Annapolis Market Place, L.L.C. v. Parker

HARRELL, Judge. Petitioner (Annapolis Market Place, L.L.C.) applied for and eventually was denied zoning reclassification of property it owned in Anne Arundel County. At each level of administrative and judicial consideration of Petitioner’s application, compliance with Anne Arundel County’s “Standards and proce ⁶⁹³ dures for granting or denying rezoning” was the required focus. Anne Arundel County Code (“County Code”), Article 3, § 2-105.

Of greatest debate was (and is) the meaning and scope of County Code, Art. 3, § 2-105(a)(3), 1 which provides that: (a) Rezonings shall be granted or denied in accordance with appropriate zoning regulations, but a rezoning may not be granted except on the basis of an affirmative finding that: (3) transportation facilities, water and sewerage systems, storm drainage systems, schools, and fire suppression facilities adequate to serve the uses allowed by the new zoning classification, as defined in Article 26, Title 2, Subtitle 4, Part 2 of this Code, are either in existence or programmed for construction; .... According to Petitioner, the reference in § 2-105(a)(3) to “Article 26, Title 2, Subtitle 4, Part 2 of this Code,” the “Adequacy of Facilities” part of the “Subdivision” Article (“the AOF Part”) of the County Code, necessarily incorporates the entirety of that part. 2 Specifically, Petitioner identifies a ⁶⁹⁴ number of sections within the AOF Part which provide, as an alternative to the actual existence of the needed facilities to serve the proposed development, that a developer’s agreement, proffered at the time subdivision approval is sought, to provide the needed facilities may satisfy the adequacy requirements. By parity of reasoning, Petitioner maintains that a developer’s agreement at rezoning should satisfy the requirement that adequate facilities are “either in existence or programmed for construction.” 3 On the other hand, Respon ⁶⁹⁵ dents in this ease (Anne Arundel County and neighboring homeowners) maintain that the reference in § 2-105(a)(3) to the AOF Part does not incorporate, by its terms, each of the alternative means provided in the AOF Part for establishing that facilities are, or will be, adequate. According to Respondents, Petitioner does not satisfy the requirement for a zoning reclassification because it did not demonstrate that the enu ⁶⁹⁶ merated facilities were in existence or programmed for construction in the relevant governmental capital improvements program (the County’s or the State Highway Administration’s).

We granted Petitioner’s writ of certiorari, Annapolis Mkt. v. Parker, 364 Md. 534 , 774 A.2d 408 (2001), to address the meaning of Art. 3, § 2-105(a)(3) of the County Code. Petitioner presents the following rephrased question for our review: Whether, in determining if public facilities are adequate to support a zoning reclassification under Anne Arundel County Code, Art. 3, § 2~105(a)(3), which requires adequate public facilities (defined by reference to the Adequacy of Facilities ordinance) to be “either in existence or programmed for construction,” the Anne Arundel County Board of Appeals may consider evidence of future improvements to existing facilities agreed to be undertaken by a developer. I. Relevant Background Petitioner 4 owns 32.93 acres of real property (“the Property”) located in Annapolis, Maryland. As described by the Court of Special Appeals, [t]he Property fronts Bestgate Road, a four-lane divided highway with a raised medium strip.

A portion of the Property contains steep slopes and nontidal wetlands close to Cabin Branch, which drains into Saltworks Creek. A Baltimore Gas and Electric overhead utility line transverses the northeast portion of the Property. The land to the immediate west of the Property is zoned W[ ]l[-]Industrial and developed as the Annapolis Commercial Park, a 400,000 square foot industrial park. Adjacent to the Property to the east is a cemetery and a church.

That ⁶⁹⁷ property is zoned residential. Two residential subdivisions, Woodlawn and Saltworks on the Severn, lie to the north of the Property. These subdivisions do not have access to Bestgate Road and are separated from the site by Cabin Branch. Across Bestgate Road to the west of the Property is a large, commercial EPA building and land zoned Town center.

