Bucktail v. Talbot County

• Decision Date: 27 January 1999
• Docket Number: No. 38,38
• Citation: 723 A.2d 440,352 Md. 530
• Parties: BUCKTAIL, LLC v. The COUNTY COUNCIL OF TALBOT COUNTY et al.
• Court: Maryland Court of Appeals

723 A.2d 440

352 Md. 530

BUCKTAIL, LLC v. The COUNTY COUNCIL OF TALBOT COUNTY et al.

No. 38, Sept. Term, 1998.

Court of Appeals of Maryland.

January 27, 1999.

Richard A. DeTar (Miles & Stockbridge, P.C.), on brief, Easton, for appellant. Michael L. Pullen, David R. Thompson (Brynja M. Booth, Cowdrey, Thompson & Karsten, P.A.; John White, all on brief), Easton, for appellees.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

RODOWSKY, Judge.

In this appeal a real estate developer contends that Talbot County (the County) erroneously denied its application for a growth allocation under the Chesapeake Bay Critical Area Protection Program. For the reasons set forth below we shall hold that there was procedural error that requires a remand to the Talbot County Council (the Council).

I

In 1984, the General Assembly enacted the Chesapeake Bay Critical Area Protection Program (the Program). Chapter 794 of the Acts of 1984, codified as amended in Maryland Code (1974, 1990 Repl.Vol., 1998 Cum. Supp.), §§ 8-1801 through 8-1817 of the Natural Resources Article (NR). The purposes of the Program are:

"(1) To establish a Resource Protection Program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats; and

"(2) To implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight."

Id. § 8-1801(b). The Chesapeake Bay critical area generally consists of the Chesapeake Bay, its tributaries to the head of tide, all designated State and private wetlands, and all land and water areas within 1,000 feet beyond the landward boundaries of designated State or private wetlands and the heads of tides of the Chesapeake Bay and its tributaries. Id. § 8-1807(a).

The General Assembly created the Chesapeake Bay Critical Area Commission (the Commission) to promulgate regulations and to administer the Program. Id. §§ 8-1803 and 8-1806. Each county within the critical area has primary responsibility for developing and implementing a local critical area protection program pursuant to criteria established by the Commission and subject to review and approval by the Commission. Id. §§ 8-1808(a), (d), and 8-1809. Each local program must designate the local critical area (the Critical Area), include a comprehensive zoning map for the Critical Area, and, as necessary, enact new or amended provisions of the jurisdiction's subdivision regulations, comprehensive or master plan, zoning ordinances or regulations, and enforcement provisions. Id. § 8-1808(c).

In 1986, the Commission promulgated regulations establishing the criteria for development in the Critical Area. Md. Regs.Code tit. 27, §§ 01.02.01 through 01.02.07 (1992) (COMAR). These regulations recognize three types of development areas: Intensely Developed Areas (IDAs), Limited Development Areas (LDAs), and Resource Conservation Areas (RCAs). COMAR § 27.01.02.02A. Local jurisdictions are directed to identify each of these three types of areas within their jurisdiction. COMAR § 27.01.02.02E.

The developer in the case before us seeks to have its Critical Area property reclassified under the County's program from RCA to LDA.

LDAs are defined as

"those areas which are currently developed in low or moderate intensity uses. They also contain areas of natural plant and animal habitats, and the quality of runoff from these areas has not been substantially altered or impaired. These areas shall have at least one of the following features:

"(1) Housing density ranging from one dwelling unit per 5 acres up to four dwelling units per acre;

"(2) Areas not dominated by agriculture, wetland, forest, barren land, surface water, or open space;

"(3) Areas meeting the conditions of [COMAR § 27.01.02].03A [defining IDAs], but not [COMAR § 27.01.02].03B [regarding the concentration of IDA features], of this regulation;

"(4) Areas having public sewer or public water, or both."

COMAR § 27.01.02.04A.

RCAs are defined as

"those areas characterized by nature-dominated environments (that is, wetlands, forests, abandoned fields) and resource-utilization activities (that is, agriculture, forestry, fisheries activities, or aquaculture). These areas shall have at least one of the following features:

"(1) Density is less than one dwelling unit per 5 acres; or

"(2) Dominant land use is in agriculture, wetland, forest, barren land, surface water, or open space."

COMAR § 27.01.02.05A.

In the County the Critical Area zones overlay the pre-existing zoning.

