Maryland-National Capital Park & Planning Commission v. Washington Business Park Associates

Smith, J., delivered the opinion of the Court. This is yet another contest between developers and planning authorities over the subdivision of vacant land. See Coffey v. Md. Nat’l Cap. P & P Comm’n, 293 Md. 24 , 441 A.2d 1041 (1982), and Board of County Comm’rs v. Gaster, 285 Md. 233 , 401 A.2d 666 (1979), for an account of two earlier ³⁰⁴ skirmishes on this issue.

The appellant in this case, Maryland-National Capital Park and Planning Commission (the Commission), is the same commission which was involved in Coffey . It acts under the authority of Maryland Code (1957, 1978 Repl. Vol.) Art. 66D. In the posture in which the case reaches us we deem it advisable in the interest of justice to remand the case without affirmance or reversal under Maryland Rule 871 a for further proceedings.

The controversy here can be better understood by reference to the drawing which we attach to this opinion. The appellees submitted to the Commission for approval a preliminary plan to subdivide approximately 56.8 acres of land located in Prince George’s County on the southwest side of Annapolis Road (Maryland Rt. 450) north of George N. Palmer Highway (Maryland Rt. 704). The governing master plan shows Forbes Boulevard as a proposed street on both sides of Annapolis Road. It currently extends from its point of origin, an intersection with George N. Palmer Highway, to the line of this proposed development.

The proposed subdivision plan calls for Forbes Boulevard to be extended to a point of intersection with Lottsford Vista Road and no farther. This would be some distance short of Annapolis Road. Lottsford Vista Road, as yet a "paper” street, roughly parallels Annapolis Road and ultimately would intersect with George N. Palmer Highway if access were gained to it through the land of others. The master plan provides for widening Annapolis Road from its present width to that of an arterial highway.

The proposal submitted by appellees does not provide for such widening. We were advised at oral argument that the master plan does not call for any restriction of access from subject property to Annapolis Road. Prior to the hearing held by the Prince George’s County Planning Board, 1 the State Highway Administration, to ³⁰⁵ whom a copy of the proposed subdivision plan had been submitted, communicated with the Commission, stating in pertinent part: "1. This property will be affected by the proposed plans to reconstruct Route 450.

The future right of way, based on your Master Plan, is 150' centered on the existing roadway. Efforts on your part to obtain as dedication that area between the existing and proposed right of way line will be appreciated. "2. We note that the plan does not propose to extend Forbes Blvd. to Route 450 which is a primary facility included in your Glen Dale-Seabrook Master Plan.

We believe this road is necessary for several reasons. First, it will be part of a continuous facility that will ultimately extend north of Route 450. Second, it shall provide access from Route 450 to the site. Third, as part of our plans to upgrade Route 50, we are proposing an interchange on U.S. 50 that would connect to Route 704 opposite Forbes Blvd.

If this occurs, Forbes Blvd. will take on even greater importance. "3. The plan proposes to extend Lottsford Vista Road thru the State of Maryland property into the site. This highway is also on the Master Plan.

This road is to serve two purposes. First, splitting the traffic on Route 704 between Lottsford Vista Road and Forbes Blvd. will therefore relieve the pressure on Forbes Blvd. Second, it would provide access to Route 704 and Route 450 for all lots incorporated into this site. "Although we concur with the extension of Lottsford Vista Road several associated matters must be resolved. ³⁰⁶ "On January 17, 1980 this proposal was presented to Mr. M. S. Caltrider, State Highway Administrator, and he has agreed to support a recommendation to the Maryland Board of Public Works to have the needed right of way dedicated to Prince George’s County.

However, prior to a formal recommendation, there must be an agreement between the developer and the Md. S.H.A. or Prince George’s County whereby if the Board of Public Works approves the dedication, the developer shall dedicate the remainder of Lottsford Vista Road as shown on the plan. "Since one of the stated purposes for Lottsford Vista Road is to eliminate access to Route 450, a condition must be placed on the approval of the plan stating that no direct access to Route 450 will be allowed with the exception of the Forbes Blvd. connection. "In connecting Lottsford Vista Road to Route 704, there shall be some serious geometric problems that must be remedied. By allowing this new connection a 5-legged intersection will be created that is not acceptable.

