Art Wood Enterprises v. Wiseburg Community Ass'n, Inc.

• Decision Date: 01 September 1990
• Docket Number: No. 1782,1782
• Citation: 88 Md.App. 723,596 A.2d 712
• Parties: ART WOOD ENTERPRISES v. WISEBURG COMMUNITY ASSOCIATION, INC. ,
• Court: Court of Special Appeals of Maryland

Page 723

88 Md.App. 723

596 A.2d 712

ART WOOD ENTERPRISES v. WISEBURG COMMUNITY ASSOCIATION, INC.

No. 1782, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Oct. 9, 1991.

Howard L. Alderman, Jr. (Levin & Gann, P.A., on the brief), Towson, for appellant

Thomas J. Gisriel (Michael Gisriel and Gisriel & Gisriel, on the brief), Baltimore, for appellee.

Argued before BISHOP, BLOOM and HARRELL, JJ.

HARRELL, Judge.

This case arises from a decision of the Circuit Court for Baltimore County which remanded the decision of the Board of Appeals of Baltimore County (the Board) affirming the approval of a development plan by the County Review Group of Baltimore County (CRG).

FACTS

Appellant, Art Wood Enterprises (Art Wood), is the owner of approximately ninety (90) acres of land located in northern Baltimore County upon which it proposes a development, known as "Coachman's Field," consisting of thirty-nine (39) single-family, detached homes. Appellee, Wiseburg Community Association, Inc. (Wiseburg), is a citizens' group composed of existing residents from the general vicinity in which "Coachman's Field" is planned.

The "Coachman's Field" development plan (the Plan) was reviewed by the CRG ¹ pursuant to the Development Regulations of Baltimore County, Baltimore County Code (B.C.C.) § 26-166 et seq., which require an "approved plan ... for all development" in the County. B.C.C. § 26-201. ² On 30 April 1987, at a public meeting attended by representatives of Art Wood, Wiseburg, and several County agencies, the CRG ostensibly approved the Plan.

Wiseburg appealed the CRG's decision to the Board, which affirmed. Wiseburg then appealed to the Circuit Art Wood now contends that:

                Court for Baltimore County.   The circuit court (Brennan, J.) held that the CRG's approval of the Plan was "conditional" and as such was not authorized under the B.C.C.   The circuit court remanded the matter to the Board, directing that the Board order the CRG to make a final decision regarding the Plan at a continued CRG meeting held pursuant to B.C.C. § 26-206
                

I. The circuit court erred in finding that the CRG's approval of the Plan was "conditional" and as such was unauthorized under B.C.C. § 26-206;

II. The circuit court erred in its conclusion that the CRG actually took final action to approve the Plan in a meeting that was closed to the public in violation of B.C.C. § 1-12 (the County's "Open Meeting" law); and

III. The CRG was not required to refer the Plan to the Baltimore County Planning Board (Planning Board) pursuant to B.C.C. § 26-207.

STANDARD OF REVIEW

The role of the circuit court in reviewing the Board's decision is set forth in Md.Ann.Code art. 25A, § 5(U) (1987), which provides in pertinent part:

Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. (Emphasis added.)

The circuit court's standard of review is thus limited to whether or not the Board's decision is "in accordance with law." The Board's decision may be set aside as not in accordance with law if it is arbitrary, illegal or capricious. Mortimer v. Howard Research, 83 Md.App. 432, 441, 575 A.2d 750 (1990). In Mortimer, id., this court set forth the In making a determination of whether the Board of Appeals decision is arbitrary, illegal or capricious, the reviewing court must decide whether the question before the agency was fairly debatable. Howard County v. Dorsey, 45 Md.App. 692, 700 (1980), rev'd on other grounds, 292 Md. 351 (1982). An issue is fairly debatable if reasonable persons could have reached a different conclusion on the evidence and, if so, a reviewing court may not substitute its judgment for that of the administrative agency. Eger v. Stone, 253 Md. 533, 524 (1969). The fairly debatable test is analogous to the clearly erroneous standard under Rule 8-131(c) and a decision is fairly debatable if it is supported by substantial evidence on the record taken as a whole. Dorsey, 45 Md.App. at 701 , quoting Sedney v. Lloyd, 44 Md.App. 633, 637 (1980). ³

proper standard for determining whether a Board decision is arbitrary, illegal or capricious:

This standard of review is in accord with that established by case law regarding zoning actions. Miller v. Forty West Builders, 62 Md.App. 320, 326, 489 A.2d 76 (1985). In this appeal, "the role of this court is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review." Mortimer v. Howard Research, 83 Md.App. 432, 442, 575 A.2d 750 (1990).

