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

Docket Number53, Sept. Term, 2021
Decision Date26 August 2022
CourtCourt of Special Appeals of Maryland

Argued by Paul W. Smail (Chesapeake Bay Foundation, Inc., Annapolis, MD), on brief, for Petitioners.

Argued by Joseph F. Snee, Jr. (Laura E. Bechtel, Snee, Lutche, Helmlinger & Spielberger P.A., Bel Air, MD) and Meaghan G. Alegi, Senior Asst. Cnty. Atty. (Harford County Department of Law, Bel Air, MD), on brief, for Respondents.

Argued before: Watts, Hotten, Booth, Biran, Irma S. Raker (Senior Judge, Specially Assigned), Robert N. McDonald (Senior Judge, Specially Assigned), Joseph M. Getty (Senior Judge, Specially Assigned), JJ.

Booth, J. In Maryland, counties and municipalities with planning and zoning powers have the authority to approve development within their respective jurisdictions. These local jurisdictions have the right to regulate various aspects of development on property, including the size of buildings, the applicable setbacks from property lines, the types of uses that may be made in zoning districts, and the minimum lot size for individually developed parcels.

During the 1980s, a population increase in the State led to the conversion of large tracts of agricultural and forest land into residential subdivision and commercial areas. In response to the intense development pressure on the environment, the State adopted three laws to protect the State's natural resources: (1) the Chesapeake Bay Critical Area Law in 19841 to protect the Chesapeake Bay and its tributaries; (2) the Nontidal Wetlands Law in 19902 to protect the State's nontidal wetlands; and (3) the Maryland Forest Conservation Act in 19913 to stem the loss of forest in the State.

These laws work in concert to protect the environment and impose conditions and restrictions on the development and redevelopment of property in the State. The enactment of each of these laws created more State oversight over development approvals by local jurisdictions exercising their independent planning and zoning authority where development has the potential to impact natural resources.4

The Forest Conservation Act of 1991 was enacted to protect the forests of Maryland by making the identification and protection of forests and other sensitive areas an integral part of the site planning process. It is administered by the Maryland Department of Natural Resources (sometimes referred to as "DNR") but implemented primarily by local jurisdictions having planning and zoning authority. The primary objective of the Forest Conservation Act is to minimize the loss of forest land in connection with development activity and ensure that priority areas for forest retention and forest planning are identified and protected prior to development.5 The Forest Conservation Act established standards for local jurisdictions with planning and zoning authority to enforce during development. Identification and mapping of these priority areas occurs during the development review and approval of a forest stand delineation, which identifies the existing forest cover and environmental features on a proposed development site. It is submitted at the initial stages of a subdivision or site plan approval, or before a sediment control application is submitted.6 When a forest stand delineation is completed and approved, the information that it provides can then be used to prepare the forest conservation plan.7

A forest conservation plan indicates the limits of disturbance for the proposed project and how the existing forested and sensitive areas will be protected during and after development. A forest stand delineation and forest conservation plan must be prepared by a Maryland licensed forester, a Maryland licensed landscape architect, or other qualified professional.8

On a property with significant forest cover, a forest conservation plan, as well as any variance or waivers that are granted by the approving agency from the strict application of the provisions of the Forest Conservation Act or local forest conservation program, may dictate the scope, location, and placement of the building footprint and structures on the property.

In this case, we must determine whether the approval of a forest conservation plan, as well as an associated waiver that authorizes a developer to remove trees that would otherwise be protected under the Act, is a final agency decision that is subject to independent judicial review under the Harford County Forest Conservation Program.

For the reasons that follow, we hold that the Act, and regulations promulgated by DNR require a right to appeal the approval of a forest conservation plan. We also hold that a county agency's approval of a forest conservation plan is a "final decision" for appeal purposes.

