Harford County People's Counsel v. BEL AIR REALTY ASSOCIATES LIMITED PARTNERSHIP

RAYMOND G. THIEME, JR., Judge, Ret’d, Specially Assigned. This matter highlights the tension' between the rule of law and the nebulous concept of an agency’s discretion to implement the goals a statute was meant to achieve. The Harford County People’s Counsel appeals the decision of the Circuit Court for Harford County reversing a decision of the Harford County Board of Appeals (Board). In this zoning case, the Board, adopting a decision by a Zoning Hearing Examiner, rejected an interpretation of the deceptively innocuous phrase “directly accessible” by the Harford County development regulations sought by Bel Air Realty Associates Limited Partnership in connection with Bel Air’s intent to develop a subdivision that qualifies for classification of “conventional with open space.” For the reasons that follow, our interpretation of the phrase “directly accessible” necessitates the reversal of the judgment of the circuit court.

INTRODUCTION Bel Air Realty owns a 24.7 acre parcel of land (“Property”) that is located in Harford County and situated just north of the town of Bel Air, near the intersection of Business U.S. Route 1, known as Conowingo Road, and the U.S. Route 1 “Bel Air” bypass. The Property lies adjacent to a development named the “Hickory Overlook” subdivision. Both properties were originally zoned “ORI” (Office, Research, Industrial). On April 18, 1995, a zoning hearing examiner reclassified ²⁴⁹ both projects from “ORI” to “R-3” (residential).

Bel Air Realty, in its efforts to develop the parcel, arranged with the Hickory Overlook developer to use a main road in the latter subdivision, Overlook Way, to access Business Route 1. The northern boundary of the Property abuts the Route 1 Bypass, but frontage access to this highway was denied by the Maryland State Highway Administration. See Maryland Code (1977, 2001 Repl.Vol.), § 8-620(c) of the Transportation Article. Bel Air continues to pursue development of the Property in question, and now seeks approval from the Harford County Department of Planning and Zoning to develop its Property as a “conventional with open space (COS)” subdivision under Section 267-46 of the Harford County Zoning Code. 1 Such a designation would enable it to develop the Property at a greater density than that permitted for conventional R-3 development alone.

To this end, Bel Air requested that the Department provide an “interpretation” 2 that its project satisfied the prerequisites ²⁵⁰ for COS approval. Specifically, the Department was asked to decide whether the Property would be deemed to be “directly accessible” to Business Route 1 for purposes of satisfying the Section 267-46B(4)(b) requirement for such access. In the alternative, Bel Air sought a variance from the requirements for a COS development. A hearing on Bel Air’s application for an interpretation was convened before a Zoning Hearing Examiner on June 12, 19, and 26, 2000.

On September 21, the hearing examiner issued her decision, concluding that the project was not “directly accessible” to Business Route 1, thus ruling that it would not qualify for development with COS status. Bel Air’s request for a variance from the requirements of Section 267-46B(4)(b) was withdrawn at the hearing. On December 5, 2000, the Harford County Council, sitting as the Board of Appeals, ratified and adopted the hearing examiner’s decision in all respects. Bel Air filed a petition for judicial review in the Circuit Court for Harford County.

Maryland Rule. 7-201. See Harford County Code, § A274-6. On September 13, 2001, the circuit court reversed the Board’s decision and remanded this matter for further proceedings. This appeal ensued.

ISSUE The salient and dispositive issue in this appeal is whether Bel Air’s project is “directly accessible” from at least one “existing or planned arterial or collector road[ viz. Business Route 1, as a matter of law. If the answer to this is “yes,” then the circuit court correctly overturned the Board’s conclusion to the contrary. Appellant People’s Counsel contends that the court was wrong, and urges that we vacate the court’s order and uphold the Board.

In assigning error to the circuit court’s decision, appellant further avers that the court ²⁵¹ ignored the longstanding interpretation of the Zoning Code by the Department of Planning and Zoning, the agency charged with its administration and enforcement. Bel Air Realty urges that we affirm. It challenges the administrative interpretations of the Zoning Code, and points out inconsistencies in the Department’s application of this rule as one factor that undermines its validity. 3 PERTINENT FACTS The parties more or less agree that this appeal raises a purely legal question. Nevertheless, being careful never to express ourselves more clearly than we are able to think, we will rehearse those facts which may be pertinent to our discussion.

