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Arking v. Montgomery County Planning Board

Court of Special Appeals of Maryland

November 20, 2013


Woodward, Graeff, Kenney, James A., III (Retired, Specially Assigned), JJ.


Woodward, J.

The instant administrative appeal comes before this Court following the decision of the Montgomery County Planning Board ("the Board"), appellee, to approve a preliminary plan for resubdivision of property on Gainsborough Road over the objection of Albert Arking and other homeowners in the existing neighborhood, appellants. Following a public hearing at which both Board staff and appellants presented arguments for and against approval of the plan, the Board issued a written Resolution approving the plan, finding that, in accordance with § 50-29(b)(2) of the Montgomery County Code, the resulting lots would be of the same character as those within the existing neighborhood. After appellants exercised their right to judicial review, the Circuit Court for Montgomery County denied both appellants' petition for judicial review and appellants' motion to supplement the administrative record, and affirmed the Board's approval of the plan of resubdivision.

On appeal to this Court, appellants present four questions for our review, which we have combined into two:

1. Did the circuit court err in denying appellants' Motion to Supplement the Administrative Record?
2. Did the Board err in concluding that the resubdivision proposed in the resubdivision plan complied with Montgomery County Code § 50-29(b)(2)?

Finding no error, we affirm the judgment of the circuit court.


On January 6, 2011, Joav Steinbach, [1] on behalf of the Tamara Corporation ("Tamara"), submitted to the Board Preliminary Plan No. 120110110 for resubdivision of a lot located on Gainsborough Road between Seven Locks Road and Fontaine Street in Montgomery County ("the Plan"). In the Plan, Tamara sought approval for the resubdivision of the then-undeveloped Lot 17, Block B of the Willerburn Acres Subdivision, containing 1.01 acres, into two lots of roughly equal size, known as "Lot 60" and "Lot 61, " in order to build two separate single-family houses.

On March 25, 2011, appellants submitted a letter opposing the resubdivision to the Board. After reviewing the Plan, staff members of the Board ("Staff") submitted to the Board on April 22, 2011, a detailed memorandum report reviewing and recommending approval of the Plan.

On May 5, 2011, the Board held a public hearing on the Plan. At the hearing, both Staff and representatives of Tamara presented evidence in support of the approval of the Plan. Appellants offered their own testimony and evidence in opposition to the Plan. At the close of the hearing, the Board voted 3-0 in favor of approving the Plan.[2]

Following the hearing, on May 19, 2011, appellants submitted a Petition for Reconsideration by letter to the Board.[3] The letter voiced appellants' disapproval of the Board's May 5 decision and also included supplemental materials from other resubdivision plans considered previously by the Board. The Board denied appellants' petition. On May 25, 2011, the Board issued its final Resolution, in which the Board stated in writing its approval of the Plan and explained the reasoning for its decision. In its Resolution, the Board found, in pertinent part:

In accordance with Section 50-29(b)(2) of the [Montgomery] County Code, the proposed lots are of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as to other lots within the existing neighborhood (as delineated by Staff in the Staff Report) ("Neighborhood") . . . .

The Resolution concluded by informing all parties that they had thirty days in which to file a petition for judicial review.

On June 21, 2011, appellants filed a petition for judicial review in the circuit court. On July 22, 2011, appellants moved to stay the Board's decision pending judicial review, but the court denied their request on September 13, 2011, following a hearing held on the same day. On September 21, 2011, appellants filed a memorandum of law, along with several attachments, in support of their petition for judicial review.

On October 27, 2011, the Board filed a memorandum in response to appellants' memorandum. Also on October 27, the Board filed a motion to strike, asserting that appellants provided numerous materials to the circuit court, "contrary to the Maryland Rules of Procedure, " that were not before the Board at the time it approved the Plan. On November 10, 2011, appellants filed an opposition to the motion to strike and a Motion to Supplement the Administrative Record, in the latter of which they sought to include in the administrative record materials that they submitted to the Board with their May 19 Petition for Reconsideration. The Board opposed the motion to supplement, arguing that the materials were not provided to the Board prior to its May 5 decision and, therefore, could not have been a basis for that decision.

At a hearing on December 1, 2011, the circuit court heard argument from the parties on the Board's motion to strike, appellants' motion to supplement, and appellants' petition for judicial review. The court, after reviewing the parties' written memoranda of law and hearing their arguments, denied all of the motions[4] and affirmed the Board's approval of the Plan.

Appellants timely filed a notice of appeal. Additional facts will be set forth below as necessary to resolve the questions presented.



Supplementing the Agency Record

Appellants contend that the circuit court erred in denying their Motion to Supplement the Record. Specifically, appellants assert that the court improperly denied their request "to add to the Administrative Record the homeowners' May 19 letter and the Staff reports pertaining to previous resubdivision plans." In support of this argument, appellants claim that they properly submitted the materials to the Board pursuant to its Rules of Procedure. As a result of the court's refusal to supplement the record, appellants conclude that "the [circuit] Court was unable to judge if the Board's judgment was reasonably based on proven facts."

The Board responds that "[m]aterials submitted to the [] Board after that agency's decision should not be considered by this Court in reviewing that decision." Pursuant to the Board's Rules of Procedure, the Board argues, "the record of a proceeding is closed when the [] Board votes." Therefore, the Board concludes, "[i]f this Court were to consider supplemental materials on which the [] Board did not rely, the Court could not determine whether the [] Board's decision was a reasonable conclusion based upon the facts in the record."

Appellants' issue asks this Court to decide whether the circuit court, not the Board, erred by denying their motion to supplement the agency record before the circuit court. In judicial review of administrative proceedings, "[a]dditional evidence in support of or against the agency's decision is not allowed unless permitted by law." Md. Rule 7-208(d) (emphasis added). It is clear in the instant case that supplementing an administrative record is not permitted by law. Pursuant to the Maryland Administrative Procedure Act, Md. Code (1984, 2009 Repl. Vol.), § 10-222 of the State Government Article ("SG"), a reviewing court may only

(1) remand the case for further proceedings;
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a ...

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