This case presents a cautionary tale of a protracted struggle pitting asserted development rights against the Baltimore County Master Plan. The saga began in 1991 when the predecessor in title to the subject property to the Petitioner, HNS Development, LLC (“HNS”), and the County government failed to resolve conclusively whether certain development restrictions would be placed on parcels including and adjacent to the historic Langenfelder Mansion in Kingsville, Maryland. The “restrictions” under consideration implicated preservation of the Mansion’s historic character and the scenic view of it from Bel Air Road. During the review process of the development plan for what became the Longfield Estates subdivision, the County, in light of textual recommendations expressed in the extant Master Plan regarding protection of scenic views, required easements for certain parcels in the subdivision to protect the view of the Mansion, but stopped short of establishing the same provisions with regard to two proposed parcels containing and immediately adjacent to the Mansion. Instead of easements or other forms of clear restrictions on development of these two parcels, the County Office of Planning requested that a note be placed on the development plan indicating that the Office of Planning would not support further development on the two parcels because to do so would be in conflict with the Master Plan. Thus, the plat note deferred indefinitely the resolution of what, if any, development might be allowed on the portion of the subdivision surrounding and including the Mansion. The original developer did not contest ultimately imposition of the requested plat note. Time has not cleared the muddied waters.
HNS purchased in 2004 the subject two parcels, comprising a total of 13 acres, surrounding the Mansion after develop ment of the remainder of Longfield Estates. HNS acquired the parcels with knowledge of the cautionary note on the 1991 development plan. After having its proposed amended development plan (which sought to subdivide the lot containing the Mansion into two parcels and to place a dwelling on one of those lots and another dwelling on the parcel adjacent to the Mansion) rejected by three county agencies, the Circuit Court for Baltimore County, and the Court of Special Appeals, HNS asks this Court to conclude that its amended development plan meets the applicable development regulations of the Baltimore County Code and ignore the conceded Master Plan conflict, the latter continuing through the current Master Plan. Respondents, People’s Counsel for Baltimore County (“People’s Counsel”) and the Greater Kingsville Community Association (“GKCA”), argue that the Master Plan conflict provides a stand-alone basis for the County to reject the proposed amended development plan. We agree with Respondents.
I. FACTS AND ANTECEDENT ADMINISTRATIVE AND JUDICIAL PROCEEDINGS
Ann Langenfelder owned a 194-acre farm, containing a historic mansion, in Kingsville, Maryland. She sold the majority of the farm to the Longfield Estates Development Corporation (“LEDC”), but retained 13 acres comprised of two parcels, one containing the Mansion (Lot 42) and
After reviewing the potential Master Plan conflict, the Planning Board recommended that the CRG approve Phase II of the development, but under conditions that altered the location and configuration of some lots and restricted house siting and landscaping on nine lots as a means to maintain the scenic view from Bel Air Road to the Langenfelder Mansion. The nine lots targeted by the Planning Board were empressed with restrictive covenants to ensure that the historic viewshed was maintained. Despite the Planning Board’s conclusion that the nine lots (as proposed by the developer) were in conflict with the Master Plan, it recommended that the County not acquire the properties, which, had the recommendation been to place the land in reservation, may have foreclosed any development on the nine lots and set up a significant showdown with LEDC. Lot 42 and Parcel A were retained by Ann Langenfelder, while the remaining 181 acres (owned by LEDC) were subdivided for single-family residential lots with the restrictive covenants. No definitive restrictive covenants were placed on Lot 42 or Parcel A; however, the following Note 18 was placed on the approved Phase II final development plan:
The Baltimore County Office of Planning & Zoning would not support future development on Lot 42 or Parcel “A”. Any future subdivision of Lot 42 and/or Parcel “A” would be considered a conflict with the Master Plan as detailed by the Planning Board’s decision. Lot 42 as shown on the revised CRG Plan is designed in accordance with the Planning Board’s action of January 17, 1991. Furthermore, the Office of Planning and Zoning supports and strongly encourages the applicant to seek a conservation easement to restrict future development on Lot 42 and Parcel “A” to permanently protect the integrity of the scenic view.
