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Church v. Montgomery County

United States District Court, D. Maryland

August 15, 2018

CANAAN CHRISTIAN CHURCH, et al., Plaintiffs,


          Charles B. Day, United States Magistrate Judge.

         Before this Court are Plaintiffs Burtonsville Associates and Burtonsville Crossing, LLC's Motion to Compel Responses to Discovery (ECF No. 52) (“Plaintiffs' Motion”) and Defendants' Cross-Motion for Protective Order (ECF No. 54) (“Defendants' Motion”), collectively the “Motions.” The Court has reviewed the Motions, related memoranda and applicable law. No. hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion.

         I. Analysis

         A. Defendants Have Asserted Privileges In A Manner That Is Procedurally Correct.

         Plaintiffs contend that Defendants have made assertions of privilege in a conclusory fashion, failing to set forth specific facts in support thereof. Pls.' Mem. In Supp., at 3-4 (ECF No. 52-1). Defendants have complied with the letter and spirit of the Federal Rules of Civil Procedure and this Court's Local Rules.

         Federal Rule of Civil Procedure 26 requires Defendants to (1) “expressly make the claim” of privilege; and, (2) “to describe the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(i-ii). See also Local Rules, Discovery Guideline 10.d.iii.

         In their reply briefing, Plaintiffs rightly abandon this issue. Defendants have asserted legislative and executive privileges in a manner that sufficiently identifies the categories of information they view as non-discoverable.

         B. Defendants Have Established The Existence Of Legislative Privilege

         1. The Burtonsville Crossing Neighborhood Plan and Zoning Text Amendment are Legislative Acts.

         Maryland requires each local jurisdiction to have a comprehensive land use master plan, and to make zoning decisions consistent with their master plans, said plans having the “binding force of law.” Pulte Home Corp. v. Montgomery Cty., No. GJH-14-3955, 2017 WL 2361167, at *4, (D. Md. May 31, 2017).

         In Pulte, this Court wrestled with nearly identical issues regarding water and sewer change applications, and master plan amendments. The Court determined both acts to be legislative in nature. “Planning and zoning actions are legislative when they ‘decide questions of law and policy and discretion' and have broad community-wide implications, which encompass considerations affecting the entire planning area or zoning district.” Id. (relying on Kenwood Gardens Condos, Inc. v. Whalen Props., LLC, 449 Md. 313, 144 A.3d 647 (2016). In Kenwood Gardens, the court found that the County Council took “into account legislative facts and the impact of the development on the community at large.” Id. at 334. Therefore, the master plan and zoning decisions in that case had the “binding force of law” and the resolutions amending the master plan were considered legislative acts.

         Plaintiffs readily concede that the Burtonsville Crossing Neighborhood Plan (“BCNP” or the “Plan”) and Zoning Text Amendment (“ZTA”) 12-13 are “legislative in nature.” Pls.' Mem. in Opp'n, at 20 (ECF No. 56). Defendants set the context for this litigation as being driven by community-wide concerns for the preservation of drinkable water from the Rocky Gorge Reservoir and its tributaries. The foundation for their position rests on the statements set forth in the BCNP. Defs.' Opp'n, at 3 (ECF No. 54-1). The succinct issue here is that Plaintiffs submitted change requests for sewer service which were denied. Plaintiffs dispute the legislative quality of the denial of these change requests.[1]

         The BCNP speaks to deep concerns about “declining water quality, sensitive tributary headwaters, high impervious levels, and sewer and water service.” Without doubt, the BCNP represents the comprehensive land use master plan for the Burtonsville area. In furtherance of the Plan, the County Council lowered the impervious cap in the Rural Cluster (“RC”) zones and declined requested extensions of sewer service beyond a circumscribed envelope. The Plan recommended “no public sewer service should be permitted for any use.” Explanation is also provided for the rejection of the 10% impervious cap established by other guidelines, given the environmental sensitivity of the area, as well as the favorable results when an 8% cap had been employed elsewhere. See Defs.' Mot., Ex. 3, p. 45.

         2. Defendants' Actions Regarding Plaintiffs' Change Requests are Legislative Acts.

         In 2003, the County Council adopted a “Ten Year Comprehensive Water Supply & Sewerage Systems Plan” (“Water & Sewer Plan” or “WSP”). Defs.' Mot., Ex. 5. This too was a legislative act. The WSP has been amended over the years. This Court determined long ago that amending a water and sewer plan is also a legislative act. Kent Island Joint Venture v. Smith, 452 F.Supp. 455, 457-58 (D. Md. 1978). The WSP recognizes a policy exception, (i.e. a change request), applicable to Private Institutional Facilities (“PIF”). Churches like Plaintiff Canaan enjoy the PIF designation.

