HNS Development v. People's Counsel

WATTS, J. This case involves the denial of a proposed amendment to the development plan for a multi-lot subdivision in Baltimore County, known as Longfield Estates. Appellant, HNS Development, LLC, filed with the Baltimore County Review Group (the “CRG”) 1 a proposal to amend (the “amended plan”) the original development plan for Longfield Estates, seeking to further subdivide and develop the property. Appellees, People’s Counsel for Baltimore County and Greater Kingsville Civic Association, objected to the amended plan, and the CRG denied approval of the amended plan. Both appellant and appellees appealed the CRG’s denial to the Baltimore County Board of Appeals (the “Board”).

The Board found, pursuant to Baltimore County Code (“B.C.C.”) § 22-47 (1978, 1988/89 Supp.), that the amended plan had been deemed approved through untimely action by the CRG, and remanded the matter to the Planning Board for a determination as to whether the amended plan conflicted with the Baltimore County Master Plan (the “Master Plan”). The Planning Board ultimately determined that the amended plan conflicted with the Master Plan, and the Board affirmed the Planning Board’s decision. Appellant petitioned the Circuit Court for Baltimore County for judicial review. This appeal followed the circuit court’s affirmation of the Board’s decision. ⁶ On appeal, appellant raised three issues 2 which we have consolidated and rephrased as follows: I. Whether the Board erred in finding the amended plan having been “deemed approved” pursuant to B.C.C. § 22-47 was subject to review under B.C.C. § 22-61(c) (1978,1988/89 Supp.)?

II

Whether the Board erred in finding that the amended plan conflicts with the Baltimore County Master Plan? For the reasons set forth below, we answer both questions “no” and shall affirm the judgment of the Circuit Court for Baltimore County. FACTUAL AND PROCEDURAL BACKGROUND On October 26, 2004, appellant acquired the property at issue, Longfield Estates. Longfield Estates is an existing residential subdivision in the Kingsville area of Baltimore County.

On February 17, 2005, appellant filed an amended plan seeking an amendment to the Longfield Estates II CRG Plan, which was originally approved in 1991. 3 Pursuant to the ⁷ amended plan appellant sought: (1) to place a dwelling on a portion of Parcel A; (2) a lot line adjustment combining the remainder of Parcel A with Lot 42; and (3) a subdivision of Lot 42 to obtain one additional lot. Appellees objected to the amended plan. On February 17, 2005, a meeting notice was issued pursuant to the CRG process. 4 Per the notice issued on February 17, 2005, on ⁸ March 21, 2005, a pre-CRG meeting was held. On April 1, 2005, a CRG meeting was conducted, and at this meeting, the CRG denied approval of the amended plan in light of Note 18 of the 1991 CRG Plan and the finding of the Planning Board in 1991, that there was a conflict with the Master Plan that prohibited building on the two lots.

On April 14 and 15, 2005, appellees, People’s Counsel, and Greater Kingsville filed Notices of Appeal, respectively, to preserve their rights to a de novo hearing before the Board. 5 On April 26, 2005, appellant appealed the CRG’s denial of the amended plan. The Board held six days of public hearings on the appeals, 6 culminating in a public deliberation held on November 9, 2006. On April 6, 2007, the Board issued a final Opinion and Order, explaining that Baltimore County Charter § 603 provides that review by the Board is to be de novo, however, the scope of review is narrow: “The final action on a plan shall be presumed correct and the person aggrieved shall have the burden of persuasion to show that such action was arbitrary or capricious, procured by fraud, or otherwise illegal.” B.C.C. § 22-61(c). In the Opinion, the Board addressed three issues: 1.

Whose appeal goes forward? When the CRG met, it denied the amendment, which would make this [appellant’s appeal. However, [appellant] argues that be ⁹ cause the CRG did not meet within the timeframe specified by [B.C.C.], the [amended plan] became automatically approved which would make this case an appeal by the [appellees]. 2. Does the doctrine of res judicata apply to this proposal and preclude consideration of two additional lots for Parcel A and Lot 42? 3.

Should this case go back to the Planning Board for review of the Master Plan conflict? The Board found, as to issue one, that “[t]he amendment to the plan was adopted for filing on February 17, 2005.” The thirty day deadline was March 19, 2005, yet, the CRG meeting was not held until April 1, 2005, twelve days after the deadline. 7 8 The Board stated: This Board finds that the County Code requirements regarding the time frames for the CRG process were very clear, and the CRG failed in its responsibility to either meet within the required timeframe or explain its failure to act within seven days. The County Code places the burden to act on the CRG and not on the Developer. Therefore, through its inaction and delayed meeting, the CRG in effect approved this amendment to the CRG plan, making this case an appeal from [appellees].[ 8 ] ¹⁰ As to the second issue, the Board found that the doctrine of res judicata does not apply in this case.

