COUNTY COMMISSIONERS FOR CARROLL COUNTY, Maryland, v. FORTY WEST BUILDERS, INC., et al., 178 Md. App. 328

HOLLANDER, Judge. This matter is before us for the second time, and concerns two contiguous residential subdivision projects: Eagles Crest and Ridgewood Estates, both located near Mt. Airy in Carroll County (the “Projects”). Harrison Farm, LLC (“Harrison”) and Ridgewood, LLC (“Ridgewood”), appellees, hold title to the real property upon which the Projects were to be built by the developer, Forty West Builders, Inc. (“Forty West”), appellee.

The County Commissioners for Carroll County, appellant (hereafter the “County,” the “Board,” or the “Commissioners”), challenge an Order issued by the Circuit Court for Carroll County on October 17, 2005. Among other things, the Order enjoined the County from applying to the Projects an adequate public facilities ordinance enacted in 2004, because in December 2002 the County had granted a Concurrency Management Certifícate (“CMC”) for each project, pursuant to an earlier and less stringent adequate public facilities ordinance.

The court also found the County in constructive contempt of its November 2008 order, in which the court had granted Forty West preliminary injunctive relief. Appellant presents three issues on appeal, which we quote: 1. Whether the trial court erred or abused its discretion when it found the County to be in constructive contempt of the November 13, 2003 Order. ,2. Whether the trial court erred in granting injunctive relief to Forty West based on a finding contained in its grant of partial

summary judgment that the CMC constitutes a contractual obligation. 3. Whether the trial court lacked jurisdiction over Forty West’s claims based upon Forty West’s failure to exhaust its administrative remedies. For the reasons that follow, we shall affirm the finding of contempt and the court’s order granting additional injunctive relief, and remand for further proceedings. I. THE LEGISLATIVE SCHEMES We begin with an overview of the relevant provisions of the Maryland Code (“Code”) and the Carroll County Code (the “County Code”). Boards of county commissioners constitute the governing bodies of the counties of the state, such as Carroll County, that have not adopted home rule under

Article XI-A (the “Home Rule Amendment”) of the Maryland Constitution. See Maryland Code (1957, 2005 RepLVol.), Art. 25. A board of county commissioners functions as the county government and “is the county body politic; in performing its various functions, it exercises legislative, quasi-legislative, executive, and quasi-judicial authority, sometimes in combination.” Queen Anne’s Conservation, Inc. v. County Comm’rs Of Queen Anne’s County, 382 Md. 306, 323, 855 A.2d 325 (2004) (citation omitted). The county commissioners sometimes wear “different hats,” by which they “perform[ ] a legislative action followed by an administrative/executive action.” Id. at 326, 855 A.2d 325. Maryland Code,

Article 25 sets forth the nature and powers of county commissioners and the manner of exercising their powers. Casey v. Mayor and City Council of Rockville, 400 Md. 259, 280, 929 A.2d 74 (2007). These powers pertain to matters such as road and bridge construction, land drainage, and public watershed associations. They are supplemented elsewhere in the Code, notably here by

Article 66B, pertaining to land use. Maryland Code,

Article 66B, commonly known as the “enabling act,” Congressional School of Aeronautics, Inc. v. State Roads Comm’n, 218 Md. 236, 244, 146 A.2d 558 (1958); 58 Op. Att’y Gen’l 521, 522 (1973), “generally regulates land use (planning and zoning) in Maryland’s non-charter, Code home rule counties, Baltimore City, and municipalities possessing planning and zoning powers[.]” Queen Anne’s Conservation, 382 Md. at 308-09 n. 1, 855 A.2d 325. However,

Article 66B, § 10.01(a)(1) permits any local jurisdiction to enact ordinances “to facilitate orderly development and growth ...,” and to enact “ordinances or laws providing for or requiring ... adequate public facilities.... ”

Section 52 of the County Code provides for the creation, jurisdiction, powers and duties of the Planning and Zoning Commission of Carroll County (the “Planning Commission”). Pursuant to § 52-5, the Planning Commission “shall have all the powers, functions and duties as provided in

Article 66B of the Annotated Code of Maryland, as amended.” On March 5, 1998, the County adopted Ordinance No. 161, entitled “Public Facilities and Concurrency Management,” codified as

Chapter 167 of the County Code. The stated aim of

Chapter 167 was to “permit[] planned residential growth to proceed at a rate that will not unduly strain public facilities, especially schools, roads, water, and sewer facilities, and police, fire and emergency medical services.” County Code, § 167-l.A.

Chapter 167 required a developer to apply for a CMC at the outset of the development process. County Code, § 167-6.A, titled “Concurrency Management approval,” provided: No development project subject to this

chapter may be approved by the Board of County Commissioners, the Planning and Zoning Commission, the Board of Zoning Appeals, or any other county official having the authority to grant approval, until the project has satisfied the requirements of this

chapter and a concurrency management certificate has been issued by the Department of Planning.[] To obtain a CMC, the developer had to submit “a concept plan ... and a concurrency data form containing sufficient information for the county to determine the impact of the proposed project on public facilities.” County Code, § 167-6.G.(1). In particular, the developer had to show that the proposed project satisfied various “threshold” requirements as to school capacity; road capacity; availability of fire, police, and emergency medical services; and water and sewer services. County Code, § 167-5.C. With regard to school capacity under

Chapter 167, the developer had to demonstrate that “[projected enrollment at schools servicing a proposed project was at 120% or less of the state-rated capacity.” County Code, § 167-5.C.(l)(a). A developer who received a CMC was permitted to “proceed with recording and development, as long as the developer [met] specified milestones, dates by which certain stages must be completed.” County Code, § 167-l.B. Put another way, “milestones” are deadlines “by which a developer must submit the next stage of a project to the Department of Planning for approval.” County Code, § 167-2.

If “available threshold capacity” (“ATC”) did not exist at the concept plan stage, the project was to be “assigned a place in a queue.” County Code, § 167-l.C. Of import here, § 167-6.E stated: “Once a project has received a concurrency management certificate, no further approval for adequate facilities and services will be required for the project if the project is completed in accordance with its milestones.” County Code, at § 167-6.E. Moreover, § 167-6.G(7) provided: Any person aggrieved by a decision of the county denying a concurrency management certificate in whole or in part and alleging this

chapter has been erroneously applied may appeal to the Board of Zoning Appeals. Any further appeal shall be to the Circuit Court. Effective June 10, 2003, the County enacted Ordinance No. 03-11 (the “Deferral Ordinance”). It mandated a twelvemonth deferral of the “submittal, acceptance, review, processing and approval of all ... residential subdivisions ... and site plans for residential development ... except for those plans approved by the Planning and Zoning Commission prior to the effective date [of June 10, 2003.]” On April 22, 2004, the County enacted Ordinance No. 04-13, which repealed

Chapter 167 and replaced it with

Chapter 71, titled “Adequate Public Facilities and Concurrency Management.” It states, in part: § 71-5. Adequacy approval. A. ATC [“Available Threshold Capacity” or “ATC”] is required for all years in the current six-year CIP [“Capital Improvement Program” or “CIP”]. B. No project may be approved by the Commission if a public facility or service is inadequate or projected to be inadequate during the current CIP, unless a relief facility is planned to address the inadequacy or the developer provides mitigation acceptable to the County.

No residential plat may be recorded or final residential site plan approved until a relief facility planned to address the inadequacy in the current CIP has been completed and is operational or the developer provides mitigation acceptable to the County. C. For projects that received preliminary approval by the Commission after March 5, 1998, and prior to April 22, 2004, the developer shall submit the project to the Commission for issuance of a recordation

schedule and building permit reservations. For projects that received preliminary approval by the Commission prior to March 5, 1998, the project shall be tested for adequacy when final plan approval is sought pursuant to § 71-6E. D. Threshold requirements.

(1) Adequacy. (

a) Schools. An elementary or high school servicing a proposed project is adequate, for the purposes of this chapter, when projected enrollment equals or is less than 109% of the state-rated capacity. A middle school serving a proposed project is adequate, for the purposes of this chapter, when projected enrollment equals or is less than 109% of the functional capacity....

