People's Counsel v. Surina

• Citation: 400 Md. 662,929 A.2d 899
• Decision Date: 23 August 2007
• Docket Number: No. 111 Sept. Term, 2006.,111 Sept. Term, 2006.
• Parties: PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al. v. Dorothy SURINA, et al.
• Court: Court of Special Appeals of Maryland

929 A.2d 899

400 Md. 662

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

No. 111 Sept. Term, 2006.

Court of Appeals of Maryland.

August 23, 2007.

Peter Max Zimmerman, People's Counsel for Baltimore County (Carole S. Demilio, Deputy People's Counsel; J. Carroll Holzer, Holzer & Lee, P.A., Towson, MD), all on brief, for Petitioners.

Howard L. Alderman, Jr. (Randolph C. Knepper of Levin & Gann, P.A., Towson, MD), on brief, for Respondents.

ARGUED BEFORE BELL, C.J., RAKER, CATHELL,^* HARRELL, BATTAGLIA, GREENE, and ALAN M. WILNER (Retired, specially assigned), JJ.

HARRELL, Judge.

We are asked in this litigation to determine whether a proposed stormwater management ("SWM") facility and private residential access road, the former designed primarily to serve new single-family residential construction on lots in Baltimore County's R.C. 5 (Rural-Residential) zone and the latter serving those lots and a lot in the R.C. 2 (Rural-Agricultural) zone, both may be placed on the R.C. 2 zoned portion of the split-zoned tract. The Baltimore County Zoning Commissioner and Board of Appeals approved the proposed development. The Circuit Court for Baltimore County, on judicial review of that action filed by neighbors of the proposed development, reversed, holding that placement of the SWM facility on the R.C. 2 portion of the development violated existing zoning regulations. The Circuit Court, however, found no zoning problem with regard to the access road. The Court of Special Appeals, in an unreported opinion, reversed-in-part and affirmed-in-part the judgment of the Circuit Court, holding that there existed "no zoning impediments" whatsoever to the development plan. We shall affirm, but for reasons different than those relied on by the Court of Special Appeals.

BACKGROUND INFORMATION

The basic facts underlying the present case are as follows, divergent inferences advocated by the parties aside. The controversy arises from a development plan submitted to Baltimore County by Respondents, Dorothy Surina and Jeanne Gough (the land owners) and Gaylord Brooks Realty Company (the developer). The development project, identified as "Lynch Property — Sweet Air Road," is proposed for a 47 acre tract of land located near the intersection of Sweet Air Road and Manor Knoll Court, east of Jacksonville, a rural area in the northeastern portion of Baltimore County (the "Property"). Under the "Rural Protection and Resource Conservation" ("R.C.") area zoning in the County, Baltimore County Zoning Regulations ("BCZR") § § 1A00.1-1A09.8, the Property and immediately adjacent parcels of land¹ are subject to various development requirements aimed at agricultural, watershed, critical area, and rural resource preservation.² The Property is divided by Sweet Air Road, a public road which runs in an east-west direction. Approximately 32.3 acres of the Property is located south of Sweet Air Road. The remaining 14.7 acres is located to the north. The portion lying to the south of Sweet Air Road is zoned, in its entirety, in the R.C. 2 zone under the Zoning Regulations, see BCZR §§ 1A01.1-1A01.4, and is improved with an existing residential structure.³ The part of the Property located to the north of Sweet Air Road is split-zoned, meaning that there exists multiple zoning boundaries within that portion. Alviani v. Dixon, 365 Md. 95, 100 n. 2, 775 A.2d 1234, 1236 n. 2 (2001). On the west side of the northern parcel are 10.8 acres of R.C. 5 zoned land.⁴ There are two smaller areas on the eastern section of the northern portion of the Property, collectively shaped like a wedge and approximately 3.9 acres in size, zoned R.C. 2.⁵ The development plan proposes eight single-family dwelling lots for the entire Property. Specifically, the proposal provides for the development of six new homes predominantly within the R.C. 5 zone,⁶ one new dwelling on the northeasterly wedge-shaped R.C. 2 zoned parcel,⁷ and the retention of the existing dwelling located at 4501 Sweet Air Road.

1. Private Access Road

Part of the infrastructure proposed in support of the subdivision, to be located on the part of the Property north of Sweet Air Road, fuels the instant controversy. Vehicular access to the lots, according to the development plan, is to be provided by a private road leading from Sweet Air Road into the interior of the R.C. 5 zoned land. The access road enters the proposed subdivision in the R.C. 5 zone, crosses briefly into the R.C. 2 zone, and then back into the R.C. 5 zone, where it eventually terminates in a cul-de-sac. The road is intended to provide owners of the R.C. 2 lot and the otherwise land-locked R.C. 5 zoned lots with access to Sweet Air Road. The design and location of the interior access road follows generally the existing natural topography of the Property.

