Gen. 135] 135

 Your request for an opinion concerned an earlier proposed version 1

of this ordinance. The County adopted a somewhat different version

shortly before your request was made.

ZONING AND PLANNING

COUNTIES – MUNICIPALITIES – EFFECT OF MUNICIPAL

ANNEXATION ON OPEN SPACE EASEMENTS GRANTED TO

COUNTY BEFORE ANNEXATION

June 21, 2004

Jonathan A. Hodgson, Esquire

Attorney for the Town of Centreville

On behalf of the Town of Centreville (“Town”), you asked for

our opinion about the effect of the Town’s annexation of land on

certain open space easements previously granted with respect to that

land. The open space easements in question were granted in

accordance with the Queen Anne’s County (“County”) zoning law

while the property was outside Town boundaries. A new provision

of the County zoning law authorizes the County Commissioners, in

their discretion, to release easements under certain conditions if the

property is annexed by a municipality. In an opinion that 1

accompanied your request, you concluded that the open space

easements were simply an enforcement mechanism for the County

zoning regulations, and that they became null and void upon

annexation of the land by the Town, without any action by the

County Commissioners.

We respectfully disagree. In our opinion, the land use

restrictions created by the open space easements remain enforceable

following annexation. The County ordinance provides a permissible

procedure for releasing those restrictions on the use of the land. 
136 [89 Op. Att’y

 The land of the easement grantor is sometimes referred to as the 2

“servient tenement” or “servient estate.” See Miller v. Kirkpatrick, 377

Md. 335, 349-50, 833 A.2d 536 (2003). When the easement is for the

benefit of the owner of other land, that land is referred to as the “dominant

tenement” or “dominant estate.” Id.

 An easement “in gross” is one benefitting a particular person or the 3

public generally, rather than a particular tract of land. Colonial Pipeline

Co. v. State Department of Assessments & Taxation, 371 Md. 16, 29 n.17,

806 A.2d 648 (2002).

I

Open Space Easements

An easement is a nonpossesory interest in the real property of

another, created either by express grant or by implication. Miller v.

Kirkpatrick, 377 Md. 335, 349-50, 833 A.2d 536 (2003). To comply

with Annotated Code of Maryland, Real Property Article (“RP”), §3-

101, a deed of easement must be recorded in the land records, thus

giving notice of the restriction on the land. In general, an easement

lasts in perpetuity, or until the grantee’s rights are extinguished in

accordance with the terms of the instrument. See RP §4-105 (a grant

of easement lasts in perpetuity, “[u]nless a contrary intention appears

by express terms or is necessarily implied”).

Maryland law provides expressly for conservation easements.

See RP §2-118. The statute provides that any restriction prohibiting

or limiting the use of water or land areas for certain purposes,

whether drafted in the form of an easement or otherwise, creates an

enforceable “incorporeal property interest,” if the restriction is

properly executed. RP §2-118(a). If the restriction is not granted for

the benefit of any dominant tract of land, it is enforceable as an 2

easement in gross. RP §2-118(c). If the deed or other instrument 3

creating an easement to preserve agricultural, historic, or

environmental qualities fails to specify a grantee, the easement

passes to the Maryland Agricultural Land Preservation Foundation,

the Maryland Historical Trust, or the Maryland Environmental Trust.

RP §2-118(e); see also Maryland Environmental Trust v. Gaynor,

370 Md. 89, 803 A.2d 512 (2002).
Gen. 135] 137

 The recently enacted version of the County’s land development law 4

is a v a i l a b l e o n t h e C ounty ’s website a t

http://www.qac.org/depts/planzone/refs/Title18txt.pdf. Similar provisions

appeared in prior versions of the County zoning law.

State policy facilitates the creation of conservation easements

and similar restrictions on development that are formally imposed on

land to preserve its open space or other characteristics. See

Annotated Code of Maryland, Natural Resources Article, §3-201 et

seq. (Maryland Environmental Trust may accept donations of

conservation easements); Annotated Code of Maryland, Article 83B,

§5-607(a) (Maryland Historical Trust may accept interests in real

property); Annotated Code of Maryland, Article 66B, §8.04 (historic

district commission or historic preservation commission may acquire

easements to ensure protection of historically, archeologically, or

architecturally significant property); Annotated Code of Maryland,

Agriculture Article, §2-510 (Maryland Agricultural Land

Preservation Foundation may purchase easements to protect

agricultural land).

II

Open Space Easements in Queen Anne’s County

A. Easements Granted to Comply with County Zoning Law

Under the Queen Anne’s County zoning ordinance and

subdivision regulations, a developer may be required, as a condition

of development approval, to restrict certain portions of the land to

open space use. See, e.g., Queen Anne’s County Code, §§18-1-97

through 18-1-99 (noncontiguous development); §§18-1-100 through

18-1-107 (transferable development rights). For this purpose, the 4

owner is to sign and acknowledge an instrument that will be

recorded in the County land records. Id., §§18-1-99, 18-1-104, 18-1-

106. The County Code prescribes specific provisions to be included

in the instrument. Id., §18-1-205.

