North v. Kent Island Ltd. Partnership

FISCHER, Judge. Appellant/Cross-Appellee, Chesapeake Bay Critical Area Commission (“Critical Area Commission” or the “Commission”), appeals from an order of the Circuit Court for Queen Anne’s County directing it to hold a contested case hearing on the request of Appellee/Cross-Appellant, Kent Island Limited Partnership (“Pier One”), for a redesignation of a portion of its property in the critical area from limited development area (LDA) to intensely developed area (IDA), on the grounds of mistake in the original mapping. The Critical Area Commission asks us to decide the following question: I. Did the trial court err in finding that a determination of the Critical Area Commission under Nat.Res.Md.Ann.Code, § 8-1809 is subject to the contested case provisions of State Government Md.Ann.Code., § 10-205? Pier One cross-appeals and asks us to address the following questions: II.

Was the Panel’s [of the Critical Area Commission] determination supported by substantial evidence?

III

Did the Circuit Court err in granting the motion to strike?

IV

(a). Did the Circuit Court err in not determining the extent of jurisdiction of the Chesapeake Bay Critical Area Commission with regard to individual case by case adjudication and the standard of review to be applied? (b). Has there been an invalid delegation of legislative authority?

BACKGROUND In 1984, the Maryland General Assembly enacted Chapter 794, Laws of 1984, entitled the “Chesapeake Bay Critical Area Protection Program,” which is codified in Md.Code (1974, 1990 Repl. Vol., 1994 Cum.Supp.), §§ 8-1801-1816 of the Natural ⁹⁶ Resources Article. 1 The purposes of the General Assembly were: (1) To establish a Resource Protection Program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats; and (2) To implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight. Section 8-1801(b). In order to achieve these purposes, the General Assembly created the Chesapeake Bay Critical Area Commission.

Each local jurisdiction 2 has the primary responsibility for developing and implementing a program 3 , subject to review and approval by the Commission. Section 8-1808(a). The Commission was required to “adopt by regulation on or before December 1, 1985 criteria for program development and approval, which are necessary or appropriate to achieve the standards stated in subsection (b) of this section.” Section 8-1808(d) 4 . ⁹⁷ Section 8-1809 addresses the approval and adoption of the local critical area protection programs. Each local jurisdiction is required to advise the Commission whether it plans to “develop a critical area protection program to control the use and development of that part of the Chesapeake Bay Critical Area located within its territorial limits.” Section 8-1809(a)(1).

If the local jurisdiction chooses not to develop a program, the Commission is permitted to prepare and adopt a program for the critical area located in that local jurisdiction. Section 8~1809(b). If the local jurisdiction decides to develop a program, the local jurisdiction must prepare and submit the program to the Commission. Section 8-1809(c).

Within 30 days after the program is submitted, the Commission is required to appoint a panel of five of its members to conduct a public hearing in the jurisdiction on the proposed program. Section 8-1809(d)(l). Within 90 days after the Commission receives a proposed program, the Commission shall approve the proposal or notify the local jurisdiction of any specific changes required for the proposal to be approved. If the Commission does neither, the program is deemed approved.

Section 8-1809(d)(2). Each local jurisdiction is to review its entire program and propose any necessary amendments to its entire program, including local zoning maps, at least every four years. Section 8-1809(g). In addition, local jurisdictions may propose program amendments 5 as often as necessary, but not more than four times per calendar year.

Section 8-1809(h). “Except for program amendments or program re ⁹⁸ finements developed during program review under subsection (g) of this section, a zoning map amendment may be granted by a local approving authority only on proof of a mistake in the existing zoning.” Section 8-1809(h)(2)(i). 6 The Commission must approve any program amendments. Section 8-1809(i). Section 8-1809(j) provides that the Commission shall approve programs and program amendments that meet: “(1) The standards set forth in § 8—1808(b)(1) through (3) of this subtitle; and (2) The criteria adopted by the Commission under § 8-1808 of this subtitle.” Pursuant to § 1808(d), the Commission promulgated regulations establishing the criteria for local critical area development. COMAR 27.01.02 (the “criteria”).

