Bennett v. Montgomery Cnty.

• Decision Date: 03 September 2019
• Docket Number: No. 302,302
• Parties: JACKSON BENNETT, ET AL. v. MONTGOMERY COUNTY, MARYLAND, ET AL.
• Court: Court of Special Appeals of Maryland

JACKSON BENNETT, ET AL. v. MONTGOMERY COUNTY, MARYLAND, ET AL.

No. 302

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

September 3, 2019

Circuit Court for Montgomery County

Case No. 425210-V

UNREPORTED

Nazarian, Wells, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal concerns an update to a 1982 master plan for an area in Montgomery County known as Westbard. The Westbard Sector Plan (the "Plan") was adopted on May 3, 2016 by the County Council for Montgomery County sitting as the District Council. A group of residents (the "Residents") who live within and near Westbard filed this declaratory judgment action in an attempt, among other things, to have the Plan declared void. They complain first that Montgomery County failed to comply with requirements under County law to assess and consider the Plan's potential impact on greenhouse gas emissions. Second, they assert violations of due process from the County's alleged failure to comply with certain public hearing requirements. Third, and finally, they claim that a developer and a public housing agency engaged in contract zoning with the County by promising to build in Westbard a greater than required percentage of affordable housing units in exchange for the County's promise to make certain zoning concessions. They contend that they will suffer a potential decrease in their property values and a potential increase in their taxes if the Plan remains in effect.

After hearing argument on motions to dismiss and cross-motions for summary judgment, the Circuit Court for Montgomery County entered judgment on the greenhouse gas and public hearing claims in favor of the County and the two intervenor defendants and dismissed the third count for failure to state a claim. The Residents appealed and Montgomery County cross-appealed. We hold that the Residents failed to establish standing to bring their claims, vacate the circuit court's order, and remand with instructions to enter an order dismissing the Third Amended Complaint.

I. BACKGROUND

A. The Legal Framework

1. Planning and Zoning in Montgomery County, Generally

Counties in Maryland get their authority to regulate land use from legislation passed by the General Assembly. County Council of Prince George's Cty. v. Zimmer Dev. Co., 444 Md. 490, 503-04 (2015). Montgomery County's land use authority derives from the Maryland-Washington Regional District Act ("RDA"), which is codified in Division II of the Land Use Article of the Maryland Code ("LU").¹ See id. at 523-24. The RDA, as well as the Montgomery County Code, govern the requirements and procedures at issue here. See id.

The RDA divides land use control into three broad categories: land use planning, zoning, and subdivision regulation. See Board of Cty. Comm'rs of Cecil Cty. v. Gaster, 285 Md. 233, 246 (1979). This case concerns land use planning, a process Maryland has "long recognized" as being distinct from zoning. County Council of Prince George's Cty. v. Chaney Enters. Ltd. P'ship, 454 Md. 514, 522 (2017). Planning includes "the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience and welfare as may be properly embraced within the police power." Gaster, 285 Md. at 246 (quoting 1 E.E.Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978)); see also Chaney, 454 Md. at 522 (observing that plans "serve as a guide for long-term land use and development goals and propose zoning changes to implement these aims"). Zoning, on the other hand, "is 'the process of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses designed in some degree to serve the interests of the whole territory affected by the plan.'" Id. (quoting Zimmer, 444 Md. at 505).

The RDA assigns the primary responsibility for planning to the Maryland-National Park and Planning Commission ("M-NPPC"), a non-partisan body of ten members chosen equally from Montgomery County and Prince George's County. LU § 15-102. The five M-NPPC members from each county also serve as the "Planning Boards" for their respective counties. LU § 20-201.

At the direction of a county's District Council, the M-NPPC is charged with "initiat[ing] and adopt[ing]" a global "general plan" for each county. LU § 21-103(a); see also LU § 21-104. The District Council may direct the M-NPPC to adopt plans that are smaller in scope, including "a functional master plan" or "an area master plan." LU § 21-103(c)(2); see also LU § 21-105, § 21-106. This case concerns an "area master plan," which the parties also call a "sector plan." An area master plan differs from a general plan in that it "govern[s] a specific, smaller portion of the County and [is] often more detailed in [its] recommendations than the countywide General Plan as to that same area." Maryland-Nat'l Capital Park & Planning Comm'n v. Greater Baden-Aquasco Citizens Ass'n, 412 Md. 73, 89 (2009) (quoting Garner v. Archers Glen Partners, 405 Md. 43, 48n.5 (2008) (brackets omitted)).

