F.D.R. SROUR PARTNERSHIP V. MONTGOMERY COUNTY

Page 1

LEXSEE 944 A2D 1149

F.D.R. SROUR PARTNERSHIP v. MONTGOMERY COUNTY

COURT OF SPECIAL APPEALS OF MARYLAND

179 Md. App. 109; 944 A.2d 1149; 2008 Md. App. LEXIS 39

SUBSEQUENT HISTORY: Writ of certiorari ruling, which required appellants to pay an Im- granted Srour v. Montgomery County, 2008 pact Tax of approximately $ 300,000, appel- Md. LEXIS 346 (Md., June 19, 2008) lants sought judicial review in the Circuit Court for Montgomery County. That court affirmed. PRIOR HISTORY: Appeal from the Circuit This appeal followed. Appellants present Court for Montgomery County, Joseph A. two issues, which we have reworded slightly: Dugan, Jr., Judge. I. Did the circuit court err in sus- DISPOSITION: [***1] JUDGMENT OF taining the [***2] Maryland Tax THE CIRCUIT COURT FOR MONT- Court's holding that the Develop- GOMERY COUNTY AFFIRMED. COSTS ment Impact Tax that the depart- TO BE PAID BY APPELLANTS. ment of permitting services sought to collect, pursuant to County Council Bill No. 47-01, is applica- JUDGES: Panel: Hollander, Eyler, James R., ble to the issuance of Permit No. 4 Meredith, JJ. Opinion by Hollander, J. and Permit No. 5, when "A" building permit was issued for the sub- Opinion by Hollander, J. ject development prior to the July This appeal involves a challenge to a deci- 1, 2002 prospective effective date sion of the Maryland Tax Court, which upheld of the Development Impact Tax? an assessment of Montgomery [*112] Coun- II. Did the circuit court err in ty's Development Impact Tax for Transporta- sustaining the Maryland Tax tion Improvements ("Impact Tax") in connec- Court's holding that the com- tion with two building permits obtained by mencement of construction pur- F.D.R. Srour Partnership ("Srour") and Robert suant to Permit No. 1, for which Srour ("Mr. Srour"), appellants. The Tax Court application was made prior to the agreed with Montgomery County (the July 1, 2002 prospective effective "County"), appellee, in rejecting appellants' date of the Development Impact claims that they were exempt from the Impact Tax, did not vest appellants' right Tax because their project began before the ef- to complete the project without the fective date of the amended Impact Tax ordi- imposition of the Development Im- nance, and because they had a vested right in pact Tax? the law as it existed prior to the effective date For the reasons that follow, we of July 1, 2002. Unhappy with the Tax Court's shall affirm. Page 2

cel of real property in the County that sits im- mediately outside the city limits of Rockville, in a subdivision called Burgundy Park (the "Property"). As a result of the 2002 amend- I. FACTUAL AND PROCEDURAL SUM- ment, the Property is now located within a geo- MARY graphical area that is subject to the Impact Tax. 2 Effective July 1, 2002, the County enacted Chapter 4 of the Montgomery County Laws of 2 The Property was created by the 2002, which amended the County's "Develop- recordation of Plat No. 19003 on April ment Impact Tax for Transportation Improve- 22, 1993, which vested Preliminary Plan ments," [*113] codified at Montgomery Coun- No. 1-88333, approved on April 16, ty Code ("County Code"), § 52-47 et seq. 1990, by the Montgomery County Pan- (2004). The Impact Tax is a tax on "develop- ning Board. See also Confirmatory Plat ment," defined in County Code, § 52-47 as "the No. 22856, recorded on May 6, 2004. carrying out of any building activity or the making [***3] of any material change in the Appellants planned to build two warehous- use of any structure or land which requires is- es on the Property. However, the topography of suance of a building permit and: (1) Increases the Property presented significant challenges the number of dwelling units; or (2) Increases for construction. The Property rose sharply the gross floor area of nonresidential develop- from an elevation of 372 feet at its street-level ment." The Impact Tax, which is assessed access [*114] to Southlawn Lane up to a when a developer applies for a building permit, height of 444 feet along its southern boundary, id., § 52-49(a) & (b), § 52-50(b) & (c), is "in- and dipped below 360 feet along its eastern tended to defray a portion of the costs associat- edge. The grade was 25% in places. Additional- ed with... transportation improvements that are ly, the Property is bounded by a forest conser- necessary to accommodate the traffic generated vation easement along the slope at its eastern side. As a result, appellants had difficulty de- by ... development." County Code, § 52-47. 1 Until 2002, the Impact Tax only applied in des- signing a feasible warehouse plan. After finally ignated geographical areas within the County. obtaining a design that stabilized the steep to- However, the 2002 amendment broadened pography of the Property, appellants [***5] [**1152] the Impact Tax to apply Coun- proceeded with the permitting and construction ty-wide. Moreover, the 2002 amendment stated process. that it "applies to any development for which On June 6, 2002, less than a month before an application for a building permit is filed on the July 1, 2002 effective date of the 2002 or after [July 1, 2002]." 2002 Laws of Montg. amendment to the Impact Tax, appellants filed Co., ch. 4, § 2(a). a building permit application with the County Department of Permitting Services ("DPS"), 1 The County Code contains another Application No. 279528 ("Permit 1"), along "development impact tax" for "public with a plan view depicting the two proposed school improvements." That tax, codified warehouses. Permit 1 pertained to the first at County Code, ch. 52, art. XII, §§ 52- structures to be constructed as part of the ware- 87 et seq., is not implicated here. house facilities--three retaining walls and two In 1988, Mr. Srour, a licensed Professional gabion walls. Then, in November of 2003, ap- Engineer, and his company, F.D.R. Srour Part- pellants filed for a sediment control permit ap- nership, acquired an undeveloped [***4] par- plication with DPS. Appellants subsequently Page 3

revised their application for Permit 1; the per- December 1, 2003; it was issued on January 2, mit was issued by DPS on December 23, 2003. 2004. Permit No. 338122 ("Permit 3"), for No demand was made for the payment of the which appellants applied on March 23, 2004, Impact Tax upon the release of Permit 1. was issued on June 16, 2004. No Impact Tax Two of the retaining walls that are covered was assessed for Permits 2 or 3, and construc- by Permit 1 are located on the western side of tion was commenced and completed under the Property, along the sides of the driveway both. that provides the only access to the Property via On July 27, 2004, appellants applied for the Southlawn Lane (hereinafter "Wall 1 and Wall building permits needed to construct the two 2"). Wall 2 is attached to "Building A," one of warehouse buildings: Permit No. 352990 ("Per- the warehouse buildings that was ultimately mit 4") pertained to Building A, and Permit No. constructed on the Property. The third retaining 352996 ("Permit 5") applied to the second wall ("Wall 3") is [***6] located on the eastern building, "Building B." The permit application side of the Property and is also attached to for Building A listed its area as 38,374 square Building A. Construction commenced on Wall feet, while the application for Building B listed 3 in January 2004; it was the first wall con- its area at 79,875 square feet.

