Rouse-Fairwood Limited Partnership v. Supervisor of Assessments of Prince George's County

HOLLANDER, Judge. This appeal focuses on the phrase “more intensive use” as it was used in Md.Code (1986, 1994 RepLVol., 1996 Cum.Supp.), § 8 — 209(h)(l)(ii) of the Tax-Property Article (“T.P.”). 1 On December 1, 1994, the Supervisor of Assessments for Prince George’s County, appellee, imposed an agricultural transfer tax and penalty upon appellant, Rouse-Fairwood Limited Partnership (“Rouse”), in connection with three properties ⁶⁷³ that appellant owned in Prince George’s County. The Maryland Tax Court upheld that determination on February 21, 1996, and, by order dated March 28, 1997, the Circuit Court for Prince George’s County affirmed. Rouse timely noted its appeal and presents two questions for our review, which we have rephrased slightly: I. Did the Tax Court err in construing the language of T.P. § 8-209 to equate “more intensive use” of land with enhanced value and flexibility or variety of use, as opposed to the traditional factors of intensity that measure the impact of use on the land?

II

Did the Tax Court err in tacitly rejecting or failing to address Rouse’s argument that the intensity of use permitted on Parcels 2 and 3, when viewed separately, is less under M-X-C zoning? For the reasons that follow, we answer the first question in the negative and the second question in the affirmative. Therefore, we shall affirm in part and reverse in part and remand for further proceedings. 2 Factual background The facts are largely undisputed. In 1990, Rouse acquired three properties in Prince George’s County from three different owners, consisting of a total of 1,058 acres located just west of the City of Bowie (the “subject properties”).

Parcel 1 measures approximately 473 acres, Parcel 2 measures approximately 339 acres, and Parcel 3 measures approximately 246 acres. At the time the subject properties were acquired, each was used as a sod farm and had an agricultural use tax assessment. To maintain that favorable assessment, appellant filed three declarations of intent to maintain the agricultural use of the properties for five years (ie., through June 30, ⁶⁷⁴ 1995). Pursuant to T.P. § 13-305, such a declaration of intent permits a transferee to avoid imposition of the 5% agricultural land transfer tax.

If the transferee fails to comply with the declaration of intent, however, or if the property fails to qualify during the five-year period for the agricultural assessment under T.P. § 8-209, then T.P. § 13 — 305(c)(2)(i) provides that the agricultural transfer tax, plus a 10% penalty, “is due on that portion of land that fails to comply with the declaration of intent or to qualify for farm or agricultural use.” Pursuant to T.P. § 8-209(h)(l)(ii), land did not qualify for an agricultural use assessment if it was “rezoned after July 1, 1972, to a more intensive use than the use permitted on or before July 1,1972____” On July 1,1972, the subject properties were zoned R-R (Rural Residential). 3 T.P. § 8-209(h)(l)(ii) stated: [T]he following land does not qualify to be assessed under this section: * * * * (ii) land rezoned after July 1, 1972, to a more intensive use than the use permitted on or before July 1, 1972, if a person with an ownership interest in the land has applied for or requested the rezoning.... In 1992, the District Council amended the Prince George’s Code to include a Planned Unit Development (“PUD”) zoning category, called Mixed Use Community Zone (“M-X-C”). One of the stated purposes of the M-X-C zone is to “[cjreate a comprehensively planned community with a balanced mix of residential, commercial, recreational, and public uses.” Prince George’s County Code § 27-546.1. Appellant participated in developing the ordinance that created the classification.

Generally, it allows a PUD on property that is at least 750 acres in size and permits a phased-in development of property. ⁶⁷⁵ Appellant filed an application in May 1993, to rezone the subject properties to M-X-C and, in May 1994, the District Council approved the rezoning. 4 Rouse indicated that it intends to develop the subject properties over a period of ten to fifteen years. In December 1994, appellee issued three separate notices to appellant stating that the May 1994 rezoning of the subject properties to M-X-C violated Rouse’s declarations of intent. Therefore, the Supervisor of Assessments imposed the agricultural transfer tax, plus penalties, on each parcel. In total, the Supervisor levied $408,377.50 in taxes and $40,837.75 in penalties.

