City of Bowie v. PARK & PLANNING

• Citation: 863 A.2d 976,384 Md. 413
• Decision Date: 16 December 2004
• Docket Number: No. 36,36
• Parties: CITY OF BOWIE, Maryland v. PRINCE GEORGE'S COUNTY, Maryland Planning Board of the Maryland-National Capital Park and Planning Commission, et al.
• Court: Court of Appeals of Maryland

863 A.2d 976

384 Md. 413

CITY OF BOWIE, Maryland v. PRINCE GEORGE'S COUNTY, Maryland Planning Board of the Maryland-National Capital Park and Planning Commission, et al.

No. 36, September Term, 2004.

Court of Appeals of Maryland.

December 16, 2004.

Elissa D. Levan (Levan, Ferguson & Levan, P.A., Robert H. Levan, on brief), Columbia, for petitioner.

M. Andree Green (Lisa L. Jackson, Maryland-National Capital Park and Planning Com'n of Upper Marlboro), Edward C. Gibbs, Jr. (Gibbs & Haller, Lanham, Bruce L. Marcus, Marcus and Bonsib, Greenbelt, on brief), for respondents.

Argued before BELL, C. J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE, JJ.

CATHELL, J.

This case arises from a Petition for Judicial Review filed by the City of Bowie, Maryland, (hereinafter "City" or "Bowie") petitioner, in the Circuit Court for Prince George's County of the decision of the Prince George's County, Maryland Planning Board of the Maryland-National Capital Park and Planning Commission (hereinafter "Board" or "Planning Board"), respondent, granting final plat¹ approval of a subdivision (hereinafter "final plat") on January 3, 2002, to Samuel T. Wood and Green Hotels, Inc. (together hereinafter "Green Hotels"), respondents, for the construction of Amber Ridge Shopping Center on a contiguous 19.04-acre parcel surrounded on three sides by the City of Bowie's corporate boundaries, though not situated within the City's confines. The circuit court affirmed the Board's approval, and petitioner appealed to the Court of Special Appeals. On February 25, 2004, in a comprehensive opinion addressing the questions presented by the petitioner, the intermediate appellate court affirmed the circuit court, upholding the Board's approval of the final plat. Petitioner then filed a Petition for Writ of Certiorari to this Court, which we granted. Bowie v. Prince George's County, 381 Md. 673, 851 A.2d 593 (2004). We address the three questions, as rephrased by the Court of Special Appeals, that the Petitioner presented to that court:

"I. Did the Planning Board lack authority to approve a final plat for the Property while a petition for judicial review of its approval of the preliminary plan was pending in the circuit court?

II. Did the Planning Board err in approving the final plat because the preliminary plan had expired before the application for final plat approval was filed?

III. Did the Planning Board deny the City due process of law by failing to give notice of the filing of the application for final plat approval?"

We hold that an applicant may proceed to seek final plat approval of a subdivision, as provided by the Subdivision Regulations found in § 24-119(e) of the Prince George's County Code, during the time that the preliminary plat approval remains under judicial review, but the applicant undertakes such action at his own risk that the underlying preliminary approval may be invalidated at a future time, thus, potentially voiding all subsequent governmental actions dependent on that approval. In addition, we note that the statutory time period within which an applicant for subdivision must take further action after receiving preliminary plat of subdivision approval is to be tolled while litigation challenging the preliminary plat approval is filed and pending. Moreover, the Planning Board did not deny the City due process of law.

I. Facts

The subdivision application in the case sub judice has an extensive history dating back to 1998 involving an elongated preliminary plat approval process.

A. Preliminary Plat

In January 1998, pursuant to the applicable statutes² and to Prince George's County Code § 24-119,³ Green Hotels submitted an application and a preliminary major subdivision plat (hereinafter "preliminary plat") to construct a 200,000 square foot shopping center on a 19.04-acre property located at 1600 Crain Highway, i.e., U.S. Route 301, within the Prince George's County C-S-C (Commercial Shopping Center) zoning district. Although the property is not located within the Bowie corporate limits, the property immediately to the south, the Pointer Ridge Professional Center I Condominium Association ("Pointer Ridge") falls within Bowie's boundaries. Pursuant to Prince George's County Code § 24-124,⁴ Green Hotels submitted the prerequisite Transportation Facilities Mitigation Plan ("TFMP") in conjunction with its preliminary plat. Green Hotels' TFMP proposal for traffic mitigation included improvements to nearby roads to lessen the transportation service impact of its development. The Planning Board conditionally approved the preliminary plat simultaneous with its approval of the TFMP, and memorialized its action by resolution on June 18, 1998.

