11-102.1 the Real Article was increased (a) days. Code, 20,1979 July by to 180 46-79 to increase the notice Mont. Co. 11A-5 was amended Bill period county days. law 180 Report Cooperative Group 2. on Condominium Conversions dated 2, July 1979. July report underlying 3. The describes the economic forces conversion trend as follows: supply developable ground 1. A limited exists within the County which: Forces residential values to increase at abnormal rates; (b) Encourages developers to look at conversions as a source of activity business as a substitute for new construction. depreciation 2. The tax reform act eliminated accelerated for apartment buildings. discourages acquisition old apartment properties investors This of older operation for continued rental seeking tax shelter. Many properties being running 3. of the rental now converted are depreciation through acqui- out of sition rental and must be turned over majority ready buyers existing new owners. The properties appear to be converters.
79 6,1979, July was enacted legislation, effective Emergency developer or for the provided It county council Bill 37-79. of relocation to of the cost up $750 to to reimburse converter 46-79, by Bill an amended Bill 37-79 was displaced tenants. contained July 1979. Bill 46-79 bill effective emergency contest. appellants four provisions Code, § 11A-4 day Montgomery County ñling. 1. 60 ... shall not "developerL4! that a provide to was amended of ... the sale contract for binding enter into a report. .. copy fa] . .. a unit unless condominium offering first at days sixty prior ... at least is filed of conversion to tenants.” sixty days prior the notice least to interval between this minimum Prior to amendment first of a unit was and the sale filing property report days. willing pay to 50% appear and to 30%
4. to be able Converters purchasers properties interested in than more for rental continuing properties on rental basis. such a oper- refinancing support acquisition continued and 5. to Suitable appears properties non-existent. of rental almost ation up regulations!, stepped government . code 6. Increased I activities, requirements reporting extensive enforcement under rising operating program, rapidly the rent stabilization costs, breaking "implied” rental income are and restrictions on properly maintain their landlords to down the resolve of disturbing It is properties keep on rental basis. to and them a reporting major properties rental the number of discover negative not reasons, owners, for have where unknown cash flows through approval necessary sought OLTA relief from rent increases. and associated 7. Federal State income tax laws The current and necessity making ownership a home levels of taxation are households which are upwardly mobile in terms of income. large early "baby market born the late 1950’s 8. The boom” 30) (ages showing preference for 20 to are now home 60’s ownership. generally market are small Households being apartment living. Their incomes are well suited for working expanded by having two or more members which homeowncrship makes accessible. existing ownership housing rapidly increasing value 9. The major County represents to investors. These a attraction reportedly playing major role in the a condo investors are by acquiring of converted units market in a between 10% 30% holding appreciation. project them for Developer develop "any person 4. means ... who ... undertakes project status or condominium construction either conversion condominium (1972. Vol.), Repl. buildings.” new Mont. Co. Code (9). § 121A-2 (c)
2. Relocation cost. Section 11A-5 was added county code to provide "[ujpon involuntary any tenancy termination which results from conversion, *6 developer the or converter shall tenants, displaced reimburse determined to in need of financial by County assistance under criteria established regulation, Executive the of reasonable costs as relocation regulations determined County under issued the Exec- up utive to a maximum obligation of $750.” 3. Moratorium on rental unit sales. Bill 46-79 also added (d) § 11A-5 which reads:
It shall be unlawful developer for a to enter into of any contracts for sale rental proposed units to be converted part to condominium units which of are project for which a property report.. . has been filed.. . until such time as the horizon- property regime tal pursuant is created to State (d) provisions law. The of Section 11A-5 shall cease to have force and effect 12:01 at a.m. Saturday, 10, November 1979. (d)
4. Moratorium on conversions. Subsection 11A-5 was complementary the moratorium on provided conversions 46-79, in Bill which facility "no owner of a ... rental shall issue a of notice intent convert to a condominium” period days July 13, for a of 120 from at the of end the which moratorium expired. (the subject
Bill 46-79 was the of equity case 68203 case”) "relocation cost the brought in court on August below 9,1979 by the appellants. certain of These include Rockville Grosvenor, Inc., the owner the Grosvenor Park Apartments 1,000 containing units, LaVay about rental Rockcreek, Inc., the owner the Rock Creek Garden Apartments containing about 500 rental units. These two pre-conversion owners had each filed property reports with given Officeof Consumer Affairs and to their tenants notice intention to create required by a condominium Md. (1974, Code Supp.), Prop 1980 Cum. 11-102.1 Real erty Article. 22, 1979 was limited to August 68203 on equity
Trial of validity for reimbursement relocation provision plaintiffs expedited desired an This was because costs. issue and hearing and on the reimbursement decision 68354, infra, had been filed on equity case described because Bill 21, 1979, remaining issues under August upheld decided. The trial court the relocation 46-79 would be of Bill 46-79 but found the cost reimbursement contrary to be to the local stat- regulation issued thereunder ute and void. effect, i.e., 26, July on days after Bill 46-79 went into
Six emergency another signed Executive enactment, for a provided right Bill 42-79. It certain facility to be a rental which was organizations purchase Bill in the sold. Both Bill 46-79 and 42-79 were attacked (the right "first appeal, Equity second case in this No. case). and Office Build- buy” Apartment In addition to the Association, included the owners ing plaintiffs that case *7 (371 units in Georgian Apartments of Woods Annex (345 in Wheaton), units Apartments Westchester West No. (120 Wheaton), Randolph Square Apartments units (61 Rockville), units in Silver Apartments London Terrace (859 Spring) Georgian Apartments units Towers Spring). Silver only September
The lifetime of Bill 42-79 was until repealed and re-enacted with 1979 when its were law, Bill emergency amendments another local 51-79. 19, 1979, the Equity September 68354 came on for trial on complaint include an attack on Bill 51-79 was amended to day. and the case was tried that same 11A-5C, § Bill Mont. Code. There was 51-79 amended Co. emergency legislative finding public 11A-5C of existing of resulting from the sudden increase of conversions rental 11A-5C projects. facilities to condominium Section (1) then provided: facility any
Prior to the transfer of title to rental dwelling contains five or more units made with intent to convert to condominium . .. facility
owner of such shall give certain organizations right . .. the of first refusal to pur- facility chase the rental days within a of 120 period from the date of notice ... on the same terms and conditions, and at the same purchase price, as any contained in agreement purchase contract or to pursuant to which said transfer of title is to be made....
