Harford County People's Counsel v. BEL AIR REALTY ASSOCIATES LIMITED …

• Decision Date: 02 December 2002
• Docket Number: No. 475,475
• Citation: 148 Md. App. 244,811 A.2d 828
• Parties: HARFORD COUNTY PEOPLE'S COUNSEL v. BEL AIR REALTY ASSOCIATES LIMITED PARTNERSHIP.
• Court: Court of Special Appeals of Maryland

811 A.2d 828

148 Md. App. 244

HARFORD COUNTY PEOPLE'S COUNSEL v. BEL AIR REALTY ASSOCIATES LIMITED PARTNERSHIP.

No. 475, Sept. Term, 2001.

Court of Special Appeals of Maryland.

December 2, 2002.

Robert F. Kahoe, Jr., Bel Air, for appellant.

Michael E. Leaf (Hodes, Ulman, Pessin & Katz, P.A. on the brief), Bel Air, for appellee.

Argued before DAVIS, SALMON, and RAYMOND G. THIEME, JR. (Ret'd, Specially Assigned), JJ. RAYMOND G. THIEME, JR., Judge, Ret'd, Specially Assigned.

This matter highlights the tension between the rule of law and the nebulous concept of an agency's discretion to implement the goals a statute was meant to achieve.

The Harford County People's Counsel appeals the decision of the Circuit Court for Harford County reversing a decision of the Harford County Board of Appeals (Board). In this zoning case, the Board, adopting a decision by a Zoning Hearing Examiner, rejected an interpretation of the deceptively innocuous phrase "directly accessible" by the Harford County development regulations sought by Bel Air Realty Associates Limited Partnership in connection with Bel Air's intent to develop a subdivision that qualifies for classification of "conventional with open space." For the reasons that follow, our interpretation of the phrase "directly accessible" necessitates the reversal of the judgment of the circuit court.

INTRODUCTION

Bel Air Realty owns a 24.7 acre parcel of land ("Property") that is located in Harford County and situated just north of the town of Bel Air, near the intersection of Business U.S. Route 1, known as Conowingo Road, and the U.S. Route 1 "Bel Air" bypass. The Property lies adjacent to a development named the "Hickory Overlook" subdivision. Both properties were originally zoned "ORI" (Office, Research, Industrial). On April 18, 1995, a zoning hearing examiner reclassified both projects from "ORI" to "R-3" (residential). Bel Air Realty, in its efforts to develop the parcel, arranged with the Hickory Overlook developer to use a main road in the latter subdivision, Overlook Way, to access Business Route 1. The northern boundary of the Property abuts the Route 1 Bypass, but frontage access to this highway was denied by the Maryland State Highway Administration. See Maryland Code (1977, 2001 Repl.Vol.), § 8-620(c) of the Transportation Article.

Bel Air continues to pursue development of the Property in question, and now seeks approval from the Harford County Department of Planning and Zoning to develop its Property as a "conventional with open space (COS)" subdivision under Section 267-46 of the Harford County Zoning Code.¹ Such a designation would enable it to develop the Property at a greater density than that permitted for conventional R-3 development alone.

To this end, Bel Air requested that the Department provide an "interpretation"² that its project satisfied the prerequisites for COS approval. Specifically, the Department was asked to decide whether the Property would be deemed to be "directly accessible" to Business Route 1 for purposes of satisfying the Section 267-46B(4)(b) requirement for such access. In the alternative, Bel Air sought a variance from the requirements for a COS development.

A hearing on Bel Air's application for an interpretation was convened before a Zoning Hearing Examiner on June 12, 19, and 26, 2000. On September 21, the hearing examiner issued her decision, concluding that the project was not "directly accessible" to Business Route 1, thus ruling that it would not qualify for development with COS status. Bel Air's request for a variance from the requirements of Section 267-46B(4)(b) was withdrawn at the hearing.

On December 5, 2000, the Harford County Council, sitting as the Board of Appeals, ratified and adopted the hearing examiner's decision in all respects. Bel Air filed a petition for judicial review in the Circuit Court for Harford County. Maryland Rule 7-201. See Harford County Code, § A274-6. On September 13, 2001, the circuit court reversed the Board's decision and remanded this matter for further proceedings. This appeal ensued.

