Baltimore County v. Wesley Chapel Bluemount Ass'n, 1369
| Citation | 678 A.2d 100,110 Md.App. 585 |
| Decision Date | 01 September 1995 |
| Docket Number | No. 1369,1369 |
| Parties | BALTIMORE COUNTY, Maryland v. WESLEY CHAPEL BLUEMOUNT ASSOCIATION, et al. , |
| Court | Court of Special Appeals of Maryland |
Douglas N. Silber, Asst. County Atty. (Virginia W. Barnhart, County Atty. and Linda T. Cox, Asst. County Atty., on the brief), Townson, for Appellant.
J. Carroll Holzer (Holzer and Lee, on brief), Towson, for appellee, Wesley Chapel.
G. Scott Barhight (Whiteford, Taylor & Preston, L.L.P., on brief), Towson, for appellee, Gaylord Brooks Realty Co.
Argued before FISCHER, DAVIS and HOLLANDER, JJ.
This appeal requires us to interpret provisions of the Open Meetings Act ("the Act"), codified at Maryland Code, §§ 10-501 to 10-512 of the State Government Article (1984, 1995 Repl.Vol.) ("S.G."). Pursuant to S.G. § 10-503(b)(2), the Act is applicable to a public body when it meets to consider "a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter." (Emphasis added). The question here is whether a county board of appeals's consideration of a subdivision and development plan constitutes a meeting to consider a "zoning matter" within the meaning of the Act. The Circuit Court for Baltimore County concluded that it was. As we disagree, we shall reverse.
Gaylord Brooks Realty Co., Inc. ("Brooks"), appellee, a developer, submitted a concept plan to the Baltimore County Department of Public Works for a subdivision and development in northeastern Baltimore County, which was approved by a hearing officer. Two community associations, the Wesley Chapel Bluemount Association and the Manor Area Association, and various individuals who owned property in the vicinity of the development site, 1 appellees (hereinafter referred to collectively as "Wesley Chapel"), appealed this decision to the Baltimore County Board of Appeals (the "Board"). At the conclusion of that hearing, the Board declined Wesley Chapel's request that it publicly deliberate. It later issued a written opinion affirming the decision of the hearing officer.
Thereafter, Wesley Chapel sought review in the circuit court. Contemporaneously, Wesley Chapel filed against Baltimore County ("the County"), appellant, the Board, and the Baltimore County Executive, a petition to enforce the Act. With leave of court, Brooks intervened. After a hearing on cross-motions for summary judgment, the trial judge concluded that the Board violated the Act by failing to deliberate in public. Accordingly, the court voided the Board's action and remanded the case to the Board for further proceedings in open session. The court also ordered the County to pay attorneys' fees to Wesley Chapel. The court did not address the merits of the Board's decision affirming the hearing officer.
The County now appeals and presents four issues for our consideration:
I. Does the statutory language of the Open Meetings Act of Maryland reflect the intention of the General Assembly to limit the application of the statute to zoning cases, as opposed to all types of land use cases, where the language of the statute specifically excludes land use matters other than a "special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation or any other zoning matter"?
II. Does the public body "meet" within the parameters of the Open Meetings Act when, after having heard oral argument in an appeal from the hearing officer's decision approving a plan of subdivision development, the panel members: (1) agree, without further discussion, that the panel chairman shall draft a written opinion, as required by law; (2) the panel chairman circulates the draft to the other members who, without further discussion, agree that the draft opinion represents their views of the appeal; and (3) without further discussion, a final draft is prepared which each panel member signs?
III. Are the appellees entitled to attorneys' fees, even assuming, arguendo, that the Board of Appeals met privately to consider a zoning matter in violation of the provisions of the Maryland Open Meetings Act?
IV. Assuming, arguendo, that the Board of Appeals met privately to consider a zoning matter in violation of the provisions of the Open Meetings Act, should this Court affirm the circuit court decision to invalidate effectively the resultant proceedings and opinion by the Board of Appeals?
In addition, although it did not note a cross-appeal, Brooks has asked us to reach the merits of the Board's decision affirming the hearing officer. Wesley Chapel opposes that request.