Craig Ward, a consulting civil engineer and urban land planner, and qualified as an expert in these fields, testified on behalf of Bel Air Realty. He had been a consultant for the developer, and had “been involved” with this property since 1987. In 1995, both the Hickory Overlook property and Bel Air property were reclassified from ORI to R-3. Ward recalled that the Bel Air Realty and Hickory Overlook projects had always been linked by the Department of Planning and Zoning, and testified that, at the least, the development of these two subdivisions would be coordinated.

Ward chronicled the unsuccessful attempts by developers to obtain access for the property to the U.S. Route 1 Bypass. Having failed to gain access to Route 1, Bel Air Realty’s project could only reach the Route 1 alternative — the original, or “old,” U.S. Route 1 known as “Business Route 1” — over Overlook Way, a 36-feet wide paved roadway through the Hickory Overlook development. Ward testified that the de ²⁵² sign characteristics for a primary “residential road,” such as Overlook Way, and an “arterial road” and “collector road” are the same. He further opined that Overlook Way would provide direct access between minor residential roads and collectors, thus fulfilling the “direct access” requirement of Section 267-46B(4)(b).

Ward stressed that Overlook Way had been designed to provide access to the Bel Air development. 4 Ward described three other developments in Harford County — Spenceola, Deer Spring and Woodland Run — which, he opined, have access characteristics that are similar to Bel Air Realty’s property, in that they, too, are separated from qualifying roads by intervening properties. These developments have each been classified as COS. Ward explained that if the Bel Air property did not attain COS approval, it would only be developed into a community with single family detached lots— not the optimal use of this land. He stressed that the infrastructure had been planned for multi-family use; Lee Cunningham, an expert in the fields of land use and transportation planning, agreed.with Ward’s assertion that Overlook Way renders the Bel Air property “directly accessible” to Business Route 1.

Cunningham thought that the Code imposed no requirement that a COS development, such as that proposed by Bel Air Realty, actually abut or front on an arterial road to have direct access thereto. Anthony McClune presented the views of the Department of Planning and Zoning. McClune, manager of the Department’s Division of Land Use Management, testified that a conventional with open space development would be subject to the “Special Development design criteria within the [Zoning] Code.” He emphasized that a “project” must be directly accessible from a collector or arterial road as a predicate for COS qualification. McClune stressed that this requirement ²⁵³ meant that a project’s access to a qualifying roadway be “immediate,” and not through another existing project, such as Hickory Overlook.

McClune explained that the “direct access” requirement would prevent ingress to a high-density project, such as the COS development sought here, through a lower-density project such as Hickory Overlook: We believe the intention of that Section of the Code was to basically make sure that the higher density projects that have more flexibility in housing types would basically be able to be immediately accessible to the collector or arterial road and not have these projects ... access through existing established communities. He testified that Overlook Way is neither an arterial nor a collector road, but is, and was designed to be, a “local road,” which is intended to “collect!] and distribute traffic within subdivisions and provide direct access to individual land uses.” Id. McClune described Hickory Overlook as a COS development with frontage on U.S. Route 1 and internal streets. He added that Bel Air’s interpretation of “direct access” would allow any “project” to meet the threshold requirement for direct access for a COS, provided it had any access to a local road.

Id. McClune concluded that, “for projects to go COS they must be immediately accessible to the arterial road. Frontage on [a] primary residential road does not grant the ability for a COS project.” 5 ²⁵⁴ McClune was vigorously cross-examined about three projects that appeared not to have satisfied the “direct access” requirement, but which were nevertheless approved for COS development: Spenceola, Deer Creek, and Woodland Run. McClune explained that these projects were connected, or incorporated, in some manner to a larger development, with common ownership or unified planning, and were approved as part of a larger development, or “concept plan,” which larger development qualified because it abutted on an arterial or collector road. 6 McClune explained the Department’s position in terms of land use planning, opining that [hjigher density projects basically should be located so that basically there is a road network that gets them out to an arterial or collector road.

I don’t think it would be good land use planning to have lower density developments with local roads going through them and somewhere in the back higher density developments basically accessing through them. Additional facts as may be necessary for the resolution of the issue on appeal will be set forth in our Discussion. DISCUSSION I. Jurisdiction Initially, we address the matter of our jurisdiction. The circuit court’s reversal of the Board’s decision, and accompanying remand for further administrative proceedings, constitutes a final appealable order.