ISSUE

The salient and dispositive issue in this appeal is whether Bel Air's project is "directly accessible" from at least one "existing or planned arterial or collector road[ ]," viz. Business Route 1, as a matter of law. If the answer to this is "yes," then the circuit court correctly overturned the Board's conclusion to the contrary. Appellant People's Counsel contends that the court was wrong, and urges that we vacate the court's order and uphold the Board. In assigning error to the circuit court's decision, appellant further avers that the court ignored the longstanding interpretation of the Zoning Code by the Department of Planning and Zoning, the agency charged with its administration and enforcement. Bel Air Realty urges that we affirm. It challenges the administrative interpretations of the Zoning Code, and points out inconsistencies in the Department's application of this rule as one factor that undermines its validity.³

PERTINENT FACTS

The parties more or less agree that this appeal raises a purely legal question. Nevertheless, being careful never to express ourselves more clearly than we are able to think, we will rehearse those facts which may be pertinent to our discussion.

Craig Ward, a consulting civil engineer and urban land planner, and qualified as an expert in these fields, testified on behalf of Bel Air Realty. He had been a consultant for the developer, and had "been involved" with this property since 1987.

In 1995, both the Hickory Overlook property and Bel Air property were reclassified from ORI to R-3. Ward recalled that the Bel Air Realty and Hickory Overlook projects had always been linked by the Department of Planning and Zoning, and testified that, at the least, the development of these two subdivisions would be coordinated.

Ward chronicled the unsuccessful attempts by developers to obtain access for the property to the U.S. Route 1 Bypass. Having failed to gain access to Route 1, Bel Air Realty's project could only reach the Route 1 alternative—the original, or "old," U.S. Route 1 known as "Business Route 1"—over Overlook Way, a 36-feet wide paved roadway through the Hickory Overlook development. Ward testified that the design characteristics for a primary "residential road," such as Overlook Way, and an "arterial road" and "collector road" are the same. He further opined that Overlook Way would provide direct access between minor residential roads and collectors, thus fulfilling the "direct access" requirement of Section 267-46B(4)(b). Ward stressed that Overlook Way had been designed to provide access to the Bel Air development.⁴

Ward described three other developments in Harford County—Spenceola, Deer Spring and Woodland Run—which, he opined, have access characteristics that are similar to Bel Air Realty's property, in that they, too, are separated from qualifying roads by intervening properties. These developments have each been classified as COS. Ward explained that if the Bel Air property did not attain COS approval, it would only be developed into a community with single family detached lots—not the optimal use of this land. He stressed that the infrastructure had been planned for multi-family use.

Lee Cunningham, an expert in the fields of land use and transportation planning, agreed with Ward's assertion that Overlook Way renders the Bel Air property "directly accessible" to Business Route 1. Cunningham thought that the Code imposed no requirement that a COS development, such as that proposed by Bel Air Realty, actually abut or front on an arterial road to have direct access thereto.

Anthony McClune presented the views of the Department of Planning and Zoning. McClune, manager of the Department's Division of Land Use Management, testified that a conventional with open space development would be subject to the "Special Development design criteria within the [Zoning] Code." He emphasized that a "project" must be directly accessible from a collector or arterial road as a predicate for COS qualification. McClune stressed that this requirement meant that a project's access to a qualifying roadway be "immediate," and not through another existing project, such as Hickory Overlook.

McClune explained that the "direct access" requirement would prevent ingress to a high-density project, such as the COS development sought here, through a lower-density project such as Hickory Overlook:

We believe the intention of that Section of the Code was to basically make sure that the higher density projects that have more flexibility in housing types would basically be able to be immediately accessible to the collector or arterial road and not have these projects ... access through existing established communities.

He testified that Overlook Way is neither an arterial nor a collector road, but is, and was designed to be, a "local road," which is intended to "collect[ ] and distribute traffic within subdivisions and provide direct access to individual land uses." Id.

McClune described Hickory Overlook as a COS development with frontage on U.S. Route 1 and internal streets. He added that Bel Air's interpretation of "direct access" would allow any "project" to meet the threshold requirement for direct access for a COS, provided it had any access to a local road. Id. McClune concluded that, "for projects to go COS they must be immediately accessible to the arterial road. Frontage on [a] primary residential road does not grant the ability for a COS project."⁵

McClune was vigorously cross-examined about three projects that appeared not to have satisfied the "direct access" requirement, but which were nevertheless approved for COS development: Spenceola, Deer Creek, and Woodland Run. McClune explained that these projects were connected, or incorporated, in some manner to a larger development, with common ownership or unified planning, and were approved as part of a...