Trail v. Terrapin Run, LLC

EYLER, JAMES R., J. Appellants and cross-appellees, David Trail, et al. (“appellants”), 1 appeal from a judgment entered by the Circuit Court ⁴⁵ for Allegany County, remanding to the Board of Appeals of Allegany County (“the Board”) the Board’s approval of a special exception, requested by Terrapin Run, LLC, et al., appellee and cross-appellant (“appellee”), as part of appellee’s plan to build a large residential community. Each party’s argument centers upon whether the Board used the proper standard in granting a special exception for a planned residential development and whether the Board correctly approved the construction of a retail shopping center and wastewater treatment plant as part of the development. Finding no error in the Board’s decision, we shall reverse the circuit court’s judgment and remand to the circuit court with instructions to affirm the Board’s decision. Background Appellee applied to the Board, seeking a special exception to develop a 935 acre, 4300 unit, planned residential development in an area zoned “A” (Agriculture, Forestry and Mining) and “C” (Conservation). 2 The proposal contemplated development of condominiums in two to three story apartment style buildings, single family homes on one-half and one-third acre lots, multiple family dwellings of various types including town homes and patio homes.

Appellee also planned to build an equestrian center, a community building, and a 125,000 square foot retail area to serve the commercial needs of residents. One percent of the land included in the development was to be used for the retail portion. The proposed development would have a density of 4.6 residences per acre, and would include its own water system and waste water treatment plant. Procedural History In August 2005, the Board heard appellee’s application for a special exception to permit the planned residential development. “Planned Residential Developments” are permitted by special exception in both the A and C districts.

In determin ⁴⁶ ing that the special exception should be granted, the Board concluded that appellants had not met their burden of demonstrating that the requested special exception use would cause an adverse effect upon the surrounding properties more severe or different in kind from the effect the special exception use would have, regardless of its location within the district. In its opinion, the Board specifically addressed the potential adverse effects put forth by appellants, including the impact that the development would have on the water supply, the school system, the economy, the beauty of scenic route 40, traffic, waste water, aesthetics, noise, natural resources, harperella (an endangered species of aquatic flower), fire protection, and related services. The Board found that the evidence did not demonstrate a site-specific adverse effect in any of these areas. In its opinion, the Board also addressed a legal argument raised by appellants at the hearing.

According to appellants, in addition to considering any site-specific adverse effect caused by the special exception, the Board had to consider whether the special exception use conformed to Allegany County’s comprehensive plan. Appellants’ argument, as presented to the Board, was, in essence, the same as the argument presented to the circuit court and presented to this Court. That argument will be addressed in greater detail below. We note, however, that the Board found the applicable standard to be whether the special exception use was in harmony with the plan, as distinguished from whether it was in conformity with the plan, as argued by appellants.

The Board approved the retail portion of the development, finding it accessory to the principal use, the planned residential development. The Board also addressed the proposed waste water treatment plant, but did so only in regard to whether the production of waste water from the development as a whole would have a site specific adverse effect. Following the Board’s approval of the special exception, appellants appealed to the Circuit Court for Allegany County, alleging that the Board applied the wrong standard of review ⁴⁷ and erred in approving both a retail/eommercial area, which is not listed as a special exception use in A and C districts, and a waste water treatment plant, despite appellee’s failure to apply for a special exception to construct a waste water treatment plant. The circuit court declined to address appellants’ arguments regarding the retail/eommercial area and the waste water treatment plant.

As to whether the Board applied the proper standard of review, the circuit court found that the Board erred in determining whether the proposed development was in “harmony” with the comprehensive plan but, instead, should have determined whether the requested special exception use was “consistent” with the comprehensive plan. Questions Presented The questions presented by appellants, as rephrased by us, are: 1. In determining whether to grant a special exception, should the Board have reviewed the special exception use to determine whether it (1) conformed to, (2) was consistent with, or (3) was is in harmony with, the comprehensive plan? 2. Did the Board err in approving the construction of the retail area given that the land in question is zoned A and C? 3.

Did the Board err in approving the construction of a wastewater treatment plant? I. The Relationship Between the Special Exception Use and the Comprehensive Plan The parties agree that the Board must examine the potential site-specific adverse effects of a proposed special exception use, but they disagree as to the nature of the relationship between the requested use and the comprehensive plan that must be found to permit the special exception. Appellants, the circuit court, and the Board, the latter’s position being supported by appellee, have each used different words to describe the relationship between the proposed special exception use and the comprehensive plan that is ⁴⁸ necessary for approval of the proposed use. The Board, and appellee on appeal, state that the standard is whether the special exception use is in harmony with the comprehensive plan.

The circuit court, in reversing the Board, determined that the correct standard was whether the special exception was consistent with the comprehensive plan. According to appellants, the Board cannot grant a special exception until it has determined that the proposed use “conforms to” the comprehensive plan. Needless to say, appellants contend the phrase “conforms to” is a more exacting standard than either consistent with or in harmony with. Our task is to determine the correct standard, and whether, with respect to the words used, in the context of this case, they represent a substantive difference or a semantic distinction without a substantive difference.

Appellants find the requirement of conformity in the definition of special exception contained in Maryland Code (1957, 2003 Repl.Vol., 2006 Cum.Supp.), Art. 66B, § 1.00(k), the statute that empowers Allegany County to adopt a zoning code. That definition provides: “Special exception” means a grant of a specific use that would not be appropriate generally or without restriction and shall be based upon a finding that certain conditions governing special exceptions as detailed in the zoning ordinance exist, that the use conforms to the plan and is compatible with the existing neighborhood. (Emphasis added). According to appellants, this definition limits the Board’s authority to grant a special exception.

