PEOPLE'S COUNSEL FOR BALTIMORE CTY. v. Mockard

ROSALYN B. BELL, Judge. People’s Counsel for Baltimore County appeals from a decision of the Circuit Court for Baltimore County, reversing in part and remanding in part, the administrative order of the County Board of Appeals of Baltimore County. Upon a finding of error in the county-wide comprehensive ³⁴² zoning, the County Board had conditionally granted Robert W. Mockard, et al., appellees, a piecemeal zoning reclassification. Appellees filed a cross-appeal.

The issues we will deal with on appeal are: 1. Whether the Board’s limitation on the future use of the subject property is an invalid condition on the reclassification. 2. Whether the Board failed to make proper findings as required by the Baltimore County Code. 3. Whether there was an error in the comprehensive zoning.

Appellees, Robert W. Mockard, et al., petitioned the Baltimore County Board of Appeals for a reclassification of property zoned Business, Local (BL-CS-2). They claimed that there was an error in the 1984 comprehensive zoning map and requested a reclassification of the property to the next higher intensity business zone, Business, Major (BM-CS-2). Appellees filed an “open plat” reclassification which, if granted, authorizes any permitted use within the designated classification. The Board, finding error, granted the reclassification for the specific purpose of expanding appellees’ existing used and new car dealership.

Both parties appealed the Board’s decision to the Circuit Court for Baltimore County. The court affirmed the Board’s finding of error in the comprehensive zoning but found that the conditional zoning was invalid. The court remanded the case to the Board to determine whether, based on the factors delineated by the county code, the prospective classification was warranted. Both appellant and appellees agree with the circuit court’s finding regarding the invalidity of conditional zoning.

Appellant appeals the court’s finding of error. It claims that the evidence before the Board demonstrated that the requested reclassification was unwarranted. Appellees cross-appeal, contesting the court’s remand to the Board for findings under the Baltimore County Code. They argue that the finding of error in the comprehensive zoning should be affirmed, and the con ³⁴³ dition should be stricken without remanding the case to the Board.

Conditional Zoning Conditional zoning is a zoning reclassification subject to conditions not generally applicable to land similarly zoned. “[W]hen an area of land is rezoned from one classification to another, and such change is not outright but subject to some type of conditions, then we are confronted with a conditional zoning problem.” Board of County Comm’rs of Washington County v. H. Manny Holtz, Inc., 65 Md.App. 574, 579 , 501 A.2d 489 (1985), quoting Miller, The Current Status of Conditional Zoning, Institute on Planning, Zoning, & Eminent Domain 122 (1974). In Montgomery County v. National Capital Realty Corp., 267 Md. 364 , 297 A.2d 675 (1972), the Court said, “The invalidity of conditional zoning in Maryland is not seriously open to question.” National Capital Realty Corp., 267 Md. at 373 , 297 A.2d 675 . This Court continues to reaffirm the invalidity of conditional zoning. H. Manny Holtz, Inc., 65 Md.App. at 586 , 501 A.2d 489 .

In Holtz, appellant argued that the Maryland Code provision granting local legislative bodies the general authority to rezone land contained an express grant of conditional zoning power. H. Manny Holtz, Inc., 65 Md.App. at 580 , 501 A.2d 489 . We held that, although “various states have been attracted to conditional rezoning as a valuable planning tool, we are not inclined to construe the statute to provide for conditional use zoning in Maryland.” H. Manny Holtz, Inc., 65 Md.App. at 586 , 501 A.2d 489 . In chartered counties such as Baltimore County, there are certain limitations to the general rule invalidating conditional zoning.

The Baltimore County Code provides two alternative methods for those seeking reclassification. ³⁴⁴ Sections 2-58.1(l)-(n) permit a form of conditional zoning. 1 Baltimore County, Md.Code § 2-58.1(1) (1985 Cum.Supp.) allows a petitioner to submit a specific site plan. 2 That section requires petitioners to provide extensive documentation, including a specific site plan and an environmental impact statement. § 2.58.1(1) & (2). If a petitioner chooses to submit a site plan, the requirements set forth in § 2-58. l(j) 3 must be satisfied before a reclassification will ³⁴⁵ be granted. The reclassification is contingent upon compliance with the submitted site plan and is specifically exempted from the uniformity requirement of Baltimore County Code § 22-20, Baltimore County, Md.Code, § 2-58.1(n) (1985 Cum.Supp.). 4 Appellees did not choose to proceed under this method of reclassification. In the case sub judice, appellees sought an unconditional (or “open plat”) reclassification.