Appellant challenged the assessments by way of an appeal to the Maryland Tax Court. On January 17, 1996, the Tax Court held a day-long hearing at which both parties presented expert witnesses. The experts testified about the permitted uses of the subject properties under the current M-X-C zoning and those that were permitted on July 1, 1972, when the subject properties were zoned R-R. The experts also expressed their opinions about whether M-X-C zoning constituted a more intensive use than R-R zoning as of July 1,1972. Under R-R zoning in 1972, the minimum lot size was 20,000 square feet for single family detached residential development. “Cluster” developments, 5 with reduced lot sizes and the flexibility to introduce single family attached dwellings (townhouses) into the total dwelling yield of a development proposal (but at no greater number of total units than could be obtained under the maximum allowed non-cluster density of 2.0 units per acre), were also permitted.

But the difference between ⁶⁷⁶ the reduced lot size (10,000 square feet for detached dwellings and 1,500 square feet for townhouses) and the conventional lot size (20,000 square feet) was to be set aside as open space elsewhere in the parcel. Nonresidential uses, permitted as of right, included, inter alia: Churches, libraries, museums, public buildings, public parks, and animal hospitals. Uses permitted by special exception included, inter alia: airports, antique shops, cemeteries, commercial recreational attractions, golf courses, hospitals, motels, horse racing tracks, sanitary landfills, sawmills, and tourist homes. Principal uses not enumerated as permitted uses or as special exception uses were expressly not allowed in the R-R zone.

M-X-C zoning permits a mix of uses on the land. In order to obtain M-X-C zoning, a Preliminary Development Plan (“PDP”) must accompany the rezoning application. The ordinance requires a PDP to comply with the following criteria: (1) at least 30% of the gross area must be devoted to community use areas; (2) at least 10% of the gross area must be devoted to single family, low density dwellings; (3) at least 20% of the gross area must be devoted to single family, medium density residential units; (4) no more than 15% of the gross area may be devoted to “other residential” units; and (5) nonresidential areas must comprise between 5% and 20% of the gross area of the zone. These general parameters of the development are refined in the subsequent phases of the approval process, in which the developer must submit a Comprehensive Sketch Plan (“CSP”) and a Final Development Plan (“FDP”).

Both the CSP and FDP must be consistent with the PDP. Under’s Rouse’s PDP, 25% of the gross acreage will be used for single family low density dwellings, 20% for single family medium density dwellings, 15% for other residential uses, 5% for nonresidential uses, and 35% for community use areas. Permitted residential uses in the M-X-C zone include: single family detached houses; townhouses; duplex houses; and apartments. As a matter of right, various nonresidential uses are also permitted under M-X-C zoning, but not under R-R zoning: banks; data processing facilities; eating or ⁶⁷⁷ drinking establishments; research and development and testing laboratory; blueprinting, book, camera, gift, jewelry, music, souvenir, or other specialty stores; department store; dry cleaning; drugstore; food and beverage store; gas station; hardware store; pet shop; photographic supply store; seafood market; repair shops; variety and dry good stores; and an arena.

Appellant’s land use planning expert, Thomas Kieffer, the head of the planning and zoning department of Ben Dyer Associates, opined that “the development permitted under the M-X-C at [the subject properties] is less intense than that permitted under the R-R.” He compared the properties under the two zones, using some of the criteria developed in the 1960s by the Federal Housing Administration (“FHA”) 6 and some of his own. Kieffer admitted that he could not perform an analysis using all of the FHA factors, however, because the factors were designed to analyze completed projects rather than planned projects. He considered the following factors: (1) density, expressed in terms of dwelling units per acre (“du/ac”) for residential development, and floor area ratio (“FAR”) for nonresidential development; (2) average household size; (3) student yield; (4) sewage disposal requirements; ⁶⁷⁸ (5) parking requirements; and' (6) traffic congestion. Kieffer concluded that, in every category except two (parking requirements and traffic generation during p.m. peak hour trips), the R-R zoning category was more intensive than that under MX-C zoning.

