Concerned Citizens of Cloverly v. Montgomery County Planning Board, 031419 MDSCA, 02568-2017

Docket Nº:02568-2017
Opinion Judge:Graeff, J.
Party Name:CONCERNED CITIZENS OF CLOVERLY, et al., v. MONTGOMERY COUNTY PLANNING BOARD, et al.
Judge Panel:Meredith, Graeff, Berger, JJ.
Case Date:March 14, 2019
Court:Court of Special Appeals of Maryland
 
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CONCERNED CITIZENS OF CLOVERLY, et al.,

v.

MONTGOMERY COUNTY PLANNING BOARD, et al.

No. 02568-2017

Court of Special Appeals of Maryland

March 14, 2019

Circuit Court for Montgomery County Case No. 433722-V

Meredith, Graeff, Berger, JJ.

OPINION [*]

Graeff, J.

This appeal arises from the decision (the "Resolution") of appellee, the Montgomery County Planning Board (the "Board") of the Maryland-National Capital Park and Planning Commission ("M-NCPPC"), to approve a preliminary subdivision plan submitted by Jesus House, DC ("Jesus House"). The Concerned Citizens of Cloverly, appellants, filed a petition for judicial review in the Circuit Court for Montgomery County, which affirmed the Resolution.

On appeal to this Court, appellants present the following questions for this Court's review1, which we have consolidated and rephrased as follows: 1. Did the Board abandon its responsibility to make a final decision whether there were adequate public facilities for the preliminary subdivision plan by determining that it was bound by the conclusions of the Montgomery County Department of Permitting Services ("DPS") and the Montgomery County Department of Environmental Protection ("DEP") regarding septic area calculations relating to approval of the preliminary plan?

2. Did the circuit court err in granting Jesus House's motion to strike material that was not included in the record?

For the reasons set forth below, we shall reverse the judgment of the circuit court and remand to that court to remand to the Board for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A.

The Preliminary Plan and Resolution 14-334

On August 14, 2015, Jesus House filed Preliminary Plan No. 120160040 (the "Preliminary Plan") with the M-NCPPC, seeking "to create one lot for a 1, 600-seat religious assembly and associated 350-student private school" on 15.55 acres of land located in the Cloverly area of Montgomery County (the "Property"). The Preliminary Plan proposed construction of a 185, 000 square foot structure, to be used for a "church and associated uses," including a sanctuary, administrative spaces, a multi-purpose center, classrooms, a gymnasium, 400 parking spaces, and a playing field.2 The school would operate during the week and the sanctuary would "primarily be used for two services on Sundays and the multi-purpose center on weekends and on weekdays after peak hours."

The Property is in the RE-2 zone, Residential Estate - 2, meaning one house per two acres. Montgomery County Zoning Ordinance §§ 59-2.1.3(C)(1)(a)(i) and 59-4.4.4(B). "The intent of the RE-2 zone is to provide designated areas of the County for large-lot residential uses. The predominant use is residential in a detached house." § 59-4.4.4(A). The Cloverly Master Plan (the "Master Plan") in effect in 1999, and still in effect as of the date of this dispute, recommends that RE-2 zoned properties not be connected to public water or sewer services.

In 1999, the former owners of the Property, Michael and Patricia Grodin, requested a water and sewer category change for the Property in anticipation of the sale of the Property to the Southern Asia Seventh Day Adventist Church (the "Church"), which was planning to construct a 750-seat church on the Property. The owners' stated reason for the change was as follows: My property abuts the existing main. . . . In order to protect the sensitive environmental feature of the forest stand in the headwaters of the Northwest Branch. Installation of an extensive underground septic field would require the destruction of seven acres of mature forest stand. This can be prevented by allowing a connection to the abutting sewer line.

On November 2, 1999, the County Council adopted Resolution 14-334, which approved the water and sewer category change, approving the use of public water and sewer for the Property. The approval of the sewer category change was "restricted to private institutional facility use only," with three conditions. The condition relevant to this appeal is: "[T]he church will establish a covenant preserving the forested area which would have been used for the on-site septic system."

