Grasslands v. Frizz-King Ent., LLC.

• Decision Date: 25 August 2009
• Docket Number: No. 117, September Term, 2008.,117, September Term, 2008.
• Citation: 978 A.2d 622,410 Md. 191
• Parties: GRASSLANDS PLANTATION, INC. v. FRIZZ-KING ENTERPRISES, LLC.
• Court: Court of Special Appeals of Maryland

978 A.2d 622

410 Md. 191

GRASSLANDS PLANTATION, INC. v. FRIZZ-KING ENTERPRISES, LLC.

No. 117, September Term, 2008.

Court of Appeals of Maryland.

August 25, 2009.

Philip W. Hoon (Hoon & Associates, LLC of Chestertown), on brief, for petitioner.

Richard A. DeTar (Demetrios Kaouris of Miles & Stockbridge, P.C. of Easton), on brief for respondent.

Thomas A. Deming, for Brief of Amici Curiae Queen Anne's Conservation Association, Inc. and Chester River Association Inc.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

ADKINS, J.

In this Queen Anne's County zoning case, we decide how to allocate the burden of proof in a de novo review by the Board of Appeals of the Planning Commission's decision approving a subdivision.¹ We hold that the Board erred in imposing the burden on the adjacent landowner protestant. We also address the question of whether a county ordinance passed during pendency of the protestant's judicial appeal, which amended the standards by which the Commission is to evaluate proposed subdivisions, should be applied to this subdivision application. We hold that, under these circumstances, the new county ordinance should apply to the proceedings on remand.

FACTS AND LEGAL PROCEEDINGS

The respondent, Frizz-King Enterprises, LLC ("Frizz-King"), is the owner of approximately 275 acres located in an agricultural zoning district in Queen Anne's County. In 2004, Frizz-King initiated a process to construct a subdivision called "The Highlands" near Chestertown, Maryland. The proposed subdivision clusters fifty residential units within approximately 64 acres of the 275 acre property, using noncontiguous development, a permitted technique for achieving greater density in one defined area.² Frizz-King obtained an adequate public facilities ("APF") study pursuant to the County's then-in-effect Adequate Public Facilities Ordinance to determine the subdivision's impact on water, sewer, traffic and schools. Upon receiving an approval of the APF study from the Technical Review Committee, Frizz-King submitted an application to the Commission for a subdivision with 114 lots. Frizz-King then redesigned the project into a phased project, with phase one consisting of fifty lots. The petitioner, Grasslands Plantation, Inc. ("Grasslands"), owns a property known as "Grasslands Plantation" adjacent to the proposed subdivision property.

The Planning Commission Proceedings

Grasslands opposed the subdivision in a series of hearings before the Commission. In a hearing on April 13, 2006, after which the Commission granted its final approval, Grasslands challenged the proposed subdivision, principally through the oral and written testimony of Dr. Eileen McLellan, a consultant with a background in environmental science and policy. Dr. McLellan asserted that the proposed subdivision was incompatible with (1) Maryland Code (1957, 2003 Repl.Vol.), Article 66B, Sections 1.01 and 11.01,³ (2) specific policies in the Queen Anne's County Comprehensive Plan, and (3) provisions in Title 18 of the Queen Anne's County Code ("QACC"). Both Dr. McLellan and Grasslands's counsel argued that Frizz-King's use of the County's noncontiguous development ("NCD") program, was incompatible with the County's Comprehensive Plan policy to keep rural lands rural and preserve agricultural lands, because the agricultural parcel proposed for subdivision is not located in an area designated for growth.⁴ Dr. McLellan also argued the subdivision was incompatible because, inter alia, (1) the subdivision's planned architecture, use of cul-de-sacs, and landscaping did not employ an appropriate rural design and (2) that the subdivision could be "redesigned to incorporate Low Impact Design practices rather than rely upon engineered stormwater structures." Dr. McLellan explained that a design which locates homes adjacent to the existing tree line—rather than placed in the middle of an open field—would contribute to preserving the rural character of the area.

Frizz-King's counsel disputed Dr. McLellan's contention that the area surrounding the subdivision is predominately rural. He noted that the proposed subdivision was immediately adjacent to the 900 lot Chester Harbor subdivision, that the adjacent Grasslands Plantation also contained a thirty-two lot subdivision, and that there were other subdivisions and the town of Chestertown in the immediate vicinity. He added, moreover, that the proposed subdivision was in the immediate vicinity of substantial commercial development, including the three largest car dealerships in the area.

