United States District Court, D. Maryland
Charles B. Day, United States Magistrate Judge.
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 Have Asserted Privileges In A Manner That Is
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
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.
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.
Defendants Have Established The Existence Of Legislative
The Burtonsville Crossing Neighborhood Plan and Zoning Text
Amendment are Legislative Acts.
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).
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.
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.
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.
Defendants' Actions Regarding Plaintiffs' Change
Requests are Legislative Acts.
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.
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
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).
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
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.
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
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.
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