Sugarloaf Citizens Ass'n v. Frederick County Board of Appeals

⁵³⁹ REED, J. This appeal arises from an order of the Circuit Court for Frederick County affirming an administrative decision made by appellee, the Frederick County Board of Appeals (the “Board”). Appellants, the Sugarloaf Citizens’ Association, Inc., Montgomery Countryside Alliance, Inc., Christopher and Sandra Sappe, and Gary Noubarian, seek our review of that Board decision, in which it declined to review appellants’ administrative appeal on jurisdictional grounds. Appellants raise two questions for our consideration. We rephrase those questions for clarity and reorder them as follows: 1 I. Whether the Board erred where it declined to review the Frederick County Health Department’s determination of “septic system adequacy” on the grounds it lacked jurisdiction; II.

Whether the Board erred where it determined the site plan as amended was not subject to Frederick County’s current site plan review criteria. We answer these questions in the negative. Accordingly, we affirm the judgment of the circuit court and shall explain. Factual and Procedural Background This dispute arises out of the ongoing efforts of appellee, the Global Mission Church of Greater Washington (“GMC”), to build a 138,027 square foot place of worship in Frederick County, Maryland. ⁵⁴⁰ These efforts began in 2009 when GMC submitted Site Development Plan SP 92-37 (“SP 92-37”) for consideration by the Frederick County Planning Commission (the “Commission” or “Planning Commission”).

SP 92-37 described GMC’s plan to build a large-scale place of worship, which would include the sanctuary itself, dining and kitchen facilities, offices, meeting rooms, and a multi-purpose hall. The plan also included the installation of a septic tank with a total loading capacity of 4,999 gallons per day. GMC held several meetings with both Commission staff and Frederick County staff during the first half of 2009. As the site plan made its way through the review process, two significant issues arose — the adequacy of the septic system and the need for a secondary emergency access to the property.

Despite these two issues, SP 92-37 was brought before the Commission for consideration, and public hearings regarding the site plan were held on July 8 and July 15, 2009. A Commission staff report recommended the conditional approval of SP 92-37. This approval was drawn from the recommendations of the Engineering, Planning, and Life Safety Sections of the Frederick County Planning Department, as well as the Frederick County Health Department. The Health Department recommended approval of the site plan after a series of negotiations between GMC and the Department regarding proposed water and septic facilities.

The July 15, 2009 hearing turned out to be a watershed moment in the life of SP 92-37. The Commission heard from GMC, county staff, and individual citizens and citizen groups with regard to the site plan. The septic system emerged as a significant concern for the Commission, and it granted a ninety-day continuance in the proceedings in order to give GMC and County staff an opportunity to address the septic system and other issues raised during the hearing. During that ninety-day period, the County sought additional information from GMC regarding the issues raised at the July 15, 2009 hearing, which GMC provided on September 14, 2009.

After that, no additional information was requested and no ⁵⁴¹ further meetings were scheduled. Rather, another public hearing was scheduled for October 14, 2009. A week before the scheduled hearing, Commission staff released another Staff Report, in which it changed positions and recommended denial of SP 92-37. This new recommendation was based on a review by the Health Department and the Life Safety Section of the new information GMC submitted.

The Health Department was concerned that the proposed building capacity would lead to an average septic discharge that would exceed the septic system’s loading capacity. The County Life Safety Section determined the proposed building’s occupant capacity would be four times the number it originally anticipated, and, accordingly, it determined the site plan would need a secondary emergency access road. This new recommendation created an additional hurdle for GMC. In an effort to avoid denial of its proposed site plan, GMC sought to hold additional discussions with County staff regarding the revised recommendation.

GMC was able to meet only with the Health Department before the hearing, where a Department staff member suggested GMC seek a continuance. Two days before the hearing, on October 12, 2009, GMC requested a continuance, and again, at the October 14 hearing, it reiterated that request before the full Commission. Despite the multiple requests, the Commission denied a continuance and proceeded with the hearing. The Commission heard testimony and received evidence from GMC and the public.

