Chesapeake Bay Found. v. CREG Westport I

Chesapeake Bay Foundation, Inc., et al. v. CREG Westport Developers I, LLC, et al., No. 53, September Term, 2021, Opinion by Booth, J. MARYLAND FOREST CONSERVATION ACT—FINAL DECISION FOR PURPOSES OF JUDICIAL REVIEW The Maryland Forest Conservation Act, Maryland Code (2018 Repl. Vol., 2021 Supp.), Natural Resources Article § 5-1601, et seq. (the “Act”) establishes the requirements for the adoption and implementation of a forest conservation program by local governments having planning and zoning authority. Under the Act, as well as the regulations promulgated by the Department of Natural Resources, the local government must establish appeal procedures in connection with the approval of a forest conservation plan and associated variance or waiver granted by the local government from the strict application of the provisions of the local forest conservation program or the Act.

The Court of Appeals held that the approval of a forest conservation plan and associated waiver that permitted removal of 49 specimen trees from a site in connection with a development plan was a final decision of the Harford County Department of Planning and Zoning, and that the Chesapeake Bay Foundation and neighboring landowners had the right to file a petition for judicial review of that final decision to the Circuit Court for Harford County under the applicable provisions of the Harford County Code. The approval of a forest conservation plan is an administratively distinct agency action and is independent from Harford County’s general development approval process for subdivision and site plan applications. Thus, it is a final decision of the administrative agency because it leaves nothing further for the agency to do. Circuit Court for Harford County Case No.: C-12-CV-20-000022 Argued: May 9, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 53 September Term, 2021 CHESAPEAKE BAY FOUNDATION, INC., et al. v. CREG WESTPORT I, LLC, et al. Watts, Hotten, Booth, Biran, Raker, Irma S.

(Senior Judge, Specially Assigned), McDonald, Robert N. (Senior Judge, Specially Assigned), Getty, Joseph M. (Senior Judge, Specially Assigned), JJ. Opinion by Booth, J. Hotten, J., and Getty, C.J., dissent.

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-01-19 11:03-05:00 Filed: August 26, 2022 Gregory Hilton, Clerk In Maryland, counties and municipalities with planning and zoning powers have the authority to approve development within their respective jurisdictions. These local jurisdictions have the right to regulate various aspects of development on property, including the size of buildings, the applicable setbacks from property lines, the types of uses that may be made in zoning districts, and the minimum lot size for individually developed parcels. During the 1980s, a population increase in the State led to the conversion of large tracts of agricultural and forest land into residential subdivision and commercial areas. In response to the intense development pressure on the environment, the State adopted three laws to protect the State’s natural resources: (1) the Chesapeake Bay Critical Area Law in 19841 to protect the Chesapeake Bay and its tributaries; (2) the Nontidal Wetlands Law in 19902 to protect the State’s nontidal wetlands; and (3) the Maryland Forest Conservation Act in 19913 to stem the loss of forest in the State.

These laws work in concert to protect the environment and impose conditions and restrictions on the development and redevelopment of property in the State. The enactment 1 See 1984 Md. Laws, Ch. 794. The Chesapeake and Atlantic Coastal Bays Critical Area Protection Program (the “Critical Area Law”) is codified in the Maryland Code (2012 Repl. Vol, 2021 Supp.), Natural Resources Article (“NR”) § 8-1801, et seq. 2 See 1989 Md. Laws, Ch. 536.

The Nontidal Wetlands Act is codified in the Maryland Code (2013 Repl. Vol., 2021 Supp.), Environment Article (“EN”) § 5-901, et seq. 3 See 1991 Md. Laws, Ch. 255. The Maryland Forest Conservation Act is codified in the Maryland Code (2018 Repl. Vol., 2021 Supp.), NR § 5-1601, et seq. of each of these laws created more State oversight over development approvals by local jurisdictions exercising their independent planning and zoning authority where development has the potential to impact natural resources.4 The Forest Conservation Act of 1991 was enacted to protect the forests of Maryland by making the identification and protection of forests and other sensitive areas an integral part of the site planning process.

