Talbot County v. Town of Oxford

⁴⁸² SHARER, J. In an effort to alter critical areas growth allocations within Talbot County and the Towns of Easton, Oxford, and St. Michaels, the Talbot County Commissioners enacted County Bill 933. The Department of Natural Resources, Critical Areas Commission for the Chesapeake and Atlantic Coastal Bays (“the Commission”), the entity whose approval is required to modify critical areas growth allocation, rejected Bill 933, and this litigation ensued. Dissatisfied with the Commission’s refusal to approve Bill 933 as a local program amendment to its Critical Area Program, appellant/cross-appellee, Talbot County (“the County”), filed suit in the Circuit Court for Talbot County seeking a declaratory judgment and a writ of mandamus. The County appeals from the circuit court’s denial of its requested relief and raises two issues for our review, which, as slightly rephrased and reordered, are: 1 1.

Whether the Commission acted within the time prescribed by statute for accepting and processing Bill 933. 2. Whether the Commission’s refusal to approve Bill 933 was beyond its legal authority and/or otherwise arbitrary and illegal. In its cross-appeal, appellee/cross-appellant, the Town of Oxford, “submits that in addition to the reasons given by the Critical Area Commission, Bill 933 should be voided for additional reasons.” For the reasons that follow, we shall affirm the judgment of the circuit court. Since the Town of Oxford’s cross-appeal issue is subsumed within our decision, we need not decide it separately. ⁴⁸³ FACTUAL and PROCEDURAL BACKGROUND Critical Areas Legislation In 1984, the Maryland General Assembly enacted the “Chesapeake Bay Critical Area Protection Program” (the “Act”), codified in Md.Code Ann., Nat.

Res. (“NR”) §§ 8-1801 through 8-1817 (Repl.Vol.2000 & 2006 Supp.). The dual purpose of the Act was (1) to foster “more sensitive development activity for certain shoreline areas [of the Chesapeake Bay and its tributaries] so as to minimize damage to water quality and natural habitats,” and (2) to implement a Statewide resource protection program “on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight.” NR § 8-1801(b)(l) & (2). To achieve these purposes, the Act required each local jurisdiction with lands in the “critical area” — those lands within 1,000 feet of the heads of tide of the Chesapeake Bay and its tributaries — to develop and implement a program designed to mitigate the impact of pollution, while accommodating future growth.

NR §§ 8-1807(a)(2) and 8-1808(a). In an effort to ensure that each local jurisdiction administered the act in a consistent and uniform manner, the General Assembly created the Chesapeake Bay Critical Area Commission. 2 NR § 8-1803(a). The Commission is responsible for overseeing the development and implementation of local land use programs for property located within the critical area. The authority of the Commission consists of “all powers necessary for carrying out the purposes of [the Act],” including, inter alia, the power to “adopt regulations and criteria” in compliance with State law, and to “conduct hearings in connection with policies, proposed ⁴⁸⁴ programs, and proposed regulations or amendments to regulations.” NR § 8-1806(a).

The Commission recognizes three types of development areas: 3 (1) Resource Conservation Area (“RCA”) — land characterized by natural environments dominated by wetlands, forests, and abandoned fields, COMAR 27.01.02.05A, which may only be developed at a rate of one residential unit per twenty acres. COMAR 27.01.02.0 5C(4); (2) Limited Development Area (“LDA”) — land containing some natural plant and animal habitats and characterized by low or moderate development (up to four dwelling units per acre), COMAR 27.01.02.04A and; (3) Intensely Developed Area (“IDA”) — area where developed land uses predominate, where little natural habitat exists, and where housing density equals or exceeds four dwelling units per acre. COMAR 27.01.02.03A; see also NR § 8-1808(c)(1). Based upon the Commission’s criteria, local jurisdictions are required to identify each of the three areas in its jurisdiction and develop policies and programs to achieve the Act’s objectives.

COMAR 27.01.02.02E. To accommodate future growth in the critical area, each local jurisdiction is given a “growth allocation” consisting of a “number of acres of land in the Chesapeake Bay Critical Area ... that a local jurisdiction may use to create new intensely developed areas and new limited development areas.” NR § 8-1802(a)(ll). The amount of growth allocation available to a local jurisdiction is “calculated based on 5 percent of the total resource conservation area in a local jurisdiction ... at the time of the original approval of the local jurisdiction’s program by the Commission, not including tidal wetlands or ⁴⁸⁵ land owned by the federal government!)]” NR § 8-1808.1(b)(1). The approval, adoption, and amendment of local critical area protection programs is governed by NR § 8-1809.