3 structed pursuant to the issuance of Permit 1. In June 2005, DPS notified appellants that Impact Tax payments were due for each build- 3 We pause to note that we have used ing, prior to issuance of Permits 4 and 5. The the numbering scheme adopted by appel- Impact Tax was assessed at the statutory rate of lants. $ 2.50 per square foot, in the respective The two gabion walls are made of "basket- amounts of $ 95,935 for Building A and $ ball" size rocks. One wall is situated at the 199,687.50 for Building B, for a total Impact western boundary of the Property along South- Tax of $ 295,622.50. lawn Lane, and the other is situated on the By letter dated July 28, 2005, appellants [*115] eastern side of a stormwater manage- contested the assessments and asked the Direc- ment pond that is also on the western side of tor of DPS to reconsider. Pending resolution of the Property. the issue, and in lieu of [***8] paying the as- According to appellants, the five walls, i.e. sessed amounts, appellants submitted a letter of Walls No. 1-3 and the two gabion walls, are all credit in the amount of the Impact Tax on July essential and recognizable elements of the now- 27, 2005, pursuant to County Code, § 52-56. completed industrial buildings. In general, the DPS issued permits for the two [*116] ware- various walls served two necessary purposes. house buildings the same day, and appellants First, they were needed to adapt the severe ter- commenced construction of the warehouses; rain of the Property to create a flat surface construction was completed during the penden- [**1153] on the Property large enough to build cy of this case. the warehouses. Second, they enabled access to In a letter dated August 18, 2005, the Direc- the resulting surface from the Property's en- tor rejected appellants' position. Referring to trance at Southlawn Lane, which was at a sig- Permit 1, he wrote that "a permit for a retaining nificantly lower elevation. wall does not serve to exempt subsequent de- Appellants submitted two more permit ap- velopment from the tax. Accordingly, it is this plications relating to construction of retaining Department's determination that the impact tax walls on the Property. Appellants [***7] ap- is due and payable." plied for Permit No. 326449 ("Permit 2") on Page 4

Pursuant to County Code, § 52-56, as well The facts of this matter, the as Md. Code (2004 Repl. Vol.), § 3-103 of the first time a permit was applied for Tax-General Article ("T.G."), appellants filed a structure of any sort that included an appeal with the Maryland Tax Court on Sep- square feet was well after the ef- tember 14, 2005, seeking review of the Direc- fective date of July 1st, 2002. . . . tor's decision. Appellants and the County sub- The only question was whether or mitted stipulations to relevant facts, and the not [***10] this property was sub- Tax Court heard the testimony of Robert Srour. ject to this statute, and it's my de- At the close of argument on February 22, 2006, termination that, in fact, it was. the court ruled from the bench, in favor of the County. In part, the Tax Court said: An order denying appellants' petition followed We'll start with the tax issue. It on April 4, 2006. doesn't appear to me that there is Thereafter, on April 7, 2006, appellants the [***9] same vested rights in filed a Petition for Judicial Review in the cir- tax cases as there might be in zon- cuit court, pursuant to Md. Rule 7-201, T.G. § ing. That clearly taxing jurisdic- 13-532, and Md. Code (2004 Repl. Vol., 2007 tions have the right to change taxes Supp.), § 10-222 of the State Government Arti- on property. . . . One could say cle. The circuit court affirmed in an oral ruling that's exactly what occurred from the bench on September 21, 2006, stating, here. . . . That being the case, the in part: arguments for vesting, I don't think really apply in this matter. I guess, the bottom line is, [ap- Which brings us to an interpre- pellants] just haven't convinced tation of what exactly does the [ef- me. . . . [Y]ou're saying "building fective date provision] mean. activity" meant the retaining walls, * * * which went with the building, and therefore everyone slides in under [T]he building permits that the tag. . . . And you're saying it were approved, or at least applied vested at that point. . . . And I just for prior to that date, had no square disagree with you. I agree with the feet. They were all walls. And that Tax Court, is the bottom line. the County didn't try to collect the tax until there was a building per- * * * mit that related to a structure that I think it's a strange construc- had some sort of square feet, and tion of. . .the Act. Because they're then they could calculate the talking about a broader meaning of [**1154] tax. . . . So I think in ev- "development" than simply filing a ery instance what they're looking permit to get your footings in, or to are building permits that in- your retaining wall in, or anything crease the number of square feet. else. And I think that's where we And any project where there is a disagree. permit applied after July 1, '02 that * * * increases the square [*117] feet that would then fall within the taxing jurisdiction of this statute. Page 5

Therefore, I will affirm the rul- increased demand on transportation facilities. ing of the Maryland Tax Court in County Code, § 52-48. [**1155] The funds connection with this case. generated by the Impact Tax may only be used for specified County transportation uses, such as construction or expansion of roads or acqui- The court issued [***11] an Order to that ef- sition of public transportation vehicles. See fect on October 18, 2006. County Code, § 52-58. The tax is "a pro rata per unit or per square foot of gross floor area II. STATUTORY SCHEME tax imposed before a building permit is issued Before we discuss the parties' contentions, for development...." County Code, § 52-47 (em- it is helpful to review the statutory scheme. phasis added). DPS determines the applicability of the Impact Tax when it reviews an applica- [*118] On March 21, 2002, the Mont- tion for a building permit and then, if the Act gomery County Executive signed into law applies to the proposed construction, it collects Chapter 4 of the 2002 Montgomery County the Impact Tax before issuing a permit. County Laws, amending the County's Development Im- Code, §§ 52-50, § 50-51. pact Tax statute. 2001 Council Bill No. 47-01, enacted as 2002 Montg. Co. Laws, ch. 4. The [*119] Under the Act, "[a]pplicants for Development Impact Tax ordinance (here- building permits for development... must sup- inafter, "the Act") is codified at Chapter 52, Ar- ply to the Department of Permitting Services for each requested building permit... [t]he gross ticle VII of the County Code. 4 floor area and type of development for nonresi- 4 The relevant provisions remain un- dential development." County Code, § 52- changed since their enactment by 2001 50(b). [***13] The Act also directs that DPS Council Bill No. 47-01. See County Code "must not issue a building permit for develop- (2004 & Jan./Feb. 2008 Supp.). ment... unless" the Impact Tax obligation has been satisfied. County Code, § 52-50(c). The The Impact Tax was originally established question, then, is what constitutes "develop- in 1986, when the County Council enacted the ment"? predecessor "development impact fee" statute, then codified at County Code, §§ 49A-1 et seq. County Code, § 52-47 defines The development impact fee statute imposed "development" as follows: "fees" on construction in two designated geographical areas within the County. See Eastern [T]he carrying out of any Diversified Properties, Inc. v. Montgomery building activity or the making of County, 319 Md. 45, 48-49, 570 A.2d 850 any material change in the use of (1990). The primary change implemented by any structure or land which re- the 2002 enactment was to extend the Impact quires issuance of a building per- Tax to all areas of the County. As noted, the mit and: amendment provided that the tax [***12] would apply "to any development for which an (1) Increases the application for a building permit is filed on or number of dwelling after [July 1, 2002]." units; or The County Council created the Impact Tax (2) Increases the to permit growth in the County while also en- gross floor area of suring necessary improvements to support the nonresidential development. Page 6

