Wharf at Handy's Point, Inc. v. Department of Natural Resources

MOTZ, Judge. This case was treated by the parties as one involving important issues concerning the power and authority of the Chesapeake Bay Critical Area Commission (“Critical Area Commission”) to appeal an order of a local planning commission directly to the circuit court and the construction and constitutionality of a recently enacted state statute, Section 8-1812 of the Natural Resources Article. In fact, these ⁶⁶¹ interesting questions are of only academic concern. At the time the Critical Area Commission appealed directly to the circuit court, another statute clearly controlled appeals from the planning commission’s orders and provided an administrative remedy which the Critical Area Commission failed to exhaust prior to its appeal to the circuit court.

After the issuance of the order of the Circuit Court and entry of the notice of appeal, the Kent County Zoning Ordinance was amended to provide for direct appeal to the Circuit Court from orders of the Planning Commission. The amended ordinance does not apply retroactively, but it does make remand for failure to exhaust administrative remedies pointless. Accordingly, we affirm the judgment of the Circuit Court for Kent County, albeit for reasons different than those relied upon below. (i) By the early 1980s, the Chesapeake Bay was a natural resource in rapid decline.

As found by the General Assembly: (2) The shoreline and adjacent lands constitute a valuable, fragile, and sensitive part of this estuarine system, where human activity can have a particularly immediate and adverse impact on water quality and natural habitats; (3) The capacity of these shoreline and adjacent lands to withstand the continuing demands upon shoreline and adjacent lands without further degradation to water quality and natural habitats is limited; * * * * # * (5) Those portions of the Chesapeake Bay and its tributaries within Maryland are particularly stressed by the continuing population growth and development activity concentrated in the Baltimore-Washington metropolitan corridor; (6) The quality of life for the citizens of Maryland is enhanced through the restoration of the quality and pro ⁶⁶² ductivity of the waters of the Chesapeake Bay and its tributaries; (7) The restoration of the Chesapeake Bay and its tributaries is dependent, in part, on minimizing further adverse impacts to the water quality and natural habitats of the shoreline and adjacent lands; [and] (8) The cumulative impact of current development is inimical to these purposes. Section 8-1801(a) (emphasis added). 1 Accordingly, the General Assembly enacted the Chesapeake Bay Critical Area Protection Program: (1) To establish a Resource Protection Program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats; and (2) To implement the 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. Section 8-1801(b) (emphasis added). To establish the cooperative local/state relationship, to address the many environmental problems it had identified, and to implement a wide ranging Resource Protection Program, in 1984 the General Assembly created a new State agency, the Critical Area Commission, and specifically assigned responsibilities to it and to local governments.

Section 8-1803. Local jurisdictions were assigned “primary responsibility for developing and implementing a program, subject to review and approval by the [Critical Area] Commission.” The Critical Area Commission was directed in § 8-1808(d) to develop “criteria for program development and approval which are necessary or appropriate to achieve the standards ⁶⁶³ stated in [§ 8-1808(b) ].” The Commission developed these criteria after 16 public hearings, 16 Commission meetings, and 48 subcommittee meetings. See Gerald Winegrad, The Critical Area Legislation: A Necessary Step to Restore the Chesapeake Bay, 17 University of Baltimore Law Forum 3 (1986) (“Winegrad”). The criteria promulgated by the Critical Area Commission were subject to approval by the General Assembly. 1984 Md.Laws Ch. 794, § 3.

This was given in the 1986 session in the form of Joint Resolutions 36 and 37; the criteria became effective on May 13, 1986 and are found at Md.Regs.Code (“COMAR”) title 14, § 15.01 et seq. (1979) (“criteria”). Under the blueprint for program development set forth in § 8-1809(a) of the Natural Resources Article, a local jurisdiction then had the option to develop a program. If a county “fails to adopt and implement an approved program,” however, the Commission “may act for the county in doing so.” Winegrad at 4.

Almost all local jurisdictions, including Kent County, elected to develop a program. By necessity, many of these programs, including Kent County’s, closely mirrored and, in some respects, were identical to the criteria. Kent County’s local critical area program was approved by the Critical Area Commission on January 20, 1988 and became effective on April 12, 1988; it is incorporated into Kent County’s current zoning ordinance (“Ordinance”) which was adopted by the Kent County Commissioners on August 1, 1989 and amended December 5, 1989. The Ordinance requires that development undergo site plan review before it is undertaken.

Ordinance, Art. VI, § 4.1.1. Such review is required to “ensure that new development complies with all Comprehensive Plan, Zoning Ordinance, and agency requirements thereby promoting the health, safety and general welfare of Kent County residents.” Ordinance, Art. VI, § 4 (emphasis in original). One of the principal concerns is “the protection of historic and natural environmental features on the site under review, and in adjacent areas.” Ordinance, Art. VI, § 4.2.3.d. ⁶⁶⁴ The process for plan review is set forth in the Ordinance as follows: The following agencies will review plans according to their specified area of responsibility only. —Planning Office —Planning Commission —County Roads and/or State Highway Administration —Soil Conservation Service —Health Department —Critical Area Commission —Any other State or local agency as requested by the Planning Director Ordinance, Art. VI, § 4.2.2. Thus, the Critical Area Commission’s plan review addresses only issues such as the Critical Area Buffer preservation, compliance with the local critical area program, and the natural environmental features of a site as they affect the Chesapeake Bay.

