People's Counsel v. Crown Development Corp.

McAULIFFE, Judge. This case involves the subdivision and development process in Baltimore County. At the root of the controversy are questions involving the computation of density standards under the Baltimore County Zoning Regulations and what constitutes a “subdivision tract” within the meaning of § 1B01.2 of those regulations. In the course of considering these questions we briefly analyze the functions and interaction of the County Review Group (CRG) and the Board of Appeals in the plan review process in Baltimore County as it existed at the time.

We also consider respondent’s claim that People’s Counsel should not have been permitted to intervene when this case was before the Circuit Court for Baltimore County. ³⁰⁶ I. In 1987, Crown Development Corporation (Crown) filed with the county department of public works a proposed plan for the development of 30.154 acres of land in the Pikesville area of Baltimore County. The plan represented that Crown was the contract purchaser of five parcels of land which it proposed to assemble as a single tract to be known as Woodholme Green. The property was bounded on the north by the Baltimore Beltway and on the west by Woodholme Avenue. Immediately to the west of Woodholme Avenue, and therefore to the west of the proposed subdivision, was an improved tract of land owned by R. Wagers, consisting of 7.04 acres.

The plan showed the Wagers tract as an adjacent property in separate ownership, and not included within the plan. The plan for Woodholme Green was processed in accordance with what were then §§ 22-53 through 22-105 of the Baltimore County Code (1978,1983 Cum.Supp.). 1 Following receipt of comments from appropriate public agencies and after required publication and notifications, the plan was considered by the CRG on 17 June 1987. The CRG consisted of “the directors of the department of public works and office of planning and zoning or their designated representatives.” Section 22-57. In this instance Dwight Little, Chairman of the Department of Public Works, and Gary Kerns, Co-Director of the Office of Planning, comprised the CRG.

At the meeting of the CRG, residents of the area were given an opportunity to comment on the plan. A written summary of the meeting disclosed that negotiations were under way between the developer and interested citizens to reach agreement concerning development of the property, ³⁰⁷ and that approval of the plan was to be conditioned on the filing of a written agreement. The CRG issued conditional approval of the plan, and instructed the developer to, among other things: “[pjresent this Plan to the citizens and then formalize agreements. Provide the County with documentation of these agreements____ The plan can then be finally approved.” Appended to the summary was a handwritten note identifying the persons or entities who were to become parties to the contemplated agreement.

By written agreement dated 23 September 1987, the developer 2 agreed to certain conditions and restrictions concerning the development of the property, and the local citizens association and ten individuals agreed to not object to the granting of CRG approval of the plan. A copy of the plan, revised as of 17 September 1987, was attached to the agreement as an exhibit. The agreemeht provided, among other things that: a. The property may be improved by no more than 132 single family townhouse units, and no other type of new development. ****** f.

The property shall be developed substantially in accordance with the plat entitled “Woodholme Green, Revised 9/17/87,” attached and incorporated as Exhibit “A"hereof. The agreement was apparently submitted to the CRG, and the developer proceeded in accordance with §§ 22-64 through 22-67 with additional matters necessary for recordation of a plat. At some point in time, the developer advised the Department of Public Works that it was chang ³⁰⁸ ing the name of the subdivision from Woodholme Green to Roslyn Station. Thereafter, on 10 December 1988, Crown and an entity known as NV Land filed a proposed plan for development of the 7.04 acre tract lying to the west of Woodholme Avenue, which we have formerly referred to as the Wagers Tract.

The plan called for construction of 48 condominium units, and the subdivision was to be known as “Roslyn Station Section II.” Density calculations submitted with the plan showed that the 7.04 acres would support the erection of only 38.72 units. To make up for the shortfall in allowable density, the applicants proposed to utilize density units that it represented were “available” from the earlier Woodholme Green site. The applicants’ theory was that Woodholme Green had an original density development potential of 167 units, of which only 133 had been used, and that § 1B01.2 of the Baltimore County Zoning Regulations permitted computation of density by reference to an entire tract, so that some of the unused density from Woodholme Green was available for development of Roslyn Station Section II. The new plan was considered by the CRG at its meeting of 2 February 1989.

On this occasion, the CRG was comprised of C. Thomas Watson, Chairman of the Department of Public Works, and Joe Maranto, Co-Chairman of the Office of Current Planning — two individuals who had not participated in the CRG meeting involving Woodholme Green. The CRG noted the written comment of the zoning office concerning the need for an overall plan covering the original and new sites in order to validate the proposed density shift. The CRG also heard from two residents of the area who had signed the agreement of 23 September 1987, who argued that it would be improper to permit unused density from the original site to be used in connection with this proposed plan. The CRG granted final approval of the plan at the conclusion of the hearing.

