Bucktail, LLC v. County Council

⁵³³ RODOWSKY, Judge. In this appeal a real estate developer contends that Talbot County (the County) erroneously denied its application for a growth allocation under the Chesapeake Bay Critical Area Protection Program. For the reasons set forth below we shall hold that there was procedural error that requires a remand to the Talbot County Council (the Council). I In 1984, the General Assembly enacted the Chesapeake Bay Critical Area Protection Program (the Program).

Chapter 794 of the Acts of 1984, codified as amended in Maryland Code (1974, 1990 Repl.Vol., 1998 Cum.Supp.), §§ 8-1801 through 8-1817 of the Natural Resources Article (NR). The purposes of the Program are: “(1) To establish a Resource Protection Program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats; and “(2) To implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight.” Id. § 8-1801(b). The Chesapeake Bay critical area generally consists of the Chesapeake Bay, its tributaries to the head of tide, all designated State and private wetlands, and all land and water areas within 1,000 feet beyond the landward boundaries of designated State or private wetlands and the heads of tides of the Chesapeake Bay and its tributaries. Id. § 8-1807(a).

The General Assembly created the Chesapeake Bay Critical Area Commission (the Commission) to promulgate regulations and to administer the Program. Id. §§ 8-1803 and 8-1806. Each county within the critical area has primary responsibility for developing and implementing a local critical area protection program pursuant to criteria established by the Commis ⁵³⁴ sion and subject to review and approval by the Commission. Id. §§ 8-1808(a), (d), and 8-1809.

Each local program must designate the local critical area (the Critical Area), include a comprehensive zoning map for the Critical Area, and, as necessary, enact new or amended provisions of the jurisdiction’s subdivision regulations, comprehensive or master plan, zoning ordinances or regulations, and enforcement provisions. Id. § 8-1808(c). In 1986, the Commission promulgated regulations establishing the criteria for development in the Critical Area. Md. Regs.Code tit. 27, §§ 01.02.01 through 01.02.07 (1992) (CO-MAR).

These regulations recognize three types of development areas: Intensely Developed Areas (IDAs), Limited Development Areas (LDAs), and Resource Conservation Areas (RCAs). COMAR § 27.01.02.02A. Local jurisdictions are directed to identify each of these three types of areas within their jurisdiction. COMAR § 27.01.02.02E.

The developer in the case before us seeks to have its Critical Area property reclassified under the County’s program from RCA to LDA. LDAs are defined as “those areas which are currently developed in low or moderate intensity uses. They also contain areas of natural plant and animal habitats, and the quality of runoff from these areas has not been substantially altered or impaired. These areas shall have at least one of the following features: “(1) Housing density ranging from one dwelling unit per 5 acres up to four dwelling units per acre; “(2) Areas not dominated by agriculture, wetland, forest, barren land, surface water, or open space; “(3) Areas meeting the conditions of [COMAR § 27.01.02].03A [defining IDAs], but not [COMAR § 27.01.02].03B [regarding the concentration of IDA features], of this regulation; ⁵³⁵ “(4) Areas having public sewer or public water, or both.” COMAR § 27.01.02.04A.

RCAs are defined as “those areas characterized by nature-dominated environments (that is, wetlands, forests, abandoned fields) and resource-utilization activities (that is, agriculture, forestry, fisheries activities, or aquaculture). These areas shall have at least one of the following features: “(1) Density is less than one dwelling unit per 5 acres; or “(2) Dominant land use is in agriculture, wetland, forest, barren land, surface water, or open space.” COMAR § 27.01.02.05A. In the County the Critical Area zones overlay the preexisting zoning. Under the State statute the amount of growth of IDAs and LDAs allowed in each county’s critical area is known as “growth allocation.” NR § 8-1802(a)(4) (“ ‘Growth allocation’ means the number of acres of land in the Chesapeake Bay Critical Area that a local jurisdiction may use to create new intensely developed areas and new limited development areas.”).

Each jurisdiction’s growth allocation is limited to five percent of its RCA. NR § 8-1808.1(b); accord COMAR § 27.01.02.06AG). When locating new IDAs or LDAs local jurisdictions are mandated to follow six guidelines. They are “(1) New intensely developed areas should be located in limited development areas or adjacent to existing intensely developed areas; “(2) New limited development areas should be located adjacent to existing limited development areas or intensely developed areas; “(8) No more than one half of the allocated expansion may be located in resource conservation areas; “(4) New intensely developed areas and limited development areas should be located in order to minimize impacts to habitat protection areas as specified in COMAR 27.01.09 ⁵³⁶ and in an area and in a manner that optimizes benefits to water quality; “(5) New intensely developed areas should be located where they minimize their impacts to the defined land uses of the resource conservation area; “(6) New intensely developed areas and limited development areas in the resource conservation area should be located at least 300 feet beyond the landward edge of tidal wetlands or tidal waters.” COMAR § 27.01.02.06B.