The Property is within clear sight of the Annapolis Mall. Approximately 30 acres of the Property are zoned R5 Residential; the remaining two acres are zoned R1 Residential. [Petitioner] sought to build a “novel mix-use” development that would integrate residential, commercial, and retail uses in one location. The project was described as “a street with offices and residential over retail, a town square, that it stands to a community building which looks out to this stream valley park.” The northern portion of the Property, in the area of Cabin Branch, would not be developed. [Petitioner] was advised by County officials that such a project could be accomplished only by C3 Commercial zoning. 5 On 3 March 1998, Petitioner filed an application to rezone the Property to C3 Commercial. Pursuant to County Code, Art. 28, § 11-102(b), Petitioner, as an “applicant for rezoning,” had the “burden of proof, including the burden of going forward with the evidence and the burden of persuasion, with respect to any question of fact.” As provided in County Code, Art. 28, § ll-102(c), 6 the rezoning could not be granted “except on the basis of an affirmative finding that”: ⁶⁹⁸ (1) there was a mistake in the zoning map or the character of the neighborhood has changed to such an extent that the zoning map should be changed; (2) the new zoning classification conforms to the County General Development Plan in relation to land use, number of dwelling units or type and intensity of nonresidential buildings, and location; (3) transportation facilities, water and sewerage systems, storm drainage systems, schools, and fire suppression facilities adequate to serve the uses allowed by the new zoning classification, as defined in Article 26, Title 2, Subtitle 4, Part 2 of this Code, are either in existence or programmed for construction; [and] (4) there is compatibility between the uses of the property as reclassified and the surrounding land uses, so as to promote the health, safety, and welfare of present and future residents of the County; .... 7 Following a hearing, the County’s Administrative Hearing Officer, on 15 July 1998, denied Petitioner’s application for a zoning reclassification.

According to the Hearing Officer, Petitioner had not met its burden of proof “with respect to the issue of change ....” See County Code, Art. 28, § 11— 102(c)(1). Petitioner appealed the decision of the Hearing Officer to the Anne Arundel County Board of Appeals (“the Board”). See County Code, Art. 3, § 1-104 (“A ... corporation ... aggrieved by a decision of the Administrative Hearing Officer may appeal the decision to the County Board of Appeals.”). Pursuant to County Code, Art. 3, § 2-105(a), the Board, in order to grant the reclassification, was required to render affirmative findings regarding the same factors as ⁶⁹⁹ were at issue at the first administrative hearing.

See supra note 6 and accompanying text. Relevant to this appeal, Petitioner, in the hearing before the Board, presented evidence regarding water supply systems, on-site storm drainage systems, sewerage systems, and roads. It did not present any direct evidence regarding fire suppression facilities, off-site storm drainage systems, 8 or schools. On 21 May 1999, the Board nonetheless determined “that the Petitioner ha[d] presented sufficient evidence to meet the standards for the requested rezoning.” It made the following findings and conclusions regarding the requirements of § 2-105(a)(3): The public facilities are adequate to serve the uses permitted by the C3 zoning classification.

See Art. 3, Section 2-105(a)(3). The Board finds persuasive the testimony of the Petitioner’s expert engineer, Mr. Terry Schuman, regarding adequacy of facilities. He described the water, sewer and storm drainage systems that would be utilized by the subject property. It is his opinion that the systems would be adequate to serve the uses permitted within the C3 zone.

Indeed, Mr. Dooley 9 testified that there were no issues related to adequacy of public facilities except for transportation facilities. With regard to testimony by Ms. Catherine Bartelman, 10 the Board finds the proposed location of storm water management facilities by the Petitioner may not reflect the final location or size thereof. There was no showing, however, that the construction of storm water ⁷⁰⁰ management facilities on the subject site would be impossible or insufficient to control the storm water runoff therefrom. The Board notes that the County requires that future developments not affect or decrease the velocity and quantity of storm drainage and the County will review plans for storm water management prior to the approval of any development of the site.

