Chesapeake Bay Found., Inc. v. Creg Westport I, LLC

• Decision Date: 08 September 2021
• Docket Number: No. 1063, Sept. Term, 2020,1063, Sept. Term, 2020
• Parties: CHESAPEAKE BAY FOUNDATION, INC., et al. v. CREG WESTPORT I, LLC, et al.
• Court: Court of Special Appeals of Maryland

252 Md.App. 470

259 A.3d 219

CHESAPEAKE BAY FOUNDATION, INC., et al.

v.CREG WESTPORT I, LLC, et al.

No. 1063, Sept. Term, 2020

Court of Special Appeals of Maryland.

September 8, 2021

Argued by: Britanny E. Wright (Paul W. Smail, Chesapeake Bay Foundation, Inc., Annapolis, MD), on brief, for Appellant.

Argued by: Joseph F. Snee, Jr. (Laura E. Bechtel, Snee, Lutche, Helmlinger & Spielberger, PA, Bel Air, MD), Meaghan G. Alegi (Harford County Department of Law, Bel Air, MD), on brief, for Appellee.

Panel: Shaw Geter, Wells, Ripken, JJ.

Wells, J. Appellees, CREG Westport I, LLC, et al., sought to develop several parcels of land located in Harford County into a multi-use business park. As mandated by the county's development process, appellees submitted a Forest Conservation Plan ("FCP"), which the county approved. Appellants, Chesapeake Bay Foundation and several local residents, sought judicial review of the FCP in the Circuit Court for Harford County. Appellees moved to dismiss, arguing that approval of an FCP is not a final decision of the county's zoning department. The circuit court agreed and dismissed the complaint. Appellants filed a timely appeal. Satisfied that the circuit court did not commit error, we affirm.

BACKGROUND

CREG Westport I and Harford Investors, LLP (hereafter "the developers") sought Harford County's approval of their plan to develop a mixed-use business park bordered by Interstate 95 and Edgewood and Abingdon Roads in Harford County. The completed project, to be called the Abingdon Business Park, would have retail venues, restaurants, a hotel, and warehouses.

The site, also known as Abingdon Woods, is zoned Commercial-Industrial. It is composed of multiple parcels and covers over 300 acres of forested land, including non-tidal wetlands. Because the land is mostly forested, it is subject to the Harford County Forest and Tree Conservation Plan Regulations and to a Forest Stand Delineation as found in the Maryland Code (2012 Repl. Vol., 2016 Supp.), Natural Resources Article ("NR") § 5-1605 and the Harford County Code (hereafter, "County Code") § 267-37. As they were required to do, the developers submitted an FCP, outlining the specific strategies the developers would take to retain, protect, and reforest the site, consistent with the provisions of the 1991 Maryland Forest Conservation Act. See NR §§ 5–1603(a), 5–1604, and 5–1605.

The Director of the Harford County Department of Planning and Zoning (hereafter, "the Department") approved the FCP on December 9, 2019. A month later, January 8, 2020, the Chesapeake Bay Foundation and several local homeowners (hereafter, collectively referred to as "the Foundation") petitioned for judicial review of the FCP. The developers moved to dismiss, arguing that the FCP was not a final decision of the Department. The Circuit Court for Harford County set the matter for a hearing on August 19, 2020.

In the meantime, and prior to the August 19 hearing, the developers submitted a preliminary plan application to the Department, which, among other things, sought to consolidate several of the parcels and create a public road. The Department approved the preliminary plan on January 17, 2020. And, the developers submitted a site plan for three lots, specifying what buildings were to be constructed and the specific uses for each lot. The Department approved Lot 1 on February 19, 2020 and subsequently approved Lots 2 and 3 five days later, February 24, 2020. These approvals allowed the developers to begin construction of the business park.

The hearing on the motion to dismiss was held as scheduled on August 19, 2020, after which the court took the case under advisement. On November 22, 2020, the court issued a memorandum opinion and order that sided with the developers, concluding that the FCP was "not a final decision of the Department [of Planning and Zoning] ....." Further, the court found that,

many plans, in addition to the Forest Conservation Plan, make up the components of the Preliminary and Site Plans. To permit judicial review of the Forest Conservation Plan would permit piecemeal review of each decision reached by each agency involved in the application process, and would be contrary to the intent of Maryland Rule 7-201 and section 709 of the Harford County Charter.

Finally, the court noted that the Foundation could appeal the "overall development plan."

Significantly, the Foundation chose not to challenge either the Department's approval of the preliminary plan or the approval of the site development plan. Instead, the Foundation appealed from the circuit court's dismissal of the petition for judicial review.

