Appleton v. Cecil County

• Citation: 404 Md. 92,945 A.2d 648
• Decision Date: 07 April 2008
• Docket Number: No. 92 Sept.Term, 2007.,92 Sept.Term, 2007.
• Parties: APPLETON REGIONAL COMMUNITY ALLIANCE, et al. v. The COUNTY COMMISSIONERS OF CECIL COUNTY, MD, et al.
• Court: Court of Special Appeals of Maryland

945 A.2d 648

404 Md. 92

APPLETON REGIONAL COMMUNITY ALLIANCE, et al. v. The COUNTY COMMISSIONERS OF CECIL COUNTY, MD, et al.

No. 92 Sept.Term, 2007.

Court of Appeals of Maryland.

April 7, 2008.

G. Macy Nelson (Paul N. DeSantis, Washington, DC), on brief, for petitioners.

Dwight E. Thomey (Baker, Thomey & Emrey, P.A., Elkton, MD), on brief, Richard A. Bechtel, II (Kevin J. Mahoney of Gessner, Snee, Mahoney & Lutche, P.A., Bel Air, MD), on brief, for respondent.

ARGUED BEFORE BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, JJ., and JOHN C. ELDRIDGE and DALE R. CATHELL, JJ. (Retired, specially assigned).

HARRELL, Judge.

I.

Aston Development Group, Inc., ("Aston") hopes to construct 302 dwellings on 390 acres of land in Cecil County, intending to name the project "Aston Pointe" (the "Property").¹ The Property, which abuts a nature preserve, presently lacks public water and sewer line service. In June 2004, Aston, as to the initial governmental step to arrange other than individual well and septic service for each proposed dwelling, requested the Board of County Commissioners of Cecil County (the "Board") to amend the Cecil County Master Water and Sewer Plan (the "Plan") to "upgrade" the Property to areas W2 and S2. "W2 and/or S2 areas are areas that may be served by central water and/or sewage facilities within 0 to 5 years." Cecil County Master Water & Sewer Plan § 1.3.3. Having received from the Cecil County Planning Commission (the "Planning Commission") an unfavorable recommendation regarding the request, the Board rejected Aston's initial request for amendment on 13 July 2004.

In December 2004, Aston renewed its request for amendment of the Plan. On 4 January 2005, the Board held a public hearing on the matter. A final decision on the second requested amendment was postponed because the Board asked Aston to produce evidence that 400,000 gallons of water per day would be available from wells to be drilled on the Property. After drilling test wells and submitting the results to the Maryland Department of the Environment (MDE), Aston obtained a letter from MDE stating that the proposed number of wells on the Property could produce between 369,000 and 452,000 gallons of water daily, depending on ambient conditions. MDE noted, however, that further analysis was required because watershed water balance requirements could reduce significantly the amount of water ultimately allowed to be withdrawn. On 24 August 2005, the Board denied Aston's second request for an amendment to the Plan.

After Aston drilled additional test wells on the Property with a view to increasing the amount of water that might be extracted, Aston requested for the third time an amendment to the Plan.² On 18 January 2006, the Planning Commission voted to recommend to the Board that the Board grant Aston's requested amendment. The MDE, on 27 January 2006, indicated that it would not review the additional water and well information until the Board approved and submitted to MDE a proposed amendment to the Plan for the Property.³ The Board voted 3-2 to approve Aston's proposed amendment on 31 January 2006. On 1 February 2006, and again on 17 April 2006, the Cecil County Director of Planning, Zoning, and Parks and Recreation submitted the proposed amendment to MDE for its approval.⁴

During the time between the two submissions to MDE and before MDE acted on them, a group of Cecil County residents opposed to the amendment to the Plan specifically and the Aston Pointe development generally filed on 23 February 2006, individually and collectively as the Appleton Regional Community Alliance (Appleton), a Petition for Judicial Review in the Circuit County for Cecil County challenging the Board's approval of the proposed amendment to the Plan. Both Aston and the Board (collectively here, "Respondents") filed Motions to Dismiss.⁵ The Circuit Court granted the motions on 7 August 2006. Appleton noted its appeal on 25 August 2006 to the Court of Special Appeals from the Circuit Court's dismissal of the Petition for Judicial Review.

MDE responded on 15 September 2006 to the Board's submission of the proposed amendment to the Plan, noting that "MDE approves the map amendment, in the context of the existing [Cecil] County Water and Sewerage Plan...."

