People's Counsel v. Prosser Co.

¹⁵⁷ EYLER, Judge. This appeal is from a judgment of the Circuit Court for Baltimore County affirming a decision by the County Board of Appeals (Board) in September, 1996 reclassifying, through the grant of a piecemeal application, certain property (the Property) from residential office/commercial rural (R.O./C.R.) and rural residential(R.C.5) to light manufacturing (M.L.). People’s Counsel for Baltimore County, 1 Glen Arm Community Association, and T. Michael Reier, its president, appellants, inquire whether the subsequent countywide comprehensive rezoning by the County Council later in 1996, which retained the R.O./C.R. and R.C.5 classifications, superseded the Board’s action. Appellants also inquire (1) whether the lack of planned water and sewer to the area in question requires reversal, (2) whether the Board’s decision is unlawful because it violated its own rules, and (3) whether the evidence is legally sufficient to sustain the finding of mistake and the finding that the reclassification to M.L. was warranted.

Appellee, The Prosser Company, Inc., inquires whether appellants, by virtue of the law of the case doctrine, are precluded from raising the issue relating to the lack of planned water and sewer and the issue relating to the legal sufficiency of the evidence to sustain the finding of mistake. We answer appellee’s inquiry in the negative, reach all of appellant’s issues, and answer the first two in the negative and the last one in the affirmative. Facts The Property in question consists of 5.2 acres and is located at the northeast corner of Glen Arm Road and Long Green Pike in Baltimore County. It was owned by Grumman Corporation for several years.

The Property, located adjacent to Grumman’s manufacturing facility, had three houses on it which were leased by Grumman Corporation at various times. ¹⁵⁸ On July 15, 1992, appellee acquired the property and later razed the houses. There are businesses located on the west side of Long Green Pike and on Glen Arm Road, including appellee’s existing facility located on the northwest corner of the two intersecting roads. The uses are residential and agricultural on the southeast side of the intersection. The County Council engages in a countywide comprehensive zoning map process every four years.

See Baltimore County Code § 26-123. As a result of the adoption of the 1992 comprehensive rezoning, 1.9 acres of the Property were zoned R.O./C.R. and 3.3 acres were zoned R.C.5. The C.R. designation was added as part of that zoning process on the recommendation of the Office of Planning & Zoning staff. 2 On August 31, 1993, appellee filed a petition with the Board to reclassify the Property from R.O./C.R. and R.C.5 to M.L., contending that there was a mistake in the 1992 comprehensive zoning map process. Appellee submitted a site plan showing its proposed use of the Property, specifically, the relocation of two of its subsidiaries from another site.

The Planning Board supported the requested change because it was consistent with the 1990 Master Plan and because the M.L. zone already abutted the Property on three sides. The Board explained the recommendation to add the C.R. designation in 1992 by stating that it was done as a matter of course and that the Office of Planning and Zoning staff review of individual properties had not been thorough. The Board held a hearing on April 6, June 16, July 19, and September 20, and by majority vote (two to one) on December 13, 1994, granted the rezoning. The Board found that the proposed development was consistent with adjacent land uses and that there was no practical use for the parcel under its ¹⁵⁹ existing zoning.

It also found that the proposed use was consistent with the 1990 Master Plan and with the 1992 Proposed Land Use Map (an amendment to the 1990 Master Plan). Consequently, the Board found that there had been a mistake in the 1992 comprehensive zoning. At the time of the Board hearing, there were three residences on the Property, each with a failing septic system. The Board found that the County Council could not have known in 1992 that appellee would combine what were originally three separate parcels to form the 5.2 acre Property and could not have known of the failing septic systems.

The Board stated that the parcels could only be used if the three septic systems were destroyed, and that the proposed use would remove the health hazard. Additionally, the Board found that the C.R. overlay was applied as a matter of course during the 1992 comprehensive rezoning and that the Office of Planning & Zoning staff had misled the County Council in its advice to apply it to the Property. 3 ¹⁶⁰ Appellants filed a petition for judicial review in the Circuit Court for Baltimore County. Appellants challenged the legal sufficiency of the evidence to support the Board’s finding of mistake but also argued that the Board lacked jurisdiction to consider the petition for reclassification. In support of the latter argument, appellants relied on Baltimore County Zoning Regulations § lA00.3.A.l.a, applicable to rezoning petitions in all R.C. classifications, which provides: 1.