Regarding the nonresidential uses, Kieffer compared a hospital, which was a permitted use in R-R zoning in 1972 as a matter of right, to the mix of office, service, and institutional type uses permitted under M-X-C zoning. For comparison purposes, Kieffer used the Greater Laurel Beltsville Hospital, which had been built in an R-R zone, on a 48 acre parcel. After considering the intensity factors, Kieffer concluded that the hospital under R-R zoning would be more intensive than the commercial type uses permitted under M-X-C zoning. Kieffer’s comparison of residential development under R-R zoning and M-X-C zoning focused largely on the differences in density.

Specifically, he determined that, based on a housing mix of 75% single family detached dwellings and 25% single family attached dwellings, the R-R zoning had a net density of 1.849 dwelling units per acre. On the other hand, under M-X-C zoning, pursuant to the PDP approved as part of the M-X-C rezoning for the subject properties, based on a housing mix of 37% single family detached dwellings, 58% single family attached dwellings, and 5% multi-family housing, the net density would be 1.79 du/ac. In his analysis of the MX-C zoning, Kieffer deducted approximately 60 acres to account for a proposed road interchange that exists on the current master plan. Kieffer did not subtract this 60 acres when he analyzed the subject properties under R-R zoning, however, because the interchange did not exist on the 1972 master plan.

Instead, Kieffer subtracted 21 acres under his R-R zoning analysis to account for an “outer beltway” that had been shown on the 1972 master plan. 7 ⁶⁷⁹ In viewing the subject properties collectively, Keiffer concluded that M-X-C zoning was less intensive than R-R zoning. In addition, Kieffer analyzed each of the subject properties individually. For Parcel 1 he concluded that the residential uses under M-X-C were more intensive than under R-R, but that the nonresidential uses on that parcel were less intensive than under R-R. With respect to Parcel 1, he opined that M-X-C zoning was not more intense than R-R zoning. He explained: “[I]t’s too close to call.

I can’t say for sure that the overall effect is that parcel one would be more intense under the M-X-C zone.” For Parcels 2 and 3, however, which are solely targeted for residential development, Kieffer concluded that M-X-C zoning was less intensive than under R-R zoning. Appellee’s expert, Thomas Lockard, a land use planner with the Prince George’s County Planning Department of the Maryland-National Capital Park & Planning Commission, testified, in response to a question by the Tax Court, that, during the relevant time period, the only dwelling types permitted under R-R zoning were “single family detached [homes] and if you’re under the cluster [development] provision, single family attached [homes].” 8 Record Extract at 289. He further noted that, unlike in the M-X-C category, no apartments were permitted in an R-R property. Lockard also stated that, under M-X-C zoning, the permitted dwellings include single family detached houses, townhouses, duplexes, triplexes, and apartment buildings.

Regarding nonresidential uses, Lockard ⁶⁸⁰ listed the commercial establishments permitted as a matter of right under M-X-C, but not under R-R zoning. He also observed that a hospital would be “probably the most intensive use that would have been permitted in the R-R zone.” Lockard offered his opinion that, “based ... on the types of uses generally permitted under the R-R zone versus the types, quantities, and amounts of uses permitted under the MX-C zone,” the M-X-C zone, under Rouse’s approved PDP, is more-intensive than was the R-R zone in 1972. In its analysis, the Tax Court focused on the meaning of the phrase “more intensive use” in T.P. § 8-209, which is not defined in the statute. The court also acknowledged a county ordinance listing the various zoning classifications, ranging from least to most intensive.

It states: [T]he order of intensity of zones is listed as follows, beginning with the least intense zone and progressing to the most intense: (1) R-O-S, O-S, R-A, R-E, V-L, R-L, V-M, R-R, R-S, R-80, R-55, R-M-H, R-35, R-20, R-M, R-T, R-30, R-30C, R-18, R-18C, R-U, R-10A, R-10, R-H, C-A, C-O, M-X-C, M-U-TC.... Prince George’s County Code § 27-109(b) (boldface added). The Tax Court noted, however, that although M-X-C is listed as being more intensive than R-R, the testimony demonstrated that the listing was “a pretty arbitrary thing” and that it was done for other purposes. In reaching its conclusion regarding the subject properties, the Tax Court reasoned: [A]s far as I am concerned, [the Legislature was] looking at it from the standpoint that the property owner was taking an action to make something more valuable, and to be able to do something with a piece of property that they could not do before. ... [S]eldom have I ever seen somebody requesting a rezoning of property if it wasn’t going to end up being a financial benefit to them.

