Tomlinson v. BKL York, LLC

WRIGHT, J. On September 13, 2013, the Circuit Court for Baltimore County issued a memorandum opinion and order affirming the decision of the Baltimore County Board of Appeals (“Board of Appeals”), which affirmed the decision of the Office of Administrative Hearings of Baltimore County (“OAH”), which ruled that appellees, BKL York I LLC, BKL York III LLC, Log-wood LLC, Wawa Inc., and Monterey Improvement Association (collectively, “Developers”), were not required to obtain a County Council Resolution (“Resolution”) authorizing the amendment of their Planned Unit Development (“PUD”) plan. On September 30, 2013, appellants, Lisa Tomlinson and Douglas Miller (collectively, “appellants”), timely noted this appeal, asking us to determine whether Developers were required to seek a Resolution by the County Council authorizing the material amendment of the commercial PUD plan. For the reasons that follow, we affirm the circuit court’s judgment and the OAH’s decision. Facts This appeal concerns 10111 York Road, a vacant lot located at the northeast corner of York Road and Halesworth Road in Cockeysville, Baltimore County, Maryland.

At one point, this lot was zoned as “BR-IM” 1 and was improved with ⁶¹⁰ a Shell Oil service station. In 1989, Shell Oil sought a special exception 2 to its zoning designation to add a food mart to the service station. On October 16, 1989, the Zoning Commissioner for Baltimore County (“Zoning Commissioner”) approved the special exception, allowing a food mart to be used with the then-existing service station. Almost two decades later, the lot was purchased, and the fuel service station was razed in 2008 so that the purchaser could install a car dealership.

On March 12, 2007, the Zoning Commissioner terminated the special exception, provided that the change would not occur until the Department of Permits and Development Management issued a permit granting a change in use for the property. The lot is now a part of Anderson Hunt Valley, an automotive dealership that is located on the Anderson GM PUD (“GM PUD”). Developers now seek to amend the GM PUD to repurpose part of the site as a Wawa convenience store and gas station. All parties agree that this is a material amendment to the GM PUD.

I. History of the GM PUD Originally, the GM PUD consisted of two separate PUDs. The first piece of the GM PUD was approved by a Hearing ⁶¹¹ Officer on October 31, 2003, for the purpose of developing 10125 York Road into an automotive showroom and demonstration area for Hummer vehicles (“Hummer PUD”). The Hummer PUD was approved pursuant to Bill No. 47-1994 as PUD-C No. VII-796. 3 The second piece of the GM PUD was originally approved for development of 10111 York Road as a Honda dealership (“Honda PUD”). A Hearing Officer approved the Honda PUD as PUD-C No. VIII-848, pursuant to Bill Nos. 19-2004 and 130-2005 on February 20, 2007. 4 The lot that is the subject of this appeal is located within the original Honda PUD.

A. Combination and Consolidation of the Hummer PUD and Honda PUD and its First Amendment After a downturn in the economy, Anderson Automotive sought to swap the locations of its GM dealership (located north of the Hummer PUD and Honda PUD) and Honda dealerships, and close its Hummer dealership because of a decrease in sales of certain automotive models. Part of the planned changes included a new addition to the dealership’s Hummer showroom, which would extend from the Hummer PUD into the Honda PUD. A portion of the Honda PUD would be reserved for “future development.” Anderson Automotive wanted to amend the Hummer PUD and Honda PUD to reflect these plans. Developers submitted these changes as a “refinement,” or a non-material amendment, to the Hummer PUD and Honda ⁶¹² PUD.

The Director of Planning Development Management approved Anderson Automotive’s request on May 22, 2009. Eric Rockel (“Rockel”), President of the Greater Timonium Coordinating Council, appealed the Director’s decision to the Board of Appeals, challenging whether the refinement should be classified as a material amendment (and thus, subject to the procedure for material amendments). People’s Counsel for Baltimore County intervened in the dispute. Following People’s Counsel’s intervention, Developers, Rockel, and People’s Counsel held informal discussions to resolve the dispute.