We conclude that the hearing officer's approval of Brooks's subdivision and development plan did not constitute a "zoning matter" within the meaning of S.G. § 10-503(b)(2). Therefore, the Board's consideration of that matter was not subject to the Act. Accordingly, we shall reverse the judgment of the circuit court. Our conclusion makes it unnecessary for us to consider the County's remaining issues. We shall also decline to consider Brooks's contentions, because the circuit court did not consider the merits of the appeal. Moreover, because Brooks failed to note a cross-appeal, Wesley Chapel has not had an opportunity to brief the issues that Brooks has raised.
In June 1993, Brooks filed its concept plan with the County Department of Public Works. The plan proposed a subdivision and development to be known as "Wesley Chapel Woods," with thirty-three single-family houses to be constructed on a rural parcel of land in northeastern Baltimore County, approximately 172.7 acres in size. At the time of the proceedings, the land was undeveloped and heavily forested. The vast bulk of the property was zoned R.C.4, with a small portion zoned R.C.2. 2
In August and October, 1993 community input meetings were held with respect to Brooks's concept plan. After the second meeting, Brooks submitted a development plan for the site, and a development plan conference was later conducted.
At a public hearing 3 in June 1994, Wesley Chapel appeared in opposition to the development plan. The protestants raised a plethora of issues. They contended that a Baltimore County zoning regulation required the performance of a groundwater study and that no such study had been performed. They also claimed that the plan could not proceed until the County Council adopted guidelines to implement "Bill 113-92," a set of new zoning regulations that it had enacted in 1992. Additionally, they asserted that the area set aside under the plan for a "conservancy area" was too small, 4 and that the density of the proposed lots was too great. Further, they attacked the application of County Bill 113-92 to the facts of the case, arguing that it "fails miserably" in its attempt "to protect and preserve R.C.4 zoned property," because it allowed more density of lots on the proposed site than would have been permitted under the R.C.4 regulations. The protestants also raised other contentions pertaining to vegetative clearing, the sufficiency of the local roads and infrastructure, septic and well design, storm water management, the content of the conservancy deed, and concerns involving a historical area, signage, lights, noise, and compatibility.
In a written opinion dated July 7, 1994, the hearing officer approved most of the development plan, although he imposed some restrictions. 5 The hearing officer identified himself as a "zoning commissioner" beneath the space in which he signed his name.
Wesley Chapel subsequently appealed to the Board, 6 which heard argument from counsel on August 31, 1994. 7 At the conclusion of the hearing, counsel for Wesley Chapel asked the Board to deliberate in public, pursuant to the Act. In support of his request, counsel submitted a copy of a letter from the Baltimore County People's Counsel, dated August 4, 1994 advising that the Act applied to hearings concerning development plans. 8 Nevertheless, the Board denied the request.
On September 15, 1994, the Board issued its opinion, affirming the decision of the hearing officer. It stated that "the decision to approve the plan is supported by competent, material and substantial evidence, and that the record does not reflect in any manner that the Hearing Officer acted in any arbitrary or capricious manner, or exceeded his statutory authority, or committed any error of law." 9
The Board also explained its denial of the request for public deliberations.
The appeal that is being heard by the Board is a development plan appeal which was before the Hearing Officer and not the Zoning Commissioner for Baltimore County. No zoning petitions (i.e., special exceptions, variances, special hearings) were filed with the development plan; hence, there is no zoning matter before the Board in these proceedings. This Board has previously ruled that appeals of development plans to this Board are not subject to the open meetings law unless they involve "other zoning matters." It is pointed out that an open hearing was conducted on the record before this Board with regard to the appeal filed in this matter; however, this Board concludes that Section 10- 503(b) does not apply as to the deliberation process since the Board is hearing a development plan appeal as opposed to a zoning matter appeal.
Thereafter, Wesley Chapel sought judicial review in the circuit court. It also filed a petition to enforce the Act, in which it sought a declaration that the Act applied to the Board's action. The petition and the appeal were consolidated. At the hearing on cross-motions for summary judgment, Wesley Chapel claimed that the Board's consideration of the development plan constituted a hearing on a "zoning matter," within the meaning of S.G. § 10-503(b)(2), and that the Board's failure to deliberate publicly amounted to "an intentional and willful act" performed "with the intention to avoid the...
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