Arking v. Montgomery County Planning Board

WOODWARD, J. The instant administrative appeal comes before this Court following the decision of the Montgomery County Planning Board (“the Board”), appellee, to approve a preliminary plan for resubdivision of property on Gainsborough Road over the objection of Albert Arking and other homeowners in the existing neighborhood, appellants. Following a public hearing at which both Board staff and appellants presented arguments for and against approval of the plan, the Board issued a written Resolution approving the plan, finding that, in accordance with § 50-29(b)(2) of the Montgomery County Code, the resulting lots would be of the same character as those within the existing neighborhood. After appellants exercised their right to judicial review, the Circuit Court for Montgomery County denied both appellants’ petition for judicial review and appellants’ motion to supplement the administrative record, and affirmed the Board’s approval of the plan of resubdivision. On appeal to this Court, appellants present four questions for our review, which we have combined into two: 1.

Did the circuit court err in denying appellants’ Motion to Supplement the Administrative Record? 2. Did the Board err in concluding that the resubdivision proposed in the resubdivision plan complied with Montgomery County Code § 50-29(b)(2)? ⁵⁹³ Finding no error, we affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On January 6, 2011, Joav Steinbach, 1 on behalf of the Tamara Corporation (“Tamara”), submitted to the Board Preliminary Plan No. 120110110 for resubdivision of a lot located on Gainsborough Road between Seven Locks Road and Fontaine Street in Montgomery County (“the Plan”). In the Plan, Tamara sought approval for the resubdivision of the then-undeveloped Lot 17, Block B of the Willerburn Acres Subdivision, containing 1.01 acres, into two lots of roughly equal size, known as “Lot 60” and “Lot 61,” in order to build two separate single-family houses.

On March 25, 2011, appellants submitted a letter opposing the resubdivision to the Board. After reviewing the Plan, staff members of the Board (“Staff’) submitted to the Board on April 22, 2011, a detailed memorandum report reviewing and recommending approval of the Plan. On May 5, 2011, the Board held a public hearing on the Plan. At the hearing, both Staff and representatives of Tamara presented evidence in support of the approval of the Plan.

Appellants offered their own testimony and evidence in opposition to the Plan. At the close of the hearing, the Board voted 3-0 in favor of approving the Plan. 2 Following the hearing, on May 19, 2011, appellants submitted a Petition for Reconsideration by letter to the Board. 3 The letter voiced appellants’ disapproval of the Board’s May 5 ⁵⁹⁴ decision and also included supplemental materials from other resubdivision plans considered previously by the Board. The Board denied appellants’ petition. On May 25, 2011, the Board issued its final Resolution, in which the Board stated in writing its approval of the Plan and explained the reasoning for its decision.

In its Resolution, the Board found, in pertinent part: In accordance with Section 50 — 29(b)(2) of the [Montgomery] County Code, the proposed lots are of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as to other lots within the existing neighborhood (as delineated by Staff in the Staff Report) (“Neighborhood”).... The Resolution concluded by informing all parties that they had thirty days in which to file a petition for judicial review. On June 21, 2011, appellants filed a petition for judicial review in the circuit court. On July 22, 2011, appellants moved to stay the Board’s decision pending judicial review, but the court denied their request on September 13, 2011, following a hearing held on the same day.

On September 21, 2011, appellants filed a memorandum of law, along with several attachments, in support of their petition for judicial review. On October 27, 2011, the Board filed a memorandum in response to appellants’ memorandum. Also on October 27, the Board filed a motion to strike, asserting that appellants provided numerous materials to the circuit court, “contrary to the Maryland Rules of Procedure,” that were not before the Board at the time it approved the Plan. On November 10, 2011, appellants filed an opposition to the motion to strike and a Motion to Supplement the Administrative Record, in the latter of which they sought to include in the administrative record materials that they submitted to the Board with their May 19 Petition for Reconsideration.

The Board opposed the motion to supplement, arguing that the materials were not provided to the Board prior to its May 5 decision and, therefore, could not have been a basis for that decision. At a hearing on December 1, 2011, the circuit court heard argument from the parties on the Board’s motion to strike, ⁵⁹⁵ appellants’ motion to supplement, and appellants’ petition for judicial review. The court, after reviewing the parties’ written memoranda of law and hearing their arguments, denied all of the motions 4 and affirmed the Board’s approval of the Plan. Appellants timely filed a notice of appeal.

Additional facts will be set forth below as necessary to resolve the questions presented. DISCUSSION I. Supplementing the Agency Record Appellants contend that the circuit court erred in denying their Motion to Supplement the Record. Specifically, appellants assert that the court improperly denied their request “to add to the Administrative Record the homeowners’ May 19 letter and the Staff reports pertaining to previous resubdivision plans.” In support of this argument, appellants claim that they properly submitted the materials to the Board pursuant to its Rules of Procedure. As a result of the court’s refusal to supplement the record, appellants conclude that “the [circuit] Court was unable to judge if the Board’s judgment was reasonably based on proven facts.” The Board responds that “[mjaterials submitted to the [] Board after that agency’s decision should not be considered by this Court in reviewing that decision.” Pursuant to the Board’s Rules of Procedure, the Board argues, “the record of a proceeding is closed when the [ ] Board votes.” Therefore, the Board concludes, “[i]f this Court were to consider supplemental materials on which the [ ] Board did not rely, the Court could not determine whether the [] Board’s decision was a reasonable conclusion based upon the facts in the record.” Appellants’ issue asks this Court to decide whether the circuit court, not the Board, erred by denying their motion to ⁵⁹⁶ supplement the agency record before the circuit court.

