Cremins v. COMMISSIONERS OF WASHINGTON COUNTY

BARBERA, J. In Washington County, an application to rezone a parcel of property to a “Planned Unit Development,” or “PUD,” must pass through a five-step review and approval process. See Washington County Zoning Ordinance § 16.5. 1 This appeal ⁴³⁰ involves step two of that process, “Zoning Approval.” At that step, a party seeking re-zoning of his or her property to a PUD must obtain approval of the re-zoning from the County Commissioners of Washington County (“County Commissioners”), after a joint public hearing before the Washington County Planning Commission (“Planning Commission”) and the County Commissioners. Appellants, James Cremins, et al., 2 reside in Foxleigh Meadows, a single-family residential subdivision located adjacent to the property that is the subject of this appeal. They appeal from a judgment in the Circuit Court for Washington County, rendered in favor of the County Commissioners and Paul N. Crampton, Jr. (collectively, “appellees”).

That judgment affirmed the County Commissioners’ decision to re-zone certain property to the PUD zoning classification. Appellants present four questions for our review, which we have re-ordered: I. In a piecemeal rezoning hearing, may facts presented by unsworn witnesses be considered in determining whether the applicant’s case is supported by substantial evidence?

II

Is remand inappropriate in the absence of substantial evidence of adequacy of the adjacent roadway and of general compatibility?

III

In Washington County, may a planned unit development floating zone be established in the absence of an affirmative finding by the rezoning authority that the proposed site is located adjacent to an adequate roadway, as required by the applicable zoning ordinance?

IV

In Washington County, should the reasonably probable of fruition requirement or a concurrency standard be applied in the floating zone compatibility analysis? For the reasons that follow, we affirm. ⁴³¹ PACTS AND LEGAL PROCEEDINGS On November 7, 2002, Mr. Crampton filed an “Ordinance Amendment Application” (“the application”) with the Planning Commission. Mr. Crampton proposed to reclassify a 97.27 acre parcel of land (“the property”) from its “A” Agricultural zoning designation to the “A” Agricultural Planned Unit Development (“PUD”) zone. 3 The property, also referred to as “Emerald Pointe PUD,” is bounded on the west by Marsh Pike and on the east by a large parcel of private property that is used for agricultural purposes. To the north is Longmeadow Road and on the property’s southern border is Maryland Route 60.

During the Concept Plan Review step of the PUD rezoning process, see § 16.5(a)(1), several local administrative agencies submitted reports and recommendations to the Planning Commission concerning the application. None of these agencies had objections to the application at that stage of the review and approval process. 4 The Planning Commission also received letters from neighboring property owners in support of and opposed to the application. On January 13, 2003, a joint public hearing on the application was held before the Planning Commission and the County Commissioners. See § 16.5(a)(2).

At the outset of the hearing, at which no oaths were administered, a staff member of the Planning Commission discussed the “Staff Report and Analysis” (the “Report”) that was conducted in response to the application. The Report included enrollment figures for the public schools serving the property, and a statement that the ⁴³² Maryland State Highway Administration (“MSHA”) had requested that access to the property be limited to Marsh Pike. Attached to the Report was a “Preliminary Consultation” (“the Consultation”), prepared by the Planning Commission. The Consultation reflected that Mr. Crampton and several officials, including members of the Washington County Engineering Department (the “Engineering Department”) and the Washington County Planning Department, had met to discuss, among other things, the traffic conditions along Marsh Pike.

The Consultation noted that the Engineering Department had decided that Mr. Crampton and the Washington County officials would have to reach an agreement on “the liability and maintenance of [a] proposed median” at any entrance to the property on Marsh Pike. The Engineering Department also stated that the “Traffic Impact Study” wodld have to be revised. The Planning Commission staff member stated at the joint hearing that Mr. Crampton proposed that the property be developed to include 89 semi-detached or duplex lots, 88 single family lots, 92 townhouse lots, a residential retirement center, a community center, and 9,000 square feet of commercial development. The staff member also stated that the Engineering Department and MSHA had requested updated traffic impact studies.

