HNS Dev., LLC v. People's Counsel for Balt. Cnty.

• Decision Date: 23 April 2012
• Docket Number: Sept. Term, 2011.,No. 85,85
• Citation: 425 Md. 436,42 A.3d 12
• Parties: HNS DEVELOPMENT, LLC v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.
• Court: Maryland Court of Appeals

425 Md. 436

42 A.3d 12

HNS DEVELOPMENT, LLC

v.PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.

No. 85, Sept. Term, 2011.

Court of Appeals of Maryland.

April 23, 2012.

John B. Gontrum (Jennifer R. Busse of Whiteford, Taylor, Preston, LLP, Towson, MD), on brief, for petitioner.

Peter Max Zimmerman, People's Counsel for Baltimore County (Carole S. DeMilio, Deputy People's Counsel, Towson, MD), on brief, for respondents.

J. Carroll Holzer (Holzer & Lee, P.A., Towson, MD), on brief, for respondent.

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

HARRELL, J.

This case presents a cautionary tale of a protracted struggle pitting asserted development rights against the Baltimore County Master Plan. The saga began in 1991 when the predecessor in title to the subject property to the Petitioner, HNS Development, LLC (“HNS”), and the County government failed to resolve conclusively whether certain development restrictions would be placed on parcels including and adjacent to the historic Langenfelder Mansion in Kingsville, Maryland. The “restrictions” under consideration implicated preservation of the Mansion's historic character and the scenic view of it from Bel Air Road. During the review process of the development plan for what became the Longfield Estates subdivision, the County, in light of textual recommendations expressed in the extant Master Plan regarding protection of scenic views, required easements for certain parcels in the subdivision to protect the view of the Mansion, but stopped short of establishing the same provisions with regard to two proposed parcels containing and immediately adjacent to the Mansion. Instead of easements or other forms of clear restrictions on development of these two parcels, the County Office of Planning requested that a note be placed on the development plan indicating that the Office of Planning would not support further development on the two parcels because to do so would be in conflict with the Master Plan. Thus, the plat note deferred indefinitely the resolution of what, if any, development might be allowed on the portion of the subdivision surrounding and including the Mansion. The original developer did not contest ultimately imposition of the requested plat note. Time has not cleared the muddied waters.

HNS purchased in 2004 the subject two parcels, comprising a total of 13 acres, surrounding the Mansion after developmentof the remainder of Longfield Estates. HNS acquired the parcels with knowledge of the cautionary note on the 1991 development plan. After having its proposed amended development plan (which sought to subdivide the lot containing the Mansion into two parcels and to place a dwelling on one of those lots and another dwelling on the parcel adjacent to the Mansion) rejected by three county agencies, the Circuit Court for Baltimore County, and the Court of Special Appeals, HNS asks this Court to conclude that its amended development plan meets the applicable development regulations of the Baltimore County Code and ignore the conceded Master Plan conflict, the latter continuing through the current Master Plan. Respondents, People's Counsel for Baltimore County (“People's Counsel”) and the Greater Kingsville Community Association (“GKCA”), argue that the Master Plan conflict provides a stand-alone basis for the County to reject the proposed amended development plan. We agree with Respondents.

I. FACTS AND ANTECEDENT ADMINISTRATIVE AND JUDICIAL PROCEEDINGS

Ann Langenfelder owned a 194–acre farm, containing a historic mansion, in Kingsville, Maryland. She sold the majority of the farm to the Longfield Estates Development Corporation (“LEDC”), but retained 13 acres comprised of two parcels, one containing the Mansion (Lot 42) and one adjacent to the Mansion (Parcel A).¹ In 1990, the Baltimore County Review Group (“CRG”) ² approved Phase I of the Longfield Estates development. Phase II of the development was delayed and, when submitted for consideration, referred to the County Planning Board because of a perceived conflict between the development proposal and the extant version (1989–2000) of the County Master Plan.³ The conflict centered on the scenic objectives of the Master Plan's recommendations to protect the historic Langenfelder Mansion, also known as Rockwood.⁴