In judicial review of administrative proceedings, “[additional evidence in support of or against the agency’s decision is not allowed unless permitted by law.” Md. Rule 7-208(d) (emphasis added). It is clear in the instant case that supplementing an administrative record is not permitted by law. Pursuant to the Maryland Administrative Procedure Act, Md. Code (1984, 2009 Repl. Vol.), § 10-222 of the State Government Article (“SG”), a reviewing court may only (1) remand the case for further proceedings; (2) affirm the final decision; or (8) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary and capricious.

SG § 10-222(h) (emphasis added). It is clear from the above language that we are limited to reviewing “the entire record as submitted.” SG § 10-222(h)(3)(v) (emphasis added); see also Capital Commercial Properties, Inc. v. Montgomery County Planning Board, 158 Md.App. 88, 96 , 854 A.2d 283 (2004) (“[Ajppellate review of administrative decisions is limited to those issues and concerns raised before the administrative agency.”) The underlying rationale for this principle is as follows: “ ‘A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.’ We do not allow issues to ⁵⁹⁷ be raised for the first time in actions for judicial review of administrative agency orders entered in contested cases because to do so would allow the court to resolve matters ab initio that have been committed to the jurisdiction and expertise of the agency.” Capital Commercial Properties, Inc., 158 Md.App. at 96-97 , 854 A.2d 283 (quoting Delmarva Power & Light Co. v. Public Service Comm’n of Md., 370 Md. 1, 32 , 803 A.2d 460 (2002)). Because the materials submitted to the circuit court with appellants’ motion to supplement were not part of the record before the Board when it rendered its decision, neither the circuit court nor this Court has authority to review them. 5 Therefore, the circuit court did not err.

II

The Board’s Decision The Montgomery County Planning Board is “responsible for planning, platting, and zoning functions primarily local in ⁵⁹⁸ scope,” and has exclusive jurisdiction over “the administration of subdivision regulations.” Md. Code (2009, 2010 Repl. Vol.) Art. 28, § 7 — 111(a); 6 see also Montgomery County Code (“MCC”) (1994), § 50-4 (explaining that Chapter 50 of the County Code “shall be administered by the county planning board”). “ ‘Subdivision’ means the division of a lot, tract, or parcel of land into two or more lots ... for the purpose, whether immediate or future, of sale or building development, and includes re subdivision.” Md.Code Art. 28, § 7-101(d). A “resubdivision” is “[a] change in any lot line of a recorded lot or parcel of land. Resubdivision includes the assembly of recorded lots or parts of lots.” MCC § 50-1.

The design of lots in a resubdivision is governed by MCC § 50 — 29(b)(2), which states: Lots on a plat for the resubdivision of any lot, tract or other parcel of land that is a part of an existing subdivision previously recorded in a plat book shall be of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as other lots within the existing block, neighborhood or subdivision. Id. (emphasis added). Appellants contend that the Board’s decision to approve the Plan was erroneous, for two reasons: (1) the Board did not appropriately select the “existing neighborhood” for the sake of comparing the lots proposed in the Plan; and (2) the Board improperly found that the lots that would result if the Plan were approved would be of the “same character” as the lots in that existing neighborhood.

We will discuss each of these contentions in turn. ⁵⁹⁹ A. Standard, of Review “On appellate review of the decision of an administrative agency, this Court reviews the agency’s decision, not the circuit court’s decision.” Halici v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 cert. denied, 406 Md. 113 , 956 A.2d 202 (2008). As the Court of Appeals has explained: “A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it 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 administrative decision is premised upon an erroneous conclusion of law. In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record.

A reviewing court must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima fade correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence and to draw inferences from that evidence.” Pautsch v. Md. Real Estate Comm’n, 423 Md. 229, 253 , 31 A.3d 489 (2011) (alterations in original) (quoting Maryland Aviation Admin, v. Noland, 386 Md. 556, 571 , 873 A.2d 1145 (2005)). In short, in applying the substantial evidence standard, “[t]he test is reasonableness, not rightness.” Alviani v. Dixon, 365 Md. 95, 108 , 775 A.2d 1234 (2001) (citation omitted). Conversely, with regard to an agency’s legal conclusions, “no deference is given to a decision based solely on an error of law.” Lee v. Maryland Nat’l Capital Park and Planning Comm’n, 107 Md.App. 486, 492 , 668 A.2d 980 (1995), cert. denied, 343 Md. 333 , 681 A.2d 69 (1996). Nevertheless, “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 ⁶⁰⁰ and application of the statute 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.” Pautsch, 423 Md. at 253 , 31 A.3d 489 (quoting Noland, 386 Md. at 572 , 873 A.2d 1145 ). To that end, “courts give special weight to an agency’s interpretation of its own regulations.” Dep’t of Health & Mental Hygiene v. Riverview Nursing Ctr., Inc., 104 Md.App. 593, 602, 657 A.2d 372 (1995). B. Existing Neighborhood 1.

