Fallston Meadows Community Ass'n v. Board of Child Care

KENNEY, Judge. On March 1, 1996, the Director of Harford County’s Department of Planning and Zoning accepted and approved a preliminary subdivision/site plan submitted by appellee, The Board of Child Care of the Baltimore Annual Conference of the United Methodist Church. On March 25, 1996, appellants, Fallston Meadows Community Association and its president, Salvatore Glorioso, appealed the decision of the Director of Planning and Zoning to the Harford County Board of Appeals. The case was submitted to a hearing examiner, and, after two days of hearings, the hearing examiner recommended that the case be dismissed for lack of subject matter jurisdiction.

This decision was subsequently ratified by the Board of Appeals. Appellant filed two appeals in the Circuit Court for Harford County. The first, filed August 19, 1996 and docketed as case 3692-8-42, was a direct appeal from the decision by the Director of Planning and Zoning to approve the site plan submitted by appellees (the “direct appeal”). The second, filed November 8, 1996 and docketed as case 3742-8-92, sought review of the judgment of the Board of Appeals, ratifying the decision of the hearing examiner (the “appeal of the Board’s decision”).

Appellees filed a motion to consolidate the two cases, which was granted on May 19, 1997. Thereafter, on May 28, 1997, the circuit court issued an order affirming the judgment of the Board of Appeals and dismissing the direct appeal as untimely. Appellants noted this appeal, raising three questions, which we have rephrased: ⁶⁸⁶ I. Did the circuit court err when it determined that the Board of Appeals lacked jurisdiction to review the final site plan?

II

Did the circuit court err when it consolidated both appeals?

III

Did the circuit court err when it ruled that the direct-appeal was not timely filed? On cross-appeal, appellee raises two questions, which we have rephrased: I. Was the appeal of the Director of Planning and Zoning’s decision to the Board of Appeals timely filed?

II

Did appellants have standing to appeal the approval of the final site plan? With regard to appellants’ questions I, II, and III, we perceive no error. With regard to appellee’s first question, we agree that appellants’ appeal to the Board of Appeals was not timely filed. We will decline to address appellee’s second question, as it was not adequately raised and decided in the court below. 1 Accordingly, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS In 1991, the Board of Appeals granted appellee special exception approval to build a juvenile group home facility on property it owned in Harford County, Maryland. The Board’s decision to grant appellee special exception approval was challenged by the same appellants as the appellants in the present case, but the decision was affirmed, first, by the. circuit court, and then by this Court in an unreported opinion. Appellee obtained original site plan approval in 1993, and, in January 1996, a preliminary subdivision/site plan (the “Plan”) was submitted to the Department of Planning and Zoning. ⁶⁸⁷ On March 1, 1996, the Plan was approved by Mr. Anthony S. MeClune, Harford County’s Chief of Current Planning, and Ms. Arden Case Holdredge, the Director of Harford County’s Planning and Zoning Department. According to the report accompanying their approval, MeClune and Holdredge acknowledged that the Plan altered the previously approved preliminary/site plan “by slightly modifying the building locations, stormwater management facility, and septic reserve area.” In addition, they noted that the Plan reconfigured the septic reserve area and the forest retention area.

Their report indicated, however, that the revisions were “minor in nature” and did “not alter the intent of the original preliminary/site plan.” Appellants objected to the approval of the Plan, arguing that the revisions contained therein constituted substantial modifications to the earlier preliminary/site plan approval and, thus, pursuant to § 267-52(B) of the Harford County Zoning Code, could be approved only by the Board of Appeals. 2 In a letter dated March 14, 1996, Salvatore Glorioso, President of the Fallston Meadows Community Association, informed Ms. Holdredge, who was both the Director of Planning and Zoning and the County Zoning Administrator, of his intention to appeal the Plan approval and requested information on how to “make this appeal officially.” In a letter dated March 19, 1996, Ms. Holdredge responded to Mr. Glorioso and explained that “[wjhile I acknowledge receipt of your letter, I am unsure of what type of appeal you are seeking at this time. You may wish to consult your attorney and/or the Hearing Examiner’s office regarding the appropriate venue for appeal.” On March 25, 1996, appellants noted an appeal to the Board of Appeals “[t]o request the Zoning Hearing Examiner to compare the revised preliminary site plans with the original site plans.” The hearing examiner subsequently conducted ⁶⁸⁸ hearings on June 10 and 17, 1996. Both appellants and appellee presented several witnesses at the hearings. Appellee argued, inter alia, that appellants did not have standing to contest the Plan approval and that appellants had not filed their appeal of the Board’s decision within the time required by law. 3 In addition, the Department of Planning and Zoning submitted a staff report to the Hearing Examiner signed by McClune and Ms. Holdredge.

