Stewart v. GB Mall Ltd. P'ship

1

CARLTON STEWART, ET AL. v. GB MALL LIMITED PARTNERSHIP, ET AL.

No. 155-2022

Court of Special Appeals of Maryland

November 6, 2024

UNREPORTED

IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Prince George's County Case No CAL21-05643

Graeff, Kehoe, C., ^[**] Zic, JJ.

OPINION

Kehoe J.

This is an appeal from a judgment of the Circuit Court for Prince George's County, the Honorable Crystal D. Mittelstaedt, presiding, that dismissed a petition for a writ of administrative mandamus filed by Carlton Stewart and others^[1] to review a decision of the Prince George's County Department of Permits, Inspections, and Enforcement (the "Department"). Appellants present two issues, which we have reworded:

1. Did the circuit court err when it dismissed the petition of a writ of administrative mandamus?

2. Should this Court treat appellants' petition for administrative mandamus as a common law mandamus action?^[2]

Because the answer to each of these questions is no, we will affirm the judgment of the circuit court.

Background

GB Mall Limited Partnership is the owner of the Beltway Plaza Shopping Center (the "Property") in Greenbelt. The Property consists of 53.88 acres and is currently improved by a large shopping center. GB Mall proposes to redevelop the Property by demolishing most of the existing shopping center building and subdividing the Property into fifty-five separate parcels to accommodate 2,500 residential units and approximately 700,000 square feet of commercial and retail space.

The Property is located in the Mixed Use - Infill (M-U-I) District and is also in a Development District Overlay (D-D-O) District. Development proposals in Prince George's County of the scale and complexity proposed by GB Mall and located in either or both of these zoning districts are subject to two procedurally distinct but substantively related administrative review and approval processes, namely, subdivision approval and site plan approval.^[3] The County's subdivision regulations are codified as Subtitle 24 of the Prince George's County Code ("PGCC") (2019).^[4] The relevant site plan review and approval process is codified as Part 3, Division 9 of Subtitle 27 of the 2019 version of the County Code.

As part of the site plan review process, GB Mall must obtain the Department's approval of a stormwater management plan (also referred to as a "SWM plan") for its project. The County's stormwater management standards are found in Subdivision 2 (Stormwater Management Design Plans) of Division 3 (Stormwater Management) of the County's Water Resources Protection and Grading Code, which is codified as Subtitle 32 of the County Code.

Approval of a stormwater management plan is a three-step process. First, the property owner must submit a "concept plan," which is "[t]he first of three required plan approvals that includes the information necessary to allow an initial evaluation of a proposed project." PGCC § 32-171(a)(14). The second step is the "site development plan," which must "include[] the information necessary to allow a detailed evaluation of a proposed project." PGCC § 32-171(a)(60). The third is the final stormwater management plan, which must include "the information necessary to allow all approvals and permits to be issued by the Department." PGCC § 32-171(a)(33). PGCC § 32-182 sets out the information that must be submitted with each plan. Section 32-182 is a complicated statute. For our purposes, § 32-182 makes it clear that a site development plan requires significantly more information than what is required for a concept plan, and that a final stormwater management plan requires significantly more information than what is required for a site development plan. No grading or building permits may be issued until a "final stormwater management plan has been approved by the Department as meeting all of the requirements of [Subdivision 2 of Title 32 of the County Code.]" PGCC § 32-184(a).

In 2020, the Prince George's County Planning Board approved GB Mall's preliminary subdivision plan, subject to eighteen conditions. Appellants filed a petition for judicial review. The circuit court affirmed the Board's decision and the court's judgment was affirmed by a panel of this Court. Stewart v. Prince George's County Plan. Bd., No. 38, Sept. Term, 2021, 2022 WL 971962, at *9 (Md. Ct. Spec. App. Mar. 31, 2022), cert. denied, 479 Md. 472 (2022).

