Park & Planning v. Greater Baden, 19 September Term 2009.

• Decision Date: 23 December 2009
• Docket Number: No. 19 September Term 2009.,19 September Term 2009.
• Parties: The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, et al. v. GREATER BADEN-AQUASCO CITIZENS ASSOCIATION, et al.
• Court: Court of Special Appeals of Maryland

985 A.2d 1160

412 Md. 73

The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, et al. v. GREATER BADEN-AQUASCO CITIZENS ASSOCIATION, et al.

No. 19 September Term 2009.

Court of Appeals of Maryland.

December 23, 2009.

M. Andree Green (Adrian R. Gardner, Gen. Counsel, and George R.H. Johnson, of The Maryland-National Capital Park & Planning Commission of Upper Marlboro), on brief, for petitioners.

G. Macy Nelson (Paul N. DeSantis of Towson), on brief, for respondents.

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

HARRELL, J.

This case considers the legal nexus, if any, between the subdivision of land and land use planning, as represented in adopted and approved "comprehensive plans," in Prince George's County. Donald Cox (the apparent¹ "Developer") applied to the Prince George's County Planning Board of the Maryland-National Capital Park and Planning Commission (the "Planning Board" or the "Commission") for approval of a preliminary subdivision plan (the "Preliminary Plan"). The Planning Board approved the Preliminary Plan over the protest of a neighbor who testified, in individual and representative capacities, at the public hearing. Judicial review of that action was sought in the Circuit Court for Prince George's County. The Circuit Court remanded the case to the Planning Board for further consideration of certain matters referred to in land use planning documents addressed to that part of Prince George's County ("the County") where the subject property is located. The Planning Board and the Developer filed a timely appeal to the Court of Special Appeals, complaining about the remand because consideration by the Planning Board of the pertinent land use planning issue (in this case, a numeric residential growth objective) was not required. The Court of Special Appeals affirmed the judgment of the Circuit Court. We shall affirm the Court of Special Appeals, but for reasons somewhat less expansive than articulated in the opinion of our appellate colleagues.

I. FACTS AND PROCEDURAL BACKGROUND

On 30 December 2005, the Developer applied to the Commission for approval of a preliminary subdivision plan proposing 20 single-family detached residential lots on 118.30 acres located east of Md. Rte. 301 in southern Prince George's County. The subject property is referred to at times in the record as the Schultze Property.² It sits astride the east and west sides of Aquasco Road (MD 381) and borders the Charles County line. Aquasco Road is designated by the County as a historic road. Md.-Nat'l Capital Park and Planning Comm'n, Prince George's County Historic Sites and District Plan H-5 (1992).³ The subject property is located in a portion of the County designated as the Rural Tier, as defined by the 2002 Approved Countywide General Plan⁴, ⁵ (the "General Plan").

The Planning Board held a public hearing on 18 May 2006 to consider the Preliminary Plan application. The Board heard testimony initially from two members of the Commission's Subdivision Section Technical Staff, Ivy Thompson and Alan Hirsch, who recommended approval of the Preliminary Plan. Joanne Flynn of the Greater Baden-Aquasco Citizen's Association testified in opposition to approval of the Preliminary Plan. Flynn testified, among other things, with regard to the General Plan's restrictive numeric residential growth objective⁶ as it relates to the "excessive" current residential growth experienced in the Rural Tier and its relation to the Preliminary Plan, which she maintained, justified disapproval of the application.⁷

The Planning Board approved the Preliminary Plan by a Resolution, dated 15 June 2006 (the "Resolution"), subject to fourteen conditions not relevant here. Pertinent, however, to the dispute in the present case, the Resolution included the following findings (distinguished perhaps more by what it does not address—the numeric growth objective — than for what it does):

Community Planning — This site is located in the Rural Tier. The vision for the Rural Tier is the protection of large amounts of land for woodland wildlife habitat, recreation and agriculture pursuits, and preservation of rural character and vistas that now exist. This application is not inconsistent with the 2002 General Plan Development Pattern policies for the Rural Tier. Based on the proposed development, as modified by conditions contained in this report, the subject application conforms to the low rural residential land use recommended in the 1993 Subregion VI Study Area Master Plan.

