Cremins v. COMMISSIONERS OF WASHINGTON COUNTY

• Decision Date: 29 September 2005
• Docket Number: No. 2200,2200
• Citation: 883 A.2d 966,164 Md. App. 426
• Parties: James CREMINS, et al. v. COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

883 A.2d 966

164 Md. App. 426

James CREMINS, et al. v. COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland, et al.

No. 2200, September Term, 2003.

Court of Special Appeals of Maryland.

September 29, 2005.

William C. Wantz of Hagerstown, for appellant.

William J. Chen, Jr. of Rockville, E. Kenneth Grove(Mark D. Thomas on the brief), Hagerstown, for appellee.

JAMES R. EYLER, ADKINS, BARBERA, JJ.

BARBERA, J.

In Washington County, an application to rezone a parcel of property to a "Planned Unit Development," or "PUD," must pass through a five-step review and approval process. See Washington County Zoning Ordinance § 16.5.¹ This appeal involves step two of that process, "Zoning Approval." At that step, a party seeking re-zoning of his or her property to a PUD must obtain approval of the re-zoning from the County Commissioners of Washington County ("County Commissioners"), after a joint public hearing before the Washington County Planning Commission ("Planning Commission") and the County Commissioners. Appellants, James Cremins, et al.,² reside in Foxleigh Meadows, a single-family residential subdivision located adjacent to the property that is the subject of this appeal. They appeal from a judgment in the Circuit Court for Washington County, rendered in favor of the County Commissioners and Paul N. Crampton, Jr. (collectively, "appellees"). That judgment affirmed the County Commissioners' decision to re-zone certain property to the PUD zoning classification.

Appellants present four questions for our review, which we have re-ordered:

I. In a piecemeal rezoning hearing, may facts presented by unsworn witnesses be considered in determining whether the applicant's case is supported by substantial evidence?

II. Is remand inappropriate in the absence of substantial evidence of adequacy of the adjacent roadway and of general compatibility?

III. In Washington County, may a planned unit development floating zone be established in the absence of an affirmative finding by the rezoning authority that the proposed site is located adjacent to an adequate roadway, as required by the applicable zoning ordinance?

IV. In Washington County, should the reasonably probable of fruition requirement or a concurrency standard be applied in the floating zone compatibility analysis?

For the reasons that follow, we affirm.

FACTS AND LEGAL PROCEEDINGS

On November 7, 2002, Mr. Crampton filed an "Ordinance Amendment Application" ("the application") with the Planning Commission. Mr. Crampton proposed to reclassify a 97.27 acre parcel of land ("the property") from its "A" Agricultural zoning designation to the "A" Agricultural Planned Unit Development ("PUD") zone.³ The property, also referred to as "Emerald Pointe PUD," is bounded on the west by Marsh Pike and on the east by a large parcel of private property that is used for agricultural purposes. To the north is Longmeadow Road and on the property's southern border is Maryland Route 60.

During the Concept Plan Review step of the PUD rezoning process, see § 16.5(a)(1), several local administrative agencies submitted reports and recommendations to the Planning Commission concerning the application. None of these agencies had objections to the application at that stage of the review and approval process.⁴ The Planning Commission also received letters from neighboring property owners in support of and opposed to the application.

On January 13, 2003, a joint public hearing on the application was held before the Planning Commission and the County Commissioners. See § 16.5(a)(2). At the outset of the hearing, at which no oaths were administered, a staff member of the Planning Commission discussed the "Staff Report and Analysis" (the "Report") that was conducted in response to the application. The Report included enrollment figures for the public schools serving the property, and a statement that the Maryland State Highway Administration ("MSHA") had requested that access to the property be limited to Marsh Pike.

Attached to the Report was a "Preliminary Consultation" ("the Consultation"), prepared by the Planning Commission. The Consultation reflected that Mr. Crampton and several officials, including members of the Washington County Engineering Department (the "Engineering Department") and the Washington County Planning Department, had met to discuss, among other things, the traffic conditions along Marsh Pike. The Consultation noted that the Engineering Department had decided that Mr. Crampton and the Washington County officials would have to reach an agreement on "the liability and maintenance of [a] proposed median" at any entrance to the property on Marsh Pike. The Engineering Department also stated that the "Traffic Impact Study" would have to be revised.