In People’s Counsel for ²⁵⁵ Baltimore County v. Country Ridge Shopping Center, Inc., 144 Md.App. 580 , 799 A.2d 425 (2002), Judge Moylan encountered the question of this Court’s jurisdiction under similar circumstances, and reiterated that a circuit court’s remand to an administrative agency for further proceedings satisfies the “final order” predicate because the circuit court’s remand “ ‘terminates the judicial proceeding!.]’ ” 144 Md.App. at 591 , 799 A.2d at 432 (quoting Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319, 1323 (1981)). This appeal is timely. We therefore have jurisdiction over the circuit court’s order. Maryland Code (1974, 2002 Repl.Vol.), §§ 12-301, 12-308 of the Courts and Judicial Proceedings Article.

II

Decisions Below The hearing examiner accepted the Department’s interpretation of Section 276-46B(4)(b), as presented by the hearing testimony of Anthony McClune, Manager, Division of Land Use Management, Department of Planning and Zoning: Mr. McClune noted, in accord with the dictionary (and common sense) meaning of “direct”, that the Department also looks to see if the project, taken as a whole, has direct (i.e. “immediate”, “the shortest way”, “with nothing or no one between”! ]) access to a collector or arterial roadway. The facts here are clear, the subject property does not have such direct access. In fact, the State Highway Administration denied the property direct access to Business Route 1. The Hickory Overlook subdivision is between the subject property and Business Route 1.

The subject property is not part of the Hickory Overlook project and therefore, the subject property cannot be considered to be directly accessible to Business Route 1. In concluding that direct access to Business Route 1 had not been achieved in this instance, the hearing examiner referred to the definition of “direct” as set forth in Webster’s New World Dictionary (2d College ed.1976), to ascertain that the commonly accepted meaning of “direct” included “nothing or no one between; immediate; close, firsthand.... ” ²⁵⁶ The hearing examiner was not converted by the developer’s argument that direct access to Business Route 1 was achieved because Overlook Way was “unobstructed.” Nor was she persuaded by Bel Air’s reliance on the Zoning Code’s definition of “Primary Residential Road,” as Overlook Way is characterized, as a way which provides “direct access between minor residential roads and collectors.” 7 The hearing examiner further concluded that an acceptance of Bel Air’s argument would effectively entitle any project to COS classification as long as it could reach an arterial or connector roadway through an adjoining subdivision. She reasoned that this approach would thus “render the requirement of ‘direct’ accessibility ... superfluous.” On Bel Air’s appeal, the circuit court reversed the Board’s decision, rejecting the view that “direct access” required a project to abut or front on an artery or collector road. The circuit court noted that the Code does not define 8 the phrase “directly accessible,” but concluded: Applying the principles of statutory construction ... there can be no doubt that [Bel Air’s] property has direct access to Route 1 across Overlook Way.

Overlook Way is a county ²⁵⁷ road. Overlook Way is not obstructed in any way. The county’s own definition of access describes it as an unobstructed way or means of approach to provide entry to or exit from a property. Overlook Way indeed provides entry to and exit from Appellant’s property.

The position that a property can only be directly accessible if it abuts the road contradicts the definition of road, arterial road, collector road and local road in Section 267-4 of the Zoning Code. For example, road is “... intended for motor vehicle traffic and provides a princip[al] means of access to property.” Local road is “a road which collects and distributes traffic within the subdivisions and provides direct access to individual land uses. Local roads may include primary and minor residential roads as well as business/industrial roads.” Similar definitions are used for collector and arterial roads. The circuit court also observed, somewhat critically, that the Department’s intent to limit the flow of traffic from higher density projects through a lower density subdivision, to prevent “stacking” of subdivisions, was inconsistent with its policy of granting exceptions in cases where the projects were combined for approval in a unified concept plan.

See note 5, supra, and accompanying text. The treatment of these projects by the Department of Planning and Zoning detracted from the authority of its view that “direct access” meant access to a qualifying road from an adjacent property. In the final analysis, the court found “as a matter of law, that the Zoning Hearing Examiner’s legal conclusion as to the meaning of the term directly accessible was in error.” It ruled instead that the Bel Air project is “directly accessible to Route 1 over a public road.” III. Standard of Review On the People’s Counsel’s appeal from the circuit court’s order, we review the Board’s decision de novo, relying on the “same statutory standards as [did] the circuit court.” Maryland Division of Labor and Industry v. Triangle General Contractors, Inc., 366 Md. 407, 416 , 784 A.2d 534 , 539 ²⁵⁸ (2001).

