W. Montgomery Cnty. Citizens Ass'n v. Montgomery Cnty. Planning Bd. of the Maryland-National Capital Park & Planning Comm'n

248 Md.App. 314

241 A.3d 76

WEST MONTGOMERY COUNTY CITIZENS ASSOCIATION

v.MONTGOMERY COUNTY PLANNING BOARD OF the MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION

No. 579, Sept. Term, 2019

Court of Special Appeals of Maryland.

October 29, 2020

Argued by: David W. Brown (Knopf & Brown on the brief) Rockville, MD, for Appellant.

Argued by: Matthew T. Mills, Acting Principal Counsel (Adrian R. Gardner, General Counsel, on the brief), Silver Spring, MD for Appellee the Montgomery County Planning Board of the Maryland-National Capital Parks and Planning Commission, and Soo Lee-Cho (Miller, Miller & Canby, Chtd., on the brief), Rockville, MD, for Appellee Sara A. Vazer.

Panel: Kehoe, Leahy, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.

Leahy, J.

The West Montgomery County Citizens Association ("WMCCA"), appellant, along with eight neighboring homeowners (the "Neighbors"), filed the underlying petition for judicial review challenging the decision of the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "Planning Board"), appellee, approving a preliminary plan filed by Sara A. Vazer (the "Applicant"), co-appellee. The Applicant proposed to subdivide a 2.77 acre property on Glen Mill Road in Montgomery County (the "Property") into two lots with the intention of building one residence on each.

The Planning Board Staff ("Staff") recommended conditional approval of the preliminary plan in a report posted on May 25, 2018. Staff concluded that the proposed subdivision met the applicable requirements contained in the Subdivision Regulations, Chapter 50 of the Montgomery County Code ("Subdivision Regulations" or "Chapter 50"),¹ and in the Montgomery County Forest Conservation Law, Chapter 22A of the Montgomery County Code. ("Forest Conservation Law" or "Chapter 22A"). The WMCCA and the Neighbors filed written objections to the preliminary plan with the Planning Board.

The Planning Board held a public hearing to consider the application and the associated Preliminary Forest Conservation Plan on June 7, 2018. WMCCA and the Neighbors testified in opposition, but the Planning Board ultimately voted to approve the preliminary plan and accompanying Preliminary Forest Conservation Plan, with conditions. On July 2, 2018, the Planning Board issued Resolution No. 18-045 (the "Resolution"), which certified the Planning Board's conditional approval and described the Planning Board's related findings.

WMCCA and the Neighbors filed separate petitions for judicial review in the Circuit Court for Montgomery County. The Planning Board filed a motion to consolidate, which the court granted on November 1, 2018. The court held a hearing on February 8, 2019 and subsequently affirmed the decision of the Planning Board in a written decision issued on April 29, 2019.

Although the Neighbors did not appeal from the court's decision affirming the Planning Board, WMCCA timely appealed and presents three issues for our review:

"I. In Resolution MCPB No. 18-045, did the Board make findings and conclusions sufficient to permit adequate judicial review of the validity of the plan the following on three claims made by WMCCA [sic]?"

"A. Proper stream buffer standards and calculations under the applicable environmental guidelines were not employed by Staff, resulting in erroneous approval of the Application."

"B. Proper wetland buffer standards and calculations under the applicable environmental guidelines were not employed by Staff, resulting in erroneous approval of the Application."

"C. The record fails to show that the Application is in compliance with the Piney Branch Sewer Agreement Covenant."

"II. Was the Board's plan approval free of legal error with respect to WMCCA's three claims of violation of controlling environmental regulations?"

"III. Did the Applicant demonstrate the requisite ‘undue hardship’ necessary for the requested tree variance?"

For the reasons that follow, we affirm.

BACKGROUND

The Property

The Property is located on Glen Mill Road, which is "classified as a Rustic Road." It is zoned RE-1² and is situated within an area of Montgomery County governed by the 2002 Potomac Subregion Master Plan (the "Master Plan"). The Property lies within the Watts Branch watershed and a portion of the Piney Branch Stream crosses the Property, placing it within the Piney Branch Special Protection Area ("SPA").

As stated in the Staff Report, "[t]he Piney Branch stream flows from the north, under Glen Mill Road, and enters the [ ] Property from a box culvert under Glen Mill Road." The report further describes the Property as

slop[ing] upwards from Glen Mill Road and the Piney Branch stream valley and level[ing] out in the southwest corner of the Property[.] The Property contains a total of 1.54 acres of forest. Within this forested area and within 100-feet outside of the property lines, there are 40 trees equal to or greater than 24" diameter breast height (DBH). Of those 40 trees, 14 are 30" DBH or greater (specimen tree).