The Board also concludes that the transportation facilities will be adequate to serve the uses proposed by the C3 zoning classification. The Board finds persuasive the testimony of Mr. Schmid 11 relative to the transportation network in the neighborhood. Mr. Schmid noted that several improvements to the roadway network would be required in order for any development of this site to meet the adequacy of transportation facilities requirement. The Boards [sic] finds that the accomplishment of the proposed traffic improvements is reasonably probable of fruition.

See Montgomery Co. v. Greater Colesville Ass’n, Inc., 70 Md.App. 374 , 521 A.2d 770 (1987). Additionally, the Board notes improvements to transportation facilities will be required prior to approval of any subdivision of this Property. Specifically, Council Bill 72-86 ... provides that roads shall be considered adequate if road improvements or other mitigating efforts are provided by the subdivider. 12 No development can take place on the subject site without meeting the requirements of adequacy of transportation facilities. The Chairman of the Board dissented from the Board’s opinion.

In his dissent, the Chairman maintained that Petitioner did not meet its burden in satisfying the rezoning standards of § 2-105(a). Specifically, the Chairman contended that Petitioner failed to establish the adequacy of transpor ⁷⁰¹ tation facilities because the necessary improvements to the problem intersections were “not programmed for construction.” See § 2 — 105(a)(3). In addition, the Chairman noted that “there [wa]s not one scintilla of evidence that indicate[d] that schools [we]re adequate to serve the development of th[e] [P]roperty with apartments as proposed by the Petitioner.” On 18 June 1999, neighboring homeowners of the Property filed a Petition for Judicial Review of the Board’s decision in the Circuit Court for Anne Arundel County. Sometime later, Anne Arundel County moved for and was granted leave to intervene in the proceeding. 13 According to Respondents, the Board ignored the requirements of § 2 — 105(a)(3) mandating that it find adequate facilities either be “in existence or programmed for construction” in order to grant a reclassification.

Specifically, Respondents maintained that the Board erred in applying the “reasonably probable of fruition” standard in its consideration of transportation facilities, and it mistakenly granted the reclassification where neither adequate storm drainage systems or adequate schools were shown to be “in existence or programmed for construction.” Petitioner, on the other hand, supported the application of the “reasonably probable of fruition” standard to transportation facilities and argued that the Board’s determination regarding the feasibility of storm drainage systems was “within the province of the Board.” The Circuit Court reversed the order of the Board. In its opinion and order of 15 February 2000, the Circuit Court concluded “that the Board ... was incorrect in finding that the adequate facilities ordinance was complied with” because “no storm water management plan was ever presented to the Board” and “no showing was made that the schools in the area were adequate under a C[ ]3[-]zoning classification.” In addition, the Circuit Court also held that a developer’s “promises to make [traffic] improvements” did not satisfy the require ⁷⁰² ment of being either “in existence or programmed for construction.” According to the Circuit Court, Petitioner’s argument that “a promise of [adequate] facilities” is sufficient under § 2-105(a)(3) “flies in the face of’ the statute. Petitioner filed a timely appeal to the Court of Special Appeals. In its brief, Petitioner maintained that the Board “conducted a thorough and fair fact-finding hearing on [the] application for zoning reclassification ....” In addition, Petitioner argued that the reference in § 2 — 105(a)(3) to the AOF Part permitted the Board to include a developer’s promise to provide adequate facilities in the definition of “in existence or programmed for construction.” Respondents, on the other hand, maintained that the Board “ignored the plain language of the Code which specifically requires adequate traffic facilities to be either ‘in existence or programmed for construction,’ ” and contended that Petitioner’s reliance on the AOF Part was “fundamentally flawed.” Respondents also argued that the Circuit Court correctly reversed the Board’s action granting Petitioner’s application for reclassification because “the record [wa]s devoid of information on issues for which [Petitioner] h[eld] the burden of proof,” i.e. the adequacy of storm drainage systems and schools.