2. Stormwater Management Facility

Also at issue is the placement of a stormwater management ("SWM") facility on the R.C. 2 zoned section of the Property which, according to the record, is intended to accommodate stormwater runoff from the R.C. 5 lots and surrounding areas.⁸ The SWM facility is proposed to be located entirely within the R.C. 2 zoned land, adjacent to the private access road.⁹

Section 4-204 of the Environment Article of the Maryland Code (1982, 2007 Repl. Vol.) provides that all counties in Maryland shall adopt laws to implement a comprehensive stormwater management program.¹⁰ Pursuant to this mandate, Baltimore County adopted a regulatory scheme which provides generally that, unless the proposed development qualifies under one of the enumerated exceptions in Baltimore County Code § 33-4-104(b), no proposed land development in the County may commence unless the developer/landowner obtains from the local government approval of a stormwater management plan. The exceptions to this requirement are: "(1) Agricultural land management practices; (2) Additions or modifications to existing single-family, detached, or semidetached residential structures, if the additions or modifications [do not disturb more than 5,000 square feet of land area]; (3) Developments that do not disturb more than 5,000 square feet of land area; and (4) Land development activities that the administration determines will be regulated under specific state laws which provide stormwater management no less stringent than the provisions of this title.". See also Baltimore County Code §§ 32-6-107 (providing that no building permit may issue unless the applicant first meets the requirements of Article 33, Title 4 of the Baltimore County Code¹¹ as well as § 32-4-410(c)¹² of that same Code). None of the exceptions apply to the subject development plan.

Stormwater management facilities may be located either on a proposed development site or off-site. If a facility is considered "on-site," it is intended to control stormwater runoff originating from within the site upon which the facility is located. Baltimore County Code § 33-4-101(v). An "off-site" facility, on the other hand, is intended to collect stormwater runoff from more than one site. Baltimore County Code § 33-4-101(v). "Site" is broadly defined by the Baltimore County Code and refers to "any tract, lot, or parcel of land, or combination of tracts, lots, or parcels of land, that are in one ownership, or are contiguous and in diverse ownership, where development is to be done as part of a unit, subdivision, or project . . . ." Baltimore County Code § 33-4-101(dd) (emphasis added).

As part of a proposed development plan, a SWM facility may also be designated for public or private maintenance. Baltimore County Code § 33-4-110. If designated for public maintenance, "[t]he county shall take in-fee ownership of the stormwater management devices and practices . . . ." Baltimore County Code § 33-4-110(1). If the facility is designated for private maintenance, however, the property owner (or its successor) is responsible for maintaining the facility in accordance with standards spelled out by the County "in a recorded deed of declaration for maintenance and access." Baltimore County Code § 33-4-110(2). To that end, the Baltimore County Code defines "public improvements" as those "improvements [which are] required by the county as a condition of development that are intended to be dedicated to the county in fee simple or by other interests in title." Baltimore County Code § 32-4-101(nn) (emphasis added). "Private improvements," on the other hand, are those improvements which are "required by the county as a condition of development that are not intended to be dedicated to the county." Baltimore County Code § 33-4-101(mm) (emphasis added). See also Baltimore County Code § 32-4-302(c) ("The applicant shall prepare, execute, and deliver to the county those improvements . . . required to convey to the county all rights-of-way that are determined to be necessary and appropriate for the county to accept and maintain the public improvements.") (emphasis added). As indicated on the approved development proposal, the stormwater management facility in the present case is intended to be conveyed by the Respondents in-fee to the County for public maintenance.¹³

The present case began at the Zoning Commissioner / Hearing Officer (Commissioner) level when Respondents filed with the County a concept plan for the Property, pursuant to Baltimore County Code § 32-4-213. The concept plan included a simple, clean, and straight-forward schematic representation of the proposed subdivision. The review process continued according to § 32-4-216¹⁴ with the scheduling and completion of a Concept Plan Conference between the Department of Permits and Development Management, the Department of Environmental Protection and Resource Management, the Office of Planning, and the applicants. Subsequent to that meeting, a § 32-4-217 Community Input Meeting¹⁵ was conducted, at which time, the owners of neighboring properties were given the opportunity to review and offer...