The organizations entitled to right exercise the are "bona fide resident organizations tenants’ representing 15%, units, minimum of or five whichever is the greater ...”, Montgomery County number Montgomery County (b) (2). Opportunities Housing Commission. 11A-5C Prior to of the facility organizations transfer to purchase entitled given notice, are to be including written a copy of the contract between the owner and the proposed transferee. (c). § 11A-5C All transfers rental facilities are deemed to be with intent to convert to condominium unless contract purchaser files an affidavit with the Office Consumer not, Affairs disclaiming intent convert and does for two years title, give after transfer of tenants notice of intent to Maryland create a condominium under the HPA. The local declares if purchaser year statute that within two period convert, notice gives "thereupon” of intent he holds trust,” facility title to the "in subject right of first specified organizations. refusal during period If convert, owner gives then notice to tenants of intent he satisfy requirements required 11A-5C "as an owner and as a purchaser facility contract with a rental terms, a deemed purchase contract of with identical purchase conditions and as price purchase by that contract of *8 which the contract purchaser became owner of the rental (d). § facility.” 11A-5C a exemptions There are number of provided, none of which exclude of purchase would a contract between parties willing, compelled, sale but to pur (1) chase or (g) sell. Under 11A-5C it to trans is unlawful any facility fer title to any rental or to offer or sell unit, condominium except compliance with the section. One who violates payment 11A-5C "liable for the 11A-7 151...” Section penalty specified County of a civil (2)) (§ a misdemeanor” which "guilty of (g) and is 11A-5C to 6 $1,000 imprisonment upof or up a fine of carries (4) (3)). (§ By (g) § 11A-5C (g) or both 11A-5C months 161[are] in Section 11A-7 provided and remedies "penalties 11A-5C].” [§of to violations applicable pur- for 51-79, agreements "[a]ll contracts Under Bill convert, intent facility made with rental of a chase thereto, contingent upon shall be pursuant title obtained Vol.), pertinent part (1972, Repl. § 11A-7 in 5. Mont. Co. Code provided: (e) by the office of consumer affairs it is determined Whenever chapter ... that office is a of this that there has been violation authorized, with one or more at its discretion to commence following procedures: (1) Attempt conference or the matter to conciliate agreement; or conciliation otherwise and secure a written (2) which shall assurance of discontinuance Seek written signed by developer of consumer and the director the office be affairs; or (3) orders; appropriate and desist or Issue cease (4) attorney injunctive county for or Refer the matter to the appropriate legal other action. (d) any provision chapter Any person ... who violates county penalty, payment to the of a civil shall be liable for the action, in not more than five in a the sum of recoverable hundred dollars for each such civil violation .... (e) any developer any It to offer for sale shall be unlawful any developer unless such has condominium unit in county property report first terms of this with the accordance with filed developer provision chapter. Any who violates this upon guilty shall be shall subject of a misdemeanor and conviction thousand dollars or not more than one to a fine of months, imprisonment period or both. for a of not more than six (f) penalty provided, any or other herein In addition to criminal proceeding injunctive violation of this appropriate to correct a action or or other county attorney’s chapter may be instituted competent jurisdiction issue office and court orders, permanent injunctions restraining temporary or other or appropriate forms of relief. exercising any any person (g) Nothing prevent from herein shall person might right be entitled or from seeking any remedy otherwise to which such filing appropriate complaint court of with a an equity. law or in 11A-11 Complaint, penalty are now found and enforcement Bill 92-79. 5. 6. See footnote
84 requirements full with the subject compliance and (b) (3). § 11A-5C [§ 11A-5C].” 1, February on 1980. expired by Bill 51-79 its terms 21, 1979, in the By judgment final entered December its forth in a buy case and for the reasons set right first 6, 1979, the trial court held filed December opinion written moot, Bill 46-79 to be but provisions moratorium provision of 11A-5C valid. It held the criminal otherwise (3) presumption invalid because of the of Bill 51-79 to be (g) (1) (d) all transfers of rental § 11A-5C under which units are deemed containing dwelling 5 or more facilities In all other intent to convert to condominium. transfers with county the court below sustained the challenged respects statutes. council
II to dismiss three issues as appellees In this Court move on rental unit sales moot. One involves the moratorium 10, relates 1979. The second issue expired which November days 120 expired on conversions which to the moratorium 13, are moot. July 1979. These two issues after that issues are of manifest urge these Appellants concern, that failure to decide the issues imperative public interest, they acted that have public will be adverse to the promptly to have the issues diligently aggressively determined, likely are to recur that the issues involved obtaining on a final same time constraints involving in a case future adjudication likely are to occur likely expiration term dates will because near prohibitions two do not believe that these be inserted in the statutes.7 We "may frequently recur.” questions are questions County Bus Anne Arundel School Attorney General v. 324, 328, A.2d Association, Md. 407 286 Contractors prohibitions Appellees under which 7. contend that prevent days effective not intended to to maintain were would after self-destruct quo solely while the status judicial review but were intended effectively and it could most studied how Council emergency. perceived comprehensively address the (1979). likely it cannot be said particularly, More will recur the same prohibitions frequently these two on which we are expired statutes expressed form as rule. asked to relating suggest that all issues
Appellees further
*10
are moot because
buy
of Bill 51-79
right
provisions
first
to
1,
However, appellees
1980.
expired February
that bill
is addressed
subject
matter
acknowledge
97-79, emergency
legislation. Bill
subsequent
local
30,
January
County
Executive
legislation signed
1980,
Code, § 11A-5C
County
again
Montgomery
amended
by Bill
by Bill 42-79 and amended
which was first enacted
92-79,
signed
enacted and
51-79. Then Bill
which was
ordinary
February
and
became effective as
which
26, 1980,
11A the
legislation May
Chapter
re-enacted
The
refusal
Montgomery
right
Code.
of first
Chapter
continued in
11A as HA-9. While the criminal
(3)
previously
(g)
sanction
found in subsection
has been
eliminated,
were
provisions
the substance of the
before the trial court remains
in effect. Under
these
relating
right
buy
circumstances issues
to the first
are not
Bladensburg
Berg,
moot.
v.
216 Md.
Thus, the issues presented justiciable which are involve validity reimbursement, of relocation cost of the first right buy, day filing requirement. and the 60
Ill Appellants deny and appellees claim that the County laws in issue here are void under Maryland Constitution, XI-A, Section 3 of Article the Home Amendment, Rule these because local laws conflict with law, public general Appellants the HPA. find appellees and support statutory provisions the same and his- legislative tory opposite for their positions.
The HPA by Chapter current was enacted 641 of the Acts replaced 1974. It a condominium in 1963. statute enacted Assembly in a to the General proposed Act was
The 1974 sections, by statutory proposed on the comments report, with Property, of the Real Committee Revision the Condominium Maryland Bar State of the Zoning Section Planning condominium, to conversions respect With Association. enactments, report the committee subject of local and on the follows: as observed heavy burdens imposing jurisdictions are
Some convert... . developer who desires on the ownership of an form of area of conversion social significant building involves existing establishing a delicate includes considerations under leases rights of tenants between the balance prop to use the rights of owners and the best, to be sub they determine in the manner erty other existing tenancies obviously, to ject, Therefore, parties. to third rights granted subject that this entire recommends Committee commission; supports it House study to a referred *11 10.181 No. Joint Resolution sufficiently the emphasize cannot The Committee the General it attributes to which importance govern will statute that Assembly passing one this entire State so condominiums is development of real estate important phase new county by county basis. See on a not sectionalized popularity using counties are 11-120. Some impose interest in condominiums the consumer’s the ones different than that are regulations basis buildings. There is no apartment applicable it is when fact for such a distinction in reason or merely a differ- is that a condominium remembered the same structure. ownership of title to ent form of instance, does not believe the Committee For rating fire stringent county impose a more should study have group was to pass. The did not Resolution 8. The Joint Assembly. reported to the General merely the unit building of a because on the walls in the units. Tenants burn own an interest owners respectable owners and a rapidly as just as tenant, who has a can be made that argument interest in the struc- property lesser and financial by higher minimum ture, protected should be rating If the fire is an owner. requirements than building in a is wall inadequate for a inhabited, be amended to building code should building, rating for that adequate an require ownership of the regard to the form without text.] occupied [Emphasis areas. Property Article §is 11-120 of the Real
Critical here and which reads: unchanged remained since 1974 which has regulations. Zoning building 11-120. and title, Except provided as otherwise laws, ordinances, provisions regulations of all concerning building zoning or shall have full force they apply property effect to the extent that subjected regime which to a condominium is with reference to the applied shall be construed and overall nature and use of the without law, ordinance, regard ownership. to the form of No any regulation may requirement or establish or use, location, or governing placement standard any improvements construction of land and which title, provisions submitted to the of this unless are uniformly or standard requirement improvements to all land and same applicable kind or character not submitted
this title. jurisdiction may county, city, No or other law, ordinance, regulation
enact *12 impose would a burden or restriction on a imposed prop- condominium that is not on all other erty subjected of similar character not to a law, ordinance, regime. Any condominium such or regulation, is void. a committee comment. It this section is
Accompanying states: ll-120(a) part derived in from is
Subsection
The last
version of this Title.