Two somewhat parallel appeals ensued. The City sought review of the Board's approval of the TFMP through the Prince George's County Council, sitting as the District Council, which at the time functioned as an administrative appellate review body for such purposes,⁵ and the City simultaneously filed a petition for judicial review in the Circuit Court for Prince George's County of all non-traffic mitigation issues of the preliminary plat approval. Pointer Ridge similarly filed for review in the circuit court. The circuit court stayed its review proceedings pending the District Council's determination on the transportation mitigation plan.

On April 10, 2000, the District Council reversed the Planning Board's approval of the TFMP, a decision from which Green Hotels and the Board each sought judicial review in the Circuit Court for Prince George's County. The circuit court consolidated these petitions with the still-pending petitions for judicial review of the Board's preliminary plat approval.

By letter dated May 1, 2000, Green Hotels requested a one-year extension in the validity of its approved preliminary plat of subdivision as provided by Prince George's County Code § 24-119(d)(5).⁶ The City communicated its opposition to the extension request by letter dated June 21, 2000, urging that the District Council's rejection of the TFMP had effectively invalidated the preliminary plat, as such a traffic mitigation plan is a prerequisite to preliminary plat approval. At its meeting the following day, the Board granted Green Hotel's extension request and, by letter dated July 13, 2000, apprised the latter that its final plat of subdivision was to be submitted no later than June 18, 2001. Approximately eleven months later, on June 8, 2001, Green Hotels submitted a final plat of subdivision to the Board, although the Board declined to accept, process or schedule for hearing the application on the basis of its position that the District Council's reversal of the TFMP rendered the preliminary plat approval invalid. The Board returned the final plat and application to Green Hotels' engineering professionals, and stated in a September 28, 2001, letter to Green Hotels' counsel the Board's belief that there existed no "currently approved Preliminary Plan with respect to the Amber Ridge property." The Board opined, however, that if the District Council's decision were to be reversed by the circuit court and the Board's approval subsequently reinstated, then "the validity period of the Preliminary Plan as contemplated by § 24-119 of the Prince George's County Code would start to run as of the [sic] that date" (alteration added).

Prior to the circuit court's determination on the consolidated matters, this Court issued its decision in County Council of Prince George's County v. Dutcher, 365 Md. 399, 780 A.2d 1137 (2001), which invalidated the District Council's authority and jurisdiction to provide administrative appellate review of planning board actions on preliminary plans of subdivision under Prince George's County Code § 24-124(a)(6)(D). Id. at 410, 780 A.2d at 1143-44. Applying this Dutcher holding, the circuit court issued an order on November 29, 2001, vacating the District Council's reversal of the Amber Ridge TFMP approval. Accordingly, Bowie amended its pending petition for judicial review of the Planning Board's preliminary plat approval to include an appeal of the Board's (reinstated) TFMP approval, which the circuit court likewise consolidated with the other petitions.

On January 11, 2002, the circuit court issued an opinion and order affirming the Planning Board's approvals of the preliminary plat, including the TFMP. Petitioner, as well as Pointer Ridge, timely appealed to the Court of Special Appeals which, in an unreported December 3, 2003 opinion, affirmed. The City petitioned this Court for a writ of certiorari which we declined to grant on April 12, 2004. City of Bowie, Maryland v. Prince George's County, 380 Md. 618, 846 A.2d 401 (2004). This denial effectively exhausted the City's avenues for appeal of the Planning Board's approval of Green Hotel's preliminary plat of subdivision.

B. Final Plat

While the petitions for judicial review of the Board's approvals of the preliminary plat and of the TFMP remained pending in the circuit court, Green Hotels submitted to the Planning Board — i.e., refiled — on December 21, 2001, its final plat of subdivision and its application for final plat approval. The Board scheduled the application for consideration at its meeting on January 3, 2002, i.e., within the allotted thirty days in which it was required to take final action.⁷

A telephone call by a Planning Board staff member to a City staff member on the afternoon of Monday, December 31, 2001, alerted the City of the final plat application's scheduled consideration three days hence.⁸ Counsel for Bowie faxed a letter to the Board on January 2, 2002, objecting to the consideration or approval of the final plat on both substantive and procedural grounds, asserting that "[t]he approval of the preliminary plat in this matter is not final because the matter is pending upon petition for judicial review in the Circuit Court for Prince George's County."

The hearing proceeded as...