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Cleanwater Linganore, Inc. v. Frederick County

Court of Special Appeals of Maryland

December 28, 2016

CLEANWATER LINGANORE, INC., ET AL.
v.
FREDERICK COUNTY, MARYLAND, ET AL.

          Meredith, Nazarian, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Harrell, J.

         How many angels can dance on the head of a pin? This ancient metaphor, conceived originally as a mock example used to discredit medieval scholastic philosophy, but deployed here with non-satirical intent, is an apt segue into this opinion. Based on the parties' positions regarding the flagship question in the present case, we imagine the answer Appellants would give to the philosophical query would be "one, " while Appellees would respond likely with "a lot more than that."

         Appellees, Eugene B. Casey Foundation (Casey) and Frederick County, Maryland (the County), entered into a Development Rights and Responsibilities Agreement (DRRA) in October 2014, following its approval by the Board of County Commissioners for Frederick County (BOCC), to facilitate the development of Casey's 634 acre property in Frederick County. Concurrent with the approval and execution of the DRRA, the BOCC approved Casey's rezoning application, changing the zoning of the property from agricultural to planned unit development (PUD).

         Appellants, led by Cleanwater Linganore, Inc. (CLI), [1] appeal these BOCC actions. CLI argues first that the DRRA includes unlawfully broad language that purports to "freeze" local laws beyond those authorized by Md. Code, Land Use Art. (LU), § 7-304 (2012, 2016 Supp.), which describes the field as "the local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to an agreement." Second, CLI contends that the BOCC approved erroneously Casey's rezoning application because it failed to make certain of the supporting factual findings required for the PUD zone by the Frederick County Code (FCC). We conclude that the General Assembly intended a broader interpretation of the DRRA Act's "freeze" provision than CLI imagines and that the BOCC made all required factual findings to justify granting the rezoning. Accordingly, we hold that the BOCC's approval, and the County's execution, of the DRRA, and the BOCC's grant of the rezoning, are supported by substantial evidence and free of legal error.

         Facts and Legal Proceedings[2]

         The Casey property consists of 634 acres located in Frederick County's New Market Planning Region (NMPR). From 1972 to 2008, the property was zoned for Planned Unit Development (PUD), designated for low density residential (LDR) development, and located in a community growth area (CGA). In 2008, the then-members of the BOCC downzoned much of the NMPR, including the Casey property, to the Agricultural Zoning District. Additionally, it removed the Casey property's CGA status as well as its recommended LDR designation on the County's Comprehensive Plan Land Use Map, replacing the latter with a designation for agricultural land use.

         In 2012, as a part of a Comprehensive Planning and Zoning Review, a newly-constituted BOCC restored the Casey property's CGA status and amended the Land Use Map to reinstate its recommended LDR designation. Because a PUD is a floating zone for which no individual rezoning application had been filed or prosecuted yet to the degree required by the zoning ordinance, the BOCC could not approve at that time Casey's desired rezoning during its Comprehensive Plan and rezoning process. Accordingly, Casey submitted a piecemeal rezoning application for the PUD zone, pursuant to FCC §§ 1-19-3.110, Zoning Map Amendments, and 1-19-10.500, Planned Development Districts.

         The County Planning Commission reviewed Casey's rezoning application and recommended approval to the BOCC. The BOCC considered the application at a public hearing on 15 July 2014. The Planning Staff Report (Staff Report) opined that, in the staff's view, the application conformed to all applicable legal standards. Casey presented several expert witnesses who testified to the rezoning application's consistency with the Staff Report and the Comprehensive Plan. During the hearing, Appellants' counsel argued that the rezoning application relied on land use maps adopted improperly and that the BOCC failed to contemplate adequately population projections. The BOCC rejected these arguments and approved the rezoning by Ordinance No. 14-20-675 on 23 October 2014.

         As a companion matter, Casey petitioned the BOCC, anticipating hoped-for favorable action on its rezoning application, for the negotiation of a DRRA between itself and Frederick County. DRRAs generally are bargained-for agreements between property owners/developers and local jurisdictions that, among other things, provide for "freezing, " as of the date of the agreement, the application of certain extant local laws and regulations during a fixed period of time coinciding typically with the estimated build-out of the proposed development, as long as the period does not exceed the statutory "cap."[3]Obtaining forbearance of the application of subsequent changes in relevant local laws provides certainty and stability to developers, whose projects may take many years to complete and/or sell-off or lease. Local governments derive, in return, negotiated greater public benefits than may be attained through typical governmental exactions or conditions of development approvals. To determine whether to approve the Casey-County DRRA, the BOCC held a public hearing on 21 August 2014. Casey presented expert testimony in support of the DRRA. The Board voted to approve of the DRRA, which was executed on 23 October 2014 and recorded in the County land records.

         CLI petitioned the Circuit Court for Frederick County for judicial review of the BOCC's approval, and the County's execution, of the DRRA and the rezoning. Finding both actions legal and supported by substantial evidence in the record, the court affirmed the actions on 9 October 2015.[4] CLI appealed timely to the Court of Special Appeals.

         Questions Presented

         Appellants present essentially two questions for appellate review:[5]

1. Did the Casey DRRA freeze a broader scope of local laws than permitted legally, thereby rendering the BOCC's approval and the County's execution unlawful in whole or in part?
2. Did the BOCC fail to make certain factual findings required to rezone lawfully the Casey property for the PUD zone?

         Standard of Review

         When reviewing the piecemeal zoning decision of a local zoning body, "[o]ur role is 'limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.'" Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 410 Md. 191, 203, 978 A.2d 622, 629 (2009) (quoting United Parcel Serv. v. People's Counsel for Baltimore Cnty., 336 Md. 569, 577, 650 A.2d 226, 230 (1994)).