Alison Tucker, one of the residents of the area who had signed the original agreement, appealed the decision to the County Board of Appeals. ³⁰⁹ The Board of Appeals received testimony from witnesses for both sides, and considered the record from the CRG. The Board acknowledged that pursuant to § 22-61 of the Baltimore County Code the final action of the CRG was “presumed correct,” but the Board nevertheless found that the CRG’s decision to allow a transfer of density from the original site to Roslyn Station Section II “was in error and was an arbitrary decision.” Finding the decision of the CRG to have been correct in all other respects, the Board approved the plan with the restriction that [n]o transfer of density units from any other site to this site be permitted and the developer’s plan be amended to show only the density that the zoning permits. Crown appealed to the Circuit Court for Baltimore County. The People’s Counsel for Baltimore County, citing a “governmental interest in the implementation of the Baltimore City Zoning Regulations on residential density,” sought leave to intervene as an additional appellee.

That motion was granted over Crown’s objection. The Circuit Court, Judge J. William Hinkel, held that the two tracts had been combined into a single project, and that the allocation of density units to Roslyn Station Section II was therefore neither arbitrary nor illegal. The Court reversed the decision of the Board and ordered reinstatement of the approval of the CRG. People’s Counsel and Alison Tucker appealed to the Court of Special Appeals.

Crown filed a cross-appeal, arguing that the Circuit Court should not have permitted the intervention of People’s Counsel. The Court of Special Appeals affirmed in an unreported opinion, holding that because the Baltimore County Code would have permitted amendment of the final development plan to unite the two parcels into one tract, the CRG could properly treat the two tracts as one for the purpose of density utilization. We granted the petitions for certiorari filed by People’s Counsel and by Alison Tucker, and we reverse. ³¹⁰ II. We hold that the Board of Appeals correctly refused to permit a transfer of density units between two tracts of land that had not been joined as one, and were not treated as a single tract by the plan under consideration.

The Baltimore County Zoning Regulations which address utilization of density units within a single subdivision tract are as follows: Application of Maximum Density Standards to Tract in One Zone. The maximum gross residential density permitted in any one D.R. zone shall control only as applied to the total gross residential acreage within a subdivision tract, and shall not apply to or establish minimum areas of lots created by subdivision within such tract. B.C.Z.R. § 1B01.2 A.l. Purpose.

Pursuant to the regulations for D.R. zones, a portion of a tract of land may be subdivided for development at a higher residential density than the maximum average density permitted, lessening the permitted density of development on the remainder of the tract; or a portion of the tract may be subdivided for development at less than the maximum average density, thus increasing the density at which the remainder of the tract may be developed____ B.C.Z.R. § 1B01.3 B.l. The first development plan (Woodholme Green) did not in any manner suggest that it was part of a larger tract. Manifestly, it was not. It purported to cover, and did in fact cover 30.514 acres of land, all to the east of Woodholme Avenue.

When the plan was considered by the CRG and by the residents of the area, there was no suggestion that the Wagers Tract, containing 7.04 acres and lying to the west of Woodholme Avenue, was or would ever be involved. Indeed, the developer’s representative testified that when the plan for Woodholme Green was submitted, the developer did not have “any connection” with the Wagers property. Accordingly, the nearby property owners who entered into ³¹¹ an agreement with the developer to limit development on the initial tract to 133 units had no reason to believe that they needed to protect themselves against the later utilization of unused density units. As the Board of Appeals later noted, the Baltimore County Zoning Regulations involved in this case do not permit the transfer of density units between tracts; rather, the regulations permit a degree of flexibility, or “clustering,” within a single tract.

The Woodholme Green plan was given final approval without any amendment to add additional property to that plan. Had there been such an amendment prior to final approval of the plan, the agreement of the parties arguably would have continued to control the density development of all property shown on the plan. The agreement clearly ties the property shown in the plan to the restriction — indeed, the agreement incorporates the plan by reference and refers to the property restricted as the property shown on the plan. Even if this were not so, and the developer had amended his plan before final approval to include the Wagers property so that the unused density might conceivably be used there, the property owners would have had an opportunity to amend the agreement, or to withdraw entirely from the agreement and contest approval of the plan as amended.

The developer did not, however, make any attempt to amend the plan before final approval, although, as testimony by the developer’s representative later made clear, the developer had signed a contract to purchase the Wagers property before the agreement was signed, and thus before final approval of the plan. The Baltimore County Code does provide for amendment to an approved plan. Section 22-63 provides that “[a]ny material amendment to an approved plan shall be reviewed and approved in the same manner as the original plan.” The addition of a tract of 7.04 acres would certainly constitute a “material amendment.” This record does not disclose that any such amendment was made. The plan for Woodholme Green that is before us does not include the Wagers property.

It has nowhere been suggested that ³¹² Alison Tucker or the other nearby residents were given notice of a proposed amendment to the Woodholme Green plan, or given an opportunity to attend a CRG meeting called for such purpose. Curiously, at the 1989 meeting of the CRG called to consider the Roslyn Station Section II plan, there was a reference by Joe Maranto, one of two members of