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WV DIA Westminster, LLC v. Mayor & Common Council of Westminster

Court of Appeals of Maryland

January 18, 2019

WV DIA WESTMINSTER, LLC
v.
MAYOR & COMMON COUNCIL OF WESTMINSTER

          Argued: October 10, 2018

          Circuit Court for Carroll County Case No. 06-C-17-072911

          Barbera, C.J. Greene [*] Adkins McDonald Watts Hotten Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          WATTS, J.

          This case arises from the denial of an application to amend the General Development Plan for Wakefield Valley ("the Wakefield Valley GDP"), located in the City of Westminster in Carroll County, Maryland. In July 2016, WV DIA Westminster, LLC ("Developer"), Petitioner, filed an application to amend the Wakefield Valley GDP to permit construction of fifty-three homes on what is designated as "Parcel W" of a former golf course ("the Application"). In December 2016, the Mayor and Common Council of Westminster ("the Council"), [1] Respondent, held a public hearing on the Application. In January 2017, the Council held another public hearing to consider whether to approve the Application; at the end of the hearing, the Council voted to deny the Application, and the president of the Council directed staff to prepare a written decision to that effect. In February 2017, Developer filed in the Circuit Court for Carroll County a petition for judicial review. In March 2017, the Council adopted Ordinance No. 876, denying the Application and incorporating an attached written decision, which set forth findings. Developer then filed an amended petition for judicial review.

         In July 2017, the circuit court heard argument on the amended petition for judicial review, and held the matter sub curia for review of the record. In November 2017, the circuit court issued a memorandum opinion and order, affirming the Council's decision as set forth in Ordinance No. 876. In December 2017, Developer filed a notice of appeal. While this case was pending in the Court of Special Appeals, Developer filed in this Court a petition for a writ of certiorari, which we granted. See WV DIA Westminster v. Mayor & Common Council of Westminster, 459 Md. 401, 187 A.3d 36 (2018).

         Against this backdrop, we decide: (I) whether the Council's decision denying the Application was quasi-judicial or legislative in nature; (II) whether the Council erred in considering the zonal classification of Parcel W in evaluating the Application; (III) whether there is substantial evidence in the record as a whole to support the Council's decision; and (IV) if the Council's decision was premised upon an error of law or lacked substantial evidence, whether the appropriate remedy is to reverse and remand the matter with instructions to approve the Application or simply to remand the matter to the Council for further proceedings.

         We hold that: (I) the Council's decision denying the Application was a quasi-judicial act, not a legislative act, because the decision was reached on individual grounds involving one parcel through a deliberative fact-finding process involving testimony and the weighing of evidence; accordingly, the decision is subject to judicial review to determine whether substantial evidence in the record as a whole supports the Council's findings and conclusions and to determine whether the Council's decision is premised upon an error of law; (II) the Council was not prohibited from considering, among other things, the zonal classification of Parcel W when determining whether to grant the Application; (III) substantial evidence in the record as a whole supports the Council's denial of the Application; and (IV) because we affirm, holding that there is substantial evidence in the record as a whole to support the Council's findings and conclusions and that the Council's decision is not premised upon an error of law, we need not determine whether a remand or a reversal is the proper remedy, as neither remedy is applicable.

         BACKGROUND

         The Application for amendment of the Wakefield Valley GDP sought to add fifty-three new houses on what is now designated as Parcel W on the Special Purpose Plat Resubdivision of "P" and "Q" Wakefield Valley, recorded in Plat Book 54 on Page 127 among the Land Records of Carroll County. Parcel W comprises 38.2934 acres and is zoned C-Conservation; it is located along the southeastern side of Bell Road, across from Chadwick Drive, with part of the property abutting Fenby Farm Road. The property is part of the Wakefield Valley GDP, approved by the Council in 1978, which addressed the overall development of a number of parcels collectively called Wakefield Valley. With this background in mind, we trace the history of the approval of the Wakefield Valley GDP and subsequent amendments, as well as the adoption of a Zoning Ordinance.

