Mortimer v. Howard Research and Development Corp.

⁴³⁵ ROSALYN B. BELL, Judge. This case presents two questions: (1) did the trial judge err in reversing a remand by the Board of Appeals of a Planning Board’s decision in Howard County where the Board of Appeals is alleged to have exceeded its scope of review? and (2) which of these two agencies, if either, has standing in an appeal to the circuit court and to this Court? 1 We conclude that the Board of Appeals wins on the decision issue. Since the Planning Board and the Board of Appeals are bound by our holding that the circuit court erred in reversing the Board of Appeals decision, their appeal is now academic. Moreover, both Boards were more than adequately represented in their respective claims by the actual litigants.

Even if we were to decide the standing issue, the judgment that the protesting owners appeal from would be unaffected. Hence, interesting as it may be, we need not and will not decide the standing issue. Before we delve into the facts involving this particular property, a summary of the New Town development process is necessary to understand the procedural and factual background of this case. 2 PLANNING PROCESS Section 119 3 of the Howard County Zoning Ordinance (1984) sets out the procedure for establishing a New Town ⁴³⁶ District and the permitted land uses. 4 The process essentially consists of the adoption of a Preliminary Development Plan (PDP) 5 and a Final Development Plan (FDP). No land within a New Town District established by a PDP may be developed unless a FDP for the specific area is approved by the Planning Board. § 119.B.6.d.

This process is initiated by the filing of a Comprehensive Sketch Plan (CSP) 6 for approval by the Planning Board. The FDP is also a series of drawings and must conform to the CSP previously approved by the Planning Board, including the FDP Criteria adopted. The FDP criteria regulate the general locations of all buildings and structures, height limitations, parking ⁴³⁷ requirements, setbacks, etc. § 119.C.1. The only differences between the FDP and the CSP are the scale of the drawings, the exact location of streets, and the description of land use areas by precise courses and distances.

Compare §§ 119.C.1-7 and 119.C.8. After approval by the Planning Board, the FDP is recorded among the Land Records for Howard County and provides that the land use provisions of the FDP “shall bind the property covered thereby ... with the full force and effect of specific Zoning Regulations.” § 119.C.11. HISTORY OF THIS PROPERTY In November, 1972, the Planning Board held a public hearing on a CSP for a 189-acre parcel referred to as Hickory Ridge Village, Section 1, Area 2, Clements Crossing Neighborhood. In December, 1972, the Planning Board approved the CSP for FDP 136, including the criteria for the entire site and specific designation of land uses for approximately 175 acres.

There was, however, no specific designation of locations within the remaining 14 acres for a proposed 11-acre school site, two and one-half acres of open space land uses, and .55 acres of Employment Center or Commercial land use (Employment Center). It is this .55 acres of Employment Center which is the center of this controversy. The adopted CSP did not show any specific location for the Employment Center because the Howard County Board of Education had not decided on which portion of the 14-acre area it would locate the 11-acre school site. Initially, the CSP proposed to locate the Employment Center 600 feet southwest of its current location off Martin Road, with access off Quarterstaff Road.

On May 16, 1973, the Planning Board approved the FDP for Phase 136, part I, which included the FDP criteria approved in connection with the CSP. The Planning Board did not address the site for the school or Employment Center as the School Board had still not determined the precise site for the school. In January, 1974, the Planning ⁴³⁸ Board approved Phase 136, part II, without public notice or hearing, for the 14 acres remaining in the phase which were not covered by Phase 136, part I. 7 The approval of FDP, Phase 136, part II, located the Employment Center at a location off of Martin Road, not Quarterstaff Road. The Howard Research and Development Corp. (Howard Research) and The Besche Oil Corp. (Besche), appellees, became and at present are the owner and contract purchaser, respectively, of the subject .55-acre 8 parcel of land.

They petitioned for approval of an amendment to the boundaries as shown on the CSP for the subject parcel and approval for a convenience store to be located on the same site. At least in part because the relocation of the subject parcel was approved in 1974 without the benefit of public hearings, the Planning Board held two public hearings in August and September, 1984 to consider appellees’ petition. Nearby property owners and appellees presented evidence to the Planning Board regarding the proposed amended CSP. Substantial community testimony was provided at the hearing regarding the effects of establishing a convenience store at that location.

The Planning Board, in its Decision and Order dated October 31, 1984, stated that the development of an Employment Center off Martin Road could have an adverse impact on adjacent residential uses if the most intensive uses permitted under the criteria were established. The Planning. Board went on to say that the impact could be ameliorated through the elimination of certain more intensive permitted uses and the FDP was amended to reflect those excluded uses. The Planning Board articulated that the subject parcel could be developed since there was no remaining area in which it could be placed. ⁴³⁹ Several owners of nearby properties appealed from the Planning Board’s decision to the Board of Appeals, where Howard Research, the Planning Board, and Besche appeared as appellees.

The proceedings were conducted on the basis of the record developed before the Planning Board. 9 In its Decision and Order dated May 29, 1985, the Board of Appeals concluded that, based on the statements in its decision and order, the Planning Board had failed to evaluate properly the relevant legal criteria in granting the amendment and, therefore, remanded the matter to the Planning Board for reconsideration. From the adverse decision of the Board of Appeals, Howard Research, the Planning Board, and Besche filed timely appeals to the Circuit Court for Howard County; the appeals were consolidated. The Board of Appeals filed an answer as an appellee in the circuit court, and several neighboring property owners intervened as additional appellees. A hearing on the merits of the administrative appeal was held in circuit court in June 1989.

In its Memorandum and Order dated August 4, 1989, the circuit court reversed the decision of the Board of Appeals. The court held that the decision of the Planning Board was supported by substantial evidence in the record and that it should have been affirmed by the Board of Appeals. This appeal and cross-appeal followed. The issues in the appeal of Mortimer and other protes ⁴⁴⁰ tants 10 involves the propriety of the decision of the circuit court overruling the Board of Appeals.