(2) Approaching inadequacy. (

a) Schools. An elementary school serving a proposed project is approaching inadequate, for the purposes of this chapter, when projected enrollment is 110% to 119% of the state-rated capacity. A middle school serving a proposed project is approaching inadequate, for the purposes of this chapter, when projected enrollment is 110% to 119% of the functional capacity. A high school serving a proposed project is approaching inadequate, for the purposes of this chapter, when projected enrollment is 110% to 119% of the state-rated capacity....

(3) Inadequacy. (

a) Schools. An elementary school serving a proposed project is inadequate, for the purposes for this chapter, when projected enrollment exceeds 120% of the state-rated capacity. A middle school serving a proposed project is inadequate, for the purposes of this chapter, when projected enrollment exceeds 120% of the functional capacity. A high school serving a proposed project is inadequate, for the purposes of this chapter, when projected enrollment exceeds 120% of the state-rated capacity.... § 71-6. Approval process. A. No development project subject to this

chapter may be approved by the Commission until the project has satisfied the requirements of this chapter. B. Any permit or approval obtained in violation of this

chapter is void. C. Concept process.

(1) A concept concurrency application for a residential subdivision or other project subject to this

chapter shall be submitted when a concept plan, pursuant to

Chapter 103, is submitted to the Department. The application shall contain.... D. Preliminary process.

(1) A preliminary concurrency application for a residential subdivision or other project subject to this

chapter shall be submitted when a preliminary plan, pursuant to

Chapter 103, is submitted to the Department [of Planning]. The application shall contain____

(2) Distribution and review. (

a) After all review agency comments have been addressed and the Department has determined that the preliminary plan may be presented to the Commission, the Department shall distribute the ATC form and preliminary plan to the appropriate agencies for review and comment.

(4) Planning and Zoning Commission adequacy determination. (

a) Denial. If a public facility or service is inadequate or projected to be inadequate during the current CIP at the preliminary plan stage and no relief facility is planned in the six-year CIP to address the inadequacy or no mitigation is accepted by the County pursuant to § 71-5B, the plan shall be denied by the Commission. At the request of the developer, the plan may be placed in a queue and re-tested on an annual basis. (

b) Conditional approval. If a public facility or service is inadequate and a relief facility is planned in the six-year CIP to address the inadequacy or mitigation is accepted by the County pursuant to § 71-5B, or a public facility or service is approaching inadequate during the current CIP, the Commission may conditionally approve the plan to proceed to the final plan stage and issue a tentative recordation

schedule and tentative building permit reservations, subject to modification at the final plan stage. (

c) Approval. If all public facilities and services are adequate during the current CIP, the Commission may approve the plan to proceed to the final plan stage and issue a recordation

schedule and building permit reservations, subject to a building permit cap adopted by the Board of County Commissioners in effect at the time of applications for building permits.

(5) For projects released from a queue, the project will be re-tested as to the facility or service which was inadequate or projected to be inadequate, in accordance with this subsection D. E. Final process.

(1) A final concurrency application for a residential subdivision or other project subject to this

chapter shall be submitted when a final plat or site plan, pursuant to

Chapter 103, is submitted to the Department. The application shall contain: (

a) The number of units, type of units, and gross density of the proposed project; (

b) The location of the proposed project; (

c) Identification of the public facilities impacted by the proposed project; (

e) For a site plan, a traffic impact study for roads and intersections completed in accordance with the traffic impact study guidelines....

(2) Distribution and review: (

a) After all review agency comments have been addressed and the Department has determined that the final plan may be presented to the Commission, the Department shall distribute the ATC form and final plan to the appropriate agencies for review and comment. (

b) Upon receipt of all applicable agency comments and ATC forms, the Department shall review the proposed project for ATC and compliance with this chapter. (

c) If no response is received from any applicable agency within 30 days of the date the Department distributes the ATC form, the ATC shall be presumed adequate for the particular facility or service for which no response was received. (

d) No final plan may be presented to the Commission until the written report is prepared pursuant to paragraph (3). (

e) The final plan may not be withdrawn from the Commission agenda by the developer after the distribution of the ATC form. The final plan shall be presented to the Commission for adequacy approval.

(3) The Department shall forward a written report to the Commission including a recommendation as to whether adequacy approval should be granted and the following information: (

a) The number and type of units the proposed project would generate; (

b) The specific public facilities impacted by the proposed project; (

c) The extent of impact of the proposed project; (

d) The availability of ATC to serve the proposed project during the scheduled completion year and all remaining years in the existing CIP; (

e) The demand on existing and planned public facilities and services from all existing and approved development in the proposed project’s applicable service area or district, including lots or projects not subject to this chapter, as follows: [1] Existing lots and subdivisions, including residential units which have been approved by the Commission, in the impact area; [2] All residential building permits proposed or projected in the impact area for the six-year CIP period.... (

f) If any existing facilities or services are inadequate, whether any facilities or services are planned in the CIP or budget that would alleviate the inadequacy, including the year in which the facilities or services are projected to be completed and operational and the extent to which they would alleviate the inadequacy.

(4) Planning and Zoning Commission adequacy determination. (

a) Denial. If a public facility or service is inadequate or projected to be inadequate during the current CIP at the final plan stage and no relief facility is planned in the six-year CIP to address the inadequacy or no mitigation is accepted by the County pursuant to § 71-5B, the plan shall be denied by the Commission. At the developer’s request, the plan may be placed in a queue and re-tested on an annual basis. (

b) Conditional approval. If a public facility or service is inadequate or approaching inadequate and a relief facility is planned in the six-year CIP to address the inadequacy or mitigation is subject to a phasing plan for recordation or may defer the project and place the plan in a queue to be re-tested on an annual basis. (

c) Approval. If adequacy was not determined by the Commission at the preliminary plan stage and the Commission determines that all public facilities and services are adequate, the Commission may approve the plan and issue a recordation

schedule and building permit reservations. (

d) For projects that received a conditional approval and tentative recordation

schedule at the preliminary plan stage, the Commission shall review the facility or service which was inadequate or approaching inadequate at the preliminary plan stage and may modify the recordation

schedule and building permit reservations or place the project in a queue, at the discretion of the Commission. (

e) For projects that received a recordation

schedule and building permit reservations at the preliminary plan stage, the Commission shall inform the developer whether any existing or proposed building permit cap would be applicable to the project. II. FACTUAL AND PROCEDURAL

SUMMARY On or about October B, 2002, Forty West submitted concept plans and applications for CMCs to the County for two proposed subdivisions: a 70-lot project to be called Eagles Crest, and a 61-lot project to be called Ridgewood Estates. Forty West paid development review fees to the County for the Projects in the amounts of $8,869 and $8,122, respectively. The County issued CMCs for the Projects, which bear the date of November 22, 2002. The CMCs were signed by Forty West as the developer on December 10, 2002, and by Jeanne S.

Joiner, the Director of the County Department of Planning, on behalf of the Commissioners, on December 17, 2002. The word “(SEAL)” appears next to each signature. At the relevant time, the CMC was a two-page form document. In general, it identified the name of the housing project; the total number of building lots; the years in which building lots were allocated; milestone dates; and the dates by which plats were to be recorded. The document also contained an acknowledgment that the requirements of the Concurrency Management Law (“CML”) were met for the particular project.

Notably, it conditioned issuance of building permits on the developer/owner satisfying all requirements of the CML and all other applicable laws and agreements between the developer/owner and the County. Both CMCs at issue here contain almost identical language. As to Eagles Crest, for example, it said, in part: I hereby certify that the requirements of the Carroll County Adequate Public Facilities and Concurrency Management Ordinance (Chapter 167 ...) have been met for the above project.

The County will issue building permits for the subdivision known as “Eagles Crest,” according to the following schedule, provided that the Developer/Owner meets all requirements of

Chapter 167, Code of Public Local Laws and Ordinances for Carroll County, all other applicable laws, and all agreements between the Developer/Owner and the County. By the terms of the CMCs at issue here, during fiscal years 2005, 2006, and 2007 Forty West was to satisfy certain “milestones” before the County would issue building permits for the Projects. As a prerequisite to the issuance of any building permits, Forty West was required to submit a “Preliminary Plan Package Submittal Milestone” by June 8, 2003.