§ 11-125 of the 1972
sentence,
ll-120(a) and subsection
of subsection
ll-120(b)
laws, etc.,
adoption of local
constrain
standards, building
different land use
apply
which
and the like to condominiums
requirements
code
to other
applied
would be
than
not submitted to
substantially
in character
similar
firmly
The Committee
of this Title.
provisions
matter of title
is a
that "condominium”
concluded
of land
(i.e.,
and not a matter
ownership)
a form
substantially
are
provisions
These
zoning.
use or
other
adopted
several
as those
the same
711.21, Florida
(e.g., Chapter
jurisdictions
Statutes)
has
in this section
matter treated
and the
Bridge
jurisdictions.
in other
already
litigated
been
Park, 113 N.J.
Highland
Borough
v.
Park Co.
(1971); Maplewood
A.2d 397
Super.
Village,
Maplewood
v.
Tenants Association
Village
(1971).
372,
Also relevant provides: supplemental. § 11-127. Title additional in addition and this title are provisions public other to all supplemental laws, any local laws, local public general in the State. enactment unit,” family words, residential "single If the denoting "blocks,” designation other or
"property,” Code, public local land, in the appear a unit to a enactment, a reference laws, any local or appro- whichever regime, unit descriptive these after inserted deemed priate, is this title. implement appropriate where terms *13 (c) application provisions If the of this title of application provisions conflict with the other of laws, laws, public any public general local or enactment, State, in the of provisions local title prevail. shall the prohibitions
The trial court held that of 11-120 only relate to those local laws concern matters of land which use, zoning building requirements or code and do not prohibit regulations presented the economic here. To reach necessarily scope that conclusion one must read into the of (b) prohibition expressed 11-120 the limitation (b) §if county "[n]o as 11-120 stated that ... [concerning enact law ... building zoning] or would impose a burden or restriction on a condominium that is not imposed property on all other of similar character not subjected regime.” reading, to a condominium Such a how- ever, presents prohibition a number of difficulties. The (b) § 11-120 unqualified type terms either as to the law or as to purpose prohibition law to which the (b) only is addressed. The criterion in subsection law, identifying proscribed impact law it is the of that condominium, way of burden or restriction on a as compared thereof, impact, property. to its or lack on similar (b) Further, were the addressed in impliedly laws subsection limited "concerning building zoning,” impliedly to laws or or use, location, limited to "governing placement laws or condominiums, construction” of as in subsection expressed (b) (a), then A surplusage. subsection is rendered law use, concerning or building zoning, governing or one loca- tion, construction, placement or impose which would burden or restriction on a condominium which is imposed property on all other in viola- similar character tion of requirement subsection is a law whose is not "uniformly applicable improvements” to all land and HPA, whether or not submitted to the and would violate (a). subsection
In the context of the tax assessment HPA, original statutory general we reiterated the rule of that, contrary construction absent clear indication to the that no "a statute is to be read so reasonably possible, if shall be rendered word, clause, phrase sentence or nugatory.” meaningless, surplusage, superfluous, Arundel v. of Anne of Assessments Supervisor 586, 590, Harbor, 369 A.2d 279 Md. Southgate (1977). fortiori, applies to subsections. A the rule comment to heavily on the committee rely most
Appellees *14 the entire interpretation limited of support § 11-120 to that on the statement placed is emphasis section. Particular (a) and subsection 11-120 "last sentence of subsection the laws, etc., which adoption of local 11-120 constrain the standards, building code use different land apply The two to condominiums ....” and the like requirements are referred to the Jersey which decisions in New zoning.9 land use and comment involved in the committee comment the discussion While which zoning and planning, limited to the 11-120 is accompanies (b)’s areas, to see how subsection building we fail thereby restricted. The "any law” is unqualified reference exhaust the suggest that its illustrations comment does not contrary, it states that the intended of 11-120. To the scope standards, building land use constrained are different laws Moreover, the like ....” requirements code "and Assembly, makes committee, in to the General report its prohibiting is broader than policy objective clear a which against which discriminate zoning building and laws said §to 11-120 the committee By condominiums. reference it sufficiently importance emphasize it "cannot which statute that Assembly passing one attributes to the General that this in the entire State so govern condominiums will development real estate is not phase new important 219, 273 Park, Highland Super. Bridge Borough of 113 N.J. 9. Park Co. v. (1971) municipality power granted no to a A.2d the state held there was 397 buildings regulate ownership that zoning enabling and act to physical ownership and not of was a matter of conversion to condominium use. Village, Maplewood Village Maplewood Super. Association v. Tenants (1971) municipality recognizes could that a N.J. 282 A.2d approval condominium of an require for the conversion to not apartment statute of subdivision zoning the state town because house which conformed to the applied use required zoning the nature and based on laws ownership. withogt regard form of a condominium by county on a is this county sectionalized basis.” It broader (b). objective which is addressed subsection 11-120 Section 11-120 can be interpreted best and harmonized history legislative with the order in reversing the which concepts presented general are in the section. rule (b). It county may stated subsection is that no enact law would impose which a different burden or restriction on prohibition condominium. This is unlimited includes A building zoning special laws. is stated in rule (a). concerning subsection To building the extent laws zoning apply subjected which is to a regime, effect, such laws have full force and they subject interpretation but are rule of they condominiums under are and applied "construed with reference to the nature of the property overall and use regard without The second ownership.” the form sen- tence of subsection perimeter draws the outer application, under the special interpretation, zoning and building laws to condominiums then applying same (b). policy found in general as rule of A subsection law "governing use, location, placement construction *15 any land and improvements” applied is not to be to a condominium, looking use, even to its overall nature and if "requirement the law’s or standard” is not uniformly applicable to all improvements land and of the same kind or character, whether or not submitted to the HPA. interpretation
This of the relationship between the two § subsections of 11-120 is reinforced to reference Florida 1969) (now (West § Statutes Ann. 711.21 Fla. Stat. Ann. (West 718.507 the Supp.)) which committee comment being describes as the "substantially same” as provisions those of 11-120 which in are described the In below, comment. the comparison the of the text Florida case, is in regular Maryland statute from it deletions are Maryland bracketed and additions are italicized.