It is administered by the Maryland Department of Natural Resources (sometimes referred to as “DNR”) but implemented primarily by local jurisdictions having planning and zoning authority. The primary objective of the Forest Conservation Act is to minimize the loss of forest land in connection with development activity and ensure that priority areas for forest retention and forest planning are identified and protected prior to development.5 The Forest Conservation Act established standards for local jurisdictions with planning and zoning authority to enforce during development. Identification and mapping of these priority areas occurs during the development review and approval of a forest stand delineation, which identifies the existing forest cover and 4 The State oversight is undertaken by State agencies that are tasked with administering the State law, adopting regulations, and ensuring compliance by local governments that must apply the State laws in connection with undertaking development review at the local level. Specifically, the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (“Critical Area Commission”) oversees the implementation of the Critical Area Law, see NR § 8-1806; the Maryland Department of the Environment (“MDE”) oversees the statewide program for the conservation and protection of nontidal wetlands, see EN § 5-903; and the Maryland Department of Natural Resources (“DNR”) is charged with overseeing the Maryland Forest Conservation Act, see NR § 5-1610. 5 See “THE MARYLAND FOREST CONSERVATION ACT: A TEN YEAR REVIEW,” Maryland Department of Natural Resources Forest Service, September 2004, https://perma.cc/BQS3-AGFU. 2 environmental features on a proposed development site.

It is submitted at the initial stages of a subdivision or site plan approval, or before a sediment control application is submitted.6 When a forest stand delineation is completed and approved, the information that it provides can then be used to prepare the forest conservation plan.7 A forest conservation plan indicates the limits of disturbance for the proposed project and how the existing forested and sensitive areas will be protected during and after development. A forest stand delineation and forest conservation plan must be prepared by a Maryland licensed forester, a Maryland licensed landscape architect, or other qualified professional.8 On a property with significant forest cover, a forest conservation plan, as well as any variance or waivers that are granted by the approving agency from the strict application of the provisions of the Forest Conservation Act or local forest conservation program, may dictate the scope, location, and placement of the building footprint and structures on the property. In this case, we must determine whether the approval of a forest conservation plan, as well as an associated waiver that authorizes a developer to remove trees that would otherwise be protected under the Act, is a final agency decision that is subject to independent judicial review under the Harford County Forest Conservation Program. 6 Id. 7 Id. 8 Id. 3 For the reasons that follow, we hold that the Act, and regulations promulgated by DNR require a right to appeal the approval of a forest conservation plan. We also hold that a county agency’s approval of a forest conservation plan is a “final decision” for appeal purposes.

I Background and Procedural History CREG Westport I, LLC9 and Harford Investors, LLP (collectively, the “Developer”) propose to develop a mixed-use commercial development containing retail venues, restaurants, a hotel, and warehouses, which total over one million square feet. The site, which is referred to as “Abingdon Business Park,” is located along Interstate 95 in Harford County, Maryland and is zoned Commercial-Industrial. It consists of five parcels of land totaling approximately 326.47 acres. There are approximately 314.73 acres of forest located on the site, which include 85 specimen trees.10 The site also contains: numerous streams; nontidal wetlands; and the HaHa Branch, a tributary of the Bush River which runs from north to south through the property and ultimately flows into the Chesapeake Bay. 9 As of March 3, 2021, CREG Westport I, LLC’s interest in this action was assigned to BTC III I-95 Logistics Center LLC pursuant to an Assignment of Purchase Contract and Infrastructure Agreement. 10 “Specimen trees” refer to trees larger than 30 inches in diameter at breast height or 4.5 feet above the ground.

See Md. Code, NR § 5-1607(c)(2)(iii) and Harford County Code § 267-39D(3). 4 A. Developer’s Submission of the Forest Conservation Plan and Development Plans Under the Maryland Forest Conservation Act, Natural Resources Article (“NR”) (2018 Repl. Vol., 2021 Supp.), § 5-1601, et seq. of the Maryland Code (sometimes referred to as the “Act”) and the Harford County Code (“HCC”) § 267-37, the Developer was required to submit a forest conservation plan outlining its plans to retain, protect, and reforest the site in connection with its proposed development.11 The Developer first completed a forest stand delineation12—a requirement under the Act—which identified 85 specimen trees on the development site which would be subject to the forest conservation plan. In February 2019, the Developer submitted its initial application for a forest conservation plan to the Harford County Department of Planning and Zoning, in which the Developer proposed the clearing of 221 acres of forest. In connection with its initial application, the Developer requested a waiver13 under the applicable provisions of the 11 As we will discuss in more detail herein, the Forest Conservation Act requires local jurisdictions with planning and zoning authority to adopt and implement a forest conservation program.

NR § 5-1605. Harford County has incorporated its Forest Conservation Program in the zoning chapter of the Harford County Code (“HCC”), §§ 267- 34–267-48. 12 “Forest stand delineation” is defined as “the methodology for evaluating the existing vegetation on a site proposed for development, taking into account the environmental elements that shape or influence the structure or makeup of a plant community.” NR § 5-1601(p). 13 As we will discuss in more detail, the Harford County Forest Conservation Program contains provisions for a “waiver” from the retention and protection priorities as established by the Act and the Harford County Forest Conservation Program, in addition to a variance process. That said, the criteria for a “waiver” are the same as the criteria established by DNR for a “variance.” See NR § 5-1611; Code of Maryland Regulations (“COMAR”) 08.19.03.01, model ordinance Article XIV. 5 Harford County Forest Conservation Ordinance to permit the removal of 58 large specimen trees from the property. After the initial forest conservation plan submission, the County’s Development Advisory Committee (the “DAC”) requested revisions to the forest conservation plan, including revisions that would reduce the impact upon specimen trees.14 Thereafter, the Developer worked with the County Department of Planning and Zoning to reduce the impact on the identified specimen trees, including reducing the limits of clearance and disturbance, and realigning the road network to avoid and minimize the impact on the specimen trees identified in the initial forest conservation plan and specimen tree waiver request.

The Developer submitted a revised forest conservation plan that was approved by a letter issued by the Department of Planning and Zoning on December 9, 2019. The approval letter included an approval of not only the Developer’s final forest conservation plan (the “Forest Conservation Plan”), but also the Developer’s request for a specimen tree waiver (the “Waiver”) to permit the removal of 49 specimen trees. In connection with the Waiver, the Department of Planning and Zoning recited the requirements that the Developer must satisfy to obtain a waiver under the Harford County Forest Conservation Program:15 14 As we explain more fully in Part II.D. and note 29 infra, the Harford County Code has established a Development Advisory Committee (“DAC”), which consists of several county agencies that review subdivisions of more than five residential lots and developments composed of institutional and commercial sites. 15 Where an administrative agency is required to make findings of fact, our case law requires that the agency do more than simply recite the criteria under the statute. See, e.g., Bucktail v. Talbot County, 352 Md. 530 , 558–59 (1999) (remanding a matter to the county 6 Denial of the waiver would deprive the property owner’s rights commonly enjoyed by others.

The granting of the waiver would not confer any special privilege on the Owner/Developer, which would be denied to others. The waiver is necessary due to the specific site conditions and not a result of the actions of the owner/developer. The waiver has not arisen from a condition on a neighboring property. The removal of these trees will not adversely affect water quality.

The developer will be required to provide Stormwater Management, Environmental Site Design practices and erosion and sediment control in accordance with the latest version of Harford County’s Stormwater Management ordinance and Maryland Department of Environment (MDE) standards and specification[s] for soil erosion and sediment control and MDE’s enhance[d] best [m]anagement practices for Tier II waters to ensure no reduction or adverse impacts to water quality. Given these specific site conditions, the Director of Planning and Zoning her[e]by grants the waiver to impact forty-nine (49) specimen trees identified with this Forest Conservation Plan. In addition to approving the Waiver, the approval letter set forth the required conditions associated with the proposed development of the property under the Harford County Forest Conservation Program, including: the requirements that the Developer post a surety bond to assure the planting and survival of the required on-site reforestation, identify buffers and forest retention areas on final plats, and protect existing forest edges prior to and throughout construction. On January 8, 2020, the Chesapeake Bay Foundation, Inc. (“CBF”) and several residents who live adjacent to the Developer’s site filed a petition for judicial review of the Forest Conservation Plan in the Harford County Circuit Court.

The petition was filed pursuant to Maryland Rule 7-202 and Section 268-28.A. of the Harford County Code, council to make meaningful findings of fact where the county body, acting in an adjudicative role, recited statutory criteria and made boilerplate resolutions that precluded judicial review). We express no opinion concerning the sufficiency of the factual findings associated with the Waiver. Therefore, that issue may be raised in connection with any subsequent proceedings. 7 which provides that “[a]ny interested person whose property is effected [sic] by any decision of the Director of Planning, may within 30 calendar days after the filing of such decision, appeal to the Circuit Court for Harford County.” While the appeal of the Forest Conservation Plan was pending in the circuit court, the Developer continued with the County’s development review process. The Developer submitted a preliminary plan application to the County, which proposed to consolidate multiple existing parcels of record and to create a public road and nine lots.

The preliminary plan was approved on January 17, 2020. Thereafter, the Developer submitted site plan applications for three lots depicting the proposed buildings, structures, and uses for each lot. The site plan for Lot 1 was approved on February 19, 2020. The site plan for Lots 2 and 3 were both approved on February 24, 2020.

CBF and the adjacent property owners did not appeal the preliminary plan approval or the approval of the site plans for the three lots. B. Circuit Court Proceedings On March 27, 2020, the Developer and the Harford County Department of Planning and Zoning filed a motion to dismiss the petition for judicial review.16 The Developer argued that CBF’s petition was improper under Maryland case law because only final decisions of an administrative agency are subject to judicial review. The Developer 16 The Developer and the Harford County Department of Planning and Zoning are both parties to this matter. Their interests are aligned, and they have filed joint briefs in the Court of Special Appeals and in this Court.

For ease of reference, we will refer to Developer and the County Department of Planning and Zoning collectively as the “Developer.” 8 contended that the approval of the Forest Conservation Plan is not a final decision under Maryland law, and therefore, the appeal was premature. In its opposition to the motion to dismiss, CBF agreed that only final decisions may be appealed but argued that the approval of the Forest Conservation Plan was a final decision. After a hearing, on August 19, 2020, the circuit court judge entered a memorandum opinion and order granting the motion to dismiss, concluding that the Forest Conservation Plan is not a final decision because it is only one component of the preliminary and final site plan. The court reasoned that once the Forest Conservation Plan was approved, “there was more for the agency to do” regarding the overall site plan application and, therefore, there was no final decision until the final site plan was approved.

C. Court of Special Appeals Proceedings After CBF filed an appeal to the Court of Special Appeals, the intermediate appellate court affirmed the circuit court’s decision. Chesapeake Bay Foundation, Inc. v. CREG Westport I, LLC, 252 Md. App. 470 (2021). The Court of Special Appeals also concluded “that preliminary plan approval, or site plan approval, are ‘final’ actions of the Department [of Planning and Zoning], which only then trigger judicial review of any of the components of the approved plans” under the applicable provisions of the Harford County Charter and the County Code. 252 Md. App. at 485. The Court of Special Appeals stated: The mere approval of the [Forest Conservation Plan] during the process leaves ‘more for the agency to do,’ such as assessing the impact that the development will have on local traffic, storm water management, surveys and the creation of plats, public hearings, etc. The goal, and therefore the final stage in the process, is for the developer to commence construction. 9 That may only occur after the site plan is ultimately approved.

Consequently, to allow judicial review of [a forest conservation plan] in the middle of the zoning approval process would amount to the type of ‘piecemeal’ consideration of administrative decisions which the Court of Appeals has strongly disfavored. Id. (citations omitted). CBF filed a petition for a writ of certiorari, which we granted to consider the following questions, which we have rephrased:17 1.

Do the provisions of the Forest Conservation Act require an opportunity for the direct appeal of an approved forest conservation plan? 2. Does the approval of a forest conservation plan constitute a final agency action subject to judicial review? For the reasons that follow, we answer both of these question in the affirmative and reverse the judgment of the Court of Special Appeals. II Discussion The questions presented here involve questions of law, which we consider de novo.

Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 384 (2010). The issues presented in this case are relatively straightforward. The parties agree that under principles of 17 The questions presented in the petition for writ of certiorari are: 1) Whether the Forest Conservation Act requires an opportunity for direct appeal or judicial review of an approved forest conservation plan independent of any subsequent subdivision or zoning approvals? 2) Whether the approval of a forest conservation plan required by state law is a final agency action subject to judicial review? 10 administrative law, which we discuss in more detail below, only a final decision of an administrative agency is appealable. The sole issue in dispute is whether the approval of a forest conservation plan is a final decision, and therefore, subject to a petition for judicial review pursuant to the appeal process established by the Harford County Code.

We hold that it is. To explain our holding, it is useful to review the Maryland Forest Conservation Act, the regulations promulgated by the Department of Natural Resources that implement the Act, and the provisions of the Harford County Code applicable to a forest conservation plan. A. The Forest Conservation Act The Forest Conservation Act is a comprehensive effort to stem the loss of the State’s forest cover.18 The Act establishes afforestation,19 conservation, and reforestation20 requirements for subdivision plans and projects that require a grading or sediment control permit involving areas of 40,000 square feet or more. NR § 5-1602(a).

The requirements 18 The Maryland Forest Conservation Act, NR § 5-1601, et seq. (the “Act”) defines “forest” generally as a “biological community dominated by trees and other woody plants covering a land area of 10,000 square feet or greater.” NR § 5-1601(k)(1). “Afforestation” is defined as “the establishment of a tree cover on an area from 19 which it has always or very long been absent, or the planting of open areas which are not presently in forest cover.” NR § 5-1601(b). 20 “Reforestation” is defined, in part, as “the creation of a biological community dominated by trees and other woody plants containing at least 100 trees per acre with at least 50% of those trees having the potential of attaining a 2 inch or greater diameter measured at 4.5 feet above the ground, within 7 years.” NR § 5-1601(gg)(1). The term includes “landscaping of areas under an approved landscaping plan that establishes a forest that is at least 35 feet wide and covering 2,500 square feet of area.” NR § 5-1601(gg)(2). 11 of the Act apply to units of the State government, local government, and private entities. NR §§ 5-1601(dd), 5-1602(a).21 Under the Act, a person seeking a permit for a subdivision or a grading or sediment control permit on areas greater than 40,000 square feet must arrange for a licensed forester, licensed landscape architect, or other qualified professional to prepare a forest stand delineation to be used during the preliminary review process to determine the most suitable and practical areas for forest conservation.

NR § 5-1604(a)–(b)(1). Following approval of the forest stand delineation, the applicant must arrange for a qualified professional to prepare a proposed forest conservation plan. NR § 5-1605(b). Among other requirements, the forest conservation plan must include a map of the site, an anticipated construction timetable relating to the site and conservation requirements, an afforestation or reforestation plan, and a two-year management agreement addressing how the areas designated for afforestation or reforestation will be maintained.

NR § 5-1605(c). The applicant must obtain approval of the forest conservation plan from the forest conservation authority for that jurisdiction before a subdivision plan or grading or sediment control permit may be approved or issued. NR § 5-1608(b). Afforestation and reforestation requirements are established by formulas set forth in the Act.

NR § 5-1606. The Act also provides a preferred sequence for afforestation and reforestation, and priorities for certain trees, shrubs, and plants, as well as specified areas 21 The Act creates some exemptions, which are set forth in NR § 5-1602(b)(1)–(13), such as routine maintenance of public utility rights-of-way, certain agricultural activities, and a county that maintains 200,000 acres or more of its land area in forest cover. 12 that should be protected or left in an undisturbed condition, unless the applicant has demonstrated, to the satisfaction of DNR or the local authority, that reasonable efforts have been made to protect them and that the plan cannot be reasonably altered. NR § 5-1607. Where afforestation and reforestation cannot reasonably be accomplished either on-site or off-site, the Act establishes a fee that may be paid in lieu of the planting requirement, which is paid into the State Forest Conservation Fund or a local forest conservation fund.

NR § 5-1610. The Act also establishes the timing of an applicant’s submission of a forest conservation plan in the development approval process. NR § 5-1608(a) provides that “[t]he review of the forest conservation plan shall be concurrent with the review process of the State or local authority for the subdivision plan, or the grading or sediment control permit, whichever may be submitted first.” In addition, an applicant shall have an approved forest conservation plan that complies with the Act before “the approval of the final subdivision plan, or the issuance of the grading or sediment control permit by the State or local authority.” NR § 5-1608(b). DNR and local governments that have adopted their own programs are authorized to enforce the Act through administrative proceedings, such as revoking approval of a forest conservation plan and issuing a stop work order.

NR § 5-1612(a)–(c). If a person fails to comply with the Act, related regulations promulgated by DNR, a forest conservation plan, or an associated management agreement, DNR or a local authority are authorized to assess a monetary penalty. NR § 5-1608(c)(1). Additionally, DNR and the local authority may bring civil actions for injunctive relief or to impose a civil monetary 13 penalty for ongoing violations.

NR § 5-1612(d). If the local authority proceeds with enforcement authority, it is required to give notice to DNR within 15 days after the commencement of the enforcement authority. NR § 5-1612(e). B. Implementation of the Act by DNR and Local Jurisdictions Having Planning and Zoning Authority The Act became effective on July 1, 1991. 1991 Md. Laws, Ch. 255.

DNR was directed to adopt regulations, including a technical guidance manual and a model ordinance by December 31, 1991. NR § 5-1609(a).22 Thereafter, all units of government with planning and zoning approval were required to submit a proposed forest conservation program to DNR by April 30, 1992. NR § 5-1603(a)(2). Following DNR’s approval, each unit was directed to formally adopt the program and submit its adopted program to the Department by December 31, 1992.

NR § 5-1603(c)(1). Local forest conservation programs were required to “meet[] or [be] more stringent than the requirements and 22 The Act requires that DNR adopt regulations to implement the Act, and to create requirements and standards, establishing, among other things: 1. Standards of performance required in forest stand delineations and forest conservation plans including the submittal process; 2. Criteria for local forest conservation programs; and 3.

Implementation processes for the Department’s administration in the absence of a local conservation program. NR § 5-1609(a)(1)(i). 14 standards” of the Act. Id. The Act requires that local forest conservation programs be approved by DNR, and include the following: (i) A policy document and all applicable new and amended local ordinances relating to the implementation of the regulated activities, exemptions, the review, approval and appeal processes, incentives, legal instruments for protection, enforcement program, and penalties; and (ii) A technical manual which outlines the submittal requirements for forest stand delineations, required information for the approval of a forest conservation plan, specific forest conservation criteria and protection techniques.

NR § 5-1603(c)(2). The Act also authorizes DNR and local authorities to create a variance process—which enables an applicant to avoid the strict application of a requirement in the Act—in certain circumstances where the applicant can demonstrate that the applicant can satisfy certain criteria. NR § 5-1611.23 23 NR § 5-1611 states: (a) In the preparation of the State or local conservation programs, the State and local authorities shall provide for the granting of variances to the requirements of this subtitle, where owing to the special features of a site or other circumstances, implementation of this subtitle would result in unwarranted hardship to an applicant. (b) Variance procedures adopted under this section shall: (1) Be designed in a manner consistent with the spirit and intent of this subtitle; and (2) Assure that the granting of a variance will not adversely affect water quality. 15 For municipalities with planning and zoning authority, the Act permits a municipality, with the concurrence of DNR and the county in which it is located, to assign its obligations under the Act to the county.

NR § 5-1603(a)(4). Additionally, if a local government fails to adopt an approved forest conservation program, DNR must develop a state-level process to review forest conservation plans for that jurisdiction. NR §§ 5- 1603(d), 5-1603(e)(2)(ii)(3). DNR has continuing review authority over local programs and is directed to conduct biennial reviews of each local jurisdiction’s program.

NR § 5- 1603(e).24 In addition to the biennial reviews, on or before September 30 each year, DNR is required to submit, to two legislative committees, a statewide report compiled from local authorities’ reports to DNR regarding certain aspects of the forest conservation programs 24 In accordance with DNR’s statutory obligation to conduct a biennial review of local jurisdictions’ forest conservation plans, as well as DNR’s annual reporting requirements in NR § 5-1613, the Department publishes data related to the local jurisdictions’ forest conservation plans. As reflected in the State Forest Conservation Program Annual Report for FY19, https://perma.cc/3EM2-78TY, many municipalities with planning and zoning authority have either assigned their forest conservation compliance obligations to the county government in which the municipality is located or have elected for DNR to conduct “State program review” of forest conservation plans that are submitted in their jurisdiction. For example, the City of Taneytown has assigned responsibility for forest conservation requirements to Carroll County. See City of Taneytown Code, § 116-1 (stating that “[t]he Carroll County Forest Conservation Ordinance . . . shall be the official Forest Conservation Ordinance for the City of Taneytown, Maryland and such an ordinance is hereby adopted by reference.

The official of the county shall be the inspector and/or enforcement official for the city for this purpose.”). Other jurisdictions, such as the Town of Ridgely, in Caroline County, have elected for DNR to conduct its forest conservation review. See Ridgely Town Code § 98- 2 (stating that “[t]he Department of Natural Resources (DNR) . . . is hereby designated to perform the requirements of [NR] § 5-1603(c)(3)(i) and (ii) . . . and to administer the Ridgely Forest Conservation Program, the cost of all of which shall be borne by the DNR”). 16 throughout the State.25 NR § 5-1613. Since the Act’s enactment, DNR has compiled five-, ten-, and fifteen-year reviews that analyze the forest cover in Maryland.

In late 1991, DNR promulgated regulations and a model ordinance, which became effective on January 20, 1992. 19: 1 Md. Reg. 24 (1992); see Code of Maryland Regulations 25 Specifically, NR § 5-1613 states: On or before September 30 of each year, the Department shall submit, subject to § 2-1257 of the State Government Article, to the Senate Education, Health, and Environmental Affairs Committee and the House Environment and Transportation Committee a statewide report, compiled from local authorities’ reports to the Department, on: (1) The number, location, and type of projects subject to the provisions of this subtitle; (2) The amount and location of acres cleared, conserved, and planted, including any areas which utilize forest mitigation bank credits or areas located in the 100 year floodplain, in connection with a development project; (3) The amount of reforestation and afforestation fees and noncompliance penalties collected and expended, the number of acres for which the fees were collected, and the number of acres reforested, afforested, or conserved using the fees; (4) The costs of implementing the forest conservation program; (5) The size, location, and protection of any local forest mitigation banks which are created under a local or State program; (6) The number, location, and type of violations and type of enforcement activity conducted in accordance with this subtitle; and (7) To the extent practicable, the size and location of all conserved and planted forest areas, submitted in an electronic geographic information system or computer aided design format. 17 (“COMAR”) 08.19.01–.06.26 Notably as it pertains to the issue presented in this case, the regulations require that the local authority demonstrate that the “hearing and appeal procedures” associated with the review and approval of forest stand delineations and forest conservation plans are “consistent with the local appellate review procedures.” COMAR 08.19.02.02.C(3).27 The model ordinance contains provisions for the establishment of a variance from the requirements of a local forest conservation program or the requirements of NR §§ 5- 1601–5-1612 if the person requesting the variance can demonstrate that enforcement of the 26 DNR’s regulations implementing the Forest Conservation Act are codified in COMAR, Title 8, Subtitle 19. Chapter 1 of that subtitle contains general provisions, including definitions of terms, a description of the application of the Act, and exemptions. Chapter 2 addresses DNR’s review and approval of local programs. Chapter 3 provides a model ordinance for local jurisdictions’ implementation of the Act.

Chapter 4 establishes the State Forest Conservation Program. Chapter 5 governs forest conservation maintenance and management agreements. Chapter 6 outlines DNR’s training and enforcement responsibilities and sets forth the professional qualifications necessary to prepare a forest stand delineation or forest conservation plan. 27 COMAR 08.19.02.02(C) states: Under the administrative review, approval, and appeal procedures, the local authority shall demonstrate that: (1) The review process for the forest stand delineation, simplified forest delineation plan, or substitute plan […] and the forest conservation plan is consistent with the local development review process; (2) Approval of a subdivision, project plan, or issuance of either a grading or sediment control permit is contingent upon the approval of a forest conservation plan; and (3) The hearing and appeal procedures are consistent with the local appellate review procedures. 18 Act or local program would result in an unwarranted hardship. COMAR 08.19.03.01, Article XIV.

The model ordinance specifies that a variance under the Forest Conservation Act is “not a zoning variance” and establishes criteria that the applicant must satisfy to obtain a variance.28 COMAR 08.19.03.01.2.63B. To grant a variance, the department with approving authority “shall make findings that the applicant has met the requirements” for obtaining a variance before granting it. COMAR 08.19.03.01.14.1C. The model ordinance further establishes the “right and authority of the [DNR] to initiate or intervene in an administrative, judicial, or other original proceeding or appeal in the State concerning an approval of a variance under [NR] §§ 5-1601–5-1612” or a local forest conservation program.

COMAR 08.19.03.01.14.1E. 28 Specifically, under the model ordinance, an applicant for a variance shall: (1) Describe the special conditions peculiar to the particular property which would cause the unwarranted hardship; (2) Describe how enforcement of these rules will deprive the applicant of rights commonly enjoyed by others in similar areas; (3) Verify that the granting of the variance will not confer on the applicant a special privilege that would be denied to other applicants; (4) Verify that the variance request is not based on conditions or circumstances which are the result of actions by the applicant; (5) Verify that the variance request does not arise from a condition relating to land or building use, either permitted or nonconforming, on a neighboring property; and (6) Verify that the granting of a variance will not adversely affect water quality. 19 C. Harford County’s Forest Conservation Program In July 1991, the Harford County Council enacted legislation to comply with the requirements of the newly enacted Act. The Harford County Forest Conservation Program is codified in Article VI, §§ 267-34 through 267-48 of the Harford County Code. The Harford County Forest Conservation Program incorporates the requirements of the Act and is generally consistent with the model ordinance, with some relatively minor revisions to conform to the locality. For example, Harford County has designated the Department of Planning and Zoning as the agency responsible for approving forest conservation plans for the County, see HCC § 267-35.A., and has designated the Director of Planning as the individual who may grant waivers from the priority retention and protection provisions under the Harford County Forest Conservation Program, see HCC § 267-39.F. Consistent with the provisions of the Act and the COMAR requirements, a forest conservation plan must be submitted with the first of the following submissions for the site: a preliminary subdivision plan; an application for a grading permit; or an application for a building permit.