The Commission recognizes three types of development areas: (1) Intensely Developed Areas; 7 (2) Limited Development Areas; 8 and (3) ⁹⁹ Resource Conservation Areas. 9 COMAR 27.01.02.02(A). Intense development is to be directed outside the Critical Area and future intense development is to be directed towards intensely developed areas. COMAR 27.01.02.02(B). Low intensity development is permitted in limited development areas, but subject to strict regulations.

COMAR 27.01.02.02(C). In addition, development is to be limited in the resource conservation areas. COMAR 27.01.02.02(D). Each jurisdiction was to identify each of the three areas within its jurisdiction based on criteria and develop policies and programs to achieve the objectives proposed by the Commission.

COMAR 27.01.02.02(E). The designation was made based on the land uses and development in existence on December 1, 1985. COMAR 27.01.02.07(C). The Commission placed a cap on the growth of intense development and limited development areas.

COMAR 27.01.02.06A provides: Intensely developed and limited developments areas may be increased subject to these guidelines: (1) The area of expansion of intensely developed or limited development areas, or both, may not exceed an area equal to 5 percent of the county’s portion of the resource conservation area lands that are not tidal wetlands or federally owned. (2) When planning future expansion of intensely developed and limited development areas, counties, in coordination with affected municipalities, shall establish a process to accommodate the growth needs of the municipalities. ¹⁰⁰ Growth allowed in each county’s critical area under this provision is known as a county’s “growth allocation.” Section 8-1809(h)(2)(ii) provides: The requirement in paragraph (2)(i) of this subsection that a zoning map amendment may be granted only on proof of a mistake does not apply to proposed changes to a zoning map that: 1. Are wholly consistent with the land classifications in the adopted program; or 2. Propose the use of a part of the remaining growth allocation in accordance with the adopted program.

The amount of growth allocation available to each local jurisdiction is five percent of the Resource Conservation Area. Redesignations based on mistake do not count against the county’s growth allocation. The Queen Anne’s County critical area program was approved by the Critical Area Commission on June 29, 1988 and, as amended, on February 15, 1989. It was adopted as the comprehensive planning guide by the County Commissioners on March 15, 1989.

It was designated as the Queen Anne’s County Critical Area Protection Program (County Program). FACTS Pier One owns approximately 52 acres of property on Kent Island at the southeastern end of the Chesapeake Bay Bridge in Queen Anne’s County. Approximately 50 acres of the 52 acre property are within the Chesapeake Bay Critical Area. The critical area is divided into 28.84 acres of Intensely Developed Area and 21.3 acres of Limited Development Area. 10 The property is improved with a marina and nonresidential structures including a restaurant.

In order to make modifications to the property, in September of 1990, ¹⁰¹ Pier One petitioned Queen Anne’s County to amend the classification of the 21.3 acres of Limited Development Area to Intensely Developed Area. There were two ways in which the County could have redesignated the parcel: (1) The County could have redesignated the parcel based on a mistake in the original mapping; or (2) The County could have redesignated the parcel based on the use of the County’s growth allocation. Pier One petitioned Queen Anne’s County Board of Commissioners (“County Commissioners”) for a redesignation of a portion of its property in the critical area, from limited development area (LDA) to intensely developed area (IDA). Pier One based the petition on the fact that the LDA designation was a mistake within the contemplation of § 8-1809(h)(2).

The County Commissioners referred the petition to the Queen Anne’s County Planning Commission (“Planning Commission”) for review. On January 10, 1991, the Planning Commission held a public hearing to determine if there was a mistake in the original mapping. Pier One presented testimony and exhibits. The Planning Commission concluded that a mistake had been made in the designation of the property and recommended in favor of the map amendment.