         "The scope of judicial review of administrative fact-finding is a narrow and highly deferential one." Trinity Assembly of God of Baltimore City, Inc. v. People's Counsel for Baltimore Cnty., 407 Md. 53, 78, 962 A.2d 404, 418 (2008). We do not substitute our judgment for that of the BOCC, but rather, determine whether "'a reasonable mind might accept as adequate' the evidence supporting it." Id. (quoting People's Counsel for Baltimore Cnty. v. Loyola College in Md., 406 Md. 54, 67, 956 A.2d 166, 174 (2008)). "'Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.'" Grasslands Plantation, Inc., 410 Md. at 204, 978 A.2d at 629 (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999)).

         We shall recount at the appropriate point in this opinion the principles governing judicial consideration of statutory interpretation questions.

         Discussion

         CLI mounts several arguments with respect to the DRRA: the statutory interpretation of the DRRA legislation, as applied to the relevant provision in the Agreement in this case, is ripe for appellate review because Frederick County amended several implicated laws since the execution of the DRRA in this case; the freeze provision of the Casey DRRA expands unlawfully the breadth of laws that may be frozen; and, Maryland's DRRA enabling statute does not authorize parties to a DRRA to expand by negotiation the legally permissible scope of laws to be frozen. Regarding the BOCC's rezoning of the Casey property, CLI argues that the BOCC failed to make requisite factual findings regarding design and building siting, compatibility with neighboring land use and plans, and population growth. Appellee Casey answers, regarding the DRRA, that: State and Frederick County laws permit DRRAs to freeze the range of local laws provided in the Casey DRRA; parties to a DRRA may negotiate which local laws governing "use, density, or intensity" will be frozen; and, execution of the DRRA, in light of recent amendments to implicated County laws, does not operate to usurp County police powers as reflected in the amended laws. On the rezoning question, Casey contends that the BOCC made all of the factual findings necessary to rezone the Casey property.

         I. The BOCC approved, and the County executed, the Casey DRRA based on substantial evidence and without legal error.

         A. The statutory interpretation question regarding the DRRA's freeze provision is ripe for judicial review.

         CLI contends that its statutory interpretation contention vis-à-vis the scope of the "freeze" provision of the DRRA is ripe for judicial review because the County amended the substantive requirements, since the execution of the DRRA, of several local laws implicated by the freeze provision in this case.[6]

A controversy is ripe when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. The declaratory judgment process is not available to decide purely theoretical questions or questions that may never arise, or questions which have become moot, or merely abstract questions. Nor should it be employed where a declaration would not serve a useful purpose or terminate a controversy. To address issues which are non-justiciable because they are not ripe would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.

Hickory Point P'ship v. Anne Arundel Cnty., 316 Md. 118, 129-30 (1989) (quotation marks and citations omitted).

         As discussed in greater depth infra, the Casey-County DRRA purported to freeze a variety of specific Frederick County local ordinances or fields of regulation, i.e., laws, rules, regulations, and policies related to "development, subdivision, zoning, comprehensive planning, moderately priced dwelling units, growth management, impact fees, water, sewer, stormwater management, environmental protection, land planning and design, adequate public facilities laws[, ] and architecture." Casey DRRA, Art. VIII § 8.1.B. Because, since the Casey DRRA's execution, the County amended, among other laws, its ordinance regulating developments near waterbodies, CLI argues that its challenge to the scope of the freeze provision is ripe for judicial review:[7]

Frederick County has amended a number of County laws that are directly implicated by the DRRA's freeze provision, including an amendment to the County's Waterbody law limiting imper[v]ious development within the waterbody buffers. . . . [T]he Waterbody amendments would be directly applicable to the impervious structures allowed on the Casey property, which is heavily traversed by waterbodies. Several tributaries to Linganore Creek and Lake Linganore originate or flow through the Casey Property. Lake Linganore provides drinking water to Frederick County and Frederick City Residents.

         FCC § 1-19-9.400, amended in 2015, mandates waterbody buffer requirements for "[a] parcel, lot, or tract of land submitted to Frederick County for subdivision or resubdivision review and approval, " and applies "to applications for subdivision or resubdivision approved after November 10, 2013." The ordinance regulates generally the development activities that may transpire permissibly in proximity to a waterbody, and the amended portion, § 1-19-9.400(D), governs specifically the construction of "buildings, structures, or impervious surfaces" and other "activities requiring clearing or grading over 5, 000 square feet" in waterbody buffers. Home to "stream corridors" and "stream valleys designated as Natural Resources, " Ordinance No. 14-20-675 at 4, 6, the Casey property contains "[s]everal tributaries to Linganore Creek / Lake Linganore [that] originate or flow through the Casey Foundation . . . propert[y]." Envirens Inc., Assessment of Potential Occurrence - Rare, Threatened and Endangered Species 4 (Aug. 20, 2014). The presence of streams and tributaries on the property catalyzes the need for Casey to consider and meet the requirements of FCC § 1-19-9.400 as amended, unless the DRRA in this case "freezes" this area of regulation as of the effective date of the DRRA.

         We agree with CLI that its challenge to the scope of the freeze provision of the Casey DRRA is ripe for review. The amendment of the aforementioned local provision constitutes an accrued state of facts, beyond the theoretical, that bears directly on the justiciable question of whether the DRRA froze properly a wide range of laws, implicating, at a minimum, the ordinance regulating developments near waterbodies that ...


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