In contrast, the Planning Commission’s plan review must address only those issues that relate to the County’s Comprehensive Plan. As clearly provided in the Ordinance, a reviewing agency may not stray from its field of expertise. The Ordinance provides explicitly that reviewing agencies shall review site plans according to their “specified area of responsibility only.” Ordinance, Art. VI, § 4.2.2 (emphasis added). Before site plan approval is granted it must be determined “that the activity meets all required environmental standards.” Ordinance, Art. VI, § 4.3.F.10.

Article X, § 1.3 of the Ordinance provides: “the word ‘shall’ is always mandatory. The word ‘may’ is permissive.” Accordingly, certain mandatory standards may not be waived. (u) The Wharf at Handy’s Point, appellant herein (“the Wharf”), owns approximately 4.6 acres in Kent County which has been, or is intended to be, developed by the Wharf as part of its marina complex. All of the property is located entirely within.the Chesapeake Bay Critical Area ⁶⁶⁵ and the sensitive Critical Area Buffer.

A 54 slip, full-service marina, complete with parking, boat storage, and travel lift, exists on the northern half of this property; the southern half is at present undeveloped. On May 7, 1990, the Wharf submitted an application to the Kent County Planning Commission (“Planning Commission”) for a boat storage facility and an additional parking area on the southern half of this property. In a letter to the Kent County Planning Office dated May 25, 1990, Mr. Ren Serey, Chief of the Critical Area Commission’s Project Evaluation Division at the time, detailed the numerous reasons why the Commission objected to the Wharf’s application. For example, Mr. Serey asserted that the project “would severely impact sensitive portions” of the Critical Area Buffer, a designated habitat protection area, by permitting development not necessarily associated with water development facilities; improperly disturb steep slopes; remove all trees in a two-acre area, possibly adversely impacting a forest interior dwelling, bird habitat, etc., all in violation of the State’s Critical Area Criteria and Kent County’s Local Program.

These objections were repeatedly reiterated by a Critical Area Commission staff planner. Moreover, a conservationist at the Maryland Soil Conservation Service and the staff of the Kent County Planning Office itself recommended denial of the application for many of the same reasons. Nevertheless, on August 2, 1990, the Planning Commission granted preliminary approval of the Wharf’s site plan. The application was re-evaluated by the Critical Area Commission; it continued to recommend denial of the approval.

Despite the continuing objections of the Critical Area Commission, the Planning Commission issued final site plan approval on October 4, 1990. ⁶⁶⁶ The Chairman of the Critical Area Commission appealed this decision to the Circuit Court for Kent County. 2 The Wharf moved to dismiss the appeal on the ground that the Chairman had no statutory right to appeal and so the circuit court lacked jurisdiction. On October 11, 1990, the Circuit Court denied the motion to dismiss, finding that § 8-1812 gave the Chairman a statutory right of appeal. Two months later, on December 10, 1990, the lower court remanded the matter to the Planning Commission with instructions that it review the application, consider any new evidence, and render specific findings of fact. The Chairman of the Critical Area Commission again outlined to the Planning Commission in detail the Critical Area Commission’s numerous continuing objections to the project.

Several other interested state and local governmental units and private parties also submitted comments to the Planning Commission in support of the position of the Critical Area Commission. On January 3, 1991, the Planning Commission, after a public hearing on the matter, made specific findings of fact as directed by the circuit court. The Planning Commission then voted again to approve the final site plan for the Wharf. On January 9, 1991, the Chairman of the Critical Area Commission appealed the Planning Commission’s action to the circuit court.

The Wharf moved to dismiss this appeal on the same ground that it moved to dismiss the initial appeal and the additional ground that if the Chairman had a right to appeal granted no other party, this would raise “significant” constitutional questions. After denying the motion to dismiss on March 20,1991, the circuit court issued a Memorandum Opinion and Order reversing the Planning Commission’s grant of final site plan approval and finding that the Kent County Ordinance and § 8-1811(a) of the Natural Resources Article are “mandatory and all encompassing. Their effect is that a project cannot be approved ⁶⁶⁷ unless it meets all criteria. The project in question here has failed to do so in several respects.” (emphasis in original.) (iii) On appeal, the Wharf did not, in any way, contest the correctness of the circuit court’s March 20, 1991 Memorandum Opinion and Order on the merits.