In an unreported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. Although the Court of Special Appeals “recognize[d] that § 2 — 105(a)(3) refers to the subdivision regulations of Article] 26,” it read that reference as relating to the “definitional aspects of ‘adequate’ as outlined in [§ ] 2-415(c)(l),” but not the acceptable levels of what constitutes the actual or theoretical existence of any facility for land use decision purposes. Therefore, “the Board erred, as a matter of law, in disregarding the plain language of the statute that requires that adequate facilities be ‘in existence or programmed for construction,’ ” the latter of which the intermediate appellate court found did not include a developer’s promise. The Court of Special Appeals also noted that § 2-105(a)(3) requires that “adequate off-site storm water drainage systems” and adequate schools be “in existence or programmed for construction before a rezoning may be grant ⁷⁰³ ed.” According to the intermediate appellate court, facts regarding the off-site storm water drainage system were not “clearly established in the record,” and Petitioner “failed to direct [the court] to any evidence supporting a finding that ... schools were adequate to support the rezoned property.” We shall supply additional factual content infra as necessary in the application of our analysis.

II. “We review an administrative agency’s decision under the same statutory standards as the Circuit Court. Therefore, we reevaluate the decision of the agency, not the decision of the lower court. Moreover, in United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569 , [576-77,] 650 A.2d 226 , [230] (1994), we stated generally that ‘□Judicial review of administrative agency action is narrow. The court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.’ “We expounded upon this doctrine in Board of Physician [Quality Assurance ] v. Banks, 354 Md. 59 , 729 A.2d 376 (1999): Despite some unfortunate language that has crept into a few of our opinions, a ‘court’s task in review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.’ ...

Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statue [sic] which the agency administers should ordinarily be given considerable weight by reviewing courts.... Furthermore, the expertise of the agency in its own field should be respected.’ Banks, 354 Md. at 68-69 , 729 A.2d at 381 . “We, however, ‘may always determine whether the administrative agency made an error of law. Therefore, ordinarily the court reviewing a final decision of an administrative ⁷⁰⁴ agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.’ Balt.

Lutheran High Sch. v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985). Regarding the substantial evidence test, we explained in Baltimore Lutheran High School: That is to say, a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency, but it must not itself make independent findings of fact or substitute its judgment for that of the agency. Balt. Lutheran High Sch., 302 Md. at 662 , 490 A.2d at 708 .

Substantial evidence is defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ In Baltimore Lutheran High Sch[ool], we further explained: The scope of review is limited to whether a reasoning mind could have reached the factual conclusion the agency reached. In applying the substantial evidence test, the reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken. The reviewing court also must review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. Furthermore, not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.

Balt. Lutheran High Sch., 302 Md. at 662-63 , 490 A.2d at 708 (citing Bulluck [v. Pelham Wood Apartments ], 283 Md. [505,] 512, 390 A.2d [1119,] 1123 [ (1978) ]). Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 449-52 , 800 A.2d 768 (2002) (quoting Gigieous v. E. Corr. Inst., 363 Md. 481, 495-97 , 769 A.2d 912, 921-22 (2001) (footnote omitted)) (some citations omitted) (omissions in original). ⁷⁰⁵ As we have explained, this case requires us to interpret Anne Arundel County Code, Art. 8, § 2-105(a)(3), which provides that in order to grant a zoning reclassification, the Anne Arundel County Board of Appeals must make an affirmative finding or findings 14 that: transportation facilities, water and sewerage systems, storm drainage systems, schools, and fire suppression facilities adequate to serve the uses allowed by the new zoning classification, as defined in Article 26, Title 2, Subtitle 4, Part 2 of this Code, are either in existence or programmed for construction.

