ANNAPOLIS MARKET PLACE v. Parker

• Decision Date: 18 July 2002
• Docket Number: No. 46,46
• Citation: 369 Md. 689,802 A.2d 1029
• Parties: ANNAPOLIS MARKET PLACE, L.L.C., v. John N. PARKER, Sr., et al.
• Court: Maryland Court of Appeals

802 A.2d 1029

369 Md. 689

ANNAPOLIS MARKET PLACE, L.L.C., v. John N. PARKER, Sr., et al.

No. 46, Sept. Term, 2001.

Court of Appeals of Maryland.

July 18, 2002.

Charles F. Delavan and Eileen E. Powers (Blumenthal, Delavan & Williams, P.A., on brief), Annapolis, for petitioner.

Sarah M. Iliff, Sr. Asst. County Atty. (Linda M. Schuett, County Atty., on brief), Annapolis, for respondents.

Barbara J. Palmer (Krause & Ferris, on brief), Annapolis, for respondents.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.

HARRELL, Judge.

Petitioner (Annapolis Market Place, L.L.C.) applied for and eventually was denied zoning reclassification of property it owned in Anne Arundel County. At each level of administrative and judicial consideration of Petitioner's application, compliance with Anne Arundel County's "Standards and procedures for granting or denying rezoning" was the required focus. Anne Arundel County Code ("County Code"), Article 3, § 2-105. Of greatest debate was (and is) the meaning and scope of County Code, Art. 3, § 2-105(a)(3),¹ which provides that:

(a) Rezonings shall be granted or denied in accordance with appropriate zoning regulations, but a rezoning may not be granted except on the basis of an affirmative finding that:

....

(3) transportation facilities, water and sewerage systems, storm drainage systems, schools, and fire suppression facilities adequate to serve the uses allowed by the new zoning classification, as defined in Article 26, Title 2, Subtitle 4, Part 2 of this Code, are either in existence or programmed for construction;....

According to Petitioner, the reference in § 2-105(a)(3) to "Article 26, Title 2, Subtitle 4, Part 2 of this Code," the "Adequacy of Facilities" part of the "Subdivision" Article ("the AOF Part") of the County Code, necessarily incorporates the entirety of that part.² Specifically, Petitioner identifies a number of sections within the AOF Part which provide, as an alternative to the actual existence of the needed facilities to serve the proposed development, that a developer's agreement, proffered at the time subdivision approval is sought, to provide the needed facilities may satisfy the adequacy requirements. By parity of reasoning, Petitioner maintains that a developer's agreement at rezoning should satisfy the requirement that adequate facilities are "either in existence or programmed for construction."³ On the other hand, Respondents in this case (Anne Arundel County and neighboring homeowners) maintain that the reference in § 2-105(a)(3) to the AOF Part does not incorporate, by its terms, each of the alternative means provided in the AOF Part for establishing that facilities are, or will be, adequate. According to Respondents, Petitioner does not satisfy the requirement for a zoning reclassification because it did not demonstrate that the enumerated facilities were in existence or programmed for construction in the relevant governmental capital improvements program (the County's or the State Highway Administration's).

We granted Petitioner's writ of certiorari, Annapolis Mkt. v. Parker, 364 Md. 534, 774 A.2d 408 (2001), to address the meaning of Art. 3, § 2-105(a)(3) of the County Code. Petitioner presents the following rephrased question for our review:

Whether, in determining if public facilities are adequate to support a zoning reclassification under Anne Arundel County Code, Art. 3, § 2-105(a)(3), which requires adequate public facilities (defined by reference to the Adequacy of Facilities ordinance) to be "either in existence or programmed for construction," the Anne Arundel County Board of Appeals may consider evidence of future improvements to existing facilities agreed to be undertaken by a developer.

I. Relevant Background

Petitioner⁴ owns 32.93 acres of real property ("the Property") located in Annapolis, Maryland. As described by the Court of Special Appeals,

[t]he Property fronts Bestgate Road, a four-lane divided highway with a raised medium strip. A portion of the Property contains steep slopes and nontidal wetlands close to Cabin Branch, which drains into Saltworks Creek. A Baltimore Gas and Electric overhead utility line transverses the northeast portion of the Property.