This report stated: The Department of Planning and Zoning re-affirms its opinion that the revisions between the plan presented to the Board of Appeals, and the plan that received preliminary approval were minor in nature. The new plan reduced the overall number of buildings and the number of students that will reside on the property.... These revisions should be viewed as positive improvements to the property with less impact on the surrounding community. The reduction in the overall number of buildings will have less adverse impacts [sic] on natural features.

These revisions do not change the intent or use of the property. Furthermore, the approved preliminary plan meets all of the conditions imposed in Board of Appeals Case 4192. The Department does not believe that approval of a site plan is a decision or interpretation by the Zoning Administrator that is subject to appeal to the Board. Further, as neither Applicant is an adjoining property owner, the Department does not believe that Fallston Meadows Community Association, Inc. or Mr. Glorioso have standing to bring this appeal. [Emphasis added.] The hearing examiner issued his decision on July 30, 1996, finding that the Board of Appeals did not have jurisdiction to review the case.

He based his decision, in part, on § 267-7(B) of the Harford County Code, which states: ⁶⁸⁹ The Zoning Administrator or his duly authorized designee shall be vested and charged with the power and duty to: 1. Receive and review complete applications under the provisions of the Part 1 for transmittal and recommendation to the Board. 4 2. Issue zoning certificates pursuant to the provisions of the Part 1 and suspend or revoke any zoning certificate upon violation of any of the provisions of the Part 1 or any approvals granted hereunder subject to the requirements of this Part 1. 3. Conduct inspections and surveys to determine whether a violation of the Part 1 exists. 4.

Seek criminal or civil enforcement for any provision of the Part 1 and take any action on behalf of the county, either at law or in equity, to prevent or abate any violation or potential violation of this Part 1. 5. Render interpretations upon written request of an interested person whose property may be affected as to the applicability of the Part 1 to particular uses and its application to the factual circumstances presented. 6. Design and distribute applications and forms required by the Part 1, requesting information which is pertinent to the requested approval. 7. Perform such duties as are necessary for the proper enforcement and administration of the Part 1.

The Hearing Examiner concluded that nowhere in § 267-7 was the Zoning Administrator given authority to review the subdivision plan approval process. Rather, he noted that “[s]ite plan approval and the review process associated therewith are governed by the Subdivision Regulations promulgated by the Department of Planning and Zoning, which describe in detail the administrative process involved in seeking and obtaining site plan approval.” The hearing examiner deter ⁶⁹⁰ mined that the appropriate process for appellants’ appeal was governed by § 9.01 of the subdivision regulations, which states: Any person, taxpayer, officer, department, board or bureau of the County, aggrieved by any decision of said Planning Commission (now the Department of Planning and Zoning) may within thirty days after the filing of such decision in the office of the Planning Commission appeal to the Circuit Court for Harford County. Upon the hearing of such appeal, the decision of the Planning Commission shall be presumed by the Court to be proper and to best serve the public interest. The burden of proof shall be upon the appellant, or appellants, to show that the decision complained of was against the public interest and that the Planning Commission’s discretion in rendering its decision was not honestly and fairly exercised, or that such decision was arbitrary, or procured by fraud, or unsupported by any substantial evidence, or was unreasonable, or that such decision was beyond the powers of said Planning Commission and was illegal.

The said Court shall have the power to affirm, modify, or reverse in part or in whole any decision appealed from and may remand any case for the entering of a proper order or for further proceedings, as the court shall determine. An appeal may be taken to the Court of Appeals of Maryland from any decision of the Circuit Court for Harford County. After reviewing § 9.01, the hearing examiner concluded: The above appeals process, as recited in the Subdivision regulations, coupled with the absence of any authority for site plan review by the Board in the Zoning Code, leads to the inescapable conclusion that a person aggrieved as a result of the site plan approval process has a right of appeal, not to the Board of Appeals through the Hearing Examiner, but rather, directly to the Circuit Court for Harford County. That this appeal process is the exclusive remedy available to an aggrieved party in regard to plan approval is supported ⁶⁹¹ by the legislative body which provided, in Harford County Code, [Section 267-6(C) ] the following passage: Notwithstanding the provision of this Part 1, any development shall be subject to the provisions of the Subdivision Regulations, and any other activity requiring the issuance of a permit, license, grant or approval shall be subject to the applicable law.

