Colao v. Maryland-National Capital Park & Planning Commission

MOYLAN, J. On October 9, 2003, the Prince George’s County Planning Board of the Maryland-National Capital Park and Planning Commission (“the Planning Board”) approved a Preliminary Plan of Subdivision for an 86-lot cluster subdivision, along with a variation from the Subdivision Regulations regarding wetlands. 1 The applicant and developer was Cherrywood Development, LLC, one of the appellees in this case. The other appellees are the Planning Board itself and the landowners, Mary E. and Nancy A. Engleman, who had made the initial application. The subject property is a 53.06-acre parcel of land, situated in the R-R (Rural Residential) Zone, located on the south side of Race Track Road at its intersection with Jericho Park Road, north of the City of Bowie. The appellant, Dr. Charles Colao, is a neighboring landowner and protestant against the application.

Following the Board’s approval of the Preliminary Plan, the appellant sought judicial review in the Circuit Court for Prince George’s County. Judge Toni E. Clarke affirmed the Board’s decision and this appeal followed. ¹⁹⁷ Four Environmental Issues The appellant raises four questions for consideration. All four are environmentally related. Two of the four deal with the subject of slopes.

They are: 1. Whether the Planning Board exceeded its powers by approving the application without making the required finding that any disturbed severe slopes were “isolated, small, or otherwise occur[ring] as insignificant knolls”? 2. Whether the Planning Board’s decision was reversible because it failed to articulate the facts it found with respect to “adjacent slopes between 15 and 25 percent with highly erodible soils”? The other two questions deal with wetlands.

They are: 3. Whether the Planning Board’s findings with respect to wetlands impacts in the Patuxent River Primary Management Area (“PMA”) failed to meet the minimum requirements for articulating the facts found and the law applied? 4. Whether the Planning Board’s findings with respect to the variation to allow impacts on isolated wetlands are supported by substantial evidence and are based on a correct premise of law? The Preliminary Scrutiny As to Environmental Protection The application for the Preliminary Plan was submitted on April 4, 2003.

The Planning Board convened a meeting of the Subdivision Review Committee. The purpose of the Review Committee is to give representatives of various agencies, departments, and offices the opportunity to comment on the proposed Preliminary Plan in order to advise the applicant of any issues that may require adjustment. The Review Committee met on April 25, 2003. Prominent among the issues raised were comments from the Environmental Planning Section of the Maryland-National Capital Park and Planning Commission.

Those comments ¹⁹⁸ were reduced to a written Memorandum on April 28, 2003. The Memorandum requested that additional engineering information be submitted dealing with 1) steep slopes and 2) slopes in excess of 15% on highly erodible soils. It also requested more information about 1) impact on the Patuxent River Primary Management Area and 2) impact on wetlands. The Memorandum recommended the elimination of certain proposed disturbances, necessitating a redesign of at least a part of the subdivision proposal.

In response to the Memorandum, the applicant submitted revised plans and designs. In its subsequent comment on the revised plans, the Environmental Planning staff recommended that eight conditions be attached to the Preliminary Plan approval to ensure that the Plan conforms to all statutory requirements. The Planning Board, in turn, conditioned approval of the Preliminary Plan upon the satisfaction of 27 conditions. The applicant agreed to all of the conditions.

The applicant did request, however, a variation permitting disturbances to two small wetlands areas, one comprising .06 of an acre and the other comprising .08 of an acre. The Planning Board, following the recommendation of its staff, approved the variation in the event that the United States Army Corps of Engineers determined that the two impacted areas were isolated and were not a part of the Patuxent River Preservation Area. Standard of Review The issues before us are very fact-intensive. The pertinent inquiry, therefore, is whether there was some “substantial evidence” before the Planning Board to support its decision, to wit, whether the issue was “fairly debatable.” If the question before the Planning Board was thus fairly debatable, the reviewing court (circuit or appellate) will not disturb the ruling of the Planning Board, whichever way it went.

In Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969), the Court of Appeals discoursed on the “fairly debatable” test. If the issue before the administrative body is “fairly debatable”, that is, that its determination involved testimony from ¹⁹⁹ which a reasonable man could come to a different conclusions, the courts will not substitute their judgment for that of the administrative body. (Emphasis supplied). See also Germenko v. Baltimore County Board of Appeals, 257 Md. 706, 711 , 264 A.2d 825, 828 (1970).

