Smith v. County Commissioners of Kent County

Citation18 A.3d 16,418 Md. 692
Decision Date25 April 2011
Docket NumberSept. Term,No. 2,2010.,2
PartiesJerry SMITH, et al.v.COUNTY COMMISSIONERS OF KENT COUNTY, Maryland, et al.
CourtCourt of Appeals of Maryland


G. Macy Nelson (David S. Lynch of Law Office of G. Macy Nelson, Towson, MD), on brief, for petitioners.C. Daniel Saunders (Cristina Harding Landskroener, Chestertown, MD; Thomas N. Yeager, Chestertown, MD), on brief, for respondents.Douglas F. Gansler, Atty. Gen. of Maryland, Marianne E. Dise, Asst. Atty. Gen., Department of Natural Resources, Annapolis, MD, for Amicus Curiae brief of Critical Area Commission for the Chesapeake and Atlantic Coastal Bays.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.HARRELL, J.

For a case posing but one question, a number of interesting additional questions are imbedded here, most of which we shall not decide today. We must decide whether and, if so, when persons, assumedly aggrieved by the Board of County Commissioners of Kent County's 1 approval of a growth allocation request to amend the County's local Critical Area Plan under the regulatory scheme of the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program, Maryland Code (1990, 2007 Repl.Vol.), Natural Resources Article §§ 8–1801 et seq. , may seek judicial review of that approval. Jerry Smith and a number of other Kent County residents (collectively, Petitioners) question here the Court of Special Appeals's dismissal of their appeal from the judgment of the Circuit Court for Kent County, which affirmed the County's approval of a growth allocation application by Drayton Manor, LLC (the Developer), to allow increased development of its property.

The problem in this case arises from a proclamation that states that the County's decision is not effective until approved by the State Critical Area Commission (the Commission). Apparently while consideration of the local growth allocation approval by the County was pending before the Commission, Petitioners sought judicial review in the Circuit Court of the County's decision. The Circuit Court affirmed the County's approval, and Petitioners thereafter filed an appeal to the Court of Special Appeals. After requesting specific briefing on the finality of the County's approval vis á vis the ability to maintain a judicial review action, the intermediate appellate court, by order, dismissed the appeal as premature.

Before us, Petitioners argue generally that:

The [County's] approval of the Developer's application for growth allocation was a final, appealable order because it terminated the case before the [County]. Furthermore, the [Commission]'s subsequent review of the growth allocation does not affect the appealability of the [County's] decision because the [Commission] and the County conduct separate reviews, apply different standards and develop different records.

In response, the County maintains that the intermediate appellate court's dismissal of Petitioners' appeal was correct, considering [t]hat decision [ i.e., the County's approval] was not a final, appealable act because the proposed program amendment was required by law to be reviewed and approved by the Critical Area Commission before it could have any legal effect.” The Commission filed an amicus brief generally supporting Petitioners' position regarding their ability to seek judicial review of the County approval.

We hold that the County's approval of Drayton Manor's growth allocation request was not a final action, considering that the Commission's required decision may modify, reject, delay, or even preclude the local approval from becoming effective. As a non-final order, even assuming that a right to seek judicial review existed (a premise with which we do not agree, for reasons to be explained), no immediate right existed to have judicial review take place. Accordingly, although the Court of Special Appeals's dismissal of Petitioner's appeal to that court was in the right church, it was in the wrong pew. It should have gone further and, as explained more fully infra, endorsed dismissal by the Circuit Court of the litigation.

A. Chesapeake and Atlantic Coastal Bays Critical Area Protection Program

The General Assembly established the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program (“Critical Area Program” or Program), Md.Code (1990, 2007 Repl.Vol.), Natural Resources Article §§ 8–1801 et seq. , in 1984, in recognition of the Chesapeake Bay's importance and the State's and local governments' role in its future health, and in response to then-growing concerns over the deteriorating condition of what the Legislature deemed “natural resources of great significance to the State and the nation....” Nat. Res. Art. § 8–1801(a)(1).2