Except title, as provided otherwise in this the provisions laws, of all [All] ordinances and regulations concerning building[s] zoning or shall full to they
have and effect the extent that force to apply subjected which is property regime condominium and shall be construed and applied with reference to the nature and use overall property regard [such] of the without to the form of ownership. law, regulation [shall] ordinance or No may any [concerning] requirement establish or , location, the governing [or] standard use or placement [buildings other] or construction [, any land improvements and which are to the form subjected be thereafter title, ownership,] to the submitted unless requirement [such] [shall the or standard be uniformly applicable [buildings] all is equally] land and of the same kind or char- improvements subjected [then acter not or thereafter condominium form of submitted to ownership.] the title. provisions of this (a) apparent concept Maryland
It is the 11-120 all in version counterpart which has no at the Florida is recognition building zoning and express of force effect to §in express laws. This is dictated recognition presence prohibition against different general § 11-120 burdens of on condominiums in type against guard is absent from the Florida statute. To prima on a facie possible voiding building zoning laws (b), such laws are under test set forth subsection basis expressly preserved subjected special rule for testing validity test of interpretation before (a). subsection § 11-127 the
Much the philosophy same embodied only Property Real which we here discuss with Article only those local respect to its effect on local laws. Because differently than adversely laws which affect condominiums A, by § 11-120 of HP other similar are voided *16 non-discriminatory local conceivably many there are laws to It with reference apply which could to condominiums. is HPA non-discriminatory speaks that such local laws to all stating supplemental it "in addition and when is 93 in the State.” any local enactment provisions of .. . other (a). of the negates also intent provision This 11-127 exclusively occupy to Assembly completely General condominiums. We respect with to legislation field of the HPA has appellants’ contention reject therefore matter, similar subject of the preemption resulted in a total for property of real state of the assessment preemption Realtors, taxes, County Board of Inc. Montgomery 101, (1980), 411 A.2d County, 287 Md. 97 Montgomery v. Arundel education, McCarthy Board of Education of Anne v. (1977) election County, A.2d 1135 and of 280 Md. County for financing regulation, Council campaign Ass’n, 52,Md. County Montgomery v. Montgomery (1975). A.2d 596 non-discriminatory for variety local laws
Because the without may denote a unit of land particular purposes their ownership and condominium form of reference to the existing body HPA on a superimposed because the law, § 11-127 of the HPA deems inserted statutory HPA, a implement” appropriate such laws "where regime.” "reference condominium unit or In the event of to a HPA provisions of the of the with application conflict law, the HPA application provisions of the of local (c). prevails. between
We shall now consider whether a conflict exists County laws the HPA and the which remain as issues.
IV by Montgomery local law obligation imposed developer displaced on the converter reimburse tenants triggered up cost ofrelocation is reasonable $750 any tenancy which by involuntary "the termination of . ...”10 results from a condominium conversion provision Bill Mont. Co. first enacted 37-79 as 10. The which was (c) Code, verba Mont. haec Bill 92-79 as 11A-5 has been re-enacted (c). Code, § 11 Co. A-7 *17 94 offering by developer "the for sale a ...
"Conversion” means previously were rental of condominium units that units.” (8). (1972, Vol.), Repl. § 1977 11A-2 Mont. Co. Code "any term means "Offering” is a definitional public general inducement ... or announcement to the to acquire a condominium unit person a to encourage (10). Code, § 11A-2 Mont. Co. in a condominium.” "Condominium,” turn, subject means to the "property pursuant condominium established to the Horizontal regime (5). Code, § 11A-2 Act of the state.” Mont. Co. This Property (d). HPA, essentially Under is the definition 11-101 the HPA, Article, Property "[t]he the Real owner any may property the property subject in the State to a regime by recording among condominium the land records of county located, declaration, property the where the is a bylaws, plat comply and condominium with the specified in” requirements the HPA. as provides occupying
State law that each tenant his subjected be portion property residence which is to to given shall be of intention to regime a condominium notice days property a at least 180 before the create HPA, § subjected regime.11 to 11-102.1 is a condominium (a). ordinarily A whose lease termi residential tenant would during day period the is entitled to have the term nate HPA, expiration day period. extended until the of the 180 (d). County Montgomery 11-102.1 No residential tenant in subjected may "involuntary to an termination” the tenancy be converted until the time when required to condominium the recordation Montgomery County burden of documents. Thus the cost a burden on a relocation reimbursement law is condominium.
Tenant relocation cost reimbursement involuntary those applies only law to Montgomery terminations which result "from condominium conversion day period law in 11. is extended local Whether present County issue. determination is irrelevant is discussed infra. Its if the owner required reimbursement relocation ...No refuses to complex apartment or apartment house of an rent, desire to continue tenants who leases of renew facility to a convert plans the owner because rights occupy and sell apartment cooperative apply reimbursement relocation units. Nor does apartment plan from a to raze resulting involuntary termination use. business commercial facility and convert to rental now codified as reimbursement The relocation *18 (c) Code, a burden on "impose § 11A-7 Co. Mont. property all other imposed on that is regime” and subject to a condominium character not similar of local on the exercise by of the limitation are void virtue (b). HPA, § by 11-120 power imposed legislative question not reach the emphasized that we do It should be county, if free of the restriction a charter of whether (b), validly presented in the manner legislate § 11-120 could here, of circumstances which response in to a combination county. to that peculiar are
V buy to right a first certain provisions for § Code, organizations which are now Mont. Co. 11A-9 come play by into when a contract is made the owner of a rental facility buyer intends property to sell the to a who to convert appellants’ One of assertions property to condominium. Md. Const. art. right buy is the first to law violates that XI-A, of the HPA § 3 of conflict with because (b).12 persons § is contended that other than 11-120 It to state law pursuant to condominium seeking to convert by being deprived of the prevented doing from so there are by party. to another Because property forced sale buy case right in the first to apartment appellants owner testimony they were restricted stipulated whose was facilities, they contracting their rental local law to sell HPA, prohibited with 12. there is conflict Because we decide (a), unnecessary appellee’s first contention that the it is to address HPA, § right buy with 11-120. to law is not conflict 96 Wulff,
have standing Singleton to raise the issue. Cf. v. 106, 112-13, 2868, 2873-74, U.S. S. Ct. 49 L. Ed. 2d (1976) (Physicians who would be denied reimbursement performing medicaid funded abortions suffer injury-in-fact standing challenge and thus have to state stat excluding "medically ute benefits for abortions not indicated.”) law,
Under the right buy scheme the first as set forth 51-79, in Bill if the purchaser acknowledges contract title, intent to convert and gives notice before transfer of one of the designated organizations may buy and the contract purchaser will not acquire accomplish If purchaser conversion. the contract an files affidavit under (d) (1) convert, 11A-5C disclaiming intent to the transfer may proceed complying without with the notice of first rights. refusal If the affidavit false and the contract to purchase was made with intent to convert then 11A-5C (3) says that the contract "and pursuant title obtained thereto, contingent upon subject shall be full compliance requirements” right buy with the of the first If, transfer, years law. within two after the transferee (or decides to convert previously first manifests notice a convert), specified undisclosed intent organizations *19 may right buy by exercise the first and the conversion the may transferee owner be prevented. principle determining type
The
the existence of the
of
conflict which would void a local law under Md. Const. art.
XI-A,
City
Firey,
in
Baltimore
3 is set forth
v. Sitnick &
(1969).
303, 317,
376,
382
said:
254 Md.
A.2d
We
opinions
A
we have cited leaves
distillation
thought
political
the
that a
subdivision
residual
may
by general public
what the State
prohibit
may
permitted,
prohibit
law has
but it
what the
another
expressly permitted.
State has not
Stated
an
way,
general public
unless a
law contains
by
authority,
to act
local
express
right
denial of the
activity
the
certain
in a field
prohibition
State’s
activity
that all other
impliedly guarantee
does not
regulation
in
shall be free from local
such a
situation the same field
thus be
opened
supplemental
regulation. [Emphasis
local
in text.]
Firey
higher
wage
Sitnick &
sustained a
minimum
rate
City
under a Baltimore
ordinance than was required under
wage
principle
the State minimum
law. The
is also
by
applications
illustrated
its
to features of the Montgomery
County landlord-tenant relations law which was before this
Court
in
Montgomery County
Council for
v.