See Country Ridge, 144 Md.App. at 591 , 799 A.2d at 432 (reviewing court effectively looks through circuit court’s action toward decision by Board of Appeals); accord, Heard v. Foxshire Associates, LLC, 145 Md.App. 695, 699 , 806 A.2d 348, 350 (2002) (appellate court reviews issues as did circuit court). Our review is limited to determining whether the Board’s findings and conclusions are supported by substantial evidence based on the record as a whole and whether the Board’s decision accords with applicable law. See Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999); Eller Media Company v. Mayor and City Council of Baltimore, 141 Md.App. 76, 83-84 , 784 A.2d 614, 618 (2001). See also Blakehurst Life Care Community v. Baltimore County, 146 Md.App. 509, 517 , 807 A.2d 179, 184 (2002).

In conducting our review, we are limited to the record developed before the agency. See Erb v. Maryland Dept. of the Envi r onment, 110 Md.App. 246, 266 , 676 A.2d 1017, 1028 (1996). In Eger v. Stone, 253 Md. 533 , 253 A.2d 372 (1969), the Court of Appeals emphasized, with respect to judicial review of agency determinations of fact: We have made it quite clear that if the issue before the administrative body is “fairly debatable”, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the • administrative body, in the absence of an unconstitutional taking of private property for public use without the payment of just compensation. 253 Md. at 542 , 253 A.2d at 377 . See also White v. North, 356 Md. 31, 44 , 736 A.2d 1072, 1079-80 (1999).

Our standard of review subsumes the concept of judicial restraint. In conducting our review, we defer to those findings of the Board that are supported by the record and consider the Board’s decision as prima facie correct and presumptively valid. Banks, 354 Md. at 68 , 729 A.2d at 381 . With respect to statutory interpretation, we will likewise defer in the appropriate case to an agency’s interpre ²⁵⁹ tation and application of its organic statute.

See id. Thus, our scope of review is rather circumscribed. Eastern Outdoor Advertising Co. v. Mayor and City Council of Baltimore, 128 Md.App. 494, 515 , 739 A.2d 854, 865 (1999), cert. denied, 358 Md. 163 , 747 A.2d 644 (2000). Agencies are too often chided for maladroit interpretations.

We will apply the same principles of statutory construction to the Harford County Code as are required in the interpretation of any statute or regulation. See Young v. Anne Arundel County, 146 Md.App. 526, 573 , 807 A.2d 651, 679 (2002) (citing Howard Research and Development Corp. v. Concerned Citizens for the Columbia Concept, 297 Md. 357, 364 , 466 A.2d 31, 34 (1983)). Because this appeal requires us to construe the language of the Zoning Code, “[t]he cardinal rule of [statutory construction] is to ascertain and effectuate the legislative intent.” The Pack Shack, Inc. v. Howard County, 371 Md. 243, 252 , 808 A.2d 795, 800 (2002). See Marriott Employees Federal Credit Union v. Motor Vehicle Administration, 346 Md. 437, 444 , 697 A.2d 455, 458 (1997).

In order to ascertain the Council’s intent, we begin with the pertinent language of the Zoning Code, and ordinarily will not venture beyond its clear and explicit terms. See id. We owe no deference when the agency’s conclusions are premised on an error of law. See Alviani v. Dixon, 365 Md. 95, 109 , 775 A.2d 1234, 1242 (2001).

Cf. Department of Health and Mental Hygiene v. Campbell, 364 Md. 108, 118 , 771 A.2d 1051, 1057 (2001) (citations omitted) (completely subject to review; some deference accorded). “In such a case the Court’s review ‘is expansive, that is, the appellate court may substitute its judgment for that of the administrative agency.’ ” Harford County, Maryland v. McDonough, 74 Md.App. 119, 122 , 536 A.2d 724, 725 (1988) (quoting Gray v. Anne Arundel County, 73 Md.App. 301, 309 , 533 A.2d 1325, 1329 (1987)). But the administrator’s “expertise should be taken into consideration and its decision should be afforded appropriate deference in our analysis of whether it was ‘premised upon an erroneous conclusion of law.’ ” Marzullo v. Kahl, 366 Md. 158, 173 , 783 A.2d 169, 178 (2001) (quoting Banks, 354 Md. at 68 , 729 A.2d at 380 ). See State Ethics ²⁶⁰ Commission v. Antonetti, 365 Md. 428, 447 , 780 A.2d 1154, 1166 (2001).