No petition to reclassify an R.C. zone or portion thereof as other than an R.C. zone may be accepted for filing by the Zoning Commissioner unless— a. The Capital Program, duly adopted Baltimore County master or comprehensive plans, and the “county plan” required under Subtitle 5 of Title 9 in the Environment Article of the Annotated Code of Maryland 1987, as amended, show that the property under petition is to be serviced by public sewerage and water supply systems within TWO years after the date the petition is submitted. According to appellants, there was no evidence before the Board demonstrating compliance with that section. ¹⁶¹ In an opinion and order dated December 7, 1995, the circuit court found the requirement in the zoning regulations that public water and sewer be planned in the area within two years to be jurisdictional in nature. Because the County Charter provides that the Board “shall have original and exclusive jurisdiction over all petitions for reclassification,” see Baltimore Co. Charter § 602(e), the circuit court held that the zoning regulation in question conflicted with the Charter and was invalid.

Consequently, the circuit court concluded that the Board had jurisdiction. The circuit court also found that there was sufficient evidence to support the Board’s finding that mistake had occurred and affirmed that portion of the Board’s decision. The circuit court stated in part: At the time of the comprehensive zoning, there is evidence that the lots were presented to the Council as three individual lots. The fact that the lots were owned by a single owner does not affect this finding.

Each lot currently has a non-functioning septic system. Only one small area on one of the lots can be developed for septic use. Thus, the three lots must be consolidated for development purposes. The Council could not have known about these circumstances in 1992 at the time of the comprehensive zoning because they arose after January 1992 — the last date on which an issue could have been raised pertaining to the 1992 Comprehensive Zoning Map Process.

The failure of the septic systems requires that the three lots be developed in a consolidated fashion. The Council, however, treated the lots as three individual lots during the 1992 Comprehensive Zoning Map Process. Thus, as the Board of Appeals determined, the zoning afforded the lots was in error. (Footnotes omitted).

Although the circuit court affirmed the Board’s jurisdiction and its finding of mistake, it held that the Board’s findings were insufficient to determine if the reclassification to the new M.L. zone was warranted under Balto. Co.Code, § 2 — 356(j), ¹⁶² and specifically subsection (j)(2), 4 which sets forth findings required to be made by the Board prior to a reclassification. The circuit court remanded the case to the Board for further consideration of that issue. Appellants filed a notice of appeal to this Court in January 1996, but after filing prehearing information reports pursuant to Rule 8-205, voluntarily dismissed the appeal in April 1996.

The case was then remanded to the Board pursuant to the circuit court’s order. Two of the three original Board members had resigned by that time. The remaining member issued an opinion granting the rezoning but subsequently rescinded the opinion after his legal right to do so was challenged by appellants. A new three-member panel was formed, which included the carry-over member from the original panel who had voted to approve the application previously.

The new panel, after reviewing the transcript of the 1994 hearing, denied appellants’ request to present new evidence. The Board, through the new panel, held public deliberations on June 5 and July 3 and, in an opinion dated September 19, 1996, determined that the reclassification was warranted and granted the rezoning. In that opinion, the Board noted that the Office of Planning & Zoning staff and the Planning Board agreed that the requested reclassification was appropriate and consistent with ¹⁶³ the Master Plan in that the Property was noted as an industrial development area in the Master Plan. The Board found, in part, as follows: The Board also notes that the Petitioner brought a documented site plan and, with it, the restrictions associated with a documented site plan, which serves to provide safeguards against uses not specifically part of that documented plan.

Mr. Jeffrey Long, of the former Office of Planning and Zoning, testified that the staff conclusion in review of the instant case is that the request was appropriate and was consistent with the Master Plan. The Planning Board agreed, subject to a revision with regard to the Landmarks Preservation Commission’s concerns about the three existing houses on the instant site. Mr. Long specifically noted that the Glen Arm area is noted as an industrial development area as part of the Master Plan. At the time of the Office of Planning and Zoning review, the staff position was to eliminate proposed Building “B,” in deference to septic issues raised by the Department of Environmental Protection & Resource Management (DEPRM) in its discussions with the Petitioner.