In addition, the County would issue the first fifty permits, for fiscal year 2005, only if Forty West submitted a “Final Plat Package Submittal Milestone” by March 1, 2005, and a “Date of Recordation of Milestone” by May 8, 2005. By letters dated December 10, 2002 (for Ridgewood Estates) and December 18, 2002 (for Eagles Crest), Clayton Black, of the Bureau of Development Review (the “Bureau”), wrote to Stephen Costello at Forty West, enclosing the completed CMC.

Each letter warned: “Please note that a failure to meet these milestone dates will result in the cancellation of your certificate and a new application will need to be filed. Extensions of these dates can not be granted.” On April 24, 2003, Steven C. Horn, the Director of the County Department of Planning, issued a “Special Report to the Board of Carroll County Commissioners” (the “Special Report”).

It stated, in pertinent part: Concurrency Management Aside from the fact that implementation of the Ordinance [Chapter 167] has proven to be complex, data intensive, and difficult to track, Concurrency Management is “fixable”. Inconsistent implementation, due to lack of staff comprehension and inadequate resources, has given credence to the notion that the best solution is to “scrap” Concurrency Management and proceed with the establishment of a new adequate facilities ordinance.

Staff submits that addressing the following shortcomings in the Ordinance would result in a more effective growth management tool while sparing the County the time and expense of starting from scratch on the creation of a new adequate facilities ordinance. 1. Make Concurrency responsive to countywide growth. Currently, the Ordinance does not apply in the municipalities, therefore, implementation of a countywide growth management tool is problematic.... 3. Test for adequacy at Preliminary Plan Stage of development process. Typically, the ATC is set at the concept plan stage.

The problem with the single test at concept plan stage is the County issues the Concurrency Certificate based on the concept plan. The Certificate acts like a “contract” with the developer, and by its issuance, the County agrees that the project can move forward to completion—irrespective of the possibility that public facilities may become inadequate before the project is ready for recordation.

Additional adequacy testing must consider investments made by developers in preparing preliminary plans. (Emphasis added.) According to the Special Report, the resolution of these problems was expected to “be complicated and time consuming,” and those individuals studying the problem needed “to complete the task without the added pressure of ongoing subdivision plan review.” Therefore, it recommended “a ternporary deferral on the processing of unapproved plans (plans not yet approved by PZQ” i.e., the Planning and Zoning Commission, and “on the acceptance of new subdivision plans that are subject to the Concurrency Management Ordinance.” The Special Report continued: The deferral is recommended to extend for up to 12 months, thereby allowing the referenced Committees and County staff ample time to undertake the analyses and corrective actions referenced herein.

The 12 month deferral period is a temporary measure to prevent land development that may be inconsistent with proposed or pending changes. Without this deferral, we may artificially create a rush to submit and process subdivision plans (to develop and achieve vested rights) and encourage speculative land development in anticipation of contemplated changes to the referenced ordinances. Following issuance of the CMCs, Forty West began engineering work, percolation testing, and street traffic studies in order to meet the first milestone of June 8, 2003, for preliminary plan package submittal.

In order to finance the purchase of the properties and to continue development efforts, Forty West borrowed $6,981,250 on May 2, 2003, secured by a Deed of Trust. Then, on May 9, 2003, Harrison Farm, LLC obtained ownership from Edward H. Harrison of the 91-acre parcel to be developed as the Eagles Crest subdivision, for the sum of $3,587,726.63. On the same date, for the sum of $4,444,212.36, Ridgewood LLC acquired the 153-acre parcel from Mt. Airy Farm LLP. It was to be developed as Ridge-wood Estates.

Through August 20, 2003, appellants incurred development costs, excluding the cost of the land, but including site engineering, traffic studies, percolation testing, and governmental fees, of approximately $480,000. On May 19, 2003 (i.e., prior to the June 8,2003 milestone set forth in the CMCs), Forty West submitted preliminary plans for the Projects to the Bureau, and paid review fees to the County of $9,650.20 for Eagles Crest and $9,527.84 for Ridge-wood Estates.

In letters dated May 30, 2003, the Bureau acknowledged that the plans were “accepted for distribution to the appropriate review agencies,” and that comments would be presented at a Subdivision Advisory Committee (“SAC”) meeting, tentatively scheduled for June 27, 2003. Further, it advised that the developer and engineers “should be available at the meeting to discuss any issues relative to the project.” However, on June 5, 2003, the County adopted the Deferral Ordinance, effective June 10, 2003; it mandated a twelvemonth deferral of all projects then under review.

On June 12, 2003, Horn advised Forty West that the Deferral Ordinance applied to the Projects, stating that “all processing of the[ ] plans will cease as of June 10, 2003.” Horn continued: The Bureau of Development Review will retain all plans and associated fees, unless the applicant requests the return of the fees and the plans. Fees will not be released until a request to withdraw your application from the process is received and a form is signed requesting such action. The County Attorney is currently drafting the required form.

The County recognizes that you may be unable to meet the milestones in the Concurrency Management Certificate due to

an act or omission of the County in adopting Ordinance 03-11. You will not be required to meet any milestone during the deferral period and a determination of the process will be made in the later stages of this deferral. Harrison and Ridgewood asked the Board for exemptions from the Deferral Ordinance. In connection with both Ridge-wood Estates and Eagles Crest, the Board held hearings in August of 2003. The Commissioners denied each request in a “Decision” issued on September 25, 2003. The rulings are largely the same.

As to Eagles Crest, it stated: On August 21, 2003, the County Commissioners of Carroll County, Maryland (“the Commissioners”), held a public hearing on the request of Harrison Farm, LLC and Forty West Builders, Inc. for an exemption from the Residential Development Deferral pursuant to

Article I(vi)(6)(

b) of Ordinance No. 03-11 for its project known as “Eagles Crest.”

Article I(vi)(6)(

b) allows residential projects to apply for an exemption that have been or are presently the subject of a municipal annexation petition.

In order to grant a request for an exemption from the deferral, the Board must consider evidence of at least the following three minimum factors: whether there is substantial hardship to the owner or developer if the project is not allowed to proceed during the deferral period; whether adequate public facilities exist in the area where the project is located; and in the case of an inadequate public facility or service, whether the developer proposes and agrees to provide relief facilities or services prior to the use and occupancy of the project.

With respect to the request at issue, based on the evidence and testimony presented at the public hearing, as well as the Special Report to the Board from the Department of Planning, we make the following findings and conclusions of law: The proposed project (“Eagles Crest”) is located on the northeast corner of the Maryland Route 27 and Watersville Road intersection and as proposed will consist of approximately 70 units. The project was the subject of a Town of Mount Airy municipal annexation petition, originally received by the Town in December of 2001.

The annexation petition was scheduled for a public hearing before the Town Planning and Zoning Commission, but the petition was withdrawn on October 3, 2002 before the hearing. The developer voluntarily withdrew the project because of economic concerns related to the limited number of lots the Town would approve and the costs of required infrastructure. The property has not been the subject of an annexation petition since that time. As for water and sewer service, the project will be served by on-site private well and septic facilities.

As to emergency services, the project will be served by the Mount Airy Volunteer Fire Department, Inc. Deputy Chief Douglas C. Alexander reviewed the request and expressed concerns regarding the adequacy of emergency services for this proposed subdivision; although, he indicated the Department was not against the request exemption. The Town of Mount Airy opposed the request for exemption because of ongoing concerns about adequate facilities within the Town. As to adequacy of schools, Mr.

David Reeve from the Board of Education (BOE) responded that the Mount Airy Middle School will exceed functional capacity before the anticipated opening of a relief facility in August of 2008. The units in the proposed subdivision will begin to be brought on-line in 2005 further straining the capacity at the Middle School. According to BOE criteria, a school becomes “inadequate” when pupil enrollment exceeds 110% of the functional capacity of the facility, and adequacy standards for schools are a key issue reviewed during the development deferral period.

Enrollment projections for the Middle School are currently 122% of functional capacity and will rise to 134% in 2007-2008. The Middle School has also been used as a temporary relief facility at the elementary school, which currently exceeds capacity and will continue to do so until the new Parr’s Ridge Elementary school is open and available in 2005. The applicant has offered no relief for inadequacy. Because of the “inadequate” findings by the BOE, we find no compelling reason to allow this project to proceed during the deferral period.