The Board of Appeals, and therefore the Hearing Examiner, does not have jurisdictional authority to entertain the instant appeal; that further, the Applicants’ avenue of relief is provided in Regulation § 9.01 of the Subdivision Regulations. Accordingly, having found jurisdictional authority to hear the appeal lacking, the Hearing Examiner declines to render decisions regarding the substantive issues which are the subject of the appeal. The Hearing Examiner recommends that the instant case be dismissed. The hearing examiner acknowledged that § 267-52(B) of the Harford County Code, supra, appeared to grant the Board continuing jurisdiction over special exception approvals.

The hearing examiner concluded, however, that § 267-52(B) ignores the real process followed in Harford County. There is no case and indeed no code provision which grants the right of final plat approval to the Board. Generally, applicants seeking special exceptions provide, as part of their application, concept plans which, after approval of their special exception, proceed through the process of approval as described in the Subdivision Regulations. Those regulations allow appropriate input from a variety of sources including various agencies of State, Federal, and local government.

As a result of the process, plans that were conceptual in nature during the zoning case, are modified to comply with the recommendations of these various agencies. Adjacent property owners are not prohibited from participation in the process and it appears that the Applicant in ⁶⁹² this case has closely followed the preliminary plan approval process from its beginning to the present. In response to the hearing examiner’s decision, and prior to any action by the Board of Appeals, appellants, on August 19, 1996, filed the direct appeal of the Plan approval to the circuit court. On October 15,19.96, the Board of Appeals unanimously adopted and ratified the decision of the hearing examiner.

On November 8, 1996, appellants filed the appeal of the Board of Appeals’s decision to the circuit court. On November 20, 1996, appellees filed a motion to consolidate the direct appeal and the appeal of the Board’s decision, arguing that both cases involved common questions of fact and law; appellants did not oppose the motion. On February 25, 1997, a hearing was held, and, at the conclusion of the hearing, after remarking that it appeared that the Board of Appeals did, in fact, have jurisdiction to review the Plan approval, the court requested both parties to submit legal memoranda. On May 19, 1997, appellee’s motion to consolidate was granted, and, on May 28, 1997, the circuit court issued an order affirming the judgment of the Board of Appeals and dismissing the direct appeal as untimely.

The court stated: Site plan approval is an administrative function of the Department of Planning and Zoning and its review process is governed by the Subdivision Regulations: Section 267-6(C): Notwithstanding the provisions, of the Part 1 [of the Zoning Code], any development shall be subject to the provisions of the Subdivision Regulations, and any other activity requiring the issuance of a permit, license, grant, or approval shall be subject to the applicable law. In Section 267-4, Definitions, any ‘development’ is defined as ‘the construction, conversion, erection, alteration, relocation, or enlargement of any building or structure, ... and any land disturbance in preparation for any of the above.’ The court went on to conclude: The [appellants] did not appeal to the Board within twenty days of March 1, 1996, from the Zoning Administrator’s ⁶⁹³ Preliminary Site Plan approval, Code Section 267-7(E). I have doubts as to whether this twenty-day rule is applicable to the situation in this case. It is part of Article II of the Zoning Code which deals with Administration and Enforcement.

Whatever the case, any attempted appeal by the [appellants] in this case was to the wrong forum. In Case No. 3742 [the approval of the Board’s decision], they entered what might have been a timely appeal, but in Case No. 3692 [the direct appeal], they filed no appeal either to the Board or the Circuit Court until five and a half months later. Since it is too late for a timely appeal to this Court from the Zoning Administrator’s approval, the March 1, 1996 site plan is now an accomplished fact. DISCUSSION I. As a preliminary matter, appellee asks us to consider whether appellants have standing to challenge the issues presented on appeal.

As indicated, we will decline to address this issue, as it was not decided by the trial court. Md. Rule