*** In addition to the Piney Branch stream, there is an existing hydraulically isolated pond located along the eastern side of the Property adjacent to the stream. The pond does not directly empty into the stream and is separated from the Piney Branch stream with a small berm. The pond outfalls onto the [ ] Property immediately to the south[.] In addition to the stream and pond, there is a very small wetland area associated with the stream measuring approximately 175-square feet in size located southeast of the pond.

As we explain in further detail below, WMCCA claims the wetland area is much larger because, WMCCA contends, the pond cannot be considered an area that is isolated from the stream.

The Preliminary Plan Application

On February 22, 2016, the Applicant filed an application for approval of Preliminary Plan No. 120160180 (the "Preliminary Plan") for the subdivision of the Property, which was an unplatted and unimproved parcel, 2.77 acres in size. The purpose of the Preliminary Plan was to create two lots that could accommodate two single family homes.

Under the proposed subdivision, Lot 1 would be 1.00 acre, or 43,602 sq. ft., and Lot 2 would be 1.77 acres, or 76,994 sq. ft. The lots would be accessed through a shared driveway from a single access point off of Glen Mill Road. The Applicant requested a variance from Chapter 22A to remove four trees from the Property and to "impact" the critical root zone of one other tree.

The Applicant had obtained a sewer connection for the Property, but due to restrictions under the Piney Branch SPA, could not obtain approval for an additional sewer hookup for Lot 2 without signing a Piney Branch Sewer Agreement Covenant. On May 30, 2017, Applicant signed the Covenant, agreeing to "protect the water quality and minimize environmental disturbance" on the Property in accordance with the Piney Branch sewer development recommendations developed by the Piney Branch Technical Advisory Group and the Montgomery County Department of Environmental Protection ("MCDEP").

On April 1, 2016, the Neighbors, "all contiguous and several adjacent homeowners," wrote the Planning Board to express their objection to the two-lot subdivision of the Property. While expressing, as WMCCA puts it, "qualified receptiveness" to a one-lot subdivision, the Neighbors listed several reasons for their opposition to the proposed two-lot subdivision. Notably, the Neighbors contended that "[e]nvironmental constraints on the [ ] Property in this Piney Branch Special Protection Area ... do not support creating two irregularly-shaped lots"; "[t]his two-lot plan proposes a pattern of development that is inconsistent with the [ ] Master Plan and is incompatible with the established surrounding residential community"; "[t]wo sewer connections, much less crossing a wetland buffer, the stream valley, and the stream itself to make any connection, are at odds with the restricted access for this environmentally sensitive area"; and "[t]he existing forest will be seriously compromised, all the more so with two lots[.]"

Subsequently, the Applicant amended and resubmitted her Preliminary Plan, keeping the proposed two-lot subdivision.

On November 9, 2017, the Neighbors wrote the Planning Board a second time to oppose the resubmitted Preliminary Plan, asserting that, "the few changes that have been made to the Plan are completely unresponsive to the Neighbors’ expressed concerns." They explained in a detailed seven-page letter, with exhibits, why "[f]actoring together all of the[ ] environmental resources that dominate the [ ] Property, it [wa]s obvious that the [ ] Property cannot support two buildable lots."

The WMCCA sent its written objection to the Planning Board a few days later. WMCCA pointed to several characteristics of the Property:

This Piney Branch stream channel runs through the 2.77 acre parcel which lies entirely within the Piney Branch Special Protection area. Environmental constraints impact the entire parcel and include the stream bed, 100 yr. flood plain, wetlands, stream buffer, and 2 areas of steep slopes each with more than 25% slopes. It is heavily wooded – 1.54 acres are forest and it contains 26 specimen and significant trees.

WMCCA contended that "each of these [characteristics], and especially when taken together, so constrain the buildable area of the parcel that 2 houses cannot be constructed." WMCCA's main points were:

1. The Stream Buffer Must Be Expanded to Meet SPA Requirements (because the 125’ stream buffer was too narrow and should be expanded to at least 150’ due to slopes on the property in excess of 25%).

2. Wetlands Must Be Further Delineated (because the pond cannot be considered an "isolated farm pond" and should have been delineated as wetlands, requiring an expanded buffer within the SPA).

3. The Application Fails to Demonstrate Compliance with the Provisions of the Required Piney Branch Sewer Agreement Covenant (because the application does not identify

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