Although the applicant provided information regarding substantial hardship at the public hearing, we do not find the information compelling enough to grant the exemption especially in light of the Middle School inadequacy and the failure of the applicant to provide any relief for the inadequacy. NOW, THEREFORE, this 25th day of September, 2003, the request for exemption is hereby DENIED.[] Forty West appealed the Board’s decision to the Carroll County Board of Zoning Appeals (the “Zoning Board”) (Case Nos. 4821 and 4822).

Following a public hearing on August 26, 2003, the Zoning Board issued its decisions on October 7, 2003. It declined to review the legality of the Deferral Ordinance, or to require the Planning Commission to continue processing the plans for Eagles Crest and Ridgewood Estates. Forty West then sought review in the Circuit Court for Carroll County on November 5, 2003, which affirmed. Thereafter, Forty West appealed to this Court. In a consolidated appeal involving 17 cases, including Harrison Farm, LLC and Ridgewood, LLC. v.

County Commissioners of Carroll County, Nos. 1435 and 1432, September Term, 2004 (“Forty West I ”), this Court affirmed on April 20, 2005. The Court reasoned that the “Board is empowered to review administrative decisions only, not legislative decisions.” Forty West I, slip op. at 7. Further, we stated: [T]he Ordinance was a legislative act that applied to appellants’ projects by its terms. The Department of Planning was not asked to make an administrative determination with respect to a particular property or properties.

The Department of Planning simply acknowledged the scope and effect of the Ordinance as applicable to all properties subject to its terms. In other words, there was no administrative determination that could be appealed to the Board. The challenge by appellants was a direct challenge to the legislative act of enacting the Ordinance. Notably, the Forty West I Court added: For the above reasons, the Board lacked jurisdiction. We expressly decide no other issue.

In the event actions are now filed invoking the general jurisdiction of the circuit court, the court, upon request, may, in its discretion, decide whether to stay such actions, and any presently pending actions, until the ultimate resolution of the administrative process. Forty West I, slip op. at 7-8 (emphasis added). In the interim, on October 9, 2003, while appellants pursued their challenge to the Deferral Ordinance, Forty West filed in the circuit court a “Verified Complaint” against the County Commissioners, asserting claims for breach of contract, anticipatory breach of contract, and equitable estoppel.

Forty West sought various forms of relief, including a writ of mandamus or an injunction requiring the County to “[i]mmediately resume and continue its review and approval process pertaining to [the Projects’] development plan packages in the ordinary course, without requiring any further approvals for adequate facilities and services, as long as the projects are completed in accordance with their milestones.” Forty West also asked the Court to extend the milestones “for a period of time equal to the number of days between June 10, 2003 and the date on which review and processing resumes on [the Projects.]” Moreover, it requested compensatory damages and a declaratory judgment adjudicating “the rights and liabilities of the parties with respect to the Concurrency Management Certificates----” On the same day, Forty West filed a “Motion for Preliminary Injunction,” requesting the court to issue a preliminary injunction requiring the County “to resume the processing of development plans for the projects known as Eagles Crest and Ridgewood Estates without requiring further approvals for public facilities and services.” The County filed an opposition, in which it asserted that the CMCs were not contracts and, even if they were, they had not been breached.

Therefore, the County argued that it was “not estopped from executing its authority.” It also filed a motion to dismiss the request for preliminary injunction, claiming that the court lacked subject matter jurisdiction because Forty West had no statutory right to an appeal from the denial of its exemption request, and because Forty West had failed to exhaust its administrative remedies.

At an evidentiary hearing on October 29, 2003, Steven Costello, Forty West’s President and a member of Ridgeway and Harrison, testified that, in reliance on the County’s issuance of the CMCs, Forty West incurred substantial expenses, as outlined above, in order to complete the preliminary plan submissions due on June 8, 2003. He added that, if the County had not issued the CMCs, Forty West would not have acquired the real property on which the subdivisions were to be built.

In light of the Deferral Ordinance, Costello expressed concern that the County would “initiate new and stringent guidelines and other checkpoints that [would] make it harder or impossible for [Forty West] to develop.” His concern was based on “statements in the paper from Mr. Horn stating that new regulations would probably be enacted and they would be retroactive to plans that are already in the County now.” Forty West also introduced a slide presentation that the County’s Director of Planning showed to prospective home-builders regarding the

Chapter 167 CMC process. A slide in that presentation, entitled “HOUSING ALLOCATION,” provided: “A housing allocation reserves a developer the right to receive a building permit in that fiscal year.” The court issued a Memorandum Opinion and Order on November 12,2003 (entered November 13, 2003), in which it granted the developer’s application for preliminary injunction (the “November 2003 Injunction”). The court found that:

(1) Forty West was likely to succeed on the merits; (2) greater injury would be done to Forty West than the County in the absence of injunctive relief;

(3) Forty West would suffer irreparable harm if development review were halted; and (4) the public interest would suffer “no measurable damage[.]” Therefore, it ordered the Board to “resume the development review and approval process” as to both Projects and to extend the milestones in both CMCs. In particular, the court revised the milestone dates by adding 156 days to account for the time period that elapsed between the date the moratorium commenced, June 10, 2003, and the date the court issued the injunction. In reaching its conclusions, the court reasoned: 1.

The Likelihood That [Forty West] Will Succeed On the Merits [Forty West] allege[s] the Concurrency Management Certificates are contracts, and that the [County] is in breach of those contracts. [Forty West] and the [County] executed under seal two Concurrency Management Certificates. Both Certificates contained identical language, e.g., that the requirements of the Concurrency Management Ordinance “have been made for the above project” and that the “County will issue building permits” according to the

schedule set forth in each Certificate provided that the developer meets all legal requirements. The Certificates bear the indicia of contracts, including mutual executory promises and the signatures of all parties under seal. In reliance upon the agreements set forth in the two Certificates, Harrison Farm LLC and Ridgewood LLC promptly purchased the land for Eagles Crest and Ridge-wood Estates.... The companies also incurred initial development costs to stay on track so as to achieve the milestones contained in the Certificates.... 2.

Balance of Convenience—Whether Greater Injury Would Be Done to Defendant by Granting Injunction Than Would Result From Its Refusal By granting the injunction, the County Department of Planning will have to process [Forty West’s] subdivision plants] (and potentially all those subdivision plans that have received a Concurrency Management Certificate) while the Growth Management Task Force focuses on what is wrong with the practice of land development in Carroll County and presents those recommendations to the Board.

The Court recognizes that addressing these problems will be time consuming and complicated for the Growth Management Task Force and that it would be ideal if the Task Force could conduct its review of land development in the county without dealing with ongoing subdivision plan review. However, the Court finds that greater injury would be done to [Forty West] if the injunction were not granted.

Also, the Court notes that [Forty West] will not receive building permits until Fiscal Year 2005, and the Court will in all likelihood decide this matter on the merits before construction of Eagles Crest or Ridgewood Estates begins. 3.

Whether [FoHy West] Will Suffer Irreparable Injury [Forty West is] seeking the continuation of processing of [its] subdivision plans without the imposition of additional adequate public facilities requirements. [Forty West] allege[s] that because Ordinance 03-11 does not defer residential developments in Carroll County’s municipalities, where a large percentage of residential growth is anticipated, it is likely that during the deferral period [Forty West’s] projects will lose any competitive advantage. Stephen H.

Costello, President of Forty West, testified at the preliminary injunction hearing that he borrowed $6,981,250.00 from The Columbia Bank to purchase the properties and that the bank holds a promissory note dated May 9, 2003, that provides that the principal shall be due and payable June 1,2005. The promissory note also provides that interest on the principal shall be paid monthly commencing on the first day of the first month following the date of the promissory note.

The Court finds that there is a likelihood that [Forty West] will prevail on the merits, and therefore, the possibility that [Forty West’s] subdivision projects will suffer irreparable harm due to the County’s decision to continue processing the plans of Carroll County’s municipalities will suffice for satisfaction of this factor.

A The Public Interest The public interest will suffer no measurable damage by the granting of this injunction, pending a hearing on the merits. [Forty West] will not be eligible for a building permit until 2005 and, therefore, should [the County] prevail at a hearing on the merits, none of the residences will have been constructed. The County noted an appeal as to the November 2003 Injunction. On its own initiative, the Court of Appeals issued a writ of certiorari in three consolidated cases, including Board of County Commissioners for Carroll County v. Forty West Builders, Inc.

