P Overlook v. Washington County

• Decision Date: 02 December 2008
• Docket Number: No. 1142, September Term, 2007.,1142, September Term, 2007.
• Parties: P OVERLOOK, LLLP v. BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

960 A.2d 1241

183 Md. App. 233

P OVERLOOK, LLLP v. BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland, et al.

No. 1142, September Term, 2007.

Court of Special Appeals of Maryland.

December 2, 2008.

Stanley D. Abrams (Abrams & West, PC on the brief), Bethesda. (Scott D. Miller, Weinberg & Miller on the brief; Frederick), for Appellant.

Andrew F. Wilkinson, Hagerstown, for Appellee.

DEBORAH S. EYLER, SALLY D. ADKINS^* (Specially Assigned) and LAWRENCE F. RODOWSKY, (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

This case concerns a nine-lot residential density restriction on certain property owned by P Overlook, LLLP ("Overlook"), the appellant, in Washington County. In 2003, the Board of Commissioners of Washington County ("the Commissioners"), the appellee, granted a piecemeal map amendment to Overlook's predecessors-in-title, Sylvia and William Martin, rezoning the property in question ("Property") to the Rural Village ("RV") district, conditioned upon the nine-lot density restriction. At that time, the RV zone was not yet in existence, but was projected to be once certain rural areas of the County were comprehensively rezoned.

Overlook participated in the map amendment process. Neither it nor the Martins challenged the density restriction. Indeed, they were notified that the map amendment request was being granted conditioned upon the nine-lot density restriction and that, if they did not agree to the condition within five days, they could withdraw their rezoning request. They did not do so. Soon after the map amendment was granted, Overlook purchased the Property from the Martins.

In the meantime, comprehensive rezoning of certain rural areas, including the Property, was moving forward in Washington County. In 2005, when the comprehensive rezoning ordinance was enacted, the Property in fact was classified as RV. The ordinance itself was silent as to any density restriction for the Property.

A year later, Overlook wrote to the Zoning Administrator for the County asking him to "confirm" that the Property is located in the RV zone but is not subject to a nine-lot density restriction. By letter, the Zoning Administrator replied that, by virtue of the Commissioners' map amendment decision in 2003, the Property now is in the RV zone with a nine-lot density restriction.

Overlook challenged the Zoning Administrator's letter "determination" before the Washington County Board of Appeals ("Board"). The Board ruled that it was questionable whether the letter was an appealable "determination" and that, if it were, and even if the Zoning Administrator were in error, Overlook was estopped to challenge the density restriction.

In the Circuit Court for Washington County, Overlook filed an action for judicial review. The court upheld the Board's decision. In this Court, Overlook raises two questions for review, which we have rephrased:

I. Did the Board err in determining that the Commissioners had lawfully placed a nine-lot density restriction on Overlook's property?

II. Did the Board err by failing to find that the Commissioners exceeded their authority by imposing a restriction on the number of lots that could be developed on Overlook's property, as zoned, after the zone was created?¹

As we shall explain, the questions Overlook presents do not address the bases for the Board's decision. We shall affirm the Board's decision on the grounds on which it was made, and shall not address the issues raised by Overlook on appeal, as they are not properly before us.

FACTS AND PROCEEDINGS

The Property is slightly less than 24 acres of land situated near Maryland Route 340 and Keep Tryst Road, in Washington County. When Washington County first adopted a Zoning Ordinance, in 1973, the Property was zoned "Conservation" ("C"). In the early 1980s, the Martins purchased the Property. In 1983, they applied for and obtained a zoning change to "Business-General" ("BG"). The Property as purchased included an existing motel, which the Martins planned to expand or rebuild. That plan never came to fruition, however.

On April 17, 2002, the Martins, through counsel, filed with the Washington County Planning Commission ("Planning Commission") a zoning map amendment application, seeking a piecemeal zoning reclassification to the "Residential Suburban" ("RS") zone. In Washington County, the Commissioners, as the local legislative body, determine amendments to the Zoning Ordinance, whether map or text. WASH. CO., MD., ZONING ORDINANCE art. 27, § 1 ("Zoning Ordinance" or "Ordinance"). The Martins alleged that the previous rezoning to the BG district had been a mistake. A hearing on their application was held on June 10, 2002. Before that date, they signed a contract to sell the Property to Overlook. Thus, at all relevant times in this case, Overlook was the contract purchaser or, later, the owner of the Property.

