CLEANWATER LINGANORE, INC., et al. v. FREDERICK COUNTY, Maryland, et al.
No. 1917, Sept. Term, 2015
Court of Special Appeals of Maryland
December 28, 2016
151 A.3d 44
Kathy L. Mitchell (John S. Mathias, County Attorney of Frederick, MD) C. Robert Dalrymple (Justin M. Baylor, Linowes and Blocher, LLP of Frederick, MD) on the briefs, for Appellee
Meredith, Nazarian, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Harrell, J.
How many angels can dance on the head of a pin? This ancient metaphor, conceived originally as a mock example used to discredit medieval scholastic philosophy, but deployed here with non-satirical intent, is an apt segue into this opinion. Based on the parties’ positions regarding the flagship question in the present case, we imagine the answer Appellants would give to the philosophical query would be “one,” while Appellees would respond likely with “a lot more than that.”
Appellees, Eugene B. Casey Foundation (Casey) and Frederick County, Maryland (the County), entered into a Development Rights and Responsibilities Agreement (DRRA) in October 2014, following its approval by the Board of County Commissioners for Frederick County (BOCC), to facilitate the
Appellants, led by Cleanwater Linganore, Inc. (CLI),1 appeal these BOCC actions. CLI argues first that the DRRA includes unlawfully broad language that purports to “freeze” local laws beyond those authorized by
Facts and Legal Proceedings2
The Casey property consists of 634 acres located in Frederick County’s New Market Planning Region (NMPR). From 1972 to 2008, the property was zoned for Planned Unit Development (PUD), designated for low density residential (LDR) development, and located in a community growth area (CGA). In 2008, the then-members of the BOCC downzoned much of
In 2012, as a part of a Comprehensive Planning and Zoning Review, a newly-constituted BOCC restored the Casey property’s CGA status and amended the Land Use Map to reinstate its recommended LDR designation. Because a PUD is a floating zone for which no individual rezoning application had been filed or prosecuted yet to the degree required by the zoning ordinance, the BOCC could not approve at that time Casey’s desired rezoning during its Comprehensive Plan and rezoning process. Accordingly, Casey submitted a piecemeal rezoning application for the PUD zone, pursuant to
The County Planning Commission reviewed Casey’s rezoning application and recommended approval to the BOCC. The BOCC considered the application at a public hearing on 15 July 2014. The Planning Staff Report (Staff Report) opined that, in the staff‘s view, the application conformed to all applicable legal standards. Casey presented several expert witnesses who testified to the rezoning application’s consistency with the Staff Report and the Comprehensive Plan. During the hearing, Appellants’ counsel argued that the rezoning application relied on land use maps adopted improperly and that the BOCC failed to contemplate adequately population projections. The BOCC rejected these arguments and approved the rezoning by Ordinance No. 14-20-675 on 23 October 2014.
As a companion matter, Casey petitioned the BOCC, anticipating hoped-for favorable action on its rezoning application, for the negotiation of a DRRA between itself and Frederick County. DRRAs generally are bargained-for agreements between property owners/developers and local jurisdictions that, among other things, provide for “freezing,” as of the date of the agreement, the application of certain extant local laws and
CLI petitioned the Circuit Court for Frederick County for judicial review of the BOCC’s approval, and the County’s execution, of the DRRA and the rezoning. Finding both actions legal and supported by substantial evidence in the record, the court affirmed the actions on 9 October 2015.4 CLI appealed timely to the Court of Special Appeals.
Questions Presented
Appellants present essentially two questions for appellate review:5
Did the Casey DRRA freeze a broader scope of local laws than permitted legally, thereby rendering the BOCC’s approval and the County’s execution unlawful in whole or in part? - Did the BOCC fail to make certain factual findings required to rezone lawfully the Casey property for the PUD zone?
Standard of Review
When reviewing the piecemeal zoning decision of a local zoning body, “[o]ur role is ‘limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.‘” Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 410 Md. 191, 203, 978 A.2d 622, 629 (2009) (quoting United Parcel Serv. v. People‘s Counsel for Baltimore Cnty., 336 Md. 569, 577, 650 A.2d 226, 230 (1994)).
We shall recount at the appropriate point in this opinion the principles governing judicial consideration of statutory interpretation questions.