Funding Corporation,
Investors
270 Md.
There is clear conflict the instant matter. Section (a) expressly permits any property the "owner of [to] State subject regime” to a condominium declaration, recording bylaws plat. Under Montgomery County law the owner prohibited transfer is period for a years subjecting of two from to a *20 property the regime by as allowed state law. That property parties, any
transferee must first offer the
to third
by
one of whom
defeat the conversion
compelling sale
to it. If the owner
the
he
comply
does
with
local law is
and,
subject
injunction
at a minimum
to civil penalty,
law,
theory
the
of the local
an action to enforce the trust
which the statute
to impose upon
undertakes
the owner.
application
buy
the
right
first
to
law to a sale and
convert,
purchase, with intent
in the interval between
contract and transfer of title also violates Md. Const. art.
XI-A, § 3 even
that
though during
period
property
is not
HPA,
(d),
a condominium under the definition in
11-101
though
purchaser
yet
and even
the contract
an
is not
HPA,
property
"owner” of the
as that
term is used in
(a).
constitutionally
prohibited
There is
conflict
prohibit
where the effect of the local law is to
that which the
public general
expressly permits.
example,
law
For
Property Recapture
imposed by
"Real
Tax”
local law which
Realtors,
Montgomery County
was involved in
Board of
Inc.
"
Montgomery County,
sought
impose
v.
supra,
'upon
property
occasion of the transfer of real
... a tax on the
amount which the taxable value of such
on the
date .of
recognition exceeds
assessed valuation of the
”
property.’
103,
"Despite wording
Id. at
99 retaliatory, the landlord was that the eviction determined and, ultimately, criminal to administrative subject was to alter the persuaded were not In that case we sanctions. public general law conflicted with that the local conclusion summary "by evictions the fact that relating to law indirectly and operate[d] [local law] of prohibition 236. circuitously.” Id. at 312 A.2d at operates to right of refusal matter the first In the instant facility as soon as a contract of a rental allow forced sale to convert to an intent facility of such a manifests purchaser the first Thus, buy to under right if the condominium. exercised, the contract prevent is to law is the effect refusal intent fulfilling the obtaining from title and ever purchaser even operates refusal law property. The first to convert expressly permitted directly that which is prohibit more retaliatory evictions for by state law than did sanctions hold the first Funding. We therefore invalidated Investors right of refusal law to be invalid.
VI by Bill 46-79 day filing provision The 60 arises under (a) Code, § 11A-4 Montgomery County provided which binding "shall not enter into a contract part developer that a [a] for the condominium unit .. . unless ... ... sale the . .. Office of copy property report of a ... is filed with days sixty prior Affairs at least first Consumer sixty days to the notice of conversion offering prior or at least appellants’ We assume the correctness of tenants.” filing days prior 60 interpretation provision that exclusively the notice of conversion is the alternative an involving existing conversion of applicable situations facility.13 closely provision The related rental most that least 180 provides "[a]t HPA is 11-102.1 which regime days property subjected before is to a condominium HA-4(a) 92-79, Code, § repealed 13. and re-enacted Bill Mont. Co. As copy property report prohibits filed unit sales unless a of a is condominium and, conversions, sixty days prior prior offering in the case of "at least to the first days sixty at least to the notice of conversion tenants.” notice of give ...” the owner shall to residential tenants a HPA 11-120 is not intention to create condominium. is not a when impinged because day triggered. day require filing provision is The 60 days ment the time which a postpones number at may first notice of intention to create a condominium not, face, on its given under state law but does have effect (a). conversion HPA preventing day filing provision to another requirement companion receiving law the time of requires "[a]t local *22 conversion, provided prop be with a notice of tenants shall Code, (a), § 11A-5 re-enacted erty report....” Mont. Co. as by Bill with amendments 46-79.14 there is conflict the presented No contention is report the which is to be filed required content of property HPA, including the under local law and the of of to create a condominium content the notice intention argument is that the Appellants’ 11-102.1 thereof. creating condominium privilege restriction on the of a 60 with the regime day requirement the conflicts imposed creating HPA owner from a prohibits property because it may as he We hold regime at such time select. condominium The local law does not prohibited that there is no conflict. expressly by public general is prohibit permitted that which merely 11-102.1 of HPA measures back in law. Section the create a filing time from of the documents which the period the of notice which regime minimum required are to receive before conversion. residential tenants fix an event or combination of The HPA does specific of a of time beginning period circumstances as the accomplished as a matter of after which conversion Indeed, HPA, § law thrust of 11-102.1 right. state operates on tenants. It protections confer residential of prohibition restrict of owners. The State’s rights day period minimum 180 effecting during the conversion activity shall be guarantee "does not that all other impliedly Code, § provision is Mont. Co. 11A-7 14. the identical Under Bill 92-79 (a). in such situation same regulation free from local regulation.” supplemental local opened to may thus be field 254 Md. Firey, supra, at v. Sitnick & of Baltimore City at 255 A.2d 382. day requirement further contend
Appellants of prop the use restriction on an imposes unconstitutional Clause of the Fourteenth Process erty in of Due violation viola Constitution United Amendment States Rights. Maryland Declaration 24 of the tion of Article Court in the Circuit opinion an They refer Code, Mont. Co. County which invalidated Montgomery by 1974 Laws originally enacted 11A-4 as property report County, ch. 58. At that time days prior to the notice of least 10 was to be filed at decision on this of the trial court ground conversion. The to limit the time failed within was that the ordinance point complete its Affairs was to the Office of Consumer which this held to constitute report was review the 46-79, Bill restraint on alienation. While an unreasonable contained no appeal, trial on which was before the court review, appellants’ this feature period limit on the moot Bill 92-79 does argument been rendered has review.16, impose time limits on administrative *23 50058, Montgomery County, Equity No. 15. Freeman v. & Associates 22, 1974. decided November (a) (1) (d) Code, 92-79, provides: § 11A-4 16. Under Bill Mont. Co. report The Consumer Affairs review the Officeof shall days compliance and shall within 60 for with Section 11A-3 either notify agent accept decision. days report reject developer of the it the or its or Affairs act within If the Office of Consumer does not 60 accepted. filing, property report shall be The of the deemed developer Office of Affairs shall the Consumer communicate with any requests agent, thirty days receipt filing, the or additional information If the the reasons and the information Affairs within of of identify any report. in the or to deficiencies report specify rejected, Affairs shall is the Officeof Consumer which the Office of Consumer necessary complete disclosure as to a full and as views contemplated by property report A which has Section 11A-3. been amendments, rejected may the with Office be resubmitted of notify developer agent or Consumer Affairs shall review it and the acceptance rejection days. If the within 30 Office Consumer days, notify developer 30 Affairs not so the within the does accepted. report amended shall be to have been deemed express opinion provision its This before us we no on effect. is not 102 day
The combination 180 of the notice period under state the day filing period law, law with 60 under local for an waiting period effective of at least 240 days before property subjected may be to a regime, condominium does not offend In process. due West Westchester No. Limited Partnership Montgomery 448, 454-55, County, v. 276 Md. 348 A.2d (1975) we Montgomery County sustained the rent control ordinance and said:
This pointed Court has out on numerous occasions that the test for constitutionality of regulatory legislation under the Due Process statute, Clause is whether the as an exercise of the police state’s power, "bear[s] real and substantial health, morals, relation to the public safety and welfare of the of the [cit. om.] citizens State.” How- ever, in applying test the perform very courts limited function. Unless the police exercise of the power by the Legislature is shown arbitrary, to be unreasonable, oppressive or the courts will not Moreover, om.] interfere with it. [cit. the wisdom or expediency adopted of a law the of the exercise power police of a is not subject judicial state review, and such a statute will not be held void if there are considerations relating public by welfare supported. which it can be day requirement reasonably is related both to the protection objective property report consumer and to public objective welfare minimizing impact of resulting residential lease terminations from conversions time providing provided additional to state law within which tenants who will dislocated housing find substitute once the owner’s intent filing convert manifested property report Office with the of Consumer Affairs. Council,
Testimony Montgomery County before the Report of the Cooperative Group on Condominium Conversions and the legislative findings *24 bills the series of condominium County Council embodied in 103 more than the in the of 1979 reflect far summer enacted existed which a state of facts possibility that reasonable day filing 60 in the involved sustain classification would equal protection so no violation requirement, that presented here. Bill 46-79 was reject also contention appellants’
We A emergency legislative bill. in fact valid and not emergency is conclusive determination Maryland-National Park E.g., Capital v. Biggs reviewable. Commission, 220 Planning 269 Md. A.2d (1973). 46-79 is day of Bill severable filing requirement
The 60 expense of relocation provision from the for reimbursement In bill. of the part light which was enacted as that same Executive, County County efforts by intensive Council, agencies and administrative sector, County, as well directed by groups private as county rental of the preserving toward stock ameliorating resulting from condominium dislocations conversions, day completely we are the 60 satisfied had filing requirement have been enacted would known relocation expense Council that the reimbursement provisions City of Bill 46-79 were invalid. Baltimore v. (1961). Co., 379, 174 A.2d Stuyvesant 226 Md. Insurance VII following provisions For the we hold the foregoing reasons Montgomery County Code be invalid: provisions 1. The relocation cost reimbursement 37-79, Bill (c), 11A-5 and re-enacted enacted by Bills 46-79 and 92-79 and now codified as (c). § 11A-7
2. The right of first refusal enacted as 42-79,
§ 11A-5C by repealed Bill and re-enacted 51-79, with Bills 92-79 amendments and now as codified 11A-9. *25 (a) day requirement §
The 60 filing enacted as 11A-4 by Bill 46-79, repealed and re-enacted with by amendments Bill (a) § 92-79 and (1), now codified as 11A-4 is valid. Judgment Equity in No. 68203 i eversed.
