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Greater Towson Council of Community Associations v. DMS Development, LLC

Court of Special Appeals of Maryland

November 1, 2017

GREATER TOWSON COUNCIL OF COMMUNITY ASSOCIATIONS
v.
DMS DEVELOPMENT, LLC

         Circuit Court for Baltimore County Case Nos. 03-C-15-011282, 03-C-15-011283

          Berger, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Berger, J.

         This appeal arises from two petitions for judicial review in the Circuit Court for Baltimore County of two zoning decisions of the Board of Appeals ("Board") involving a proposed Planned Unit Development ("101 York PUD" or "the PUD") located in Baltimore County, Maryland. Appellant and cross-appellee, Greater Towson Council of Community Associations ("GTC") -- an "umbrella group" that represents more than 30 neighborhoods in Towson, Maryland -- opposed the approval of the PUD before the Board in one case (the "PUD approval case"), and the County Council's grant of a waiver of local "open space" requirements in the other case (the "open space waiver case"). The Board ruled in favor of the developer of the 101 York PUD, appellee and cross-appellant, DMS Development, LLC ("DMS") in both cases. The cases were consolidated before the circuit court, and DMS moved to dismiss GTC's petition based on its assertion that GTC lacked standing. Multiple parties have been involved at varying points during the ascent to this Court of both cases. Nevertheless, only GTC timely filed and continued to maintain its petitions for judicial review before the circuit court at the decisive point in the proceedings.

         In both appeals from the circuit court affirming the Board's decisions on the merits in both cases, GTC presents several issues for our review. Many aspects of the issues are overlapping as GTC had averred in the PUD approval case that the PUD should not be approved because the open space waiver was not properly granted. We list the issues on the merits of each case in turn. In the open space waiver case, GTC asks us to decide the following questions, which we have reworded as follows:

1. Whether the circuit court erred when it affirmed the ruling of the Board to grant the open space waiver, even though the County's original approval of the waiver was granted by the Deputy Administrative Officer and Director of Permits Approvals and Inspections ("Deputy Director"), rather than the Director of Recreation and Parks.
2. Whether the circuit court erred when it determined that the PUD constituted a "dormitory" and affirmed the Board's decision to approve the open space waiver, which was based on its finding that the PUD was located in a "RAE" district.
3. Whether the circuit court erred when it affirmed the ruling of the Board that the open space waiver fee of "zero" was not appealable.

         In GTC's appeal of the circuit court's affirmance of the Board's decision in the PUD approval case, GTC presents us with the following issues:

1. Whether the Board and the circuit court erred when each ruled that the Administrative Law Judge had no statutory authority to condition approval of the PUD on the payment of an open space waiver fee.
2. Whether the circuit court erred when it found that the Deputy Director's approval of an open space waiver did not render the waiver invalid and, therefore, that the Board erred when it affirmed the Administrative Law Judge's decision to approve the PUD.
3. Whether the circuit court erred when it affirmed the Board's decision affirming the decision of the Administrative Law Judge to approve the PUD, the Board's decision in the open space waiver case to grant the waiver on the basis of the PUD's zoning district, without determining whether the PUD constituted a "dormitory."
4. Whether the circuit court erred when it affirmed the Board's decision to affirm the ruling of the Administrative Law Judge, which found that the zoning density permitted on the property was properly amended by the County Council.

         DMS has noted cross-appeals in both cases, arguing that the GTC does not have standing to maintain an appeal. In that context, DMS presents us with primarily three issues, which we have reworded as follows:

I. Whether the circuit court erred when it denied DMS's motion to dismiss GTC's petition for judicial review of the Board's decision in the open space waiver case based on GTC's lack of standing before the circuit court.
II. Whether the circuit court erred when it denied DMS's motion to dismiss GTC's petition for judicial review of the Board's decision in the PUD approval case based on GTC's lack of standing before the circuit court.
III. Whether the circuit court erred when it granted motions to intervene in the PUD approval case after the limitations period for filing an appeal of the Board's decision had expired, DMS had filed a motion to dismiss GTC's petition for judicial review, and where the intervenors were not parties in the proceedings before the Board.

         Because of the similarity of the standing issues in both cases, and because GTC's standing to appeal the Board's decisions to the circuit court is determinative in both the PUD approval case and the open space waiver case, we have consolidated our opinions in both cases below. In our view, the issues presented by DMS in its cross-appeals are dispositive in both cases. We hold that GTC did not have standing to petition for judicial review of the Board's decisions in either of the two cases, and therefore, the circuit court erred when it denied DMS's motion to dismiss and reached the merits of the case.

         FACTS AND PROCEEDINGS

         DMS is the developer of property which is the subject of a proposed PUD, known as the 101 York PUD. The proposed PUD's location is in the heart of urban Towson, Maryland, just north of the intersection of York Road and Burke Avenue. The PUD will contain a "mixed residential dormitory and commercial project." On July 7, 2014 the Baltimore County Council ("County Council") passed Resolution 40-14, which made the PUD eligible for review by Baltimore County agencies. Pursuant to BCC § 32-6-108(c), new developments are required to provide a certain amount of recreational "open space" depending on the number of residential units. DMS was granted a waiver of the local open space requirement, and the County set the fee to be paid in lieu of meeting the open space requirements at "zero" dollars.

         On October 7, 2013 the PUD application was submitted to the County Council. The Post-Submission Community Input Meeting was held on October 30, 2013. On April 24, the Baltimore County Council resolved Resolution 40-14, which provided that the 101 York PUD was eligible for continued review, pursuant to BCC § 32-4-241 et. seq. The Pre-Concept Meeting was held on July 21, 2014, followed by a Community Input Meeting on September 9, 2014 and two more Community Input Meetings on October 6 and 28 of 2014. A Concept Plan Conference was held on August 8, 2014 and a Development Plan Conference was held on December 10, 2014.

