Board of County Com'rs of Cecil County v. Gaster

• Citation: 401 A.2d 666,285 Md. 233
• Decision Date: 29 May 1979
• Docket Number: No. 82,82
• Parties: BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY v. Gerald GASTER et al.
• Court: Maryland Court of Appeals

Page 233

285 Md. 233

401 A.2d 666

BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY v. Gerald GASTER et al.

No. 82.

Court of Appeals of Maryland.

May 29, 1979.

John C. Murphy, Baltimore, for appellant.

Mark Pollak, Baltimore (Piper & Marbury, Baltimore, on brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

SMITH, Judge.

We granted certiorari in this case in order that we might consider the question of whether a county planning commission acting under subdivision regulations adopted by the county's legislative body might properly disapprove establishment of a proposed subdivision which met all zoning requirements but failed to comply with the master plan, also adopted by the county's legislative body. Since we conclude that approval of the subdivision plan was properly denied, we shall reverse.

Cecil County (the county) is located in the northeast corner of Maryland, at the head of the Chesapeake Bay, on the east side of the Susquehanna River and immediately adjacent to the States of Delaware and Pennsylvania. It has a land area of 352 square miles and a 1970 population of 53,291 people. It is cut in two by the Chesapeake and Delaware Canal. The Northeast, Elk, and Bohemia Rivers, all of which are navigable, separate parts of the county from other parts. It is traversed by two major highways running from the Baltimore metropolitan area to other populous areas of the Northeast. Because of their close proximity, portions of the county may be called a bedroom community for Wilmington, Delaware, and Philadelphia, Pennsylvania. Wilmington is situated in New Castle County, the northernmost of the three Delaware Counties. Cecil County's numerous miles of waterfront are inviting to many people in the Wilmington and Philadelphia metropolitan areas. Indeed, it was said by the engineers for appellees in a letter of transmittal to the county's planner:

(W)e feel that the project should be considered in terms of growth potential for Cecil County. Residents would be located within easy commuting distance of available jobs in both Cecil and New Castle Counties. Additionally, the project represents the creation of a recreation-oriented community unavailable in the majority of housing developments.

Appellees, Gerald Gaster et al. (Gaster), own a tract of land comprising 174.3 acres located between Oldfield Point Road and the Elk River in what is known as Elk Neck. The area in question is zoned "Shoreline Recreational-Residential Zone R-R." It is located in the same election district as Elkton, the county seat.

Gaster presented to the Cecil County Planning Commission (the commission) a preliminary subdivision plan for what he called "Chesapeake Coves." He contemplated development of 408 lots for single-family dwelling units, together with associated roads, water and sewer facilities, and recreational areas. The commission notified Gaster that it "ha(d) disapproved said plat as not being in conformance with the Cecil County Subdivision Regulations." It went on to say:

The Commission's disapproval is based primarily on the following:

1. A purpose of the Subdivision Regulations (Section 1.1) is to legislate the intent of the County's Comprehensive Plan by providing for substantial conformance to the Plan. The Planning Office is required by the Subdivision Regulations to check the Preliminary Plat as to its substantial conformity with the Plan (Section 4.1.7) and the Planning Commission must review the Plat with regard to such conformity (Section 4.1.9). The Commission also reviews the Plat in light of the impact on existing and proposed roads and the feasibility of a subdivision in the area with regard to total number and size of lots and effect on the school district (Section 4.1.21).

2. The Preliminary Plat of Chesapeake Coves specifies a density of 2.3 units per acre, whereas the Comprehensive Plan indicates that residential developments in the subject area "may be approved for density up to 1.0 units per acre". Therefore the Chesapeake Coves Preliminary Plat cannot be said to meet the substantial conformance requirements of the Subdivision Regulations.

3. Neither is the substantial conformance requirement met with respect to the Plan's provision that access to and from development tracts shall be through roads having capacity and alignments sufficient to protect public safety. The addition of more than 400 dwelling units represented by Chesapeake Coves would mean a 73% Increase in traffic on Oldfield Point Road, which has poor vertical and horizontal alignment, poor sight distances, and narrow width. This road is not programmed for reconstruction before 1990.