Judgment Equity in No. 68354 part affirmed in and in reversed part.
The cases are remanded to the Cir- cuit for Court County the entry of decrees consistent with this opinion. Costs paid by to be one-half appellants one-half appellees.
Davidson, J., concurring in part dissenting in part:
I agree majority’s holding with the that the day filing provision Montgomery of [M.C. § Code Code] 11A-4 (a) (now (a) (1)) § 11A-4 respect is valid. With right of (now first refusal provisions § of Code M.C. 11A-5C 11A-9), § I agree further majority’s with the holding that (d) (2) § M.C. Code extent, 11A-5C To is invalid. this I concur majority’s result. I however, do agree, majority’s with the holding that remaining right first refusal provisions of M.C. Code § 11A-5C are Nor I agree do with the majority’s invalid. holding that the relocation cost provision reimbursement (c) (now (c)) § M.C. Code 11A-5 11A-7 is invalid. To extent, I respectfully Accordingly, dissent. I would hold the remaining right first refusal provisions M.C. Code § 11A-5C and the relocation cost reimbursement provision (c) M.C. Code 11A-5 to be valid.1 provisions valid, 1. In order for me conclude that these are it was necessary for me to issues and decided in consider raised the trial court majority. say were not reached I Suffice it to have considered determining each of these issues that these are valid. I Provisions First Refusal
Right of (1974, Md. Code here are statutory sections relevant Article Property Real § 11-102 Supp.), Cum. (b) (1), (a)] §§ 11A-5C Code and M.C. § 11-102 Code [Md. Condominium 11A-7 of the (d), (g) 11A-5C 11A-5C Chapter.
Maryland Code 11-102 Establishment of [C]ondominium part: pertinent [Rjegime provides
"(a) declaration, plat. bylaws and recording By — may sub- in the State any property owner regime to a condominium ject property county the land records recording among declaration, bylaws, located, a where comply with the plat and (Emphasis in this title.” specified requirements added.) (now (b) (1) § 11A-9 County 11A-5C
Montgomery Code (1)) pertinent part: provides "(b) to to Convert Intent Transfers with Condominium.
(1) any rental of title to Prior to the transfer dwelling more units five or facility which contains as to condominium made with intent to convert facility Section, the owner of such defined in this herein designated organizations give shall certain the rental facil- purchase right of first refusal days from the date ity period a of 120 within herein, on the same terms provided notice as as conditions, purchase price, at the same purchase agreement contract or contained title is to be transfer of to which said pursuant terms made, mutually agreeable or on other added.) (Emphasis conditions.” (d)) (d) (now § 11A-9 11A-5C Code part: in pertinent
provides "(d) to Condominium. Intent to Convert
(1) All transfers of rental facilities which dwelling contain five or more units shall be deemed to be transferred with intent to convert subject requirements condominium and Section, following requirements unless the are met:
a. purchaser, thirty The contract within days transfer, prior to the files an affidavit with the Director of the Office of Consumer stating Affairs that the transfer is not with made intent to convert to condominium. .. . not,
b. The purchaser contract does within years title, two from the date of give transfer of tenants notice intention create condominium. .. .
(2) Compliance require- with the affidavit (d) (1) ment of subsection 11A-5C a. shall be suffi- cient to permit the transfer of title to the contract purchaser compliance without further with the requirements Section; however, of this upon the giving of notice of intention to create within the time limit set forth condominium subsection 11A-5C (d) (1) b., purchaser contract who is then an facility owner of the rental by the *27 passage thereto, of title shall thereupon hold the title in subject trust to the right of first refusal of the organizations specified purchase herein to facility rental and shall be required satisfy to requirements of this Section as an owner and as a purchaser contract facility of a rental with a deemed contract purchase terms, with identical purchase conditions and price as that contract of purchase by which the contract purchaser became added.) owner of the facility.” rental (Emphasis (now § County § Code (g) (g)) 11A-5C 11A-9 provides pertinent in part: of Section. Violation Penalties
"(g) (2) any provision who violates Any person payment liable for the this Section shall in Section specified as County penalty of a civil facil- to rental 11A-7; of title each such transfer unit within a sale of a condominium ity and each violation project condominium a sepa- constitute shall requirements of this Section rate offense.” (d)) (d) (now § § 11A-11 Code 11A-7
Montgomery County pertinent part: provides
"(d) any provision of Any who violates person payment for the to Chapter .. . shall be liable in a civil County penalty, of a civil recoverable action, more five hundred in the sum of not than for each violation.” dollars such
Maryland gives Code 11-102 the owner of by recording a right regime a condominium establish declaration, view, bylaws, my nothing In in M.C. plat. (f) (d) (a), (b), (c), (1), (e), an (g) prevents Code 11A-5C establishing from property Montgomery owner of (a). to Md. regime pursuant a condominium Code statutory a scheme provisions of these establish All prop- under which designed regulate the circumstances erty may by an owner who elects to sell his be transferred regime. a condominium property rather than to establish statutory scheme delineates particularly, More facility under which an owner of a rental circumstances to tenants before title right must offer a of first refusal a contract None of these purchaser. be transferred to any procedures or designed impose who elects to establish requirements upon an owner regime. (b) (1) Montgomery County § 11A-5C concerns Code transfers an to contract who intends purchaser owner *28 section, essence, convert to condominium. That in prohibits transferring facility an from title to a rental to a owner purchaser who intends to convert to condominium without tenants the of first giving right refusal. (d)
Montgomery County § Code 11A-5C concerns by an purchaser transfers owner to a contract who does not intend to convert to condominium. Montgomery County (d) (1) § Code 11A-5C creates a presumption that all transfers of rental facilities are made with the intent (d) (1) Montgomery County § convert. Code 11A-5C a. and b. may establish a which that presumption mechanism be subsections, rebutted. Those when read in the context of (b), § may M.C. Code 11A-5C establish that an owner trans- facility offering right fer a rental without of first refusal if purchaser stating files an affidavit that he does not purchaser intend to convert to condominium and that does give years. notice of an intention to convert within two for an owner to transfer a possible make it provisions These facility offering right rental without of first refusal when purchaser a has no actual intent to convert to condominium intends, fact, but in to retain the building facility. as a rental § nothing language There is in the of M.C. Code 11A-5C (d) (b) (1) prohibits expressly a. and b. that that which is (a). County § permitted by Montgomery Md. Code (d) (1) (b) nothing Code 11A-5C and a. and b. are more than They provisions govern transfer of rental facilities. do nothing more than delineate the circumstances under which may offering rental facilities with or without transferred right Consequently, provisions of first refusal. these facility only to owners who elect to transfer a rental apply they apply do not to owners who elect purchaser; contract Thus, although these to convert to condominium. his because right property, affect an owner’s transfer
they right do not interfere with his to convert condominium, not, view, they my prohibit do an owner of establishing from (a). to Md. Code 11-102 regime pursuant (d) (1) view,