Although appellees argued that “the issues regarding Parcel A and Lot 42 were decided in 1991,” the Board agreed, with appellant that in Whittle v. Bd. of Zoning Appeals, 211 Md. 36, 44 , 125 A.2d 41 (1956), the Court of Appeals stated, “the doctrine of res judicata has been held not to be applicable where the earlier decision was made not by a court of record, but by a board of zoning appeals, an administrative agency” and appellant pointed out that the “initial CRG case was never litigated,” therefore, res judicata does not apply. As to the third issue, the Board found in pertinent part: [B.C.C.] Section 22-59 requires that the CRG refer proposed plans to the Planning Board in certain circumstances, including “when the proposed plan conflicts with the Master Plan.” At the heart of this case is the question of what Note 18 means and whether any development of these two lots would be a conflict with the Master Plan. But, this Board finds that a crucial piece of evidence is missing as a result of the CRG’s inaction. The question of whether the proposed amendment is in conflict with the County Master Plan was never put before the Planning Board, as required by Section 22-59.

Without that input, this Board is unable to move forward. In this respect, we find that the CRG was arbitrary and capricious in its failure to act in a timely fashion and by not referring the matter to the Planning Board as required by law. This Board therefore votes unanimously to remand this proposed [amended plan] to the CRG for referral to the Planning Board for them to decide whether it conflicts with the Baltimore County Master Plan. This Board will retain ¹¹ jurisdiction and will decide the merits after the Planning Board reaches its decision.

Appellees filed motions for reconsideration on May 2, 2007, and August 22, 2007. These motions were denied on August 10, 2007, and September 7, 2007, respectively. Following remand of the case, on February 20, 2008, the Director of the Planning Board, Arnold F. ‘Pat’ Keller, III (“Director Keller”), submitted a report to the Planning Board finding that the amended plan conflicted with the Master Plans of 1989-2000 and 2010. On April 17, 2008, the Planning Board adopted Director Keller’s report finding a conflict with the Master Plans and found that no further subdivision/development or future development on Lot 42 and/or Parcel A would be permitted.

The Planning Board forwarded its decision to the County Council on April 28, 2008 and the County Council took no action. On April 30, 2008, the Planning Board’s findings were sent to the Board, as the Board retained jurisdiction under the April 6, 2007, Order. On June 26, 2008, appellant requested a hearing before the Board. On December 17, 2008, the Board conducted a hearing, and on February 5, 2009, appellant filed a document titled, “Memorandum of Petitioner Summary of Petitioner’s Position” with the Board.

On February 5, 2009, appellees also filed Post-Remand Hearing Memoranda. On July 1, 2009, the Board issued an Order affirming the Planning Board’s decision that the amended plan conflicts with the 2010 Master Plan. In an Opinion accompanying the Order of July 1, 2009, the Board explained: As a result of the Remand by the [Board], the question of a possible conflict of the Petitioner’s proposed amendment with the Baltimore County Master Plan 2010 was taken up by the Planning Staff. They recommended in their report to the Planning Board of February 20, 2008 that there be a finding, that the proposed amendments to the original along with the CRG approval were in conflict with the Baltimore County Master Plan.

The Planning Board met and adopted ¹² the Staff Report, and confirmed that a conflict with the Master Plan 2010, did in fact, exist.... It should be noted that the County Council took no action to over-ride the conclusion of the Planning Board.[ 9 ] This Board holds that the case at bar is being heard by us on a de novo basis, as a result of the various appeals filed by the parties. As such, prior actions and determinations alleged to have occurred by operation of law no longer stand. Nevertheless, having received the matter de novo, our referral for the Planning Board determination as to Master Plan conflict was essential to a final decision.

The resultant finding of the actual existence of such a conflict can not, under the CRG Rules, be ignored. Therefore, once the Planning Board has now determined that such a conflict with the 2010 Master Plan does in fact exist, and no action having been taken to the contrary by the County Council, it is clear that the requested amendment to the original CRG Plan in this matter cannot be allowed. On July 30, 2009, appellant filed a Petition for Judicial Review in the Circuit Court for Baltimore County. On April 13, 2010, the circuit court conducted a hearing on the matter, and on April 30, 2010, the circuit court issued an Order and accompanying Opinion, affirming the decision of the Board and of the Planning Board. 10 On May 28, 2010, appellant ¹³ noted a timely appeal.

Additional facts will be set forth in this opinion as necessary to resolve the questions raised on appeal. STANDARD OF REVIEW When we review the final decision of an administrative agency, such as the Board of Appeals, we look “through the circuit court’s and intermediate appellate ¹⁴ court’s decisions, although applying the same standards of review, and evaluate[ ] the decision of the agency.” Judicial review of administrative agency action is narrow. The court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency. People’s Counsel for Baltimore County v. Loyola College in Md., 406 Md. 54, 66-67 [ 956 A.2d 166 ] (2008) (footnote omitted) (citations omitted) (alteration in original).