You provided with your request an example of a deed of

easement apparently created as part of the approval of a cluster

subdivision under similar provisions of a prior version of the County

Code. The deed states that the County zoning ordinance requires a

portion of the grantors’ land to be restricted as open space, that the
138 [89 Op. Att’y

 Similar provisions appear in preliminary recitals of the deed. 5

 The deed grants the County Commissioners or their designee, or 6

the County Planning Commission, a right to enter the land designated as

open space for purposes of inspection and enforcement of the easement.

Article V.

deed is designed to satisfy those requirements, and that it is not

intended to confer substantive rights or responsibilities on the

owners of lots within the cluster subdivision. Article III, ¶2. The 5

deed also states that it preserves to the grantors the right to modify

the restrictions described in the deed “in the event the Zoning

Ordinance permits additional subdivision of the ‘Open Space’” and

if the grantors obtain final subdivision approval for the

modifications. Id.

The deed designates the County Commissioners of Queen

Anne’s County as the “grantee.” The deed states that it creates an

easement that “shall run with and bind all land with[in] the

subdivision” and that it is binding on the landowner grantors, and

their successors and assigns. Article II, ¶2. It prohibits the use of

those portions of the subdivision designated as “open space” except

for certain limited recreational or agricultural uses and accessory

residential uses, as permitted by the County zoning ordinance.

Article IV, ¶1(a)-(c). The deed provides that, in the event of a

conflict between provisions of the deed and any law or regulation,

the more restrictive provision prevails. Article IV, ¶1(d).

The deed defines “open space” as undeveloped land required

by the County zoning ordinance to be restricted for resource

protection, recreational uses, or certain other uses. Article I, ¶5. The

“zoning ordinance” is defined as the Queen Anne’s County zoning

ordinance in effect on the date of the deed, as well as future

amendments of that law. Article I, ¶7.

The deed provides for enforcement by the Queen Anne’s

County Commissioners or their designee, or by the Queen Anne’s

County Planning Commission. Article II, ¶3. It precludes any 6

amendment or change unless the instrument acknowledging the

change is executed by the County Commissioners and recorded

among the land records of Queen Anne’s County. Article II, ¶4. 
Gen. 135] 139

B. Release of Easements under County Zoning Law

A recently enacted provision of the County zoning law allows

for the elimination of open space restrictions following annexation

of land by a municipality. It provides:

Any open space restrictions established by the

instrument shall be null and void and of no

force and effect following:

(i) annexation of the open space by a

municipal corporation within Queen

Anne’s County; and 

(ii) final approval by the municipal

corporation of a subdivision or site plan

that would permit uses other than those

uses authorized in the instrument; and

(iii) the execution of a release in

recordable form by the County

Commissioners releasing the land from

the force and effect of the instrument.

The execution of such release shall be in

the sole and exclusive discretion of the

County Commissioners.

Queen Anne’s County Code, §18-1-205(d)(8). The ordinance thus

allows for a general release of use restrictions in an open space

easement granted under the County zoning law, when the open space

land is annexed by a municipality and the municipality has granted

final approval of a subdivision or site plan permitting uses not

allowed by the open space restrictions. Whether a release is given

is left to the discretion of the County Commissioners on a case-bycase basis.

You ask whether the Commissioners effectively lack discretion

to decline to release an open space easement on land annexed by the

Town. You suggest that, like the County zoning law itself, an

easement granted to obtain approval under that law becomes null and

void upon municipal annexation of the land.
140 [89 Op. Att’y

 A municipality that annexes land previously subject to county 7

zoning must either wait five years before reclassifying the land to permit

a substantially different use, or obtain the assent of the county to the

reclassification. Annotated Code of Maryland, Article 23A, §9(c)(1); see

Mayor and Council of Rockville v. Rynlyns, Inc., 372 Md. 514, 548-61,

814 A.2d 469 (2002).

 Of course, in some instances, it may not be clear whether the 8

zoning regulations or an easement is more restrictive. If there is a conflict

between the two, it will be up the property owner in the first instance, and

perhaps ultimately a court, to resolve the issue. 

Annexation may indirectly affect the enforceability of such a 9

covenant if the new zoning regime results in nearby development and a

court deems it inequitable to enforce the restrictions in the covenant. See

(continued...)

III

Analysis

A. Effect of Annexation

Annexation of land by a municipality potentially alters zoning

restrictions affecting that land. When a municipality with planning

and zoning authority (such as Centreville) annexes land, it generally

obtains exclusive planning and zoning authority in the area annexed,

subject to certain limitations. Annotated Code of Maryland, Article 7

23A, §19(s). 

