People's Counsel v. Elm Street Development, Inc.

⁶⁹⁴ KRAUSER, Judge. Appellants are People’s Counsel for Baltimore County; Maryland Line Area Association; Richard McQuaid; and Marion V. Runkles, III. 1 Appellees are Elm Street Development, Inc. (“Elm Street”) and Baltimore County. The Baltimore County Board of Appeals approved Elm Street’s development plan for a parcel of land known as the “Miller-Tipper property,” based in part on two County agencies’ recommendations that the plan complied with the relevant zoning regulations. When the Circuit Court for Baltimore County affirmed the decision, appellants noted this appeal, arguing that the Board erred in not requiring the County agencies to lay out the “facts and reasons” behind their recommendations.

Appellants also noted an appeal regarding a related development plan from Elm Street. To fully understand the questions raised on appeal, a brief review of the Baltimore County plan approval process is required before we proceed with our analysis. PLAN APPROVAL PROCESS In Baltimore County, the process of obtaining approval for a development plan begins with the filing of a concept plan which, among other things, “[generally complies] with county regulations and standards” and which will be reviewed at a Concept Plan Conference involving the developer and the relevant County agencies. Baltimore County Code (2003) §§ 32-4-211 — 32-4-216.

After that review, the Department of Permits and Development Management (“PDM”) holds a Community Input Meeting to allow “Resolution of community concerns and developer constraints within the context of ... county regulations and policies.” Code § 32-4-217. Participants may include “representatives of the county, the [developer], owners of adjacent property, and representatives of local community associations or umbrella groups.” Code ⁶⁹⁵ § 32-4-101(l). Any relevant comments raised or conditions proposed that are not resolved at the Community Input Meeting must be “[a]ddress[ed]” by the appropriate agency and submitted to the hearing officer. Code § 32-4-217(e)(3).

Only after participating in the Community Input Meeting can the developer file a development plan. Code § 32-4-221. The development plan must not be “inconsistent” with the concept plan unless the inconsistencies are “related to the outcome of the [CJommunity [IJnput [MJeeting.” Code § 32-4-225. Otherwise, another Community Input Meeting must be held on the plan.

Id. The development plan, too, must undergo a process of review. As part of that review, County representatives must visit the property involved. Code § 32-4-226(a).

And County agencies, such as PDM, the Office of Planning, and the Department of Environmental Protection and Resource Management (“DEPRM”), must review the plan for compliance with County regulations. Code § 32-4-226(b). After that has occurred, the developer and the relevant County agencies attend a Development Plan Conference, which the Community Input Meeting participants may also attend. Code § 32-4-226(c)(1).

The Development Plan Conference provides the parties with an opportunity to resolve “any conflict between agency comments” and “any comments raised or conditions proposed at the [CJommunity [IJnput [MJeeting.” Code § 32-4-226(c)(2). These comments and conditions are available to the public upon request. Code § 32-4-227(c)(3). Finally, after the Development Plan Conference is held, the plan goes before a hearing officer for a “public quasi-judicial hearing.” Code § 32-4-227(a).

Before the hearing, the County agencies must submit, among other things, any agency comments on the development plan as well as agency responses to any “unresolved comments raised or conditions proposed or requested” at the Community Input Meeting. Code § 32-4-226(d). During the hearing, the hearing officer is required to “consider any comments and conditions submitted by a county agency,” Code § 32-4-227(e)(1), and to “take testimony ⁶⁹⁶ and receive evidence regarding any unresolved comment or condition,” Code § 32-4-228(a)(1). But, “[i]f no comments or conditions are received by the [h]earing [ojfficer,” the development plan “shall be considered to be in compliance with county regulations.” Code § 32-4-227(e)(2).

The hearing officer then issues a “final decision” on the development plan. Code § 32-4-229(a)(1). The hearing officer “shall grant approval” of a development plan which “complies with these development regulations and applicable policies, rule and regulations.” Code § 32-4-229(b)(1). The hearing officer’s final decision may be appealed to the Board.