         As of 1978, Westminster did not have a Zoning Ordinance. In 1978, the Council approved "[t]he Wakefield Valley/Fenby Farm General Development Plan" for "734.56± acres of land . . . on the western edge of" Westminster, i.e., the Wakefield Valley GDP. The Wakefield Valley GDP consisted of three categories of land use-residential, commercial, and open space-with the "major open space use within the community [to be] a championship golf course." According to the Wakefield Valley GDP, "[a]pproximately 483 ± acres or 66% of the site is devoted to residential, 20± acres or 3% to commercial, and 228± or 31% to open space use." The Wakefield Valley GDP emphasized, however, that "[t]he [c]entral spine of the combined properties is formed by a flood plain area and a new nine[-]hole golf course[, ] which [would] be completed in the early summer of 1978." The Wakefield Valley GDP stated that plans were "underway for the completion of the remaining nine holes" and that "construction of the second nine [would] be based on increased demand and continued development of the residential component of the project." As originally approved, the Wakefield Valley GDP area included twenty-one parcels, designated alphabetically from "A" to "U." According to the Wakefield Valley GDP, the overall gross density was to be 1.6 units per acre, with 31% of open space. And, as originally approved, the Wakefield Valley GDP envisioned a mixed-use development consisting of 670 to 768 residential units on approximately 734 acres, with 20 acres devoted to commercial use.

         The following year, in 1979, the Council adopted a Zoning Ordinance, now codified as Chapter 164 of the Code of the City of Westminster ("Westminster Code"). Because a variety of plans were in place before the adoption of the Zoning Ordinance-including the Wakefield Valley GDP-the Zoning Ordinance included a section expressly permitting development to occur based on the existing plans already approved by the Council and providing for amendments to those plans using the process described in an identified provision of the Zoning Ordinance. That section-now codified as Westminster Code § 164-133B-provides, in pertinent part:

All preliminary plans, final plans, revised preliminary or final plans and all development plans of any type which have been approved by the Mayor and Common Council and/or the Commission prior to November 5, 1979, shall continue to be approved and valid after said date, regardless of the zonal classification of the real property as to which such plans pertain, and said real property shall be developed in accordance with the provisions of such plans. Such plans may be amended in accordance with the procedures provided for the amendment of development plans contained in § 164-188J of this chapter.

         In turn, Westminster Code § 164-188J provides:

In considering a rezoning application which includes a development plan, the Common Council shall consider whether the application and the development plan fulfill the purposes and requirements set forth in this chapter. In so doing, the Common Council shall make the following specific findings, in addition to any other findings which may be found to be necessary and appropriate to the evaluation of the proposed reclassification:
(1) That the zone applied for is in substantial compliance with the use and density indicated by the Master Plan or sector plan and that it does not conflict with the general plan, the City's capital improvements program or other applicable City plans and policies.
(2) That the proposed development would comply with the purposes, standards and regulations of the zone as set forth in Articles II through XV, would provide for the maximum safety, convenience and amenity of the residents of the development and would be compatible with adjacent development.
(3) That the proposed vehicular and pedestrian circulation systems are adequate and efficient.
(4) That by its design, by minimizing grading and by other means, the proposed development would tend to prevent erosion of the soil and to preserve natural vegetation and other natural features of the site.
(5) That any proposals, including restrictions, agreements or other documents, which show the ownership and method of assuring perpetual maintenance of those areas, if any, that are intended to be used for recreational or other common or other quasi-public purposes, are adequate and sufficient.
(6) That the submitted development plan is in accord with all pertinent statutory requirements and is or is not approved. Disapproval of a development plan by the Common Council shall result in a denial of the rezoning application of which the development plan is a part.