Section 2-58.1(j) sets forth ³⁴⁶ the requirement for such an unconditional reclassification. 5 Appellees were not required to submit any of the documentation necessary for a specific site reclassification. An unconditional reclassification, if granted, allows appellees to engage in any use permitted by the new zoning classification. Even though appellees proceeded under and requested an unconditional reclassification, they introduced substantial evidence at the hearing of their intent to use the property to expand the existing car dealership. Neighboring property owners testified that they were concerned about a general reclassification, but had no objections to appellees’ extension plans.

Thus, it is not surprising that in finding error, the Board specifically conditioned the reclassification “for the specific purpose of expanding the existing used and new car dealership.” In this way, the Board apparently felt it could grant the reclassification and at the same time protect the quality of life of the surrounding neighborhood. While we appreciate the Board’s concerns, we cannot ignore the method it chose to implement them. Appellees requested an unconditional reclassification. The Board did not grant it.

Appellees did not follow the procedure necessary for the granting of a specific site reclassification. The Board did grant that type of reclassification. Thus, we affirm the trial judge’s decision that the Board’s conditional granting of the reclassification was invalid. Appellees propose that we strike the condition but affirm the Board’s decision to reclassify the property.

We disagree. It is possible that the Board would have granted the reclassification despite the invalidity of the condition. But it is equally as likely that the Board would not have granted the reclassification unless it could attach the condition. Thus, it is necessary to remand the case to the Board ³⁴⁷ to determine whether all permitted uses under the prospective classification are, in fact, warranted. 6 Section 2-58.1(j)(2) The circuit court found that in granting the reclassification the Board’s opinion did not reflect the requisite consideration of factors enumerated in § 2-58.1(j)(2).

The court remanded the case to the Board to consider whether, based on those factors, the reclassification to BM was warranted. Section 2-58.1(j)(2) provides: “That the prospective reclassification of the property is warranted by that change or error. Any finding of such a change or error and any finding that the prospective reclassification is warranted may be made only upon consideration of factors relating to the purposes of the zoning regulations and maps, including, but not limited to, all of the following: Population trends; availability and adequacy of present and proposed transportation facilities, water-supply facilities, sewerage, solid-waste disposal facilities, schools, recreational facilities, and other public facilities, compatibility of uses generally allowable under the prospective classification with the present and projected development or character of the surrounding area; any pertinent recommendation of the planning board or office of planning and zoning; and consistency of the current and prospective classifications with the master plan, the county plan for sewerage and water-supply facilities, and the capital program.” (Emphasis added.) Under that provision, the Board must make two findings: 1) that there was error in the comprehensive zoning, and 2) that the prospective reclassification is warranted. Both of those findings may be made “only upon consideration of factors ... including, but not limited to, all of the following....” ³⁴⁸ Two issues are before us on appeal.

The first involves an interpretation of the phrase “consideration of factors.” The second issue is whether the Board’s finding of error in the comprehensive zone plan was in accordance with § 2-58.1(j)(2). Consideration of Factors Appellees filed a cross-appeal, arguing that § 2-58.1(j)(2) does not require the Board to enter specific findings as to each factor. They claim that the Board is only required to “consider” the factors. In support of their argument, appellees quote a provision from the Anne Arundel County, Md.Code dealing with specific factors to be taken into account in rezoning cases.

That provision provides in pertinent part: “Rezoning shall be granted or denied ... but a rezoning may not be granted except on the basis of an affirmative finding that: ____” (Specific factors omitted.) (Emphasis added.) Anne Arundel County, Md.Code, art. 28, § 11-102 (1985). Appellees argue that the words “affirmative finding” necessitate express findings. Conversely, they claim that the Baltimore County Board need only “consider” certain factors, hence the Board did not need to objectively deal with the factors. We do not agree with appellees’ conclusion.

The threshold question is, irrespective of the specific language used in a given statute, on what basis does a court review an agency’s actions? In United Steelworkers of America AFL-CIO, Local 2610 v. Bethlehem Steel