Hns Dev. v. People's Counsel For Baltimore County

200 Md.App. 1

24 A.3d 167

HNS DEVELOPMENT, LLC

v.PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.

No. 639

Sept. Term

2010.

Court of Special Appeals of Maryland.

July 8, 2011.

John B. Gontrum (Jennifer R. Busse, Whiteford, Taylor & Preston, L.L.P., on the brief), Towson, MD, for appellant.J. Carroll Holzer and Peter Max Zimmerman (Carole S. DeMilio, Holzer & Lee, on the brief), Towson, MD, for appellee.Panel: EYLER, DEBORAH S., WATTS, and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.WATTS, J.

This case involves the denial of a proposed amendment to the development plan for a multi-lot subdivision in Baltimore County, known as Longfield Estates. Appellant, HNS Development, LLC, filed with the Baltimore County Review Group (the “CRG”) ¹ a proposal to amend (the “amended plan”) the original development plan for Longfield Estates, seeking to further subdivide and develop the property. Appellees, People's Counsel for Baltimore County and Greater Kingsville Civic Association, objected to the amended plan, and the CRG denied approval of the amended plan. Both appellant and appellees appealed the CRG's denial to the Baltimore County Board of Appeals (the “ Board”). The Board found, pursuant to Baltimore County Code (“B.C.C.”) § 22–47 (1978, 1988/89 Supp.), that the amended plan had been deemed approved through untimely action by the CRG, and remanded the matter to the Planning Board for a determination as to whether the amended plan conflicted with the Baltimore County Master Plan (the “Master Plan”). The Planning Board ultimately determined that the amended plan conflicted with the Master Plan, and the Board affirmed the Planning Board's decision. Appellant petitioned the Circuit Court for Baltimore County for judicial review. This appeal followed the circuit court's affirmation of the Board's decision.

On appeal, appellant raised three issues ² which we have consolidated and rephrased as follows:

I. Whether the Board erred in finding the amended plan having been “deemed approved” pursuant to B.C.C. § 22–47 was subject to review under B.C.C. § 22–61(c) (1978, 1988/89 Supp.)?

II. Whether the Board erred in finding that the amended plan conflicts with the Baltimore County Master Plan?

For the reasons set forth below, we answer both questions “no” and shall affirm the judgment of the Circuit Court for Baltimore County.

FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 2004, appellant acquired the property at issue, Longfield Estates. Longfield Estates is an existing residential subdivision in the Kingsville area of Baltimore County. On February 17, 2005, appellant filed an amended plan seeking an amendment to the Longfield Estates II CRG Plan, which was originally approved in 1991.³ Pursuant to the amended plan appellant sought: (1) to place a dwelling on a portion of Parcel A; (2) a lot line adjustment combining the remainder of Parcel A with Lot 42; and (3) a subdivision of Lot 42 to obtain one additional lot.

Appellees objected to the amended plan. On February 17, 2005, a meeting notice was issued pursuant to the CRG process.⁴ Per the notice issued on February 17, 2005, on March 21, 2005, a pre-CRG meeting was held. On April 1, 2005, a CRG meeting was conducted, and at this meeting, the CRG denied approval of the amended plan in light of Note 18 of the 1991 CRG Plan and the finding of the Planning Board in 1991, that there was a conflict with the Master Plan that prohibited building on the two lots. On April 14 and 15, 2005, appellees, People's Counsel, and Greater Kingsville filed Notices of Appeal, respectively, to preserve their rights to a de novo hearing before the Board.⁵ On April 26, 2005, appellant appealed the CRG's denial of the amended plan.

The Board held six days of public hearings on the appeals,⁶ culminating in a public deliberation held on November 9, 2006. On April 6, 2007, the Board issued a final Opinion and Order, explaining that Baltimore County Charter § 603 provides that review by the Board is to be de novo, however, the scope of review is narrow: “The final action on a plan shall be presumed correct and the person aggrieved shall have the burden of persuasion to show that such action was arbitrary or capricious, procured by fraud, or otherwise illegal.” B.C.C. § 22– 61(c). In the Opinion, the Board addressed three issues:

1. Whose appeal goes forward? When the CRG met, it denied the amendment, which would make this [appellant]'s appeal. However, [appellant] argues that because the CRG did not meet within the timeframe specified by [B.C.C.], the [amended plan] became automatically approved which would make this case an appeal by the [appellees].

2. Does the doctrine of res judicata apply to this proposal and preclude consideration of two additional lots for Parcel A and Lot 42?