See Board of County Commissioner for Carroll County v. John W. Pfaff Builders, Inc., 380 Md. 617, 846 A.2d 401 (2004) (per curiam). However, on December 3, 2004, the Court dismissed the appeals as moot. Board of County Commissioners for Carroll County v. John W. Pfaff Builders, Inc., 384 Md. 22, 862 A.2d 404 (2004). The Court explained that it granted certiorari to consider the validity of County Ordinance No. 03-11, which “imposed a one-year moratorium on the processing of residential development plans,” id. at 23, 862 A.2d 404, but “the moratorium had expired and was not renewed.” Id.

Thus, the Court said: “The issue we took the cases to decide is therefore moot, and there is no indication that it is likely to recur in any kind of similar factual setting, as the basis for the moratorium has, itself, been dealt "with by subsequent county legislation.” Id. As noted, on April 22, 2004, while the appeal from the November 2003 Injunction was pending, the County enacted Ordinance No. 04-13, which repealed

Chapter 167 and enacted

Chapter 71. By letter of May 13, 2004, the County informed Forty West of the adoption of Ordinance No. 04-13, stating: The adoption of these ordinances may have a direct impact on your proposed subdivision plans as compliance with each ordinance is required. We would encourage you to contact us to discuss this at your earliest convenience or have our engineer or surveyor make the necessary corrections to bring the plans into compliance. Please call for an appointment to discuss your plans or let us know your intentions on how you will be addressing this matter....

By letters dated May 21, 2004, Forty West’s counsel informed the County that Forty West “challeng[ed] the County’s right to impose any new or revised adequate public facilities criteria to the ... projects].” Forty West indicated that the circuit court had “issued an injunction requiring the County ... to continue the development review and approval process” for the Projects.

Appellees’ counsel continued: “I therefore categorically reject your assertion that compliance with the new adequate public facilities ordinance is required.” Moreover, Forty West warned that “the threat of applying the standards contained in the new ordinance to the ... projects], while [the County] is subject to the Circuit Court’s injunction, places the County in contempt of court or dangerously close to it.” On May 26, 2004, Forty West filed a “Petition for Constructive Civil Contempt” and a “Motion for Additional Injunctive Relief.” In its petition, Forty West alleged that by telephone on May 25, 2004, the County’s attorney responded to appellees’ letters of May 21, 2004, and the County advised: “(1) that the existing injunction [did] not prohibit the application of new adequate public facilities criteria to Eagles Crest and Ridge-wood Estates, and (2) that the County intend[ed] to apply said criteria to the [Projects].” Therefore, Forty West asked the court to find the County in contempt of its November 2003 Injunction.

In its motion, Forty West sought to enjoin the County from applying “any adequate facilities ordinances or criteria other than that which was in force and effect at the time the Concurrency Management Certificates were issued.” In its opposition to the contempt petition, the County argued that it was not precluded from enacting and applying new ordinances to the Projects. Moreover, it claimed that it did not violate the November 2003 Injunction because it had resumed the development review and approval process with Forty West.

In its opposition to Forty West’s motion, the County argued: (1) that the circuit court was “precluded from exercising its jurisdiction” because the issues raised by Forty West “involve the subject matter of the appeal currently before the Court of Appeals”; and, (2) under the separation of powers doctrine, the court lacked the power to grant injunctive relief that would prohibit the County “from applying a duly enacted County law.” The court held another evidentiary hearing on July 28, 2004.

Costello testified that, immediately following the November 2003 Injunction, the County resumed the development review and approval process for the Projects. He recounted: In December [2003], we had a SAC [Subdivision Advisory Commission] meeting, which is an open meeting to the public that all the reviewing agencies have a representative and to comment on the plans. We then, in January of '04, had a meeting with Bruce Waldron[] and many of the reviewers, with our engineers, to go over their comments and to get an understanding of— of where to go.

We then went back, started to revise the plans, turned them into the—the Health Department for—for our final perking, which was—some of it was done in the wet weather season, which ended in April. Those results we just received two weeks ago. We then formulated the final plans, you know, realigning the roads and lots ... and we are no[w] finalizing the plan for resubmission in August this year. Costello contended, however, that the Projects could not satisfy the

Chapter 71 APF standards, if applied. Forty West then sought to demonstrate why its Projects could not survive the review process if the new APF standards were applied. In this regard, Forty West introduced the County Board of Education’s school capacity projections. The new APF standards for the Mt. Airy Middle School district provided that facilities are “inadequate” if they exceed 120% of functional capacity, and the County Board of Education report showed that projected enrollment in the Mt. Airy Middle School district from 2005 through 2013 exceeded 120% of functional capacity. Costello explained that adequate public facilities testing under

Chapter 71 for middle schools “changed from a State-rated [capacity under

Chapter 167] to a ... functionally-rated capacity.” Waldron testified as to the County’s efforts to comply with the November 2003 Injunction. He explained that after the Deferral Ordinance went into effect in June of 2003, processing of the Projects ceased. However, after the court issued the November 2003 Injunction, the County resumed the review process. It asked Forty West to submit plans that were reviewed at a December 2003 SAC meeting. Thereafter, the parties held a follow-up meeting to discuss comments that were made at the SAC meeting.

The next step was for Forty West to submit revised plans, which his Department would “forward to the various agencies for review.” As of the July 2004 hearing, however, Forty West had not submitted the revised plans, so “there’s not a lot for [the County] to do.” The court held the matter sub curia, pending the Court of Appeals’s decision in the consolidated appeals concerning the ordinance imposing the one-year moratorium, supra. As indicated, on December 3, 2004, the Court of Appeals dismissed that appeal as moot.

On January 3, 2005, Forty West filed “Amendments by Interlineation to Verified Complaint,” in which it sought to expand the scope of the lawsuit by alleging that the Projects could not qualify for planning commission approval after the enactment of

Chapter 71. Claiming that “Application of the new

Chapter 71 to [Forty West’s] projects will probably cause them to be rejected,” Forty West requested that the court: Find and declare that [Forty West’s] rights under the Concurrency Management Certificates ... survived the County’s enactment of Ordinance 04-13 [i.e.,

Chapter 71], and that said Ordinance had no effect on the County’s obligation to continue processing the Eagles Crest or Ridge-wood Estates projects without further testing for adequate public facilities. The County filed a “Motion to Dismiss or in the Alternative to Stay” on January 13, 2005. It asserted: (1) “The question whether

Chapter 71 applies to [Forty West’s] projects should be heard and decided by the Planning and Zoning Commission prior to any ruling” in the circuit court;

(2) Forty West did not exhaust its administrative remedies before seeking relief in the circuit court; and

(3) Forty West “failed to take advantage” of the time period between the issuance of the November 2003 Injunction and the adoption of

Chapter 71 in April of 2004 to seek approval of the Projects. Moreover, the County alleged: [Consideration of the application of

Chapter 71 to [Forty West’s] projects is not yet ripe. The various agencies have not yet approved [Forty West’s] projects and such approval is a prerequisite for submission to the Planning and Zoning Commission. Only after a submission to the Commission will the projects be tested for adequacy of public facilities. Assertions by [Forty West] as to whether or not their projects will satisfy adequacy requirements are sheer speculation. Then, on May 20, 2005, Forty West filed a “Motion for Partial

Summary Judgment,” in which it asked the court to “rule, on the basis of undisputed facts, that the Concurrency Management Certificates were contracts,” and thus the County was precluded from requiring any further approval for adequate public facilities, so long as the milestones were met.

In the alternative, Forty West argued that “the County is estopped to impose more stringent facilities requirements by virtue of [Forty West’s] reliance upon the Certificates and the County ordinance [Chapter 167] promising that no new standards would be imposed.” In its opposition, the County denied that the CMCs are contracts.

It also claimed that Forty West “failed to establish” that it is “entitled to judgment as a matter of law on the basis of estoppel[.]” By “Memorandum Opinion and Order” dated October 17, 2005 (the “October 2005 Order”), the circuit court denied the County’s motion to dismiss and granted Forty West’s motion for partial

summary judgment. As to the motion for partial

summary judgment, the court said: This Court granted [Forty West’s] Application for Preliminary Injunction based, inter alia, on this Court’s finding that [Forty West was] likely to prevail on the issue that the Concurrency Management Certificates obtained by [Forty West] were contracts or acted like contracts, and the imposition of the deferral by [the County] amounted to a breach of contract. [Forty West] and the [County] executed under seal two Concurrency Management Certificates.