The Commission approved the proposed subdivision without making any findings of fact. At the close of the hearing, Jeffrey Thompson, Frizz-King's counsel, explained the need for the Commission to make findings and the Commission's legal counsel echoed these concerns: "Without the findings, Mr. Thompson is correct, ... [the case] will be sent back to you because it's not clear from the record what findings that you've made or haven't made." Mr. Thompson prepared and submitted into the record proposed findings of fact. The Commission declined to make findings, however, resolving that it could grant final approval on the planning and zoning staff's recommendation:

BOARD MEMBER: Staff has reviewed all these things. Staff recommends, they see nothing that would prohibit us from granting a final approval. I'd like to make a motion that we grant final approval, final subdivision approval to [Frizz-King] to create 49 cluster lots, one open space lot, public roadways as outlined on the application ... with the following conditions: All required bonds and sureties and inspection fees be submitted, a maintenance inspection agreement be provided to the Public Works, all required legal documents be signed and recorded, all required signatures be obtained, and this is taking into consideration the recent submissions of [Grassland's counsel] and Mr. Thompson.

The Commission then approved the motion.

The Board of Appeals Proceedings

Grasslands appealed the Commission's decision to the Board, listing eleven grounds. Grasslands alleged, inter alia, that the County's NCD program did not comply with Article 66B, the subdivision approval did not comply with the County's "Comprehensive Plan and the `Title 18' zoning ordinance[,]" the Commission failed to make "written specific findings of fact and conclusions of law[,]" and the "subdivision's open space areas are not in conformance with the applicable standards of the Queen Anne's County Title 18."

Frizz-King filed a Motion to Compel Specific Grounds for Appeal, contending that Grasslands's "contentions are so broadly framed as to deny [Frizz-King] the basic due process right to be apprised of the issues on appeal and to enable it to adequately prepare to present evidence and argument." Grasslands countered with a Motion for Summary Judgment in which it contended that "there are no relevant facts in dispute—the Planning Commission failed to make the necessary findings required by law." It argued that "even with these proceedings being de novo with respect to the issues raised, [Grasslands] cannot assert the Planning Commissioner's errors in their entirety without knowing what the Planning Commission did and why."

The Board declined to accept Grasslands's summary judgment motion on the ground that it "was not part of the Board's procedures." It then reviewed the eleven grounds and found that four were alleged with insufficient clarity, including the allegation that "[t]he subdivision approval does not comply with [the] Queen Anne's County Comprehensive Plan and the `Title 18' zoning ordinance." According to the Board, Grasslands needed "to specify how the grant of the subdivision does not comply with the Comprehensive Plan or Title 18 in order for the parties to prepare intelligently." In a supplemental notice of appeal, Grasslands alleged:

The Planning Commission improperly failed to consider whether the Highlands development complies with the Comprehensive Plan in violation of Title 18. § 18:1-4 defines the purpose of Title 18 and how it to be interpreted and administered: "The purpose of Title 18 is to implement the Comprehensive Plan ..." Likewise, § 18:1-161 of Title 18 requires that "A subdivision layout shall conform to the Comprehensive Plan." Again, the use of the word "shall" is mandatory. At the time of the submission of the Highlands development to the Planning Commission, it was the developer's burden of proof to establish that the development is in compliance with the Comprehensive Plan because it presented no relevant evidence or testimony.

The Board held a hearing on the merits on October 26, 2006. Grasslands's counsel questioned whether the burden of proof should rest on Grasslands, as opposed to Frizz-King, in an appeal from a Commission decision. He then argued that the Commission was required to make findings. Dr. McLellan, again, testified on behalf of Grasslands. When Dr. McLellan attempted to offer her opinion and two exhibits stating that the Highlands did not conform to the County's Comprehensive Plan, Frizz-King's counsel objected on the ground that Grasslands had failed to disclose in advance of the hearing the subdivision's "specific incompatibility" with the Comprehensive Plan. The Board sustained Frizz-King's objection concerning one of Dr. McLellan's exhibits, and with respect to the other, only allowed her to testify about the "general goal of a comprehensive plan" without reference to "specific application of the Comprehensive Plan[.]" Dr. McLellan proceeded to testify, in general fashion, that the County's NCD program is incompatible with the County's Comprehensive Plan.

With the exception of one item,⁵ the Board denied Grasslands's appeal "because it [did] not believe that [Grasslands] ... met its burden of proof." The Board found, inter alia, that (1) "[t]he County's [NCD] program is not inconsistent with Article 66B[;...