This Court in Umerley v. People’s Counsel, 108 Md.App. 497, 503-04 [ 672 A.2d 173 ], cert. denied, 342 Md. 584 [ 678 A.2d 1049 ] (1996) explained this Court’s standard of review of an agency’s decision in three steps: 1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... 3.

Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is “whether ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” [Comptroller v. World Book Childcraft, 67 Md.App. 424 ,] 438-39 [ 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986) ] (citations omitted). Also, unlike our review of a trial court’s judgment, we will only uphold the decision of an agency on the basis of the ¹⁵ agency’s reasons and findings.

United Steelworkers of America AFL-CIO Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984). We may search the record for evidence to support a trial court’s judgment; and we may sustain that judgment for a reason plainly appearing on the record, even if the reason was not relied on by the trial court. Id. But we may not uphold an agency’s decision “unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” Id.

(Footnote omitted). In Marzullo v. Kahl, the Court of Appeals explained: [A] ‘court’s task on review is not to “ ‘ “substitute its judgment for the expertise of those persons who constitute the administrative agency.” ’ ” Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. 366 Md. 158,172 [ 783 A.2d 169 ] (2001) (citations omitted). DISCUSSION I. THE DEEMED APPROVAL A. The Parties’ Contentions Appellant contends that because the CRG failed to act in a timely manner in approving the amended plan, the plan is deemed approved, by “operation of law,” pursuant to B.C.C. § 22-47, and as a result may not be set aside under B.C.C. § 22-61(c) or any subsequent review. 11 Appellant argues that ¹⁶ “[t]he [CRG] is required by law to conduct a hearing on a filed and accepted CRG plan within thirty (30) days of the acceptance” of the Plan for filing pursuant to B.C.C., § 22-56(b) and, in this case, the CRG failed to do so.

Appellant maintains that due to the untimeliness of the CRG action, “under the plain meaning of [B.C.C.] § 22-47, the [amended plan] must be ‘deemed to have been approved.’ ” Appellant contends that because the amended plan was approved by “operation of law,” it cannot be found to be arbitrary or capricious, procured by fraud, or otherwise illegal under B.C.C. § 22-61(c). In contrast, appellees respond that the failure of the CRG to act within the thirty (30) day time limit prescribed in B.C.C. § 22-56(b) does not “immunize” appellant’s amended plan “from Board review for arbitrariness, capaciousness, and illegality” under B.C.C. § 22-61(c). 12 Appellees maintain that appellant has waived the argument that the amended plan’s “ ‘deemed approval’ immunized the plan from review for arbitrariness, capriciousness, and illegality,” due to appellant’s failure to make this argument at the 2005-2006 Board proceedings or at the 2008 post-remand hearing. Relying on Heft v. Maryland Racing Comm’n, 323 Md. 257, 273-74 , 592 A.2d 1110 (1991), appellees assert that “a person may not obtain ¹⁷ judicial review of a matter when he or she failed to properly raise the matter before the administrative agency.” If not waived, appellees maintain that B.C.C. § 22-47 and § 22-51 (1978, 1988/89 Supp.) must be read together, and B.C.C. § 22-51, provides, in pertinent part: “In addition to compliance with these development regulations, all development shall comply with all other applicable laws, rules, or regulations of the county.” Based on this language, appellees contend that “the County Council did not intend the provision for ‘deemed approval’ to harbour, shelter, or shield an illegal re-subdivision.” Appellees respond that finding that a twelve (12) day delay in the process provided appellant with approval and effective immunity from review would in effect deny appellee[s] the appeal rights guaranteed by the [B.C.C.] § 22-61 (1978, 1988/89 Supp.), County Charter §§ 602-603, and Express Powers Act, Md. Ann.Code Art. 25A, § 5(U). Apx. 34, 45, 48.

Finally, appellees contend that the amended plan conflicts with the Master Plan and is illegal. B. Analysis In sum, although set forth more comprehensively above, appellant argues that because the amended plan was deemed approved pursuant to B.C.C. § 22-47, its approval is set in stone and not subject to further review. We disagree. First, appellant has waived the argument that the deemed approval caused by the CRG delay immunizes the amended plan from Board review under B.C.C. § 22-61(c), as appellant did not raise this issue before the Board.

Secondly, a plain reading of the relevant provisions of the B.C.C. does not support appellant’s position. Thirdly, the legislative history of B.C.C. § 22-47 does not support the conclusion that further review of a matter deemed approved is foreclosed. Finally, relevant case law reveals that the deadline for CRG approval in the B.C.C. does not create a substantive approval barring further review. (1) Waiver Appellant failed to raise the issue of the amended plan being immunized from review at the 2005-2007 proceedings or ¹⁸ post-remand in 2008.