         At some point, the golf course acquired additional land to expand from an 18-hole course to a 27-hole course. In 1987, as a result of the acquisition for expansion of the golf course, the Council approved an amendment to the Wakefield Valley GDP, redistributing the residential density and reconfiguring the golf course. Specifically, the 1987 amendment transferred residential units from the golf course to the parcel known as "Parcel H," resulting in a new allocation of residential units for that parcel.[2] In a letter dated January 16, 1987, Carroll R. Dell, Westminster's then-Director of Planning and Public Works, explained to Dr. Earl Griswold, a landowner, that, in approving the amendment to the Wakefield Valley GDP, "[i]t was noted that the gross residential density within the overall plan has been retained at a maximum of 768 units or approximately 1.45 per acre" and that "[t]he open space has increased to 241.6 acres or 47% of the total tract."

         After various changes, the golf course eventually occupied the parcels identified on the original Wakefield Valley GDP as Parcels E, L, M, and T, and part of Parcel G. In 1989, the Council approved a request to amend the Wakefield Valley GDP to reduce the number of residential units for Parcel H.[3] The Council's approval of the requested amendment, however, was subject to certain conditions, including a condition that was originally recommended by the Westminster Planning and Zoning Commission ("the Commission") "[t]hat the approved [GDP] for Wakefield Valley be modified to show a reduction of the [] residential units and ten acres of commercial development on Parcel H." Under the 1989 amendment to the Wakefield Valley GDP, the overall gross density was to be 1.1 to 1.2 units per acre, with 47% of open space. Thus, from the 1987 amendment to the 1989 amendment, the overall gross density decreased, but the percentage of total area in open space remained the same.[4]

         In 2006, Woodhaven Building & Development, Inc. ("Woodhaven") applied to amend the Wakefield Valley GDP to build 320 senior cottages on 167 acres, to be developed on nine holes of the existing 27-hole golf course. Woodhaven's application sought to use density that had been allocated to Parcel H for its development, i.e., to reassign the density that previously existed for Parcel H. The Council denied the proposed amendment, and, in a written decision, the Council noted that Woodhaven had "the burden of proof and persuasion in order to secure approval of an amended development plan[, ]" and determined that Woodhaven failed to "produce sufficient credible evidence and testimony to have met its burden of proof to show that all of the [necessary] elements ha[d] been met." The Council acknowledged that Woodhaven had "presented some expert testimony in support of its application[, ]" but concluded "that the testimony and evidence was inadequate, incomplete[, ] and unpersuasive." The Council concluded:

[T]he density previously allowed to Parcel H in the prior approved Development Plan terminated and was extinguished by the Council when it acted on an application [for amendment]. As a result, no such units remain available from Parcel H to be reassigned to [Woodhaven]'s proposal. Despite the absence of any dwelling units left available to Parcel H, [Woodhaven] still had the ability to request that the Council amend the Development Plan for its proposal. However, as discussed herein [Woodhaven] did not meet its burden of proof and persuasion.

         The Council further concluded that the proposed amendment, among other things, was "not in substantial compliance with the use and density indicated by the development plan for Wakefield Valley[, ]" was "not compatible with adjacent development[, ]" and failed to address serious problems with water supply, traffic, and erosion.

         In 2009, the Council adopted a new Comprehensive Plan.[5] Based on a recommendation from the Commission, the zoning for the golf course and undeveloped property in Wakefield Valley was changed from low-density residential zoning to conservation zoning, and the 2009 Comprehensive Plan specifically addressed the Wakefield Valley GDP as follows:

The 1978 [Wakefield Valley GDP] restricted the development of housing within the parcel where Wakefield Valley Golf Course and Conference Center exists today. However, the current land use is Low Density Residential even though the development plan will not allow any residential homes to be built in this area. The [Commission] recommended a land use change from Low Density Residential to Conservation to reflect the development plan and the existing land use. The existing land use for this parcel is the Wakefield Valley Golf Course and Conference Center surrounded by forest land and natural landscapes as well as a stream that runs from the southwest corner to the eastern portion of the parcel. This change reflects how the land is currently used; however, this change does not change the approved Development Plan for Wakefield Valley. The 2009 Comprehensive Land Use Map has re-designated the land use of this 240 acre parcel from Low Density Residential to Conservation.[6]