Code § 32-4-227(b)(2). The Board’s decision, in turn, may be reviewed by the circuit court. Maryland Rule 7-202. ELM STREET’S REVISED RED-LINED DEVELOPMENT PLAN Elm Street sought to develop the approximately 72.47 acre Miller-Tipper property into a residential subdivision of 14 single-family dwellings.

Because the property was zoned RC-4 under the Baltimore County Zoning Regulations (1998) (“BCZR”), the development plan for the property had to designate a “minimum of 70%” of the property as a “conservancy area.” BCZR § 1A03.5. The conservancy area was to include certain “features,” such as wetlands and steep slopes, to be developed “as determined by the standards contained in the Comprehensive Manual of Development Policies;” the Director of the Office of Planning and the Director of DEPRM were to determine whether these requirements were met. BCZR § 1A03.5(A). Under the BCZR, the property was also required to be “held in unified ownership and control.” BCZR § 1A03.5(C).

Before work could commence on the property, Elm Street had to obtain the County’s approval of its development plan. In accordance with the County’s procedures, Elm Street filed a concept plan for the property. After it was reviewed at the Concept Plan Conference, a Community Input Meeting was held which allowed residents of the locality to review and ⁶⁹⁷ comment on the proposal. Elm Street then submitted a development plan to PDM, which was reviewed by the County agencies and discussed at the Development Plan Conference.

Finally, the plan was submitted to the hearing officer — the County Zoning Commissioner — for a decision. During the ensuing three-day hearing before the hearing officer, County agencies and members of the community had the opportunity to comment on the plan and suggest conditions to be imposed upon it. At that time, PDM, the Office of Planning, and DEPRM expressed concern that the property had two conservancy areas with two different owners, which they claimed was prohibited in an RC-4 zoned property. The hearing officer agreed and determined, among other things, that the “two conservancy areas proposed in this case, under different ownership, are simply not permitted,” absent “compelling factors,” under § 1A03.5(C).

He therefore denied approval of the development plan as well as Elm Street’s subsequent request that he reconsider that decision. Elm Street appealed the hearing officer’s decision to the Board. The Board reversed the hearing officer’s decision and approved the plan, finding that the proposed conservancy area satisfied the requirements of § 1A03.5(C) because the regulation permitted dual ownership of the conservancy area even without there being any “compelling interests.” Challenging that decision, appellants petitioned the circuit court for judicial review. The circuit court found that, while the Board was correct in holding that “separate ownership” of the conservancy area was “permissible,” the two parcels in the plan still had to be “under the control of one entity, that is, there must be ‘unified control’ ” under § 1A03.5(C).

Moreover, because the record was also silent as to “whether the proposed conservancy area include[d] the features set forth in [§ 1A03.5(A) ],” the circuit court found that there was a lack of “substantial evidence” that Elm Street had satisfied the requirements of §§ 1A03.5(A) and (C). It therefore remanded the case for the Board to determine two matters: whether the ⁶⁹⁸ Directors of the Office of Planning and DEPRM determined that “the proposed area complie[d] with the regulation and standards” under § 1A03.5(A), and whether the conservancy-area would be held under “unified control,” as required under § 1A03.5(C). The Board, in turn, remanded the case to the hearing officer for him to first address those issues. After the circuit court issued its decision, Elm Street submitted a revised red-lined development plan to the Office of Planning and DEPRM, showing the conservancy area now to be a single area under the sole ownership of Glen Arm Homes, LLC.