Many members of the public objected to the site plan, citing the potential negative impact of the project on the area’s rural and scenic nature, as well as environmental concerns. Notwithstanding GMC’s proffered concessions to address these concerns, 2 the Commission denied SP 92-37 on the ⁵⁴² basis of the revised Staff Report, the lack of adequate septic capacity, and GMC’s failure to provide for a secondary access road. GMC sought review of the Commission’s denial from the County Board of Appeals. The Board held a hearing on January 20, 2010, in which it decided to proceed with a de novo review, and heard a significant amount of testimony for and against SP 92-37.

The Board issued its decision on March 25, 2010, in which it vacated and remanded the decision of the Commission. The Board explained that the Commission had denied GMC due process because GMC was not afforded a “meaningful and adequate opportunity” to address the concerns of the Health Department and the County with regard to the septic system and secondary access road, respectively. Of particular significance to the present appeal, the Board’s opinion resolved a jurisdictional issue that arises in this case. The Board explained that the Maryland Department of the Environment (“MDE”), acting via the Health Department, possesses the sole authority to certify or approve proposed septic systems.

According to the Frederick County Code, before the Commission can approve a proposed site plan, the Health Department must approve the site plan’s proposed water and sewer facilities. See Frederick County Code of Ordinances (“F.C.C.”) § 1-19-3.300.4 (2014). 3 Accordingly, ⁵⁴³ without MDE’s approval of the proposed septic system, the Board determined the Commission lacked the authority to consider SP 92-37 at that time and should have granted GMC’s request for a continuance. Appellees, the Frederick County Board of County Commissioners (the “County Commissioners”), were aggrieved by the Board’s March 25, 2010, decision and sought judicial review from the circuit court. The County Commissioners, in their petition, claimed the Board’s decision was erroneous because it considered evidence outside the record, and acted in excess of its powers by remanding the site plan application to the Planning Commission.

The circuit court agreed with the Board that GMC was denied due process and the reasonable opportunity to obtain the Health Department’s approval for its septic system, and, accordingly, affirmed the Board’s decision. With this new opportunity in hand, GMC proceeded to revise SP 92-37 to address the concerns raised about the site plan, including those concerns regarding the septic system and the secondary access road. GMC submitted a revised version of SP 92-37 in July 2012, 4 and the site plan once again went before the Planning Commission at a November 14, 2012 hearing. This hearing was attended by both County staff and the appellants, where appellants registered their opposition to the site plan.

County staff recommended approval, however, because it determined the site plan was in compliance with all ⁵⁴⁴ applicable county regulations and the Health Department concluded that the septic system was of adequate capacity. Satisfied with the site plan’s progress, the Planning Commission conditionally approved SP 92-37. Appellants believed the Commission’s conditional approval was in error and appealed the decision to the Board on December 14, 2012. Appellants contested the Commission’s approval on two grounds: 1) the Health Department underestimated the maximum daily septic discharge; and 2) the Commission failed to consider adequately SP 92-37’s compliance with the criteria of F.C.C. § 1-19-3.300.4(A). 5 The Board held a hearing to consider appellants’ case and denied the appeal on jurisdictional grounds.

The Board first explained it lacked the authority to review the Health Department’s determination because, as a State agency, the Department possesses the authority to consider septic system adequacy pursuant to the Environment Article of the Maryland Code. The Board then explained that appellants’ second assignment of error failed as a matter of law because § 1-19-3.300.4(A) was enacted after SP 92-37 was filed, and could not apply to the site plan. After denying appellants’ requests for reconsideration of its decision in March 2013, the Board adopted its findings in a written decision on April 30, 2013. Appellants petitioned the circuit court on May 30, 2013, for judicial review of the Board’s dismissal of its administrative appeal.

The circuit court heard the matter on December 16, 2013, and affirmed the Board’s decision in a written opinion on January 24, 2014. ⁵⁴⁵ Appellants timely noted their appeal to this Court on February 24, 2014. Discussion A. Parties’ Contentions Appellants present two sets of grounds for appeal. First, they argue that the Board had the jurisdiction to consider the Health Department’s decision regarding GMC’s proposed septic system because it already did so in the 2010 appeal. Next, appellants argue in effect that, because Lot 4 was added to GMC’s site plan, updating the plan changes the date of filing.