Discussion
CLI mounts several arguments with respect to the DRRA: the statutory interpretation of the DRRA legislation, as applied to the relevant provision in the Agreement in this case, is ripe for appellate review because Frederick County amended several implicated laws since the execution of the DRRA in this case; the freeze provision of the Casey DRRA expands unlawfully the breadth of laws that may be frozen; and, Maryland’s DRRA enabling statute does not authorize parties to a DRRA to expand by negotiation the legally permissible scope of laws to be frozen. Regarding the BOCC’s rezoning of the Casey property, CLI argues that the BOCC failed to make requisite factual findings regarding design and building siting, compatibility with neighboring land use and plans, and population growth. Appellee Casey answers, regarding the DRRA, that: State and Frederick County laws permit DRRAs to freeze the range of local laws provided in the Casey DRRA;
I. The BOCC approved, and the County executed, the Casey DRRA based on substantial evidence and without legal error.
A. The statutory interpretation question regarding the DRRA’s freeze provision is ripe for judicial review.
CLI contends that its statutory interpretation contention vis-a-vis the scope of the “freeze” provision of the DRRA is ripe for judicial review because the County amended the substantive requirements, since the execution of the DRRA, of several local laws implicated by the freeze provision in this case.6
A controversy is ripe when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. The declaratory judgment process is not available to decide purely theoretical questions or questions that may never arise, or questions which have become moot, or merely abstract questions. Nor should it be employed where a declaration would not serve a useful purpose or terminate a controversy. To address issues which are non-justiciable because they are not ripe would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.
As discussed in greater depth infra, the Casey-County DRRA purported to freeze a variety of specific Frederick County local ordinances or fields of regulation, i.e., laws, rules, regulations, and policies related to “development, subdivision, zoning, comprehensive planning, moderately priced dwelling units, growth management, impact fees, water, sewer, stormwater management, environmental protection, land planning and design, adequate public facilities laws[,] and architecture.” Casey DRRA, Art. VIII § 8.1.B. Because, since the Casey DRRA’s execution, the County amended, among other laws, its ordinance regulating developments near waterbodies, CLI argues that its challenge to the scope of the freeze provision is ripe for judicial review:7
Frederick County has amended a number of County laws that are directly implicated by the DRRA’s freeze provision, including an amendment to the County’s Waterbody law limiting impervious development within the waterbody buffers. ... [T]he Waterbody amendments would be direct-
We agree with CLI that its challenge to the scope of the freeze provision of the Casey DRRA is ripe for review. The amendment of the aforementioned local provision constitutes an accrued state of facts, beyond the theoretical, that bears directly on the justiciable question of whether the DRRA froze properly a wide range of laws, implicating, at a minimum, the ordinance regulating developments near waterbodies that was amended subsequent to the execution of the DRRA and would otherwise apply to development of the Casey property.
Each side posits facially reasonable arguments regarding interpretation of the scope of “local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to [a DRRA].”
(a) Except as provided in subsection (b) of this section, the local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to an agreement shall be the local laws, rules, regulations, and policies in force at the time the parties execute the agreement.
(b) If the local jurisdiction determines that compliance with local laws, rules, regulations, and policies enacted or adopted after the effective date of an agreement is essential to ensure the public health, safety, or welfare, an agreement may not prevent a local government from requiring a person to comply with those local laws, rules, regulations, and policies.
8.1 Effect of Agreement
B. Except as otherwise provided in Sections 2.5, 3.4[,] and 8.3 of this Agreement, the County Development Laws, regulations[,] and policies governing the use, density[,] or intensity of the Property, including but not limited to those governing development, subdivision, zoning, comprehensive planning, moderately priced dwelling units, growth management, impact fees, water, sewer, stormwater management, environmental protection, land planning and design, adequate public facilities laws[,] and architecture shall be the laws, rules, regulations[,] and policies, if any, in force on the Effective Date of the Agreement.
C. If the BOCC determines that compliance with County Development Laws enacted or adopted after the Effective Date of this Agreement is essential to ensure the health, safety[,] or welfare of residents of all or part of Frederick County, the BOCC may impose the change in laws, rules, regulations[,] and policies and the effect thereof upon the Property.
(emphasis added).
Courts are guided by a number of principles when confronting cases calling upon them to discern the intended meaning of contested statutory text:
We look first to the language of [the statute]. We apply the well settled rules of statutory construction in interpreting the statute before us. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the statute’s apparent purpose, we give effect to the statute as it is written. If the language of the statute is ambiguous,
we resolve the ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. We consider both the ordinary meaning of the language of the statute and how that language relates to the overall meaning, setting, and purpose of the act. We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense. We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.