Mr. Long testified that if the septic issue is remediated, then the staff has no problem with proposed Building “B.” Ms. Ruth Macari, Chairman of the Landmarks Preservation Commission, testified that none of the three existing buildings on the instant site is on the Baltimore County Landmarks Preservation List, further stating that the property owner has the right to raze the existing structures. In light of the documented site plan, the known failing existing septic systems, and the improvements necessary to proceed in mitigating the existing septic problems for the new structures, the Board finds that adverse impacts to water supply facilities are mitigated by the proposed reclassification; that sewerage would be improved by the proposed reclassification; and that the general welfare of the community concerning environmental issues would be enhanced by the proposed reclassification and its resultant improvements on the property. ¹⁶⁴ Mr. George Gavrelis, in his testimony regarding whether the proposed zoning reclassification is warranted, testified that the documented site plan is within the spirit and intent of the Baltimore County Zoning Regulations as the plan is in keeping with the Baltimore County Comprehensive Plans. He testified that there would be no impact on existing transportation facilities, utilities, and schools. Concerning solid waste disposal, the documented plan provides for a manufacturing enterprise; therefore, private solid waste disposal services would be employed, and there would be no additional burden on County services.

He indicated that the proposed classification is compatible with the surrounding, historically manufacturing area and is in strict accordance with existing and prospective classifications with the Master Plan, the County plan for sewerage and water supply facilities, and that the proposed reclassification has no impact to the capital program. The Board is persuaded by the testimony of Mr. Gavrelis concerning these factors. The Board notes that The Prosser Company is but part of three affiliated companies: The Amereihn Company, a miscellaneous metals manufacturing company located on Over-ton Avenue at Belair Road and Interstate 695 in Baltimore County, as well as El-Tex, an electrical control panel manufacturing facility. The expansion of Belair Road at Overton Avenue, as well as constraints at the El-Tex facility in Baltimore City, has the Petitioner in a position of not being able to expand to meet his company’s needs and the needs of his clients.

Mr. Peter Swanson, of the Baltimore County Department of Economic Development (DED), testified that DED supported the Petition, citing improved efficiency of the Petitioner, consistency with the Master Plan for the area, additional employment in Baltimore County, and an increased tax base. Mr. Patrick Ford, an expert in land planning, analyzed the zoning in the Glen Arm area, and found the area to be predominantly business and industrial in use. The Board also notes that the Petition was supported by numerous residents of the area, despite opposition by a few, ¹⁶⁵ as evidenced by the myriad of non-form letters of support. In finding the testimony of Messrs.

Long, Gavrelis, Swanson, and Ford persuasive, this Board finds that the proposed reclassification, as limited in the documented site plan, is indeed warranted, and will so order. Appellants filed a petition for judicial review of the second Board decision in the Circuit Court for Baltimore County. Prior to a hearing in that court, the County Council completed its 1996 comprehensive zoning map process, and in the new zoning map adopted on October 15, 1996, the Property retained its zoning classification as R.O./C.R. and R.C.5. In Baltimore County during the quadrennial comprehensive zoning map process, the Planning Board, after complying with prescribed procedure, recommends a comprehensively revised version of the zoning map to the County Council.

The map identifies as a separate “issue” each area or parcel considered for a change in zoning by the Planning Board. Balto. Co.Code § 26-123(d). Issues may be raised by the public, the Planning Board, or the County Council.

There is a deadline applicable to each of the above entities for raising issues. Balto. Co. Code § 26-123(e). 5 ¹⁶⁶ In the 1996 comprehensive map review process, the Property was the subject of issues 6-001 and 6-017. The only information which has been supplied to us pertaining to those issues is as follows: [[Image here]] The County Council adopted the zoning map in accordance with Baltimore Co. Code § 26-124.