This is generally what happens. ⁶⁸¹ Now, in this particular situation, what has been ably presented to this Court, and done in a very detailed fashion, is that when I define intensive, I should do it and limit my definition of it to whether or not there are, for instance, more units that are created by this rezoning. And it’s represented that it’s actually less. In other words, it’s been shown here by various exhibits and testimony that by proceeding in the manner that [appellant] is allowed to do under the M-X-C zoning, that we actually end up with less units than we do under the R-R; that when we take all of the other factors that- deal with intensities, that for the most part not all of them, but most of them come up less than R-R. Unfortunately for [appellant], I do not feel that that alone is the criteria that has to be factored in in making a decision as to what is meant by the word intensive as used in 8-209. And I say that for this reason — it is undisputed that [appellant] is going to be able to do, as a matter of right, not as a matter of special exception, but as a matter of right more things than could be done under the R-R zone.

For instance there’s a whole laundry list of commercial type activities that a property owner with this type of zoning is entitled to do under this type zoning that they couldn’t do under R-R. There is a difference in the type of residential units that they can have in this zoning that they couldn’t have under R-R. Again, I’m not losing sight of the fact about the densities and how they have to remain. But still for instance we know this, that under R-R you couldn’t have an apartment house. Under this particular zoning that you can have an apartment house. The bottom line is this — is that there is much more leeway exists as far as the zoning code goes to the property owner with this type zoning than with the leeway that the property owner had under an R-R zoning.

And as far as I am concerned, that becomes a factor of making something more intensive. ⁶⁸² As to continue on and walk through this, it doesn’t take an extremely intelligent or educated person to realize that there are not going to be a great number of properties that end up with this type of zoning in Prince George’s County. And the reason there’s not going to be a great number of them is that number one, you have to have a minimum of seven hundred and fifty acres to even begin to quali[f]y for this. As a practical matter, and let — what really happens here as I see it, is that the property owner ends up not without restrictions. There are parameters that are built into this and guidelines that have to be followed, but for all intents and purposes this property owner gets to structure this in such a manner that they can go ahead and do pretty much everything they want to do under — as far as developing this piece of property goes.

In other words, we even had testimony here today that it may be ten to fifteen years before all of the things that are going to be done with this property are eventually done. And again I cannot ignore the fact, nor do I criticize it in any way, shape or form, that it appears that the property owner in this case, or [appellant] in this case, is really the one that nudged the county to turn around and create a zoning category such as this. * * * ❖ ... I would be like an ostrich sticking its head in the sand if I didn’t think that the Rouse-Fairwood Development Limited Partnership was moving forward to develop this land in a manner that is going to be financially to their best interest. And again, there is nothing wrong with that. $ ^ ^ But the decision that I have to make today is whether or not I feel that under this section of the Code, that when this became M-X-C if it went to a more intensive use.

And it is not easy. It is not an easy decision to make. ⁶⁸³ But I am making the decision that it is subject to the tax, and that it was a more intensive use. And here is one of the real reasons that I do, and bearing in mind all of the testimony that I’ve heard, and all the evidence that’s been received here today. And I’m quoting, you know, from an annotation that’s under this section.

And it says this section must be strictly construed. The preferential treatment accorded by this section is essentially an exemption, and as such the section must be strictly construed.... And then the preferential treatment accorded by this section is essentially an exemption and as such must be strictly construed in favor of the taxing authority. If any real doubt exists as to the propriety of an exemption, that doubt must be resolved in favor of the State.

And that is exactly where I find myself in connection with this particular situation. I have sat here and I have listened very carefully. I have turned it over in my mind many different ways.... í¡í ik 5k 5k ... I have sat here, and as difficult as it is, when I apply the law as I just read it from a couple of different Maryland cases, to doubt an exemption is to deny an exemption.