This Court similarly explained in Cox v. Prince George’s County, 86 Md.App. 179, 186-87 , 586 A.2d 43 (1991): If the issue is fairly debatable, as shown by the record, the Council’s decision will be affirmed. Prince George’s County v. Meininger, 264 Md. 148, 152 , 285 A.2d 649 (1972); see also, Warner v. Town of Ocean City, 81 Md.App. 176 , 567 A.2d 160 (1989) (no matter how conflicting the evidence or questionable the credibility, the court cannot substitute its judgment). Since administrative agency decisions are pri-ma facie correct and carry a presumption of validity, we must review the Council’s decision in the light most favorable to the Council. Our role is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review.

(Emphasis supplied). See also Mortimer v. Howard Research, 83 Md.App. 432, 441-42 , 575 A.2d 750 (1990); Terrano-va v. Board, 81 Md.App. 1, 9 , 566 A.2d 497 (1989). The ultimate decision on the merits is one that should be made by the administrative agency and not by the reviewing court. The Court of Appeals explained in Snowden v. Mayor and City Council of Baltimore, 224 Md. 443, 448 , 168 A.2d 390 (1961): The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. “The Court may not substitute its judgment on the question of whether the inference drawn is the right one or whether a different inference would be better supported.

The test is reasonableness, not rightness.” (Emphasis supplied). As Judge Hollander pointed out in Department of Human Resources v. Thompson, 103 Md.App. 175, 189 , 652 A.2d 1183 ²⁰⁰ (1995), moreover, the decision of the administrative agency enjoys a presumption of correctness. [T]he decision of an agency is prima facie correct On appeal, the agency decision must be viewed in the light most favorable to the agency. See also, Md. State Police v. Lindsey, 318 Md. 325, 333 , 568 A.2d 29 (1990) (agency decision is presumptively comet and test is whether there is substantial evidence to conclude that a reasoning mind reasonably could have reached the factual conclusion the agency reached). (Emphasis supplied).

And see Board of Education v. Payn-ter, 303 Md. 22, 35-36 , 491 A.2d 1186 (1985); Bulluck v. Pelham Wood Apartments, 283 Md. 505, 511-13 , 390 A.2d 1119 (1978). With those guidelines firmly in mind, we turn to the case at hand. Tenuous Preservation, At Best Across the Board Let us make clear at the outset that we are keenly sympathetic to the complaint by the appellees that all of the issues now raised by the appellant have probably not been adequately preserved for appellate review. The Planning Board held a lengthy hearing on the Preliminary Plan on September 11, 2003.

Numerous interested parties, including numerous protestants, testified. The transcript of that hearing runs to 150 pages. On October 9, 2003, the Planning Board filed a meticulously detailed, 28-page, single-spaced Resolution, approving the Preliminary Plan and supporting that approval with extensive findings of fact on every conceivable issue raised at the hearing or suggested by the authorizing statutes. The appellant’s present concerns about disturbing 1) wetlands and 2) severe slopes were not issues raised at the hearing.

We have pored over every line of the 150-page transcript and can attest that the matters that commanded attention at the hearing were 1) the traffic flow along Race Track Road, including concerns about lowering the speed limit and improving the roadbed; 2) the accessibility of ambulance and other medical services to the planned community; 3) the ²⁰¹ likely impact of additional population on school facilities; 4) the need for sound barriers to shield the new residents from the noise of gunfire at the adjacent Berwyn Rod and Gun Club; and 5) poignantly, the fate of the deer and raccoons now living on the land. One protestant feared that the displaced deer would end up in his own backyard, ravenously hungry; a second feared that the deer and raccoons would have no place to go and would simply die out; a third voiced concern about traffic hazards as the displaced deer crossed Race Track Road. All issues involving environmental protection, by contrast, had earlier been the subject of intense scrutiny by the Subdivision Review Committee. The April 28, 2003, Memorandum of the Environmental Planning Section had generated extensive revision of the appellees’ plans and designs.

The appel-lees’ ultimate satisfaction of the Environmental Planning staff and the Subdivision Review Committee had made these environmental questions, however, virtually faits accompli by the time of the hearing on September 11, 2003. The revisions to the Preliminary Plan made to satisfy the environmental concerns of the Subdivision Review Committee were, moreover, fully known or knowable by all parties at the time of the hearing. The general rule regarding the preservation of issues in administrative cases for judicial review was enunciated by the Court of Appeals in Cicala v. Disability Review Board for Prince George’s County, 288 Md. 254, 261-62 , 418 A.2d 205 (1980): A party who knows or should have known that an administrative agency has committed an error and who, despite an opportunity to do so, fails to object in any way or at any time during the course of the administrative proceeding, may not raise an objection for the first time in a judicial review proceeding. (Emphasis supplied).