Now, before this Court, the Foundation poses two questions which we have distilled into one: Did the circuit court properly dismiss the Foundation's petition for judicial review of the FCP because it was not a final action of the Department?¹ Additional facts will be discussed later in the opinion.

STANDARD OF REVIEW

Whether the circuit court erred when it granted the developers’ motion to dismiss is a question of law, which we review de novo. Greater Towson Council of Cmty. Ass'ns v. DMS Dev., LLC , 234 Md. App. 388, 408, 172 A.3d 939 (2017). In reviewing the complaint, we must "presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom." "Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven." Higginbotham v. Public Service Com'n of Maryland , 171 Md. App. 254, 264, 909 A.2d 1087 (2006). Additionally, "[t]his Court will affirm the circuit court's judgment ‘on any ground adequately shown by the record, even one upon which the circuit court has not relied or one that the parties have not raised.’ " D.L. v. Sheppard Pratt Health System, Inc ., 465 Md. 339, 350, 214 A.3d 521 (2019) (quoting Sutton v. FedFirst Fin. Corp ., 226 Md. App. 46, 74, 126 A.3d 765 (2015) (citations omitted), cert. denied , Sutton v. FedFirst Fin ., 446 Md. 293, 132 A.3d 195 (2016) ).

ANALYSIS

Both parties agree that the so-called rules of "exhaustion" and "finality" apply in this case. In other words, before a party seeks judicial review of an administrative agency's actions, they must first exhaust all statutorily prescribed administrative remedies and the agency's action must be its final one. See Renaissance Centro Columbia, LLC v. Broida , 421 Md. 474, 487, 27 A.3d 143 (2011). They disagree about whether an FCP is a final administrative decision of the Department.

A. Parties’ Contentions

The Foundation contends that the Department's approval of an FCP is a "final agency action." Their argument rests on the theory that because the Forest Conservation Act and the Harford County Code "prioritizes retention of ‘[c]contiguous forest that connect the largest undeveloped or most vegetated tracts of land within and adjacent to the site,’ " the Director's decision on whether an applicant's FCP "application is ‘complete and approved,’ " ends the administrative process, at least as far as forest retention is concerned. See NR § 5-1607(c)(ii) ; County Code § 267-39(C)(2).

In the Foundation's opinion, the Department's approval of an FCP is immediately appealable under County Code § 268-28, because it is a stand-alone administrative "action, ripe for judicial review, and not simply an interlocutory order." Specifically, County Code § 268-28(A) permits a "[a]ny interested person whose property is affected by any decision of the Director of Planning and Zoning, ...within 30 calendar days after the filing of such decision, appeal to the Circuit Court for Harford County." Further, the Foundation argues, that if the Forest Conservation Act mandates state-wide compliance, then there must be some means of appealing a county's decision to approve an FCP, even if an FCP is part of an overall development plan.

In setting out their argument, the developers focus on that last point. They insist than an FCP is but one

component of the final development approval process. The FCP is a condition precedent to the issuance of a site plan approval and preliminary plan approval, similar to a storm water management concept plan, a traffic impact analysis, a landscaping/light/buffer plan, and everything else that is listed on the site plan application and checklist and preliminary plan application and checklist.

The developers assert that the administrative development process is neither exhausted nor final until the Department issues "a preliminary plan approval letter and/or site plan approval letter." In fact, the developers point out that simply because the Department approved the FCP in December 2019, that did not mean that the developers could immediately begin construction. They had to wait until the Department approved the preliminary plan, which was done on January 17, 2020 and the site plans submitted for three separate lots were approved in February 2020.² The developers insist that to allow judicial review of an FCP separately from the preliminary or site plans would have required the circuit court to insert itself in the middle of the administrative process, violating the rules of exhaustion and finality. Therefore, according to the developers, the circuit court correctly dismissed the Foundation's petition for judicial review.

B. Exhaustion of Administrative Remedies

"When a legislature provides an administrative remedy as the exclusive or primary means by which an aggrieved party may challenge a government action, the doctrine of administrative exhaustion requires the aggrieved party to exhaust the prescribed process of administrative remedies before seeking ‘any other remedy or invok[ing] the ordinary jurisdiction of the courts.’ "

Priester v. Baltimore County, Maryland , 232 Md. App. 178, 193, 157 A.3d 301 (2017) (quoting Soley v. State Comm'n on Human Relations , 277 Md. 521, 526, 356 A.2d 254 (1976) ). Soley explained that the exhaustion rule is based, in part, on the ...