The Planning Commission staff member stated at the joint hearing that Mr. Crampton proposed that the property be developed to include 89 semi-detached or duplex lots, 88 single family lots, 92 townhouse lots, a residential retirement center, a community center, and 9,000 square feet of commercial development. The staff member also stated that the Engineering Department and MSHA had requested updated traffic impact studies.

Mr. Crampton appeared at the joint hearing. He discussed the application and the development proposal in detail, noting in his statement that 35 to 40 units would be added to the development each year, and that the entire project would take 10 to 15 years to complete.

An engineer with Fox & Associates also appeared in support of the application. He discussed the application and stated that a company called "Street Traffic Group" had prepared a traffic study for the property. He reported that the traffic study indicates "that the existing system could be supported by the surrounding area network and the critical intersections will continue to operate at acceptable levels of service with the full development of the PUD provided that some improvements are made."⁵ The Engineering Department and MSHA had a copy of the study and were reviewing it, and had several preliminary comments regarding traffic along Marsh Pike, including that Marsh Pike needed "widening" and other improvements at intersections along Marsh Pike. The engineer did not know whether the Engineering Department and MSHA had made formal comments on the traffic study as of the date of the hearing. The engineer also stated that the property would "have a minimal impact on [public] schools."

More than 25 members of the public, several of whom are appellants, spoke in opposition to the application. The protestants generally asserted that the existing public schools did not have the capacity to handle the influx of children the development of the PUD would produce, the PUD was not compatible with neighboring properties, and the development would adversely affect traffic along Marsh Pike. The chairperson of the Planning Commission stated that the "file" would remain open for 10 days to allow additional comments to be submitted to the County Commissioners before they decided whether to approve the application.

On March 3, 2003, the Planning Commission voted three-to-one to recommend that the County Commissioners deny the application. In a letter dated the following day, the Planning Commission informed the County Commissioners of its recommendation. The Planning Commission stated that it "based this recommendation on" the traffic study submitted at the January 23, 2003 hearing, and on "concerns that the residential development density proposed for the [property] was not consistent with the residential density in adjacent developments." The Planning Commission also stated its "opinion that the road infrastructure in the immediate vicinity of the [property] was defici[ent.]"

On March 13, 2003, the County Commissioners held a regular meeting to consider and vote on the application. The County Commissioners voted unanimously to accept "the findings of fact as set forth in the report from the County Attorney."⁶ The County Commissioners also voted three-to-one to approve the rezoning of the property to PUD. Pertinent to this appeal, the County Commissioners made the following findings of fact:

Education Facilities

The proposed residential uses within the PUD are single-family, semi-detached units, and townhouses. The single-family and semi-detached units would be exempt from the Article V School section of the Adequate Public Facilities Ordinance because this property is situated within the Urban Growth Area. Townhouses, however, would not be exempt. The subject property is located within the school districts of Paramount Elementary, Northern Middle, and North Hagerstown High School.

* * *

Present and future transportation patterns in the area.

The subject property ... has approximately 3,080 feet of frontage along Marsh Pike. The Washington County Highway Plan classifies this section of Marsh Pike as a Major Collector, which requires a minimum distance of 300 feet between all new access points and 40 feet of future dedicated right of way from centerline. This classification's major function is to provide for intra-county travel.... The property has approximately 1,082 feet of frontage along Leitersburg Pike, an Intermediate Arterial.... One access point onto Leitersburg Pike from Emerald Pointe has been proposed, however, the [MSHA] has requested that all access points to the development be limited to Marsh Pike.

The ... Engineering Department and the [MSHA] made numerous comments regarding the subject property's impact on surrounding roadways and internal street design....

* * *

The Planning Commission opined that the road infrastructure in the immediate vicinity of the subject property was deficient based upon a traffic study submitted by [Mr. Crampton] and that the residential development density proposed for the subject property was not consistent with the residential density in adjacent developments.

For the reasons set forth elsewhere in

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