DISCUSSION

I

The B.C.C. authorizes the CRG to take any of three actions with respect to a proposed plan. First, the CRG may take "final action on the plan," B.C.C. § 26-206(b)(1), which is defined in the B.C.C. as "the approval of a plan as submitted, the approval of a plan as amended, or the disapproval of a plan ..." B.C.C. § 26-168. Second, the CRG may refer the proposed plan to the Planning Board pursuant to B.C.C. § 26-207. B.C.C. § 26-206(b)(2). Finally, the CRG may continue the meeting to a later date "in order to receive additional information or to resolve any development matter raised at the initial meeting regarding the plan." B.C.C. § 26-206(b)(3). The B.C.C. further provides that in the event an applicant for plan approval or any other person is required to submit additional information regarding the plan the CRG "shall continue its meeting to receive such additional information." B.C.C. § 26-206(c)(1).

The above provisions of the B.C.C. must be interpreted in light of B.C.C. § 26-203, which describes the nature and contents of the plan on which the CRG must act. B.C.C. § 26-203(a) provides that:

[t]he plan shall set forth an informative, conceptual, and schematic representation of the proposed development in a clear and legible manner by means of maps, graphs, charts, or other written or drawn documents so as to enable the county and all reviewing agencies an opportunity to make reasonably informed decisions regarding the development. (Emphasis added.) ⁴

The language of B.C.C. § 26-203(a) makes it clear that CRG approval is merely one stage (and an early one at that) of the land development review and approval process which takes a proposed development from its planning stages to its final form. As the Board stated in its opinion on the CRG's approval of the Plan "[a]t the CRG stage, the developer need concern himself only with generalities and not specifics of his proposed development. He may be granted approval of the conceptual plans, but numerous agency permits, inspections, and approvals will follow ..."

Thus, the use of the term "final action on the plan" in B.C.C. § 26-206(b)(1) cannot be interpreted to mean that the plan on which the CRG acts need be in finished form, or that no additional review or more detailed information, even on subjects generally addressed in the development plan, will be necessary in subsequent stages of the development review and approval process. This court's dicta in the case of Miller v. Forty West Builders, 62 Md.App. at 320, 489 A.2d 76, is instructive. In that case, CRG approval of a plan was challenged because the overflow from a sewerage pumping station which was to serve the proposed development was operating over capacity and would pose significant health and safety hazards. The CRG had determined that the developer must have a study done and pursuant to a public works agreement must make any necessary corrections to eliminate any overflow. This court, in sustaining the CRG's action, stated as follows:

[P]ursuant to the CRG's determination, the public works agreement is the mechanism to assure that the facilities are properly improved so that the proposed subdivision poses no health or safety hazards to the existing community.

The CRG's approval in Miller was in some sense "conditioned" on the developer's performance of a later study. It was not necessary, however, for the CRG to hold another meeting in order to receive the results of that study, as the CRG's approval of the plan was not contingent on the study's results. Rather, the information obtained from the study was to be utilized at a later stage of the land development review and approval process, as foreseen by the CRG when it approved the plan. Thus, if a plan does not meet the requirements of B.C.C. § 26-203, or the CRG desires additional information regarding a plan, or wants to settle or resolve particular development matters before it acts on the plan, then it is required to continue its meeting. But if the CRG has all the information before it necessary to approve the plan--that is, the plan satisfies the requirements of B.C.C. § 26-203--and the CRG approves the plan on the basis of that information, then the requirements of B.C.C. § 26-206 are satisfied, regardless of whether additional information regarding the proposed development may be necessary in future stages of the land development review and approval process.

With respect to the CRG's compliance with B.C.C. § 26-206 in the case sub judice, the circuit court ruled as follows:

[T]his Court agrees with [Wiseburg] that the approval was conditional and as such was an action which the CRG was not authorized to take pursuant to [B.C.C. § 26-206]. The [B.C.C.] provides in part that the CRG shall either take final action on a plan or continue the meeting in order to take additional information or resolve developmental matters. In this instance, the CRG should have continued the meeting in order to give the developers time to resolve the remaining matters stated above. The additional information was needed in order to properly grant or deny its [the plan's] approval.

The "remaining matters stated above" refers to ...