As such, the Board neither examined nor resolved the issue in its July 1, 2009 Opinion. As this Court explained in Chertkof 43 Md.App. at 17-18, 402 A.2d 1315 : It is not our function as an appellate court to consider issues not raised, considered or decided in the court below. Our review, particularly in appeals from administrative bodies, must be limited to the determination based on the record. We must necessarily limit our consideration to whether the agency had before it substantial evidence to support its conclusions, and whether these conclusions were arbitrary, illegal or capricious.

Considering the state of the record in this case and in deference to Rule 1085, we will not review the new issue raised by the appellant in this appeal. The record is more than sufficient to establish that the Board of Review had before it substantial evidence to support its conclusions, and we find nothing illegal, arbitrary or capricious in its actions. (Emphasis added). Between October 2005, and August 2006, the Board held six days of public hearings on the CRG’s denial of the amended plan.

This issue was not raised by appellant before the Board at that time. In the Board’s Opinion of April 6, 2007, the Board phrased the issue as to the effect of the deemed approval of the amended plan as follows: Whose appeal goes forward? When the CRG met, it denied the amendment, which would make this [appellant's appeal. However, [appellant] argues that because the CRG did not meet within the timeframe specified by [B.C.C.], the [amended plan] became automatically approved which would make this case an appeal by [appellees].

At that time, appellant raised the issue of “who bore the burden to show the amended plan was arbitrary, capricious, or illegal pursuant to B.C.C. § 22-61(c),” not the issue of whether the plan was immunized from review under B.C.C. § 22-61(c) because the plan was deemed approved by the CRG’s delay. In its April 6, 2007 Opinion, the Board found that “through its ¹⁹ inaction and delayed meeting, the CRG in effect approved this amendment to the CRG plan, making this case an appeal from [appellees].” The Board made no finding as to whether or not the amended plan was immunized from review under B.C.C. § 22-61 (c) as appellant did not raise the issue. In the decision of April 6, 2007, the Board remanded the matter to the Planning Board for a determination as to whether the amended plan conflicted with the Master Plan. There is no indication that appellant raised the immunization argument before the Planning Board on remand.

Similarly, appellant failed to raise the immunization argument when requesting a hearing before the Board in 2008, at the December 17, 2008 hearing, or at any time thereafter before the Board. On June 26, 2008, appellant submitted a letter to the Board requesting a hearing. In this letter, 13 appellant did not contend that the amended plan was immune from review under B.C.C. § 22-61(c). At the December 17, 2008, hearing, appellant did not argue that the plan was immune from review, instead appellant argued, among other points, that the Board erred in remanding the matter to the Planning Board: [APPELLANT’S COUNSEL]: The Board really should never have remanded it to the planning board to begin with.

The second argument is that the planning board, like the CRG failed to undertake a timely and proper review, which they were required by law to do. ²⁰ [The CRG] also didn’t act in a timely manner. And by operation of law, their entire decision then affirmed the plan. Once that was done, the Board actually had in front of it an affirmed plan, and that should have been the end of the matter, because the Board actually — there’s nothing in the code that says the Board of Appeals shall remand to the planning board. Prior to the decision of July 1, 2009, on February 5, 2009, appellant submitted the document, “Memorandum of Petitioner Summary of Petitioner’s Position” to the Board.

In the February 5, 2009 Memorandum, appellant did not raise the argument that review of the amended plan was foreclosed under B.C.C. § 21-61(c). In its Memorandum, contrary to arguing that the plan was immunized from review under B.C.C. § 22-61(c), appellant endorsed the availability of an appeal, stating: Once the Board determined that by operation of law the Plan was approved then no further review was required. The only way to overturn the decision would be to show that filing was illegal or fraudulent. There was no allegation that either occurred.

The Planning Board like the CRG failed to consider in a timely manner the question posed by the Board. The [B.C.C.] protects the property owner or developer from undue delays in decisions. After the matter was presented to the Planning Board on February 21, 2008, the Planning Board failed to consider it in a timely manner by not responding to the county council until April 28, 2008. By operation of law no master plan conflict was determined.

Any person aggrieved or feeling aggrieved by final action on a plan is entitled to appeal to the County Board of Appeals. Unlike appeals under the current development review process in Baltimore County, appeals from CRG action are heard de novo. ²¹ By not raising the immunization issue before the CRG, the Planning Board and the Board, appellant has failed to preserve the issue for appellate review. Chertkof 43 Md.App. at 17 , 402 A.2d 1315 (“We will not review the new issue raised by the appellant in this appeal.”). (2) The Baltimore County Code (“B.C.C.”) Alternatively, a plain reading of the relevant sections of the B.C.C. does not support the conclusion that further review of a matter deemed approved pursuant to B.C.C. § 22-47, is foreclosed by law.