Mr. Crampton appeared at the joint hearing. He discussed the application and the development proposal in detail, noting in his statement that 35 to 40 units would be added to the development each year, and that the entire project would take 10 to 15 years to complete. An engineer with Fox & Associates also appeared in support of the application. He discussed the application and stated that a company called “Street Traffic Group” had prepared a traffic study for the property.

He reported that the traffic study indicates “that the existing system could be supported by the surrounding area network and the critical intersections will continue to operate at acceptable levels of service with the full development of the PUD provided that ⁴³³ some improvements are made.” 5 The Engineering Department and MSHA had a copy of the study and were reviewing it, and had several preliminary comments regarding traffic along Marsh Pike, including that Marsh Pike needed “widening” and other improvements at intersections along Marsh Pike. The engineer did not know whether the Engineering Department and MSHA had made formal comments on the traffic study as of the date of the hearing. The engineer also stated that the property would “have a minimal impact on [public] schools.” More than 25 members of the public, several of whom are appellants, spoke in opposition to the application. The protestants generally asserted that the existing public schools did not have the capacity to handle the influx of children the development of the PUD would produce, the PUD was not compatible with neighboring properties, and the development would adversely affect traffic along Marsh Pike.

The chairperson of the Planning Commission stated that the “file” would remain open for 10 days to allow additional comments to be submitted to the County Commissioners before they decided whether to approve the application. On March 3, 2003, the Planning Commission voted three-to-one to recommend that the County Commissioners deny the application. In a letter dated the following day, the Planning Commission informed the County Commissioners of its recommendation. The Planning Commission stated that it “based this recommendation on” the traffic study submitted at the January 23, 2003 hearing, and on “concerns that the residential development density proposed for the [property] was not consistent with the residential density in adjacent developments.” The Planning Commission also stated its “opinion that the road infrastructure in the immediate vicinity of the [property] was deficient.]” ⁴³⁴ On March 13, 2003, the County Commissioners held a regular meeting to consider and vote on the application.

The County Commissioners voted unanimously to accept “the findings of fact as set forth in the report from the County Attorney.” 6 The County Commissioners also voted three-to-one to approve the rezoning of the property to PUD. Pertinent to this appeal, the County Commissioners made the following findings of fact: Education Facilities The proposed residential uses within the PUD are single-family, semi-detached units, and townhouses. The single-family and semi-detached units would be exempt from the Article V School section of the Adequate Public Facilities Ordinance because this property is situated within the Urban Growth Area. Townhouses, however, would not be exempt.

The subject property is located within the school districts of Paramount Elementary, Northern Middle, and North Hagerstown High School. * * =!= Present and future transportation patterns in the area. The subject property ... has approximately 3,080 feet of frontage along Marsh Pike. The Washington County Highway Plan classifies this section of Marsh Pike as a Major Collector, which requires a minimum distance of 300 feet between all new access points and 40 feet of future dedicated right of way from centerline. This classification’s major function is to provide for intra-county travel....

The property has approximately 1,082 feet of frontage along Leitersburg Pike, an Intermediate Arterial.... One access point onto Leitersburg Pike from Emerald Pointe has been proposed, however, the [MSHA] has requested that all access points to the development be limited to Marsh Pike. ⁴³⁵ The ... Engineering Department and the [MSHA] made numerous comments regarding the subject property’s impact on surrounding roadways and internal street design .... * * * The Planning Commission opined that the road infrastructure in the immediate vicinity of the subject property was deficient based upon a traffic study submitted by [Mr. Crampton] and that the residential development density proposed for the subject property was not consistent with the residential density in adjacent developments. For the reasons set forth elsewhere in these findings of fact, [the County Commissioners] respectfully declinef] to adopt this opinion. * * * Effect of the PUD on community infrastructure.

The adoption of the Adequate Public Facilities Ordinance (APFO) in 1990 has taken on a supportive role that was previously th,e sole responsibility of this item in the zoning ordinance during the rezoning stage when considering the deliberation of PUD cases. Due to this change, it would appear that now the Planning Commission and the [County Commissio'nersJ would only have to address infrastructure issues at the zoning stage that would appear to be highly unsolvable. A major concern of neighborhood residents who testified at the public hearing and who sent in correspondence during the comment period dealt with the PUD’s effect on the area road network as a result of increased traffic. Terrence McGee, Chief Engineer, County Engineering Department, did not take exception to the rezoning and responded to this application by stating, “all issues under our jurisdiction associated with this request can be adequately addressed through the site plan approval process.” One of the major comments is that the existing Traffic Impact ⁴³⁶ Study will need to be revised to reflect the new plan.

