Anne Arundel Cnty. v. 808 Bestgate Realty, LLC

479 Md. 404

278 A.3d 731

ANNE ARUNDEL COUNTY, Maryland

v.808 BESTGATE REALTY, LLC

No. 38, Sept. Term, 2021

Court of Appeals of Maryland.

July 7, 2022

Argued by Gregory J. Swain, Cty. Atty. (Anne Arundel County Office of Law, Annapolis, MD), on brief, for Petitioner/Respondent

Argued by David M. Plott and Kinley R. Bray (Yumkas, Vidmar, Sweeney & Mulrenin, LLC, Annapolis, MD; Mark L. Fulton, III and Philip C. Dales of Liff, Walsh & Simmons, LLC, Annapolis, MD), on brief, for Respondent/Petitioner

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Booth, J.

In this case, we must determine whether the County Board of Appeals of Anne Arundel County ("Board") erred when it denied a request by a developer, 808 Bestgate Realty, LLC's ("Bestgate"), for transportation impact fee credits in connection with certain road improvements that it made to a county road as part of a redevelopment project. Under the Anne Arundel County Code, § 17-11-207(c),¹ when transportation improvements are constructed in connection with a development project that provide "transportation capacity over and above the adequate road facilities requirements" required by § 17-5-401 of the Code, then "[t]ransportation impact fee credits shall be allowed[.]" There is no dispute that Bestgate proposed to construct improvements to Bestgate Road, which were approved by the County's Engineer Administrator, and that the improvements provided transportation capacity that was "over and above" the requirements of the County's adequate public facilities ("APF") standards that are applicable to roads. However, in a 4-3 decision, the Board determined that Bestgate was not entitled to transportation impact fee credits under its interpretation of § 17-11-207.

After the Board denied Bestgate's request for transportation impact fee credits, Bestgate appealed the decision to the Circuit Court for Anne Arundel County. The circuit court reversed the Board's decision. Anne Arundel County (the "County") filed an appeal to the Court of Special Appeals, which affirmed the circuit court in part, and reversed it in part. The intermediate appellate court determined that, under the plain language of § 17-11- 207(c), the Board erred in its interpretation. Anne Arundel County v. 808 Bestgate Realty, Inc. , No. 1156, 2021 WL 1985434 (May 18, 2021) (" 808 Bestgate "). However, the Court of Special Appeals remanded the case to the Board for further findings on an issue that it raised sua sponte —specifically, whether the improvements to Bestgate Road were "site-related transportation improvements" under the Code, which would render them ineligible for transportation impact fee credits. Because both parties agree that the road improvements are not "site-related improvements" under the provisions of the Code, they filed a joint motion for reconsideration of that issue, which the Court of Special Appeals denied.

The County and Bestgate each filed a petition for writ of certiorari to this Court, which we granted. We granted the County's petition to consider the following question, which we have rephrased as follows:

Did the Board of Appeals err in denying Bestgate's application for transportation impact fee credits under the applicable language of the Anne Arundel County Code?²

We granted Bestgate's petition to consider the following question, which we have rephrased as follows:³

Given that both parties agree that the improvements to Bestgate Road are not "site-related improvements" as defined by the Code, and the County agrees that a remand to the Board is unnecessary for a determination of that issue, is a remand warranted?

For the reasons set forth below, we affirm the Court of Special Appeals’ decision as to the first question, and as to the second question, we reverse the Court of Special Appeals’ decision to remand the case to the Board to consider whether the improvements are "site-related" given the County's concession on that issue.

I.Factual Background and Procedural History

A. The Redevelopment Project

Bestgate redeveloped a 9.4-acre parcel located at 808–810 Bestgate Road in Annapolis. The redevelopment project included an addition to an existing veterinary clinic and the construction of a new four-story medical office building with an associated parking lot ("the Project"), which is accessible from Bestgate Road—a county road. Prior to the issuance of a building permit, Bestgate paid transportation impact fees to the County in the amount of $199,756 for the veterinary clinic and $590,775 for the medical office.