IY. “Directly Accessible” Legislative and Judicial Constructions Appellant initially urges that Section 267-46B(4)(b) is not ambiguous in its requirement that a proposed COS subdivision must have direct access to a qualifying roadway. Reading the zoning code as a whole, appellant maintains that a project whose required access must pass through another subdivision to reach a qualifying road does not have “direct access” thereto. Citing the definition of the term “access” at Section 267.4 as an “[ujnobstructed way or means of approach,” in combination with the dictionary 9 meaning of the term “direct” (“nothing or no one in between; immediate; close, firsthand”), appellant asserts that the Bel Air project fails to measure up to the standard. Appellant further contends that the circuit court ignored the “long-standing” interpretation of Section 267-46 by the Department of Planning and Zoning, the agency charged with its administration, urging that the Department has consistently “interpreted the statute in a uniform fashion, one consistent with its suggested interpretation in this case.” Bel Air retorts that the Board’s reliance on McClune’s testimony to hold that the Bel Air property is not directly ²⁶¹ accessible to Route 1 is misplaced.

It denigrates McClune’s failure to support Ms interpretation of Section 267-47B(4)(b) with legislative history, and points out that McClune’s testimony conflicts with prior interpretations of the Code by the Department of Planning and Zoning. Bel Air Realty criticizes the Hearing Examiner’s failure to consider that Overlook Way is a “Primary Residential Road,” which by definition “[provides direct access between minor residential roads and collection and minimal direct driveway access to abutting properties.” See Zoning Code § 267-4. Bel Air relies on the unambiguous definition of “access” in the Code to support its position that Overlook Way “affords an unobstructed way or means of approach to provide entry to or exit from the Subject Property.” See Section 267-4. Bel Air, like a contemporary Cassandra, predicts that the Department’s view will effectively add surplusage to the Code under its interpretation of Section 267-46B(4)(b).

Prediction, however, is very difficult, especially about the future. Bel Air reasons that, because the County Council has specified a “frontage requirement” for other types of developments, such as shopping centers, schools, camps and mobile home parks, then Section 267-46B(4)(b) would likewise contain specific language imposing a “frontage” requirement. The developer also asserts that language in the Zoning Code requiring that certain uses have access “from” an arterial or collector road indicates that the County Council, had it intended to impose in the same legislation a “frontage” prerequisite for a COS project to be “directly accessible” to a qualifying road, would have used the same language in its enactment of the Zoning Code. We are not persuaded by Bel Air’s reliance on other provisions of the Zoning Code to dictate an interpretation of Section 267-46B(4)(b).

For example, we see no inconsistency between the explicit frontage requirements for certain shopping centers (300 feet, Section 267-47B(l)), mobile home parks (200 feet, Section 267 — 48C( 1)(b)), camps (200 feet, Section 267- ²⁶² 53F(2)(b)), or schools (300 feet, Section 267-53C(7)(a)[2]), and the “directly accessible” criterion for COS developments. We have carefully reviewed Bel Air’s argument with respect to the access language for special exceptions, 10 and agree that it has force. Nevertheless, we are not convinced that the access standards for certain special exception institutions would dictate the interpretation sought by Bel Air in this case. We note that the County Council amended the accessibility criterion for housing for the elderly and for “Continuing Care Retirement Communities” specifically to allow such communities to meet the “directly accessible” standard when such access is obtained only by a residential road.

See Sections 267-49B(4)(b), 267-49.l.A(4). Under the circumstances here, this is a clear indication of the legislature’s view of the meaning of the phrase “directly accessible.” We disagree with the circuit court’s determination that the decision of the Board cannot be sustained. The Zoning Code explicitly dictates that the project be directly accessible. The circuit court and Bel Air Realty effectively maintain that “access” alone satisfies this requirement, because the court’s holding is based on the fact that “Overlook Way is certainly an unobstructed means of approach to provide entry to or exit from [the] property.” But this approach virtually conflates the phrase “directly accessible” into the definition of “access.” In interpreting legislation, a tribunal must “ ‘giv[e] effect to all of [its] parts ... rendering no part of the law surplusage.’ ” Chen v. State, 370 Md. 99, 106 , 803 A.2d 518, 522 (2002) (quoting Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 252 , 753 A.2d 501, 508 (2000)).

In short, we conclude that the adverb