In contrast to its effect on zoning authority, the annexation of

land subject to a recorded easement generally has no direct effect on

the easement. It is universally accepted that land use restrictions

imposed by an easement and those imposed by zoning regulations

operate independently of one another. See E.H. Ziegler, et al., 5

Rathkopf’s Law of Zoning and Planning §82:2 (4th ed. 2004). Thus,

“[w]hen a zoning restriction and a private covenant are in conflict,

the more restrictive of the two prevails.” Id.; see also Martin v.

Weinberg, 205 Md. 519, 527-28, 109 A.2d 576 (1954) (contractual

restrictions on land use are neither abrogated nor enlarged by zoning

restrictions). Accordingly, while annexation may subject land to a 8

new zoning and subdivision regulatory regime, it does not directly

affect restrictions imposed by private covenants such as easements.

9
Gen. 135] 141

 (...continued) 9

E.H. Ziegler, supra, §82:4.

As noted above, several provisions of the sample deed of 10

easement state that the restrictions imposed by the easement are subject to

future amendments of the County zoning ordinance or to future action by

County land use authorities. See Article III, ¶2 (grantors may reduce area

of open space if County zoning ordinance permits additional subdivision

of that area); Article IV, §1(c) (grantors may authorize additional uses of

restricted area if County zoning ordinance permits such uses for open

space); Article IV, §1(d) (uses of open space permitted by easement must

also be in compliance with County zoning ordinance).

In our view, these authorizations to modify the restrictions in the

easement can be given effect in accordance with their terms, only so long

(continued...)

See Sorrentino v. Cunningham, 111 Ind. 212, 39 N.E.2d 473 (1942)

(annexation of area by City of Indianapolis and adoption of zoning

ordinance did not relieve land of covenants restricting sale of

intoxicating beverages and other activities). 

The fact that an open space easement may prevent or restrict

certain uses of land in much the same way as a zoning ordinance or

other local land use regulation might do does not convert the deed

restrictions into governmental regulations. Nor does the fact that

deed restrictions might be required by a county to achieve the same

goals as a zoning or other land use ordinance convert the deed

restrictions into governmental regulations. Deed restrictions and

regulatory land use restrictions on the same property operate

independently. See Mikolasko v. Schovee, 124 Md. App. 66, 87-88,

720 A.2d 1214 (1998), aff’d on other grounds, 356 Md. 93, 737

A.2d 578 (1999).

In the situation presented by your inquiry, land once situated in

the County and subject to the County’s land use regulations was also

made subject, at the County’s instance, to a recorded open space

easement running in favor of and enforceable by the County. When

the Town annexed this property, the land use regulatory authority of

the County terminated, but the easement in the County’s favor

continued. Thus, while the County can no longer enforce its zoning

ordinance or subdivision regulations with respect to the property,

County authorities can continue to enforce specific use restrictions

set forth in the deed of easement. The Town has no power to 10
142 [89 Op. Att’y

 (...continued) 10

as the land covered by the easement continues to be subject to the land use

regulatory authority of the County Commissioners. Once the land is

annexed and land use regulatory authority passes to the Town, these

provisions have no continuing effect. They cannot give the County’s land

use regulations or its zoning or subdivision officials authority within the

limits of a municipality that itself possesses planning and zoning authority.

At the same time, however, these provisions do not invalidate other parts

of the easement that can be given effect in the absence of continuing

County land use regulatory authority.

authorize development that would contravene restrictions in the

easement, and the easement cannot authorize development that is

forbidden by the Town’s zoning ordinance or subdivision

regulations.

B. Effect of County Ordinance

Section 18-1-205(d)(8) of the Queen Anne’s County Code

authorizes the County Commissioners to release an open space

easement when land has been annexed by a municipality and that

municipality, in the exercise of its own planning and zoning

authority, approves a use not permitted by the easement. The County

Commissioners, as the grantee of the deed of easement and the

authority given enforcement power by its terms, could release the

property from the open space restrictions. While the ordinance

requires that the release be “in recordable form,” the release is not

effective until it is actually recorded in the County land records. For

example, the sample deed that you provided states that a change or

amendment (of the deed of easement) shall not be effective until ...

a written document acknowledging such change or amendment shall

be executed by the County Commissioners of Queen Anne’s County

and recorded among the Land Records of Queen Anne’s County.”

Article II, §4. 

IV

Conclusion

Open space easements granted in compliance with the Queen

Anne’s County zoning ordinance are enforceable by County

authorities, even after annexation of the land involved by a
Gen. 135] 143

municipal corporation having planning and zoning authority. The

County Commissioners, as the grantee and the authority given

enforcement power by the terms of the deed of easement, can release

the property from restrictions in the easement. 

J. Joseph Curran, Jr.

Attorney General

Judith A. Armold

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice