Cinque v. Montgomery County Planning Board

KENNEY, J. The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, appellee, 1 approved a preliminary plan for a subdivision, which was opposed by individual property owners and various organizations, including the Peach Tree Ridge Civic Association, the Boyds Civic Association, and the Audubon Naturalist Society. Representatives of those groups (“the opponents” or “appellants”) petitioned for judicial review in the Circuit Court for Montgomery County, which upheld the approval of the preliminary plan. On appeal to this Court, they present two issues: 1. Whether the Planning Board erred in granting Appellee Jamison’s request for reconsideration on June 24, 2004, in violation of the Planning Board’s Rules of Procedure and the McKinney test[J 2.

Whether the Planning Board erred in approving the Thompson Farm Preliminary Plan on November 4, 2004, based on a mere change of mind, in violation of the McKinney test[.] For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY This case concerns a parcel of real property in Clarksburg in Montgomery County referred to as the Thompson Farm. As described by the Planning Board: The Subject Property consists of a total of 434.73 acres and is located within the Ten Mile Creek Area of the ³⁵³ Clarksburg Master Plan. The property is bordered by Slidell Road to the west and is intersected by West Old Baltimore Road in its southern section.

The Subject Property is located west of 1-270, Ten Mile Creek and the downtown Clarksburg Town Center.... The Clarksburg Master Plan describes the land within the Ten Mile Creek Area, but west of Ten Mile Creek, as “the most critical in terms of helping to preserve the larger Agricultural Reserve.” 2 Clarksburg Master Plan 87 (1994), available at http://www.mc-mncppc.org/community/plan_areas/ rural_area/master_plans/clarksburg/toc_clark.shtm. The Clarksburg Master Plan further provides: The existing land use pattern is dominated by very large parcels and has traditionally been a farming community. Although the suitability of soils for farming varies from poor to good, the importance of this area to County-wide agricul- ■ tural preservation is significant because it forms a critical transition from the 1-270 Corridor to the very productive farmland of western Montgomery County.

For this reason, this Plan recommends approximately 1,800 acres west of Ten Mile Creek be added to the County’s Agricultural Reserve area. Id. By contrast, with respect to the area east of Ten Mile Creek, the Plan provides: “Because this area is separated from the larger Agricultural Reserve by Ten Mile Creek, agricultural preservation is not the primary objective.” Id. at 89. Thompson Farm is zoned “rural density transfer” (“RDT”).

The purpose of the RDT zone is to ensure the availability of land for agricultural activities: ³⁵⁴ The intent of this zone is to promote agriculture as the primary land use in sections of the County designated for agricultural preservation in the General Plan and the Functional Master Plan for Preservation of Agriculture and Rural Open Space. This is to be accomplished by providing large areas of generally contiguous properties suitable for agricultural and related uses and permitting the transfer of development rights from properties in this zone to properties in designated receiving areas. Agriculture is the preferred use in the Rural Density Transfer zone. All agricultural operations are permitted at any time, including the operation of farm machinery.

No agricultural use can be subject to restriction on the grounds that it interferes with other uses permitted in the zone, but uses that are not exclusively agricultural in nature are subject to the regulations prescribed in this division 59-C-9 and in division 59-G-2, “Special Exceptions-Standards and Requirements.” Montgomery County Zoning Ordinance § 59-C-9.23. Nevertheless, “one-family detached” dwellings are permitted within the RDT zone. Id. at § 59-C-9.3. A minimum lot size of 40,000 square feet is required, but “[o]nly one one-family dwelling unit per 25 acres is permitted.” Id. at § 59-C-9.41.

Section 50.34(a) of the Montgomery County Code provides that “[e]very proposed subdivision or resubdivision shall be submitted to the [Planning] [B]oard for tentative or conditional approval in the form of a preliminary plan prior to the submission of a subdivision record plat.” Once a preliminary plan is submitted to the Board, the Board may approve it, disapprove it, or approve it with conditions. Id. at § 50.35(f). In June 1997, George Spiegle submitted a preliminary plan review application for a subdivision of the Thompson Farm. The proposed subdivision was for seven lots on 176.529 acres.

The Maryland-National Capital Park and Planning Commission Development Review Committee (“the Review Committee”) recommended approval of the plan, but Spiegle did not ³⁵⁵ pursue the project further. After Spiegle’s death, the property was sold. In October 2001, the new owner, Charles H. Jamison, Inc. (“the applicant”), 3 submitted a preliminary plan for a subdivision of the Thompson Farm. The plan included seventeen lots on 434.73 acres.

The Review Committee again recommended approval of the preliminary plan. The Montgomery County Planning Board (“the Board”) held a public hearing on June 27, 2002. At that hearing, representatives of civic organizations and individual property owners opposing the plan argued principally that there would be a shortage of water in the area and that the subdivision would be out of step with the area’s agricultural character. The Board approved the preliminary plan with the then Chairman Holmes, Vice Chairman Perdue, and Commissioner Robinson voting to approve; Commissioner Wellington voted against approval. 4 In an opinion released on December 3, 2002, the Board explained its decision to approve the preliminary plan.