Understandably, the commendably detailed Resolution of the Planning Board answered more fully those concerns that ²⁰² had been raised at the hearing and dealt more summarily with other issues that had not been raised. The appellant’s late-in-the-day concern with whether the Planning Board’s Resolution dotted every “i” and crossed every “t” on two theretofore neglected environmental issues strikes us as little more than a case of litigational opportunism. This will not prevent us from looking at the merits of those issues, but it does affect the perspective in which we view them. The heart of the appellant’s first contention about the Planning Board’s resolution of the “severe slope” problem, for instance, is that, although the Planning Board addressed the core of the problem by pointing out that “less than 25 percent of the land having steep slopes is proposed for disturbance,” it neglected to mention that the affected slopes are “isolated, small, or otherwise occur as insignificant knolls.” The contention is not that the affected slopes are, in fact, something other than “isolated, small, or ... insignificant knolls,” but only that the Planning Board, in drafting its Resolution, did not get its abracadabra down pat.

We are not about to remand the ease to the Planning Board because its final examination paper got only an “A minus” instead of an “A plus.” The appellant had only to alert the Planning Board to the problem and the abracadabra would have been letter perfect. This contention is a textbook example of what Meadowridge v. Howard County, 109 Md.App. 410, 421-22 , 675 A.2d 188 (1996), was referring to when it explained the energizing reason behind the preservation requirement. The primary purpose of the rule requiring a party to raise an issue in an administrative proceeding before it can raise that same issue again on appeal is to give the administrative agency the opportunity to decide the issue first; when an appellate court is the first to decide an issue, it deprives the agency of that opportunity. See Bulluck v. Pelham Wood Apartments, 283 Md. 505, 518-19 , 390 A.2d 1119 (1978) (noting that “ fa] reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the ²⁰³ matter, make its ruling, and state the reasons for its action.’ ”) (quoting Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155 , 67 S.Ct. 245 , 91 L.Ed. 136 (1946)).

Cf. State v. Bell, 334 Md. 178, 189 , 638 A.2d 107 (1994) (rule requiring party to raise issue in criminal proceedings before appellate review of that issue may be had is to ensure fairness in case and promote orderly administration of the law; interests of fairness are furthered by requiring attorneys to bring the position of their clients to the attention of the lower court so that the lower court can pass upon, and possibly correct, any errors in the proceedings ). (Emphasis supplied). Because our resolution of this appeal on the merits will reach the same bottom line that a holding of non-preservation would reach, the result will probably be more satisfying and have more finality if it is one reached on the merits.

As we segue into our consideration of the appellant’s first contention, therefore, we will treat the contention as preserved — but just barely so. Cluster Zoning And Isolated, Small, or Insignificant Knolls The salient characteristic of a cluster subdivision on unusual topography is that, although density will not be increased in macrocosm, it may be increased in microcosm, the better to preserve the environmental integrity of the remaining unclustered open space. More cluster here is traded for less cluster over there. Residential units will be huddled, as it were, on the lower slopes of the Mount Everest Estates so that the peak may remain inviolate.

Norman Williams, Jr., 2 American Planning Law (1987 Rev.), Ch. 47, “Cluster Zoning,” explains the concept. Cluster zoning is a technique that allows the size and width of individual lots to be reduced provided that an area equivalent to the total of the areas saved from individual lots is pooled and retained, as common open space. The advantages include a better use of building sites, relief from ²⁰⁴ the monotony of continuous development, and lower subdivision building costs because of the need for fewer paved streets and other utilities. One problem that can occur with cluster zoning is the designation of truly unusual areas such as swamps as common open space.

On the other hand, this is one way of preserving wetlands. (Emphasis supplied). Section 24-137(a) of the Prince George’s County Code speaks to the purpose of a cluster subdivision. (a) Purpose.

The purpose of duster development is to permit a procedure for development which will result in improved living environments; promote more economic subdivision layout; encourage a variety of designs of dwellings; encourage ingenuity and originality in total subdivision layout and individual site and building design; encourage compatibility with historic resources; preserve open space to serve recreational, scenic, and public service purposes; and other purposes related thereto, within the densities established for the duster net tract area. (Emphasis supplied). Section 24-137(g) then deals with the criteria for approval of a plan for cluster development generally and with what to do about severe slopes specifically. In approving a proposal, the Planning Board shall find that the following criteria have been met, as applicable to . the particular plat or plan under consideration: (9) Not more than one-fourth (1/4-) of any land having slopes greater than twenty-five percent (25%) will be removed or altered, and then only when such slopes are isolated, small, or otherwise occur as insignificant knolls, so that the design of the development or cluster open space will not be adversely affected.