         At some point, the golf course in Wakefield Valley ceased operations, and, in 2014, Developer purchased the land, comprising approximately 242 acres, and subdivided it into Parcels W, X, Y, and Z.[7] On June 2, 2014, the Council, Developer, and a company known as Naganwest, LLC, entered into a Memorandum of Understanding ("the MOU"). In the MOU, Developer agreed that it would: procure groundwater appropriation permits; donate certain property in Wakefield Valley to Westminster and Carroll Lutheran Village subject to "retain[ing] any residential density units attributable to, or associated with, the land contributed to" Westminster or Carroll Lutheran Village; and "[s]ubmit an application for the appropriate zoning approvals to allow up to 70 single[-]family residential lots on the Wakefield Valley property[.]" Developer also agreed that it was "understood that th[e] MOU [was] not intended to limit or restrict the ordinary review authority of the [Council] (or any governmental agency) to impose conditions upon, or deny, the proposed development." In return, in pertinent part, the Council eliminated two obligations owed by Naganwest, LLC concerning making a $1.5 million water contribution and constructing a pumping station, and agreed to "consider, in good faith, and in accordance with applicable laws and regulations, [Developer]'s application for zoning approvals necessary to allow construction of up to 70 single[-]family lots on the Wakefield Valley property."[8]

         By deed dated February 26, 2016, pursuant to the MOU, Developer transferred approximately 188 acres of the golf course property, comprising Parcels Y and Z, to Westminster.

         On July 21, 2016, Developer filed the Application for amendment to the Wakefield Valley GDP, seeking to build 53 homes on the 38.2934 acres of Parcel W.[9] On September 8, 2016, Developer made an "informal presentation" to the Commission, and Developer and its representative "presented their proposed development and a summary of the [GDP]." In a memorandum dated October 6, 2016, from Bill Mackey, the Planning Director of Westminster, to the Commission, Mackey traced the status of the Wakefield Valley GDP as follows:

The Decision of the [] Council in 2006 . . . summarizes the process by which the [] Council extinguished 160 density rights in 2016 [sic] . . . . Records indicate that there are remaining unbuilt density rights on land owned by the Griswold family (20 dwelling units), Carroll Lutheran Village (13 dwelling units), Valentine family (two dwelling units), Fenby Farm (one dwelling unit), and two units on the former golf course. It appears that the Durbin House was considered an existing dwelling at one time. Parcels W, X, Y, and Z have two unbuilt rights.

(Paragraph break omitted). According to Mackey, the Application sought "50 new density rights be created for Parcel W" and requested "use of all three existing density rights on the former golf course land (unbuilt plus Durbin)." In a "Conclusion" section, Mackey wrote:

In the big picture, the subject [Application] is not consistent with the 2009 Comprehensive Plan, nor is it in keeping with the central purpose of the original [Wakefield Valley GDP]. That being said, the 2009 Comprehensive Plan does envision the property as Conservation under the zoning provisions.
If the land were to be developed in line with those provisions, the permitted density would be three units per acre, or roughly a dozen new houses.
Utilizing a cluster design approach, this density could be accommodated on 14 acres including a street or plaza. It could allow for community facilities, open space preservation (in order to meet the required 31%), and a uniquely designed setting to provide a special sense of place.

(Italics omitted). And, Mackey advised:

Staff recommends that the Commission consider "approval with recommended modifications," pursuant to [Westminster Code] § 164-188 H. (1), in order to allow nine new density units and transfer the existing three units for a total of 12 density units with the condition that a cluster design be undertaken to maintain a minimum of 24 acres in open space land to preserve the required 31% open space.

         One week later, on October 13, 2016, the Commission held a public hearing, at which the Commission considered the Application. At the public hearing, Mackey reviewed his October 6, 2016 memorandum and the staff's recommendation to allow a total of twelve density units for Parcel W. Members of the public also commented, with some individuals raising concerns about traffic and parking, water availability, effects on the open space, and flooding, among other things. The Commission ultimately voted to "leave the record open for 30 days" and asked citizens to submit comments to the Planning Director. On November 17, 2016, the Commission held another public hearing. At that meeting, the Chair noted "that the Commission had received over 100 comments from the public" about the Application. One member of the Commission "reiterated that more support from the community [was] needed." After discussing the Application, the Commission unanimously voted to recommend denial of the Application "as presented."