Legal Interpretation As the Board notes in its Resolution, it used “the existing neighborhood []as delineated by Staff in the Staff Report[ ]” in reviewing the Plan. The Staff Report stated as follows: Neighborhood Delineation In administering Section 50-29(b)(2) of the Subdivision Regulations, the Planning Board must determine the appropriate “Neighborhood” for evaluating the application. In this instance, the Neighborhood agreed upon by the Applicant and Staff, consists of 54 lots []. The Neighborhood includes all lots with frontage on Gainsborough Road between Seven Locks Road and Fontaine Street.

This Neighborhood is consistent with the Neighborhoods accepted by the Planning Board for two other resubdivision application reviews on the same segment of Gainsborough---- The designated neighborhood provides an adequate sample of the lot and development pattern of the area. 7 As appellants acknowledge, “Montgomery County Code provides no guideline on what constitutes the ‘neighborhood’ that is to be used as the basis for determining if the lots in a proposed resubdivision ha[ve] the same character as the existing lots.” Appellants contend, nevertheless, that the Board ⁶⁰¹ erred in defining the neighborhood that it used for the proposed resubdivision. Specifically, appellants claim that “the Board accepted without question the neighborhood proposed by Staff, which consists of lots from two sections of Willerburn Acres ... that differ in their character and history.” Appellants assert that “the two sections differ widely in character,” because “Section 1 has much larger lots and more trees, wider frontage, and houses set further back,” and because “Section 2 has a curb, but Section 1 does not.” Instead, appellants conclude, the Board should have only defined the neighborhood as Section 1. In response, the Board asserts that, “[a]s the regulatory agency tasked with applying the Subdivision Regulations,” it “has substantial discretion to delineate the ‘existing neighborhood’ ” and “must be afforded deference when determining the appropriate standards to review preliminary plan applications for conformance to § 50 — 29(b)(2).” The Board contends that “[i]n the absence of a specific statutory definition of ‘existing block, neighborhood or subdivision,’ the [ ] Board reasonably interpreted the law as requiring an impact-based test[,]” under which the “existing neighborhood” includes “those lots that would be most directly affected by approval of the proposed re subdivision.” In other words, when establishing the boundaries of a neighborhood, the Board “considers abutting properties, access to and from the proposed lots, and the consistency of the zoning within the defined boundary.” In Burgess v. 103-29 Ltd. Partnership, the appellants challenged a hearing board’s decision in a zoning case on the issue of whether the board erroneously defined the “neighborhood” of the subject property for purposes of evaluating whether the appellants could obtain a zoning change based on changed conditions in that neighborhood. 123 Md.App. 293, 296-97 , 718 A.2d 613 , cert. denied, 352 Md. 335 , 722 A.2d 63 (1998). Collecting Maryland cases on the subject, we explained: The area constituting the neighborhood of a subject property for the purpose of evaluating change will depend upon the facts and circumstances of each case.

The concept of a neighborhood is a flexible one and will vary according to the ⁶⁰² geographical location involved; it being axiomatic that in rural or semi-rural areas ... the neighborhood will be larger and more fluid than in a city or a suburban area. A neighborhood should not be precisely and rigidly defined, but may vary from case to case.... Nevertheless, the neighborhood in any area must be an area which reasonably constitutes the immediate environs of the subject property. As long as the neighborhood delineated by the zoning authority is reasonable, we must give the greatest deference to the zoning authority’s judgment regarding the scope of the neighborhood to be drawn.

Id. at 299-300, 718 A.2d 613 (bolded emphasis added) (internal citations and quotation marks omitted). Although Burgess was a zoning case, 8 we find the above quoted language instructive in the instant case. Moreover, the absence of a specific definition of “existing [ ] neighborhood” contained within MCC § 50-29(b)(2), or as construed by courts, we give “special weight” to the agency’s (i.e., the Board’s) interpretation. Dep’t of Health & Mental Hygiene, 104 Md.App. at 602 , 657 A.2d 372 .

Therefore, we hold that the Board’s interpretation of “existing neighborhood” must be reasonable, giving special weight to the Board’s interpretation. Because, in determining the “existing neighborhood,” the Board considers abutting properties, the access points to and from the proposed lots, and the consistency of the zoning within the defined boundary, we conclude that the Board’s standard is reasonable. Thus the Board did not err, as a matter of law, in adopting such standard in the instant case. ⁶⁰³ 2. Substantial Evidence Appellants argue that there was not substantial evidence to support the Board’s delineation of the existing neighborhood under the Board’s standard.

According to appellants, the Staff Report contained two critical pieces of erroneous information regarding the “existing neighborhood” chosen by the Board as a predicate to reviewing the Plan. First, appellants argue, “[Staff member] Weaver misinformed the Board when he stated that the subject lot is in a transition area between the two