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Tomlinson v. BKL York, LLC

Court of Special Appeals of Maryland

October 7, 2014

LISA TOMLINSON, ET AL.
v.
BKL YORK, LLC, ET AL

Argued by: J. Carroll Holzer (Holzer & Lee, PA on the brief) all of Towson, MD for Appellant.

Argued by: Jason R. Vettori (Smith, Gildea & Schmidt, LLC on the brief) all of Towson, MD for Appellee.

Woodward, Wright, Berger, JJ.

OPINION

Page 540

[219 Md.App. 609] Wright, J.

On September 13, 2013, the Circuit Court for Baltimore County issued a memorandum opinion and order affirming the decision of the Baltimore County Board of Appeals (" Board of Appeals" ), which affirmed the decision of the Office of Administrative Hearings of Baltimore County (" OAH" ), which ruled that appellees, BKL York I LLC, BKL York III LLC, Logwood LLC, Wawa Inc., and Monterey Improvement Association (collectively, " Developers" ), were not required to obtain a County Council Resolution (" Resolution" ) authorizing the amendment of their Planned Unit Development (" PUD" ) plan. On September 30, 2013, appellants, Lisa Tomlinson and Douglas Miller (collectively, " appellants" ), timely noted this appeal, asking us to determine whether Developers were required to seek a Resolution by the County Council authorizing the material amendment of the commercial PUD plan.

For the reasons that follow, we affirm the circuit court's judgment and the OAH's decision.

Facts

This appeal concerns 10111 York Road, a vacant lot located at the northeast corner of York Road and Halesworth Road in Cockeysville, Baltimore County, Maryland. At one point, this lot was zoned as " BR-IM" [1] and was improved with [219 Md.App. 610] a Shell

Page 541

Oil service station. In 1989, Shell Oil sought a special exception[2] to its zoning designation to add a food mart to the service station. On October 16, 1989, the Zoning Commissioner for Baltimore County (" Zoning Commissioner" ) approved the special exception, allowing a food mart to be used with the then-existing service station.

Almost two decades later, the lot was purchased, and the fuel service station was razed in 2008 so that the purchaser could install a car dealership. On March 12, 2007, the Zoning Commissioner terminated the special exception, provided that the change would not occur until the Department of Permits and Development Management issued a permit granting a change in use for the property.

The lot is now a part of Anderson Hunt Valley, an automotive dealership that is located on the Anderson GM PUD (" GM PUD" ). Developers now seek to amend the GM PUD to repurpose part of the site as a Wawa convenience store and gas station. All parties agree that this is a material amendment to the GM PUD.

I. History of the GM PUD

Originally, the GM PUD consisted of two separate PUDs. The first piece of the GM PUD was approved by a Hearing [219 Md.App. 611] Officer on October 31, 2003, for the purpose of developing 10125 York Road into an automotive showroom and demonstration area for Hummer vehicles (" Hummer PUD" ). The Hummer PUD was approved pursuant to Bill No. 47-1994 as PUD-C No. VII-796.[3] The second piece of the GM PUD was originally approved for development of 10111 York Road as a Honda dealership (" Honda PUD" ). A Hearing Officer approved the Honda PUD as PUD-C No. VIII-848, pursuant to Bill Nos. 19-2004 and 130-2005 on February 20, 2007.[4] The lot that is the subject of this appeal is located within the original Honda PUD.

A. Combination and Consolidation of the Hummer PUD and Honda PUD and its First Amendment

After a downturn in the economy, Anderson Automotive sought to swap the

Page 542

locations of its GM dealership (located north of the Hummer PUD and Honda PUD) and Honda dealerships, and close its Hummer dealership because of a decrease in sales of certain automotive models. Part of the planned changes included a new addition to the dealership's Hummer showroom, which would extend from the Hummer PUD into the Honda PUD. A portion of the Honda PUD would be reserved for " future development." Anderson Automotive wanted to amend the Hummer PUD and Honda PUD to reflect these plans.

Developers submitted these changes as a " refinement," or a non-material amendment, to the Hummer PUD and Honda [219 Md.App. 612] PUD. The Director of Planning Development Management approved Anderson Automotive's request on May 22, 2009. Eric Rockel (" Rockel" ), President of the Greater Timonium Coordinating Council, appealed the Director's decision to the Board of Appeals, challenging whether the refinement should be classified as a material amendment (and thus, subject to the procedure for material amendments). People's Counsel for Baltimore County intervened in the dispute.

Following People's Counsel's intervention, Developers, Rockel, and People's Counsel held informal discussions to resolve the dispute. As a result of the discussions, Developers agreed to re-term the refinement as a material amendment. The parties also agreed that Developers would file a Petition for Special Hearing regarding the amendment of both the Hummer PUD and Honda PUD.[5]

As a part of the now-material amendment, Developers wanted to combine and consolidate the Hummer PUD and Honda PUD. In order to pass the amendment, a Development Plan Conference and a joint Zoning Commissioner's Hearing/Hearing Officer's Hearing was held pursuant to the Petition for Special Hearing. The order granting the consolidation of (and first amendment to) the Hummer PUD and Honda PUD was issued on January 29, 2010.[6]

B. The Second Amendment to the GM PUD

Developers sought a second amendment to the GM PUD to place a Wawa convenience store and gas station at 10111 York Road. Developers and various Baltimore County agencies held a Development Plan Conference on January 25, 2012, to discuss the proposed amendment. Although a Development Plan Conference was held, there was no Community Input [219 Md.App. 613] Meeting or Concept Plan Conference regarding the second amendment. Additionally, Developers did not seek a Resolution to authorize the second amendment. Developers, instead, petitioned for a special hearing regarding the amendment, just as they did with the first amendment. Developers' failure to seek a Resolution authorizing the second amendment to the GM PUD forms the basis of the present dispute.

I. Administrative Appeal and Circuit Court Review

Appellees first submitted this matter to the OAH for review. After two days of proceedings on February 17 and April 10, 2012, an ALJ ...


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