Anselmo v. Mayor City Council of Rockville

¹¹⁷ THIEME, J. Appellants, 1 initiated this action in the Circuit Court for Montgomery County seeking judicial review of an April 29, 2008, decision of the City of Rockville Planning Commission (the “Planning Commission”). That decision granted a use permit to and authorized appellee MHP Town Center, Inc. (“MHP”) to build a 109 unit apartment complex on land located at the intersection of 254 North Washington Street and 13 Beall Avenue in Rockville, Maryland. Following a hearing, the circuit court affirmed the Planning Commission’s decision by order entered on June 5, 2009. Appellants filed a timely appeal, raising two issues, which we quote: 1.

Whether the decision of the Commission violates the City’s adopted Adequate Public Facilities Ordinance and Adequate Public Facilities Standards. 2. Whether the decision of the Commission was erroneous as a matter of law because it does not contain the findings required by Sections 25-193(a) and 25-681 of the Rockville City Code. Re-stated, we are asked in this appeal whether the Planning Commission erred by approving MHP’s use application based on an erroneous construction of § 25-808 and § 25-802 of the City of Rockville’s Adequate Public Facilities Ordinance (“APFO”) and its implementing Adequate Public Facilities Standards (“APFS”), and failed to make the findings required by § 25-193(a) and § 25-861 of the APFO. For the reasons set forth below, our answer to both questions is in the affirmative, and the decision of the Planning Commission must be reversed.

Factual Background and Proceedings Below The property at issue is approximately 2.54 acres and is within the Town Center planning area of the City of Rockville. The property is owned by MHP, which is a wholly owned ¹¹⁸ subsidiary of Montgomery Housing Partnership, Inc., a private non-profit organization. MHP purchased a vacant motel located at 254 North Washington Street in 1993 and renovated the property by converting it into a 60-unit affordable housing building, known as Beall’s Grant I. The adjacent parcel was vacant and remained undeveloped. In 2005, MHP purchased this vacant property with the idea of providing additional affordable housing in Montgomery County.

The property is zoned Town Center-1, a mixed-use zone which allows commercial and residential uses within the same development. See § 25-272(1) of the Rockville City Code. On October 20, 2006, MHP filed a use permit application (USE 2007-00708) to construct a new affordable housing development, to be known as Beall’s Grant II, at the northwest corner of North Washington Street and Beall Avenue in Rockville. The property is within the area encompassed by the Rockville Town Center Master Plan.

MHP sought the use permit for approval to construct a new four-and-one-half story building consisting of three levels of residential development on top of a parking garage. The plan was to provide 109 units of housing in proximity to the Metro and the Rockville Town Center. MHP met with members of the Staff of the City of Rockville on September 20, 2007, and, thereafter, made several revisions to its proposed development plans. The proposed development is located in the Richard Montgomery High School, Julius West Middle School and Beall Elementary school cluster.

The focus of the controversy in this case is on the impact the proposed development will have on anticipated student enrollment at Beall Elementary School after the project is completed. Specifically, appellants question whether the Planning Commission properly applied its APFO and APFS in approving MHP’s use permit, as these requirements relate to school enrollment. The APFS adopted by the City of Rockville to implement its APFO requires an assessment of school capacity at the project approval and use permit approval stages of development. ¹¹⁹ Because MHP was seeking a use permit, an analysis of school capacity was required at this stage of the process. Schools within the City of Rockville are operated and controlled by the Montgomery County Public Schools (“MCPS”) and the State Board of Education.

