Art Wood Enterprises v. Wiseburg Community Ass'n

HARRELL, Judge. This case arises from a decision of the Circuit Court for Baltimore County which remanded the decision of the Board of Appeals of Baltimore County (the Board) affirming the approval of a development plan by the County Review Group of Baltimore County (CRG). FACTS Appellant, Art Wood Enterprises (Art Wood), is the owner of approximately ninety (90) acres of land located in northern Baltimore County upon which it proposes a development, known as “Coachman’s Field,” consisting of thirty-nine (39) single-family, detached homes. Appellee, Wise-burg Community Association, Inc. (Wiseburg), is a citizens’ group composed of existing residents from the general vicinity in which “Coachman’s Field” is planned.

The “Coachman’s Field” development plan (the Plan) was reviewed by the CRG 1 pursuant to the Development Regulations of Baltimore County, Baltimore County Code (B.C.C.) § 26-166 et seq., which require an “approved plan ... for all development” in the County. B.C.C. § 26-201. 2 On 30 April 1987, at a public meeting attended by representatives of Art Wood, Wiseburg, and several County agencies, the CRG ostensibly approved the Plan. Wiseburg appealed the CRG’s decision to the Board, which affirmed. Wiseburg then appealed to the Circuit ⁷²⁷ Court for Baltimore County.

The circuit court (Brennan, J.) held that the CRG’s approval of the Plan was “conditional” and as such was not authorized under the B.C.C. The circuit court remanded the matter to the Board, directing that the Board order the CRG to make a final decision regarding the Plan at a continued CRG meeting held pursuant to B.C.C. § 26-206. Art Wood now contends that: I. The circuit court erred in finding that the CRG’s approval of the Plan was “conditional” and as such was unauthorized under B.C.C. § 26-206; II. The circuit court erred in its conclusion that the CRG actually took final action to approve the Plan in a meeting that was closed to the public in violation of B.C.C. § 1-12 (the County’s “Open Meeting” law); and III. The CRG was not required to refer the Plan to the Baltimore County Planning Board (Planning Board) pursuant to B.C.C. § 26-207.

STANDARD OF REVIEW The role of the circuit court in reviewing the Board’s decision is set forth in Md.Ann.Code art. 25A, § 5(U) (1987), which provides in pertinent part: Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. (Emphasis added.) The circuit court’s standard of review is thus limited to whether or not the Board’s decision is “in accordance with law.” The Board’s decision may be set aside as not in accordance with law if it is arbitrary, illegal or capricious. Mortimer v. Howard Research, 83 Md.App. 432, 441 , 575 A.2d 750 (1990). In Mortimer, id., this court set forth the ⁷²⁸ proper standard for determining whether a Board decision is arbitrary, illegal or capricious: In making a determination of whether the Board of Appeals decision is arbitrary, illegal or capricious, the reviewing court must decide whether the question before the agency was fairly debatable.

Howard County v. Dorsey, 45 Md.App. 692, 700 [ 416 A.2d 23 ] (1980), rev’d on other grounds, 292 Md. 351 [ 438 A.2d 1339 ] (1982). An issue is fairly debatable if reasonable persons could have reached a different conclusion on the evidence and, if so, a reviewing court may not substitute its judgment for that of the administrative agency. Eger v. Stone, 253 Md. 533, 524 [ 253 A.2d 372 ] (1969). The fairly debatable test is analogous to the clearly erroneous standard under' Rule 8-131(e) and a decision is fairly debatable if it is supported by substantial evidence on the record taken as a whole.

Dorsey, 45 Md.App. at 701 [ 416 A.2d 23 ], quoting Sedney v. Lloyd, 44 Md.App. 633, 637 [ 410 A.2d 616 ] (1980). 3 This standard of review is in accord with that established by case law regarding zoning actions. Miller v. Forty West Builders, 62 Md.App. 320, 326 , 489 A.2d 76 (1985). In this’ appeal, “the role of this court is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review.” Mortimer v. Howard Research, 83 Md.App. 432, 442 , 575 A.2d 750 (1990). DISCUSSION I The B.C.C. authorizes the CRG to take any of three actions with respect to a proposed plan.

First, the CRG ⁷²⁹ may take “final action on the plan,” B.C.C. § 26 — 206(b)(1), which is defined in the B.C.C. as “the approval of a plan as submitted, the approval of a plan as amended, or the disapproval of a plan ...” B.C.C. § 26-168. Second, the CRG may refer the proposed plan to the Planning Board pursuant to B.C.C. § 26-207. B.C.C. § 26-2Q6(b)(2). Finally, the CRG may continue the meeting to a later date “in order to receive additional information or to resolve any development matter raised at the initial meeting regarding the plan.” B.C.C. § 26-2Q6(b)(8).

