Wesley Chapel Bluemount Ass'n v. Baltimore County, 90

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before BELL; WILNER; Dissenting opinion by ELDRIDGE; ELDRIDGE
Citation347 Md. 125,699 A.2d 434
Docket NumberNo. 90,90
Decision Date01 September 1996

Page 125

347 Md. 125
699 A.2d 434
No. 90, Sept. Term, 1996.
Court of Appeals of Maryland.
Sept. 5, 1997.

[699 A.2d 435]

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J. Carroll Holzer (Holzer and Lee, on the brief), Towson, for Petitioner.

Douglas N. Silber, Assistant County Attorney (Virginia W. Barnhart, County Attorney, on brief), Towson, for Respondent.

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James J. Doyle, Jr., Mary R. Craig (Doyle & Craig, P.A., all on brief), Baltimore, for amicus curiae, Maryland, Delaware, D.C. Press Association.


WILNER, Judge.

The question before us in this appeal is whether the Baltimore County Board of Appeals was required by the State Open Meetings Act to deliberate in open session when considering an appeal from a hearing officer's approval of a development plan. An ancillary question, which the record does not permit us to resolve, is whether, upon a finding by the Circuit Court for Baltimore County that the board was so required and violated the law in not conducting its deliberation openly, the court was justified in requiring the county to pay 65% of the attorney's fees incurred by the persons challenging the board's action. We shall hold that the State Open Meetings Act applies to the consideration of development plans and thus required the board to deliberate in open session, and we shall therefore reverse a contrary judgment of the Court of Special Appeals. Because the circuit court omitted to make certain findings, however, the case will have to be remanded for further proceedings in that court with respect to whether (1) the violation justifies vacating the board's order, and (2) it justifies the award of attorney's fees.

This case is governed by four sections of the State Open Meetings Act, codified as Maryland Code (1995 Repl.Vol.), §§ 10-501 through 10-512 of the State Government Article. Section 10-501 recites the legislative policy behind the Act. It begins by declaring essential to the maintenance of a democratic society that, except in special and appropriate circumstances, public business be performed in an open and public manner and that citizens be allowed to observe the performance of public officials and the deliberations that go into the making of public policy. It then expresses the truism that the

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ability of the public to attend and report on meetings of public bodies and to witness their deliberations ensures the accountability of government and increases the faith of the public in government. That legislative policy undergirds and pervades the Act and necessarily sets the general direction for its interpretation.

Section 10-505 states, simply and directly, that, except as otherwise provided in the Act, "a public body shall meet in open session." Two sections of the Act provide "otherwise." Section 10-508(a) lists 14 circumstances in which a public body may meet in closed session; none of them apply in this case. Section 10-503, which defines the "scope" of the Act, provides, in subsection (a), that the Act does not apply when the public body is carrying out an executive, judicial, or quasi-judicial function or to a chance encounter, social gathering, or other occasion that is not intended to circumvent the Act. Section 10-503(b), however, states that the Act does apply to a public body when it is meeting to consider "(1) granting a license or permit; or (2) a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or [699 A.2d 436] regulation, or any other zoning matter." The first, and principal, issue before us is whether consideration of a development plan constitutes "any other zoning matter" and thus falls within the ambit of subsection (b)(2). 1

That issue, and the ancillary one regarding the assessment of counsel fees, also invoke § 10-510, which provides for enforcement of the Act. Section 10-510(b) allows a person adversely affected by an alleged violation of the Act to file a petition in the circuit court to determine the applicability of the Act, to require the public body to comply with the Act, and to void an action of the public body taken in violation of the Act. Section 10-510(d) permits the court to issue an injunction and determine the applicability of the Act but allows it to void

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the action complained of only if it finds that the public body "willfully failed to comply" with the Act and that no other remedy is adequate. § 10-503(d)(4). As part of its judgment, whatever it may be, the court is permitted under § 10-510(d)(5) to assess against any party reasonable counsel fees and other litigation expenses that the party who prevails in the action incurred and to require a reasonable bond to ensure payment of the assessment. Section 10-510(d)(5) does not, on its face, require a finding of willfulness as a precondition to the assessment of counsel fees and litigation expenses.