F.C.C. § 1-19-3.300.3 was amended in 2009, and the amending ordinance included a grandfathering clause that made the new version of the statute applicable to all site plans filed after July 24, 2009. Appellants contend that because GMC added Lot 4 to the site plan after July 24, 2009, the filing date of SP 92-37 has changed and the grandfathering clause is inapplicable, making the site plan subject to the current version of § 1-19-3.300.3. The Board and Commissioners (the “County appellees”) collectively counter and state, first, that appellants’ Lot 4 issue is not preserved for our review. In the event that the issue is preserved, however, the County appellees explain that, despite the revisions to the site plan, review of the plan is according to the version of § 1-19-3.300.3 in effect at the time of the original submission.

Second, they argue the Board cannot review decisions of the Health Department, because it is a State agency acting under the authority of the Environment Article of the Maryland Code. GMC substantially agrees with the County appellees’ contentions regarding Lot 4 and § 1-19-3.300.3, and regarding the Board’s lack of jurisdiction to review the Health Department’s decision on GMC’s proposed septic system. B. Standard of Review This case comes to us on appeal from an order of a circuit court regarding a petition for the judicial review of a decision ⁵⁴⁶ of an administrative agency. Our standard of review for such cases is well-established.

When we review the decision of an administrative agency or tribunal, “we [assume] the same posture as the circuit court ... and limit our review to the agency’s decision.” Anderson v. Gen. Cas. Ins. Co., 402 Md. 236, 244 , 935 A.2d 746 (2007) (internal citation omitted).

The circuit court’s decision acts as a lens for review of the agency’s decision, or in other words, “we look not at the circuit court decision but through it.” Emps. Ret. Sys. of Balt. Cnty. v. Brown, 186 Md.App. 293, 310 , 973 A.2d 879 (2009), cert. denied, 410 Md. 560 , 979 A.2d 708 (2009) (emphasis in original) (internal citations omitted).

We “review the agency’s decision in the light most favorable to the agency” because it is “prima facie correct” and entitled to a “presumption of validity.” Anderson v. Dep’t of Pub. Safety & Corr. Servs., 330 Md. 187, 213 , 623 A.2d 198 (1993) (internal citation omitted). The overarching goal of judicial review of agency decisions is to determine whether the agency’s decision was made “in accordance with the law or whether it is arbitrary, illegal, and capricious.” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md.App. 264, 274 , 47 A.3d 1087 (2012) (internal citation omitted).

With regard to the agency’s factual findings, we do not disturb the agency’s decision if those findings are supported by substantial evidence. See id. (internal citations omitted). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998) (internal citations omitted) (internal quotation marks omitted).

We are not bound, however, to affirm those agency decisions based upon errors of law and may reverse administrative decisions containing such errors. Id. ⁵⁴⁷ C. Analysis (i) The Board’s Appellate Jurisdiction over Decisions of the Frederick County Health Department Appellants essentially seek to have this Court order the Board to review a decision of the Health Department regarding GMC’s proposed septic system because it purportedly did so in 2009. We shall not do so because the Maryland Code, Code of Maryland Regulations (“COMAR”), and the F.C.C. set up a regulatory scheme that places matters related to septic systems within the sole purview of the Health Department — a State agency. The general responsibilities of county health officers are set forth in the Environment Article (“Envir.”) of the Maryland Code.

Among those responsibilities is the inspection of and reporting on “sewerage facilities in the county.” Envir. § 9-102. In Frederick County, those responsibilities extend to the evaluation of proposed water and sewer facilities in site plans. Where a site plan includes service by non-publicly owned community water and sewer utilities, approval of the plan is conditioned on whether “the facilities [] meet the requirements of and receive approval from the Maryland Department of the Environment/the Frederick County Health Department.” F.C.C. § 1-19-3.300.4(0 (emphasis added). COMAR sets forth the technical requirements for the approval of septic systems by MDE.

That Department has promulgated regulations for the approval of septic systems by health officers pursuant to its statutory authority. See CO-MAR 26.04.02 References & Annotations (2014) (citing Envir. §§ 9-216, 9-217, 9-223, 9-252, 9-319, 9-510, 9-1108, 10-103, 10-301, and 10-304 as the statutory authority for regulation of septic systems). According to these regulations, the Health Department, as the responsible