As part of the redevelopment review and approval process, GB Mall also submitted a detailed site plan for the project. The detailed site plan application was docketed as "DSP-20020" by the Prince George's County Planning Board, which approved it after holding a hearing in which appellants participated. Among the findings made by the Planning Board in its resolution approving the detailed site plan was:

The site has an approved [Stormwater Management] Concept Plan 383182020-00, which is valid until April 27, 2024. Testimony was heard from experts on behalf of both project opponents and the applicant concerning stormwater facility design and functionality. The Planning Board noted, however, that stormwater analysis is undertaken at the time of preliminary plan of subdivision, not [at the time of detailed site plan review^[5], and a finding was made at that time that the existence of the approved stormwater concept plan met the requirements of the Subdivision Regulations. Further evaluation, therefore, including approval of a final plan and any appeal of the concept plan, would fall within the purview of the Department of Permitting, Inspections and Enforcement. The Planning Board also noted that the County has the professional expertise to evaluate stormwater matters and is in the best position to address such matters.

The Planning Board's decision was appealed to the Prince George's County Council, sitting as the District Council. The District Council affirmed the Board's decision. In its decision, the Council did not address the stormwater management concept plan. Owners and/or residents of nearby properties filed a petition for judicial review. The circuit court affirmed the District Council's decision. The owners/residents filed an appeal. The circuit court's judgment was affirmed by a panel of this Court. Empirian Vill. of Maryland LLC v. GB Mall Ltd. P'ship, No. 2239, Sept. Term, 2022, 2023 WL 7871462, at *11 (Md. Ct. Spec. App. Nov. 16, 2023). This brings us to the case before us.

GB Mall submitted a stormwater management concept plan to the Department for its review and approval. On April 27, 2021, the Department issued a document titled "Stormwater Management Concept Approval" which approved a conceptual stormwater management plan submitted by GB Mall. This document stated in pertinent part:

REQUIREMENTS:

Technical Review is required for PUBLIC/PRIVATE Storm Drain/SWM Construction.

Type of Storm Drainage/SWM construction is PRIVATE.

These additional approvals are required: None.

These fees apply: REVIEW.

These bonds apply: None.

Required water quality controls: BIORETENTION,

Required water quantity controls: 10, 100 YEAR ATTENUATION(S).

A maintenance agreement is required.

No special conditions apply.

Required easements: None.

* * *

CONDITIONS OF APPROVAL:

1. This project involves redevelopment of an existing developed site. Site shall be designed to treat for 100% WQv^[6] of the impervious area within the proposed disturbed area and 100% WQv and Cpv^[7]for new impervious area, using ESD^[8] practices and techniques.

2. At the time of building permit review, please provide the reviewer with a geotechnical report to determine underground water table as per CB-94-2004.

3. Landscape plans are required at Technical review.

4. SHA approval required.

5. This project will require a site development fine grading permit.

6. Adequacy analysis of the receiving conveyance system is required.

7. Project needs to be ADA compliant.

8. The project is the redevelopment of an existing shopping center. The site will be converted to mixed use such as multi-family residential apartments, commercial and retail use.

9. Additional conditions:

A) For Phase I: Prior to issuance of site development fine grading permit, the developer must post a cash bond in the amount of $243,200.00 for 100-year quantity control SWM fee-in-lieu.

B) 100-year quantity control of providing 121,670 cu. ft. of storage volume for Phase I will be provided in Phase II of the project. Phase II, Phase III, and Phase IV 100-year quantity control volume will need to be determined.

C) For Phase 2 and beyond construct 10/100-year control (underground storage) for entire site in Phase 2, as shown on the concept plan.

Once the 10/100-year underground storage is built, the developer will be eligible for refund of the cash bond-[stormwater management] fee in lieu collected during Phase 1.^[9]

(Formatting in original.)

Appellants filed a petition for judicial review of the Stormwater Management Concept Approval. The parties and the circuit court treated the petition for judicial review as a petition for administrative mandamus.^[10] Appellees filed a motion to dismiss the petition, which was granted by the circuit court. This appeal followed.

The Parties' Contentions

In their briefs, appellants present three reasons why the judgment of the circuit court should be reversed:

First they concede that no State or local statute authorizes courts to review stormwater management concept plan approvals by the Department. However, they assert that the Department's decision to approve the concept plan was quasi-judicial in nature because:

[The Department] engaged-and was obliged to engage-in a fact-based review of a particular parcel of land wherein it reviewed, among other things, a vicinity map, a Natural Resources

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