Upon review of this plan, the Directors of the Office of Planning and DEPRM informed the hearing officer, in their written “recommendations,” that they had determined that the sole ownership of the conservancy area by Glen Arm Homes, LLC made the plan “acceptable” under the requirements of § 1A03.5(C). The Directors also determined that the conservancy area met the “[performance standards for rural cluster development” as required under § 1A03.5(A). After a hearing, the hearing officer found that the circuit court’s remand order was satisfied by the revised red-lined development plan and the written recommendations of the Directors of the Office of Planning and DEPRM, which “clearly and unambiguously set out the positions of the two County Departments, and resolved the issues identified by [the circuit court].” Having so found, he determined that “oral testimony was ... unnecessary,” further pointing out that the recommendations “were offered into evidence and received without objection” and that “representatives of the[] two County agencies were present at the hearing to address any concerns or questions by any party.” Since the revised red-lined plan satisfied the circuit court’s order and complied “with all applicable requirements and standards” of the “development review regulations” of the “County Code, the BCZR and all other [relevant] policies, standards and requirements,” the hearing officer approved the development plan. Appellants appealed the hearing officer’s decision to the Board.

The Board agreed with the hearing officer and found ⁶⁹⁹ that the circuit court’s remand order had been satisfied by the revision to the development plan creating “one single lot which was owned by Glen Arm Homes, LLC” and by the recommendations submitted by the Directors of the Office of Planning and DEPRM. The Board observed that appellants could have “presented witnesses” or questioned the agency representatives, who were present at the hearing. By failing to do so, “they accepted,” the Board found, “the recommendations of the two agencies.” The Board concluded that, since neither the County agencies nor anyone present “raised [any] issues with respect to the property,” it had “no basis for overturning or remanding” the hearing officer’s decision. Appellants then petitioned the circuit court for review of the Board’s decision.

Agreeing with the Board’s conclusion, the circuit court found that the revised red-lined development plan “resolved” the issue of “unified ownership and control” under § 1A03.5(C), 2 and that the recommendations issued by the Directors of the Office of Planning and DEPRM resolved the issue of compliance with the conservancy area requirements of § 1A03.5(A). In so ruling, it rejected appellants’ argument that the agencies had to provide “reasons for determining that the conservancy area [met] the applicable standards,” stating that “[n]o case law, statute or regulations requires that reasons for such approvals be stated.” 3 And, since “[n]o evidence was presented to the [h]earing [o]fficer” that the recommendations from the Office of Planning and DEPRM “were not reasonably based on facts proven,” the circuit court held that “the [h]earing [o]fficer and [the Board’s] approvals] of the [revised ⁷⁰⁰ red-lined] development plan [were] reasonably based on the facts proven.” It therefore affirmed the Board’s decision. ELM STREET’S REFINED DEVELOPMENT PLAN While appellants’ petition for judicial review regarding the original plan was pending in the circuit court, Elm Street filed a request for approval of a “Plan Refinement” of the original plan with the Development Review Committee (“DRC”). The refinement involved the “removal of a lot line in the proposed conservancy area.” Upon review, DRC recommended approval of the refinement.

PDM adopted the DRC’s recommendations, a decision which appellants appealed to the Board. The Board addressed appellants’ appeal regarding the revised red-lined development plan together with their appeal regarding the refined development plan. It dismissed the latter appeal, concluding that the appeal was moot. The circuit court reached the same conclusion, finding that, because “the case ha[d] gone forward on the [revised] ‘red-lined’ development plan,” the “need for the exemption [was] no longer operative” and the petition on the refined plan was moot.

STANDARD OF REVIEW In reviewing the decision of an agency, our role “is limited to determining if there is substantial evidence in the record as a whple to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Md. State Police v. Warwick Supply & Equip. Co., Inc., 330 Md. 474, 494 , 624 A.2d 1238 (1993). In making such a determination, we “may not substitute our judgment for that of the Board ... unless the ⁷⁰¹ agency’s conclusions were not supported by substantial evidence or were premised on an error of law.” Montgomery County v. Rotwein, 169 Md.App. 716, 727 , 906 A.2d 959 (2006).

Moreover, in deciding “whether the agency’s