As part of the Project, Bestgate hired a traffic engineer, Traffic Concepts, Inc. ("Traffic Concepts"). Traffic Concepts performed a traffic impact study to determine if the Project complied with the County's APF road requirements, which mandate that road intersections at a development site will operate at a minimum "D" level of service and that the road sections will have a rating of 70 or higher. If a traffic impact study reveals that a development project will not meet these requirements, the County may mandate that the developer construct mitigation improvements to bring the transportation facilities up to the standards in the Code.

The Project was initially designed with a right-in/right-out intersection from Bestgate Road.⁴ The traffic impact study revealed that after development of the Project, with the right-in/right-out road network, the County road intersections would continue to operate at an acceptable level of service, and the road ratings would remain adequate. Accordingly, the traffic impact study concluded that no mitigation would be needed to satisfy the County's APF road requirements. Based upon these conclusions, the County approved the Project with the right-in/right-out intersection, without requiring any mitigation.

Even though mitigation was not required to satisfy the APF road requirements, Traffic Concepts recommended the construction of an off-site median break and traffic signal on Bestgate Road across from the entrance to the Project. In a May 2, 2017 letter to Larry Tom at the Office of Planning and Zoning, Kenneth Schmid, a Vice President of Traffic Concepts, explained that "[i]f the site were to retain the existing right-in/right-out access, vehicles wishing to enter the site from eastbound Bestgate Road would be forced to make a U-turn at the Medical Parkway intersection in order to enter the development," which would increase the "morning peak hour critical lane volume" at that intersection. With the median break and traffic signal, however, the critical lane volume would be reduced, which would both increase capacity and improve safety by eliminating the weaving requirement to attempt a U-turn movement.⁵

In that letter, Mr. Schmid requested approval of transportation impact fee credits for the "total cost of design and installation of the median break and traffic signal[,]" which was estimated to be $554,697.98. David Braun, the County's Engineer Administrator for the County's Department of Public Works, supervised the review of the traffic impact study and approved the plans and construction details for the median break and traffic signal on Bestgate Road as recommended by Traffic Concepts.⁶

Although the County's Engineer Administrator approved the Bestgate Road improvements, in a letter dated October 26, 2017, the County's Planning and Zoning Officer, Philip Hager, denied the request for transportation impact fee credits, on the basis that: (1) there was no benefit to the County since the intersection was already operating at an "A" level; (2) the additional improvements were not associated with any traffic mitigation required by the County to satisfy the APF road requirements; (3) there were no capital improvement plan projects in the corridor associated with the Project; and (4) there were no deficiencies in the traffic impact study area.

Bestgate appealed to the Board, which reviewed the matter de novo .

B. The Board Proceedings

The Board heard testimony on the appeal on April 12 and May 22, 2018. Mr. Braun testified that he reviewed the traffic impact study and agreed that the Bestgate Road improvements would provide additional safety measures and capacity to the County's road network. Bestgate also introduced into evidence a written memorandum from Mr. Braun to the Office of Planning and Zoning which stated that "[t]he benefit to the County, as outlined in the proposal, is providing additional capacity at the Bestgate/Severn Grove Road intersection and improving safety due to the reduction in the number of U-turns."

Mr. Schmid, who was qualified as an expert traffic engineer, testified that the proposed improvements would eliminate both potential and existing U-turns and confirmed that the development would add to the congestion at the intersection of Severn Grove Road and Bestgate Road where U-turns are being made by people going to the existing veterinary clinic:

And then we would be adding more left turns and U-turns onto that intersection by our site. So when we eliminate all those potential U-turns and the existing U-turns, we provide extra capacity at the intersection of Severn Grove Road and Bestgate Road. Now, it's acceptable capacity today, but we are providing additional capacity to that intersection by diverting that traffic away. We're also providing extra capacity to the unsignalized U-turn movement up at Gate Drive, which was the other U-turn exit. And that wasn't a studied intersection in our analysis, but by not pushing traffic up there and making U-turns, you're providing capacity for that intersection.

In addition to explaining the benefits that the additional signal would provide to the Bestgate Road corridor generally, Mr. Schmid also described examples of similar road improvement projects in which he had been involved where the County granted transportation impact fee credits in similar situations.⁷ Specifically, Mr. Schmid testified that...