Referenced in that subsection, “Article 26, Title 2, Subtitle 4, Part 2 of this Code” delineates the factors required to establish that fire suppression facilities (County Code, Art. 26, § 2-414), roads (County Code, Art. 26, § 2-415), schools (County Code, Art. 26, § 2-416), sewerage systems (County Code, Art. 26, § 2-417), storm drainage systems (County Code, Art. 26, § 2-418), and water supply systems (County Code, Art. 26, § 2-419) are adequate for purposes of subdivision plat consideration. In particular, the AOF sections enumerate the operational adequacy requirements of the individual facilities (i.e. the level of use the facility must be capable of handling), 15 and ⁷⁰⁶ provide the acceptable levels of commitment to bring any needed improvements to fruition. Depending on the nature of the facility, a number of alternate levels of commitment may be acceptable to obtain subdivision plat approval, including: (a) an adequate facility or system of facilities being in existence (see County Code, Art. 26, § 2-415(c)(l) (roads); County Code, Art. 26, § 2-416(c) (schools); County Code, Art. 26, § 2-417(b) (public community sewerage systems); County Code, Art. 26, § 2-418(b)(2) (off-site storm drainage systems); County Code, Art. 26, § 2-419(b) (public community water supply systems)); (b) the County awarding a contract of the construction or improvement of the facility to achieve adequacy (see County Code, Art. 26, § 2-417(c) (public community sewerage systems); County Code, Art. 26, § 2-418(c) (off-site storm drainage systems); County Code, Art. 26, § 2-419(c) (public community water supply systems)); (c) or the subdivi-der agreeing to undertake the construction or improvement of the facility to render it operationally adequate (see County Code, Art. 26, § 2-414(c)(2) (fire suppression facilities); County Code, Art. 26, §§ 2-415(c)(3), (4) (roads); County Code, Art. 26, §§ 2-417(d), (e) (private community sewerage systems, individual sewerage systems and multiuse sewerage ⁷⁰⁷ systems); County Code, Art. 26, §§ 2 — 418(b), (c) (on-site and off-site storm drainage systems); County Code, Art. 26, §§ 2-419(d), (e) (private community water supply systems, individual water supply systems or multiuse water supply systems)). Petitioner contends that the reference in § 2-105(a)(8) to the AOF Part incorporates the entirety of the sections within that part, including the various acceptable levels of commitment to bring to fruition the adequacy of the facilities.

According to Petitioner, therefore, “[ajdequate facilities are ‘programmed for construction,’ [under § 2-105(a)(8),J if the County agrees to provide the facility as a public capital project or if the developer agrees to construct the facility.” Respondents, on the other hand, maintain that the reference in § 2-105(a)(3) to the AOF Part does not incorporate all of the levels of commitment acceptable at subdivision and argue that facilities are only “programmed for construction” if they are provided for in either the County’s relevant current adopted capital program or, in the case of state roads, the current State consolidated transportation program. For the following reasons, but in a limited way, we must agree with Respondents. Pursuant to the rules of statutory interpretation observed in Maryland, the conundrum of words and intent presented in § 2-105(a)(3) and the AOF Part are the starting point for our review of the subsection in question. See Md. Dep’t of the Env’t v. Underwood, 368 Md. 160, 175 , 792 A.2d 1130, 1139 (2002) (“[TJhe ‘cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature,’ and the ‘primary source of legislative intent is, of course, the language of the statute itself.’ ”) (citations omitted).

As we recently explained in Underwood , it is a “ ‘generally recognized rule of statutory construction that a qualifying clause ordinarily is confined to the immediately preceding words or phrase....’ ” 16 Underwood, 368 Md. at 175-76 , 792 ⁷⁰⁸ A.2d at 1139 (quoting Sullivan v. Dixon, 280 Md. 444, 451 , 373 A.2d 1245, 1249 (1977)). In keeping with that rule, we agree with the Court of Special Appeals that the reference in § 2-105(a)(3) to the AOF Part is intended to modify the first portion of the subsection requiring “facilities adequate to serve the uses allowed by the new zoning classification.” See Md. Div. Of Labor and Indus. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 420 , 784 A.2d 534, 542 (2001) (explaining that “[w]here statutory provisions are ‘clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.’ ”) (quoting Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995) (citation omitted)).