ordinary repairs...shall be exempt from this provision. In turn, "gross floor area" is defined in County Code, § 52-47: See also County Code, § 52-47 ("Building per- Gross floor area means the mit means a building permit issued by the De- sum of the gross horizontal area of partment of Permitting Services under Chapter the several floors of a building or 8."). structure measured from the exteri- or faces of the exterior walls.... In a The Impact Tax obligation is calculated for covered but unenclosed area, such nonresidential development on a per square as a set of gasoline pumps or a foot basis. The rate varies in accordance with drive-through area, gross floor area the type of building and the geographical area means the covered area. Gross of the County within which the development is floor area does not include: located. See County Code, § 52-57. Office and (1) basement or attic retail buildings pay the highest rates. Id. At the areas with a headroom low end of the range, hospitals and "bioscience of less than 7 feet 6 facilities" are entirely exempt, and places of inches; worship and private elementary and secondary schools pay fractions of a dollar per square (2) areas devoted foot. Industrial buildings and "other nonresi- to unenclosed me- dential" buildings pay an intermediate rate. Id. chanical, heating, air In the 2002 enactment, the industrial rate for conditioning, or venti- the "County Area," in which appellants' Proper- lating equipment; ty sits, was $ 1 per [***15] square foot. 2002 (3) parking struc- Montg. Co. Laws, ch. 4, § 1. The 2002 legisla- tures; or tion also contained a phase-in provision: [**1156] for the first six months that the Im- (4) accessory pact Tax was in effect, taxpayers paid at 25% structures to a residen- of the statutory rate. The percentage rose by tial building. 25% every six months, with the full rate phased in beginning January 1, 2004. Id. § 2(b). Since the passage of the 2002 bill, the rates have been raised by statutory amendment. 2003 Council Bill No. 31-03, enacted as 2003 Montg. Co. In [***14] addition, County Code, § 8-24 Laws, ch. 27 (effective March 1, 2004). The specifies when issuance of a building permit is current statutory rate for industrial and "other required: nonresidential" buildings, at which appellants' assessments were calculated, is $ 2.50 per It shall be unlawful to construct, square foot. County Code, § 52-57. enlarge, alter, remove or demolish When the predecessor "development impact a building...without first filing an fee" ordinance was enacted in 1986, the County application with the department in purported to draw its authority to impose the writing and obtaining the required fees from its "police power." However, in [*120] permit therefor; except that 1990, in Eastern Diversified Properties, Inc., supra, 319 Md. 45, the Court of Appeals struck Page 7

down the development "fees." Ruling on a chal- within the purview of the ordinance by adding lenge to the fees brought by a real estate devel- a new "General" area to the various geographi- oper, the Court held that the County's police cal "areas" previously covered by the tax. It power authority did not support assessment of consists of all parts of the County that are not the fees. Id. at 55. It reasoned that "the [*121] contained within another specified area. County development impact [***16] fee imposed on Code, § 52-49(c), as amended by 2002 Montg. new development is exacted solely for revenue Co. Laws, ch. 4. purposes, is an involuntary payment of money, and the funds raised by the fee are used to fi- [*122] III. DISCUSSION nance road construction which benefit[s] the general public." Id. In the Court's view, these A. features of the development impact "fee" distin- Despite its name, the Maryland Tax Court guished it from a regulatory charge, which is actually an administrative agency. See T.G. § would be supported by the police power author- 3-102. Therefore, principles of administrative ity, and rendered it, in fact, a tax. Id. at 53-55. law guide our review. See, e.g., Montgomery The Eastern Diversified Court did not decide County v. Wildwood Medical Center, LLC, 176 the nature of the tax however, id. at 55 n.4, and Md. App. 731, 737 n.1, 934 A.2d 484 (2007). therefore did not reach the question of whether Our role in reviewing the Tax Court's decision the County had authority to impose the fee un- [**1157] is to determine "whether the admin- der its taxing power. istrative agency erred, not whether the Circuit The County responded to the Eastern Di- Court erred." Comptroller of Treas. v. Phillips, versified decision by enacting emergency legis- 384 Md. 583, 590, 865 A.2d 590 (2005). lation that replaced the word "fee" with "tax" [***18] We defer to the Tax Court's findings of throughout the statute; asserted its authority to fact, Rouse-Fairwood Dev. Ltd. Partnership v. impose the development impact "tax" under the Supervisor of Assessments for Prince George's County's limited grant of tax power; and County, 138 Md. App. 589, 617-618, 773 A.2d retroactively ratified as "taxes" the charges pre- 535 (2001) (citing CBS, Inc. v. Comptroller of viously imposed under the rubric of develop- the Treas., 319 Md. 687, 697-98, 575 A.2d 324 ment impact "fees." See 1990 Council Bill (1990)), and will not "'overturn the Tax Court's Emergency Bill No. 33-90, enacted as 1990 decision unless it was based on an error of Montg. Co. Laws, ch. 40. law.'" Comptroller of Treas. v. Colonial Farm Credit, 173 Md. App. 173, 177, 918 A.2d 514 The Court of Appeals ruled on the validity of the amended statute in Waters Landing Ltd. (2007) (quoting Dept. of Assessments and Tax- Partnership v. Montgomery County, 337 Md. ation v. Consol. Coal Sales Co., 382 Md. 439, 15, 24-25, 650 A.2d 712 (1994), [***17] up- 455, 855 A.2d 1197 (2004)). See Comptroller holding the development impact tax. It deter- of Treas. v. Citicorp Int'l Communications, mined that the tax was an excise tax and not an Inc., 389 Md. 156, 163-64, 884 A.2d 112 intangible personal property tax, and thus it (2005) (discussing standard of review of Tax was within the County's taxing power. Id. at Court decisions); Md. Aviation Admin. v. 25. The Court also upheld the County's retroac- Noland, 386 Md. 556, 570-74, 873 A.2d 1145 tive imposition of the tax. Id. at 33. (2005) (discussing standard of review of agency decisions). The development impact tax statute was amended a handful of times throughout the In this case, appellants and the County 1990s for various reasons. The 2002 amend- agree that there are no disputed questions of ments brought appellants' building activity fact. Therefore, this Court's role, like that of the Page 8