The B.C.C. further provides that in the event an applicant for plan approval or any other person is required to submit additional information regarding the plan the CRG “shall continue its meeting to receive such additional information.” B.C.C. § 26-206(c)(I). The above provisions of the B.C.C. must be interpreted in light of B.C.C. § 26-208, which describes the nature and contents of the plan on which the CRG must act. B.C.C. § 26-203(a) provides that: [t]he plan shall set forth an informative, conceptual, and schematic representation of the proposed development in a clear and legible manner by means of maps, graphs, charts, or other written or drawn documents so as to enable the county and all reviewing agencies an opportunity to make reasonably informed decisions regarding the development. (Emphasis added.) 4 The language of B.C.C. § 28-203(a) makes it clear that CRG approval is merely one stage (and an early one at that) of the land development review and approval process which takes a proposed development from its planning stages to its final form.

As the Board stated in its opinion on the CRG’s approval of the Plan: ⁷³⁰ “[a]t the CRG stage, the developer need concern himself only with generalities and not specifics of his proposed development. He may be granted approval of the conceptual plans, but numerous agency permits, inspections, and approvals will follow ...” Thus, the use of the term “final action on the plan” in B.C.C. § 26-206(b)(l) cannot be interpreted to mean that the plan on which the CRG acts need be in finished form, or that no additional review or more detailed information, even on subjects generally addressed in the development plan, will be necessary in subsequent stages of the development review and approval process. This court’s dicta in the case of Miller v. Forty West Builders, 62 Md.App. at 320 , 489 A.2d 76 , is instructive. In that case, CRG approval of a plan was challenged because the overflow from a sewerage pumping station which was to serve the proposed development was operating over capacity and would pose significant health and safety hazards.

The CRG had determined that the developer must have a study done and pursuant to a public works agreement must make any necessary corrections to eliminate any overflow. This court, in sustaining the CRG’s action, stated as follows: [Pjursuant to the CRG’s determination, the public works agreement is the mechanism to assure that the facilities are properly improved so that the proposed subdivision poses no health or safety hazards to the existing community. The CRG’s approval in Miller was in some sense “conditioned” on the developer’s performance of a later study. It was not necessary, however, for the CRG to hold another meeting in order to receive the results of that study, as the CRG’s approval of the plan was not contingent on the study’s results.

Rather, the information obtained from the study was to be utilized at a later stage of the land development review and approval process, as foreseen by the CRG when it approved the plan. Thus, if a plan does not meet the requirements of B.C.C. § 26-203, or the CRG desires additional information regarding a plan, or wants to ⁷³¹ settle or resolve particular development matters before it acts on the plan, then it is required to continue its meeting. But if the CRG has all the information before it necessary to approve the plan — that is, the plan satisfies the requirements of B.C.C. § 26-203 — and the CRG approves the plan on the basis of that information, then the requirements of B.C.C. § 26-206 are satisfied, regardless of whether additional information regarding the proposed development may be necessary in future stages of the land development review and approval process. With respect to the CRG’s compliance with B.C.C. § 26-206 in the case sub judice, the circuit court ruled as follows: [T]his Court agrees with [Wiseburg] that the approval was conditional and as such was an action which the CRG was not authorized to take pursuant to [B.C.C. § 26-206].

The [B.C.C.] provides in part that the CRG shall either take final action on a plan or continue the meeting in order to take additional information or resolve developmental matters. In this instance, the CRG should have continued the meeting in order to give the developers time to resolve the remaining matters stated above. The additional information was needed in order to properly grant or deny.its [the plan’s] approval. The “remaining matters stated above” refers to the circuit court’s earlier statement in its Memorandum Opinion and Order that “[t]he approval was conditioned upon the satisfactory resolution of several matters, including: sanitation, storm water management, planning and traffic.” This statement in turn is evidently a reference to the “County Staff comments to be addressed” numbers one (1) through six (6) set out in the CRG meeting’s minutes. 5 Those comments are as follows: County staff comments to be addressed are as follows: ⁷³² 1.

Sanitation required the trash pad near Lot No. 25 be relocated and the detail revised. 2. State Highway Administration comments numbered 1 through 6 must be addressed. 3. Storm Water Management comments stated that a storm water management waiver had not yet been granted, and that even if a waiver is granted, water quality would have to be provided. Approval of the Plan must be conditional upon satisfying storm water management requirements. 4.