Governmental control over land development is effected principally in three ways--through the adoption of (1) master plans delineating the desired uses for all land within the planning area, both for development and for roads, parks, schools, and other public purposes, (2) zoning regulations designed to implement the master plans by placing legal restrictions on the use of the land by non-governmental persons and entities, and (3) subdivision and other development regulations designed to ensure that private development of the land is consistent with the applicable master plan and zoning regulations. Although each of these devices has an independent purpose and may be subjected to a separate development and approval procedure, their functions, to some extent, coalesce, in that they are all designed to assure that land development occurs in a manner that is consistent with overall legislative policy and community welfare. Thus it is that zoning decisions take into account the provisions of the applicable master plan and subdivision and development approvals take into account compliance with applicable zoning regulations. See Board of County Comm'rs v. Gaster, 285 Md. 233, 401 A.2d 666 (1979).

These devices are provided for by both State and Baltimore County law. Maryland Code (1957, 1995 Repl.Vol.), Article 66B, §§ 3.01 through 3.09 authorize the non-chartered counties to create and appoint planning commissions to develop, for consideration by the county legislative body, a plan to "serve

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as a guide to public and private actions and decisions to insure the development of public and private property in appropriate relationships ...." § 3.05(a). 2 That same authority is granted to Baltimore County by §§ 522, 522.1, and 523 of the County Charter which, respectively, create a planning board and provide for the development of a master plan, for submission to the County Council, setting forth "comprehensive objectives, policies and standards to serve as a guide for the development of the county." § 523(a). Further implementation of the planning function is provided for in § 26-81 of the County Code, which directs the county planning board to prepare a master plan for the physical development of the county and specifies the matters that may be included in the plan.

Sections 4.01 through 4.09 of Article 66B empower the non-chartered counties to develop and, by ordinance, adopt zoning regulations that, among other things, may establish zoning districts and regulate the use of land and structures within those districts. See § 4.02. Section 4.03 requires that the zoning regulations "shall be made in accordance [699 A.2d 437] with the plan." That general authority is granted to chartered counties by the Express Powers Act (Maryland Code (1957, 1996 Repl.Vol.), § 5(X) of Article 25A). It is implemented in Baltimore County by §§ 522 through 524 of the county charter, which provide for an office of planning and zoning, a director of that office, and zoning commissioners, and by §§ 26-116 through 26-135 of the County Code, which, among other things, provide for zoning districts and for the development and adoption of zoning regulations and maps.

Sections 5.01 through 5.08 of Article 66B, and, in particular, §§ 5.03 and 5.04, provide for the adoption of subdivision regulations by the non-chartered counties and, upon the adoption of those regulations, for the approval of subdivision plats by the planning commission before the plats may be recorded. Similar authority is granted to Baltimore County by

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§ 522.1(a)(3) of the County Charter and is implemented by §§ 26-166 through 26-283 of the County Code. Sections 26-166 and 26-167 set forth the purpose and functions of the development regulations; both sections make clear that development must conform to the master plan.

This case involves the third of the three devices--the approval of a development, or subdivision, plan. 3 It had its origin in a "concept plan" filed by Gaylord Brooks Realty Company (Gaylord) in June, 1993. In that concept plan, Gaylord proposed to build 34 single-family dwellings on 172.7 acres of land in northern Baltimore County. Nearly all of that land was zoned RC-4, a resource conservation zone designated for watershed protection. No change in that zoning was requested. The property was completely wooded and had streams and wetlands running through it. Gaylord proposed to cluster the development by building the homes on 51 acres, comprising 30% of the tract, and leaving the remaining 120 acres--70% of the tract--as a conservancy area.

The procedure for reviewing and approving development plans in Baltimore County is set forth in §§ 26-201 through 26-283 of the Baltimore County Code. As a first step, before preparing the concept plan, the applicant is urged to meet privately with county agencies to obtain information about their policies and standards that might affect the property and with...

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