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Sugarloaf Citizens Ass'n v. Frederick County Bd. of Appeals

Court of Special Appeals of Maryland

April 26, 2016


         Appeal from the Circuit Court for Frederick County. Theresa M. Adams, JUDGE.

         ARGUED BY: Michele Rosenfeld of Potomac, MD. FOR APPELLANT

         ARGUED 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

         ARGUED BEFORE: Woodward, Leahy, Reed, JJ. Opinion by Reed, J.


Page 510

         [227 Md.App. 539] Reed, J.

         This 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 grounds.

         Appellants raise two questions for our consideration. We rephrase those questions

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or clarity and reorder them as follows:[1]

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 jurisdiction;
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.

         We answer these questions in the negative. Accordingly, we affirm the judgment of the circuit court and shall explain.

         Factual and Procedural Background

         This 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.

          [227 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.

         GMC 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, 2009.

         A 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.

         The 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.

         During that ninety-day period, the County sought additional information from GMC regarding the issues raised at the July 15, 2009 hearing, which GMC provided

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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.

         A week 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.

         This 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,[2] 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.

         GMC 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.

         Of 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

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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).[3] 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.

         Appellees, 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.

         With 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,[4] and the site plan once again went before the Planning Commission at a November 14, 2012 hearing.

         This 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 ...

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