Specifically, whether the trial court erred — in the standard of review it applied; — by substituting its judgment for that of the Board of Appeals; and — in ruling that the Board of Appeals substituted its judgment for that of the Planning Board, where the Board of Appeals found the decision of the Planning Board to be clearly erroneous, and remanded for reconsideration, because it concluded that the Planning Board’s approval of the use was based on an erroneous application of the standards, namely, that no other location was available for it. We would state it more succinctly: What is the standard of review by the trial court of the Board of Appeals decision and did it properly apply that standard? Before we address these issues, we first set forth the applicable standard of review at each level of appeal. STANDARD OF REVIEW —Circuit Court— The role of the circuit court in reviewing the Board of Appeals decision is set forth in Md.Code Ann. Art. 25A, § 5(U) (1957, 1987 Repl.Vol.), which provides in pertinent part: “Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.

Any party to the proceeding in the ⁴⁴¹ circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive.” (Emphasis added.) Hence, the circuit court’s standard of review is limited to whether the Board of Appeals decision is or is not “in accordance with the law.” The Court of Appeals has stated that the court may set aside, as “not in accordance with law,” a decision of the Board of Appeals which is arbitrary, illegal or capricious. Levy v. Seven Slade, Inc., 234 Md. 145, 149 , 198 A.2d 267 (1964) (determination of reviewing court’s function under § 5(U)). In making a determination of whether the Board of Appeals decision is arbitrary, illegal or capricious, the reviewing court must decide whether the question before the agency was fairly debatable.

Howard County v. Dorsey, 45 Md.App. 692, 700 , 416 A.2d 23 (1980), rev’d on other grounds, 292 Md. 351 , 438 A.2d 1339 (1982). An issue is fairly debatable if reasonable persons could have reached a different conclusion on the evidence and, if so, a reviewing court may not substitute its judgment for that of the administrative agency. Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969). The fairly debatable test is analogous to the clearly erroneous standard under Rule 8-131(e) and a decision is fairly debatable if it is supported by substantial evidence on the record taken as a whole.

Dorsey, 45 Md.App. at 701 , 416 A.2d 23 , quoting Sedney v. Lloyd, 44 Md.App. 633, 637 , 410 A.2d 616 (1980). A reviewing court may not, however, uphold an agency’s decision if a record of the facts on which the agency acted or a statement of reasons for its action is lacking. Board of County Comm’rs for Prince George’s County v. Ziegler, 244 Md. 224, 229 , 223 A.2d 255 (1966). Without this reasoned analysis, a reviewing court cannot determine the basis of the agency’s action.

If the agency fails to meet this requirement, the agency’s decision may be deemed arbitrary. Baltimore Gas & Electric Co. v. ⁴⁴² Heintz, 760 F.2d 1408, 1419 (4th Cir.), cert. denied, 474 U.S. 847 , 106 S.Ct. 141 , 88 L.Ed.2d 116 (1985). In such an instance, the case should be remanded for the purpose of having the deficiency supplied. Ziegler, 244 Md. at 229 , 223 A.2d 255 .

Accordingly, the circuit court’s role in the instant case was to decide whether the Board of Appeals decision was arbitrary, illegal or capricious. This review must be limited to a determination based on the record — in this case, the record from the Planning Board. 11 Chertkof v. Department of Natural Resources, 43 Md.App. 10, 17-18 , 402 A.2d 1315 , cert. denied, 286 Md. 745 (1979). —Court of Special Appeals— In this appeal, the role of this court is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review. Howard County v. Davidsonville Area Civic & Potomac River Ass’ns, Inc., 72 Md.App. 19, 35 , 527 A.2d 772 , cert. denied, 311 Md. 286 , 533 A.2d 1308 (1987). See also Gowl v. Atlantic Richfield Co., 27 Md.App. 410, 418 , 341 A.2d 832 (1975). —Board of Appeals— The Howard County Board of Appeals is an administrative body, acting in a quasi-judicial capacity.

Howard County v. Mangione, 47 Md.App. 350, 353 , 423 A.2d 263 (1980). Its scope of review is limited to that prescribed by statute. Under Art. V, § 501(b) of the Howard County Charter (1984), the Board of Appeals may exercise those appellate powers enumerated in Md.Code Ann. Art. 25A, § 5(U) (1957, 1987 Repl.Vol.), in entertaining an appeal from an action of the Planning Board. Section 501(c) of the Charter further provides, in pertinent part: ⁴⁴³ “Those matters coming before the Board pursuant to an appeal from an executive, administrative or adjudicatory order wherein a formal hearing was held and a verbatim record developed shall be reviewed by the Board on the basis of the record before it.” 12 In an appeal on the record, the petitioner has the burden of establishing that “the action by the administrative agency was clearly erroneous, and/or arbitrary and capricious.” Howard County Code § 2.215(c) (1984).

Hence, the Board of Appeals standard of review in appeals based on the record is the same as this Court and the circuit court, sitting as appellate courts. In light of these standards, we thus proceed to the facts of the instant case to determine whether any errors occurred at the different levels of review. THE CIRCUIT COURT DECISION Appellants argue that the Board of Appeals properly remanded the matter to the Planning Board since the Planning Board did not apply the proper FDP criteria. In its decision and order, the Planning Board concluded, in pertinent part: “4.

In order for the Planning Board to make a determination on the approval of the location of parcel A-l as part of the amended Comprehensive Sketch Plan, the criteria or text material submitted as part of the Plan must be re-examined in light of current circumstances according to the standards for approval of final development plans, pursuant to Section 119C.j.