As a consequence, the provisions of the APFS specifically refer to the MCPS in connection with school capacity. The APFS states, in pertinent part: “The APFO test for schools in Rockville is based on the program capacity for each school as defined by MCPS.” The City’s view is that it may simply adopt the student capacity calculation made by the MCPS, and add to this figure the number of students anticipated by the new development in order to fulfill its obligations under the APFS. According to its brief: “There is nothing in the language of the APFS that requires City staff to perform any calculations to determine capacity nor any of the enumerated adjustments to the student census data for demand.” To that end, on January 23, 2008, MHP’s counsel wrote to the City’s Chief of Planning advising that there was sufficient capacity at Beall Elementary School to satisfy the City’s APFO. MHP noted that, according to the MCPS data, there was program capacity at this school for 540 students, and that the projected enrollment for 2009-10 was 576 students.

MHP then noted that the MCPS program capacity was to be used as the capacity basis for the APFO, “based on 110 percent of program capacity at all school levels within 2 years.” Applying the 110 percent standard, MHP argued that this results in a “capacity basis for the APFO program of 594 students.” MHP’s counsel noted that the MCPS had projected that the anticipated 2009-10 enrollment for Beall Elementary School would be 576 students, which is 18 students less than the 110% threshold. MHP estimated that the proposed development would add 5 students, if built as a mid-rise building, or 8 students if built as a garden apartment complex. In either event, MHP reasoned, “[sjince Beall Elementary School will have an enrollment in two years which will be 18 students less than the school’s capacity basis, any development which re- ¹²⁰ suits in less than 18 students for the school satisfies the APFO standard for public schools.” On July 18, 2008, the City Staff adopted MHP’s reasoning and concluded without further analysis that the APFO for school capacity was satisfied. City Staff prepared a formal report to the Planning Commission and recommended the approval of the use permit, with certain conditions that are not pertinent to the question presented in this case.

The Planning Commission met on July 23, 2008. The Chief of Planning for the City of Rockville testified that the City provides student data to MCPS, which does its own calculations. He acknowledged, however, that MCPS does not include the City’s student data in its calculations until after a development has been approved. As a consequence, the MCPS estimates relied upon by MHP, and adopted by the City Staff, could not have taken into account any new students projected to attend Beall Elementary School as a result of MHP’s project.

Nevertheless, the Planning Commission accepted the Staffs recommendations and voted to approve MHP’s use permit. The approval letter was formally issued on August 29, 2008. Aggrieved, appellants appealed the Planning Commission’s decision to the circuit court, which affirmed the decision of the Planning Commission. This appeal followed.

Standard of Review' “We review the final decision of the [Commission], rather than the circuit court, in accordance with the well established principles of administrative law.” Mueller v. People’s Counsel for Baltimore County, 177 Md.App. 43, 82 , 934 A.2d 974 (2007); see Motor Vehicle Administration v. Dove, 413 Md. 70, 80 , 991 A.2d 65 (2010) (“This Court reviews the agency’s decision, not the decision of the Circuit Court, applying the same statutory standards used by the Circuit Court.”). “Our review is ‘limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administra ¹²¹ tive decision is premised upon an erroneous conclusion of law.'” Maryland-National Capital Park & Planning Comm’n. v. Greater Baden-Aquasco Citizens Ass’n., 412 Md. 73, 84 , 985 A.2d 1160 (2009) (quoting United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226 (1994)); see also Swoboda v. Wilder, 173 Md. App. 615, 634-35 , 920 A.2d 518 (2007); Days Cove Reclamation Co. v. Queen Anne’s County, 146 Md.App. 469, 484-85 , 807 A.2d 156 (2002). “The scope of judicial review of administrative fact-finding is a narrow and highly deferential one.” Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 407 Md. 53, 78 , 962 A.2d 404 (2008). We neither make an independent decision based on the evidence nor substitute our judgment for that of the administrative agency. Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 , 729 A.2d 376 (1999). Although our review of the administrative body’s legal conclusions likewise is deferential, we “may reverse those decisions where the legal conclusions reached by that body are based on an erroneous interpretation or application of [the] statutes, regulations, and ordinances relevant and applicable to the property that is the subject of the dispute.” Greater Baden-Aquasco Citizens Ass’n., 412 Md. at 84 , 985 A.2d 1160 , quoting People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 682 , 929 A.2d 899 (2007); see Belvoir Farms Homeowners Ass’n., Inc. v. North, 355 Md. 259, 267 , 734 A.2d 227 (1999) (The decision of a local land use agency “is owed no deference when its conclusions are based upon an error of law.”) Finally, “the court may only uphold the agency order if it is sustained by the agency’s findings and for the reasons stated by the agency.” Harford County v. Earl E. Preston, Jr., Inc., 322 Md. 493, 505 , 588 A.2d 772 (1991).