To date, the [ ] Engineering Department has no final comments with regard to the updated traffic study.... Another item that generated a significant amount of testimony at the public hearing was the issue of the PUD’s impact on the neighborhood schools of Northern Middle, North Hagerstown High and, in particular, Paramount Elementary. ... [Data pertaining to school capacity and projected student population is omitted.] .... Discarding the units proposed for the retirement center, there would be 267 units subjected to APFO testing under the new policies. This would equate to 54 students or a total of 108 students projected from this development or in the pipeline.

Since the PUD is pi*ojected for a build out over ten years, it is reasonable to assume that not all 54 students would come on line in the same year. With an available capacity of 81 students, it would seem that projected student population from this PUD as well as approved developments would not generate an inadequate condition in the near future.... The PUD article of the zoning ordinance was adopted prior to the adoption of the APFO. Within the context of the PUD article ..., references are made regarding impact on infrastructure (sections 16.0 and 16.7(a)).

Neither of these references says that public school capacity must be adequate in order for a PUD zoning to be approved. However, the impact on the public schools must be given consideration when determining the appropriateness of the PUD and the proposed density. The APFO, on the other hand, allows the [County Commissioners] and the Planning Commission to take control of school adequacy issues associated with new development.... .... During the Development Plan review stages, [Mr. Crampton] should be investigating the adequacy of the schools and prepare a course of action if an adequacy problem is anticipated.

The Planning Commission shall determine if the schools are adequate during the Final ⁴³⁷ Development Plan review stage. As specified under [] section 16.6(d)2ii, agreements for responsibility between County and developer for providing on-site and off-site improvements[ ] shall be developed as part of the Final Development Plan. This would include addressing the developer’s responsibility for school adequacy if he intends to continue with the project. If any of the schools are determined to be inadequate, and the developer does not wish to make them so, the final plat or site plan cannot be approved.

If approval of the plat does not occur within six months, the PUD zoning designation would be lost and the property would revert back to its original, underlying classification. (Emphasis added.) Appellants filed a petition for judicial review of the County Commissioners’ decision, in the Circuit Court for Washington County. Appellees participated in the petition. After a hearing, the court issued an opinion and order affirming the County Commissioners’ decision. 7 Appellants noted this timely appeal.

We shall add facts as they become pertinent to our discussion. STANDARD OF REVIEW When we review the decision of an administrative agency, our role is the same as that of the circuit court. Capital Commercial Props., Inc. v. Montgomery County Planning Bd., 158 Md.App. 88, 95 , 854 A.2d 283 (2004). We may not substitute our judgment for that of the agency.

Id. We have said that, “[i]n zoning matters, the zoning agency is considered to be the expert in the assessment of the evidence, not the court.” Bowman Group v. Moser, 112 Md.App. 694, 699 , 686 A.2d 643 (1996), cert. denied, 344 Md. 568 , 688 A.2d 446 (1997). See also White v. Spring, 109 Md.App. 692, 699 , 675 A.2d 1023 , cert. denied, 343 Md. 680 , 684 A.2d 455 (1996). ⁴³⁸ We have said that, in all zoning cases, including floating zone cases, the reviewing court should not “ ‘zone or rezone, or [] substitute its judgment for that of the zoning authority if the action of the zoning authority is based on substantial evidence and the issue is thus fairly debatable.’ ” Montgomery County v. Greater Colesville Citizens’ Ass’n, 70 Md.App. 374, 381 , 521 A.2d 770 (1987) (quoting Northampton Corp. v. Prince George’s County, 273 Md. 93, 101 , 327 A.2d 774 (1974)). See also Stansbury v. Jones, 372 Md. 172, 182 , 812 A.2d 312 (2002). “The basic reason for the fairly debatable standard is that zoning matters are, first of all, legislative functions and, absent arbitrary and capricious actions, are presumptively correct, if based upon substantial evidence, even if substantial evidence to the contrary exists.” White, 109 Md.App. at 699 , 675 A.2d 1023 .