The County Commissioners then submitted the redesignation as a proposed amendment to the Chesapeake Bay Critical Area Commission for approval as an amendment to the County’s critical area program. The Critical Area Commission referred the amendment to a panel of five. On April 15, 1991, the panel of five held a public hearing with testimony and exhibits presented by Pier One, found no mistake in the mapping, and recommended against the amendment. Subsequently, there was a public meeting of the Critical Area Commission sitting as a whole.

The panel chairman recommended that the Commission deny the petition. Pier One was not permitted to present any witnesses or testimony. The Critical Area Commission denied the amendment based on the panel report. As a result of the Commission’s decision, the County Commissioners denied Pier One’s petition for redesignation.

On July 5, 1991, Pier One requested, on substantive and procedural grounds, judicial review of the adverse rulings of ¹⁰² the Critical Area Commission and the County Commissioners. The Critical Area Commission moved to dismiss the appeal and to strike the constitutional issues raised in Pier One’s opposition to the motion to dismiss. The circuit court granted the motion to strike the constitutional issues, denied the motion to dismiss, and reversed the Critical Area Commission’s denial of redesignation. The circuit court remanded the case to the Critical Area Commission with instructions to hold a contested case hearing under the Maryland Administrative Procedure Act (MAPA).

The circuit court agreed with Pier One’s argument that LDA and IDA map designations are licenses issued by a state agency and therefore subject to the contested case hearing requirements of the MAPA. The circuit court did not address the substantive issues or the standard the Critical Area Commission should apply in reviewing the redesignation. DISCUSSION The Commission argues that the circuit court erred in two respects. The first is that a Critical Area Commission determination concerning a local map amendment is a quasi-legislative action, not a quasi-judicial action of a state agency issuing a license under the APA.

Second, a contested case hearing is not required by § 8-1809 or any other section. Pier One argues that the Commission’s denial of the proposed map amendment was a quasi-judicial act requiring the due process protections afforded- by the MAPA. It avers that the Commission’s role was to resolve the issue of whether there was a mistake in the original mapping of the LDA portion of the Pier One property, through a contested case hearing as defined by Maryland’s Administrative Procedure Act, Md.Code (1984, 1993 Repl.Vol.), §§ 10-201 through 10-217 of the State Government Article. A “contested case” is defined by the MAPA as follows: § 10-201.

Definitions. ¹⁰³ (c) Contested Case.—“Contested ease” means a proceeding before an agency to determine: (1) a right, duty, statutory entitlement, or privilege of a person that is required by law to be determined only after an opportunity for an agency hearing; or (2) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by law to be determined only after an opportunity for an agency hearing. When a proceeding meets the definition of a “contested case” the agency must provide trial type procedures. The MAPA “itself does not grant a right to a healing. The right must come from another source such as a statute, a regulation, or due process principles.” Sugarloaf v. Waste Disposal, 323 Md. 641, 652 , 594 A.2d 1115 (1991) (citations omitted).

There is nothing in § 8-1809 that requires a contested case hearing. In addition, “[t]he test to determine whether an action is legislative or administrative is whether the action is one making new law, i.e., an enactment of general application prescribing a new plan or policy, or is one which merely looks to or facilitates the administration, execution or implementation of a law already in force.” Prince George’s County v. Silverman, 58 Md.App. 41, 50 , 472 A.2d 104 (1984). The actual acts of zoning and rezoning are quasi-legislative functions. Hyson v. Montgomery County, 242 Md. 55, 63 , 217 A.2d 578 (1966).

The Commission itself does not act as a zoning body. The power of the Commission is to adopt regulations and criteria as well as conduct hearings in connection with “policies, proposed programs, and proposed regulations or amendments to regulations.” § 8-1806. The role of the Commission is quasi-legislative and does not encompass a contested case hearing. The Commission, therefore, contends that the only purpose of its proceedings was to determine whether the County’s proposed local program amendment