Each local jurisdiction is required to advise the Commission whether it plans to “develop a critical area protection program to control the use and development of that part of the Chesapeake Bay Critical Area located within its territorial limits.” Section 8-1809(a)(l). If the local jurisdiction chooses not to develop a program, the Commission is permitted to prepare and adopt a program for the critical area located in that local jurisdiction. Section 8-1809(b). If the local jurisdiction decides to develop a program, the local jurisdiction must prepare and submit the program to the Commission.

Section 8-1809(e). Within 30 days after the program is submitted, the Commission is required to appoint a panel of five of its members to conduct a public hearing in the jurisdiction on the proposed program. Section 8-1809(d)(l). Within 90 days after the Commission receives a proposed program, the Commission shall approve the proposal or notify the local jurisdiction of any specific changes required for the proposal to be approved.

If the Commission does neither, the program is deemed approved. Section 8-1809(d)(2). Each local jurisdiction is to review its entire program and propose any necessary amendments to its entire program, including local zoning maps, at least every four years. Section 8-1809(g).[ 4 ] In addition, local jurisdictions may propose program amendments[ 5 ] as often ⁴⁸⁶ as necessary, but not more than four times per calendar year.

Section 8 — 1809(h). North v. Kent Island Ltd. P’ship, 106 Md.App. 92, 97 , 664 A.2d 34 (1995). “A program may not be amended except with the approval of the Commission.” NR § 8-1809(i). Application of Critical Areas Legislation in Talbot County In accordance with the requirements of NR § 8-1809, the Towns of Easton, Oxford, and St. Michaels submitted local critical area programs to the Commission for review and approval. The Commission approved Easton’s plan on May 18, 1988, Oxford’s plan on March 8, 1988, and St. Michaels’ plan on June 1, 1988.

Talbot County submitted its own proposed critical area program to the Commission, which was approved on August 13,1989. The County’s local program provided, inter alia: Not more than 1,213 acres of the Critical Areas of the County, including all land lying within the Critical Area within incorporated towns, shall be reclassified from the Rural Conservation (RC) District (or town zoning districts established for the Resource Conservation Area of the Critical Area) to any other zoning district. Of these 1,213 acres, 155 acres is reserved for the Town of Easton, 195 acres is reserved for the Town of Oxford, 245 acres is reserved for the Town of St. Michaels for growth allocation associated with annexations, and 618 acres is reserved for the County. Talbot County Code (“TCC”) § 190-109D(9).

Three planning maps were included “showing anticipated growth areas around the towns of Easton, Oxford, and St. Michaels.” The County’s critical area ordinance further pro ⁴⁸⁷ vided that the number of reserved acres allocated to the Towns “should be reviewed by the County and Towns by June 1, 1993 for possible reallocation and at least every four years thereafter.” TCC § 190-109D(11). Bill 762 In 1999, the County cooperated and coordinated with the Towns of Easton, Oxford, and St. Michaels in drafting Talbot County Bill 762, which created a process for the Towns to request, and the County to award, “supplemental” growth allocation. “Supplemental growth allocation” is acreage required for potential development within a municipality after the Town has exhausted its initial allocation of growth reserved for the Town in 1989. By its terms, Bill 762 did not apply to Oxford and St. Michaels because neither town had exhausted the initial growth allocation. The Commission approved Bill 762 in July 2000 as a change to Talbot County’s Critical Area program.

The bill gave the County joint review, in conjunction with affected municipalities, over supplemental awards of growth allocation to municipalities. Bill 933 On December 23, 2003, the Talbot County Council enacted Bill 933. It is that enactment that led to the instant litigation. Although the original 1989 County critical area ordinance, as well as the Critical Area Law, provided for local program review every four years, Bill 933 was the first comprehensive review and revision of the County’s local program since it was adopted in 1989.

Bill 933 purported to change the way the towns regulated critical area growth allocations for lands within their boundaries by, inter alia, repealing planning maps 1, 2, and 3, and eliminating the reserved growth allocations for the Towns of Easton, Oxford, and St. Michaels. Bill 933 further provided that growth allocation awarded to any of the three towns that was “unutilized” on the effective date of the Bill would revert to the County. 6 The bill neither made ⁴⁸⁸ provision to accommodate the future growth of the Towns, nor provided any process that could be used to accommodate future growth in the Towns. Despite its legal obligation to work “in coordination with affected municipalities” to establish “a process to accommodate the [municipal] growth needs,” and its prior cooperation with the towns in drafting Bill 762, the County had no discussions with officials of the Towns of Easton, Oxford, or St. Michaels before introducing and enacting Bill 93 3. CO-MAR 27.01.02.06A(2).

Commission Review of Bill 933 As required, the County submitted Bill 933 to the Commission on December 29, 2003. In response to Commission staff, the County provided additional information, along with Bill 933, to the Commission in a letter dated January 19, 2004. By letter of February 5, 2004, the Commission accepted Bill 933 for review and processing. As required by.