In this case, to be sure, there is no dispute that the CRG action was untimely. The proposed amended plan was accepted for filing on February 15, 2005, and the CRG meeting was held on April 1, 2005, twelve (12) days after the thirty (30) day time frame provided for in B.C.C. § 22-56(b). B.C.C. § 22-47 provides: If any county agency fails to act on any plan or plat submitted in accordance with these regulations within the prescribed time, the plan or plat shall be deemed to have been approved by the agency unless the failure to act has been excused by the administrative officer, in writing, no later than seven (7) days after the expiration of the prescribed time. Again, it is undisputed in this case that the delay was not excused by an administrative officer, in writing, within seven days after the expiration of the thirty (30) day time frame.

Therefore, the proposed amended plan was properly “deemed to have been approved by the agency,” pursuant to B.C.C. § 22-47. Contrary to appellant’s argument, however, B.C.C. § 22-47 contains no language indicating that the plan is approved by “operation of law.” B.C.C. § 22-47 simply states the plan shall be deemed to have been approved by the agency, no more than that. Although the amended plan was approved pursuant to B.C.C. § 22-47, B.C.C. § 22-61(a) provides for an appeal of the CRG’s final action to the Board by any person ²² aggrieved or feeling aggrieved by final action within thirty (30) days of such final action. B.C.C. § 22-61(c) provides: “The final action on a plan shall be presumed correct and the person aggrieved shall have the burden of persuasion to show that such action was arbitrary or capricious, procured by fraud, or otherwise illegal.” Just as B.C.C. § 22-47 contains no language whatsoever stating that the plan is approved by “operation of law,” there is no language in the statute indicating that the plan shall not be reviewed pursuant to § 22-61 (a) and § 22-61 (c) after a deemed approval.

Based on a plain reading of B.C.C. § 22-47, § 22-61(a) and § 22-61(c), an appeal of a plan deemed to have been approved pursuant to B.C.C. § 22-47 is not precluded under the statute. (3) Legislative History The legislative history of B.C.C. §§ 22-37 through 22-104, enacted in 1982, is contained in County Council of Baltimore County, Maryland, Legislative Session 1982, Bill No 56-82, 14 April 5,1982. Albeit briefly stated, Bill No. 56-82 provides, in an introductory paragraph, that it is an Act concerning development regulations: For the purposes of repealing the subdivision regulations of the County and enacting new development regulations to govern development of all land in the County; defining terms; providing for the process of development approval; imposing certain requirements on developers; providing certain standards for all development; providing for the adoption of additional standards for development; and generally relating to the regulation of the development of land in Baltimore County. (Emphasis added).

As set forth above, Bill No 56-82 specifically states that one of the purposes of the Bill is to provide for the “process of ²³ development approval.” The legislative history gives no indication that a purpose of the Bill is to override sections of the statute providing for appeals in the development approval process. Additionally, the legislative history does not state that a plan may be approved by “operation of law.” Simply put, there is nothing in the legislative history to suggest that development plans which are deemed approved pursuant B.C.C. § 22-47 are to be treated differently in the development approval and review process than plans approved through timely action by the CRG. (4) Relevant Case Law This Court in Art Wood Enters. v. Wiseburg Cmty. Ass’n, 88 Md.App. 723, 729 , 596 A.2d 712 (1991), cert. denied, 325 Md. 397 , 601 A.2d 130 (1992), held that CRG approval is merely one stage in the land development and approval process.

We explained that the B.C.C. authorizes the CRG to take any of three actions when analyzing a proposed development plan. The CRG can: (1) take final action on the plan, (2) refer the proposed plan to the Planning Board pursuant to B.C.C. § 26-207, or (3) continue the meeting to a later date “in order to receive additional information or to resolve any development matter raised at the initial meeting regarding the plan.” Id. at 728-29, 596 A.2d 712 ; B.C.C. § 22-206(b). We explained that these actions must be interpreted in light of B.C.C. § 26-203(a), which provides: [T]he plan shall set forth an informative, conceptual, and schematic representation of the proposed development in a clear and legible manner by means of maps, graphs, charts, or other written or drawn documents so as to enable the county and all reviewing agencies an opportunity to make reasonably informed decisions regarding the development. Id.

(footnote omitted) (emphasis in original). This Court further stated: The language of B.C.C. § 26-203(a) makes it clear that CRG approval is merely one stage (and an early one at that) of the land development review and approval process which takes a proposed development from its planning ²⁴ stages to its final form. As the Board stated in its opinion on the CRG’s approval of the Plan: [a]t the CRG stage, the developer need concern himself only with generalities and not specifics of his proposed development. He may be granted approval of the conceptual plans, but numerous agency permits, inspections, and approvals will follow ...