circuit court, is to determine whether the Tax ders, Inc., 168 Md. App. 339, 348, 896 A.2d Court's decision was legally correct. 432 (2006). Because this case requires us to construe the Impact Tax ordinance, we pause to review B. the principles of statutory construction that Appellants' banner argument is that the ef- guide our analysis. We review local laws and fective date provision of the 2002 amendment ordinances under the same principles [***19] should be interpreted such that, so long as one that govern our construction of State statutes. application for a building permit was filed be- O'Connor v. Baltimore County, 382 Md. 102, fore the effective date of July 1, 2002, all sub- 113, 854 A.2d 1191 (2004); Young v. Anne sequent permit applications pertaining to the Arundel County, 146 Md. App. 526, 573, 807 same project necessarily relate back to the date A.2d 651, cert. [*123] denied, 372 Md. 432, of the first permit application, thereby exempt- 813 A.2d 259 (2002). Our task is to determine ing all [**1158] subsequent permits from the legislative intent, and our primary tool in this Impact Tax. Because appellants applied for task is the statutory text. O'Connor, 382 Md. at their first building permit before [*124] July 113; Heartwood 88, Inc. v. Montgomery Coun- 1, 2002, when the current version of the ordi- ty, 156 Md. App. 333, 358-59, 846 A.2d 1096 nance went into effect, they contend that they (2004) (citing cases). "If the statute is not am- are exempt from the Impact Tax with respect to biguous, we generally will not look beyond its the permits in issue. Appellants posit: language to determine legislative intent." Heartwood 88, 156 Md. App. at 359 (citing The "development" of the subject Kaczorowski v. Mayor & City Council of Balti- property began before there was a more, 309 Md. 505, 515, 525 A.2d 628 (1987)). county-wide Development Impact In other words, "[w]here ... the language of the Tax and was [***21] completed statute is unambiguous, the search for legisla- after that tax was enacted and Ap- tive intent ordinarily begins and ends with the pellants submit that [the] clearly statutory language." Harris v. State, 344 Md. articulated legislative intent of the 497, 510, 687 A.2d 970 (1997) (emphasis in County Council, stated in the Bill original). If a specific term is not defined in the itself, was not to apply the new tax statute, the Court "will give that term its ordi- to developments that were under- nary and natural meaning and will not resort to way when the new tax became ef- subtle or forced interpretations for the purpose fective. of extending or limiting the operation of the * * * statute." Maryland-National Capital Park and Planning Commission v. State Department of The Circuit Court erred as a Assessments and Taxation, 110 Md. App. 677, matter of law when it upheld the 689, 678 A.2d 602 (1996), [***20] aff'd, 348 Maryland Tax Court's misinterpre- Md. 2, 702 A.2d 690 (1997). But, we may con- tation of Bill No. 47-01 as apply- sider "the dictionary definition of [a] word," al- ing the Development Impact Tax though dictionary definitions are not dispositive to DPS' issuance of Permit No. 4 of legislative intent. Stachowski v. Sysco Food and Permit No. 5 for the comple- Servs. of Baltimore, Inc., 402 Md. 506, 525-26, tion of a "development" for which 937 A.2d 195 (2007). See also Benson v. State, the first of seven building permit 389 Md. 615, 634-35, 887 A.2d 525 (2005); applications was submitted prior to Board of License Commissioners for Prince the prospective effective date of George's County v. Global Express Money Or- Bill No. 47-01. Page 9

(1) Increases the Under County Code, § 52-47, the Impact number of dwelling Tax is a "tax imposed before a building permit units; or is issued for development...." (emphasis added). (2) Increases the As noted, the amendment that took effect on gross floor area of July 1, 2002, "applies to any development for nonresidential devel- which an application for a building permit is opment. filed on or after that date." 2002 Montg. Co. Laws, ch. 4, § 2(a). Therefore, in order for appellants' argument to succeed, the building permit for which they first applied in June 2002 to construct retaining walls on the Property must Appellants do not contend that the provi- have been "for development" within the mean- sions of the Act relating to residential develop- ing of the Impact [***22] Tax. In this regard, ment apply here. But, appellants and the Coun- appellants contend: ty stipulated in the Tax Court that "[a] [***23] retaining wall is ? a structure for which a build- The building activities that oc- ing permit is required." Therefore, whether ap- curred pursuant to the application pellants' June 2002 application for a permit to and issuance of Permit No. 1 are build retaining walls was a building permit "for within the statutory definition of development" hinges on whether the retaining "development" for which "a" walls "[i]ncrease[d] ... gross floor area of non- "building permit" was applied for residential development," within the meaning prior to July 1, 2002. Therefore, of the Act. the taxable event -- the date of finality for imposing the Develop- In support of their position that Permit 1 ment Impact Tax occurred when pertained to "development," appellants observe the application of Permit No. 1 that "Maryland [c]ase law has previously rec- [*125] was submitted, prior to the ognized the essence and necessity of retaining prospective effective date of Bill walls, considering them to be integral parts of No. 27-01. The applications for structures due to their support and stabiliza- Permit Nos. 4 and 5 for the com- tion." Appellants add: "Retaining walls can be pletion of building activities were so 'inextricably [**1159] connected' to and not taxable events and are exempt 'the first step in building' a structure that the re- from the Development Impact Tax, taining walls are development." Insisting that as intended by the County Council. "the application of Permit No. 1 and subsequent construction constituted 'development,'" they As we have seen, the term "de- argue: velopment" is defined in County Code, § 52-47: Permit No. 1 enabled Appellants Development means the carry- to establish a building pad. The ing out of any building activity or building pad is large enough to the making of any material change construct the approved warehouse in the use of any structure or land facilities, in other words, construct which requires issuance of a build- the contemplated gross floor area ing permit and: of the warehouse facilities. [*126] Page 10