(Emphasis supplied). Section 5 of the Planning Board’s Resolution approving the Preliminary Plan consisted of four pages of findings under the heading of “Cluster Findings.” The Board first made its collective and overall finding. ²⁰⁵ In general, the design for the proposed, duster subdivision meets and exceeds the purposes and criteria for approval, of cluster developments in the R-R Zone found in Subtitles 27-Zoning and 2k-Subdivision of the Prince George’s County Code. (Emphasis supplied). It then proceeded to address, one by one, each of the required findings spelled out by § 24-137(g), stating first the Code provision and then the Board’s specific finding.

It is the ninth of these sub-findings that concerns us here. Not more than one-fourth (1/4) of any of the land having slopes greater than twenty five percent (25%) will be removed or altered, and then only when the slopes are isolated, small, or otherwise occur as insignificant knolls, so that the design of the development or cluster open space will not be adversely affected. Comment: Less than 25 percent of the land, area having steep slopes is proposed for disturbance. (Emphasis supplied).

The appellant, a stern taskmaster, pounces on the laconic thinness of that response. The Board’s sentence contains no finding that the slopes to be disturbed were isolated, were small, or were insignificant knolls, and it sets forth no fact which would support such a conclusion. The Board also did not address the relationship between the disturbances and the design of the development or open space. In short, the Board did not apply the conditions in, Criterion 9.

The Board exceeded, its powers by approving the plan without addressing the criterion in its entirety and without making the required, findings. The Board,’s approval of the Preliminary Plan should be vacated because the Board, la,deed the discretion to disregard, the conditions in Cri,terion 9. (Emphasis supplied). The appellant, however, uses tunnel vision in isolating a single sentence, one that adequately deals with the primary ²⁰⁶ condition it must respond to but neglects to mention a secondary condition.

The Planning Board had already found, in § 5 of the Resolution, that the Preliminary Plan satisfied all of the criteria for approval spelled out by § 24-137. In addition to that, § 4 of the Board’s Resolution, based on the Technical Staff Report, had also made pertinent findings with respect to slopes greater than 25%. It found that of the total tract area of 53.06 acres, the area of “slopes greater than 25% outside [the] floodplain” consisted of only 2.81 acres. It further found that, of that 2.81 acres, the only area to be disturbed consisted of 0.70 acres.

The very smallness of the fractional area of the entire tract consisting of such slopes and the even more minute smallness of the fractional area to be disturbed support a permissive inference that the slopes to be disturbed were, indeed, small. The isolated nature of the slopes to be disturbed was, moreover, visually apparent on the maps that accompanied and were a part of the Preliminary Plan. The maps graphically depicted the smallness and the isolation of the pertinent slopes in a way that it is difficult for a verbal text to convey. The maps and drawings were, moreover, an integral part of what was before the Planning Board.

The primary function of the Planning Board was to approve a set of maps and drawings. The outcome of this case did not hinge on the minuscule issue of a couple of slopes, and it is to distort reality to make it the central issue of this appeal. There was no “significant knoll” casting its shadow over this determination. The developers were not about to turn the bulldozers loose on Mount Rushmore. 15% Slopes With Highly Erodible Soils The theme of slopes, albeit more moderate slopes, recurs in the appellant’s second contention.

On this occasion, we no longer deal with “slopes of 25% or greater” but with “slopes of 15% or greater” but “with highly erodible soils.” The contention seems to be (it is not all that clear) that the Planning Board did not accurately delineate the boundaries of ²⁰⁷ the Patuxent River Primary Management Area (the “PMA”) because it made no findings with respect to slopes of 15% or greater with highly erodible soils. The contention is murky as to the significance of that failure to have made findings. At times the argument seems to suggest that the Planning Board must make findings for the sake of making findings. The Board’s failure to make findings about the presence of slopes between 15 and 25% containing highly erodible soils fails to meet the minimum requirements for articulating the facts the Board found.

The Board’s failure to articulate findings about slopes exceeding 15% containing high erodible soils requires this Court to vacate the approval of the Preliminary Plan. (Emphasis supplied). At the very end of the argument, however, one can infer some relevance with respect to the drawing of the boundaries of the PMA. The Board neither articulated the law nor found the facts necessary to its finding that the Preliminary Plan accurately depicted all of the areas within the PMA.

The appellant now claims (he did not do so at the hearing) that “a search of the record would reveal” three examples of slopes exceeding 15% "with highly erodible soils that are not within the PMA as designated in the Preliminary Plan. Simply because a slope is one of 15% or greater and contains highly erodible soil, however, does not mean that it must necessarily be included in the PMA. That the larger tract may include such