There is substantial evidence to support the zoning agency’s conclusion if “reasoning minds could reasonably reach [the] conclusion from facts in the record[.]” Stansbury, 372 Md. at 182-83 , 812 A.2d 312 . Evidence is “substantial” “if there is ‘a little more than a “scintilla of evidence.” ’” Greater Colesville, 70 Md.App. at 382 , 521 A.2d 770 (citation omitted). See also Lucas v. People’s Counsel for Baltimore County, 147 Md.App. 209, 225 , 807 A.2d 1176 (2002). The standard for judicial review of an administrative agency’s legal rulings requires the reviewing court to “ ‘determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Maryland Aviation Admin, v. Noland, 386 Md. 556 , 573-74 n. 3, 873 A.2d 1145 (2005) (citations omitted).

In making this determination, the reviewing court “ ‘must review the agency’s decision in the light most favorable to it,”’ and the decision of the agency is deemed “ ‘prima facie correct and presumed valid[.]’ ” Id. (citations omitted.) In addition, “the agency’s interpretations and applications of [the] statutory or regulatory provisions” that it administers should be afforded considerable weight, and “ ‘the expertise of the agency in its own field should be respected.’ ” Id. (citations omitted.) ⁴³⁹ DISCUSSION The PUD re-zoning process in Washington County We are asked in this appeal to decide whether the County Commissioners properly interpreted the Zoning Ordinance for Washington County and the APFO. We begin with a discussion of the County Commissioners’ authority to re-zone property to the PUD classification, and the process through which an application for re-zoning must pass.

The authority of the County Commissioners to reclassify the zoning of property in Washington County is derived from Maryland Code (1957, 2008 Repl.Vol.), Article 66B (“Article 66B”). See Bd. of County Comm’rs of Washington County v. H. Manny Holtz, Inc., 60 Md.App. 133 , 135 n. 1, 481 A.2d 513 (1984) (noting that Article 66B authorizes Washington County to create a Board of Zoning Appeals with limited authority, and recognizing that “[applications for reclassification [of land] must be made directly to the Board of County Commissioners, which alone is authorized to approve them”). Article 66B, § 10.01(a) specifically authorizes the County Commissioners “to enact[] ordinances or laws providing for or requiring,” inter alia, PUDs and floating zones. Section 27.1 of the zoning ordinance authorizes an individual to petition the County Commissioners for a re-zoning of property.

The provisions specifically governing the rezoning of land in Washington County to a PUD or floating zone are located in Article 16 of the zoning ordinance. Section 16.0, entitled “Purpose,” provides: The intent of these PUD regulations is to permit a greater degree of flexibility and more creativity in the design and development of residential areas than is possible under conventional zoning standards. The purpose is also to promote a more economical and efficient use of the land while providing for a harmonious variety of housing choices, a more varied level of community amenities, and the promotion of adequate open space and scenic attractiveness. The PUD is a floating zone that may be established in any of the Districts specified in Section 16.4.

The change or ⁴⁴⁰ mistake rule does not apply to the PUD process, but the Planning Commission and the Board of County Commissioners, in the deliberation of a PUD application, shall establish findings of fact that consider, at a minimum, the purpose of the PUD District, the applicable policies of the adopted Comprehensive Plan for the County, the compatibility of the proposed PUD with neighboring properties, and the effect of the PUD on community infrastructure. Section 16.5 outlines a “multi-step” review and approval process for a PUD re-zoning application. Subsection (a) of that section provides, in pertinent part: Design and Development Schedule: It is the intent of this Ordinance that the PUD not be a speculative device. The Concept Plan as submitted by the applicant shall reflect the actual development to be designed and constructed within a reasonable time frame.

Each phase of the design and development review process must occur within specified periods. If the applicant fails to submit his plans, or if construction does not commence, as specified by this Ordinance, the zoning of the site shall automatically revert to its previous classification. If the applicant abandons the plans for the PUD at any time prior to the start of construction before the automatic reversion date and desires to proceed with development permitted under the previous zoning, he may do so by submitting notification to the Planning Commission. Such notification shall constitute official withdrawal of the applicant’s plans for the PUD and shall permit reversion of the previous zoning classification without the necessity of the rezoning process. 1.

Concept Plan Review: The purpose of the Concept Plan Review is to provide an exchange of information between the developer and the Planning Commission. The intent is that the developer provide the [Planning] Commission with general information for the layout, density, specific uses and the like. The [Planning] ⁴⁴¹ Commission, in turn, will provide the developer with corresponding response. 2. Zoning Approval: Following the Concept Plan Review, a joint public hearing with the Board of County Commissioners and the Planning Commission will be scheduled.

Within 120 days after the public hearing, the Board of County Commissioners, after receiving a recommendation from the Planning Commission, shall render a decision on the PUD application. Zoning approval constitutes tentative approval of density and design features as shown on the Concept Plan. Minor changes in concept design may subsequently be approved by the Planning Commission without an additional public hearing. (Footnote omitted.) The remaining three steps of the review and approval process require approval of the Planning Commission.

See § 16.5(a)3. through 5. Two other provisions of the zoning ordinance concern traffic. Section 16.4(b), which is one of the provisions we are asked to interpret in this appeal, provides that, as a general requirement, a PUD “shall be located ... adjacent to adequate roadway facilities capable of serving existing traffic and the future traffic generated by the uses in the PUD.” Section 16.7(i), titled “Traffic Circulation and Parking,” provides: 1. Existing and planned streets and highways shall be of sufficient capacity to serve existing traffic and all new traffic when fully developed. 2.

The capacity of existing streets and highways serving a PUD shall be considered by the [Planning] Commission in determining density. Density resulting in traffic capacity being exceeded on streets and highways shall not be permitted. In 1990, Washington County approved an APFO pursuant to the authority granted it by Article 66B, § 10.01. See APFO Article XII.

Section 1.2 of the APFO provides: ⁴⁴² It is the purpose of the [County Commissioners] that public facilities and services needed to support new development shall be available concurrently with the impacts of such new developments. In meeting this purpose, public facility and service availability shall be deemed sufficient if the public facilities and services for new development are phased, or the new development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that new development, are available concurrently with the impacts of the new development. Article 66B, § 4.04(b)(1) provides that a decision of the County Commissioners to rezone a portion of land “may not become effective until 10 days after at least one public hearing on the matter, at which parties in interest and citizens shall have an opportunity to be heard.” Section 27.2 of the zoning ordinance requires, inter alia, that the County Commissioners “hold at least one public hearing” before making a “map amendment.” Following the public hearing, the County Commissioners must “make findings of fact in each specific case” involving an application for re-zoning approval to a PUD. § 27.3. Section 27.3 requires that the County Commissioners make findings of fact involving, inter alia, “the following matters”: (a) The report and recommendations of the [Planning Commission].

(b) Population change in the area of the proposed change. (c) Availability of public facilities in the area. (d) Present and future transportation patterns in the area. (e) Compatibility with existing and proposed development of the area including indication of neighboring sites identified by the Washington County Historic Sites Survey and subsequent revisions or updates.

(f) The relationship of the proposed change to the Adopted Plan For the County, Development Analysis Plan Map and Policies. ⁴⁴³ (i) Whether there has been a convincing demonstration that the proposed rezoning would be appropriate and logical for the subject property. Issues 1 and 2: The joint public hearing in this case and the appropriateness of a remand Appellants contend that the County Commissioners’ decision cannot properly be sustained because, at the January 13, 2003 joint public hearing, all of the “testimony” presented in favor of the application was “unsworn.” It follows, appellants argue, that the evidence presented at the joint public hearing “may not be considered” in determining whether the County Commissioners’ decision is supported by substantial, competent evidence. Appellees counter that appellants did not object to the lack of an oath given at the joint public hearing; therefore, the argument is waived. Appellees further assert that, should we reach the merits of the argument, there is no requirement in statute, the County Code, or case law that “testimony” at a public hearing like the one in this case be given under oath.

Appellees are correct that appellants, many of whom spoke at the joint public hearing without having taken an oath, did not object or otherwise raise the issue at the hearing. Appellants, moreover, remained silent on this subject during the 10-day period in which the “file” remained open for the County Commissioners to receive written materials. “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 proceedings,” may not thereafter complain about the error at a judicial proceeding. Cicala v. Disability Review Bd. for Prince George’s County, 288 Md. 254, 261-62 , 418 A.2d 205 (1980). See also id. at 262-63, 418 A.2d 205 (stating that failure of appellant’s attorney to object at a hearing before the Disabili ⁴⁴⁴ ty Review Board that the Board did not have a report that it was required to obtain and consider, cannot thereafter properly raise the issue at the judicial review proceeding and therefore cannot properly raise the issue before the appellate court); Capital Commercial, 158 Md.App. at 102 , 854 A.2d 283 (holding that because the appellant did not present to the administrative agency the argument it raised before this Court, the issue was not preserved, and holding that, even if preserved, the argument failed); Brzowski v. Maryland Home Improvement Comm’n, 114 Md.App. 615 , 691 A.2d 699 (holding that, despite the merits of the argument the appellant raised on appeal, the issue was not preserved for judicial review because it was not raised before the administrative agency), cert. denied, 346 Md. 238 , 695 A.2d 1227 (1997); Templeton v. County Council of Prince George’s County, 21 Md.App. 636, 645 , 321 A.2d 778 (1974) (holding that, because the appellant did not present a question before a hearing examiner or District Council, the question was “not properly before this Court”); cf. Anne Arundel County v. Nes, 163 Md.App. 515, 535-36 , 881 A.2d 1161 (2005), (holding that the appellees’ argument was waived because they had “expressly abandoned” the argument before the administrative agency).

We have previously addressed the question of waiver of a challenge to the use of unsworn statements by a witness, albeit in the context of a contested custody case. See Schaefer v. Cusack, 124 Md.App. 288 , 722 A.2d 73 (1998). In that case, the complaint was raised on appeal that the chancellor had erroneously relied in its custody decision on the testimony of the child’s headmistress, after having decided that it was not necessary to have her put under oath. Id. at 312-13 , 722 A.2d 73 .

We said, in response to the claim: The attorney for [the cross-appellant] did not insist [that the witness be sworn]. She testified. There was no objection to her testimony. The attorney for [the cross-appellant] did not move to strike the testimony. [The cross-appellant]’s attorney had the opportunity to cross-examine Ms. Gentry.

Rule 2-517 states in pertinent part: ⁴⁴⁵ An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as a grounds for objection become apparent. Otherwise, the objection is waived. Professor Lynn McLain in her excellent work on Maryland Evidence, Section 603.1 at 26 (1987) states: “Objection to a witness’ testifying who has not made an oath or affirmation will be considered waived unless made before the testimony or, if the witness is not on the stand as soon as it should be apparent that the witness is testifying.” We deem the point waived. Id. at 313 , 722 A.2d 73 .

We can conceive of no reason why the same waiver rule ought not apply to the present case. The failure of appellants to object to the witnesses’ not being sworn at the joint hearing constitutes a waiver of appellants’ right to complain now. 8 Even if we discount the unsworn witness testimony, however, there was substantial evidence before the County Commissioners to make the issues raised in this appeal fairly debatable. Indeed, the only ground upon which appellants rely in their argument that the County Commissioners lacked ⁴⁴⁶ substantial evidence to support their findings is that “[r]emoving unsworn commentary and argument of counsel from the body of evidence before the [County Commissioners] leaves the decision of the [County Commissioners] unsupported.” We disagree. The County Commissioners had before them numerous documents.

Included among those documents were Mr. Crampton’s application; the minutes of the Planning Commission’s meeting during which the Planning Commission voted against approving the application; numerous letters from individuals opposed to the re-zoning application; zoning maps; a plat of the property; the Report of the Planning Commission’s staff; a deed to the property; and recommendation reports of several agencies including the Engineering Department, Health Department, MSHA, and the Washington County Water & Sewer Department. Appellants make no argument that those documents do not constitute substantial evidence upon which the County Commissioners could render their decision. Appellants argue only that the documentary evidence came from Mr. Crampton, the Planning Commission, and appellants, yet the County Commissioners did not require any of them to face cross-examination before submitting those documents. Appellants maintain that all of this documentary evidence should have been placed before the