The land to the immediate west of the Property is zoned W[ ]1[-]Industrial and developed as the Annapolis Commercial Park, a 400,000 square foot industrial park. Adjacent to the Property to the east is a cemetery and a church. That property is zoned residential. Two residential subdivisions, Woodlawn and Saltworks on the Severn, lie to the north of the Property. These subdivisions do not have access to Bestgate Road and are separated from the site by Cabin Branch. Across Bestgate Road to the west of the Property is a large, commercial EPA building and land zoned Town center. The Property is within clear sight of the Annapolis Mall.

Approximately 30 acres of the Property are zoned R5 Residential; the remaining two acres are zoned R1 Residential. [Petitioner] sought to build a "novel mix-use" development that would integrate residential, commercial, and retail uses in one location. The project was described as "a street with offices and residential over retail, a town square, that it stands to a community building which looks out to this stream valley park." The northern portion of the Property, in the area of Cabin Branch, would not be developed. [Petitioner] was advised by County officials that such a project could be accomplished only by C3 Commercial zoning.⁵

On 3 March 1998, Petitioner filed an application to rezone the Property to C3 Commercial. Pursuant to County Code, Art. 28, § 11-102(b), Petitioner, as an "applicant for rezoning," had the "burden of proof, including the burden of going forward with the evidence and the burden of persuasion, with respect to any question of fact." As provided in County Code, Art. 28, § 11-102(c),⁶ the rezoning could not be granted "except on the basis of an affirmative finding that":

(1) there was a mistake in the zoning map or the character of the neighborhood has changed to such an extent that the zoning map should be changed;

(2) the new zoning classification conforms to the County General Development Plan in relation to land use, number of dwelling units or type and intensity of nonresidential buildings, and location;

(3) transportation facilities, water and sewerage systems, storm drainage systems, schools, and fire suppression facilities adequate to serve the uses allowed by the new zoning classification, as defined in Article 26, Title 2, Subtitle 4, Part 2 of this Code, are either in existence or programmed for construction; [and]

(4) there is compatibility between the uses of the property as reclassified and the surrounding land uses, so as to promote the health, safety, and welfare of present and future residents of the County; ....⁷

Following a hearing, the County's Administrative Hearing Officer, on 15 July 1998, denied Petitioner's application for a zoning reclassification. According to the Hearing Officer, Petitioner had not met its burden of proof "with respect to the issue of change ...." See County Code, Art. 28, § 11-102(c)(1). Petitioner appealed the decision of the Hearing Officer to the Anne Arundel County Board of Appeals ("the Board"). See County Code, Art. 3, § 1-104 ("A ... corporation ... aggrieved by a decision of the Administrative Hearing Officer may appeal the decision to the County Board of Appeals."). Pursuant to County Code, Art. 3, § 2-105(a), the Board, in order to grant the reclassification, was required to render affirmative findings regarding the same factors as were at issue at the first administrative hearing. See supra note 6 and accompanying text.

Relevant to this appeal, Petitioner, in the hearing before the Board, presented evidence regarding water supply systems, on-site storm drainage systems, sewerage systems, and roads. It did not present any direct evidence regarding fire suppression facilities, off-site storm drainage systems,⁸ or schools. On 21 May 1999, the Board nonetheless determined "that the Petitioner ha[d] presented sufficient evidence to meet the standards for the requested rezoning." It made the following findings and conclusions regarding the requirements of § 2-105(a)(3):

The public facilities are adequate to serve the uses permitted by the C3 zoning classification. See Art. 3, Section 2-105(a)(3). The Board finds persuasive the testimony of the Petitioner's expert engineer, Mr. Terry Schuman, regarding adequacy of facilities. He described the water, sewer and storm drainage systems that would be utilized by the subject property. It is his opinion that the systems would be adequate to serve the uses permitted within the C3 zone. Indeed, Mr. Dooley⁹ testified that there were no issues related to adequacy of public facilities except for transportation facilities. With regard to testimony by Ms. Catherine Bartelman,¹⁰ the Board finds the proposed location of storm water management facilities by the Petitioner may not reflect the final location or size thereof. There was no showing, however, that the construction of storm water management facilities on the subject site would be impossible or insufficient to control the storm water runoff therefrom. The Board notes that the County requires that future developments not affect or decrease the velocity and quantity of storm drainage and the County will review plans for storm water management prior to the approval of any development of the site.

The Board also concludes that the transportation facilities will be adequate to serve the uses proposed by the C3 zoning classification. The Board finds persuasive the testimony of Mr. Schmid¹¹ relative to the transportation network in the neighborhood. Mr. Schmid noted that several improvements to the roadway network would be required in order for any development of this site to meet the adequacy of transportation facilities requirement....