And that’s where I am here. I doubt it, and I have to deny it. So the Court will sign an order affirming the assessment that was made against this property by the Supervisor____ Accordingly, on February 21, 1996, the Tax Court issued an order affirming appellee’s decision. Appellant then sought review in the circuit court.

In an oral opinion issued March 28, 1997, the circuit court affirmed the Tax Court, stating: I agree with the taxing authority. I see intensive — I picture this bucolic country side with horses and chickens and pigs and so forth. And we start there and we move toward the city. We start having our suburbs with sprawling ... homes and so forth. ⁶⁸⁴ So, each time as we move in towards the big city, we are getting more and more intense use and I think that’s what the tax judge found in this case, that in fact when we went from rural residential to this mixed use of this land in allowing light industry and so forth, it was a more intense use than when it was under rural residential.

I don’t believe he made his decision just on the fact that the value of land went up, but I believe his definition of intense just is in fact [sic].... I believe he was correct not just by the standard of review. I believe he was correct. I believe I would have come to the same conclusion....

Under the appropriate standard of review, he was correct.... This appeal followed. We will include additional facts in our discussion. Discussion I. Despite its name, the Maryland Tax Court is an administrative agency.

Md.Code. (1988, Cum.Supp.1997), § 3-102 of the Tax-General Article (“T.G.”); see Prince George’s County v. Brown, 334 Md. 650 , 658 n. 1, 640 A.2d 1142 (1994); Abington Ctr. Assocs. Ltd. Partnership v. Baltimore County, 115 Md. App. 580, 589 , 694 A.2d 165 (1997).

A party may appeal a final decision of the Tax Court to the circuit court for the jurisdiction in which the property is located. T.P. § 14-513. The final decision of the circuit court may be appealed to this Court. T.P. § 14-515.

We begin our analysis by setting forth the standard of review of an administrative agency’s decision. On review, our role is the same as that of the circuit court. Ahalt v. Montgomery County, 113 Md.App. 14, 20 , 686 A.2d 683 (1996); Department of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994); Maisel v. Montgomery County, 94 Md.App. 31, 34 , 614 A.2d 1333 (1992); Mortimer v. Howard Research & Dev. Corp., 83 Md.App. 432, 442 , 575 A.2d 750 , cert. denied, 321 Md. 164 , 582 A.2d 499 ⁶⁸⁵ (1990).

This means that, like the circuit court, we review the agency’s decision. Ahalt, 113 Md.App. at 20 , 686 A.2d 683 . Judicial review of Tax Court decisions is severely limited, however, CBS Inc. v. Comptroller of the Treasury, 319 Md. 687, 697-98 , 575 A.2d 324 (1990); Maisel, 94 Md.App. at 34 , 614 A.2d 1333 , because Tax Court decisions are considered prima facie correct, and they are to be reviewed “in the light most favorable to that court.” Maisel, 94 Md.App. at 34 , 614 A.2d 1333 ; see Cox v. Prince George’s County, 86 Md.App. 179, 187 , 586 A.2d 43 (1991). On review, a decision of the Tax Court must be affirmed if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.

CBS, 319 Md. at 697-98 , 575 A.2d 324 ; Ramsay, Scarlett & Co. v. Comptroller of the Treasury, 302 Md. 825, 834 , 490 A.2d 1296 (1985); Maisel, 94 Md.App. at 34 , 614 A.2d 1333 . Nor may we substitute our judgment for that of the agency as to factual findings that are supported by substantial evidence. Ramsay, 302 Md. at 834 , 490 A.2d 1296 ; Rossville Vending Mach. Corp. v. Comptroller of the Treasury, 97 Md.App. 305, 312 , 629 A.2d 1283 , cert. denied, 333 Md. 201 , 634 A.2d 62 (1993).