Both Certificates contain identical language, e.g., that the requirements of the Concurrency Management Ordinance “have been made for the above project” and that the “County will issue building permits” according to the

schedule set forth in each Certificate provided that the developer meets all legal requirements. The Certificates bear the indicia of contracts, including mutual executory promises and the signatures of all parties under seal. See, Venners v. Goldberg, 133 Md.App. 428, 758 A.2d 567 (2000). In Selig v. State Highway Administration, 383 Md. 655, 677, 861 A.2d 710 (2004), the Court held that once a party enters into a contract valid under the statute at the time of execution, subsequent statutes, generally, cannot impair the operation of those contracts. .

In reliance upon the agreements set forth in the two Certificates, Harrison Farm LLC and Ridgewood LLC promptly purchased the land for Eagles Crest and Ridge-wood Estates.... The companies also incurred initial development costs to stay on track so as to achieve the milestones contained in the Certificates____ The Court finds that there is no genuine issue of material fact as to whether [the] Concurrency Management Certificates ... constitute a contractual obligation.

Regarding the County’s motion to dismiss, the court reasoned: [The County] filed their [sic] Motion on the basis of [Forty West’s] failure to exhaust administrative remedies citing two recent Maryland Court of Appeals decisions, Maryland Recreation [Reclamation] Associates, Inc. v. Harford County, 382 Md. 348, 855 A.2d 351 (2004) and City of Bowie v. Prince George’s County Planning Board, 384 Md. 413, 863 A.2d 976 (2005) [2006]. [Forty West] allege[s it] has no administrative remedy to pursue.

The Court of Special Appeals of Maryland in an opinion dated April 20, 2005, agreed with this Court that the Board of Zoning Appeals does not have jurisdiction to rule on the validity of the deferral ordinance. There is no point in staying these proceedings until such time as the Planning and Zoning Commission has issued an opinion as to the applicability of

Chapter 71 to [Forty West’s] projects, when [Forty West has] a vested contractual interest in applying

Chapter 167 of the Carroll County Code, the law in effect at the time the Concurrency Management Certificates were issued. Therefore, the court ruled: ORDERED, that the Defendant’s Motion To Dismiss Or, In the Alternative, To Stay be, and it hereby is, denied; and it is further; ORDERED, that Plaintiffs Motion for Partial

Summary Judgment be, and it hereby is, granted; and it is further ORDERED, that Concurrency Management Certificate No. P-02-44 (Ridgewood Estates) constitutes a contractual obligation precluding the Board of County Commissioners of Carroll County, the Carroll County Planning Commission, or any agencies hereof from requiring any further approval for adequate public facilities, as long as the project is completed in accordance with its milestones, as amended by this Court’s prior order granting injunctive relies; and it is further ORDERED, that Concurrency Management Certificate No.

P-02-43 (Eagles Crest) constitutes a contractual obligation precluding the Board of County Commissioners of Carroll County, the Carroll County Planning Commission, or any agencies thereof from requiring any further approval for adequate public facilities, as long as the project is completed in accordance with its milestones, as amended by this Court’s prior order granting injunctive relief; and it is further ORDERED, that [Forty West’s] Petition for Constructive Contempt be, and it hereby is, granted and the County can purge itself of contempt by continuing to process Ridge-wood Estates and Eagles Crest under

Chapter 167 ..., the law in effect at the time ... the Concurrency Management Certificates for both projects were issued; and it is further ORDERED, that [Forty West’s] Motion for Additional Injunctive Relief be, and it hereby is, granted; and it is further ORDERED, that the Board of County Commissioners be, and it hereby is, enjoined from applying to Eagles Crest and Ridgewood Estates any adequate public facilities ordinances or criteria other than that which was in force and effect at the time the Concurrency Management Certificates were issued.

Within ten days, both parties filed motions to alter or amend, pursuant to Md. Rule 2-584.

Because the October 2005 Order was not issued until seventeen months after Forty West made its original request for relief, and fifteen months after the July 2004 hearing, Forty West’s motion requested that “each milestone in the Concurrency Management Certificates be further extended by 387 days beyond the extensions ordered in November 2003.” The County asked the court to vacate its finding of constructive contempt, and to amend the October 2005 Order by addressing Forty West’s alleged failure to comply with the milestones, as amended by the November 2003 Injunction.

The court entertained the motions to alter or amend at a hearing held on June 8, 2006. By “Order” of August 17, 2006, the court granted Forty West’s motion and extended the CMC milestones “387 days beyond the 156-day extension” ordered by the November 2003 Injunction. On August 28, 2006, the court issued an “Order” denying the County’s motion to alter or amend.

Because of the additional delay between Forty West’s original request for relief on filed on October 26, 2005, and the court’s eventual grant of relief on August 17, 2006, Forty West filed a “Motion to Alter or Amend Court’s Order of August 17, 2006” on August 28, 2006. It asked the court to: (

a) Extend the milestone dates under

Chapter 167 for a minimum of twenty-one months from [June 8, 2006] but require the County to process Forty West’s plans under all the laws that existed at the time of the issuance of the Concurrency Management Certificates (and not just

Chapter 167) to which milestone dates apply or (

b) Reaffirm the October 2005 Order that requires there be no additional requirements to test for adequate public facilities for the reasons cited therein and if [any “of the new development, subdivision and adequate public facilities ordinances, rules, regulations and procedures adopted by the County in and after 2004”] are to be applied to Forty West’s projects then there shall be no milestone dates established inasmuch as none exist under [the new ordinances, rules, regulations and procedures adopted in or after 2004]. The County filed an opposition. The court has not yet ruled on this motion.

On September 8, 2006, the County noted an appeal from the circuit court’s Order of October 17, 2005, and the Order of August 17, 2006. III. DISCUSSION A. The County appeals three rulings of the circuit court made in October 2005: the finding that the County was in constructive civil contempt of its Order of November 13, 2003, and could purge itself by continuing to process the Projects under

Chapter 167; the grant of additional injunctive relief to Forty West; and the grant of partial

summary judgment to Forty West.

The County claims, inter alia, that the court erred when it premised these rulings on its “conclusion that the [CMCs] are or act like contracts.” Preliminarily, Forty West claims that the appeal is premature, “because the circuit court is still considering whether to grant Forty West’s [August 28, 2006] Rule 2-534 motion to extend the development milestones or, in the alternative, delete the milestone requirements altogether.” It adds: “The circuit court’s ruling on this motion could render irrelevant or moot the parties’ arguments concerning the additional interlocutory injunctive relief at issue here.” Therefore, it urges this Court to “delay processing of the appeal until the withdrawal or disposal of the pending motion.” In addition, Forty West insists that there is no statutory basis for an appeal of the partial

summary judgment order because it is interlocutory. The County argues that the finding of contempt and the issuance of the preliminary injunction are interlocutory orders that are immediately appealable. Moreover, it maintains that the underlying determination that the CMCs are contracts is also reviewable, because the trial court’s conclusion to that effect was the basis on which the court found the County in constructive contempt and granted injunctive relief, enjoining the County from applying any APF ordinance to the Projects, “other than that which was in force and effect” when the CMCs were issued.

Appellant adds: “The correlation is clear: the reason why the court granted the additional injunctive relief was because it decided that the CMCs were contracts.” Even if we proceed with consideration of the appeal, Forty West contends that we need not decide whether CMCs are contracts. Rather, it urges us to confine our attention to whether the circuit court “abused its discretion in finding that the CMC-contract argument—or any of the other legal arguments in support of Forty West’s claim—is likely to succeed on the merits.” Forty West continues:

Section 12—303(3)(i) [of the Courts and Judicial Proceedings Article] does not authorize a frantic leap to the Court of Special Appeals every time the circuit court enters an order supplying an additional reason for a prior grant of injunctive relief not challenged on appeal. Only the injunctive relief itself may be appealed. [] There is nothing in the October 2005 order forging any necessary link between the CMC-contract finding and either the extension of milestones or the finding of contempt. Similarly, the statute authorizing immediate [appeal] of a contempt finding, Md.Code Ann., Cts. & Jud.

