Attman Props. Co. v. Anne Arundel Cnty.

ATTMAN PROPERTIES COMPANY ET AL. v. ANNE ARUNDEL COUNTY ET AL.

No. 1795

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

August 12, 2019

Circuit Court for Anne Arundel County

Case No. C-02-CV-17-000715

UNREPORTED

Fader, C.J., Kehoe, Battaglia, Lynne, A. (Senior Judge, Specially Assigned) JJ.

Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. See Md. Rule 1-104.

This appeal arises from a zoning decision of the Anne Arundel County Board of Appeals to grant a special exception to Spectec, LLC, to develop a 156-townhouse community on a 16.72-acre parcel located in Millersville. Two neighbors, Attman Properties Company and Cloverleaf Warehouse LLLP (collectively, "Attman"), filed a petition for judicial review in the Circuit Court for Anne Arundel County. The circuit court, the Honorable Stacy McCormack presiding, affirmed the Board's decision. Attman has appealed the court's judgment. The appellees are Spectec, Clement LLC, the owner of one of the parcels involved in the application, and Anne Arundel County (collectively "appellees"). Attman presents two issues, which we have reworded slightly:

1. Did the Board commit reversible legal error by failing to make a finding under Schultz v. Pritts, 291 Md. 1 (1981) as to whether the Nolberry planned unit development would have substantially greater adverse impacts at the proposed location than it would elsewhere in the zoning district?

2. Was the Board's decision arbitrary, capricious, and unsupported by substantial evidence?

We will affirm the judgment of the circuit court.

Background

In 2015, Spectec filed an application for a special exception to construct a residential planned unit development on portions of three contiguous parcels located east of Veterans' Highway in Millersville. On its northerly and easterly sides, the subject property is bounded by existing residential communities. The Rol-Park mobile home community and the Clover Leaf Business Park are located to the west, with other commercial development to the south. Access to the subject property is problematic. An existing stream blocks access fromthe south. As we will discuss in part 2 of this opinion, there are two feasible ways that the subject property can be accessed by roads. Nolberry Drive provides the only direct access but using that street to access the property raises significant safety concerns. The other feasible access is through a portion of the mobile home park to Clover Leaf Drive, which is located to the west of the mobile home park and the business park before terminating at an unsignalized intersection with the Veterans' Highway.

Although the zoning ordinance permitted as many as 300 townhomes on the site, Spectec sought to construct only 156 units. In a hearing that stretched out into seventeen separate evening sessions, the Anne Arundel County Board of Appeals ("the Board") heard testimony and legal argument on the application from Spectec, Attman, and other neighbors, both residential and commercial.

In February 2017, the Board conditionally approved the Nolberry planned unit development, concluding that the application met the nine criteria enumerated in Anne Arundel County Code ("AACC") § 18-16-304(a).¹ We will discuss the specifics of the Board's decision later in this opinion. Following the Board's approval of the application, Attman filed a petition for judicial review. On October 13, 2017, the circuit court affirmed the Board's decision, and Attman filed a timely appeal.

Special Exceptions and Planned Unit Developments

in Anne Arundel County

The Nolberry planned unit development lies in an area primarily zoned R-22, with small portions classified as R-5 and OS-Open Space. The R-5 and R-22 zoning district regulations allow planned unit developments only by special exception. See AACC § 18-4-106.

Planned unit developments are a method of land use control that are intended to provide a greater degree of flexibility to both developers and regulators in the design of medium and large residential, commercial, and mixed-use developments. The planned unit development concept "has freed the developer from the inherent limitations of the lot-by-lot approach and thereby promoted the creation of well-planned communities." Rouse-Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments, 138 Md. App. 589, 623-24 (2001) (quoting Woodhouse v. Board of Comm'rs of Nags Head, 299 N.C. 211, 226 (1980)).

In Anne Arundel County, planned unit developments are implemented through Article 17 of the County Code through what is essentially a site plan approval process. See AACC § 17-7-1001—1004. Not all zoning districts in Anne Arundel County allow planned unit developments as a matter of right. In the R-5 and R-22 districts, a developer must obtain a special exception as part of the planned unit development review and approval process.