The County has some 600 miles of shoreline and approximately forty percent of the County is located within the Critical Area. Within this Critical Area, 51,000 acres are RCAs; thus, five percent or 2,554 acres are available for growth allocation. One-half of the 2,554 acres available for allocation has been set aside for growth in or around the towns of Easton, Oxford, and St. Michaels. In early 1997, when the County was considering the request for growth allocation involved in this case, 2,150 acres had not yet been allocated.

Growth allocation within the County is administered by the Council, pursuant to § 19.14(c)(l)(iv) of the Talbot County Zoning Ordinance (1991), as amended. 1 Under this subsection “a person with a committed financial, contractual, or proprietary interest” in property in the Critical Area can initiate a growth allocation district boundary amendment. § 19.14(c)(l)(iv)[a]. An application is filed in the County Planning Office, along with a proposed site plan or subdivision plat, or both, that meet the County’s development design standards and site plan review requirements. § 19.14(c)(1)(iv)[b]; see §§ 19.10 (development design standards) and 19.12 (site plan review). The application “should make the maximum effort to meet the intent of the Critical Area policies and the applicable ⁵³⁷ design standards” and, specifically, should conform to the nine directives set forth below: “[1] Create lots or parcels that maximize the opportunities for clustered development that protect habitat and agricultural resources; “[2] Locate structures so as to minimize impact on habitat protection areas and agricultural areas; “[3] Provide a minimally disturbed buffer along the shoreline; “[4] Minimize soil erosion and runoff; “[51 Maximize protection of eroding shorelines; “[6] Have a minimal impact or cause an improvement to stormwater, floodplain and stream characteristics; “[7] Minimize impacts on non-tidal wetlands; “[8] Maximize protection of plant and wildlife habitats, particularly for threatened and endangered species, plant and wildlife common to the Chesapeake Bay Region, and anadromous fish propagation waters; and “[9] Maximize protection of forests.” § 19.14(c)(l)(iv)[b]. Recommendations of the Planning Officer and the Planning Commission are to be submitted to the Council within sixty days after the application is filed. § 19.14(c)(l)(iv)[c].

Whether the recommendations are to grant or to deny the application, the Council “shall introduce a bill (legislation) for the proposed amendment and hold a public hearing in order that interested parties and citizens shall have an opportunity to be heard.” § 19.14(c)(l)(iv)[d]. The Council is required to keep “[a] complete record” of the public hearing, including “the vote of all members of the Council in deciding all questions relating to the proposed growth allocation district boundary amendment.” § 19.14(c)(l)(iv)[e]. Prior to voting on the growth allocation bill a majority of council members must make a site visit to the property “to inspect the physical features of the property and to determine the character of the surrounding area.” § 19.14(c)(l)(iv)[f]. If the Council votes ⁵³⁸ favorably on the growth allocation bill, the Council submits the application to the Commission “for approval as an amendment to the County’s Critical Area Program.” § 19.14(c)(1)(iv)[g].

No provision is made in the County Zoning Ordinance regarding the Council’s rejection of a growth allocation bill. Prior to the Council’s rejection of the growth allocation requested in this case the Council had never failed to enact a growth allocation bill for a project that met the requisite criteria. The Council’s power to make piecemeal reclassifications of properties within the boundaries of the Critical Area is governed under § 19.14(c)(1)(iv) (“Growth Allocation District Boundary Amendments in Critical Area”). Section 19.14(c)(1)(ii) addresses the Council’s power to make “[ajmendments to the Official Zoning District Maps excepting properties within the boundaries of the Critical Area where growth allocation is requested.” Unlike the growth allocation provisions, § 19.14(c)(1)(ii)[i] specifically provides: “The fact that an application for a district boundary amendment complies with all the specific requirements and purposes set forth in this Ordinance shall not be deemed to create a presumption that the proposed district boundary amendment would in fact be compatible with surrounding land uses and is not, in itself, sufficient to require approval.” Further, § 19.14(c)(l)(ii)[k], unlike the growth allocation provisions, addresses the denial of a district boundary amendment by imposing a one year waiting period before reapplication.