In contrast to the deferential review accorded to an agency’s factual findings, questions of law receive no deference on review. Young v. Board of Physician Quality Assurance, 111 Md.App. 721, 726 , 684 A.2d 17 (1996), cert. granted, 344 Md. 568 , 688 A.2d 447 , and cert. dismissed, 346 Md. 314 , 697 A.2d 82 (1997). Consequently, if the Tax Court’s decision is based on an interpretation of an ordinance or statute, we are not bound by the agency’s interpretation. Department of Assessments & Taxation v. Consumer Programs, Inc., 331 Md. 68, 72 , 626 A.2d 360 (1993); Ahalt, 113 Md.App. at 22 , 686 A.2d 683 ; see, e.g., Roach v. Comptroller of the Treasury, 327 Md. 438 , 610 A.2d 754 (1992); Friends School v. Supervisor of Assessments, 314 Md. 194 , 550 A.2d 657 (1988).

To the contrary, when the Tax Court’s interpretation of a statute is at issue, the substituted judgment standard applies to an errone ⁶⁸⁶ ous conclusion of law. Rossville, 97 Md.App. at 311-12 , 629 A.2d 1283 ; see also People’s Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 497 , 560 A.2d 32 (1989). Some matters present questions of fact and law. “ ‘As to mixed questions of fact and law, an intermediate level of scrutiny applies: such findings must be affirmed if, after deferring to the Tax Court’s expertise and to the presumption that the decision is correct, “a reasoning mind could reasonably have reached the [tax court’s] conclusion.” ’ ” Rossville, 97 Md.App. at 312 , 629 A.2d 1283 (alteration in original) (quoting United Parcel Serv., Inc. v. Comptroller of the Treasury, 69 Md.App. 458, 464 , 518 A.2d 164 (1986) (quoting Ramsay, 302 Md. at 838 , 490 A.2d 1296 )).

We also note that it is not appropriate for a reviewing court to search the record for evidence to support an agency’s conclusions. Moreover, we may not uphold an agency’s decision “unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” United Steelworkers of Am. v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984); see also United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). As we observed, the central issue in this case is the definition of “more intensive use” as that phrase is used in T.P. § 8-209. The interpretation of a statute presents a question of law.

Papillo v. Pockets, Inc., 119 Md.App. 78, 83 , 704 A.2d 448 (1997); Hider v. Department of Labor, Licensing & Regulation, 115 Md.App. 258, 273 , 693 A.2d 17 (1997), rev’d on other grounds, 349 Md. 71 , 706 A.2d 1073 (1998); Mayor of Ocean City v. Purnell-Jarvis, Ltd., 86 Md.App. 390, 413 , 586 A.2d 816 (1991). Because we must review the Tax Court’s statutory interpretation, we pause to set forth the seminal principles of statutory construction that will frame our analysis. The guiding principle of statutory construction is to determine and effect the intent of the Legislature. Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995); Mayor of ⁶⁸⁷ Baltimore v. Cassidy, 338 Md. 88, 93 , 656 A.2d 757 (1995); Abington, 115 Md.App. at 602 , 694 A.2d 165 .

Ordinarily, we look to the language of the statute itself to accomplish this task. State v. Pagano, 341 Md. 129, 133 , 669 A.2d 1339 (1996); Allied Vending, Inc. v. City of Bowie, 332 Md. 279, 306 , 631 A.2d 77 (1993); State v. Patrick A., 312 Md. 482, 487 , 540 A.2d 810 (1988). Moreover, if the statutory language is plain and unambiguous, and expresses a definite and simple meaning, normally we will not look beyond the words of the statute itself. Blitz v. Beth Isaac Adas Israel Congregation, 115 Md.App. 460, 479 , 694 A.2d 107 , cert. granted, 347 Md. 155 , 699 A.2d 1169 (1997); Maisel, 94 Md.App. at 37 , 614 A.2d 1333 ; Lone v. Montgomery County, 85 Md.App. 477, 502 , 584 A.2d 142 (1991).

In deciding the plain meaning of a statutory term or phrase, however, we may, and often do, consult the dictionary. Department of Assessments & Taxation v. Maryland-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 14 , 702 A.2d 690 (1997); Rossville, 97 Md.App. at 316 , 629 A.2d 1283 . Even under the plain meaning rule, we do not ignore the Legislature’s purpose if it is readily known. Pagano, 341 Md. at 133 , 669 A.2d 1339 ; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 516 , 525 A.2d 628 (1987); Abington, 115 Md.App. at 603 ,