As written, therefore, § 2-105(a)(3) mandates that, at the time rezoning is Considered, facilities must meet the operational adequacy requirements enumerated in the AOF Part of the Subdivision Article. Standing alone, the qualifying phrase “as defined in Article 26, Title 2, Subtitle 4, Part 2” could also be read to modify the subsequent portion of § 2-105(a)(3), which requires that adequate facilities be “either in existence or programmed for construction.” Contrary to Petitioner’s interpretation of § 2-105(a)(3), however, the placement of the statutory reference in the middle of § 2-105(a)(3), modifying the first portion of the subsection, prevents such a spillover application of the qualifying phrase to the latter portion of § 2-105(a)(3). See Webb v. Balt., 179 Md. 407, 409 , 19 A.2d 704, 705 (1941) (“It appears also that subsequent clauses should not be limited by independent precedent clauses unless the intention be clearly expressed.”). As a result, in interpreting the requirement of § 2-105(a)(3) that adequate facilities be “either in existence or programmed for construction,” we cannot simply defer, in the absence of clearer legislative intent, to the various levels of commitment permitted in the AOF Part to bring the adequate facilities to fruition.

Instead, we must utilize our rules of statutory interpretation in an attempt to “ascertain and effec ⁷⁰⁹ tuate the intent of’ the Anne Arundel County Council with regards to this provision. Underwood, 368 Md. at 175 , 792 A.2d at 1139 . It is undisputed that the “in existence” portion of § 2-105(a)(3) mandates that adequate facilities be in place at the time of reclassification. Our focus here, therefore, is on the meaning of “programmed for construction.” Although the term is not individually defined in the Anne Arundel County Code, it is utilized in the “Roads” section of the AOF Part which provides, in pertinent part, that an access road is adequate if: there is an appropriation for at least 30% of the construction cost with the remainder programmed for construction in the County’s current adopted capital program or the current State consolidated transportation program for any additional roads or road improvements that in combination with existing roads and intersections would meet the [operational adequacy requirements] of this subsection. 17 County Code, Art. 26, § 2-415(c)(2) (emphasis added).

According to Respondents, our interpretation of “programmed for construction” should mirror the use of that term in County Code, Art. 26, § 2^115 and should include only the construction of or improvement to facilities contained in the County’s capital improvements program 18 or, where applicable, the ⁷¹⁰ prevailing State consolidated transportation program. We agree. On 18 July 1978, the Anne Arundel County Council (“the County Council”) first enacted the “Adequacy of Services and Facilities” Article of the County Code for purposes of subdivision review. See Anne Arundel County Council, Bill No. 54-78 (18 July 1978).

Similar to the AOF Part in effect at the time of final administrative action on Petitioner’s application, the Article included a section, with multiple subsections, regarding the adequacy of water systems, storm drainage systems, sewerage systems, roads, schools, and fire suppression facilities. See id. As originally enacted, the “Roads” subsection provided, for purposes of final subdivision plat approval, that adequate access roads be in existence, the County have awarded a contract for their construction, or the subdivider agreed to undertake their construction. See Anne Arundel County Council, Bill No. 54-78, § 2.

It did not provide that adequate access roads could be “programmed for construction” as such. 19 See id. In direct response to the 1978 enactment, the County Council amended, in the following year, the “Board of Appeals” Title of the County Code to provide, in part, that “in all cases of zoning reclassification,” the zoning officer’s memorandum “shall include an affirmative finding” that “[tjransportation facilities, water and sewerage systems, storm drainage systems, schools and fire suppression facilities adequate, as defined in section 13-133 [ (the AOF section) ], to serve the uses allowed by reclassification are either existing or programmed for construction.” Anne Arundel County Council, Bill No. 47-79, § 1 (15 May 1979). Although this appears to ⁷¹¹ be the first time that the term “programmed for construction” appeared in the Zoning Article of the Code, at the time of the amendment, Anne Arundel County had a capital program in place “to receive and expend funds for capital projects” (see Anne Arundel County Charter, §§ 702-706 (1964)), and provided a definition of “capital improvements program” in the Subdivision Article of the Code (see Anne Arundel County Council, Bill No. 76-69, § 2 (1 December 1969)). 20 Therefore, absent a legislative indication to the contrary, we presume the County Council’s choice of the word “programmed ” in the rezoning subsection was directly related to the use of that term in the County’s “capital improvements program.” (Emphasis added). See Whack v. State, 338 Md. 665, 673 , 659 A.2d 1347, 1350 (1995) (“When a word susceptible of more than one meaning is repeated in the same statute or sections of a statute, it is presumed that it is used in the same sense.”).