II The appellant, Bucktail, LLC (Bucktail), was formed in 1995 to acquire and develop a 93.59 acre tract in the County known as Dawson’s Farm. This property is located about six-tenths of a mile west of the town of St. Michaels. A portion of the property, 20.83 acres, is located outside of the Critical Area and is zoned Town Residential. The remaining 72.76 acres of Dawson’s Farm are within the Critical Area and, by that program, are zoned RCA.

By statute, development in RCAs is limited to one unit per twenty ⁵³⁹ acres, thereby limiting development of Bucktail’s RCA parcel to three dwelling units. NR § 8-1808.1(d); accord § 19.3(a)(1)(ii)[a]. In August 1995, Bucktail applied for a growth allocation to reclassify by district boundary amendment the 72.76 acre parcel from RCA to LDA within the Critical Area, and to reclassify that parcel’s underlying zoning from Rural Conservation (RC) (Critical Area only), § 19.3(a)(1)(h), to Rural Residential (RR) (Critical Area only). § 19.3(a)(1)(iii). RR zoning and LDA zoning permit development of one dwelling unit per five acres.

Thus, with a growth allotment, that is, a reclassification to LDA in the overlaid Critical Area zoning, together with a reclassification to RR in the underlying Euclidean zoning, Bucktail would be able to develop fourteen dwelling units on the Critical Area parcel. In a memorandum to the Planning Commission, the planning staff opined that “[Bucktah’s] application has met all mandatory submittal requirements.” Within a week thereafter the Planning Commission recommended approval of Buck-tail’s application, subject to certain conditions that are not presently relevant. On January 28, 1997, Bills Nos. 640 and 641 were introduced into the Council. 2 Following a public hearing on the two bills, the Council voted four to one against Bill No. 641 on March 11,1997. The Council made findings of fact.

Those relevant to the issues here are the following: “(5) The proposed District Boundary Amendment from RC Rural Conservation to RR Rural Residential is a Critical Areas Growth Allocation request and as such the Council must find that the request complies with the Critical Area Policies and applicable design standards set forth in Section 19.14(c)(iv) of the Zoning Code of Talbot County. ⁵⁴⁰ “(6) The County Council finds ‘upon the basis of the evidence of record’ that the request for Critical Area Growth Allocation does not comply with all of the Critical Area Policies and applicable design standards as referenced in Section 19.14(c)(iv) of the Zoning Code of Talbot County. “(7) The County Council finds that the Growth Allocation request is not consistent with the purposes and intent of the Talbot County Comprehensive Plan. “(8) The County Council finds that the proposed change will not be compatible with existing and proposed development and land use in the surrounding area. “(9) The County Council finds upon the basis of the evidence of record that there have been no population changes that would suggest this reclassification to be wise. “(10) The County Council finds that the availability of public facilities and the present and proposed transportation patterns do not support the reclassification. “(11) Five members of the Council inspected the site prior to voting. “(12) In light of the above findings, the Bill requesting Critical Area Growth Allocation and reclassification of the property, from RC Rural Conservation to RR Rural Residential will be denied.” Bill No. 640 was tabled. Bucktail petitioned for judicial review. Neighboring property owners, appellees John W. Renner, Richard J. Conway, Robert Porter, and Sidney H. Dickson (collectively RCPD), intervened in support of the County’s decision. The circuit court affirmed, ruling that there was substantial evidence to support the Council’s denial of the requested growth allocation, based on the findings that the request did not comply with all of the § 19.14(c)(l)(iv) criteria and that the request was not consistent with the County comprehensive plan nor with existing and proposed development in the area.

Further, the court disagreed with Bucktail’s argument that once it met the § 19.14(c)(l)(iv) criteria the Council must approve the growth allocation request. ⁵⁴¹ Bucktail appealed to the Court of Special Appeals. On our own motion we issued a writ of certiorari prior to consideration of the matter by that court. The appellees have moved to dismiss Bucktail’s appeal because there is no statute authorizing review of the Council’s action on a growth allocation application. If the matter is properly before us the parties join issue over the correct standard of review and over the application of the correct standard to the facts of this case.

In addition Bucktail argues that the Council failed to render specific findings of facts as required by law. Ill The appellees have moved to dismiss, contending that there is no statute making the Council’s action judicially reviewable. Bucktail’s petition for appeal to the circuit court recites that it is filed “pursuant to Maryland Rule 7-202.” The cited rule, however, does not grant a right of judicial review, and it is inapplicable where judicial review is not authorized by statute. Urbana Civic Ass’n, Inc. v. Urbana Mobile Village, Inc., 260 Md. 458, 462-63 , 272 A.2d 628, 631 (1971).