3. Should this case go back to the Planning Board for review of the Master Plan conflict?

The Board found, as to issue one, that “[t]he amendment to the plan was adopted for filing on February 17, 2005.” The thirty day deadline was March 19, 2005, yet, the CRG meeting was not held until April 1, 2005, twelve days after the deadline.⁷ The Board stated:

This Board finds that the County Code requirements regarding the time frames for the CRG process were very clear, and the CRG failed in its responsibility to either meet within the required timeframe or explain its failure to act within seven days. The County Code places the burden to act on the CRG and not on the Developer. Therefore, through its inaction and delayed meeting, the CRG in effect approved this amendment to the CRG plan, making this case an appeal from [appellees].⁸

As to the second issue, the Board found that the doctrine of res judicata does not apply in this case. Although appellees argued that “the issues regarding Parcel A and Lot 42 were decided in 1991,” the Board agreed with appellant that in Whittle v. Bd. of Zoning Appeals, 211 Md. 36, 44, 125 A.2d 41 (1956), the Court of Appeals stated, “the doctrine of res judicata has been held not to be applicable where the earlier decision was made not by a court of record, but by a board of zoning appeals, an administrative agency” and appellant pointed out that the “initial CRG case was never litigated,” therefore, res judicata does not apply.

As to the third issue, the Board found in pertinent part:

[B.C.C.] Section 22–59 requires that the CRG refer proposed plans to the Planning Board in certain circumstances, including “when the proposed plan conflicts with the Master Plan.”

* * *

At the heart of this case is the question of what Note 18 means and whether any development of these two lots would be a conflict with the Master Plan. But, this Board finds that a crucial piece of evidence is missing as a result of the CRG's inaction. The question of whether the proposed amendment is in conflict with the County Master Plan was never put before the Planning Board, as required by Section 22–59. Without that input, this Board is unable to move forward. In this respect, we find that the CRG was arbitrary and capricious in its failure to act in a timely fashion and by not referring the matter to the Planning Board as required by law.

This Board therefore votes unanimously to remand this proposed [amended plan] to the CRG for referral to the Planning Board for them to decide whether it conflicts with the Baltimore County Master Plan. This Board will retain jurisdiction and will decide the merits after the Planning Board reaches its decision.

Appellees filed motions for reconsideration on May 2, 2007, and August 22, 2007. These motions were denied on August 10, 2007, and September 7, 2007, respectively.

Following remand of the case, on February 20, 2008, the Director of the Planning Board, Arnold F. ‘Pat’ Keller, III (“Director Keller”), submitted a report to the Planning Board finding that the amended plan conflicted with the Master Plans of 1989–2000 and 2010. On April 17, 2008, the Planning Board adopted Director Keller's report finding a conflict with the Master Plans and found that no further subdivision /development or future development on Lot 42 and/or Parcel A would be permitted. The Planning Board forwarded its decision to the County Council on April 28, 2008 and the County Council took no action. On April 30, 2008, the Planning Board's findings were sent to the Board, as the Board retained jurisdiction under the April 6, 2007, Order.

On June 26, 2008, appellant requested a hearing before the Board. On December 17, 2008, the Board conducted a hearing, and on February 5, 2009, appellant filed a document titled, “Memorandum of Petitioner Summary of Petitioner's Position” with the Board. On February 5, 2009, appellees also filed Post–Remand Hearing Memoranda. On July 1, 2009, the Board issued an Order affirming the Planning Board's decision that the amended plan conflicts with the 2010 Master Plan. In an Opinion accompanying the Order of July 1, 2009, the Board explained:

As a result of the Remand by the [Board], the question of a possible conflict of the Petitioner's proposed amendment with the Baltimore County Master Plan 2010 was taken up by the Planning Staff. They recommended in their report to the Planning Board of February 20, 2008 that there be a finding, that the proposed amendments to the original along with the CRG approval were in conflict with the Baltimore County Master Plan. The Planning Board met and adopted the Staff Report, and confirmed that a conflict with the Master Plan 2010, did in fact, exist....

It should be noted that the County Council took no action to over-ride the conclusion of the Planning Board.⁹

This Board holds that the case at bar is being heard by us on a de novo basis, as a result of the various appeals filed by the parties. As such, prior actions and determinations alleged to have occurred by operation of law no longer stand.

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Nevertheless, having received the matter de novo, our referral for the Planning Board determination as to...