Thus, the use of the term “final action on the plan” in B.C.C. § 26-206(b)(l) cannot be interpreted to mean that the plan on which the CRG acts need be in finished form, or that no additional review or more detailed information, even on subjects generally addressed in the development plan, will be necessary in subsequent stages of the development review and approval process. Id. at 729-30, 596 A.2d 712 (emphasis added). Although the facts in Art Wood do not involve the deemed approval of a development plan, the case is instructive as this Court examined the CRG approval process under the B.C.C. and explained that CRG approval is “merely one stage ... of the land development review and approval process which takes a proposed development from its planning stages to its final form.” 88 Md.App. at 729 , 596 A.2d 712 . Given that the plan, at this stage, is not anticipated to be in finished form, it would be impossible to find that a plan deemed approved pursuant to B.C.C. § 22-47 is exempt from further review under the B.C.C. Thus, it is clear that whether reviewing the plain language of B.C.C. §§ 22-47 and 22-61(a) and (c), the legislative history of the statutes, or relevant case law, review under B.C.C. § 22-61 (c) is indeed permitted of a development or subdivision plan deemed approved pursuant to B.C.C. § 22-47.

II

THE MASTER PLAN CONFLICT Appellant contends that the Board erroneously denied approval of the amended plan based on faulty legal analysis of master plan conflicts. Appellant’s theories as to the Board’s error include the following premises: (1) The Master Plan is a ²⁵ guide and not a rule; (2) B.C.C. §§ 22-87 and 22-38 provide a basis for the amended plan to be deemed approved; and (3) B.C.C. § 22-18 sets forth a specific process to be followed in the event of a master plan conflict, and the Board’s failure to follow that process constituted an impermissible taking of the property. Appellant also argues that the Board’s decision is not supported by substantial evidence. For the reasons below, we reject each argument.

A. The Master Plan: Guide or Rule Appellant contends that the Master Plan is a guide not a rule. Relying on People’s Counsel for Baltimore County v. Beachwood I Ltd. P’ship, 107 Md.App. 627 , 670 A.2d 484 (1995), cert. denied, 342 Md. 472 , 677 A.2d 565 (1996), and Mayor and Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514 , 814 A.2d 469 (2002), appellant maintains that case law interprets “local master plans not as regulations or ordinances but rather as guides in the promulgation of regulations and zoning classifications.” Appellant relies on language in the Baltimore County Master Plans of 1989-2000, and 2010, for the proposition that the Master Plan is merely a guide. The Baltimore County Master Plan 1989-2000, adopted by the County Council in 1990 stated, in part: This Master Plan shall serve as a guide to Baltimore County Government as it implements plans for the development of this County. The propositions promulgated in this Master Plan constitute recommendations and guidelines concerning how this County should grow and develop as we approach the 21st Century.

In the event the within contain recommendations guidelines and Land Use Maps differ from a Comprehensive Zoning Map adopted by the County Council, the Comprehensive Zoning Map shall take precedence and shall prevail. Baltimore County Master Plan 1989-2000, p. 7 (adopted February 5, 1990). The Baltimore County Master Plan 2010, ²⁶ adopted by the Baltimore County Council in February 2000, states, in pertinent part: The statements of Master Plan 2010 are intended to guide the Council in this role. The County Executive and County Council have recognized the Master Plan as an important advisory tool for ensuring that the growth of Baltimore County is managed in an orderly and rational manner.

Many of the activities of government encourage conformance with the master plan, Baltimore County Master Plan 2010, p. 6, 8 (adopted February 22, 2000). In contrast, relying on B.C.C. § 22-59 (1978, 1988/89 Supp.) and § 22-60, appellees respond that the Master Plan is not just a guide, that “[B.C.C. § 22-59 and § 22-60] commanded the CRG to refer [M]aster [P]lan conflict issues to the Planning Board, set up a procedure for Planning Board review, and required the CRG to incorporate the Planning Board decision in its final action unless the County Council chose to overrule the Planning Board.” Relying on Bd. of County Comm’rs v. Gaster, 285 Md. 233, 246-50 , 401 A.2d 666 (1979); Coffey v. Md-Nat’l Cap. P. & P. Comm’n, 293 Md. 24, 30-31 , 441 A.2d 1041 (1982) and Md.-Nat’l Cap. P. & P. Comm’n v. Wash.

Bus. Park Assocs., 294 Md. 302, 313-16 , 449 A.2d 414 (1982), appellees contend that: “While the master plan is often described as a guide in zoning reclassification and special exception cases, the situation is different with development or subdivision plans where there is a direct statutory provision providing for a decision upon a master plan conflict. In this situation, the master plan is binding.” On this issue, we agree with the position enunciated by appellees. Appellant relies on Rylyns Enters., 372 Md. 514 , 814 A.2d 469 , Beachwood I, 107 Md.App. 627 , 670 A.2d 484 , and People’s Counsel for Baltimore County v. Webster, 65 Md.App. 694 , 501 A.2d 1343 , cert. denied, 306 Md. 70 , 507 A.2d ²⁷ 184 (1986), cases involving zoning regulations in which Maryland appellate courts have found local master plans to be guides.

