Trail v. Terrapin Run

• Decision Date: 11 March 2008
• Docket Number: No. 44, Sept. Term, 2007.,44, Sept. Term, 2007.
• Citation: 943 A.2d 1192,403 Md. 523
• Parties: David TRAIL, et al. v. TERRAPIN RUN, LLC, et al.
• Court: Court of Special Appeals of Maryland

943 A.2d 1192

403 Md. 523

David TRAIL, et al. v. TERRAPIN RUN, LLC, et al.

No. 44, Sept. Term, 2007.

Court of Appeals of Maryland.

March 11, 2008.

William C. Wantz, Hagerstown, for Petitioners.

Douglas F. Gansler, Atty. General, Charles J. Butler, Shelley Wasserman, Asst. Attys. General, Baltimore, brief of Maryland Dept. of Planning, Amicus Curiae.

Amy E. McDonnell, Jon A. Mueller, Annapolis, brief of The Chesapeake Bay Foundation, Inc., Amicus Curiae.

Lora A. Lucero, Chicago, IL, John C. Murphy, Baltimore, brief of American Planning Association and Maryland Chapter of APA, Amicus Curiae.

Robert S. Paye, Cumberland, for Respondents.

Gorman E. Getty, Cumberland, brief of The Board of County Commissioners of Garrett County, Amicus Curiae.

William M. Rudd, Cumberland, brief of The Board of County Commissioners of Allegany County, Amicus Curiae.

Argued Before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER, (retired, specially assigned), DALE R. CATHELL, (retired, specially assigned), JJ.

DALE R. CATHELL, Judge, retired, specially assigned.

With the inclusion of certain of the amici (via their briefs), this case, in one sense is a continuation of legislative battles that began in the early 1990s, where representatives of the environmental protection and professional land planning interests attempted to establish that the State, or State planners, should exercise greater control than theretofore enjoyed over most aspects of land use decision-making that then reposed in the local jurisdictions.¹

David Trail, et al., petitioners, presented only one question in their Petition for Certiorari:

"May a board of appeals deriving zoning authority under Article 66B grant a special exception, in the absence of an affirmative finding that the proposed use conforms to the jurisdiction's comprehensive plan?"²

We presume that petitioners are asserting that the administrative entity making the decision must mention the term "conform," because it now appears in the relevant section of the State statute, Article 66B,³ and then explain its decision in relation to petitioners' (and some of the amici's) versions of the definition of the term "conform" as it relates to the local jurisdiction's plans.⁴ We hold that the agency did that which the statute required it to do. We believe that the term "conform," standing alone, as first used by the Legislature in 1970, is the semantical equivalent of the phrase "in harmony with" which has long been the standard utilized in Maryland land use administrative practices.⁵ We shall attempt later in our opinion to explain the history of the "local control/state control via mandates" issue from an examination of the legislative actions over the years.⁶

Facts

The site at issue is located in the A and C zones in Allegany County. In those zones planned unit developments, such as that in the case at bar, are permitted as special exceptions to the provisions of the zoning code. The site had been expressly designated for urban development as far back as 1995 and that designation continued through the 2002 version of the County Comprehensive Plan. The site was not included under the County's master plans as a "sensitive area." There is nothing we have found in the record of this case indicating that the Maryland Department of State Planning prior to this action ever objected to the inclusion of this site as suitable for urban development in the County's Master Plans.

Prior to the application at issue here, the Allegany Planning Commission had visited the site and determined that the proposed development then contemplated, that later was the subject of the application and of the grant of the special exception at issue, was consistent with the Comprehensive Plan.

In August 2005, Terrapin Run, LLC ("respondent") applied to the Board of Appeals of Allegany County (the "Board") for a special exception provided for in the local zoning code to establish a planned residential development (the "development"). The development was to be located on 935 acres of land, primarily zoned as District "A" (Agricultural, Forestry and Mining), with a portion of the tract located in District "C" (Conservation). The 935-acre tract of land abuts Route 40 and Shipley Road on the east side, and Green Ridge Road on the west. Green Ridge State Forest is located to the east of the tract, and there are also forested lands south of the tract.⁷ The development would consist of 4,300 residential units, an equestrian center, a community building and a 125,000 square foot shopping center. Additionally, the development would require a sewage treatment plant, to be located along Route 40. The Board noted that the project would take twenty years to complete and during that time, 150 to 200 separate permits and approvals would be required for its completion.