The opinion addressed the major concerns of the opponents of the subdivision, including the argument that the subdivision would be out of character with the area. Concluding that the subdivision complied with all applicable zoning regulations, the Board approved the preliminary plan with conditions. Opponents of the subdivision requested reconsideration of the Board decision on December 13, 2002. They argued that the preliminary plan is inconsistent with the Clarksburg Master Plan, pointing out that the language the Board had quoted from the Master Plan relates to the area east of Ten Mile Creek, and that the proposed subdivision is west of Ten Mile Creek.

The opponents contended: [T]he Opinion contains the following quote from the Clarksburg Master Plan, “Because this area is separated from the larger Agricultural Reserve by Ten Mile Creek, agricultural ³⁵⁶ preservation is not the primary objective. The key land use objective in this area is to provide housing and job opportunities while mitigating water quality impacts in Ten Mile Creek.” Petitioners are baffled as to the relevance of this passage. This quote refers to the land east of Ten Mile Creek. The Thompson Farm is west of Ten Mile Creek, not east.

Thus, this passage is entirely irrelevant and cannot serve as a basis for the Board’s approval of the Preliminary Plan. The Clarksburg Master Plan draws a clear and powerful distinction between land east of Ten Mile Creek and west of Ten Mile Creek. The most significant distinction is that the land use pattern west of Ten Mile Creek is supportive of agricultural preservation. As stated in the Master Plan concerning land west of Ten Mile Creek, “Alternative rural land use patterns were considered in this area but rejected as being inconsistent with farmland preservation objectives.” (Citations omitted.) The opponents further contended that the planned subdivision would violate the Master Plan in other respects, including the development of agricultural land and the destruction of natural resources.

The opponents also highlighted a proposed amendment to the Rustic Roads Plan that would designate Slidell Road, which is adjacent to the proposed subdivision, a rustic road. 5 The opponents contended: “Slidell Road’s recommended inclusion into the Rustic Road Program is based on ³⁵⁷ its natural and agricultural features. Yet, the Board’s approval of the Preliminary Plan to construct a cluster development to the east of Slidell Road will degrade these very same features.” 6 On May 1, 2003, the Board voted to reconsider its approval. A second hearing on the preliminary plan was held December 11, 2003. At the hearing, the Review Committee asserted that the preliminary plan satisfies the requirements for development within the zone irrespective of the Board’s reference to the incorrect language from the Master Plan, and supported approval of the application.

Counsel for the applicant argued that the applicant had never claimed that the property is located east of Ten Mile Creek. He contended that the Board’s quoting of an inapplicable portion of the Master Plan was not relevant to whether the preliminary plan satisfied all requirements for approval. Counsel for the opponents argued that the Master Plan was meant to protect the environmental and agricultural nature of the area at issue. He contended that the planned subdivision would not be in accord with the Master Plan.

Other opponents of the subdivision also spoke against the preliminary plan. By a vote of three to two, the Board denied the application for preliminary plan approval. The then Chairman Berlage, Commissioner Wellington, and Commissioner Robinson voted to disapprove the application; Vice Chair Perdue and Commissioner Bryant voted against the motion for disapproval. In explaining his decision to second the motion for disapproval, Commissioner Robinson stated: The last time this was before us I supported the development and I am going to change my vote.

And the reason I am going to change my vote is based on the ... master plan language.... Now if you look at what the Council did here, ... it is very clear to me that the Council down-zoned this land for the purposes of protecting the agricultural re ³⁵⁸ serve— [Bjecause the master plan specifically refers to this as an important transitional area, in a pattern west of Ten Mile Creek which the County specifically down-zoned and agreeing with the staff that we need to have more aggressive clustering to preserve the open space and the agricultural reserve, I am going to vote against the staff proposal as inconsistent with the ... Clarksburg Master Plan, and as inconsistent with the Rustic Roads Plan, when those two documents are read together. Commissioner Wellington, who had moved for disapproval of the application, explained: [I moved to disapprove] in particular because the master plan deals specifically with this area and distinguishes between east and west.

And so if you approve this, you really, there is no distinction between the other side, the east just like you are treating this side. So, I think that the master plan made that distinction for a purpose____ In March 2004, the applicant requested reconsideration of the Board’s disapproval of the preliminary plan. The applicant argued that the Board had provided inadequate notice prior to revocation of the approval, and that the opponents had not propounded sufficient bases for revocation of the approval. The Board granted the request for reconsideration, and a third hearing on the preliminary plan took place November 4, 2004.

The Review Committee again urged approval of the application. Counsel for the applicant argued that the Board may grant reconsideration only if there was “a substantial change in conditions” or the prior decision “was a product of fraud, mistake or inadvertence.” Counsel for the applicant asserted that nothing had changed since the Board’s original approval of the application, and therefore the reconsideration of that approval and subsequent disapproval of the application were illegal. As to the reference to the inapplicable language from the Master Plan in the Board’s initial opinion, counsel called it “essentially a clerical or administrative mistake,” which did not warrant reconsideration of the Board’s approval. ³⁵⁹ The opponents argued that the Board’s reconsideration of its disapproval of the application was inappropriate. Counsel for the opponents further argued that the planned subdivision would violate the Master Plan “because it does not do enough to preserve land for agricultural uses, which is the primary goal within the agricultural reserve and the RDT zone.” The Board voted to approve the preliminary plan.