After reviewing the potential Master Plan conflict, the Planning Board recommended that the CRG approve Phase II of the development, but under conditions that altered the location and configuration of some lots and restricted house siting and landscaping on nine lots as a means to maintain the scenic view from Bel Air Road to the Langenfelder Mansion. The nine lots targeted by the Planning Board were impressed with restrictive covenants to ensure that the historic viewshed was maintained. Despite the Planning Board's conclusion that the nine lots (as proposed by the developer) were in conflict with the Master Plan, it recommended that the County not acquire the properties, which, had the recommendation been to place the land in reservation, may have foreclosed any development on the nine lots and set up a significant showdown with LEDC. Lot 42 and Parcel A were retained by Ann Langenfelder, while the remaining 181 acres (owned by LEDC) were subdivided for single-family residential lots with the restrictive covenants. No definitive restrictive covenants were placed on Lot 42 or Parcel A; however, the following Note 18 was placed on the approved Phase II final development plan:

The Baltimore County Office of Planning & Zoning would not support future development on Lot 42 or Parcel “A”. Any future subdivision of Lot 42 and/or Parcel “A” would be considered a conflict with the Master Plan as detailed by the Planning Board's decision. Lot 42 as shown on the revised CRG Plan is designed in accordance with the Planning Board's action of January 17, 1991. Furthermore, the Office of Planning and Zoning supports and strongly encourages the applicant to seek a conservation easement to restrict future development on Lot 42 and Parcel “A” to permanently protect the integrity of the scenic view.

Phase II of the development plan was approved by the CRG, as recommended by the Planning Board, in 1991 and the development was built-out over the ensuing years.

In 2004, Ann Langenfelder died. Her estate sold Lot 42 and Parcel A to HNS, owned by Mark Storck. Storck was aware of the 1991 Phase II final development plan's Note 18. Later in 2004, HNS appliedfor a building permit to erect a dwelling on Parcel A. The Planning Board rejected the building permit as a “clear violation of the approved plan,” relying on Note 18 as support for this position. In 2005, HNS submitted an amended development plan to the CRG, proposing to subdivide Lot 42 into two lots, one for the Mansion and one for a new dwelling, as well as a dwelling on Parcel A. The amended plan was accepted for filing by the CRG on 17 February 2005. Pursuant to B.C.C. § 22–56(b) (1987, 1988–89 Supp.),⁵ the County Department of Public Works (“DPW”) had 30 days after the proposed amended plan was accepted to schedule a meeting of the CRG to consider the proposal.

Prior to the CRG meeting on the proposed amended plan, the Planning Board submitted comments that reiterated its view that Note 18 prohibited development on Lot 42 and Parcel A because, if the parcels were developed or resubdivided, a conflict would arise with the Master Plan, as determined by the Planning Board in 1991. The CRG meeting was not convened until 1 April 2005. At the meeting, HNS argued that the statutory deadline in B.C.C. § 22–56(b) for holding the CRG meeting (within 30 days of the filing of the amended plan) had passed and, therefore, B.C.C. § 22–47 provided that the amended development plan should be “deemed approved” by the CRG.⁶ The CRG rejected this argument and denied HNS's amended development plan, in light of the Planning Board's comments. Notwithstanding this seeming “victory,” People's Counsel and GKCA, both of which opposed approval of the amended plan, filed “ protective” administrative appeals with the County Board of Appeals, presumedly because of HNS's contention regarding the “deemed approval” for failure to conduct timely the CRG hearing. A short time later, HNS appealed to the Board of Appeals the CRG's denial of the amended development plan.

The Board of Appeals held six days of public hearings between 19 October 2005 and 22 August 2006, culminating with a public deliberation on 9 November 2006. On 6 April 2007, the Board of Appeals issued a written opinion remanding the matter to the Planning Board for further review in determining the meaning and effect of Note 18 in relation to the amended development plan and whether a Master Plan conflict continued. The Board of Appeals retained jurisdiction over the case in order to make a decision on the merits after the Planning Board reached its decision on remand. The Board of Appeals explained that, although its review was de novo (according to Baltimore County Charter § 603), because the CRG failed to request that the Planning Board make a further determination whether a conflict existed between the proposed amended development plan and Master Plan, “a crucial piece of evidence” was missing. ⁷ The Board of Appeals believed apparently (despite the Planning Board's submission of comments prior to the 1 April 2005 CRG meeting) that it could not decide properly the appeal without a formal referral to and response from the Planning Board to determine whether a conflict existed currently.

The Board of Appeals's opinion addressed also the question of which of the appealing parties bore the burden of showing that the CRG's action was arbitrary and capricious, procured by fraud, or otherwise illegal. B.C.C. § 22–61(c). People's Counsel argued that HNS waived its argument under B.C.C. § 22–47 that the amended plan was “deemed approved” because HNS had not raised the claim on or before...