         On January 9, 2015 Arnold Jablon, Deputy Administrative Officer and Director of Permits Approvals and Inspections, recommended that the Council approve DMS's request for a waiver of the local open space requirements. The recommendation was based on several factors including DMS's representation that it was exempt from satisfying the open space requirements because: (1) the "[p]roject is located in a RAE zone or CT district;" and (2) the "[p]roject is… dormitories for the housing of not less than 50 students attending an accredited higher education institution." Additionally, the Department of Recreation and Parks determined that "there is no suitable land to meet the open space requirements" and confirmed that "[t]here is no Master Plan and/or other County plan conflict."[1]

         On December 10, 2014, the Zoning Review Board issued an additional comment to its final recommendations noting,

The dormitory rooms shall be occupied as temporary housing by matriculating Towson University students only. A Special Hearing shall be required prior to any such rooms being rented or otherwise occupied as permanent or temporary housing to non matriculating Towson University Students.

         According to Resolution 63-00, the fee-in-lieu for a local open space waiver for this project was set at "zero" dollars. The Council approved Resolution 40-14 at its July 7, 2014 meeting, which approved the continued review of the proposed PUD. Resolution 40-14 provides the following:

WHEREAS, the site fronts York Road and is zoned B.M. and R.A.E.2, and the PUD proposes the development of a high quality mixed residential dormitory and commercial project containing 611 beds, 495 parking spaces, and approximately 10, 000 square feet of commercial spaces, and provides for two means of access, one via York Road and one via an easement to Burke Avenue which involves access to commercial parking over an adjacent parcel through a residential zone R.A.E.2;
WHEREAS, prior to the submission of its application the developer DMS held extensive community meetings with surrounding homeowners' associations and interested stakeholders, including the Greater Towson Council of Community Associations and the Towson Triangle Committee created by the office of Councilman Marks;
* * *
BE IT RESOLVED BY THE COUNTY COUNCIL OF BALTIMORE COUNTY, MARYLAND that the proposed site for the general development PUD filed by DMS and known as "101 York" is eligible for continued County review in accordance with Section 32-4-241, et seq. of the County Code.
BE IT FURTHER RESOLVED, that due to the public policy and community benefits that stem from the PUD, the County Council approves the proposed density for the proposed PUD to permit a total of 611 dormitory beds on the property, 495 parking spaces, and the inclusion of approximately 10, 000 square feet of commercial space on the site; and
BE IT FURTHER RESOLVED, that the County Council approves the use of two means of access for the PUD, one via York Road and one via an easement to Burke Avenue which involves access to commercial parking over an adjacent parcel through a residential zone (R.A.E.2).

         After the three Community Input Meetings and the County's approval of the PUD, GTC and the American Legion, an adjacent property owner, opposed the approval before the Hearing Examiner, also referred to in the proceedings below as the Administrative Law Judge ("ALJ"). The proceedings before the ALJ on the approval of the PUD began on January 12, 2015. The ALJ approved the PUD on May 12, 2015, subject to certain conditions including that DMS pay a waiver fee of $1, 358, 084.00, rather than the zero dollar waiver fee set by the County Council in Resolution 63-00. GTC appealed the ALJ's approval of the waiver to the Board, and DMS appealed the ALJ's decision to make approval of the PUD subject to the payment of a $1, 358, 084.00 fee.

         On October 5, 2015, the Board affirmed the ALJ's decision to approve the PUD, but reversed the ALJ's decision to make approval subject to the fee set by the ALJ. The Board based its decision on its conclusion that the ALJ did not have authority or jurisdiction over the decision to grant the open space waiver. That authority, the Board found, was given to the Board under the Baltimore County Charter, §§ 602 and 603. Indeed, the open space waiver issue was pending before the Board in a separate case when the ALJ issued his findings on that issue.

         Unlike the PUD approval case, which first went before the ALJ only on the issue of the PUD's approval, the first decision to be made and contested in the open space waiver case was the decision of the Director of Permits Approvals and Inspections to approve the open space waiver on January 9, 2015. GTC appealed the County's grant of an open space waiver to the Board of Appeals directly. The Board of Appeals reviewed the decision to grant the open space waiver de novo. See Md. Code (2013, 2013 Repl. Vol.), § 10-305, Local Government Art. (permitting original jurisdiction for local county boards of appeals or jurisdiction to review the action of an administrative officer or unit of county government.). On September 17, 2015, the Board of Appeals in the open space waiver case approved the waiver for the 101 York PUD, including the County Council's designation of a zero dollar waiver fee.

         Two separate petitions for judicial review were filed in the Circuit Court for Baltimore County of the Board's October 5, 2015 decision, which affirmed the ALJ's decision to approve the PUD but reversed the ALJ's ruling making approval of the PUD subject to a $1, 358, 084.00 fee for the open space waiver. The first petition was filed by GTC on October 16, 2015, and the second petition was filed on October 29, 2015 by the American Legion, Post No. 22, Inc. ("American Legion"), along with the following individuals: Frederick Hofferbert, Jr., James Rebbert, Paul Moran, John Adair, and Kraig Dean, all of 125 York Road.

         On January 21, 2016, after previously attempting to file a dismissal of their petition on January 15, 2016, the American Legion and all of the individual petitioners, as well as DMS, filed a Stipulation of Partial Dismissal in the PUD approval case. After the stipulated dismissal, the only remaining petitioner in both the PUD approval case and the open space waiver case was GTC. DMS filed motions to ...


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