The classification retained was in accordance with the Planning Board’s recommendations with respect to issues 6-001 and 6-017, as reflected in the issue file reproduced above. 6 Appellants, in the circuit court, moved to dismiss the appeal on the ground that the case was moot because the Council’s action superseded the Board’s action. The motion was denied by the circuit court. In an order dated March 7, 1997, the circuit court affirmed the Board’s opinion, holding in relevant part that (1) the reclassification of the Property by the Board was not affected by the 1996 comprehensive zoning, (2) the first circuit court opinion constituted the law of the case and ¹⁶⁷ was binding on the parties, (3) alternatively, if the first opinion were not the law of the case, it was not in error, (4) that the Board’s second opinion was not unlawful for failure to hold a de novo hearing, and (5) the evidence was legally sufficient to sustain the finding that the new zoning classification was warranted. Questions Presented As rephrased by us, appellants raise the following questions: 1.

Was the Board’s decision superseded by the County Council’s approval of the 1996 zoning map? 2. Does the lack of planned public water and sewer service to the area in which the Property is located require reversal of the Board’s decision? 3. Is the evidence legally sufficient to sustain the finding of mistake? 4. Was the Board’s failure to hold an evidentiary hearing on remand unlawful? 5.

Is the evidence legally sufficient to sustain reclassification of the Property to an M.L. zone? Appellee raises the following question: Are the appellants precluded from raising issues 2 and 3 because they were not pursued in the first appeal to this Court and not decided in the second Board decision or the second circuit court decision? Standard of Review As we stated recently in Colao v. Prince George’s County, 109 Md.App. 431 , 675 A.2d 148 , aff'd, 346 Md. 342 , 697 A.2d 96 (1997), there are two general standards of review of a decision of a zoning board: In regard to findings of fact, the trial court cannot substitute its judgment for that of the agency and must accept the agency’s conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclu ¹⁶⁸ sion based on the record; when reviewing findings of law, however, no such deference is given the agency’s conclusion. Id. at 458 , 675 A.2d 148 (quoting Columbia Road Citizens’ Assoc. v. Montgomery County, 98 Md.App. 695 , 635 A.2d 30 (1994)).

See also Liberty Nursing v. Department, 330 Md. 433, 442-43 , 624 A.2d 941 (1993)(discussing administrative review generally); Caucus v. Maryland Securities, 320 Md. 313, 323-24 , 577 A.2d 783 (1990)(same). Discussion I. As mentioned above, every four years Baltimore County performs a comprehensive review of its zoning map. Baltimore County Code §§ 26-122 to 26-125. During the review process; a property owner, Office of Planning & Zoning staff, Planning Board members, the County Council, or citizens at large may request zoning changes.

All petitions filed are assigned an issue number. After public hearings, the County Council votes on each issue, and when they are all resolved, it adopts a new comprehensive zoning map. Merely because a property owner or other non-governmental entity does not file a timely issue does not mean necessarily that a particular property is beyond the reach of the comprehensive rezoning process. In 1991, the Office of Planning & Zoning identified 2.3 acres of the Property zoned R.O. as an issue.

As also mentioned previously, the C.R. designation was added and was approved by the County Council as part of the 1992 comprehensive zoning map process. Joseph Prosser, president of appellee, testified at the 1994 hearing before the Board that he did not participate in that process because he was unaware of it when he negotiated for and purchased the Property in 1992. In the time period between each comprehensive zoning map process, the Board has the power to change the zoning classification of property. Baltimore County Code § 2-356.

Section 2-356 effectively incorporates the so-called mistake or change rule. Section 2-356(j)(l) requires: ¹⁶⁹ (j) Findings prior to reclassification. Before any property is reclassified pursuant to this section, the board of appeals must find: (1) That, except as limited by the terms of subsection (j)(3) of this section, there has occurred a substantial change in the character of the neighborhood in which the property is located since the property was last classified or that the last classification of the property was established in error. See Coppolino v. County Board of Appeals, 23 Md.App. 358 , 328 A.2d 55 (1974).

Additionally, § 2 — 356(j)(2) provides that the Board must find “that the prospective reclassification of the property is warranted by that change or error.” It further requires that the prospective reclassification may be made only upon consideration of certain enumerated factors. See § 2-356(j)(2) at p. 8, n. 4. A petition for reclassification in zoning may be filed with or without documentation relating to the proposed use of the property. Section 2-356®.

