Concerned Citizens of Cloverly v. Montgomery Cnty. Planning Bd.

• Decision Date: 02 May 2022
• Docket Number: 620, Sept. Term, 2021
• Citation: 254 Md.App. 575,274 A.3d 1144
• Parties: CONCERNED CITIZENS OF CLOVERLY, et al. v. MONTGOMERY COUNTY PLANNING BOARD, et al.
• Court: Court of Special Appeals of Maryland

254 Md.App. 575

274 A.3d 1144

CONCERNED CITIZENS OF CLOVERLY, et al.

v.MONTGOMERY COUNTY PLANNING BOARD, et al.

No. 620, Sept. Term, 2021

Court of Special Appeals of Maryland.

May 2, 2022

Argued by: David W. Brown (Knopf & Brown, on the brief), Rockville, MD, for Appellant.

Argued by: Matthew T. Mills (Emily J. Vaias, Principal Counsel, Adrian R. Gardner, Gen. Counsel, Wheaton, MD), Erin E. Girard (Laura M. Tallerico, Miles & Stockbridge, Rockville, MD), all on the briefs, for Appellee.

Panel: Graeff, Beachley, James R. Eyler (Senior Judge, Specially Assigned), JJ.^*

Graeff, J.

This appeal involves an ongoing land use dispute between the Concerned Citizens of Cloverly, appellants, and RCCG Jesus House, DC ("Jesus House"), intervenor. Jesus House seeks to build a church and a school on real property located in the Cloverly area of Montgomery County (the "Property"). In 2017, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "Board"), appellee, adopted Resolution No. 17-019, approving Jesus House's preliminary plan to subdivide the Property.

Appellants filed a petition for judicial review in the Circuit Court for Montgomery County, which affirmed Resolution No. 17-019. Appellants appealed, and this Court reversed the circuit court's judgment with instructions to remand to the Board for further proceedings. See Concerned Citizens of Cloverly v. Montgomery Cnty. Plan. Bd. (Cloverly I ), No. 2568, Sept. Term, 2017, 2019 WL 1220935 (filed March 14, 2019 ).

In 2020, after a hearing, the Board adopted Resolution 20-039, approving Jesus House's preliminary subdivision plan. Appellants filed a petition for judicial review in the Circuit Court for Montgomery County, which affirmed the Board's ruling.

On appeal, appellants present the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the Board err in accepting Jesus House's forest set-aside calculation relating to approval of the preliminary subdivision plan because the Maryland Department of the Environment ("MDE") did not review and approve the set-aside calculation?

2. Did the Board err in accepting Jesus House's forest set-aside calculation because Chapter 27A.00.01.05.K of the Code of Montgomery County Regulations was not applied to the calculation?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Events Prior to the Litigation Subject to Appeal

In August 2015, Jesus House filed Preliminary Plan No. 120160040 (the "Preliminary Plan") with the Board, seeking approval "to create one lot for a 1,600-seat religious assembly and associated 350-student private school on 15.55 acres of land." Cloverly I , slip op. at 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.’ " Id. at 3.

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.

Cloverly I , slip op. at 3.

"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," which planned to build a 750-seat church on the Property (the "Adventist Church"). Id. The owners’ stated reason for the category change was "to protect the sensitive environmental feature of the forest stand in the headwaters of the Northwest Branch." Id. According to the owners, "[i]nstallation of an extensive underground septic field would require the destruction of seven acres of mature forest stand[,]" which "can be prevented by allowing a connection to the abutting sewer line." Id.

In November 1999, the Montgomery County Council adopted Resolution 14-334. Resolution 14-334 "approved the water and sewer category change, approving the use of public water and sewer for the Property." Id. at 4. Such approval, however, "was ‘restricted to private institutional facility use only,’ with three conditions." Id. The condition relevant to Cloverly I , as in the present case, provides: "The church will establish a covenant preserving the forested area which would have been used for the on-site septic system."

The Adventist Church "was never constructed, and the Property subsequently was sold to Jesus House." Id. The Preliminary Plan "proceeded on the premise that [Jesus House] was entitled to the category change granting conditional approval of a sewer extension to the Property." Id.

Raztec Associates, Inc. ("Raztec"), a civil engineering firm retained by Jesus House, analyzed "the number of acres that were required to be set aside to meet the County Council's 1999 conditional approval of the sewer connection." Id. "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.’ " Id.

Raztec's memorandum "noted that there were 1,600 proposed seats for the church," and "the school would have 350 students, K-12." Id. at 5. The memorandum also noted the following "Regulations" and "Requirements" for calculating the hypothetical septic system, i.e., the forest set-aside required under Resolution 14-334:

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.

Id.¹

Based on these regulatory requirements, and MDE's suggested number of wastewater gallons per day ("GPD") for a "Church-Assembly Hall" and "Schools & Colleges," Raztec set forth the following calculations in its memorandum:

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

5 GPD/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 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)

Id. at 6.² Raztec prepared the set-aside calculation based on the requirements of the Montgomery County Department of Permitting Services ("MCDPS") regarding "how to provide a septic system for a project." Id. at 7. The firm "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." Id.

In March 2017, the Board's staff ("Staff") recommended approval of the Preliminary Plan, with conditions. Id. 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." Id. They determined, and the staff of the Montgomery County Department of Environmental Protection ("MCDEP") 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." Id. at 8. The report further noted:

To confirm compliance with the County Council resolution, Staff and [MCDEP] required the applicant to submit wastewater calculations for the church and the private school proposed under this application to determine how much area would be required for a septic system to service the highest daily wastewater generator. The results of this analysis were confirmed by the [MCDPS]—Well and Septic section, determined that the private school is the highest wastewater generator (more so than the church) and would require a septic field of 4.82 acres if it were to be constructed. Thus, the preservation of 4.82 acres of existing forest satisfies the conditions of the sewer category change resolution. In addition, the requirements of the Forest Conservation Law have been applied to this application for the preservation of all the additional forest beyond the 4.82 acres. A Category I Forest Conservation easement will be the legal mechanism to preserve the forest required by the Forest Conservation Law and the sewer category change.

The application substantially meets the recommendations of the 1997 Cloverly Master Plan.

Id. Staff recommended approval of the Preliminary Plan, with conditions. Id. at 9.

The Board subsequently held a public hearing on the Preliminary Plan. At the hearing, the Board "confirmed that Jesus House would be hooking up to public water and sewer," and it "heard testimony from several members of the community." Id. Casey Anderson, Chair of the Board, stated that his understanding was that "the jugular vein of this [hearing] is whether or not the interpretation by [MCDEP] of the conditions of the access to the public water and sewer system are appropriate," and he questioned whether the Board was required to defer to MCDEP. Id. at 12.

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