Vice Chair Perdue, Commissioner Bryant, and Commissioner Robinson voted for approval; Chairman Berlage and Commissioner Wellington voted against approval. Commissioner Robinson explained that he had changed his vote after determining that the preliminary plan does not violate the Master Plan. In an opinion dated April 22, 2005, the Board concluded the preliminary plan satisfied all applicable zoning regulations, and was in accordance with the Master Plan. It further explained that Commissioner Robinson had determined that the decision to disapprove the preliminary plan “was wrong as a matter of law.” The opponents petitioned for judicial review in the Circuit Court for Montgomery County.

Jamison 427 Land Co. intervened as a respondent. A hearing was held February 22, 2006. The circuit court concluded that it did not have the authority to review the Board’s reconsideration of its prior decision. The court further found, alternatively, that the Board had properly granted reconsideration and approved the preliminary plan.

The court’s order to that effect was entered on the docket March 24, 2006. The opponents noted this timely appeal on April 24, 2006. STANDARD OF REVIEW “In this appeal, the role of this court is essentially to repeat the task of the circuit court; that is, to be certain that the circuit court did not err in its review.” Mortimer v. Howard Research & Dev. Corp., 83 Md.App. 432, 442 , 575 A.2d 750 (1990).

Thus, we review the decision of the administrative agency, not the decision of the circuit court. Abbey v. Univ. of Maryland, 126 Md.App. 46, 53 , 727 A.2d 406 (1999). ³⁶⁰ We “recognize two standards of review of a decision of a zoning board: one for the board’s conclusions of law and another for the board’s findings of fact or conclusions of mixed questions of law and fact.” Eastern Outdoor Advert. Co. v. Mayor and City Council of Baltimore, 128 Md.App. 494, 514 , 739 A.2d 854 (1999). As to the Board’s factual findings, we must determine “ ‘whether the issue before the administrative body is “fairly debatable,” that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.’ ” Stansbury v. Jones, 372 Md. 172,183 , 812 A.2d 312 (2002) (quoting White v. North, 356 Md. 31, 44 , 736 A.2d 1072 (1999); quoting in turn Sembly v. County Bd. of Appeals, 269 Md. 177, 182 , 304 A.2d 814 (1973)).

In reviewing the board’s legal conclusions, however, “our review is expansive, and we owe no deference.” Bennett v. Zelinsky, 163 Md.App. 292, 299 , 878 A.2d 670 (2005). “ ‘Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.’ ” Stansbury, 372 Md. at 184 , 812 A.2d 312 (quoting Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998)). In reviewing for legal error, we “ ‘must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law.’ ” Eastern Outdoor Adver. Co., 128 Md. App. at 514 , 739 A.2d 854 (quoting Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 652 , 701 A.2d 879 (1997)). DISCUSSION Appellants contend that the Board’s grant of the applicant’s request for reconsideration was improper, and that the subsequent approval of the preliminary plan was therefore illegal.

We note at the outset that the grant of a reconsideration request is interlocutory in nature and is not directly appealable. Prince George’s County v. Bahrami, 33 Md.App. 644, 646-47 , 365 A.2d 343 (1976). On appeal from a final ³⁶¹ agency decision, however, the appellate court may review the grant of reconsideration. Id. at 647 , 365 A.2d 343 .

We turn, then, to whether the Board’s grant of reconsideration was proper. Maryland, along with the federal courts and the majority of state courts that have addressed the issue, recognizes the inherent authority of agencies to reconsider their own quasi-judicial decisions. See, e.g., Calvert County Planning Comm’n v. Howlin Realty Mgmt., Inc., 364 Md. 301, 325 , 772 A.2d 1209 (2001); Redding v. Bd. of County Comm’rs for Prince George’s County, 263 Md. 94, 111 , 282 A.2d 136 (1971); Schultze v. Montgomery County Planning Bd., 230 Md. 76, 81 , 185 A.2d 502 (1962); Miles v. McKinney, 174 Md. 551, 564 , 199 A. 540 (1938); Daniel Bress, Note, Administrative Reconsideration, 91 Va. L.Rev. 1737, 1769 (2005). “An agency ... not otherwise constrained, may reconsider an action previously taken and come to a different conclusion upon a showing that the original action was the product of fraud, surprise, mistake, or inadvertence, or that some new or different factual situation exists that justifies the different conclusion.” Howlin Realty Mgmt., 364 Md. at 325 , 772 A.2d 1209 .

The inherent power of reconsideration recognized in the case law applies in the absence of a rule or statute providing for reconsideration. Id.; Schultze, 230 Md. at 81 , 185 A.2d 502 . Where a statute or rule exists, it governs as to the circumstances under which the agency may grant reconsideration. See Kay Const.

Co. v. County Council for Montgomery County, 227 Md. 479, 485 , 177 A.2d 694 (1962) (applying an ordinance