from the Circuit Court for Frederick County. Theresa M.
BY: Michele Rosenfeld of Potomac, MD. FOR APPELLANT
BY: Kathy L. Mitchell (John S. Mathias, County Attorney of
Frederick, MD) See Lee-Cho (Miller, Miller & Canby, Chtd. of
Rockville, MD.) all on the briefs. FOR APPELLEE
BEFORE: Woodward, Leahy, Reed, JJ. Opinion by Reed, J.
Md.App. 539] Reed, J.
appeal arises from an order of the Circuit Court for
Frederick County affirming an administrative decision made by
appellee, the Frederick County Board of Appeals (the "
Board" ). Appellants, the Sugarloaf Citizens'
Association, Inc., Montgomery Countryside Alliance, Inc.,
Christopher and Sandra Sappe, and Gary Noubarian, seek our
review of that Board decision, in which it declined to review
appellants' administrative appeal on jurisdictional
raise two questions for our consideration. We rephrase those
or clarity and reorder them as follows:
I. Whether the Board erred where it declined to review the
Frederick County Health Department's determination of
" septic system adequacy" on the grounds it lacked
II. Whether the Board erred where it determined the site plan
as amended was not subject to Frederick County's current
site plan review criteria.
answer these questions in the negative. Accordingly, we
affirm the judgment of the circuit court and shall explain.
and Procedural Background
dispute arises out of the ongoing efforts of appellee, the
Global Mission Church of Greater Washington (" GMC"
), to build a 138,027 square foot place of worship in
Frederick County, Maryland.
Md.App. 540] These efforts began in 2009 when GMC submitted
Site Development Plan SP 92-37 (" SP 92-37" ) for
consideration by the Frederick County Planning Commission
(the " Commission" or " Planning
Commission" ). SP 92-37 described GMC's plan to
build a large-scale place of worship, which would include the
sanctuary itself, dining and kitchen facilities, offices,
meeting rooms, and a multi-purpose hall. The plan also
included the installation of a septic tank with a total
loading capacity of 4,999 gallons per day.
held several meetings with both Commission staff and
Frederick County staff during the first half of 2009. As the
site plan made its way through the review process, two
significant issues arose--the adequacy of the septic system
and the need for a secondary emergency access to the
property. Despite these two issues, SP 92-37 was brought
before the Commission for consideration, and public hearings
regarding the site plan were held on July 8 and July 15,
Commission staff report recommended the conditional approval
of SP 92-37. This approval was drawn from the recommendations
of the Engineering, Planning, and Life Safety Sections of the
Frederick County Planning Department, as well as the
Frederick County Health Department. The Health Department
recommended approval of the site plan after a series of
negotiations between GMC and the Department regarding
proposed water and septic facilities.
July 15, 2009 hearing turned out to be a watershed moment in
the life of SP 92-37. The Commission heard from GMC, county
staff, and individual citizens and citizen groups with regard
to the site plan. The septic system emerged as a significant
concern for the Commission, and it granted a ninety-day
continuance in the proceedings in order to give GMC and
County staff an opportunity to address the septic system and
other issues raised during the hearing.
that ninety-day period, the County sought additional
information from GMC regarding the issues raised at the July
15, 2009 hearing, which GMC provided
on September 14, 2009. After that, no additional information
was requested and no [227 Md.App. 541] further meetings were
scheduled. Rather, another public hearing was scheduled for
October 14, 2009.
before the scheduled hearing, Commission staff released
another Staff Report, in which it changed positions and
recommended denial of SP 92-37. This new recommendation was
based on a review by the Health Department and the Life
Safety Section of the new information GMC submitted. The
Health Department was concerned that the proposed building
capacity would lead to an average septic discharge that would
exceed the septic system's loading capacity. The County
Life Safety Section determined the proposed building's
occupant capacity would be four times the number it
originally anticipated, and, accordingly, it determined the
site plan would need a secondary emergency access road.
new recommendation created an additional hurdle for GMC. In
an effort to avoid denial of its proposed site plan, GMC
sought to hold additional discussions with County staff
regarding the revised recommendation. GMC was able to meet
only with the Health Department before the hearing, where a
Department staff member suggested GMC seek a continuance. Two
days before the hearing, on October 12, 2009, GMC requested a
continuance, and again, at the October 14 hearing, it
reiterated that request before the full Commission. Despite
the multiple requests, the Commission denied a continuance
and proceeded with the hearing. The Commission heard
testimony and received evidence from GMC and the public. Many
members of the public objected to the site plan, citing the
potential negative impact of the project on the area's
rural and scenic nature, as well as environmental concerns.
Notwithstanding GMC's proffered concessions to address
these concerns, the Commission denied SP 92-37 on the
[227 Md.App. 542] basis of the revised Staff Report, the lack
of adequate septic capacity, and GMC's failure to provide
for a secondary access road.
sought review of the Commission's denial from the County
Board of Appeals. The Board held a hearing on January 20,
2010, in which it decided to proceed with a de novo
review, and heard a significant amount of testimony for and
against SP 92-37. The Board issued its decision on March 25,
2010, in which it vacated and remanded the decision of the
Commission. The Board explained that the Commission had
denied GMC due process because GMC was not afforded a "
meaningful and adequate opportunity" to address the
concerns of the Health Department and the County with regard
to the septic system and secondary access road, respectively.
particular significance to the present appeal, the
Board's opinion resolved a jurisdictional issue that
arises in this case. The Board explained that the Maryland
Department of the Environment (" MDE" ), acting via
the Health Department, possesses the sole authority to
certify or approve proposed septic systems. According to the
Frederick County Code, before the Commission can approve a
proposed site plan, the Health Department must approve the
site plan's proposed water and sewer facilities.
See Frederick County Code of Ordinances ("
F.C.C." ) § 1-19-3.300.4 (2014). Accordingly,
[227 Md.App. 543] without MDE's approval of the proposed
septic system, the Board determined the Commission lacked the
authority to consider SP 92-37 at that time and should have
granted GMC's request for a continuance.
the Frederick County Board of County Commissioners (the
" County Commissioners" ), were aggrieved by the
Board's March 25, 2010, decision and sought judicial
review from the circuit court. The County Commissioners, in
their petition, claimed the Board's decision was
erroneous because it considered evidence outside the record,
and acted in excess of its powers by remanding the site plan
application to the Planning Commission. The circuit court
agreed with the Board that GMC was denied due process and the
reasonable opportunity to obtain the Health Department's
approval for its septic system, and, accordingly, affirmed
the Board's decision.
this new opportunity in hand, GMC proceeded to revise SP
92-37 to address the concerns raised about the site plan,
including those concerns regarding the septic system and the
secondary access road. GMC submitted a revised version of SP
92-37 in July 2012, and the site plan once again went
before the Planning Commission at a November 14, 2012
hearing was attended by both County staff and the appellants,
where appellants registered their opposition to the site
plan. County staff recommended approval, however, because it
determined the site plan was in compliance with all [227
Md.App. 544] applicable county regulations and the Health
Department concluded that the septic system was of adequate