HCC § 267-37.B.(1). Within 45 calendar days after receipt of a forest conservation plan, the Department “shall notify the applicant whether the [f]orest [c]onservation [p]lan is complete and approved.” HCC § 267-37.C. “If the Department fails to notify the applicant within 45 calendar days, the plan shall be treated as complete and approved.” Id. The Department may require “additional information or extend the deadline for an addition [sic] 15 calendar days under extenuating circumstances.” Id. “At the request of the applicant, the Department may extend the deadline under extenuating circumstances.” Id. “The Department’s review of a [f]orest [c]onservation [p]lan shall be 20 concurrent with the review of the subdivision plan, grading permit application or building permit application associated with the project.” HCC § 267-37.D. If a forest conservation plan is required, “a person may not cut, clear or grade on the development site: (1) Until the Department has approved the plan; or (2) In violation of the approved plan.” HCC § 267-37.G. Consistent with the provisions of the Act and the COMAR regulations, certain “trees, shrubs, plants and specific areas shall be considered priorities for retention and protection and shall be left in an undisturbed condition,” including trees having a diameter breast height (“DBH”) of “[t]hirty inches or more.” HCC § 267-39.D. The Director of Planning has the authority to grant a waiver from “Subsection D” if the applicant has demonstrated to the satisfaction of the Department of Planning and Zoning that enforcement would result in an unwarranted hardship. HCC § 267-39.F. The applicant shall: (1) Describe the special conditions peculiar to the particular property which would cause the unwarranted hardship; (2) Describe how enforcement of these rules will deprive the applicant of rights commonly enjoyed by others in similar areas; (3) Verify that the granting of the waiver will not confer on the applicant a special privilege that would be denied to other applicants; (4) Verify that the waiver request is not based on conditions or circumstances which are the result of actions by the applicant; (5) Verify that the waiver request is not based on conditions relating to land or building use, either permitted or nonconforming, on a neighboring property; and 21 (6) Verify that the granting of a variance will not adversely affect water quality. § 267-39.F. The Department of Planning and Zoning is required to give notice of the request for a waiver to DNR within 15 days of receipt of the request.

HCC § 267-39.G. As reflected above, a developer may receive approval of a forest conservation plan in 45 days. Once a forest conservation plan is approved, the developer may then obtain preliminary plan approval. See HCC § 268-19.C.(11) (stating that if a forest conservation plan is required, “the preliminary plan shall not be approved until the forest conservation plan has been approved by the Department of Planning and Zoning[]”). In addition, a forest conservation plan may not change once it is approved.

See HCC § 267-37.E.(3) (stating that the Department of Planning and Zoning may revoke an approved Forest Conservation Plan if it finds that “changes in the development or in the condition of the site necessitate the preparation of a new or amended development plan”). D. Harford County Development Process Generally At the preliminary plan and site plan approval stages, the developer is required to make additional submittals, including stormwater management plans, a traffic impact analysis, a landscaping/lighting/buffer plan, and development details such as impervious surface and building coverage percentages, setbacks, and proposed uses of structures, as well as other information and documentation required under the subdivision regulations. Subdivisions of more than five residential lots and developments of institutional and commercial sites must be reviewed by the DAC, which consists of several county agencies. 22 HCC § 268-19.C.29 In addition to the DAC, the plan is also provided to various state agencies30 and the U.S. Army Corps of Engineers, for comment, when appropriate. DAC meetings are open to the public and include an opportunity for comments by attending citizens.

HCC § 268-19.C.(2). After the review process is concluded, the Department of Planning and Zoning may approve a preliminary plan, which is valid for three years, and which may be extended. HCC § 268-19.C.(12). A one-time, two-year extension of the preliminary plan may be granted provided that the developer meets certain conditions.

HCC § 268-19.C.(13). With respect to appeals, the appeal provisions contained in the County’s subdivision regulations provide, in pertinent part, that “[a]ny interested person whose property is effected [sic] by any decision of the Director of Planning may within 30 calendar days after the filing of such decision, appeal to the Circuit Court for Harford County.” HCC § 268- 28.A.31 29 Membership in the DAC “shall include,” but is not limited to, the following: the Department of Planning and Zoning, the Department of Public Works, the Health Department, the Department of Parks and Recreation, the Soil Conservation District, the Sheriff’s Office, Harford County Public Schools, and Emergency Operations. HCC § 268- 19.C.(1)(a). 30 The state agencies that receive a copy of the plans submitted to the DAC include, but are not limited, to the State Highway Administration, MDE, and DNR. HCC § 268- 19.C.(1)(b). 31 Although the appeal provisions set forth in HCC § 268-28.A refer to the right to appeal any decision of the “Director of Planning,” there appears to be no dispute that the right to appeal also applies to final decisions of the Department of Planning and Zoning that arise under the Harford County subdivision regulations.

The parties dispute whether the decision here is a “final” decision. There is no dispute that a final decision of the Department is subject to the appeal provisions contained in the Harford County Code. 23 The question here is whether the Department of Planning and Zoning’s approval of the Forest Conservation Plan, and the Director’s related approval of the associated Waiver, is a “final decision” that is subject to a right of appeal that is independent from any right of appeal of the final approval of a site plan or subdivision plat. E. Approval of a Forest Conservation Plan is a Final Agency Decision Subject to Judicial Review “It is a basic tenet of administrative law that ‘[w]here