The retaining walls constructed ing permit application for Permit pursuant to the issuance of Permit No. 1. No. 1 all [***24] connect to and The County responds, in part: structurally support the warehouse structures and are necessary to sta- Although construction of a re- bilize the steep topography of the taining wall may facilitate devel- Subject Property. Without the re- opment, and could even be a nec- taining walls, no construction on essary part of an overall project, it the Subject Property could have does not ... increase the gross floor occurred. area of nonresidential development. As a result, DPS did not im- * * * pose or collect the tax for Permits [T]he retaining walls are more 2 or 3 for retaining wall construc- than mere site preparation, but are tion. Unlike the retaining walls, the "inextricably connected" to the final two [*127] permits... (Per- construction of the warehouse fa- mits 4 and 5), involved building cilities. . . . Wall Nos. 1-3 are in- activity that required a building dispensable parts of the warehouse permit and would increase the facility that connect to and support gross floor area of nonresidential the warehouse structures. Without development--the warehouses sat- Wall Nos. 1-3 the warehouse struc- isfied the definition of "develop- tures would not have been con- ment" under the statute, and DPS structed--gross floor area would applied the impact tax to those two not have been increased on the permits. (Boldface added; italics in Subject Property. original). * * *

In this case, the retaining walls allowed for the gross floor area As we have seen, appellants maintain that and are integral parts of the ware- "the intended taxable event was the application house facilities, but the building for the first building permit required for Devel- activity was not actually completed opment.... Any building permit filed after the until the construction of the ware- first permit for the completion of building ac- house structures was completed. tivity commenced under the first permit was The retaining walls are integral not a 'taxable event'." We conclude, however, structural parts of the warehouse that appellants' June 2002 permit application to facilities and without the retaining construct retaining [***26] walls did not con- walls the warehouse facilities can- stitute a permit "for development." Therefore, not be constructed. . . . Construc- the date on which the Permit 1 application was tion of the retaining walls and filed is of no moment. We explain. warehouse facilities, because of Appellants rely on Pemberton v. Mont- their cohesiveness, constitute the gomery County, 275 Md. 363, 340 A.2d 240 same building activity contemplat- (1975), to support their position that their initial ed under [***25] Permit No. 1 permit was a permit for "development" under and depicted on the plans submit- the Act. In Pemberton, the Exxon gasoline ted in conjunction with the build- company received a zoning variance to build a Page 11

service station on property it owned in Mont- '[A] building permit' does not gomery County. Id. [**1160] at 365-66. Under necessarily translate into a permit the County's then-current zoning law, zoning only for a building as such.... [I]n variances were "'valid for a period of twelve this case, a 'building permit' allow- months, during which time a building permit ing commencement of a service for such erection or alteration must be obtained station project can be a permit for and the erection or alteration started.'" Id. at the construction of a portion of that 366 (quoting County Code, § 111-32(c) project such as the foundation or (1955)). 5 Exxon proceeded with preliminary retaining wall and it is therefore planning, site inspection, and demolition. How- not limited ... to a permit for the ever, as the Pemberton Court described, 275 erection of a building.... Md. at 367,

it was not until 19 August 1969, Thus, the Court quoted the County Board's one day before the end of the decision with approval: "'[T]he retaining wall twelve-month period ... that, all on was an indispensable part of the support of the the same day, Exxon: obtained a gasoline station building made necessary be- building permit for the construc- cause the site slopes sharply [***28] to the tion of a retaining wall; dug a rear of the lot,' and, therefore, the retaining wall trench with a backhoe on the permit was part and parcel of the permit for southeast side of the property; and building the station...." Id. then, after installing horizontal [*128] steel rods for support, Analogizing to Pemberton, appellants rea- [***27] poured five to six yards of son that their retaining walls were also "indis- concrete into the excavation for pensable parts" of their warehouse facilities. footings. They maintain that, without the retaining walls, "the warehouse structures would not have been constructed--gross floor area would not have been increased on the Subject Property. There- fore, the application for Permit No. 1 and sub- 5 The County Code has since been sequent construction constituted amended and recodified, and the succes- 'development.'" sor law is now codified at County Code, In our view, appellants' reliance on Pem- § 59-A-4.53. berton is misplaced. In Pemberton, the relevant Exxon's use of the property as a service sta- date was the expiration of a zoning variance, tion was challenged on the ground that it had not the effective date of a tax statute. The not obtained a permit to build the actual service County Board in Pemberton ruled that Exxon's station within the twelve-month period, and building permit for a retaining wall satisfied the that "the construction of a footing for a retain- requirements of the County's zoning law, being wall was not sufficient to satisfy the re- cause it constituted the beginning of construc- quirement." Id. (internal quotations omitted). In tion of a service station for which Exxon had upholding the County Board of Appeals's deci- received a variance. Id. [*129] at 369. There sion in favor of Exxon, the Pemberton Court was no statutory provision that specified what observed, id. at 368: sort of permit would constitute commencement of construction of the station, and the County Board reasoned: "'Since every building must Page 12