As relevant to the case at bar, after eight sessions in which the Board heard from 11 experts (nine for the applicants and two for the protestants), and received more than 80 exhibits, the Board, in a lengthy finding of facts, found that the proposed development would be in harmony with the Allegany County Comprehensive Plan, 2002 Update (the "Plan"). The Board opined that the Plan was advisory in nature, rather than regulatory, and that strict conformance with the plan was not required. Included in its findings were the following "conclusions," as stated in Respondent's brief to the Court of Special Appeals:⁸

"• There is a specific statement in the Allegany County Plan stating that it is the function of the Plan to serve as a guide;

• It is commonly understood that Master Plans are guides in the development process, which guidelines are mandatory only if an Ordinance so provides;

• The Allegany County Ordinance contains no requirement of strict adherence to the Plan and affords it no regulatory authority;

...

• That conformity to the Plan is not required; and

• That the proper issue to be decided by the Zoning Board is `whether the use in the particular case is in harmony with the general purpose and intent of the Plan'." (Internal citations omitted.)

Consistent with Article 66B's requirement that if some jurisdiction desires to exercise zoning power, it must first develop a Master or other Comprehensive Plan, Allegany County, as we have indicated, had adopted such a Plan. Included in that Plan at the relevant time were the "vision" statements which were required to be included. Additionally, the Plan included a sensitive areas compilation as required by Article 66B. As previously indicated, the subject site was not included as a sensitive area in the Comprehensive Plan and was indicated for future Urban Development.⁹ The Plan describes that its purpose or intent is as a "guide" in respect to the issue of land use. The Maryland Department of Planning¹⁰ was privy to the County's actions in adopting its Master Plan and there is nothing in the record before us to which our attention has been directed indicating that the Department made any objection at the time in respect to the inclusion of the subject site as an area for urban development.

The request for a special exception was eventually approved by the Board using the traditional "in harmony with" standard. Petitioners objected to the "in harmony" standard set forth by the Board of Appeals, and appealed to the Circuit Court for Allegany County. They contended that the Board erred as a matter of law in granting a special exception where there was no finding that the proposed use "conformed" to the Plan. At the Circuit Court, petitioners primarily relied on the definition of a special exception as set forth in the Maryland Code (1957, 2003 Repl.Vol.), Article 66, § l(k), which now states:

"`Special exception' means a grant of a specific use that would not be appropriate generally or without restriction and shall be based upon a finding that certain conditions governing special exceptions as detailed in the zoning ordinance exist, that the use conforms to the plan and is compatible with the existing neighborhood."

Petitioners relied on the definition of "Plan" as set forth in Article 66, § 1(h), which states:

"(1) `Plan' means the policies, statements, goals, and interrelated plans for private and public land use, transportation, and community facilities documented in texts and maps which constitute the guide for the area's future development.

"(2) `Plan' includes a general plan, master plan, comprehensive plan, or community plan...."

On May 5, 2006, the Circuit Court issued a judgment and opinion remanding the case to the Board with directions that it determine whether the proposed use was "consistent with" the policies and recommendations of the Plan. In arriving at that standard, it referred to the Allegany County Zoning Ordinance, which at one point had stated as part of its legislative purpose: "[T]o ensure that these uses are consistent with the policies and recommendations of the Allegany County Comprehensive Plan...." (Emphasis added.)

Petitioners appealed the decision of the Circuit Court to the Court of Special Appeals, asserting that the proper standard is conformance, rather than harmony (or consistency). Respondents cross-appealed, arguing that the standard of harmony set forth by the Board was correct, and that the Board's decision should be affirmed for the reasons it had given. The Court of Special Appeals filed its decision on April 6, 2007, reversing the judgment of the Circuit Court, and affirming the decision of the Board. Relying in part on Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319(1981),¹¹ and Richmarr Holly Hills Inc. v. American PCS, L.P., 117 Md.App. 607, 701 A.2d 879 (1997). Judge Eyler, James R., in an excellent opinion for that Court, held in relevant part:

"It is beyond question that different words or phrases may connote different meanings. On the other hand, words have synonyms, and they must be viewed in context to determine if the choice of a particular...