Proc. § 12-304, does not permit appeals of other, unrelated interlocutory orders such as one granting partial

summary judgment. Ordinarily, an appeal must be taken from a final judgment entered in the trial court in order for an appellate court to obtain jurisdiction. See Md.Code (1974, 2006 Repl. Vol), § 12-301 of the Courts and Judicial Proceedings

Article (“C.J.”); see Silbersack v. AC and S, Inc., 402 Md. 673, 678, 938 A.2d 855 (2008) (“[T]here is a long-standing bedrock rule of appellate jurisdiction, practice, and procedure that, unless otherwise provided by law, the right to seek appellate review ... ordinarily must await the entry of a final judgment that disposes of all claims against all parties.”); see also Hudson v. Housing Authority of Baltimore City, 402 Md. 18, 24, 935 A.2d 395 (2007); County Com’rs for St. Mary’s County v. Lacer, 393 Md. 415, 424, 903 A.2d 378 (2006); Taha v. Southern Mgmt.

Corp., 367 Md. 564, 567, 790 A.2d 11 (2002); O’Brien v. O’Brien, 367 Md. 547, 554, 790 A.2d 1 (2002); Md. Rule 2-601. In the usual course, absent a final judgment, we may not reach the merits of an appeal. O’Brien, 367 Md. at 554, 790 A.2d 1; see Jenkins v. Jenkins, 112 Md.App. 390, 399, 685 A.2d 817 (1996) (“The longstanding rule in this State deems the existence of a final judgment as a jurisdictional fact prerequisite to the viability of an appeal.”), cert. denied, 344 Md. 718, 690 A.2d 524 (1997). There is no final judgment here; the court only granted partial

summary judgment to Forty West. Nevertheless, under Maryland law, there are three delineated exceptions to the requirement that an appeal must be taken from a final judgment: (1) appeals from interlocutory rulings specifically allowed by C.J. §§ 12-303 and 12-304; (2) immediate appeals permitted under Maryland Rule 2-602(b); and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine. Hudson, 402 Md. at 24, 935 A.2d 395; Lacer, 393 Md. at 424-25, 903 A.2d 378; Salvagno v. Frew, 388 Md. 605, 615, 881 A.2d 660 (2005); Addison v. State, 173 Md.App. 138, 153, 917 A.2d 1200(2007).

As noted, the October 2005 Order granted Forty West’s motion for additional injunctive relief. C.J. § 12-303(3)(

i) permits a party to appeal an order “[gjranting or dissolving an injunction,” so long as the appellant “filed his answer in the cause[.]” Moreover, the court determined in its October 2005 Order that the County was in constructive contempt of its November 2003 Order.

That ruling is appeal-able under C.J. § 12-304(a), which provides, subject to an exception not relevant here, that a party “may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging a person in contempt, whether or not a party to the action.” See Bryant v.

Howard County Dep’t of Social Services, 387 Md. 30, 45, 874 A.2d 457 (2005) (reiterating that a finding of contempt, even without the immediate imposition of punishment or sanction, is appealable because a finding of contempt leaves “the defendant adjudged to have wilfully violated a court order and may well leave the defendant subject to future punishment at the will of the court.”) See also Unnamed Atty. v.

Attorney Grievance Comm’n, 303 Md. 473, 483, 494 A.2d 940 (1985) (“A contempt proceeding, even though it may grow out of or be associated with another proceeding, is ordinarily regarded as a collateral or separate action from the underlying case and as separately appealable, with appellate review normally limited to the contempt order itself.”) Here, the court issued its contempt finding and its grant of injunctive relief as part of an omnibus Memorandum Opinion and Order in which it granted Forty West’s motion for partial

summary judgment. All three rulings were predicated on the circuit court’s finding that the CMCs constituted contractual obligations. Because that determination was the basis for the contempt finding and the injunction, which are appealable interlocutory orders, we are satisfied that the CMC-contract issue is properly before us. If we were to adopt Forty West’s position—that the contract issue is not before us—we would be barred from reviewing an appealable interlocutory order merely because the circuit court issued such an order contemporaneous with a non-appealable interlocutory order (ie., the grant of partial

summary judgment). The statutes that empower us to review interlocutory injunctions and contempt findings do not limit our authority in the way suggested by Forty West. B. As indicated, the CMCs were issued by the County and provided, in part: I hereby certify that the requirements of the Carroll County Adequate Public Facilities and Concurrency Management Ordinance (Chapter 167 ... ) have been met for the above project. The County will issue building permits for the subdivision known as “Eagles Crest,” according to the following schedule, provided that the Developer/Owner meets all requirements of

Chapter 167, Code of Public Local Laws and Ordinances for Carroll County, all other applicable laws, and all agreements between the Developer/Owner and the County.[] Appellant argues that the CMCs are not contracts and do not function as such. First, appellant contends that the CMCs did not contain language specific enough to create contracts. Second, appellant argues that, to the extent the County made promises in the CMCs, these promises were not supported by consideration. In addition, appellant contends that they were not validly executed, in accordance with Code,

Article 66B, § 13.01, et. seq. Forty West insists that the CMCs are contracts, in which appellant promised that approval of Forty West’s Projects would be governed by the APF ordinance that existed at the time the CMCs were issued. It contends that, to the extent appellant changed its APF law, these changes would not apply to the Projects. Forty West’s position is rooted in its concern that its Projects cannot meet the new

Chapter 71 standards, which increased the threshold required for certain services to be deemed “adequate.” According to Forty West, Whereas the previous ordinance required that a project satisfy APF standards only once (prior to issuance of a CMC), after which “no further approval for adequate facilities and services will be required” (§ 167-6.E ...) the new

Chapter 71 imposes five separate stages of review: • An initial, “tentative” determination by the Department of Planning (§ 71-6.C(2) ...); • An initial “recommendation” by the Department of Planning (§ 71-6.D(3) ...); • An initial “adequacy determination” by the Planning and Zoning Commission (§ 71-6.D(4) ...); • A final “recommendation” by the Department of Planning (§ 71-6.E(3) ...); and • A final “adequacy determination” by the Planning and Zoning Commission (§ 71-6.E(4) ...). Forty West also points out that, unlike its predecessor,

Chapter 71 does not provide for an appeal to the Board of Zoning Appeals with respect to the denial of a CMC. Moreover,

Chapter 71 includes multiple stages of APF review, but does not provide for the milestones that were a feature of

Chapter 167. Forty West asserts: • Under the former law, public facilities were either adequate or not. However, under the new law, a new category has been created, called “approaching inadequacy,” with lower thresholds of inadequacy, and any project falling in that category can be denied approval, modified, or stalled. (§ 71-5.D(2), Apx. 32). • Under the prior law, school capacity was adequate so long as projected enrollment would be 120% or less of “state-rated” capacity. (E. 472; § 167-5.C(l)(a), Apx. 5).

Under the new law, however, elementary and high schools are “approaching inadequacy” when projected enrollment is 110% to 119% of state-rated capacity. (§ 71-5.D(2)(a), Apx. 32).

Moreover, middle schools are “approaching inadequacy” when projected enrollment is 110% to 119% of functional capacity, and “inadequate” at levels of 120% or more of functional capacity. (E. 472; § 71-5.D(2)(a),(3)(a), Apx. 32). • If public facilities are deemed inadequate or approaching inadequacy, the County can impose a “phasing schedule” lessening the number of building permits issued each year for development projects. (§§ 71-2, 71—6.E(4)(d), Apx. 28, 38). • Under the new law, the County declared its intent to grant no more than an average of 6,000 building permits per year during any six-year period. (§ 71-4.B, Apx.30).

However, the County mandates that building permits issued by municipalities not subject to the County’s ordinances “shall be included” in computing the average. Id.[ ] This is a departure from prior practice and will reduce the number of building permits issued by the County. Before reviewing the parties’ contentions in greater detail, we pause to review the basic principles of contract law. A contract has been defined as “ ‘a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.’ ” Kiley v.