The Charter that the County adopted in 1974 provides for a county manager form of government. Charter of Talbot County, Maryland (1977), Art. III. All powers which may be exercised by the County are vested in the Council. Charter § 202.

A board of appeals is created under § 501 of the Charter which may hear and decide matters including “Zoning matters, exclusive of rezoning.” Charter § 502(1). The County Zoning Ordinance, effective June 22, 1991, contains a provision for an “appeal” by “[a]ny person aggrieved by any decision of the Board of Appeals” to the Circuit Court for Talbot County. § 19.14(d)(1). There is, however, no provision in the Charter or Zoning Ordinance for judicial review of a zoning reclassification by the Council, comprehensive or piecemeal, within or without the Critical Area. ⁵⁴² Bucktail’s reply to appellees’ dismissal argument is that its petition may be considered to invoke the original jurisdiction of the circuit court under the doctrine illustrated in Criminal Injuries Compensation Board v. Gould, 273 Md. 486 , 331 A.2d 55 (1975). Gould held that there is an inherent right to judicial review of actions by an administrative agency, despite the fact that in Gould the applicable- statute expressly provided that there would be no judicial review, absent certain conditions which admittedly were not met in that case.

Id. at 500-01, 512 , 331 A.2d at 65, 71 . Recently, in Gisriel v. Ocean City Board of Supervisors, 345 Md. 477 , 693 A.2d 757 (1997), cert. denied, — U.S.-, 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998), we applied the Gould principle. In Gisriel , an “appeal” had been taken, pursuant to the Ocean City Charter, to the Circuit Court for Worcester County to review a determination by the City Council of Ocean City which in turn reviewed voter eligibility determinations by the Ocean City Board of Supervisors of Elections. Answering an argument that there was no right of appeal from the circuit court in view of Maryland Code (1974, 1998 Repl.Vol.), § 12-302(a) of the Courts and Judicial Proceedings Article (CJ), we held that the complaint in the circuit court, in addition to invoking the judicial review jurisdiction of the circuit court, invoked its mandamus jurisdiction so that the right of appeal was conferred by CJ § 12-301.

In this connection we said that “where a particular action against an administrative agency was allegedly brought under a statutory judicial review provision, and did not purport to be a mandamus action, this Court has looked to the substance of the action, has held that it could be treated as a common law mandamus or certiorari action, and has exercised appellate jurisdiction.” Gisriel, 345 Md. at 500 , 693 A.2d at 768 . See also Heaps v. Cobb, 185 Md. 372, 380 , 45 A.2d 73, 76 (1945) (reviewing administrative action in the absence of statutory provision for judicial review); Hecht v. Crook, 184 Md. 271, 280 , 40 A.2d 673, 677 (1945) (same). Accordingly, the motion to dismiss the appeal is denied. ⁵⁴³ IV Bucktail contends that the standard for review of the Council’s determinations is substantiality of the evidence, asserting that Bucktail’s entitlement to a growth allocation is not even fairly debatable. The appellees’ response is that the Council’s action was legislative.

Appellees’ point is not that legislative action is beyond challenge in the courts, but that the applicable standard of review is more favorable to the Council than substantiality of tne evidence. Appellees rely on the distinction made in Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211 , 334 A.2d 514 (1975). Linchester involved the constitutionality, under the separation of powers doctrine, of a statute that permitted a de novo jury trial of the reasonableness of administrative action in granting or denying a permit to build in wetlands. There, discussing how, “even absent [legislative authority], the judiciary has an undeniable constitutionally-inherent power to review, within limits, the decisions of ... administrative agencies,” id. at 223 , 334 A.2d at 523 , we said: “This power of review, whether authorized by statute or assumed inherently, cannot be a substitution of the court’s judgment for that of the agency.

In those instances where an administrative agency is acting in a manner which may be considered legislative in nature (quasi-legislative), the judiciary’s scope of review of that particular action is limited to assessing whether the agency was acting within its legal boundaries ...; furthermore, when an agency is acting in a fact-finding capacity (quasi-judicial) the courts review the appealed conclusions by determining whether the contested decision was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner.” Id. at 224 , 334 A.2d at 523 . Accord Gisriel, 345 Md. at 490 n. 12, 693 A.2d at 763 n. 12 (“Legislative or quasi-legislative decisions of local legislative bodies or administrative agencies are, of course, not subject to ordinary judicial review; instead, they are subject to very limited review by the courts.”). ⁵⁴⁴ A Note 12 in Gisriel cited only one zoning case, County Council v. Offen, 334 Md. 499 , 639 A.2d 1070 (1994). Offen was a challenge to comprehensive rezoning. It was “a limited review of an action of an administrative agency, specifically, the adoption of the [Sectional Map Amendment] by the District Council.” Id. at 507 , 639 A.2d at 1073 .