Moreover, my M.C. Code 11A-5C prohibiting effect of practical a. and b. do not have *29 (a). § With 11-102 by Md. Code permitted is expressly which (b), recognize I that under § Code 11A-5C respect M.C. to out, that circumstances, majority points as the certain therefore, may, sale” and may in a "forced result subsection establishing a from purchaser prevent a contract view, Code Because, my M.C. regime. condominium (1) (b) on only contract practical effect § has a 11A-5C (a) § 11-102 Md. Code is not in conflict with purchasers, it (a) a give contract § 11-102 does not Code because Md. regime. establish a condominium right to purchaser the (a) § Code 11-102 is that Md. majority overlooks What the property. owners of right only to gives that to M.C. respect with I reach the same conclusion Code (d) (1) of these purpose b. The manifest § 11A-5C a. and a to it for an owner transfer possible is to make subsections when right of first refusal facility offering without rental of transfer years within he has intention to convert two no for a Thus, a mechanism provide subsections of title. these purchaser buy facility who rental to wants to and maintain a by risk delay or created facility without purchase how a comprehend I right provisions. refusal cannot first buy facility a rental without law that a purchaser enables prac- has the right requirement of first refusal imposing a creating a from purchaser tical preventing effect Moreover, Code regime. if M.C. condominium even (d) (1) effect, it § had an would 11A-5C a. and b. such (a) § Code 11-102 Md. conflict with Md. Code because (a) right to purchaser a give does not contract regime. establish a condominium view, my nothing plain language
In in the there (d) (1) § 11A-5C and a. practical effect of M.C. Code (a). I Accordingly, § 11-102 b. that with Md. Code conflicts to be valid. would hold these subsections (2) (d) concerns County Code 11A-5C has who purchaser a contract procedures to be followed in an facility swearing rental after become an owner of a he no intention to convert condominium affidavit that had within notice of such an intention gives but who nonetheless years two of the date of transfer of title. That subsection portion statutory embodies that designed scheme protect rights tenants under such circumstances requiring right that the owner must offer of first refusal gives when he notice his intention to convert condominium. Because this provision requires an owner to give a right of first refusal before he establish a condominium regime, it is in conflict with Md. Code § 11-102 permits an owner to establish a regime by doing nothing other recording than declaration, bylaws, plat. It is for this reason that I agree with majority’s holding that M.C. Code 11A-5C *30 (d) (2) is invalid.
However, (d) (2) view, my § in M.C. Code 11A-5C is sever- able from remaining § the valid portions of In 11A-5C. determining whether portions the valid aof statute or statutory scheme are severable from the portions, invalid courts look to the of the Legislature. intent The of test severability a legislative body is whether at the of time enactment would have intended that portions the valid be if effective it had known that the portions invalid could not be carried principles out. Under the of severability, there is presumption, even in the of absence an express clause declaration, legislative body that a generally its intends severed, Moreover, enactments to be if possible. the presence of a severability enactment, in clause an while not conclusive, reinforces the presumption severability. of Finally, when the dominant purpose of an enactment largely be achieved the enforcement of the remaining portions Act, valid of generally courts will hold the valid portions of the Act severable and enforce them. O. C. Taxpayers Equal Rights, Inc. Mayor City, v. of Ocean 585, 600-01, 541, Md. (1977); 375 A.2d v. Ulman (1921). State, 642, 645, 137 Md. 113 A. § Here M.C. Code 11A [the severability Act] contains a clause which presumption severability. reinforces the of (now 2.). § M.C. Code 11A-5C 2. § Sec. 11A-13 Sec. Moreover, portions the valid of the Act will be effective even though portions invalid cannot carried out.
Ill statutory Act, of of the purpose The dominant scheme (d), § by requiring in tenants protect 11A-5C is to embodied right of refusal transfer to a first before an owner offer intends to to condominium. Even if purchaser who convert (d) (2) invalidated, fully § § is 11A-5C remains 11A-5C § (g). under 11A-5C enforceable (d) provide § M.C. Code 11A-5C is to sim- purpose tenants under the limited circumstance protection
ilar he previously an owner who had sworn that which had no nonetheless converts to intention convert M.C. recognize I the invalidation of Code condominium. that (d) (2) § of the deprives protection 11A-5C tenants very first right of refusal limited circumstance. Nevertheless, circumstances tenants even under such large protected degree perjury to a the laws remain might engage serve as a deterrent to owners who Thus, statutory portion conduct. scheme such (2) (d) § significance, 11A-5 of minor and its embodied is Act prevent portions invalidation does not the valid being from effective. § 11A-5C can of M.C. Code purpose
Because dominant portions of the valid by the enforcement be achieved County Council Act, that the I am convinced if it had know M.C. have 11A-5C even would enacted (d) (2) I Because conclude that 11A-5C was invalid. Code (d) (2) severable, I would hold the Code 11A-5C M.C. *31 § be valid. remaining portions of M.C. 11A-5C to Code II Provision Cost Reimbursement
Relocation (1974, statutory here are Md. Code The relevant sections Article and Property § 11-120 the Real Supp.), 1980 Cum. (c) Chapter. § of the Condominium M.C. Code 11A-5 Maryland provides: § 11-120 Code regulations. Zoning building
"§ and 11-120. title, the provided as otherwise Except ordinances, laws, regulations all and provisions of concerning building zoning or shall have full force they and effect to extent apply property the is subjected regime which to a condominium applied shall construed and with reference the overall nature and use of the property without regard ownership. law, ordinance, form No n or may regulation any requirement establish or location, governing use, standard placement or any improvements construction of land and title, are submitted of this unless requirement uniformly or standard is applicable land improvements to all ofthe same kind or character not submitted to the provisions of this title. county, city, jurisdiction No or other law, any ordinance,
enact or regulation which a impose would burden or restriction on a condominium that is not imposed prop- on all other erty of subjected similar character not to a regime. law, ordinance, Any condominium such or added.) regulation, void.” (Emphasis (c) (now (c)) Montgomery County § Code 11A-5 11A-7 provides in pertinent part:
"(c) involuntary Upon termination tenancy which results from conversion, developer or shall converter tenants, reimburse displaced determined to inbe need of financial assistance criteria County established Executive regulation, reasonable costs relocation as determined under regulations up issued Executive to a added.) obligation maximum (Emphasis $750.” I agree majority do not with the that Md. Code 11-120 (b) prohibits all local laws that burden impose a restriction on a condominium that is not on all imposed other view, my of similar character. In Md. Code prohibits county only enacting from those local building, laws that apply zoning do not land use *32 standards, building code use as land regulations such requirements and similar standards requirements, property other uniformly condominiums character, the form of regardless in substantially similar ownership. single in generalized statement a majority relies on a in the introductory comments contained in the
sentence of the Hori- the enactment report proposed Committee that Act which said: Property zontal sufficiently emphasize
"The Committee cannot it attributes to General importance which govern statute that will Assembly passing one that in the entire State so condominiums development of real estate important phase new county by county basis. See on a sectionalized 11-120.” sentence the majority I agree with enacting a statute emphasized importance Committee in the entire State.” govern "that will condominiums view, however, this sentence my majority has read In paragraph In the remainder out context. the Committee said: appears,