On 27 October 2006, Appleton filed a second action in the Circuit Court for Cecil County seeking a Writ of Mandamus, Declaratory Judgment, and Injunctive Relief. Only the Board was named as defendant.⁶ In this action, Appleton limited its challenge to the Board's approval of the proposed amendment to the Plan, making no mention of the MDE approval thereof. Appleton requested that the Circuit Court vacate the vote of the Board and remand to the Board with instructions to deny Aston's request for the proposed amendment. In the alternative, Appleton sought to have declared that the Board was without authority to approve the proposed amendment and to enjoin the Board from taking action to approve the proposed amendment. That action, Case No. 07-C-06-000414, was dismissed, without prejudice, pending the outcome of the present litigation.

The Court of Special Appeals, on Appleton's appeal of the Circuit Court's dismissal of its Petition for Judicial Review, affirmed in an unreported opinion filed on 28 August 2007. We granted Appleton's Petition for Certiorari to consider whether the Circuit Court for Cecil County was correct in dismissing Appleton's Petition for Judicial Review.⁷ 402 Md. 352, 936 A.2d 850 (2007).

II.

The Court of Special Appeals affirmed the Circuit Court's dismissal of Appleton's Petition for Judicial Review because: (1) the proposed amendment to the Plan approved by the Board is not a "zoning action," subject to a petition for judicial review action, within the meaning of Maryland Code (1957, 2003 Repl.Vol.), Article 66B § 4.08; and (2) the case is not ripe because the Board's approval of the proposed amendment was not the final administrative action rendering the Plan amendment effective and final for governmental purposes. Aston argued to the intermediate appellate court that Appleton's Petition for Judicial Review action was anathema for a third reason, which went undecided by the Court of Special Appeals, mootness. Specifically, Aston contended that the case is moot because MDE, following initiation of Appleton's Petition for Judicial Review, approved finally the Board's proposed action. All of these contentions present threshold challenges to consideration of the merits of Appleton's main contentions as to why the Board's action should be reversed. We hold that the proposed amendment to the Plan is not a "zoning action" within the meaning of Maryland Code (1957, 2003 Repl.Vol.), Article 66B § 4.08(a). Therefore, we need decide nothing else in this case.

"[I]n order for an administrative agency's action properly to be before this Court (or any court) for [statutory] judicial review, there generally must be a legislative grant of the right to seek judicial review." Harvey v. Marshall, 389 Md. 243, 273, 884 A.2d 1171, 1189 (2005). Maryland Rule 7-201(a) regulates an action to review an order or action of an administrative agency "where judicial review is authorized by statute...."⁸ See Bucktail LLC v. County Council of Talbot County, 352 Md. 530, 541, 723 A.2d 440, 445 (1999) (noting that Maryland Rules 7-201 and 7-202 do "not grant a right of judicial review, and ... [are] inapplicable where judicial review is not authorized by statute"). In satisfaction of the latter threshold requirement, Appleton points to Maryland Code (1957, 2003 Repl.Vol.), Article 66B, § 4.08. Section 4.08 provides that an aggrieved person may "appeal a decision of a board of appeals or a zoning action of a local legislative body to the circuit court of the county ...." (emphasis added). Thus, an ultimate (and potentially dispositive) issue in the current posture of this case is whether the proposed amendment to the Plan approved by the Board constitutes a "zoning action" for which judicial review is authorized. Respondents contend that the Board's action constituted a planning, rather than a zoning, action. We agree.

We essentially summarized recently the test to be applied in determining whether a governmental action constitutes a judicially reviewable "zoning action" for purposes of § 4.08.

To summarize, the pertinent criteria for determining whether a particular action by the [legislative body] is a "zoning action" are: first, there must be a determination that the process observed by the governmental body in affecting an alleged zoning action was quasi-judicial in nature, rather than legislative. A quasi-judicial proceeding in the zoning context is found where, at a minimum, there is a fact-finding process that entails the holding of a hearing, the receipt of factual and opinion testimony and/or forms of documentary evidence, and a particularized conclusion, based upon delineated statutory standards, for the unique development proposal for the specific parcel or assemblage of land in question. Second, if the governmental act in question involves a quasi-judicial process, the inquiry moves to the question of whether it qualifies as a "zoning action." Where the [legislative body] exercises its discretion in deciding the permissible uses and other characteristics of a specific parcel or assemblage of land upon a deliberation of the unique circumstances of the affected land and its surrounding environs, a "zoning action" is the result.

Md. Overpak Corp. v. Mayor & City Council of Balt., 395 Md. 16, 53, 909 A.2d 235, 257 (2006).⁹

In its brief to this Court, Appleton devotes substantial effort to demonstrating that the Board's proceeding to consider and act on the proposed amendment to the Plan was quasi-judicial in nature. "Indicia of a quasi-judicial process include, a `fact-finding process that entails the holding of a hearing, the receipt of factual and opinion testimony and/or forms of documentary...