A special exception, sometimes referred to as a "conditional use," is a grant of a specific use that:

(1) would not be appropriate generally or without restriction; and(2) shall be based on a finding that:

(i) the requirements of the zoning law governing the special exception on the subject property are satisfied; and

(ii) the use on the subject property is consistent with the plan and is compatible with the existing neighborhood

Md. Code (2012) Land Use Article ("LU") § 1-101. See also Mayor & Council of Rockville v. Rylyns Enterprises, 372 Md. 514, 541 (2002) (A special exception use is one which "the local legislature . . . identifies [as] conditionally compatible in each zone, but which should not be allowed unless specific statutory standards assuring compatibility are met by the applicant at the time separate approval of the use is sought."). A special exception adds "flexibility to a comprehensive legislative zoning scheme by serving as a 'middle ground' between permitted uses and prohibited uses in a particular zone." People's Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 71 (2008).

Before an application for a planned unit development special exception can be filed, a developer must file an administrative site plan, see AACC § 17-7-1003, and hold a pre-filing meeting with the Office of Planning and Zoning. See AACC § 18-16-201. The Office of Planning and Zoning reviews the proposed plan, obtains comments from other reviewing agencies, and may request additional information from the applicant. AACC § 17-7-1003(c). When its review is complete, the Office of Planning and Zoning issues a written recommendation to the County administrative hearing officer as to whether the application should be approved, denied, or granted subject to conditions. AACC § 17-7-1003(d).

The administrative hearing officer conducts a public hearing on the application where the applicant, the County, and other interested persons may testify and present evidence. AACC § 18-16-301(b). If the administrative hearing officer is satisfied that the proposed use meets the statutory criteria set out in AACC § 18-16-304, the special exception will be approved.² The applicant bears the burden of proof in meeting all of the statutory criteria.AACC § 18-16-301(c). Whether the administrative hearing officer grants or denies the special exception application, the decision must be based "solely on the evidence presented at the hearing and observations made during any site visit." AACC § 18-16-306(a).

A party aggrieved by the Administrative Hearing Officer's decision may appeal the decision to the Board of Appeals, which reviews the application de novo using the same nine criteria provided in AACC § 18-16-304(a). See AACC § 3-1-207; § 18-16-402.

The Standard of Review

In a judicial review proceeding, the issue before an appellate court "is not whether the circuit . . . court erred, but rather whether the administrative agency erred." Bayly Crossing, LLC v. Consumer Protection Division, 417 Md. 128, 136 (2010) (cleaned up). For that reason, we "look through" the circuit court's decision in order to "evaluate the decision of the agency" itself. People's Counsel for Baltimore County v. Loyola College, 406 Md. 54, 66 (2008). A court accepts an agency's factual findings if they are supported by substantialevidence, that is, if there is relevant evidence in the record that logically supports the agency's factual conclusions. Bayly Crossing, 417 Md. at 138-39. In contrast, a court reviews the agency's legal conclusions de novo. Id. at 137. "An agency's decision is to be reviewed in the light most favorable to it and is presumed to be valid." Assateague Coastal Trust v. Schwalbach, 448 Md. 112, 124 (2016) (citing Chesapeake Bay Foundation v. DCW Dutchship, LLC, 439 Md. 588, 611 (2014)).

Analysis

Attman argues that the Board's decision must be reversed for two reasons. First, Attman asserts that the Court of Appeals' decision in Schultz v. Pritts, 291 Md. 1 (1981), required the Board to determine if there were "any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone" before granting a special exception application. Second, Attman argues that there was a lack of substantial evidence even to satisfy the statutory criteria for special exceptions that are set out in the Anne Arundel County Code.

1.

As to its first contention, Attman claims that the Board was to undertake a "Schultz analysis" (a concept that we will discuss shortly), in addition to making findings as to the special exception criteria contained in AACC § 18-16-304. In support, Attman interprets language in People's Counsel of Baltimore County v. Loyola College, 406 Md. 54 (2008), as requiring two separate and distinct standards for special exception applications—onederived from Schultz, and the other from the local zoning ordinance. For additional...