In appellants’ words, “the grant of zoning authority to local government and, in turn, to a board of appeals, to allow certain enumerated uses by special exception is necessarily conditioned upon fulfillment of the elements of the statutory definition,” including the requirement that, “in order to grant a special exception, the board of appeals must affirmatively find ‘that the use conforms to the plan.’ ” ⁴⁹ Relying on the following language from Mayor and Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514 , 814 A.2d 469 (2002), appellants allege that the “conforms to” language of section 1.00(k) elevates the comprehensive plan from merely a guide to a true regulatory device, mandating a closer level of accord between the special exception requested and the comprehensive plan. The Court in Rylyns stated: We repeatedly have noted that plans, which are the result of work done by planning commissions and adopted by ultimate zoning bodies, are advisory in nature and have no force of law absent statutes or local ordinances linking planning and zoning. Where the latter exist, however, they serve to elevate the status of comprehensive plans to the level of a true regulatory device. Id. at 530 , 814 A.2d 469 (footnote and citations omitted).

The circuit court based its conclusion, that the proper standard is one of consistency, on the language of the Allegany County zoning code itself. The definition of special exception within the zoning code states only that a special exception is “A land use that is subject to Board of Appeals review and approval.” The legislative purpose of the zoning code, however, described in section 141-70, is as follows: Purpose: This Part 4 is intended to regulate land use, the size of lots and the location, size and use of buildings and other structures for the purpose of providing sufficient and appropriate amounts of land for business and industry, residential use, public and private institutions, agriculture, open space and other purposes; and to ensure that these uses are consistent with the policies and recommendations of the Allegany County Comprehensive Plan and to provide for the harmonious and orderly development of the County in a manner which preserves the natural environment and the quality of life of its citizens. (Emphasis added). The circuit court considered this a “different and more rigid standard than the phrase ‘in harmony.’ ” Thus, the circuit ⁵⁰ court found that the Board erred in applying the in harmony ■with standard and remanded the matter to the Board.

The Board based its use of the phrase “in harmony” with on case law. The Board relied heavily on the use of that language in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), and Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607 , 701 A.2d 879 (1997), which will be discussed in greater detail below. The Board also relied on language in these and other cases describing master plans as guides, advisory in nature, rather than regulations. Section 1.00(k) of Art. 66B It is beyond question that different words or phrases may connote different meanings.

On the other hand, words have synonyms, and they must be viewed in context to determine if the choice of a particular word or phrase, as compared to a similar word or phrase, represents a semantical difference or a substantive difference. Article 66B is a general enabling statute and, by its express terms, rests land planning and land use controls with local jurisdictions. The “Plan” is referred to several times in Art. 66B as being merely a guide. The definition of “Plan” in Art. 66B, section 1.00(h)(1), states: “ ‘Plan’ means the policies, statements, goals, and interrelated plans ... which constitute the guide for the area’s future development.” (Emphasis added).

Art. 66B, section 3.05(a)(2)(i), discussing the powers and duties of the local planning commission, states that the plan shall “Serve as a guide to public and private actions and decisions to insure the development of public and private property in appropriate relationships.” (Emphasis added). Article 66B, section 3.05(a)(4)(i) states that the plan shall contain a “statement of goals and objectives, principles, policies, and standards, which shall serve as a guide for the development and economic and social well-being of the local jurisdiction.” Additionally, the terms that appellants allege have different meanings, requiring different levels of accord, are used inter ⁵¹ changeably in Art. 66B without any discernible intended difference. Art. 66B, section 3.08(a) states that, if a local legislative body has adopted a whole plan or a plan for one or more geographic sections or divisions of the local jurisdiction, a publicly or privately owned street, square, park or other public way, ground, or open space, or public building or structure, or public utility may not be constructed or authorized in the local jurisdiction or the major geographic section of the local jurisdiction until the location, character, and extent of the development has been submitted to and approved by the planning commission as consistent with the plan. (Emphasis added).

Section 4.03(a) on the other hand states: “The regulations adopted by a local legislative body shall be adopted ... (l)[i]n accordance with the plan.” (Emphasis added). Section 1.00(k), of course, uses the phrase “conforms to the plan.” Our review essentially turns on the answers to two questions: (1) what did the General Assembly authorize? and (2) what did Allegany County implement? With respect to the first question, we need not determine the relationship between a plan and a special exception use, as mandated by the General Assembly, because the Court of Appeals has already performed that task.

In Schultz v. Pritts, Judge Rita Davidson, writing for the majority, stated the required finding as follows: The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating that presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. Id. at 11, 432 A.2d 1319 (emphasis added). The Court of Appeals was clearly aware of the definition of special exception contained in section 1.00(k), as that provision ⁵² was reproduced in its entirety in the Court’s opinion.

Id. at 22 n. 6, 432 A.2d 1319 . The Court’s inclusion of the statutory definition of special exception, coupled with the language that the proposed use must be in “harmony with the general purpose and intent of the plan,” necessarily means that the Court was of the view that the different words conveyed essentially the same meaning. That meaning, under Article 66B, is that a special exception use does not have to strictly comply with a plan. It is up to the local jurisdiction, if it so chooses, to make it so.

Article 66B and the case law merely recognize that a local plan is likely to be general in nature, with potentially conflicting provisions as applied to particular circumstances. We turn, therefore, to whether the local legislative body acted to raise Allegany County’s comprehensive plan from a mere guide to a strict regulatory device. Special Exceptions and the Comprehensive Plan — Allegany County Appellants make much of the following language from Richmarr, 3 discussing Frederick County’s comprehensive plan: Were the legislative body desirous of externally imposing the plan’s recommendations as mandates, eschewing virtually all discretion that could