Jamison v. State, 450 Md. 387, 396 n.9, 148 A.3d 1267, 1273 n.9 (2016) (quoting Blake v. State, 395 Md. 213, 224, 909 A.2d 1020, 1026 (2006)) (citations omitted).
We conclude to be ambiguous on its face the intended scope of “the local laws, rules, regulations, and policies” that “govern[] the use, density, or intensity” of real property.8 “Govern,” according to Black‘s Law Dictionary, means “to control a point in issue.” Black‘s Law Dictionary 810 (10th ed. 2014). Zoning laws control unmistakably the use, density, or intensity of real property, but laws regulating, for example, subdivision, architecture, public utility requirements, and environmental protection may do so as well. Somewhat more attenuated in their potential for “control” of “use, density, or intensity” are impact fees and stormwater management requirements. We turn, therefore, to the legislative history and purpose of the DRRA Act to seek aid in pursuit of identifying the Legislature’s intent.9
Our review of the DRRA Act’s legislative history unearthed two significant documents. First, the Fiscal Note for HB 700, the original bill that became the Act in 1995, discussed some of the types of local laws implicated by the DRRA in dispute here. With specific reference to local revenues, the Fiscal Note stated that “[a] local jurisdiction opting to enact such an [implementing] ordinance and enter into agreements could be affected to the extent that during the period of an agreement it could not effect changes in impact fees, permit fees, water and sewer hookup fees, etc. applicable to development. Thus, there could be a loss in revenues, of an indeterminate amount, to the local governments.” Md. Gen. Assemb. Dep‘t of Fiscal Servs., Fiscal Note, H.B. 700, at 1 (1995) (emphasis added). Moreover, regarding local expenditures, “[t]he Department of Fiscal Services points out that increases in the costs of paving, storm drains, water and sewer hookups, etc. would have to be absorbed by the local jurisdiction unless an agreement accounts for cost increases otherwise (depending on applicable development policies).” Fiscal Note at 2 (emphasis added). Similarly, the Senate Economic and Environmental Affairs Committee Floor Report for HB 700 stated, in reference to the bill‘s local fiscal impact, “[r]evenues may decrease by an indeterminate amount due to the inability of a local jurisdiction to make changes to development fees, for example, impact fees, permit fees, water and sewer hookup fees, during the period of an agreement.” S. Econ.
These statements demonstrate that the General Assembly was aware of, and contemplated presumably, the DRRA Act’s freeze provision to embrace more than merely zoning ordinances, including something as seemingly attenuated as a variety of fees related to development. The use of “etc.” in both passages from the Fiscal Note, and “for example” in the Floor Report, suggest that the General Assembly anticipated that the freeze provision would impact fiscally local jurisdictions via the suspended application of increases in existing fees or the creation of new kinds of fees, and even more kinds of laws than fee schemes.
It is patent that local zoning ordinances govern most directly the “use, intensity, or density” of real property. Subdivision ordinances and regulations, as well as many environmental and public facility or utilities laws (enforced typically during the subdivision process) are to like effect. Costs and fees associated with public facilities impacts, permits, and water and sewer hookups, on the other hand, seem at first glance rather more attenuated from direct governance of a property’s “use, intensity, or density.” And yet, the DRRA Act’s legislative history demonstrates the Legislature’s contemplated inclusion of them as well as among reachable local laws for purposes of
2. Restricting the DRRA Act’s freeze provision to only zoning laws would undermine its statutory purpose.
However fictional the notion of institutional intent may sometimes be, it is fair to say that legislation usually has some objective, goal, or purpose. It seeks to remedy some evil, to advance some interest, to attain some end. If we characterize the search for legislative intent as an effort to seek to discern some general purpose, aim, or policy reflected in the statute, we state the concept more accurately and avoid the fiction.
Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987) (quotation marks and citation omitted).
In its 1995 analysis of H.B. 700, the House Commerce and Government Committee explained that State DRRA laws seek to “solve the vesting problem” by “(1) prohibiting local governments from applying new regulations to on-going projects by defining when vesting occurs, and (2) authorizing the use of development agreements.” H. Commerce and Gov‘t Comm., Bill Analysis, H.B. 700, at 3 (Md. 1995).10 The “vesting problem” refers to the balancing of a developer’s interest in securing and consolidating its legal footing to begin and complete a development project with a local jurisdiction’s interest in governing the pertinent legal domains, including amending laws and policies as necessary. In 1993, the Court of Appeals held that a developer’s rights in the development of a property vest only upon a level of visible commencement of lawful construction. Prince George‘s Cnty., Md. v. Sunrise Dev. Ltd. P‘ship, 330 Md. 297, 623 A.2d 1296 (1993). This opinion
The House Commerce and Government Committee explained such a balance as follows:
Development agreements can provide benefits for both developers and local governments. For the developer, a development agreement establishes the rules and regulations which will govern the project throughout its construction, and perhaps beyond. For the local government, the development agreement provides for greater certainty in the comprehensive planning process, as well as an opportunity to ensure the provision of necessary public facilities.