First Nat’l Bank of Md., 102 Md.App. 317, 333, 649 A.2d 1145 (1994) (quoting Richard A. Lord, 1 Williston on Contracts, § 1:1, at 2-3 (4th ed.1990)), cert. denied, 338 Md. 116, 656 A.2d 772, cert. denied, 516 U.S. 866, 116 S.Ct. 181, 133 L.Ed.2d 120 (1995). The

interpretation of a written contract is generally a question of law for the court, subject to de novo review. Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 250, 768 A.2d 620 (2001); Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 341, 731 A.2d 441 (1999). We utilize the law of objective

interpretation to ascertain the intent of the contracting parties, provided that intention does not violate an established principle of law. B & P Enter, v. Overland Equip. Co., 133 Md.App. 583, 604, 758 A.2d 1026 (2000); Ragin v. Porter Hayden Co., 133 Md.App. 116, 135, 754 A.2d 503 (2000). In Maryland, “ ‘the primary source for determining the intention of the parties is the language of the contract itself.’ ” 8621 Limited Partnership v. LDG, Inc., 169 Md.App. 214, 226, 900 A.2d 259 (2006) (quoting Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd.

P’ship, 109 Md.App. 217, 290-91, 674 A.2d 106, aff'd, 346 Md. 122, 695 A.2d 153 (1997)). When the language of a contract “is unambiguous, a court shall give effect to its plain meaning and there is no need for further construction by the court.” Wells, 363 Md. at 251, 768 A.2d 620; see PaineWebber Inc. v. East, 363 Md. 408, 414, 768 A.2d 1029 (2001). Moreover, “ ‘[i]f only one reasonable meaning can be ascribed to the [contract] when viewed in context, that meaning necessarily reflects the parties’ intent.’ ” Labor Ready, Inc. v. Abis, 137 Md.App. 116, 128, 767 A.2d 936 (2001) (citation omitted).

Language in a contract can be “ambiguous when the words are susceptible of more than one meaning to a reasonably prudent person.” Maslow v. Vanguri, 168 Md.App. at 319, 896 A.2d 408 (2006). “To determine whether a contract is susceptible of more than one meaning, the court considers ‘the character of the contract, its purpose, and the facts and circumstances of the parties at the time of the execution.’ ” Id. (quoting Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486 (1985)).

The question of whether a contract was formed is central to this appeal. “A contract is formed when an unrevoked offer made by one person is accepted by another.” Prince George’s County v. Silverman, 58 Md.App. 41, 57, 472 A.2d 104(1984). An essential element with respect to the formation of a contract is “ ‘a manifestation of agreement or mutual assent by the parties to the terms thereof; in other words, to establish a contract the minds of the parties must be in agreement as to its terms.’ ” Safeway Stores, Inc. v.

Altman, 296 Md. 486, 489, 463 A.2d 829 (1983) (citation omitted); see Kiley, supra, 102 Md.App. at 333, 649 A.2d 1145. Thus, the validity of a contract depends upon the “two prerequisites of mutual assent ... namely, an offer and an acceptance.” 3 Eric M. Holmes, Holmes’s Appleman on Insurance 2D, § 11.1, at 93 (1998) (“Appleman”). It is equally well established that an enforceable contract must express with definiteness and certainty the nature and extent of the parties’ obligations. Canaras v. Lift Truck Services, 272 Md. 337, 346, 322 A.2d 866 (1974); see Robinson v.

Gardiner, 196 Md. 213, 217, 76 A.2d 354 (1950); Reiser Co. v. Baltimore Radio Show, Inc., 169 Md. 306, 312, 181 A. 465 (1935). Put another way, “ ‘[a] court cannot enforce a contract unless it can determine what it is.’ ” See First Nat’l Bank of Md. v. Burton, Parsons & Co., Inc., 57 Md.App. 437, 450, 470 A.2d 822, cert. denied, 300 Md. 88, 475 A.2d 1200 (1984) (quoting 1 Corbin on Contracts § 95). If the contract omits an important term or is too vague with respect to essential terms, the contract may be invalid. L & L Corp. v. Ammendale Normal Institute, 248 Md. 380, 385, 236 A.2d 734 (1968); see Schloss v.

Davis, 213 Md. 119, 123, 131 A.2d 287 (1957) (a “contract may be so vague and uncertain as to price or amount as to be unenforceable.”); Maslow, 168 Md.App. at 322, 896 A.2d 408. “Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement have often been held to prevent the creation of an enforceable contract.” Joseph M.

Perillo, 1 Corbin on Contracts § 4.1, at 525 (rev. ed.1993) (hereinafter “Corbin”); See Restatement (Second) Contracts, supra, § 33(1), at 92 (“Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.”). In Robinson, supra, 196 Md. 213, 76 A.2d 354, the Court explained the requirement of contractual certainty: Of course, no action will lie upon a contract, whether written or verbal, where such a contract is vague or uncertain in its essential terms.

The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. If the agreement be so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury could make a contract for the parties. Such a contract cannot be enforced in equity nor sued upon in law.

For a contract to be legally enforceable, its language must not only be sufficiently definite to clearly inform the parties to it of what they may be called upon by its terms to do, but also must be sufficiently clear and definite in order that the courts, which may be required to enforce it, may be able to know the purpose and intention of the parties. Id. at 217, 76 A.2d 354 (citations omitted). “In construing a contract, each clause must be given effect if reasonably possible.” Arundel Fed. Sav. & Loan Ass’n v.

Lawrence, 65 Md.App. 158, 165, 499 A.2d 1298 (1985). “[C]ourts are reluctant to reject an agreement, regularly and fairly made, as unintelligible or insensible.” Quillen v. Kelley, 216 Md. 396, 407, 140 A.2d 517 (1958). Because the “law does not favor, but leans against the destruction of contracts because of uncertainty!,] ... courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained.” Id. Nevertheless, “a mere expression of intention to do

an act is not an offer to do it, and a general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.” Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 539, 369 A.2d 1017 (1977). C. In appellant’s view, the CMCs lacked the “requisite definiteness and certainty to express the nature and extent of the parties[’] and particularly the Board’s obligations.” Moreover, appellant maintains that neither CMC contained “the essential terms of a contract” within its four corners.

It explains: [T]he CMC failed to place any obligation whatsoever on the County to even process Forty West’s projects by a date or time certain. The CMC did not include provisions or language that reflected intent by the Board to confer a vested right to housing allocations or a guarantee of preliminary subdivision approval by the Commission of the same number of lots as the housing allocation. Forty West responds that the CMCs “are or function as contracts between Forty West and the County.

They bear the indicia of contracts, including mutual executory promises and the signature of all parties under seal.” It insists that the County regards CMCs as contracts, stating: Sec. 167-6.E of the County Code States: “Once a project has received a concurrency management certificate, no further approval for adequate facilities and services will be required for the project if the project is completed in accordance with its milestones.” The Special Report that prompted the County to adopt the deferral ordinances states: “The [Concurrency Management] Certificate acts like a ‘contract’ with the developer, and by its issuance, the County agrees that the project can move forward to completion—irrespective of the possibility that public facilities may become inadequate before the project is ready for recordation.” Unrebutted testimony established that the County’s Director of Planning, in a slide presentation to homebuilders discussing the concurrency management process (prior to the adoption of the Deferral Ordinance) stated: “A housing allocation reserves a developer the right to receive a building permit in that fiscal year.” (Internal citations omitted.) The CMCs expressly stated that the Projects satisfied then existing APF requirements.

On that basis, the County clearly agreed .to “issue building permits for the subdivision.” When read together with the milestones schedule, the County was obligated to issue particular building permits at specified times, so long as Forty West met the requirements listed in the CMCs.

At the relevant time, § 167-6.E of the County Code expressly stated: “Once a project has received a concurrency management certificate, no further approval for adequate facilities and services will be required for the project if the project is completed in accordance with its milestones.” Of import here, “ ‘Maryland adheres to the general rule that parties to a contract are presumed to contract mindful of the existing law and that all applicable or relevant laws must be read into the agreement of the parties just as if expressly provided by them, except where a contrary intention is evident.’ ” Auction & Estate Representatives, Inc. v.

Ashton, 354 Md. 333, 344, 731 A.2d 441 (1999) (quoting Wright v. Commercial & Sav. Bank, 297 Md. 148, 153, 464 A.2d 1080(1983)). Thus, the CMCs must be construed in light of § 167-6.E of the County Code; it explicitly provided that, upon issuance of a CMC, the County will not require additional APF approval. Neither the CMCs nor the Co

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