Residential development is not permitted in the BG zone. A zoning change for the Property to RS would have allowed residential development at a density of four single-family houses per acre. A representative of Overlook testified at the June 10, 2002 hearing that, if the Property were rezoned to the RS district, the company was going to develop it with 34 single-family houses.

On August 5, 2002, the Planning Commission recommended against the requested map amendment. Thereafter, the Commissioners denied the application.

Throughout this same time period, the Commissioners were in the process of revising Washington County's Comprehensive Plan. Effective August 27, 2002, they adopted a new Comprehensive Plan ("the Plan"). It was expected that, once the Plan was adopted, comprehensive rezoning to implement it would follow shortly and new zoning classifications would be adopted based upon the Plan's recommendations. One such recommendation was to eliminate the Residential Rural ("RR") district and create a new Rural Village ("RV") district. The Plan laid out 55 areas designated as Rural Village Policy Areas. The recommended new RV district would encompass those areas.

The "Sandy Hook Rural Village" district is adjacent to the Property. Before 2002, when the Plan was being developed but before it was finalized, the Martins had asked the Planning Commission to place the Property in that part of the RV district, with a residential use designation. The Planning Commission declined, advising the Martins to make their request through the piecemeal rezoning process, i.e., by requesting a zoning map amendment.

On January 15, 2003, again through counsel, the Martins filed another zoning map amendment application, this time seeking a reclassification to the RR zone.² Such a change would have permitted a residential density of 2 single-family houses per acre. On March 10, 2003, the Commissioners held a public hearing on the application. Testimony revealed that Overlook still was planning to develop 34 single-family residential lots on the Property, and wished to obtain a zoning change that would allow that level of development.

On April 2, 2003, the Planning Commission issued a Staff Report and Analysis recommending against the Martins' piecemeal rezoning application. The Staff Report acknowledged that there was merit in the Martins' argument that the Property had been zoned BG by mistake, in 1983, and that reverting to the prior "C" zoning would not be appropriate. It expressed concern, however, about the density of any residential development of the Property. Five days later, the Planning Commission issued its Report and Recommendation against the rezoning application. It stated:

[T]he proposed Rural Residential designation for this property was not appropriate for the area and that the commercial designation could provide opportunities for retail services for the citizens of the area. If it were to be rezoned for residential development, then [the Planning Commission] would recommend a classification that would limit the amount of future development.

(Emphasis added.)

On August 5, 2003, with the County Attorney in attendance, the Commissioners reviewed the Martins' zoning map amendment application. The County Attorney pointed out that the rezoning request was to the RR zone, which would not exist under the new zoning classifications proposed under the Plan. Individual commissioners expressed concern about the application, including about the density of any future residential development. Thereafter, on August 26, 2003, the Commissioners considered and granted a request by counsel for the Martins to remove the application from the agenda and send it to the Planning Commission "for consideration of the appropriate density of single-family residential development, which may be established by the attachment of a condition to rezoning." The Commissioners noted that the County Attorney "advised the Board that the Zoning Ordinance allows the attachment of conditions to the granting of rezoning. The Planning Commission would then make a recommendation on the proposed density to the Commissioners." See Excerpt of Board of County Commissioners Meeting, August 26, 2003, Hagerstown, Maryland.

At the same time, the comprehensive zoning process for Washington County was moving forward. On September 15, 2003, the Planning Commission issued a Staff Report and Analysis respecting "Comprehensive Rezoning of the Rural Area of Washington County" ("the CRRA Report"). The CRRA Report included a proposed draft of a text amendment to the Zoning Ordinance, including adoption of the RV district as a new zoning classification. It did not place the Property in the RV district. Rather, it designated the Property in the "Environmental Conservation" ("EC") zone. An EC zoning classification would have allowed residential development but would have greatly limited it, to one single-family house per 20 acres. On the day the CRRA Report was issued and then on October 8, 2003, public hearings were held on the proposed zoning changes. The...