Under the State statute the amount of growth of IDAs and LDAs allowed in each county's critical area is known as "growth allocation." NR § 8-1802(a)(4) ("`Growth allocation' means the number of acres of land in the Chesapeake Bay Critical Area that a local jurisdiction may use to create new intensely developed areas and new limited development areas."). Each jurisdiction's growth allocation is limited to five percent of its RCA. NR § 8-1808.1(b); accord COMAR § 27.01.02.06A(1).

When locating new IDAs or LDAs local jurisdictions are mandated to follow six guidelines. They are

"(1) New intensely developed areas should be located in limited development areas or adjacent to existing intensely developed areas;

"(2) New limited development areas should be located adjacent to existing limited development areas or intensely developed areas;

"(3) No more than one half of the allocated expansion may be located in resource conservation areas;

"(4) New intensely developed areas and limited development areas should be located in order to minimize impacts to habitat protection areas as specified in COMAR 27.01.09 and in an area and in a manner that optimizes benefits to water quality;

"(5) New intensely developed areas should be located where they minimize their impacts to the defined land uses of the resource conservation area;

"(6) New intensely developed areas and limited development areas in the resource conservation area should be located at least 300 feet beyond the landward edge of tidal wetlands or tidal waters."

COMAR § 27.01.02.06B.

The County has some 600 miles of shoreline and approximately forty percent of the County is located within the Critical Area. Within this Critical Area, 51,000 acres are RCAs; thus, five percent or 2,554 acres are available for growth allocation. One-half of the 2,554 acres available for allocation has been set aside for growth in or around the towns of Easton, Oxford, and St. Michaels. In early 1997, when the County was considering the request for growth allocation involved in this case, 2,150 acres had not yet been allocated.

Growth allocation within the County is administered by the Council, pursuant to § 19.14(c)(1)(iv) of the Talbot County Zoning Ordinance (1991), as amended.¹ Under this subsection "a person with a committed financial, contractual, or proprietary interest" in property in the Critical Area can initiate a growth allocation district boundary amendment. § 19.14(c)(1)(iv)[a]. An application is filed in the County Planning Office, along with a proposed site plan or subdivision plat, or both, that meet the County's development design standards and site plan review requirements. § 19.14(c)(1)(iv)[b]; see §§ 19.10 (development design standards) and 19.12 (site plan review). The application "should make the maximum effort to meet the intent of the Critical Area policies and the applicable design standards" and, specifically, should conform to the nine directives set forth below:

"[1] Create lots or parcels that maximize the opportunities for clustered development that protect habitat and agricultural resources;

"[2] Locate structures so as to minimize impact on habitat protection areas and agricultural areas;

"[3] Provide a minimally disturbed buffer along the shoreline;

"[4] Minimize soil erosion and runoff;

"[5] Maximize protection of eroding shorelines;

"[6] Have a minimal impact or cause an improvement to stormwater, floodplain and stream characteristics;

"[7] Minimize impacts on non-tidal wetlands;

"[8] Maximize protection of plant and wildlife habitats, particularly for threatened and endangered species, plant and wildlife common to the Chesapeake Bay Region, and anadromous fish propagation waters; and

"[9] Maximize protection of forests." § 19.14(c)(1)(iv)[b]. Recommendations of the Planning Officer and the Planning Commission are to be submitted to the Council within sixty days after the application is filed. § 19.14(c)(1)(iv)[c].

Whether the recommendations are to grant or to deny the application, the Council "shall introduce a bill (legislation) for the proposed amendment and hold a public hearing in order that interested parties and citizens shall have an opportunity to be heard." § 19.14(c)(1)(iv)[d]. The Council is required to keep "[a] complete record" of the public hearing, including "the vote of all members of the Council in deciding all questions relating to the proposed growth allocation district boundary amendment." § 19.14(c)(1)(iv)[e]. Prior to voting on the growth allocation bill a majority of council members must make a site visit to the property "to inspect the physical features of the property and to determine the character of the surrounding area." § 19.14(c)(1)(iv)[f]. If the Council votes favorably on the growth allocation bill, the Council submits the application to the Commission "for approval as an amendment to the County's Critical Area Program." § 19.14(c)(1)(iv)[g]. No provision is made in the County Zoning Ordinance regarding the Council's rejection of a growth allocation bill. Prior to the Council's rejection of the growth allocation requested in this case the Council had never failed to enact a growth allocation bill for a...