2. Land Use Planning in the Montgomery County Code

Chapter 33A of the Montgomery County Code sets forth planning procedures for the County. The subsections relevant to this case are (1) MCC § 33A-8 (titled "District Council action"), which outlines the procedures for public hearings before the District Council concerning a "Planning Board draft plan" and (2) MCC § 33A-14 (titled "Greenhouse Gas Emissions"), which provides that the Planning Board must "assess" and "consider" various factors related to greenhouse gas emissions.

First, MCC § 33A-8(a)² provides that, after receiving the Planning Board's draft plan, the District Council may schedule a public hearing, and also that such a hearing is not required if the District Council does not intend to propose changes to the draft:

Sec. 33A-8. District Council action.

(a) (1) The Council, under its Rules of Procedure, must set the date for a public hearing on the Planning Board draft plan no later than 105 days after the Council receives the plan or amendment from the Planning Board.

(2) The Council must hold its hearing on the Planning Board draft plan at least 30 days, but not more than 60 days, after the hearing was advertised in at least one newspaper of general circulation in the County.

(3) A public hearing is not required if the District Council does not intend to propose any revisions, modifications, or amendments to the Planning Board draft plan.

The next subsection, (b), is not relevant to this dispute—it outlines notice requirements for the public hearing not at issue here. The next and final subsection, (c), provides for the next step in the process: after the public hearing takes place, the District Council "must" approve or disapprove the Planning Board draft plan, "with any modifications or amendments" it finds appropriate:

(c) (1) After public hearing, the District Council must approve or disapprove the Planning Board draft plan or amendment with any modifications or amendments that the District Council finds appropriate.

(2) The District Council must not act on any plan after October 31 of any year in which a general election for County Council is held until the first day of a new Council's term. The applicable deadline for approval or disapproval under subsection (c)(3) is not suspended by this subsection.

(3) Within 180 days after receiving the Executive's fiscal impact analysis, or within 240 after the Planning Board draft is transmitted to the County Council if the Executive does not submit a fiscal impact analysis, the District Council must approve, modify, or disapprove the plan or amendment. The District Council may extend this deadline by one or more 60-day periods by a vote on each extension of two-thirds of those members present and voting.

MCC § 33A-8.

Second, MCC § 33A-14, a standalone section in an article titled "Components of the Plan," requires the Planning Board to "assess" and "consider" various factors related to greenhouse gas emissions when it prepares the draft plan:

Sec. 33A-14. Greenhouse Gas Emissions.

As part of the factors and conditions outlined in § 7-108 of the Regional District Act and § 1.01 and § 1.03 of Article 66B,³ in preparing the Plan, the Planning Board must:

(a) assess the Plan's potential impact on greenhouse gas emissions in the County, including a carbon footprint analysis;

(b) consider ways to reduce vehicle miles traveled in the County; and

(c) consider options that would maximize greenhouse gas emissions.

3. Rezoning

As noted above, the District Council's adoption of a sector plan does not implement rezoning. Zoning is a separate function, implemented through a different process, even though the District Council conducts that process as well. LU § 22-104; LU § 22-104(a)(2) (authorizing the Montgomery County District Council to, among other things, "adopt and amend any map accompanying the text of the zoning law"). Chapter 59 of the MCC is referred to as the County's "Zoning Ordinance." The Zoning Ordinance defines a "Sectional Map Amendment" as a document that "rezones or confirms the zoning of asubstantial area of the County." Zoning Ordinance § 7.2.3(A)(1).

The Land Use Article provides a statutory opportunity to challenge the District Council's adoption of a sectional map amendment: a petition for judicial review which must be filed in the circuit court "within 30 days after the district council takes the final action." LU § 22-402(a)(2); see also id. § 22-402(a)(1). The District Council did adopt a sectional map amendment that rezoned the Westbard area ...