SNOW HILL – Just about three weeks after a visiting Worcester County Circuit Court judge dismissed a civil suit over disputed property just south of Ocean Pines once slated for the development of a YMCA, the Ocean Pines Association last week filed a notice to appeal the lower court’s decision, furthering what has essentially boiled down to a battle over semantics.
In what was a complicated situation from the beginning, developer Marvin Steen in 2002 donated 26 acres of a larger parcel just south of Ocean Pines for the development of a future northern Worcester County YMCA along with an associated Atlantic General Hospital Wellness Center, a new Ocean Pines Chamber of Commerce building and other amenities. In exchange, the Ocean Pines Association (OPA) agreed to provide sewer service for the YMCA property as well as additional sewer service for remainder of the Steen property, which was to be developed with around 60 residential lots.
In September 2002, Ocean Pines voters approved the allocation of water and sewer to the property in a referendum vote. A condition of the water and sewer swap for a future YMCA was that a building permit be secured within five years of the conveyance of the property, or the land would revert back to the ownership of the OPA.
“If a building permit is not issued within five years from the date of the conveyance from Steen, the YMCA parcel of land shall, at the option of the OPA, revert back to ownership of the OPA,” the agreement reads.
However, years past and no permits for a future YMCA were issued by the county, largely because of development restraints on the property caused in part by the state’s new Critical Areas laws. Just before the five-year deadline expired, the YMCA obtained a building permit to construct a wildlife observation deck on the property, which it believes satisfies the conditions of the transfer of the property. However, the OPA disagreed, asserting the observation platform was never part of the plan for the property and that because the YMCA did not obtain a building permit for the proposed 57,000-square-foot facility within the prescribed five-year deadline, ownership of the property should revert back to the OPA. Essentially, the case boils down to a simple matter of semantics, or a question of whether the agreement meant “a” building permit, or “the” building permit for the YMCA facility.
On Jan. 4, visiting Worcester County Circuit Court Judge Christian Kahl granted a motion to dismiss the case requested by the defendant, Mid-Delmarva Family YMCA, ruling against the plaintiff, Ocean Pines Association (OPA). The judge’s decision came abruptly at mid-trial after OPA attorney Joseph Moore presented his case. Last Thursday, Moore filed a notice of appeal on behalf of the OPA, essentially moving the case to the state’s Court of Special Appeals. Moore would not comment on the nature of the appeal when reached this week.
According to the OPA’s original complaint, the “YMCA breached the terms of the contract and the deed by which it took title to the property by, among other things, failing within the five-year period required to allow for site plan review by the OPA in order to provide for a mutually agreeable plan for the YMCA property,” and “obtaining a building permit for a bird observation platform on the YMCA property rather than the 57,000 square-foot facility the defendant was to construct on the property, and failing to convey to the OPA the YMCA property after it was unable to obtain a building permit for the construction of the 57,000 square-foot facility for which it had conceptual plans.”
However, YMCA officials contend obtaining a building permit for and later constructing the wildlife observation platform satisfied the conditions for retaining ownership of the property.
“Mid-Delmarva YMCA contends it is entitled to summary judgment because it complied with what it characterizes as the sole condition attached to the conveyance of the YMCA property from Marvin and Beverly Steen to the defendant YMCA, that the YMCA obtain a building permit for the property within five years of the date the property was conveyed,” the answer to the complaint reads.
According to the YMCA’s answer, a decision was made to pursue the wildlife observation platform when efforts to secure approvals for the fitness and wellness facility were exhausted.
“Given the YMCA property’s close proximity to the water and the presence of unusual indigenous birds, a decision was made to conserve the property in its natural condition.” The answer reads. “A timely application for a building permit to construct a wildlife observation platform was submitted and duly approved by Worcester County, just shy of the five-year deadline.”
YMCA officials have contended all along the building permit for the deck satisfied the conditions of the land transfer agreement, regardless of what the county’s YMCA location committee believes.
“Under the clear and unambiguous language of the agreement, the YMCA satisfied the sole condition of the conveyance,” the answer reads. “The agreement itself, not the representations of the committee, establishes the terms of the condition of the conveyance.”