Several elements of the plan, as approved with conditions and as noted in various review referrals, demonstrate conformance to the maps and text of the master plan and general plan. No rare, threatened or endangered species of plants or animals will be impacted by the development. Of the approximate 49.80 acres of woodland conservation required, all will be in the form of existing preservation on site. The applicant is actually proposing the retention of 57.10 acres of existing preservation on site. An additional condition was established for a future Detailed Site Plan (DSP) to address the appearance of the proposed lots and appropriate treatment for the scenic easement with review elements to include Preservation of existing woodlands; Enhancement of the scenic easement with landscaping; The location, appropriate setback and lighting of all lots and residences adjacent to Aquasco Road (MD 3 81); The location and type of lighting on the public road; and The conservation of rural character. Conservation easements are required over the environmental features to additionally provide for the retention of environmentally sensitive areas. The lotting pattern established provides for the implementation of high-end estate housing. The transportation system was found to meet the minimum level of service (LOS) C criteria established for the Rural Tier. . . . The 2002 General Plan established seven goals for the Rural Tier. While it is acknowledged that this specific property, with this specific development proposal will not retain sustainable agricultural land, nor will it limit non-agricultural uses, it will preserve environmentally sensitive features; it will help to maintain rural character; it will allow for large lot estate residences; it will protect the land owners' equity in their land; and it will maintain the integrity of the rural transportation system.

The Resolution, in explaining its analysis of the basis upon which the preliminary plan was approved, made no mention of the General Plan's numeric residential growth objective for the Rural Tier.

The Greater Baden-Aquasco Citizens Association and eight individual area residents (collectively, the "Citizens") filed in the Circuit Court for Prince George's County a petition for judicial review of the Commission's action. The Circuit Court remanded the case to the Planning Board for further consideration and additional findings. Specifically, the Circuit Court found that the Planning Board did not articulate findings of fact with regard to conformance with all relevant recommendations of the General Plan and applicable Area Master Plan and that there was not substantial evidence in the record to support the Planning Board's conclusion that the Preliminary Plan conformed with the General and Master Plans. The Commission and the Developer appealed to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the judgment of the Circuit Court. The Commission filed a timely petition for writ of certiorari.⁸ We granted the petition, 407 Md. 529, 967 A.2d 182 (2009), to consider the following somewhat argumentatively framed questions:

I. Does the lower court's decision improperly usurp the County Council's legislative function by imposing an interpretation of the General Plan that the Council expressly did not intend?

II. Would the lower court's decision unduly subject the Commission to innumerable lawsuits and effect a de facto moratorium on development in the County's rural tier?

II. THE OPINION OF THE COURT OF SPECIAL APPEALS

The Commission and the Developer, before the Court of Special Appeals, disputed the Circuit Court's judgment that there was not substantial evidence to support the Planning Board's approval of the Preliminary Plan. The intermediate appellate court interpreted its opinion in Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292, 933 A.2d 405 (2007), aff'd on other grounds, 405 Md. 43, 949 A.2d 639 (2008), a case involving a different preliminary subdivision plan application for residential development within the Rural Tier of the County, to hold that the General Plan's numeric residential growth objective was "binding" on the Planning Board. Because the Planning Board did not consider the numeric growth objective in the present case in its Resolution or in its deliberations, the intermediate appellate court concluded that there was not substantial evidence that the application conformed with the Master Plan and the General Plan.

According to the Court of Special Appeals, "when the evidence in a given case generates a material issue as to compliance with that objective," the Planning Board must address the General Plan's numeric growth objective viz-a-viz the preliminary plan application before it. The court found that the following testimony by Flynn in the present case generated a material issue as to the proposed subdivision's compliance with the numeric growth objective:

Since the adoption of the General Plan, the goal of capturing less than one percent of the County's dwelling unit growth for the Rural Tier has been exceeded and has resulted in action by [the District] Council to place a moratorium on growth, which has now expired in the Rural Tier, and to attempt to develop a TDR [Transfer of Development Rights] program to meet growth and preservation mandates outlined in the General Plan.

The court resolved that the ...