In deciding whether the Planning Commission in this case properly construed the municipal statute, we rely on settled principles of statutory construction. “When a statute’s plain language is unambiguous, we need only to apply the statute as ¹²² written, and our efforts to ascertain the legislature’s intent end there.” Crofton Convalescent Center, Inc. v. Dept. Of Health & Mental Hygiene, 413 Md. 201, 216 , 991 A.2d 1257 (2010); see Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 570 , 709 A.2d 749 (1998) (“[W]here the statutory language is plain and free from ambiguity and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself.”) Discussion The powers of a municipal planning commission generally derive from Article 66B of the Maryland Annotated Code, which provides in pertinent part: “[A] local jurisdiction shall enact, adopt, amend, and execute a plan as provided in this article and may create by ordinance a planning commission with the powers and duties set forth in this article.” Md.Code Ann. (2005 Repl. Vol., 2009 Supp.), Art. 66B, § 3.01(a). In addition, the General Assembly has provided municipal governments the power to enact Adequate Public Facilities Ordinances, or APFO’s, to, among other things, “facilitate orderly development and growth.” Art. 66B, § 10.01(a).

The City of Rockville enacted an APFO, which became effective on November 1, 2005. Section 25-800(a) of Rock-ville’s APFO directs the Mayor and City Council to implement the APFO by adopting “Adequate Public Facilities Standards ... to ensure that the necessary public facilities will be available to serve proposed new development or redevelopment.” As a consequence, “[a]ny development or redevelopment proposed within the City after [November 1, 2005] must comply with all requirements of the Adequate Public Facilities Standards, unless a waiver is granted pursuant to said standards.” Section 25-801 of Rockville’s APFO provides, in pertinent part, that “[a]n application for a use permit ... must not be approved unless ... the Planning Commission ... determines that public facilities will be adequate to support and service the area of the proposed development.” The Mayor and City Council of Rockville adopted Adequate Public Facilities Standards (“APFS”) on November 1, 2005. ¹²³ Under the pertinent APFS, “[o]nce a development project is approved, capacity of public facilities required by that project is reserved, provided the project remains on its service commitment, as determined at the time of project approval.” The APFS sets forth “Facility Capacity Schedules” for each of the six types of public services that development would require. With respect to schools, “[pjroject approval, subdivision approval or use permit approval reserves the capacity; at the building permit stage capacity is moved from the reserved to the used category.” The APFS goes on to state how school capacity and school demand are to be calculated. In terms of school capacity, the APFS provides that “[t]he program capacities determined annually by the Superintendent of Montgomery County Public Schools ... shall be used as the capacity basis for the APFO program, based on 110 percent of program capacity at all school levels within two years.” (Emphasis added.) School demand, however, is determined differently under the APFS adopted by the City of Rockville.

With respect to school demand, the APFS provides, in pertinent part: School demand is based on actual student census in the most recent complete academic year, adjusted for the following: demographic changes, changes in district boundaries and other changes anticipated by planners with Montgomery County Public Schools; additional demand from approved development; [and] additional demand from the specific development being considered for approval. In summary, although school capacity under the APFS is based exclusively on the capacity figures provided by the MCPS, the determination of school demand requires the consideration by the City of the other factors expressly set forth in the APFS. Appellant contends on appeal that while MHP correctly identified one element of the school capacity for Beall Elementary School (by using