the sentence using popularity are "Some counties impose in condominiums to consumer’s interest than the ones regulations that are different buildings. There is no basis applicable apartment it is in reason or fact for such distinction when merely a differ- remembered that a condominium is ent of title to the same structure. ownership form of instance, does not believe a For the Committee rating stringent more fire county impose should unit building merely because the on the walls of a an interest in the units. Tenants burn owners own just rapidly respectable as as owners and a tenant, has a argument can be made that a who lesser and financial interest the struc- ture, minimum protected higher should be
requirements than an owner. If rating the fire is inadequate for a wall in a that building (cid:127) inhabited, the building code should be amended to require adequate rating an building, that without regard to the form of ownership of the added.) occupied (Emphasis areas.” Thus, the primary concern, Committee’s expressed as in the full paragraph in which the appears, sentence was that apartment buildings, in which the units are rented the residents, and condominium buildings, in which the units residents, owned by are the subjected should not be building, nonuniform land zoning regulations use and local law. The underlying rationale for this conclusion was apartments that essentially and condominiums are the same physical characteristics, their and use although the form Thus, of ownership introductory differs. from the comments contained in report, the Committee I conclude that the Committee, Legislature, and therefore the intended to only prohibit regulate local laws physical that and use characteristics, standards, such as land building use code requirements, and similar requirements, standards and uniformly are applicable not to condominiums and apartments or property substantially other similar char- conclude, I acter. majority, cannot as does the Legislature to require uniformly intended local applicable regulating responsibility laws an owner’s to tenants during a building’s conversion facility from rental to a ownership, or some other form of such as a use, cooperative, or to some other such as a commercial or building. office specifically interpreting Committee’s comments
express Md. 11-120 language of Code also lead to the same conclusion. These comments state:
"The last sentence subsection subsection 11-120 adoption constrain local laws, etc., standards, apply different land use building requirements code and the like to than applied prop- condominiums would be to other in character erty substantially similar of this Title. The provisions submitted that 'condominium’ is firmly concluded Committee (i.e., ownership) form of and not of title a matter zoning. These are of land a matter use adopted those several substantially the same as 711.21, Chapter Florida jurisdictions (e.g., other added.) Statutes) (Emphasis ....” comment, the Committee
In initial two sentences clearly the fact that expressed more could not have prohibiting § 11-120 was confined purpose of Md. Code nonuniformly would local laws as only such adoption characteristics and use physical regulate *34 property or other apartments and condominiums attributing In in character. substantially similar so substantially than that broader purpose Legislature not Committee, majority the relies clearly expressed by the in sentence the single in a generalized statement only on a that, report my in introductory of the Committee comments context, on the fact that view, but also is read out of (b) is "subsection my interpretation, arguably, under analysis respect in this majority’s surplusage.” rendered its own convoluted unpersuasive is because 11-120, § sentence of Code the second interpretation of Md. (a) surplusage. is rendered subsection of the comment in third sentence
Similarly, the of Md. Code express language the interpreting specifically clearly 11-120, have more could not § the Committee § Md. Code 11-120 and purpose the fact that expressed "substantially the same.” Florida statute that of the were to that language similar statute contains no The Florida (b). Thus, Florida § 11-120 in Md. Code contained prohibiting confined to unequivocally purpose statute’s is nonuniformly would only local laws as adoption such characteristics and use regulate physical property or other apartments and condominiums view, Because, in my substantially similar in character. § 11-120 and that of the of Md. Code
legislative purpose Florida same, cannot, statute is the I as does the majority, (b) interpret § Md. Code 11-120 as establishing a purpose for § Md. Code 11-120 never envisaged by or embodied in the
Florida statute. (a) (b) view,
In my § Md. Code 11-120 and can be successfully harmonized to achieve the legislative purpose. (a) The first sentence of Md. Code provides 11-120 that all existing local laws concerning building or zoning are applicable to condominiums. The second sentence of that provides county subsection that a may not enact local laws regulating physical and use characteristics condominiums that are uniformly not applicable to other property substantially similar character. Maryland Code (b) § 11-120 provides county that if enacts local law in (a), violation of Md. Code such an enactment Thus, my view, void. the Committee’s plain and unambiguous specifically comments interpreting express language Md. Code 11-120 support the conclusion that the Legislature’s purpose prohibit was to only use, such local laws zoning, as establish land building, and similar regulations that uniformly are not applicable to condominiums apartments or other character, substantially similar require uniformly applicable local laws regulating an owner’s responsibility during to tenants the course of a building’s conversion.
This conclusion is further supported by the caption of Md. *35 § Code appears 11-120 that in Chapter 641 of the Acts of 1974, 1974, as, 1 July effective "Zoning.” In Md. Code 11-120, § caption as, this appears "Zoning and building regulations.” captions While of in sections the Annotated Code Maryland, codifier, inserted may the not be in interpreting statutes, (1957, Md. considered Code Repl. Vpl.), 1, 18, § Art. captions of adopted by sections the Assembly General when it enacts a statute State Farm considered. Mutual Auto. Ins. Co. v. Insurance of Md., Comm’r n.3, 1114, 283 Md. 674-75 & 392 A.2d (1978): 1120 & n.3 The caption, "Zoning,” adopted by was the General Assembly it when enacted Chapter may, 641 and therefore, Manifestly, caption the use of be considered. prohibition the Legislature that the intended indicates regulate only § 11-120 to to local laws apply Code Md. of condominiums and and use characteristics physical or other apartments uniformly applicable that are character, not to local substantially in similar property during to tenants responsibility an owner’s regulating laws Thus, introductory building’s the course of a conversion. report, the Committee’s comments the Committee express language specifically interpreting comments § 11-120, Code§ 11-120 all caption Md. and the Md. Code lead to the same conclusion. (c) §
Montgomery County requires Code 11A-5 certain circumstances an owner reimburse for reasonable involuntary of a upon costs of relocation termination tenancy This that results from a condominium conversion. that delineates an owner’s part provision subsection is of a of conversion responsibilities during to tenants course facility Montgomery County from a rental to condominium. (c) § nonuniformly Code 11A-5 a local law that is not regulates and use characteristics physical apartments condominiums other Therefore, substantially M.C. Code similar character. (c) 11A-5 is not Md. Code and is not prohibited (c) Accordingly, void. I M.C. 11A-5 to be would hold Code valid.
Judge joins Cole authorizes me to state that he me expressed views herein.