These cases are distinguishable as the cases involve zoning matters in which there was no requirement under the county code or charter that the zoning plan conform to the master plan. We shall briefly examine the cases relied on by appellant to clarify the distinction in the case law in matters pertaining to local master plans. In Beachwood I, this Court reversed the County Board’s decision to grant a Petition for a Zoning Reclassification submitted by the developer, Beachwood. 107 Md.App. 627, 675 , 670 A.2d 484 . In Beachwood I, the Baltimore County Council reclassified the zoning of Beachwood’s land to D.R. 1, however, the County Board, on petition by the developer, reclassified the property as D.R. 3.5. 107 Md.App. at 636 , 670 A.2d 484 .

Appellants argued that there was no showing before the County Board of a mistake or error in the zoning classification originally made by the County Council. Beach-wood argued that the County Council’s zoning classification did not comply with the local master plan. Id. at 657 , 670 A.2d 484 . In affirming the zoning classification of the County Council, we explained that “there is no requirement that a comprehensive zoning plan must conform to the recommendations of an applicable master plan” and “[a]s we have said, a master plan is only a guide and is not to be confused with a comprehensive zoning, zoning map or zoning classification.” 107 Md.App. at 657 , 670 A.2d 484 (citing Howard County v. Dorsey, 292 Md. 351, 363 , 438 A.2d 1339 (1982); Pattey v. Bd. of County Comm’rs, 271 Md. 352, 360 , 317 A.2d 142 (1974)).

In Webster , this Court upheld the County Board’s affirmation of the Zoning Commissioner’s grant of a petition for a special exception required for a proposed project. 65 Md.App. at 696 , 501 A.2d 1343 . Specifically, this Court addressed whether “the Baltimore County Master Plan 1979-1990, as amended on January 5, 1981, prohibited] the use of appellee’s property for a new office building permitted within its R-C ²⁸ zoning classification?” 15 65 McL App. at 695, 501 A.2d 1343 . We held that a master plan is a guide when executing the zoning process, stating: This charter language is not vague or ambiguous and evidences the clearest intent of its framers. That the master plan was to serve as a guide to the County Council in its ²⁹ promulgation of the maps and regulations when executing the zoning process is patent from the resolution of the Council in adopting the master plan....

This has been the generally accepted role of the master plan in this context. As we noted in Floyd v. County Council of P.G. Co., 55 Md.App. 246, 258-59 , 461 A.2d 76 (1983): [I]t is commonly understood, in Maryland and elsewhere, that Master Plans are guides in the zoning process. Chapman v. Montgomery County Council, 259 Md. 641 , 271 A.2d 156 (1970); Board of County Comm’rs. for Prince George’s County v. Edmonds, 240 Md. 680 , 215 A.2d 209 (1965); see Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686 , 376 A.2d 483 , cert. denied, 434 U.S. 1067 [ 98 S.Ct. 1245 , 55 L.Ed.2d 769 ] (1977) (Master Plan a guide, not a straitjacket); Kanfer v. Montgomery County Council, supra [ 35 Md.App. 715, 733 , 373 A.2d 5 , cert. denied, 281 Md. 741 (1977) ] (plan a “prophecy” as to future development). Master Plan guidelines are mandatory only if an ordinance so provides.

Cf. Coffey v. Md.Nat’l. Cap. Park & Pl [anning ] Comm’n., 293 Md. 24 , 441 A.2d 1041 (1982) (subdivision case); Board of County Comm’rs. of Cecil County v. Gaster, 285 Md. 233 , 401 A.2d 666 (1979).

See also Md.-Nat’l Cap. P. & P. v. Wash. Bus. Pk, 294 Md. 302 , 449 A.2d 414 (1982).

Id. at 702-03 , 501 A.2d 1343 . In Rylyns Enters., a case from Montgomery County, the Court of Appeals affirmed this Court’s holding “that the municipality’s imposition, at the insistence of the County, of a condition limiting the use of the newly annexed property more restrictively than allowed by the City zoning ordinance for the zoning district in which the property was placed was tantamount to improper conditional zoning.” 372 Md. at 521 , 814 A.2d 469 . The Court of Appeals, however, explained: [Master] Plans are long term and theoretical, and usually contain elements concerning transportation and public facilities, recommended zoning, and other land use recommenda ³⁰ tions and proposals. Zoning, however, is a more finite term, and its primary objective is the immediate regulation of property use through the use of use classifications, some relatively rigid and some more flexible.

We repeatedly have noted that plans, which are the result of work done by planning commissions and adopted by ultimate zoning bodies, are advisory in nature and have no force of law absent statues or local ordinances linking planning and zoning. Where the latter exist, however, they serve to elevate the status of comprehensive plans to the level of true regulatory device. In those instances where such a statute or ordinance exists, its effect is usually that of requiring that zoning or other land use decisions be consistent with a plan’s recommendations regarding land use and density or intensity. 372 Md. at 529-31 , 814 A.2d 469 (footnotes omitted) (citations omitted). (1) Charter Counties Prince George’s County, Wicomico County, Montgomery County, and Baltimore County are charter counties.