Planning comments numbered 1, 3, 4 and 6 must be addressed. 5. Traffic comments numbered 1, 2, and 4 must be addressed. 6. Developers Engineering Division comments required that a note be added to the Plan indicating that the 24 foot roadway will be posted with no parking signs. CONCLUSION: The Plan was Conditionally Approved as described above.

We note at the outset that we do not consider the fact that the CRG used the word “conditionally” and the phrase “to be addressed” in the minutes evidencing its action on the Plan to be dispositive in determining whether that action was “a final action” in accordance with B.C.C. § 26-206. Whether the CRG’s action was authorized by the B.C.C. must be determined by the content or effect of that action rather than by the name or description given it by the CRG. See e.g. Houghton v. County Commissioners of Kent County, 305 Md. 407, 412 , 504 A.2d 1145 (1986) (quality or effect of trial court’s action, rather than form of docket entry, determined whether order was appealable).

Cf. 4 C.J.S. Appeal & Error § 94(b) (“question whether a judgment, order, or decree is final and appealable is not determined by the name or description which the court ⁷³³ below gives it, but is to be decided by the appellate court on a consideration of the essence of what is done thereby”). “County Staff comments to be addressed” numbers one, two, four, five and six in the meeting’s minutes refer to written comments on the Plan submitted to the CRG by various County agencies and included in the CRG’s file on the Plan pursuant to B.C.C. § 26-205(f)(1). Our review of the record reveals that these comments are directives to Art Wood to amend details of the Plan in specific ways. 6 The information contained in the comments was part of the Plan file on 30 April 1987, the date of the CRG meeting. The CRG was not waiting for or seeking any “additional information” regarding these comments before approving the Plan. 7 All that remained for the CRG to do ⁷³⁴ with regard to these agency comments was to review the amended Plan to make certain that Art Wood had indeed complied with the agencies’ and the CRG’s directives. Nor does the fact that further ministerial action by the CRG may have been necessary with regard to the Plan prevent the CRG’s action from constituting “final action on the plan.” See Clarke v. Greenwell, 73 Md.App. 446 , 534 A.2d 1344 (1988) (finality of resolution of board of county commissioners approving zoning petition did not hinge on ministerial act of attaching changes to zoning map).

Thus, contrary to Wiseburg’s suggestion, the fact that technical amendments were made to the Plan after the CRG meeting to conform the Plan to the agency directives set forth in the meeting’s minutes before the CRG members signed the approved Plan does not impeach the validity of the CRG’s action. As noted earlier, the CRG is empowered to approve a plan as amended. B.C.C. § 26-168 (Emphasis supplied). The third of the “[s]taff comments to be addressed” refers to stormwater management requirements.

This comment suggests that the CRG’s approval of the Plan was indeed “conditional” on the provision of “additional information” to the CRG regarding the grant of a waiver of such stormwater management requirements and on Art Wood’s providing “water quality.” Our review of the record, however, reveals that the Plan was granted a waiver of storm-water management requirements prior to the CRG’s 30 April 1987 meeting, and that this fact was known to the CRG and others in attendance at the meeting. 8 ⁷³⁵ Stormwater management requirements are set forth in B.C.C. § 14-151 et seq. The responsibility for review and ultimate approval of a development’s stormwater management plans (as opposed to development plans that receive CRG review and approval) is vested elsewhere in the County government than the CRG. B.C.C. § 14-156(a). With regard to waivers of stormwater management requirements, B.C.C. § 14-155(c) provides that: the director of the department of environmental protection and resource management or his designated representative may grant a waiver of the stormwater management requirements for individual developments, provided that the applicant submits a written request containing descriptions, drawings, calculations, and any other information necessary to evaluate the proposed waiver request B.C.C. § 26-203 provides with respect to stormwater management requirements only that a plan must “contain information” regarding “stormwater management areas,” B.C.C. § 26-203(b)(18), and that this information must be sufficient to “enable the county and all reviewing agencies an opportunity to make reasonably informed decisions regarding the development.” B.C.C. § 26-203(a).

As B.C.C. § 14-155(c) clearly requires that information be provided to the County of a nature specific enough to satisfy the standard set forth in B.C.C. § 26-203(a), the fact that Art Wood had been granted a stormwater management waiver for its proposed development was enough to enable the CRG to take final action on the Plan as submitted without the need for “additional information.” The meeting’s minutes also state that “even if a waiver is granted, water quality would have to be provided.” This statement is evidently a reference to B.C.C. §