I am enclosing a copy of my February 25,1976 letter to Mr. F. Harris Allen that explains this problem in some detail. I am also enclosing a geometric scheme showing how this problem can be resolved. Before we can allow the intersection to connect to Route 704, the developer will have to agree to a plan that will be implemented by the developer that will eliminate the geometric problems. "4.

You will also note from the geometric scheme we are showing the further improvement of Route 704. These improvements were agreed to by the developer in his entrance permit issued by the Md. S.H.A. for the Forbes Blvd. connection to ³⁰⁷ Route 704.[ 2 ] The developer’s construction plans for Lottsford Vista Road must also show these further improvements to Route 704. "At such time as all of the concerns relative to Lottsford Vista Road have been resolved, we shall recommend to have the right of way transferred.” At the hearing the staff reported to the Commission that its original recommendation was for disapproval but the revised recommendation was for approval subject to dedication of Forbes Boulevard to Annapolis Road, dedication for road widening on Annapolis Road, and providing interior street frontage for all of the lots that front on Annapolis Road. Throughout the hearing the staff members who testified frequently referred to the fact that the master plan showed Forbes Boulevard running all the way through to Annapolis Road while the proposed subdivision plan did not.

Among other things, they referred to the traffic problems they foresaw if Forbes Boulevard did not connect with Annapolis Road. Gaster was mentioned in the deliberations of the Commission. Obviously, Coffey could not be mentioned since it had not been decided. The proposed subdivision plan was approved conditioned upon the appellees’ dedicating sufficient land for the extension of Forbes Boulevard north to intersect with Annapolis Road and upon their dedicating land along the length of the frontage on Annapolis Road for the future widening of that thoroughfare.

Unfortunately, unlike the situation prevailing in Gaster , the reasoning behind the Commission’s action does not appear in the record, if it was in fact recorded. Appellees appealed to the Circuit Court for Prince George’s County. They claimed, among other things, that the Commission "has no authority whatsoever to condition ³⁰⁸ approval of a preliminary plan for subdivision upon the applicant’s dedication of a public right of way where, as here, the construction of the right of way bears no substantial relation to the subdivision itself.” The Commission contended that its actions were justified under our holding in Gaster relative to conformity with the master plan and under Code (1957, 1978 Repl. Vol.) Art. 66D, § 7-115 (e), which states in pertinent part: "The Commission may require dedications of streets and roads in connection with the approval of plats of subdivision for interior subdivision roads, roads abutting the subdivision where it is necessary to create a new road as a part of the plan of subdivision to provide for traffic access to another subdivision road, and widening of existing or public roads abutting the subdivision where widening is necessary in order to provide additional right-of-way adequate to serve additional traffic to be created by the subdivision, but in this case no more dedication may be required than will produce a total right-of-way for a secondary road, as defined by the duly adopted Road Code, or by the appropriate county ordinance or regulation or for a primary road if an existing and duly adopted master plan of highways of the Commission designates the road as a primary or arterial road.