The Church was never constructed, and the Property subsequently was sold to Jesus House. Jesus House's Preliminary Plan proceeded on the premise that it was entitled to the category change granting conditional approval of a sewer extension to the Property. Staff for the Board similarly proceeded on the premise that the sewer category changes "run with the land as the land is transferred," and therefore, Jesus House properly utilized the 1999 sewer category change. Appellants state that, for purposes of this appeal, they do not dispute that Jesus House was entitled to the 1999 sewer category change.

B.

Assessment of Forested Set-Aside Acreage Requirement

Jesus House retained Raztec Associates, Inc. ("Raztec") to analyze the number of acres that were required to be set aside to meet the County Council's 1999 conditional approval of the sewer connection. In an unsigned memorandum dated November 9, 2016, Raztec concluded that a hypothetical septic system would require 4.82 acres, and "[t]herefore, 4.82 acres of existing forest area will be preserved to satisfy the existing sewer category change."

The report noted that there were 1, 600 proposed seats for the church and the school would have 350 students, K-12. The report set forth "Regulations/Requirements," 3 as follows: 1.10, 000 square feet of septic area for each 500 gallons of water flow per day.

2. Church Use with warming Kitchen: 5 Gallons Per Day (GPD)/Seat.

3. Septic trenches are laid out based on topography. Therefore the amount of space required for a septic system is also dependent on topography.

4. Each additional 10, 000 square feet of absorption area or portion must be established on 15, 000-40, 000 square feet or proportional area depending on percolation rates.

The report then set out the calculations and conclusions as follows:

CALCULATIONS:4

1. Determine the required gallons per day based on a 1, 600 seat church with a warming kitchen;

5GPD/seat x 1, 600 seats = 8, 000 GPD

Determine the area of septic required, based on 10, 000 square feet of septic area for each 500 GPD of water flow.

8, 000 GPD/500 = 16 X 10, 000 = 160, 000 Square Feet (3.67 Acres)

2. Determine the required gallons per day based on a [sic] 350 Students;

30 GPD/student x 350 students = 10, 500 GPD

Determine the area of septic required, based on 10, 000 square feet of septic area for each 500 GPD of water flow.

10, 500 GPD/500 = 21 x 10, 000 = 210, 000 Square Feet (4.82 Acres)

Conclusion: Since the uses for the site are not simultaneous, then the highest daily use will be used. In this case that is for the school use. Therefore, 4.82 acres of existing forest area will be preserved to satisfy the existing sewer category change.

Mike Razavi, owner of Raztec Associates, subsequently testified that the calculations they prepared were "purely based on requirements of DPS of Montgomery County on how to provide a septic system for a project." They had not designed the septic system for the project because such an exercise was unnecessary when no septic system was actually going to be built.

C.

M-NCPPC Staff Recommendation

On March 17, 2017, M-NCPPC staff recommended that the Preliminary Plan be approved with conditions.[5] Relevant to this appeal, staff noted that the sewer category change approved by the County Council in 1999 required Jesus House to preserve the area of forest that would have been removed for a septic system. The report discussed this condition, as follows: The sewer category change had three conditions of approval which are documented in County Council Resolution 14-334. The condition, for this mostly forested property, which impacts this application significantly requires "preserving the forested area which would have been used for the on-site septic system." Community members have insisted that the County Council required or intended to require the preservation of 7 acres of forest via the sewer category change. However, no documentation related to a specific amount, requirements or intent has surfaced except for the approved resolution by the County Council. As a result, [M-NCPPC] Staff and the staff of the [DEP] have agreed that no specific acreage of forest preservation was required by the conditions of the sewer category other than that which would have been removed to accommodate a septic system and reserve area for a church on the property.

To confirm compliance with the County Council resolution, Staff and [DEP] required the applicant to submit wastewater...

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