As a result of the discussions, Developers agreed to re-term the refinement as a material amendment. The parties also agreed that Developers would file a Petition for Special Hearing regarding the amendment of both the Hummer PUD and Honda PUD. 5 As a part of the now-material amendment, Developers wanted to combine and consolidate the Hummer PUD and Honda PUD. In order to pass the amendment, a Development Plan Conference and a joint Zoning Commissioner’s Hearing/Hearing Officer’s Hearing was held pursuant to the Petition for Special Hearing. The order granting the consolidation of (and first amendment to) the Hummer PUD and Honda PUD was issued on January 29, 2010. 6 B. The Second Amendment to the GM PUD Developers sought a second amendment to the GM PUD to place a Wawa convenience store and gas station at 10111 York Road.

Developers and various Baltimore County agencies held a Development Plan Conference on January 25, 2012, to discuss the proposed amendment. Although a Development Plan Conference was held, there was no Community Input ⁶¹³ Meeting or Concept Plan Conference regarding the second amendment. Additionally, Developers did not seek a Resolution to authorize the second amendment. Developers, instead, petitioned for a special hearing regarding the amendment, just as they did with the first amendment.

Developers’ failure to seek a Resolution authorizing the second amendment to the GM PUD forms the basis of the present dispute. I. Administrative Appeal and Circuit Court Review Appellees first submitted this matter to the OAH for review. After two days of proceedings on February 17 and April 10, 2012, an ALJ issued his findings on May 15, 2012. 7 The ALJ found that Developers were not required to seek a Resolution to amend the GM PUD. The ALJ opined that Baltimore County could not insist that a new Resolution be obtained for the second amendment based on a theory of estoppel.

In the alternative, the ALJ determined that the PUD is akin to a traditional development plan, and the County Code governing traditional development plans also governs PUDs. Under this theory, the amendment need only be reviewed and approved in the same manner as the original PUD. The ALJ found that because an administrative hearing 8 was all that was required for the first amendment, then it is all that was needed for the second amendment. Appellees appealed the ALJ’s decisions to the Board of Appeals, which affirmed the ALJ’s opinion on September 21, 2012.

The Board of Appeals agreed that the procedure for appeals that governs traditional development plans also governs PUDs. As a result, the Board of Appeals found that Developers did not need to obtain a new Resolution. Finally, ⁶¹⁴ the Board of Appeals found that the ALJ had sufficient evidence to approve the material amendment to the PUD. Following the Board of Appeals’ decision, appellants sought judicial review before the circuit court.

The trial court found that the Board of Appeals “engaged in a process of reasoned elaboration in making its determination that § 32-4-262(1) controlled the instant amendment.” (Internal quotation marks omitted). Based on its review of the record below, the trial court agreed with the Board of Appeals’ determination and found that the Board of Appeals’ decision was not erroneous. Following the trial court’s review, appellants filed this timely appeal. Standard of Review We will review the ALJ’s decision as to both law and fact.

In general, [a] court’s role is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. Our review of the agency’s factual findings entails only an appraisal and evaluation of the agency’s fact finding and not an independent decision on the evidence. This examination seeks to find the substantiality of the evidence. That is to say, a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency....

In this context, [substantial evidence, as the test for reviewing factual findings of administrative agencies, has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion!.] We have said, reviewing courts are under no constraint to affirm an agency decision premised solely upon an erroneous conclusion of law. Accordingly, we may reverse an administrative decision premised on erroneous legal conclusions. ⁶¹⁵ We are also obligated to review the agency’s decision in the light most favorable to the agency, since their decisions are prima facie correct and carry with them the presumption of validity. Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 568-69 , 709 A.2d 749 (1998) (citations and internal quotation marks omitted). “A reviewing Court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” E. Outdoor Advertising Co. v. Mayor and City Council of Balt., 128 Md.App. 494, 516 , 739 A.2d 854 (1999) (emphasis omitted). A court should not substitute its judgment for that of the administrative agency.

Dep’t of Human Res., Balt. City Dep’t of Social Servs. v. Hayward, 426 Md. 638, 650 , 45 A.3d 224 (2012). Discussion The outcome of this case depends upon which law governs material amendments to the GM PUD. In order to discern which local law controls in this case, we must review the statutes in question and determine the intent of the County Council in adopting the legislation.

The cardinal rule of statutory construction is to ascertain and effectuate the intent of those who framed or adopted the statute. The intention of the legislature must be sought first in the actual language of the statute. A court, in determining legislative intent, must read the language of the statute in context and in relation to all of its provisions and its purpose. Furthermore, where the statutory language is plain and free from ambiguity and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself.