         Plaintiffs sought a change request under the PIF policy. Plaintiffs' sewer change requests were not favored by the Planning Board, County Executive, Council Staff, nor the Council Committee on Transportation, Infrastructure, Energy & Environment. The County Council adopted the recommendations of these entities and denied Plaintiffs' requests. Plaintiffs claim this was not a legislative act, and therefore not protected by privilege. Defendants assert the County Council had the discretion to deny the request and did so in accordance with the master plan. One of the County's Senior Legislative Analysts commented that the PIF policy allows for changes to the master plan, but “in cases where a master plan has established specific water/sewer restrictions for certain areas . . . the Executive, Planning Board, and Council Staff concur that these specific Master Plan recommendations supersede consideration via the PIF policy.” Defs.' Mot., Ex. 13, pp. 7-8. Another footnote stated the obvious, that Plaintiffs could build a facility on the land so long at it complied with the zoning requirements.

         As to whether the action here was legislative or administrative, the parties agree that Alexander v. Holden, 66 F.3d 62 (4th Cir. 1995) is controlling. In following the lead of several sister circuits, the Fourth Circuit accepted the general principle that

If the underlying ‘facts relate to particular individuals or situations' and the decision impacts specific individuals or ‘singles out specifiable individuals' the decision is administrative.” On the other hand, the decision is legislative if the facts involve ‘generalizations concerning a policy or state of affairs' and the ‘establishment of a general policy' affecting the larger population.

Id. at 66 (internal citations omitted).

         According to the WSP, p. 1-23, when a change request is considered within a service envelope, it is described as an “administrative” matter to be addressed by the Maryland Department of Environmental Protection. When a change request is sought by the owners or purchasers of property outside of the service envelope, the decision to grant or deny the request is within the purview of the County Council. This latter scenario is applicable to the subject property here.

         Defendants note that the PIF policy is a subpart of the WSP, which by definition is primarily concerned with the impact of water and sewer decisions upon a community at large, and the Burtonsville area in particular. The purpose of the process is to allow the Council to consider the big picture, with input from the affected community. Plaintiffs' suggestion that their change requests converted the nature of this process into a non-legislative endeavor is misplaced. In addition to this Court's decision in Kent Island, several state court decisions in Maryland support Defendants' view.

         Defendants rely on Gregory v. Board of Cty. Comm'rs of Frederick Cty., 89 Md.App. 635, 599 A.2d 469 (Md. Ct. Spec. App. 1991). Gregory makes clear that amendments to water and sewer plans are at least quasi-legislative. Also, Appleton Reg'l. Cty. All. v. Cecil Cty, 404 Md. 92, 945 A.2d 648 (Md. 2008), made it clearer that “all amendments to a Master Water and Sewer Plan are, by definition, comprehensive planning actions.” Id. at 655. Finally, in Bethel World Outreach Church v. Montgomery Cty, Md., 184 Md.App. 572, 967 A.2d 232 (Md. Ct. Spec. App. 2009), the Court of Special Appeals addressed head on the question of the PIF policy within Defendants' water and sewer plan. The Court stated that the Council's action in denying a change request was a legislative one.

         Most recently, this Court in Pulte considered the implication of master plan amendments, zoning changes, and water and sewer change requests. It was determined that regardless of the methodology employed, the action at hand was legislative in nature. Clearly, this Court cannot now give countenance to the contention that Defendants' refusal to grant the change requests were tantamount to the mere “enforcement of pre-existing policy” or “enforcement rather than rule-making.” Pls.' Mem. in Supp., at 8. On these facts, the denial of Plaintiffs' change request is a legislative act.

         This Court does not find helpful the case of Moxley v. Town of Walkersville, 601 F.Supp.2d 648 (D. Md. 2009). In Moxley, the Court was addressing the defendant's motion to dismiss and the question of legislative immunity. The Court concluded that given the stage of the litigation, requiring that all well-pled allegations be accepted as true, that it could not determine whether the “zoning ordinance constituted a legislative act” for several reasons. Moxley, at 661. Unlike in the present case, the allegation in Moxley was that the ordinance was proposed a mere two days after the sale of the property to a certain religious group was made public. Moreover, upon denial of a special exception to the plaintiff, the ordinance was destined for extinction. The Court concluded that discovery could well reveal that the legislation “relates to particular individuals” and ...

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