Bill Analysis at 3.
What would achieve best the legislative purpose of balancing a developer’s interest in legal stability against a local government’s interest in certainty and obtaining enhanced public benefits: limiting, for example, the Casey DRRA’s freeze provision to subsequent changes in the zoning code only, as urged by CLI, or allowing it to apply to the expansive list of local provisions in the negotiated DRRA as written? If the DRRA Act only allowed DRRAs to freeze the application of local zoning ordinance provisions, a local government could undermine still the legal and financial stability of an on-going development project by changing the laws related to, for example, development or site plans, subdivision, or planning compliance. Where a developer assumed that its project could be thwarted by a last-minute or mid-stream change to any of these non-zoning laws, it would be less likely to undertake a substantial development at all in a jurisdiction. This, in turn, would frustrate the local government’s interest in obtaining greater public benefits through negotiation of a DRRA’s terms.
C. The parties to the Casey DRRA did not negotiate impermissibly the freeze provision, nor does the DRRA interfere with local police powers.
Because we find permissible the BOCC’s and the County’s interpretation and application of the DRRA Act’s freeze provision as reflected in the Casey-County DRRA, we reject also CLI’s argument that the parties to the agreement attempted to negotiate the freeze of local laws beyond those
II. The BOCC’s rezoning decision is supported by substantial evidence.
Appellants argue that the BOCC rezoned the Casey property without making the factual findings required by the Frederick County Code and State law regarding design and building siting, compatibility with neighboring land uses, and population growth.
A. Zoning Ordinance No. 14-20-675 satisfies FCC § 1-19-10.500.3(B)’s requirement of a finding that design and building siting accord with the Comprehensive Plan.
In Zoning Ordinance No. 14-20-675, the BOCC set out its factual findings with respect to the requirements of the FCC.
It must be conceded that the BOCC listed no factual findings pursuant to
With respect to design and the siting of buildings, the BOCC described the development as follows:
The overall plan for the development delineates six distinct residential land bays, a school site, and a commercial site. These areas are located on land with minimal environmental and physical obstructions. The lands outside of these areas include stream corridors, forested land, steep slopes, and floodplains. The concept for development of this property is to allow the existing environmental features of the property to establish the overall layout.
A proposed arterial road runs continuously through the Site from south to north, connecting the various land bays.
Frontage along this central spine road alternates between development bays and natural open space areas, creating a system of access that intertwines the natural environment and the built environment. A hiking and biking trail along the spine road provides an additional access network between the open space and the development bays and enhances interconnection between them by branching into the open space areas.
Ordinance No. 14-20-675 at 4.
In a subsequent section of the Ordinance entitled “Consistency with the Comprehensive Plan,” the BOCC stated that, because of the Casey property’s LDR designation and location in the Linganore CGA, “it is identified as an area that has been targeted for growth and development and is therefore consistent with the general policy in the Comprehensive Plan that supports the location of growth within growth areas.” Ordinance No. 14-20-675 at 6. The BOCC found also that rezoning the Casey property to PUD “is consistent with the current County Comprehensive Plan,” and that the proposed development accords with the Plan’s “overall community development principles such as encouraging higher density development, a mix of land uses, providing distinctive design that contributes to a distinctive community character, efficiency of layout relative to public infrastructure, and general accessibility through multiple modes of transport as well as interconnectedness of the transportation network.” Ordinance No. 14-20-675 at 6-7.
It appears to us that the BOCC made adequate findings supporting a favorable conclusion relative to the factors in
B. Zoning Ordinance No. 14-20-675 satisfies FCC § 1-19-10.500.3(C)’s requirement of a finding that the proposed development is compatible with surrounding land uses.
The proposed development is compatible with existing or anticipated surrounding land uses with regard to size, build-
ing scale, intensity, setbacks, and landscaping, or the proposal provides for mitigation of differences in appearance or scale through such means as setbacks, screening, and landscaping; or other design features in accordance with the County Comprehensive Plan, and any applicable community or corridor plans[.]