Catonsville Nursing Home, Inc., 349 Md. at 570 , 709 A.2d 749 (citations omitted). We will first review the legislative history of PUDs, which will inform our discussion of which local law and regulation govern the second amendment. ⁶¹⁶ I. Legislative History PUDs are a legislative creation in response “to changing patterns of land development and the demonstrated shortcomings of orthodox zoning regulations.” Rome-Fainwood Dev. Ltd. P’ship v. Supervisor of Assessments for Prince George’s Cnty., 138 Md.App. 589, 624 , 773 A.2d 535 (2001) (citation omitted). As described in Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514 , 540 n. 15, 814 A.2d 469 (2002), a PUD is a “floating” zone.

This type of zoning category can be created by a petition of a property owner desiring to develop his specific tract for any special zoning purpose. Id. As explained in Rouse-Fairwood Dev. Ltd. P’ship, 138 Md.App. at 623-24 , 773 A.2d 535 : Generally, it is a zoning technique that encompasses a variety of residential uses, and ancillary commercial, and ... industrial uses....

Currently, the improvement of land is in control of developers who assemble large tracts and improve the land for resale or rental. Given this modern pattern of land development, planners and legislators conceived a technique of land-use control which was better adapted to the realities of the marketplace.... Planned unit developments make it possible to insure against conflicts in the use of land while permitting a mix of use in a single district.... The PUD concept has freed the developer from the inherent limitations of the lot-by-lot approach and thereby promoted the creation of well-planned communities.

(Citations and internal quotation marks omitted). One of the ALJ’s findings was that the regulations in question were ambiguous, but, instead of examining the legislative history, the ALJ found that Baltimore County and its citizens should be estopped from insisting that a Resolution be obtained in the first instance. We disagree with this finding and, instead, agree with the ALJ’s alternate finding that the PUD is a “development plan” that should be analyzed under the PUD regulations that are a part of the Baltimore County Code. Accepting the above, we now review the legislative ⁶¹⁷ history adopting PUDs as a zoning technique and amending the process of approving and amending PUDs.

A. Bill 47-94 We begin with Bill 47-94, which the County Council adopted on April 4, 1994, effective June 27, 1994. As a reference, we note that the Hummer PUD was approved pursuant to the local laws as changed by this Bill. Bill 47-94 created PUD-Cs as an “optional planned unit development process for commercial projects” and, at the time, was added to the County’s Zoning Regulations at Section 440. As enacted under Section 440.5: B. Change to a use indicated in the submittal, or permitted by right or by special exception in the underlying zone or district where the use will be located, is allowed without amending the original plan if conditions of the approved PUD-C are met.

C. Change to a use not included in the submittal and not permitted by the underlying zone or district shall constitute an amendment to the PUD-C and is subject to the approval procedures specified in Division 2 of the Development Regulations for the original submittal. Additionally, under 440.6, “[a]pproval of the PUD-C by the Hearing Officer shall constitute approval of any indicated change from the regulations of the underlying zone.” B. Bill 130-05 9 Bill 130-05 revised and subsumed Bill 47-94. As a reference, the Honda PUD was approved pursuant to the proce ⁶¹⁸ dure adopted by Bill 130-05. First, the Bill repealed Section 440 of the Zoning Regulations.

Second, it added Section 430, addressing “Planned Unit Developments,” to the Zoning Regulations. No provision for a change in use was provided in the new Section 430. Third, it added Section 32-4-247 to the County Code, which allowed for a development plan review after approval of a concept plan. 10 It also allowed that a PUD concept plan, accepted for filing prior to October 17, 2005, could use the regulations in effect at the time of filing the concept plan. C. Bill 5-10 The County Council passed Bill 5-10 on January 19, 2010, effective 45 days after its enactment.

Although Bill 5-10 did make changes to the application and approval process, more importantly, at Section 5, the Bill included that “any PUD proposal for which the County Council passed a resolution, pursuant to Section 32-4-242, prior to the effective date of this Act, may proceed under the law and Master Plan recommendations in effect at the time the resolution was passed.” D. Bill 42-12 11 On May 7, 2012, the County Council adopted Bill 42-12, effective on June 18, 2012. Section 1 of Bill 42-12 requires ⁶¹⁹ that an amendment to an approved PUD be