Rather, it only raised the following two issues as to the Critical Area Commission’s right to appeal to the circuit court: 1. Whether the circuit court had jurisdiction over the Critical Area Commission’s 3 appeal of the Planning Commission’s site plan approval for the Wharf when the Critical Area Commission has no statutory right to appeal. 2. If the circuit court had jurisdiction over the Critical Area Commission’s appeal, whether this right to appeal would be unconstitutional as a result of being unilateral. In its brief, the Critical Area Commission similarly addressed only these questions.

The parties focused their attention on § 8-1812 of the Natural Resources Article, which provides in pertinent part: (a) In general. — After the [Critical Area] Commission has approved or adopted a program, the chairman of the Commission has standing and the right and authority to initiate or intervene in any administrative, judicial, or other original proceeding or appeal in this State concerning a project approval in the Chesapeake Bay Critical Area____ ****** ⁶⁶⁸ (c) Appeal authorized,. — The chairman may appeal an action or decision even if the chairman was not a party to or is not specifically aggrieved by the action or decision. The Critical Area Commission argued, and the circuit court found, that this statute provided the Critical Area Commission the right to appeal a planning commission decision directly to the circuit court. The Wharf argued that this statute provided the Critical Area Commission no such right. Critical to the position of both sides was agreement on the premise that, if § 8-1812 did not give the Critical Area Commission this power, then neither the Critical Area Commission, nor any other party, had the power to appeal decisions of a county planning commission.

This was so, the parties believed, because the Kent County Zoning Ordinance did not provide for direct appeal to the Circuit Court from decisions of the Planning Commission. See Md.Ann. Code art. 66B, § 4.08(f). This Court, however, became convinced that the parties’ argument was grounded on a false premise, that they had totally ignored another state statute, which in fact provides all aggrieved parties the right to appeal planning commission orders. When the parties were questioned on this point at oral argument, they were surprised by the concept and not prepared to respond to it.

Accordingly, in the interests of fairness, after oral argument, we requested that the parties brief and argue the following two questions: 1. Do Article 66B, § 4.07(d) of the Maryland Annotated Code and the Kent County Zoning Ordinance provide the Kent County Board of Appeals with the power to hear appeals from a decision of the county planning commission approving a site plan? 2. If so, must this administrative remedy be exhausted prior to any judicial review of the county planning board decision approving the site plan for the Wharf? In their supplemental briefs and argument, the Wharf and the Critical Area Commission agreed that if the answer to the first of these questions is “yes,” then the answer to ⁶⁶⁹ the second must also be “yes.” 4 That is, if Article 66B, § 4.07(d) and the Kent County Zoning Ordinance provide the Kent County Board of Appeals with the power to hear appeals from orders of the County Planning Commission approving a site plan, then the Critical Area Commission in failing to appeal to the Board of Appeals had failed to exhaust an administrative remedy.

Because “an administrative remedy must be invoked and exhausted before judicial relief is available,” Md.-Nat’l Cap. Park & Planning Comm. v. Crawford, 307 Md. 1, 13 , 511 A.2d 1079 (1986), reversal presumably would be required. 5 Thus, the critical question before us would seem to be whether Article 66B, § 4.07(d) and the Kent County Zoning Ordinance provided the Kent County Board of Appeals with the power to hear an appeal from the order of the Planning Commission approving the Wharfs site plan. (iv) Article 66B, § 4.07(a) of the Maryland Annotated Code provides that: “The local legislative body shall provide for the appointment of a board of appeals.” 6 Section 4.07(d) provides: ⁶⁷⁰ (d) General powers. — The board of appeals shall have the following powers: (1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto. (emphasis added.) In Miller v. Pinto, 305 Md. 396 , 504 A.2d 1140 (1986), the Court of Appeals reiterated “[t]he local legislative body in a code county is required to enact local laws authorizing the county’s board of appeals to exercise the powers provided in § 4.07(d) of Article 66B.” 305 Md. at 403 n. 4, 504 A.2d 1140 .

Pursuant to the authority granted to them in Article 66B, § 4.07(d), the County Commissioners of Kent County have provided in the Zoning Ordinance that the Board of Appeals shall have the power: “[t]o hear and decide appeals of any decision or determinations made by the Administrator in the enforcement and administration of this Ordinance.” Ordinance, Art. IX, § 2.1 (emphasis in original). The Zoning Ordinance defines that “Administrator” as “[t]he Zoning Administrator of Kent County.” Thus, as the Wharf candidly concedes, the import of the powers vested by the Zoning Ordinance in the Board of Appeals is “far from clear.” That is, it is not clear whether a “decision” made by the “Administrator” is intended to include decisions made by the Planning Commission. The parties agree, however, that regardless of what was intended by the County Commissioners in the Zoning Ordinance, Article 66B, § 4.07(d) controls here. See Miller v. Pinto, supra, 305 Md. at 403 , 504 A.2d 1140 (“the local legislative body in a code county is required to enact local laws authorizing the county’s board of appeals to exercise the powers provided in § 4.07(d)”); Boulden v. Mayor, 311 Md. 411 , 535 A.2d 477 (1988) (local ordinance which directly of indirectly contravenes a