CLI argues that “[while] the BOCC makes compatibility findings in connection with land uses that abut the outer perimeter of the Casey Property, it entirely omits any findings in connection with Hall[‘]s Choice Farm.” As with the BOCC’s design and siting findings discussed supra, here, the BOCC appears to have addressed appropriately Hall’s Choice Farm elsewhere in the Ordinance. First, the BOCC described the property: “[t]he Site surrounds an existing horse farm, Hall’s Choice Farm, which is a 35 acre sales, breeding, and training facility for Hanoverian horses. This property is not a part of this PUD application, though it is designated Low Density Residential and is part of the growth area.” Ordinance No. 14-20-675 at 14. Further along in the Ordinance, the BOCC examined the Casey developments’ compatibility with the use of the farm: “[l]andscape buffers between the project and Hall[‘]s Choice Farm, the Audubon Property, and the Swanby Property will effectively mitigate potential inconsistencies between the project and the existing uses on those properties.” Ordinance No. 14-20-675 at 23.
C. Zoning Ordinance No. 14-20-675 includes the requisite finding regarding population growth.
CLI maintains that, even if rezoning the Casey property accords with the Comprehensive Plan, the BOCC failed to engage in new population growth studies, necessitated by the fact that the Plan’s “policies, visions[,] and goals (not to mention the land use and zoning maps) were predicated upon” now-outdated population projections. In the Rezoning Ordinance, however, the BOCC calculated the population increase expected to result from developing the Casey property, based on 2010 U.S. Census data, finding that “[t]he potential additional population change as a result of the proposed 1,017
As to the BOCC’s approach to addressing the findings regarding design and the siting of buildings, compatibility with neighboring land uses, and population growth, we must defer to the expertise of the BOCC. “The scope of judicial review of administrative fact-finding is a narrow and highly deferential one,” and we do not substitute our judgment for that of the BOCC. Trinity Assembly of God, 407 Md. at 78, 962 A.2d at 418. Accordingly, for all three instances of allegedly missing or defective findings, we hold that the BOCC had before it substantial evidence upon which it based its findings and ultimate rezoning decision.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
Notes
- Is the freeze provision of the DRRA overly broad given the sworn testimony of the County‘s Expert Planning Director establishing that most of the County laws referenced in the DRRA‘s “freeze” provision do not “govern” use, density[,] or intensity?
- Is the scope of the freeze provision now ripe for judicial review given Frederick County’s recent amendments to its waterbody law, its MPDU law, and its building, electrical, and plumbing laws, all of which explicitly or implicitly fall within the DRRA‘s definition of “development laws” and thereby fall within the “freeze“?
- Does a statutory analysis of the DRRA law confirm that the freeze is limited to laws governing use, density[,] or intensity?
- Is the BOCC’s rezoning action ultra vires and void because the 2012 Land Use Map provides no legal basis for the PUD floating zone application? [Appellants filed a “Notice of Appellants’ Withdrawal of Question D” on 11 July 2016.]
- Is Rezoning Ordinance No. 13-14-642 unsustainable because it lacks any finding that the proposed development design and building site are in accordance with the County Comprehensive Plan under Zoning Ordinance Section 10-19-10.500.3(B)? [CLI intended presumably to refer to Ordinance No. 14-20-675 because Ordinance No. 13-14-642 pertains to an irrelevant property.]
- Should the rezoning action be reversed because it is not consistent with the County‘s Comprehensive Plan?
We note in passing that, even if post-Agreement amendments to the building, electrical, and plumbing codes were considered in the analysis of whether the ripeness requirements are satisfied here, these sorts of highly technical codes are amended frequently to conform to evolving national, State, or industry standards, some of which amendments are relatively mundane and others may reflect significant public safety considerations (e.g., requiring sprinklers in dwellings). It is problematic whether the more mundane changes in such codes, which may fall outside the intended scope of the “freeze” provision in the DRRA enabling statute and/or the Casey Agreement in any event, would satisfy the common law ripeness standards.
Although they forebode further litigation, there will be further opportunities to test the ultimate boundaries of any freeze provision in a DRRA. Casey (or its successors/assigns), for example, will confront many additional and necessary governmental development processes, at which times the appropriate governmental body may confront questions regarding whether a law, regulation, or policy is frozen or not. Even if the specific regulatory rule then under examination is deemed covered by the Agreement (and comes within the intent of