If such documentation (usually a site plan and/or architectural elevations) is filed and the request is granted, the property may be developed only in accordance with the plan included within that documentation. If it is not so developed within three years from the date of the final order granting the petition, the zoning classification reverts to the previous classification. Section 2-356(n). If a petitioner submits a site plan, a mistake/change and the warrant for the requested zone must still be shown before a reclassification will be granted.

A reclassification conditioned on documentation under § 2-356(Z) by the Board is specifically exempted, see § 2-356(n), from the uniformity requirement contained in Baltimore County Code § 26-122. 7 ¹⁷⁰ This rezoning subject to documentation procedure, in the nature of conditional zoning, is not attacked by the parties herein as being unlawful. A reclassification based on a specific site plan has been discussed by this Court, see People’s Counsel v. Mockard, 73 Md.App. 340 , 533 A.2d 1344 (1987), but the issue of its validity has never been squarely adjudicated. Because the issue is not before us, we assume, without deciding, that it is valid. Appellants assert that the provision for site plan rezoning was not intended to subvert comprehensive rezoning.

They argue that an appellate court applies the law existing as of the time of its review, absent interference with vested rights or absent legislative intent to the contrary. See Enviro-Gro v. Bockelmann, 88 Md.App. 323 , 594 A.2d 1190 (1991). But see the discussion in Holland v. Woodhaven Building & Development, 113 Md.App. 274 , 687 A.2d 699 (1997). In the case before us, the County Council acted and, by ordinance dated October 15, 1996, chose by comprehensive rezoning the same zoning that existed prior to the Board’s grant of the piecemeal reclassification petition.

Appellants conclude that the Council’s legislative act supersedes the Board’s action and is presumptively correct. See Coppolino, 23 Md.App. at 369, 328 A.2d 55 . Appellee asserts that the County Council has evinced an intent not to apply the 1996 comprehensive rezoning to the Property, as shown in Baltimore County Code § 2-356(n). Subsection (n) is set forth verbatim, and we have underlined that portion of the subsection relied on by appellee.

It provides: Use of property. Property may be reclassified under this section only upon making the findings required under section (j) of this section. Property may not be reclassified solely on the basis of documentation relating to the property’s proposed use. However, any provision of section 26-122 to the contrary notwithstanding, if the petition to reclassify the property does include such documentation and is granted, the property may be used only in accordance with the plan included within that documentation; the zoning ¹⁷¹ classification of any such property will revert to the previous classification unless, within three (3) years after the date of the final order granting the petition, the property is being used in accordance with the plan or, in a case where development is necessary to implement the plan, unless the development either is completed or has been substantially undertaken and is being diligently pursued to completion.

The requirement that such a property be utilized in accordance with a plan and the provision that otherwise the classification of the property will revert will not be affected by the subsequent enactment of a zoning map, pursuant to section 26-121* or 26-125 of this Code unless the zone classification of the property is further changed by that map. (Emphasis added.) Appellee asserts that a petition for reclassification granted by the Board pursuant to a documented site plan is not affected by the adoption of a subsequent comprehensive zoning map unless the Council changes the classification granted by the piecemeal rezoning process. According to appellee, because the Board’s action was not final in the case before us, there was no “change” in the 1992 comprehensive zoning prior to the Council’s action in 1996, and the Council did not “further change” the classification in 1996. By making no change, the County Council kept the same zoning, subject to the pending reclassification case.

Appellee points out that if the Council’s adoption of the 1996 zoning map negated the Board’s approval of the reclassification petition, protestants would be able effectively to use the appeal process to delay approval of any piecemeal petition for reclassification until adoption of the next comprehensive zoning map. Appellee concludes that, if this Court determines that this issue is moot based on the County Council’s action, it will “sound the death knell for interim rezoning,” presumably in Baltimore County only. Very often in the litigation process, courts are asked to search for legislative intent, and we once again embark on that ¹⁷² journey. We frequently stop searching when we find words, aided by rules of construction, that reveal the legislative intent.

In the case before us, we must journey further, as we are permitted to do, and look to the legislative scheme and the practice and procedure of the various entities involved in the Baltimore County