4. Finally, review of the Preliminary Plat in accordance with the provision in the Subdivision Regulations requiring consideration of impact on the school district concluded that the increased school enrollment from Chesapeake Coves would be beyond the capacity of the schools to absorb.

Gaster appealed to the Cecil County Board of Appeals, as the commission advised him he might do. It reversed. It found the conclusions of the commission were "factually correct and would be sufficient to defeat (the) appeal if they were, in fact, applicable to the development in question." It explained:

The Board finds, therefore, that in so far as the regulations of the Planning Commission permit the rejection of a subdivision plan on the grounds herein above stated, the same exceed the authority given by the enabling act and are consequently invalid.

The Planning Commission argues, however, that the provisions of 3.08 of Article 66B when read in conjunction with the provisions of Section 3.2 of the Subdivision Regulations, permits the Board to reject the subdivision on grounds of non-compliance with the presently existing Cecil County Master Plan. The Board feels that the short answer to this contention is the fact that while the Master Plan constitutes a useful, effective, and necessary guideline in the planning and zoning area, it does not have statutory effect until implemented by the Zoning Ordinance. The Board does not feel that the Master Plan can be used to override the existing criteria as set forth by the Cecil County Zoning Ordinance for the R-R zone in which the subdivision is located and with which criteria the subdivision complies in its entirety.

The commission and the Board of County Commissioners of Cecil County appealed to the Circuit Court for Cecil County. Upon motion of Gaster, the trial judge dismissed the appeal of the commission for lack of standing to take the appeal, but denied a similar motion as to the county commissioners.

Relying in part upon Balto. Plan. Comm'n v. Victor Dev., 261 Md. 387, 275 A.2d 478 (1971), about which we shall have more to say later, the trial judge affirmed the action of the appeal board, saying:

It is conceded that as presently zoned, 2.3 units per acre as contemplated under the Preliminary Plat of Chesapeake Coves is permissible. The comprehensive plan would limit density in this development to 1.0 unit per acre. The Zoning of this land was established by an ordinance duly passed and adopted by the County Commissioners of Cecil County. This is a legislative function which the Commissioners by law are authorized to perform. The Planning Commission has no such authority. To permit it to adopt a regulation under which it could nullify a valid zoning ordinance would make the zoning ordinance of this county meaningless. Persons purchasing property for development, aware of the zoning in effect, would do so at their peril. It certainly was never intended that the Planning Commission should be permitted to usurp the legislative function of the County Commissioners in zoning matters, and in this case it has exceeded its authority in attempting to do so.

This appeal on behalf of Cecil County followed. We granted the county's petition for the writ of certiorari prior to the hearing of this case by the Court of Special Appeals because of the importance of this issue in planning matters involving non-charter counties in Maryland.

Before we get into the legal background for this particular controversy, a word should be said relative to planning and zoning generally. Zoning did not come into Maryland easily. Compare Tighe v. Osborne, 149 Md. 349, 368, 131 A. 801 (1925), and Goldman v. Crowther, 147 Md. 282, 309, 128 A. 50 (1925), each holding a Baltimore City zoning ordinance invalid, With Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 160, 164 A. 220 (1933), and Tighe v. Osborne, 150 Md. 452, 466, 133 A. 465 (1926), each upholding such an ordinance. Prior to the enactment of Chapter 672 of the Acts of 1970, planning and zoning authority for non-charter counties (in the absence of a local law as to a specific county) was found in Maryland Code (1957) Art. 66B, §§ 10-37, originally enacted by Chapter 599 of the Acts of 1933. It was based on the Standard State Zoning Enabling Act recommended by the U. S. Department of Commerce in the 1920's. Maryland Planning and Zoning Law Study Commission, Final Report 18 (1969). In it provision was made for a planning commission which was granted the power to prepare and adopt a master plan. No approval of the plan by the local legislative body was required. Once such a plan had been adopted, then under § 18 "no street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether publicly or privately owned, (was permitted to) be constructed or authorized in the municipality (, a term defined in § 10 as including or relating to counties,) or in such planned section and district until the location, character, and extent thereof sh(ould) have been submitted to and approved by the commission . . .." By §§ 21 to 23 power was granted the local legislative body of counties to adopt zoning regulations. Title 3, found in §§ 24 to 30, provided for subdivision control. By § 25 whenever a major...