         In a memorandum dated December 7, 2016, Mackey provided the Council with an overview, stating that the Application sought "to add 50 new density rights[, ]" and that Westminster staff recommended twelve houses "total, which would reflect the current zoning, noting that the zoning is not a requirement, since Wakefield Valley is subject to a plan that predates the zoning code." Mackey also advised that over 100 households and organizations had submitted written comments concerning the Application and that thirteen members of the public commented at the Commission's October hearing. Mackey explained that the "Commission recommended denial as presented, citing the extinguishing of development rights in 1989, potential loss of open space, and objections in comments from the public." In the overview, Mackey stated that the Council was "required to utilize a quasi-judicial process to decide on the matter[, ]" that the Council was required to "make specific findings in six areas pursuant to [Westminster Code] § 164-188 J.[, ]" and that "[d]ocuments and testimony from [Developer], [Westminster] staff, the public and others are considered evidence." In a section titled "Summary Conclusion," Mackey wrote as follows:

Comparing the historical record with what is actually constructed today, it is evident that there is more open space and less density units than set forth in the original 1978 GDP; however, this is because, over time, more open space was included and less units were allowed in the various re-iterations of the plan.
* * *
Regarding open space, [Developer] is correct that there would be 40% open space remaining without Parcel W. However, in 1987[, ] the [] Council included 47% for the open space, so open space was increased. At this point, the proposed 40% would be a reduction in open space from the 47% set forth in 1987. That being said, the final build-out of Carroll Lutheran Village could increase the total amount of open space. Also, if Parcel W were to be retained as open space only, then there would be a total of 45% open space. Therefore, unless other parcels were to contribute, the 47% cannot be met.
Mackey also incorporated his October 6, 2016 memorandum, with additional information and comments, and some deletions. As to existing density rights available, the modified memorandum noted:
The three density rights were not assigned to any of the four parcels (Parcels W, X, Y and Z) created by [Developer] out of the former golf course. The three units first appear in the record for M2 open space parcel in the 1987 revision. [Westminster] staff had expressed early on that these could be assigned to Parcel W.

(Underlining omitted). Mackey also modified the October 6, 2016 memorandum to strike two references to the "required 31%" open space. The modified memorandum recommended "'approval with recommended modifications,' in order to allow nine new density units and transfer the existing three units for a total of 12 density units with the condition that a cluster design be undertaken to maintain as much open space as possible."

         On December 12, 2016, the Council held a public hearing on the Application. At the beginning of the public hearing, an attorney for Westminster recommended that the Council "adopt rules of procedure which you don't presently have for quasi-judicial proceedings." According to the attorney for Westminster, such rules of procedure had "not been necessary in the past but given the complication of the anticipated hearing[, ]" the attorney "thought it would be better if [the Council] adopted local procedure prior to the beginning of the public hearing." The Council approved and adopted "the rules of procedure for quasi-judicial proceedings as presented."[10]

         Mackey presented Westminster's overview of the Application, and began his testimony by addressing the "quasi-judicial process[.]" Mackey explained:

[A] quasi-judicial process . . . is similar to a courtroom process but it is less formal. Evidence is submitted. People give testimony. It does follow a set of procedures. And after the public hearing[, ] the [] Council would make a decision based on findings that they would make in a number of areas, and [the] Council uses the evidence presented during this hearing to support those findings.
As part of this process[, ] the Council must make findings in six areas pursuant to [Westminster Code] Subsection 164-188J[.] Those six findings, just to kind of summarize them briefly, [are] whether what is being proposed is consistent with the comprehensive plan, consistent with the zoning Code. If the traffic and pedestrian circulation proposed is acceptable[, ] is the preservation of soils and vegetation such as trees, that's number 4, 5 is there maintenance of common facilities being proposed, and does it indeed comply with all statutory requirements or not, and then you make a decision. And that's the process that we're about to undertake this evening. It's a little bit different from the process that the [C]ommission uses which is a recommendation process only.