There we plainly said: “Our decisions have consistently recognized that appellate review of a comprehensive rezoning is limited in scope.” Id., 639 A.2d at 1074 . Numerous 'decisions of this Court were cited in support of that statement. Id. at 507-08 , 639 A.2d at 1074 . Here, the action under review is not comprehensive rezoning.

Appellees RCPD also cite Board of County Commissioners v. Levitt & Sons, Inc., 235 Md. 151 , 200 A.2d 670 (1964), for the quotation that this Court has “repeatedly held that the action of zoning or reclassification of zoning is a function that is legislative in nature.” Id. at 158 , 200 A.2d at 674 . Immediately following that quoted language we further said: “However, this does not prevent the Council from making administrative findings of fact, drawing administrative inferences, and arriving at administrative conclusions and decisions, when hearing an application for rezoning, and the statute clearly anticipates such action.” Id. Thus, a rezoning procedure is not necessarily wholly legislative or wholly adjudicatory. Piecemeal rezoning involves adjudicatory procedures, including administrative fact-finding, that form the basis of the legislative decision whether to approve or deny a rezoning application.

As this Court has explained in a piecemeal rezoning case, “[i]t is clear to us, from the general law elsewhere and our previous decisions, that the provisions set forth above make it improper and inaccurate to characterize the whole proceeding at the hearing held by the Council when considering an application for reclassification and its action of denying or granting reclassification as quasi-legislative in nature or quasi-judicial in nature. The above provisions, without ⁵⁴⁵ question, required the members of the Council to resolve disputed questions of adjudicative facts (as contradistinguished from legislative facts or judicial action) concerning particular parties. And, when the Council was considering and determining these adjudicative facts concerning particular parties, it necessarily was performing a quasi-judicial function, even though its final action, in granting or denying the reclassification which was required to be based upon its findings of adjudicative facts, was quasi-legislative in character.” Hyson v. Montgomery County Council, 242 Md. 55, 64-65 , 217 A.2d 578, 584 (1966) (citations omitted). The determination of whether a local zoning authority is acting in an adjudicative or legislative manner “is dependent upon the nature of the particular act in which it is engaged.” Mayor of Rockville v. Woodmont Country Club, 348 Md. 572, 585 , 705 A.2d 301, 307 (1998).

This determination is not based on whether the zoning decision adversely affects an individual piece of property but whether the decision itself is made on individual or general grounds. “The difference between adjudicative and legislative facts is not easily drawn; ... adjudicative facts are facts about the parties and their activities, businesses and properties. They usually answer the questions ‘of who did what, where, when, how, why, with what motive or intent’ while legislative facts ‘do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.’ The difference, broadly speaking, involves whether the decision is to be made on individual or general grounds. Simply because an individual has a protected interest does not entitle him to a trial-type hearing where the matter to be determined involves issues of legislative fact. That the effect of a zoning authority’s decision may dramatically affect an individual is not determinative of the difference between adjudicative and legislative facts; rather, it is the nature of the decision’s fact-finding process, not the ultimate effect of the decision, ⁵⁴⁶ that determines the party’s right to an adjudicatory hearing.” Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-12 , 376 A.2d 483, 497 (1977) (citations omitted) (involving comprehensive rezoning), cert. denied sub nom.

Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 L.Ed.2d 769 (1978). The issue in Hyson, 242 Md. 55 , 217 A.2d 578 , was whether in a piecemeal rezoning the Montgomery County Zoning Ordinance required cross-examination at the reclassification hearing. The ordinance provided for a public hearing at which oral and written testimony could be submitted and of which a complete stenographic record was to be made. Id. at 64 , 217 A.2d at 584 .

The county council was required to make its decision based on the evidence of record and approval or disapproval was to be on the merits. Id. This Court concluded that the ordinance conferred adjudicative functions on the county council when determining the facts at the rezoning hearing and therefore a right of reasonable cross-examination was permitted. Id. at 67 , 217 A.2d at 585 .

The County seeks to distinguish Hyson by comparing the procedural provisions in the ordinance governing that Montgomery County reclassification to the County’s Zoning Ordinance. Section 19.14(c)(l)(iv)[e] of the County’s Zoning Ordinance requires that “[a] complete record shall be kept of the hearing including the vote of all members of the Council in deciding all questions relating to the proposed growth allocation district