NR § 8-1809(o)(l), the Commission appointed a five-member panel, which conducted a public hearing on Bill 933, in Easton, on March 24, 2004. The panel received numerous public comments on the proposed amendment. Thereafter, the panel met in public sessions on April 7, April 19, and May 5, 2004, to discuss Bill 933. Prior to the meetings, each member of the panel received a copy of all public comments submitted before the close of the record on April 5, 2004.

Panel members also received information on the growth allocation processes of the Towns of Easton, Oxford, and St. Michaels, including copies of their respective critical area programs/ordinances. At its April 19, 2004 meeting, the panel reviewed the growth allocation processes of other county and municipal critical area programs. The panel received information from Commission staff that no county, other than Talbot, had changed its ⁴⁸⁹ original growth allocation procedures. The panel also undertook a review of the impact of Bill 933 on each of the Towns’ approved critical area programs.

The panel observed, inter alia, that the Towns’ critical area programs were largely premised on the Towns controlling a specific amount of growth allocation acreage to award within the municipal boundaries. The panel continued its deliberations on May 5, 2004, at which it reviewed the impact of Bill 933 on specific development projects which had already received growth allocation from the Towns. The panel discussed that, under Bill 933, growth allocation awarded by a town that had not yet resulted in “actual physical commencement of some significant and visible construction ... pursuant to a validly issued building permit” would revert to the County. The Town of St. Michaels, originally allocated 245 acres, had awarded 21 acres for the Strausburg subdivision, which the Commission approved as a change to St. Michaels’ program in October 2003. 7 Also in 2003, St. Michaels awarded 70.29 acres of growth allocation for the Miles Point III Project, which the town submitted to the Commission as a proposed Town critical area program amendment.

The Town of Oxford had received 195 acres of growth allocation in 1989, and had awarded 15.223 of those acres as of 2004. By May of 2004, Easton had used all of the 155 acres of growth allocation originally reserved for it in 1989. In fact, Easton had awarded an additional 28.762 acres of “Supplemental” growth allocation from the County under the process established in 2000 by Bill 762. 8 The Town of Easton assigned part of this supplemental growth allocation to the Cooke’s ⁴⁹⁰ Hope Project, which had been approved by the Town, but not yet approved by the Commission, as an amendment to Easton’s program. Because the Cooke’s Hope Project had not yet been constructed, the awarded growth allocation would be considered “unutilized” under Bill 933.

Thus, the panel believed that Easton’s award of growth acreage to the Cooke’s Hope Project might also revert to the County. The panel noted in its report that the Strausburg Subdivision and Miles Point III in St. Michaels clearly qualified as projects “for which growth allocation has been awarded by [the Town of St. Michaels], but under Bill 933, would be considered unutilized and accordingly would revert to the County.” The panel understood that, were the Commission to approve Bill 933, neither project, both of which had been authorized by St. Michaels under its approved critical area program, could lawfully proceed. Moreover, the panel knew that Commission approval of Bill 933 would rescind the Commission’s October 2003 approval of the change to St. Michaels’ critical area program for the Strausburg growth allocation. Finally, the panel reviewed growth allocation procedures in other critical area programs.

They discussed the importance of the procedures being clearly set forth in a coordinated manner in the ordinances and programs of the counties and affected municipalities, and the impact of amending one local program in such a way that it creates conflicts with other approved programs. At the close of discussion, the panel voted to recommend denial of Talbot County’s proposed amendment, opining that accepting Bill 933 would (1) “negate at least one previous Commission action approving a local program change ... the Strausburg growth allocation [in St. Michaels];” and (2) “create conflicts between the County program and several approved municipal programs ... contrary to the Commission’s oversight responsibility to ensure that local programs are implemented in a consistent and uniform manner.” At its regular meeting on May 5, 2004, the full Commission voted to deny Talbot County’s proposed program amendment ⁴⁹¹ as created by Bill 933. 9 The Commission also voted to ask the County to work with Commission staff to develop a growth allocation provision that would be compatible with the Critical Area Law. The minutes from the May 5, 2004 Commission meeting provide, in relevant part: Dave Blazer moved on panel recommendation to deny approval of Talbot County Bill 933 as an amendment to the County’s Critical Area Program and to invite the County to work with the Commission and its staff to develop new growth allocation provisions that will be compatible with the State Critical Area Act and Criteria. The basis for the motion is as follows: Accepting Bill # 933 would negate at least one previous Commission action approving a local program change.