         Mackey provided an overview of the history of Wakefield Valley in general and Parcel W specifically. According to Mackey, in 1987, the Council "increase[d] open space to 47 percent for [] Wakefield Valley . . . because part of the 1987 amendment of Parcel K in Wakefield Valley was swapped for Parcel R in Fenby Farm and that changed the total acreage for both portions of the [GDP] and essentially lowered density in Wakefield Valley." Mackey testified that, in 1989, the Council "reaffirmed" 47% open space, when the Council "extinguished 159 residential density units and 10 acres of commercial [space] as part of an amendment to approve the Fenby Farm subdivision which is actually created from Parcel H in Wakefield Valley and Parcel R in Fenby Farm." As to the current density units of Wakefield Valley, Mackey testified that there were 537 units constructed, ten unused units from various parcels, including three on the former golf course, and fifty-six "raw units for Carroll Lutheran Village[, ]" for a total of 603 density units, which Mackey testified "is the lower end of the range of the approval as amended . . . in 1989." As to open space, Mackey "confirm[ed] that the existing open space from all City-owned parcels, from [homeowner association]-owned parcels and Parcel X, if that is indeed turned to open space, for Wakefield Valley and Fenby Farm together is [] 40 percent." Mackey testified, however, that "[i]f Parcel W were to be counted as open space, then there would be 45 percent open space." After being asked by the Council's president whether several more developments had caused the open space to decline from 47% in 1987, Mackey testified: "Well, that I can't really answer. I'm looking across the record, I'm pulling decisions and then we're analyzing what's there."

         Mackey testified that Westminster staff recommended twelve density units for Parcel W, and he explained the reasoning behind that based on the history of the Wakefield Valley GDP, relying on Council's 2006 decision, the 2009 Comprehensive Plan, and the 2009 land use map. Mackey testified that Westminster staff "felt that the [Application] presented [was] not consistent with the 2009 comprehensive plan and is not in keeping with the central purpose of the original [GDP]." Mackey explained, though, that, because "the 2009 comprehensive plan does envision the property as conservation in the zoning process there may be a way to find a compromise." According to Mackey, if Parcel W were "developed in line with . . . the conservation zoning provisions, the permitted density would be theoretically three units per acre[, ] . . . yield[ing] about a dozen new houses." And, Mackey suggested that, if Developer used "a cluster design approach[, ] that density could be accommodated on a small amount of land, originally 14 acres was suggested, since . . . we sort of teased out open space a little more."

         Mackey answered questions from members of the Council. In response to one question, Mackey testified that the Council was "not bound by either [his] recommendation or what [Developer] is suggesting, or what the [C]ommission" recommended, but instead could "come to an independent separate decision." The attorney for Westminster then emphasized that the Council was "not bound by the Staff report" or "by what the [C]ommission did, but [that it had] an application before [it] that [it had] to adjudicate whether it is consistent with those factors in the ordinance." The attorney for Westminster also explained that the Council "could impose conditions on an approval."

         Mackey also responded to questions from Developer's counsel. In response to one question, Mackey testified that, from his observations, "it appear[ed] that density was transferred in a variety of cases and in some cases extinguished[, ]" and that, "as part of moving things around[, ] the exchange back was that open space was increased so things were perhaps concentrated more in order to allow for more open space." Mackey testified that, as proposed, the Application would not be consistent with the 2009 Comprehensive Plan. Mackey also testified that, in his view, the 2009 Comprehensive Plan "recogniz[ed] what [was] existing and also in the context sort of validat[ed] that that is the desire of [Westminster] for such property[, ]" and "also include[d] some intent as well." In response to a question from Developer's counsel as to whether the Council "should consider changes that have occurred in the area since 1978 in considering" the Application, Mackey testified: "If it relates to or bears upon a ...


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