The Critical Area Program “require[s] all local jurisdictions, under the direction of [the] Chesapeake Bay Critical Area Commission, to formulate and implement a plan to control development in the ‘critical’ or protected area.” Critical Area Comm'n for the Chesapeake and Atl. Coastal Bays v. Moreland, LLC, 418 Md. 111, 117, 12 A.3d 1223, 1226 (2011). The Critical Area Program's primary mechanism for protecting the Bay is limiting development in statutorily defined “critical areas,” Nat. Res. Art. § 8–1807, where unchecked human growth could cause harm to the Bay. The Program establishes a development-free “buffer of at least 100 feet landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands....” Nat. Res. Art. § 8–1801(a)(4). The Program requires local governments to zone all critical areas as one of three tiers: (1) Resource Conservation Area (“RCA”), see COMAR §; (2) Limited Development Area (“LDA”), see COMAR §; or (3) Intensely Developed Area (“IDA”), see COMAR § The amount of growth in IDAs and LDAs allowed in each jurisdiction's “critical area” is known as the county's “growth allocation.” See Nat. Res. Art. 8–1802(a)(11) (“ ‘Growth allocation’ means the number of acres of land in the Chesapeake Bay Critical Area that a local jurisdiction may use to create new intensely developed areas and new limited development areas.”). Each county's growth allocation is capped at five percent of its RCA. Nat. Res. Art. § 8–1808.1(b). In each jurisdiction, these Critical Area Zones overlay the pre-existing zoning; that is, local zoning ordinances must comply with the Program, but may add additional zoning conditions or restrictions. See Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 535, 723 A.2d 440, 442 (1999); see also Md. Overpak Corp. v. Mayor of Baltimore, 395 Md. 16, 26 n. 10, 909 A.2d 235, 241 n. 10 (2006).

The Program is complicated by the division of responsibilities in its implementation between the State and local governments. See Nat. Res. Art. § 8–1801(b)(2) (stating that implementation of the Program is to be done “on a cooperative basis between the State and affected local governments”). While “each local jurisdiction ... ha[s] primary responsibility for developing and implementing a [local] program,” such responsibility is “subject to review and approval by the Commission.” Nat. Res. Art. § 8–1808(a); see Nat. Res. Art. § 8–1808.1(c)(2) (stating that the Commission shall ensure that the local plan is “consistent with the purposes, policies, goals, and provisions of th[e Critical Area Program]).

After the adoption by a local government of its initial plan, all changes to the local plan, including growth allocation amendment requests, are subjected to a two-tiered approval process, similar to the process for the initial plan adoption. The local government, in considering growth allocation amendment requests, is governed by guidelines set forth in Nat. Res. Art. § 8–1808.1(c)(1).3 If the local government rejects a growth allocation request, the application is terminated and the Commission plays no role because there is nothing for it to review. If, however, the local government approves a growth allocation request (with or without restrictions/conditions), the Commission must “ensure that the guidelines ... have been applied in a manner that is consistent with the purposes, policies, goals, and provisions of [the Program].” Nat. Res. Art. § 8–1808.1(c)(2). On review, the Commission may approve the request, deny the request, approve the request subject to conditions, or return the request to the local government with a list of changes to be made. See Nat. Res. Art. § 8–1809( o )(3).

B. Kent County's Critical Area Plan

Kent County's initial Critical Area plan “was approved by the Critical Area Commission on January 20, 1988 and became effective on April 12 of that year. Wharf at Handy's Point, Inc. v. Dep't of Nat. Res., 92 Md.App. 659, 663, 610 A.2d 314, 316 (1992). The Kent County Critical Area Plan is incorporated into Kent County's Land Ordinance, where the balance of Kent County's zoning and planning provisions reside. See Kent County Land Use Ordinance, http:// www. kentcounty. com/ gov/ planzone/ newzone/ Part 1_ A 10. pdf (last visited 7 February 2011). As such, the local plan is a part of a public local law.

Growth allocation amendment requests in Kent County purportedly also are governed by the Kent County Growth Allocation Policy (“the Policy”), adopted initially by the County on 9 March 1999. More will be said about the circumstances of the adoption of the Policy later. The Policy reiterates that the County Board of Commissioners has the authority to grant growth allocation requests in the “incorporate[d] towns” and the “unincorporated territory” of Kent County. For growth allocation requests in the unincorporated territory to be approved, the Policy provides that an applicant must meet the following conditions:

1. The proposed project is identified in the Kent County Comprehensive Plan as a means to expand and provide more diversity in the size, number, and type of...

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