This is the refinement to the St. Michaels Program for the Strausburg growth allocation approved in October 2003. Accepting Bill # 933 would create conflicts between the County program and several approved municipal programs. The municipal programs have their own approved growth allocation procedures premised on the growth allocation reserves provided by the County. The conflict that Bill 933 would create is contrary to the Commission’s oversight responsibility to ensure that local programs are implemented in a consistent and uniform manner.

The motion was seconded by Bill Giese and carried unanimously. On May 14, 2004, Commission staff formally advised Talbot County of the Commission’s vote to deny the County’s proposed amendment, but noted that “the Commission fully supported inviting Talbot County to work with the Commission and its staff to develop new growth allocation provisions that will be compatible with the State’s Critical Area Act and Criteria.” The Proceedings Below The County declined the Commission’s offer to collaborate on new growth allocation provisions and instead filed suit in ⁴⁹² the Circuit Court for Talbot County on June 11, 2004. The County’s complaint requested a declaratory judgment, a writ of mandamus, and judicial review. On July 8, 2004, the Commission filed a motion to dismiss.

Thereafter, the County filed an amended complaint, and the Commission withdrew its motion to dismiss the County’s mandamus count. The Towns of St. Michaels and Oxford moved to intervene on September 24, and November 1, 2004, respectively. A hearing on the Towns’ motions to intervene and the Commission’s motion to dismiss was held on November 17, 2004. The court granted the Towns’ motions to intervene on December 1, 2004.

By order dated December 8, 2004, the Court denied the Commission’s motion to dismiss the declaratory judgment count, but granted the motion with respect to the judicial review count. Thus, the counts remaining before the court were for declaratory judgment and mandamus. On February 18, 2005, the County filed its second amended complaint, adding relevant facts and restating its causes of action. On October 19, 2005, Miles Point Property, LLC and the Midland Companies, Inc. filed amotion to intervene, which was granted by the circuit court on December 8, 2005.

All parties filed motions for summary judgment and oppositions' thereto. A motions hearing was held on January 26, 2006. In an opinion and judgment dated March 23, 2006, the circuit court denied the County’s requests for relief. The County filed a timely notice of appeal and the Towns of Oxford and St. Michaels filed timely cross-appeals.

Oxford moved to dismiss the County’s appeal because the circuit court’s judgment was not final, in that it failed to address the rights of the intervenors. On July 11, 2006, this Court dismissed the appeal. On remand to the circuit court, the court issued a “Supplemental Memorandum” and “Final Judgment,” dated August 14, 2006. Talbot County again filed a timely notice of appeal ⁴⁹³ on September 5, 2006.

The Town of Oxford filed a timely notice of cross-appeal on September 11, 2006. 10 STANDARD of REVIEW Our review of a circuit court’s grant of summary judgment is de novo. Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 440 , 914 A.2d 113 (2007). “We determine whether the circuit court properly concluded that there was no dispute of material fact, and, if so, whether the circuit court’s decision that the moving party was entitled to summary judgment was legally correct.” Cruickshank-Wallace v. County Banking & Trust Co., 165 Md.App. 300, 310 , 885 A.2d 403 (2005), cert. denied, 391 Md. 114 , 892 A.2d 477 (2006); see Md. Rule 2-501(f). “On appeal from an order entering summary judgment, we review only the legal grounds relied upon by the trial court in granting summary judgment.” Cochran v. Norkunas, 398 Md. 1,12 , 919 A.2d 700 (2007). All of the parties moved for summary judgment, each asserting a lack of dispute of material fact. In the absence of a material dispute of fact, we must determine whether the circuit court’s ruling was legally correct.

The Commission acts in a “quasi-legislative” capacity when it reviews local critical area programs and program amendments. North, supra, 106 Md.App. at 103 , 664 A.2d 34 . “ ‘[WJhere an administrative agency is acting in a manner which may be considered legislative in nature (quasi-legislative), the judiciary’s scope of review of that particular action is limited to assessing whether the agency was acting within its legal boundaries.’ ” County Council of Prince George’s County v. Offen, 334 Md. 499, 507 , 639 A.2d 1070 (1994)(quoting Dep’t of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 221-24 , 334 A.2d 514 (1975)). It is within this narrow framework that we review the County’s issues. ⁴⁹⁴ 1. Whether the Commission acted within the time prescribed by statute for accepting and processing Bill 933.

The County argues that “Bill 933 was approved by operation of law because the Commission failed to comply with mandatory statutory requirements.” Specifically, the County contends that, because the Commission failed to act within the 90-day review period set forth in NR § 8-1809(o)(l), 11 Bill 933 was “deemed approved.” We disagree. The circuit court addressed the County’s argument in its memorandum opinion: NR § [8-]1809(o)(l) directs that, upon submission of a proposed amendment “the Commission shall act on the proposed program amendment within 90 days