In no case whatsoever shall dedication of a width wider than that for a primary road be required, and no more than that necessary for a secondary road unless an existing and duly adopted master plan of the Commission designates the road as a primary or arterial road. However, in Prince George’s County the master plan of highways is to be approved by the district council.” The language upon which the parties focused was not that relative to interior subdivision roads as one might suppose, but that which spoke of "roads abutting the subdivision where it is necessary to create a new road as a part of the ³⁰⁹ plan of the subdivision to provide for traffic access to another subdivision road” and "where widening is necessary in order to provide additional right of way adequate to service additional traffic to be created by the subdivision .. ..” As to Forbes Boulevard, the circuit court judge found "that the Commission could not require dedication of land where there was an insufficient factual and evidentiary showing that the dedication was necessary to deal with the traffic problems created by Plaintiffs subdivision.” "[T]he court recognize[d] and dr[ew] to the attention of the parties the intertwining of the issues of the dedication of land along Annapolis Road, and the direct access to Annapolis Road,” saying: "For example, if direct access to Annapolis Road is granted, then the dedication of land along Annapolis Road for widening may well be necessary, within the meaning of Section 7-115(e), thus requiring the Plaintiff to dedicate the land. Whether there will or will not be direct access to Annapolis Road from the abutting lots is a question that must be clarified and expertly addressed on remand before the court can intelligently rule on the dedication of land on Annapolis Road. This matter must be remanded to the Commission for further determination.” On the issue of the master plan, the trial court stated: "The Plaintiff goes [on] to explain that the master plans are 'guidelines’ which are not converted into law except by the Sectional Map Amendment, which controls only land use, and does not zone roads.

We agree and can find no authority to the contrary.” The Commission appealed to the Court of Special Appeals. The issues presented by the Commission to the intermediate appellate court included a contention that the subdivision plan did not comply with the master plan without the dedication of Forbes Boulevard. It suggested that the circuit court ³¹⁰ "misinterpret[ed] the significant role Master Plans are intended to play in the subdivision process,” and that the holding which we have quoted above "is in direct contradiction” to our decision in Gaster . It pointed out that Gaster arose under a different statutory scheme (Art. 66B applicable to non-charter counties), but it claimed "that the statutes involved are so similar as to warrant that the decision be controlling here as well.” The Court of Special Appeals affirmed in an unreported opinion.

After quoting § 7-115 (e) it said: "Of particular relevance, in terms of Forbes Boulevard, is that part of the statute authorizing the Commission to require a dedication for 'roads abutting the subdivision where it is necessary to create a new road as a part of the plan of the subdivision to provide for traffic access to another subdivision road....’ (Emphasis supplied.) 2 As to Annapolis Road, the relevant part is that which authorizes a required dedication for 'widening of existing or public roads abutting the subdivision where widening is necessary in order to provide additional right-of-way adequate to serve additional traffic to be created by the subdivision.’ (Emphasis supplied.)” The footnote stated: "Although the condition, as shown on the approved plat, reveals the extended Forbes Boulevard bisecting the tract to be subdivided, there is no assertion by anyone that the extension would constitute an 'interior subdivision road,’ to which the first part of the statute might apply; and we shall therefore not consider that question. Both sides treat the extension as in the nature of a road 'abutting the subdivision,’ and view the second part of the statute — that requoted above — as being the relevant part.” ³¹¹ The Commission then petitioned us for a writ of certiorari. It presented but a single question for review: "Did the Court err in its interpretation of the Commission’s authority under § 7-115 (e), Article 66D, Annotated Code of Maryland, and, in particular, its construction of the word 'necessary’ as used therein?” We granted the writ. Notwithstanding the fact that the sole question presented in the petition was as we have just stated it, the Commission in its brief and in its oral argument before us, in addition to that issue, has argued that the circuit court "exceeded the scope of judicial review in overruling the factual determination made by the Commission that the dedication of Forbes Boulevard and for future widening along Annapolis Road was necessary to serve additional traffic created by the subdivision” and that it erred in finding that the subdivision plan was not required to comply with the master plan.

The parties are limited by the question embraced in the grant of certiorari. Hence, the last two contentions are not before us. Gaster, 285 Md. 233 , arose in a non-charter county, Cecil, where zoning and planning matters are governed by Art. 66B. The subdivision regulations adopted by the County Commissioners of Cecil County required that a subdivision plan comply with the master plan.

The plan in question met all zoning requirements but it specified a density of 2.3 units per acre as against the 1.0 units per acre set forth in the master plan. It failed to meet the requirement that access to and from development tracts should be