Loyola College, 406 Md. at 70-71 , 956 A.2d 166 (“Baltimore County is a charter county pursuant to Article XI-A of the Maryland Constitution.”); United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 581 , 650 A.2d 226 (1994). As none of the cases relied upon by appellant, arising in Baltimore or Montgomery County, directly address the binding effect of the local master plan where the county reviews development or subdivision plans, we find cases involving development and subdivision plans, from sister charter counties, Prince George’s County and Wicomico County, to be instructive. Maryland Ann.Code Article 25A, § 5(X)(l)(i) (1957, 2005 Repl.Vol.), authorizes Baltimore County and Wi-comico County to enact local laws “for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning.” Maryland Ann.Code Article 28, § 7-110, authorizes Montgomery County and Prince George’s County to enact a general plan “for the protection and pro ³¹ motion of health, safety, morals, comfort, and welfare of the inhabitants of the regional district” (2) Prince George’s County In Coffey v. Md-Nat’l Cap. P. & P. Comm’n, 293 Md. 24, 25 , 441 A.2d 1041 (1982), a case originating in Prince George’s County, the Court of Appeals held, “when subdivision regulations require that a proposed subdivision comply with the master plan, an application for approval of a preliminary subdivision plan that fails to so comply must be rejected.” In Coffey , the Planning Board rejected a proposed subdivision plan finding that Prince George’s County Code § 24-103(a)(l) requires subdivision plats to conform with the Prince George’s County Master Plan. 293 Md. at 25 , 441 A.2d 1041 .

The circuit court affirmed this rejection. Id. The Court rejected the arguments of Coffey, who argued that master plans are guides and explained, “[n]o opinion of this Court has made a statement relative to master plans acting only as guides in the context of the facts here involved.” Id. at 26, 441 A.2d 1041 . At oral argument, counsel for the Commission explained, “the Commission regarded the master plan as binding in subdivision matters subsequent to the enactment of the regulation requiring proposed subdivisions to conform with the master plan.” Id.

The Court stated: As the author points out in 4 R. Anderson, American Law of Zoning 2d § 23.20, at 89 (1977), “Subdivision controls are imposed for the purpose of implementing a comprehensive plan for community development. To achieve this end, plats submitted to a planning commission for approval must be examined in relation to the official map and the master plan.” Moreover, as the court observed in Popular Refreshments, Inc. v. Fuller’s Milk Bar, etc., 85 N.J.Super. 528, 537 , 205 A.2d 445 (1964), petition for certification denied, 44 N.J. 409 , 209 A.2d 143 (1965), “If planning boards had no alternative but to rubber-stamp their approval on every subdivision plat which conformed with the zoning ordinance, there would be little or no reason for their existence. While planning and zoning complement each other and serve ³² certain common objectives, each represents a separate municipal function and neither is a mere rubber-stamp for the other,” citing Levin v. Livingston Tp., 35 N.J. 500, 506 , 173 A.2d 391 (1961). Id. at 29-30, 441 A.2d 1041 .

In Coffey , the Court analyzed the facts of the case, and concluded: Here we have a regulation duly enacted by the legislative body for Prince George’s County which specifies that the planning board shall not approve a subdivision plat not in compliance with the master plan. This subdivision regulation is as much entitled to obedience as any other legislative enactment. The need for the regulation specifying that a subdivision plan must conform to the master plan can be illustrated by comparison to the putting of water in a teacup drop by drop. After a period of time there comes the drop which will cause the cup to overflow.

By analogy, developing some of the lots in conformity with the existing zoning will not disrupt the master plan. Concentrated use and development, however, will disrupt it. The legislative body wished to avoid this when it specified that subdivisions must comply with the master plan. Accordingly, the Commission was justified in rejecting Coffey’s proposed subdivision for his failure to conform that proposal with the master plan. 293 Md. at 30-31, 441 A.2d 1041 .

The Court of Appeals, in Wash. Bus. Park Assocs., 294 Md. at 303 , 449 A.2d 414 , reviewed a dispute over the subdivision of vacant land in Prince George’s County. The Court of Appeals vacated the judgment of this Court, remanding without reversal or affirmance, and held: Coffey, 293 Md. 24 [ 441 A.2d 1041 ], was decided subsequent to consideration of this case by the Commission and both courts which have reviewed the matter.

Moreover, although failure of the proposed subdivision to comply with the master plan was argued before the Commission, both lower courts, and us, that issue is not properly before us, as we have pointed out. We do not know why the Commission ³³ reached the conclusion it did. Its action may have been based upon noncompliance with the master plan, some other provision of the subdivision regulations authorized by statute, a desire to accommodate the State Highway Administration, or some other reason. Given those facts we believe the Commission should have an opportunity to address the issue here with knowledge of the