IBackground and Procedural History

CREG Westport I, LLC9 and Harford Investors, LLP (collectively, the "Developer") propose to develop a mixed-use commercial development containing retail venues, restaurants, a hotel, and warehouses, which total over one million square feet. The site, which is referred to as "Abingdon Business Park," is located along Interstate 95 in Harford County, Maryland and is zoned Commercial-Industrial. It consists of five parcels of land totaling approximately 326.47 acres. There are approximately 314.73 acres of forest located on the site, which include 85 specimen trees.10 The site also contains: numerous streams; nontidal wetlands; and the HaHa Branch, a tributary of the Bush River which runs from north to south through the property and ultimately flows into the Chesapeake Bay.

A. Developer's Submission of the Forest Conservation Plan and Development Plans

Under the Maryland Forest Conservation Act, Natural Resources Article ("NR") (2018 Repl. Vol., 2021 Supp.), § 5-1601, et seq. of the Maryland Code (sometimes referred to as the "Act") and the Harford County Code ("HCC") § 267-37, the Developer was required to submit a forest conservation plan outlining its plans to retain, protect, and reforest the site in connection with its proposed development.11 The Developer first completed a forest stand delineation12 —a requirement under the Act—which identified 85 specimen trees on the development site which would be subject to the forest conservation plan. In February 2019, the Developer submitted its initial application for a forest conservation plan to the Harford County Department of Planning and Zoning, in which the Developer proposed the clearing of 221 acres of forest. In connection with its initial application, the Developer requested a waiver13 under the applicable provisions of the Harford County Forest Conservation Ordinance to permit the removal of 58 large specimen trees from the property.

After the initial forest conservation plan submission, the County's Development Advisory Committee (the "DAC") requested revisions to the forest conservation plan, including revisions that would reduce the impact upon specimen trees.14 Thereafter, the Developer worked with the County Department of Planning and Zoning to reduce the impact on the identified specimen trees, including reducing the limits of clearance and disturbance, and realigning the road network to avoid and minimize the impact on the specimen trees identified in the initial forest conservation plan and specimen tree waiver request. The Developer submitted a revised forest conservation plan that was approved by a letter issued by the Department of Planning and Zoning on December 9, 2019. The approval letter included an approval of not only the Developer's final forest conservation plan (the "Forest Conservation Plan"), but also the Developer's request for a specimen tree waiver (the "Waiver") to permit the removal of 49 specimen trees. In connection with the Waiver, the Department of Planning and Zoning recited the requirements that the Developer must satisfy to obtain a waiver under the Harford County Forest Conservation Program:15

Denial of the waiver would deprive the property owner's rights commonly enjoyed by others. The granting of the waiver would not confer any special privilege on the Owner/Developer, which would be denied to others. The waiver is necessary due to the specific site conditions and not a result of the actions of the owner/developer. The waiver has not arisen from a condition on a neighboring property. The removal of these trees will not adversely affect water quality. The developer will be required to provide Stormwater Management, Environmental Site Design practices and erosion and sediment control in accordance with the latest version of Harford County's Stormwater Management ordinance and Maryland Department of Environment (MDE) standards and specification[s] for soil erosion and sediment control and MDE's enhance[d] best [m]anagement practices for Tier II waters to ensure no reduction or adverse impacts to water quality. Given these specific site conditions, the Director of Planning and Zoning her[e]by grants the waiver to impact forty-nine (49) specimen trees identified with this Forest Conservation Plan.

In addition to approving the Waiver, the approval letter set forth the required conditions associated with the proposed development of the property under the Harford County Forest Conservation Program, including: the requirements that the Developer post a surety bond to assure the planting and survival of the required on-site reforestation, identify buffers and forest retention areas on final plats, and protect existing forest edges prior to and throughout construction.

On January 8, 2020, the Chesapeake Bay Foundation, Inc. ("CBF") and several residents who live adjacent to the Developer's site filed a petition for judicial review of the Forest Conservation Plan in the Harford County Circuit Court. The petition was filed pursuant to Maryland Rule 7-202 and Section 268-28.A. of the Harford County Code, which provides that "[a]ny interested person whose property is effected [sic] by any...

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