See also Graves v. State, 364 Md. 329, 346 , 772 A.2d 1225, 1235 (2001) (“ ‘[A]ll parts of a statute are to be read together to find the intention as to any one part, and all parts are to be reconciled and harmonized if possible.’ ”) (quoting Wheeler v. State, 281 Md. 593, 596 , 380 A.2d 1052, 1055 (1977)); Whack, 338 Md. at 673 , 659 A.2d at 1350 (“When we are called upon to interpret two statutes that involve the same subject matter, have a common purpose, and form part of the same system, ⁷¹² we read them in pari materia and construe them harmoniously”). In support of this finding, following the amendment of the Board of Appeals process for zoning reclassifications, the County Council amended the “Roads” section of the AOF Part to provide, as the Code currently does, that a portion of the construction costs of adequate access roads could be “programmed for construction in the County’s current adopted capital program or the current State consolidated transportation program.” See Anne Arundel County Council, Bill No. 72-86, § 2 (27 October 1986). Because the County Council did not define separately “programmed for construction” at the time of this amendment of the “Roads” section, it is only appropriate to conclude that the drafters utilized the phrase in the “same sense” as in § 2-105(a)(3) of the rezoning requirements. See Whack, 338 Md. at 673 , 659 A.2d at 1350 .

As such, the expressed attributes of “programmed for construction” in the “Roads” section reflect the County Council’s intention that adequate facilities qualify as “programmed for construction” at rezoning if evidence was adduced that the cost of constructing or improving those facilities needed to achieve adequacy (in the face of the actual and assumed impacts, including that of the proposed rezoning) was included in (1) the County’s current adopted capital program, or, where state roads are concerned, (2) the current State consolidated transportation program. Contrary to Petitioner’s argument, there is no indication that the County Council intended that “programmed for construction” also include at rezoning a third alternative available at the time of subdivision consideration. 21 ⁷¹³ A literal across-the-board employment of the “programmed for construction” requirement of § 2 — 105(a)(3) in conjunction with the operational adequacy requirements of the AOF Part, however, is not without inherent limitation in its application. For example, as provided in the “storm drainage” section of the AOF Part, (b) A storm drainage system shall be considered adequate if: (1) the on-site drainage system installed by the subdivi-der will be capable of conveying through and from the property the design flow of storm water runoff originating in the subdivision, as determined in accordance with criteria specified in the Design Manual, in addition to flows from upstream subdivisions for which plats have been recorded and other approved development and undeveloped land upstream in the natural watershed of the proposed subdivision, without resulting in erosion, sedimentation or flooding of the receiving channel and downstream properties; .... County Code, Art. 26, § 2 — 418(b)(1).

Consistent with an interpretation of § 2 — 105(a)(3) as thus far explained in this opinion, the above subsection would require that at rezoning a “capable” on-site drainage system “installed by the subdivi-der” be “programmed for construction” in the County’s capital improvements program. By its own terms, this interpretation ⁷¹⁴ erroneously requires two incompatible levels of commitment to bring the adequate facilities to fruition — future installation by the subdivider and, at the same time, the potential dedication of governmental resources for the project. See Triangle, 366 Md. at 425-26 , 784 A.2d at 545 (explaining that it is “a natural presumption that the Legislature ‘does not intend to use words in vain or to leave a part of its enactment without sense or meaning, but intends that every part of it shall be operative.’ It is for that reason that we avoid reading a statute in such a way as to render a word or phrase ‘surplusage, superfluous, meaningless, or nugatory.’ ”) (quoting Welsh v. Kuntz, 196 Md. 86, 98 , 75 A.2d 343, 348 (1950); Atkinson v. State, 331 Md. 199, 209 , 627 A.2d 1019, 1024 (1993) (citation omitted)). By the same token, even if we were to read “installed by the subdivider” out of County Code, Art. 26, § 2-418(b), mandating that on-site drainage systems be “programmed for construction” in the County’s capital improvements plan, the requirement would not