begin with a foundation, [***29] common 2004) ("specially-defined words or phrases are sense indicated that obtaining a permit to begin given their... special definitional meaning"). where one must begin, i.e., with a foundation, Appellants urge that because their first per- is sufficient. . . . [Exxon] would have had to mit enabled them to create a "building pad ... start construction with the foundation regard- large enough to [later] construct the approved less of the kind of building permit first ob- warehouse facilities, in other words, construct tained.'" Id. at 369 (quoting [**1161] County the contemplated gross floor area of the ware- Board). The Court of Appeals held that the house facilities," the first permit pertained to Board's decision was "based upon a foundation "development." In our view, to qualify as "de- of evidence which is at least 'fairly debatable,' velopment," it is not enough that the permit and therefore, we cannot disturb it." Id. [***31] was one that would enable gross floor In contrast to Pemberton, in this case a area to later be increased by further construc- building permit is only subject to the Impact tion. Tax if it is issued "for development," which has The statutory definition of "gross floor a specific statutory meaning. Appellants' posi- area" in County Code, § 52-47 primarily refers tion is belied by the statutory definition of "de- to the interior floor space of a building. 6 The velopment." Under the plain language of the gross floor area is measured in terms of the Act, a building permit is only "for develop- warehouse structures, not the square footage of ment" if the building activity "[i]ncreases the the "building pads" on which they sit. Put an- gross floor area of nonresidential develop- other way, the size of the building pad does not ment." County Code, § 52-47. Nonresidential dictate the "gross floor area of nonresidential "development" is statutorily defined as "build- development" that will be created, because a ing activity" that (1) "requires issuance of a builder could, for example, construct a building building permit," and (2) "[i]ncreases ... gross with one story or two, and the height of the floor area." By its plain text, "development" building obviously affects "gross floor area." does not refer to an entire project to "develop" Thus, the relevant figure is the actual square a piece of land. Rather, it refers to specific footage, dictated by the footprint and number buildings [***30] or structures, for which per- of stories of the building, not the size of the mits are sought, that increase gross floor area. building pad. Although one might refer colloquially to a set of such buildings as a "development," that is 6 As we noted, "gross floor area" is de- not the way the term is defined in the statute. fined in County Code, § 52-47: As the Court has said, "a term in a statute, when not defined in the statute itself, should be Gross floor area means the understood to be used in its commonly accept- sum of the gross horizontal ed meaning." Williams v. Assoc. Professors of area of the several floors of a Loyola College in City of Baltimore, 257 Md. building or structure mea- 316, 328, 263 A.2d 5 (1970). See also Sweet v. sured from the exterior faces State, 163 Md. App. 676, 687, 882 A.2d 296 of the exterior walls.... (2005). The corollary is that when the statute [***32] In a covered but un- does define a term, it will be accorded the spe- enclosed area, such as a set cially defined meaning rather than its common of gasoline pumps or a meaning. See State ex rel. Kalal v. Circuit drive-through area, gross Court for Dane County, 2004 WI 58, 271 Wis. floor area means the covered 2d 633, 681 N.W.2d [*130] 110, 124 (Wis. Page 13

area. Gross floor area does ment." However, those facts are not be- not include: fore us. The mechanism for collection of the tax (1) basement also undercuts appellants' position. "Applicants or attic areas [***33] for building permits for development... with a head- must supply to the Department of Permitting room of less Services for each requested building permit ... than 7 feet 6 [t]he gross floor area and type of development inches; for nonresidential development." County Code, (2) areas de- § 52-50(b). The tax is calculated by multiplying voted to unen- the gross floor area by a dollar amount that closed mechani- varies based on the type of development. See cal, heating, air County Code, §§ 52-51(a) & 52-57(a). Addi- conditioning, or tionally, the tax must be paid before the permit ventilating is released. County Code, § 52-50(c). Although equipment; construction of the retaining walls enabled ap- (3) parking pellants to create a building pad that would structures; or eventually accommodate the "contemplated" gross floor area of the warehouses, the tax is (4) accesso- calculated based on the actual area, not the con- ry structures to a templated area. Notably, the permit applica- residential tions filed by appellants for the various retain- building. ing walls and their alterations recited a variety of square footage figures ranging from zero to 10,000, none of which approached either the "contemplated" or actual square footage of the two warehouses. [**1162] Under the Act, the term "devel- If appellants had filed their first permit ap- opment" will only apply to one building or plication after the 2002 amendment's effective structure at a time. Appellants clearly applied date, it would have been impossible for the for two building permits "for development": the County to calculate appellants' tax obligation permits for the two warehouses constitute two [***34] from that application. Although appel- different "developments," on which appellants lants argue that the tax's applicability should be were separately taxed. Therefore, appellants' determined by the date that they filed their first [*131] argument that the "first" building per- permit application, their argument would create mit for development is the only taxable event, the untenable result that the tax would apply and that subsequent permits may not be taxed, before the amount of the tax could be calculat- misses the mark. 7 ed. In contrast, under the County's interpretation, a permit is "for development" if it is for 7 We do not wholly discount the possi- the construction of the actual building that con- bility that, under this statutory scheme, a tains the increased "gross floor area" which factual situation could arise in which sev- qualifies as development--a figure [*132] that eral building permits were filed that did, would be contained in the application for the in fact, all concern the same "develop- permit for that building, but is unlikely to be contained in (or perhaps even known at the Page 14

time of filing of) any other application. The In Pleasants, 141 Md. App. at 493, the County's interpretation, which we adopt, is far Court followed the parties' invitation into "a se- easier to administer than appellants', because it mantic whirlpool" of [*133] debate as to the guarantees that the permit application that trig- meaning of the English language's indefinite ar- gers the tax will also be the permit from which ticle. The Court reviewed several dictionaries the tax obligation can be calculated. and relevant cases, concluding that the word Moreover, even assuming that the permit to "a" can mean "one" or "any"--but, we empha- build retaining walls for which appellants ap- sized, "'the meaning depends on context.'" Id. plied in June 2002 constituted a building permit (quoting Black's Law Dictionary 1 (6th ed. "for development," the filing of that permit be- 1990); emphasis in Pleasants). In the context of fore the ordinance's effective date would not that case, we found "one" to be the more per- have exempted all subsequent permits from the suasive interpretation. Pleasants, 141 Md. App. Impact [***35] Tax. We explain. at 496-97. Looking to the effective date of the 2002 In the context of this case, however, it does amendment to the Impact Tax, appellants de- not matter which definition we choose, for nei- clare that it "specifically excluded 'develop- ther is of help to appellants. Appellants read the ments' for which a building permit application Act to exclude a development from taxation so was filed prior to its effective date." They make long as "a building permit" was sought before much of the phrase "a building permit" in the July 1, 2002. But that is not what the statute provision. (Emphasis added). Citing Pleasants does. As noted, the statute provides: "This Act Investments Ltd. Partnership v. Dept. of As- takes effect on July 1, 2002, and applies to any sessments and Taxation, 141 Md. App. 481, development for which an application for a 786 A.2d 13 (2001), for the proposition that the building permit is filed on or after that date." word "a" can mean "one" or "any," they glean 2002 Montg. Co. Laws, ch. 4, § 2(a) (Emphasis [**1163] from that word that the Impact Tax added). Thus, [***37] it includes develop- does not apply to a project so long as at least ments for which a building permit is sought af- "one" or "any" building permit was sought be- ter the effective date. fore July 1, 2002. Substituting the words "one" or "any" for According to the County, appellants' posi- "a" into the effective date provision makes no tion is an "illogical interpretation" of the legis- difference, for neither has the meaning that ap- lation. It asserts: "The words that Srour seeks to pellants desire. "This Act ... applies to any de- distort must be read in the context in which velopment for which an application for [one] they appear. The combination of the definition building permit is filed on or after [July 1, of 'development,' the applicability of the tax, 2002]," has the same meaning as "This Act ap- and the effective date of the amendment re- plies to any development for which an applica- flects the proper meaning of the word 'a.'" The tion for [any] building permit is filed on or after County adds: "The provision in a bill that es- [July 1, 2002]." Appellants filed two permit ap- tablishes the effective date is an integral part of plications after July 1, 2002, which triggered the act. . . . And when the legislature declares the Impact Tax. The meaning that appellants the effective date of an act, it is presumed desire can only be achieved if "a" means "the [***36] to have intended the act 'to take effect first," as in "This Act applies to any develop- on that particular date, and no other.' Robey v. ment for which an application for [the first] Broersma, 181 Md. 325, 336, 26 A.2d 820 building permit is filed on or after [July 1, (1942)." 2002]," or if "a" means "every," as in "This Act applies to any development for which an appli- Page 15

cation for [every] building permit is filed on or after [July 1, 2002]." Appellants have cited no The County Council intended, precedent for the proposition that "a" means through its prospective enactment "every" or "the first," and we decline to adopt of Bill No. 47-01 evidenced by the such a strained interpretation in this context. inclusion of the July 1, 2002 effective date, for those who had filed [*134] C. applications for a building permit Alternatively, appellants draw on Mary- for development prior to July 1, land's [***38] zoning case law to support the 2002, to have a vested right to ob- contention that the application for their first tain any further building permits permit gave them a vested right "to proceed un- required after July 1, 2002 to com- der the law as it existed at the time the applica- plete their projects without being tion for Permit No. 1 was filed--prior to the ef- subject to the Development Impact fective date of the county-wide Development Tax. The language employed may Impact Tax." The Maryland Tax Court rejected be considered as "vesting" or as that contention, stating: imposing by clear implication a "date of finality." Every tax, in- [C]learly taxing jurisdictions cluding a development impact tax have the right to change taxes on requires a "taxable event." Here, it property. Property tax rates on is clear that the intended taxable peoples' property [**1164] in the event was the application for the County get changed every year ... first building permit required for and that affects the rights of the Development that was filed on property owner after the property [*135] or after July 1, 2002. Any is in existence. One could say building permit application filed that's exactly what occurred here.... after the first permit for the com- I don't think any property owner pletion of building activity com- has vested rights not to have their menced under the first permit was taxes changed. I guess, personally, not a "taxable event." An attempt if that's the case, I'd love to know to make subsequent applications about it so that my property taxes for additional permits for comple- on my residence don't change ev- tion of the same Development a ery year. "taxable event" is impermissible because Bill No. 47-01, intended to vest one's right to complete [***40] a Development for which Appellants maintain that the circuit court a building permit application had erred "when it sustained the Maryland Tax been previously submitted. Court's finding that there are 'no vested rights in tax as there might be in zoning,' when it is the clearly articulated intent of the legislature that such rights are to vest." Claiming that To support their position, appellants cite "Maryland's law of vested rights should be ex- Powell v. Calvert County, 368 Md. 400, 795 tended to apply to the Development [***39] A.2d 96 (2002). In Powell, the Court of Ap- Impact Tax because it is clearly a 'building reg- peals explained the doctrine of vested rights in ulation,'" appellants assert: the context of zoning, as follows:

Page 16

[The doctrine of vested rights] the facts of this case nor the cases "has a constitutional foundation relied upon by Srour support the [and] rests upon the legal theory application of vested rights princi- that when a property owner obtains ples to avoid the imposition of the a lawful building permit, com- development impact tax to the con- mences to build in good faith, and struction of the warehouses. completes substantial construction * * * on the property, his right to complete and use that structure cannot The vesting of rights serves to be affected by any subsequent protect landowners from changes change of the applicable building in zoning and building regulations or zoning regulations." after the owners have made significant improvements pursuant to a validly issued building permit. Id. at 410 (quoting Prince George's County v. There is no indication that this Sunrise Dev. Ltd. Partnership, 330 Md. 297, principle was intended to apply to 312-13, 623 A.2d 1296 (1993)). protect a property owner from the imposition of an impact tax on de- In Town of Sykesville v. West Shore Com- velopment [***42] where building munications, Inc., 110 Md. App. 300, 677 A.2d permits are sought and develop- 102 (1996), we analyzed three requirements, ment occurred after the effective distilled from the passage above, that a date of the tax. The Tax Court landowner must fulfill prior to the effective properly rejected this argument. date of an ordinance, in order to obtain a vested right to an exemption from the new law. In brief, the three requirements are as follows: (1) actual physical commencement of construction, In response, appellants contend that "[t]he (2) undertaken in good faith, (3) [***41] pur- provision of Maryland's law of vested rights suant to a validly issued building permit. Town that the commencement of construction ... is of Sykesville, 110 Md. App. at 305. necessary was statutorily modified by the County Council's legislatively stated intent to There is no debate among the parties over make the trigger of the Development Impact whether appellants have acted in good faith or Tax the filing of a building permit application." whether their permits were validly issued. The (Emphasis in original). "Therefore," they rea- County suggests, however, that appellants can- son, "Appellants' right to complete the contem- not satisfy the first Town of Sykesville require- plated development without the imposition of ment, remarking that "[n]ot only were no per- the Development Impact Tax on any permits mits [**1165] issued before July 1, [*136] applied to after the application for Permit No. 1 2002, but no construction occurred in reliance has vested." on a valid permit" before that time. The County asserts: We need not resolve this dispute because we are satisfied that, even if appellants had re- In an effort to escape the plain ceived their first permit for the retaining walls meaning of the statute and the con- and began construction of the walls before July sistent legislative history, Srour en- 1, 2002, they would still not have a vested right gages in a creative application of to an exemption from the Impact Tax. We ex- vested rights principles. Neither plain. Page 17

All of the cases cited by appellants deal proved Instead, the cost is in- with vested rights in the context of zoning or creased." building regulations. Appellants [*137] argue that "[t]he Development Impact Tax is a building regulation because it is applied to ... build- New Castle Investments v. City of LaCenter, 98 ing [***43] activities and is calculated based Wn. App. 224, 989 P.2d 569, 576 (Wash. App. on the amount of gross floor area constructed.... 1999) (quoting Lincoln Shiloh Assoc. v. Mukil- The additional cost of which is a regulation on teo Water Dist., 45 Wn. App. 123, 724 P.2d building." But, the Impact Tax is not a regula- 1083, 1086 (Wash. App. 1986)). tion; the Court of Appeals has already held that In New Castle Investments, developers the Impact Tax is not a regulatory fee. Eastern challenged a city's "transportation impact fees," Diversified, supra, 319 Md. at 54 ("[T]he char- which, like the County's Impact Tax, were acteristics of the development impact fee "used to pay for city facilities, such as traffic scheme ... are indicative of a tax rather than a [*138] signals or a park, that may be indirectly regulatory fee."). As discussed earlier, Eastern impacted by new development." New Castle Diversified and Waters Landing Ltd. Partner- Investments, 989 P.2d at 571. The developers ship v. Montgomery County, supra, 337 Md. charged that the TIFs were "land use control or- 15, dealt with prior versions of this ordinance, dinances," which would bring them within the ultimately holding that the development impact scope of a statutory scheme for vested rights in fee is an excise tax. Id. at 25 ("We conclude... land use. Id. The court rejected this notion. It that the [development impact] tax is an excise distinguished TIFs on the ground that they were tax...."). more like taxes than land use regulations, be- Moreover, unlike zoning regulations, which cause their purpose was to raise revenue and regulate the use to which a property may be [***45] they were codified with excise tax pro- put, the Development Impact Tax simply costs visions, rather than with land use regulations. the builder money. While we do not minimize Id. at 574-75. The court also observed that the the significance of such an expense, this differ- purpose of vested rights law was to "prevent a ence is critical in terms of the vested rights doc- project from being obstructed by enacting new trine. The Washington Court of Appeals ex- zoning ordinances or building codes." Id. at plained in a similar case involving "transporta- 573 (internal citations omitted). In its view, "[a] tion impact fees (TIFs)": TIF does not limit the use of land, nor does it resemble a zoning law. Instead, a TIF merely The TIFs do not affect the physi- affects the ultimate cost of the development." cal aspects of development (i.e. Id. "Thus," the court held, "it is not the type of building [***44] height, setbacks, right that vests under the vested rights doc- or sidewalk widths) or the type of trine." Id. uses allowed (i.e. residential, com- Several courts in other jurisdictions have mercial, or industrial). If they did, also held that similar taxation schemes did not then TIFs would be subject to the implicate vested rights. In Westfield-Palos vested rights doctrine. In other Verdes Co. v. City of Rancho Palos Verdes, 73 words, "[the developer] is not be- Cal. App. 3d 486, 141 Cal. Rptr. 36 (Cal. App. ing forced to use its land or build 1977), developers who had acquired permits differently from [**1166] that and commenced construction on various hous- which [the developer] was able to ing projects challenged several "bedroom tax- do at the time its plans were ap- es" enacted by the City of Rancho Palos Page 18

Verdes, so called because they were taxes fees, which were approximately six times high- levied on new construction of residential er for him than the flat rate fees, asserting that dwellings on a per bedroom basis. Id. at 39-41. he had a vested right to the former fee scale. Id. The developers argued that the taxes violated Rejecting his claim, the court stated: "[A] con- their "vested right to complete projects for nection fee is in the nature of an excise tax, and which building permits and financing [***46] the vested rights doctrine does not shield a de- have been secured and where construction has veloper from unforeseen tax increases." Id. at been substantially completed." Id. at 41-42. In 44 (internal citation omitted). strong language, the court rejected their claim, Similarly, in City of Key West v. R.L.J.S. explaining that "[t]he imposition of a new tax, Corp., 537 So. 2d 641 (Fla. App. 1989), the or an increase in the rate of an old one, is sim- court rejected a developer's vested rights argu- ply one of the usual hazards of the business en- ment against newly enacted "impact fees" de- terprise." Id. at 42: It added, id.: signed to "allocate to new residents of the City a fair share of the cost of new public facilities." Appellants' attempt to use a vest- Id. at 642 (internal citations omitted). The court ed rights principle to gain immuni- determined that the fact that the developer had ty from unforeseen taxes is virtual- received a building permit did not give him a ly without precedent, and if fol- vested right, reasoning that "a building permit, lowed to its logical conclusions, although assuring its possessor that he may would shield any lawful business safely rely on it and build in accordance with from newly enacted municipal tax- [***48] the approved plans, provides no assur- es if [*139] that business had ance to the possessor that a taxing authority of made any sort of irrevocable com- the very same government will not increase mitments, either financial or con- taxes on the property being built upon?." Id. at tractual, in commencing operations 646. in that municipality. [*140] Speaking more generally, the Supreme Court appears to hold the same view. It has said that "[t]ax legislation is not a prom- Another California case, Winnaman v. ise, and a taxpayer has no vested right in the In- Cambria Community Services District, 208 ternal Revenue Code.... [A] taxpayer 'should be Cal. App. 3d 49, 256 Cal. Rptr. 40 (Cal. App. regarded as taking his chances of any increase 1989), also provides guidance. There, the in the tax burden which might result from car- builder of a commercial park had obtained sev- rying out the established policy of taxation.'" eral preliminary permits, including a grading United States v. Carlton, 512 U.S. 26, 33-34, permit, and had begun grading in anticipation 114 S. Ct. 2018, 129 L. Ed. 2d 22 (1994) (quot- of construction on the property. Id. at 41. ing Milliken v. United States, 283 U.S. 15, 23, Meanwhile, the municipal water and sewer au- 51 S. Ct. 324, 75 L. Ed. 809, 72 Ct. Cl. 730, thority changed by ordinance its method of cal- 1931-1 C.B. 472 (1931)). culating service fees, from a flat fee to a fee based on square footage. Id. The ordinance In sum, in Eastern Diversified, 319 Md. at [***47] provided that it would apply to any de- 55, the Court of Appeals held that the Develop- velopment that had not received all of its per- ment Impact Tax is a tax and not a zoning regu- mits by the effective date of the ordinance. Id. lation, because its "primary and predominant The developer applied for his building permits purpose. . . is to raise revenue, regardless of shortly after the effective date. Id. He chal- what incidental regulatory effect the imposition lenged the authority's imposition of the new of the fees may have on development within Page 19

the county." The Impact Tax merely requires JUDGMENT OF THE CIRCUIT appellants to pay money rather than restricting COURT FOR MONTGOMERY [***49] the use to which they can put their property. COUNTY AFFIRMED. COSTS TO BE Therefore, the vested rights doctrine is inappli- PAID BY APPELLANTS. cable.