Phase II of the development plan was approved by the CRG, as recommended by the Planning Board, in 1991 and the development was built-out over the ensuing years.
In 2004, Ann Langenfelder died. Her estate sold Lot 42 and Parcel A to HNS, owned by Mark Storck. Storck was aware of the 1991 Phase II final development plan’s Note 18. Later in 2004, HNS applied
Prior to the CRG meeting on the proposed amended plan, the Planning Board submitted comments that reiterated its view that Note 18 prohibited development on Lot 42 and Parcel A because, if the parcels were developed or resubdivided, a conflict would arise with the Master Plan, as determined by the Planning Board in 1991. The CRG meeting was not convened until 1 April 2005. At the meeting, HNS argued that the statutory deadline in B.C.C. § 22-56(b) for holding the CRG meeting (within 30 days of the filing of the amended plan) had passed and, therefore, B.C.C. § 22-47 provided that the amended development plan should be “deemed approved” by the CRG. 6 The CRG rejected this argument and denied HNS’s amended development plan, in light of the Planning Board’s comments. Notwithstanding this seeming “victory,” People’s Counsel and GKCA, both of which opposed approval of the amended plan, filed “protective” administrative appeals with the County Board of Appeals, presumedly because of HNS’s contention regarding the “deemed approval” for failure to conduct timely the CRG hearing. A short time later, HNS appealed to the Board of Appeals the CRG’s denial of the amended development plan.
The Board of Appeals held six days of public hearings between 19 October 2005 and 22 August 2006, culminating with a public deliberation on 9 November 2006. On 6 April 2007, the Board of Appeals issued a written opinion remanding the matter to the Planning Board for further review in determining the meaning and effect of Note 18 in relation to the amended development plan and whether a Master Plan conflict continued. The Board of Appeals retained jurisdiction over the case in order to make a decision on the merits after the Planning Board reached its decision on remand. The Board of Appeals explained that, although its review was de novo (according to Baltimore County Charter § 603), because the CRG failed to request that the Planning Board make a further determination whether a conflict existed between the proposed amended development plan and Master Plan, “a crucial piece of evidence” was missing.
7
The Board of Appeals’s opinion addressed also the question of which of the appealing parties bore the burden of showing that the CRG’s action was arbitrary and capricious, procured by fraud, or otherwise illegal. B.C.C. § 22-61(c). People’s Counsel argued that HNS waived its argument under B.C.C. § 22-47 that the amended plan was “deemed approved” because HNS had not raised the claim on or before expiration of the statutory deadline for the CRG hearing to be held. The Board of Appeals rejected this argument, concluding that B.C.C. § 22-56 provided clear time frames and it was not the developer’s responsibility to compel the CRG to act timely. Based on this conclusion, the Board of Appeals determined that the People’s Counsel and GKCA bore the burden of proof on this issue on appeal. 8 People’s Counsel and GKCA filed motions for reconsideration, arguing that the Board of Appeals erred procedurally by ordering a remand of the matter directly to the Planning Board (rather than to the CRG) and by retaining jurisdiction during the remand. All of the parties argued that the proper procedure for the Board of Appeals was to have remanded directly the matter to the CRG with instructions to refer the question of the Master Plan conflict to the Planning Board. The Board of Appeals disagreed and the revisory motions were denied. 9
On remand, the Director of the Planning Board, Arnold “Pat” Keller, prepared a report for the Board of Appeals, concluding that the proposed amended development plan conflicted with the 1989-2000 and 2010 Master Plans. The Plan ning Board adopted Director Keller’s report and concluded that no further subdivision or development were allowed on Lot 42 or Parcel A. Pursuant to B.C.C. § 22-18(b), the Planning Board forwarded its decision to the County Council on 28 April 2008, but did not recommend that the Council take any action to reserve or acquire the property. The County Council took no action, either to disagree with the determination of a Master Plan conflict or to reserve the property. 10 Receiving no response from the County Council, the Planning Board sent its findings to the Board of Appeals.
HNS requested a hearing before the Board of Appeals, which was held on 17 December 2008 and 5 February 2009. On 1 July 2009, the Board of Appeals issued an order and opinion affirming the Planning Board’s decision that the amended development plan conflicted with the Master Plan and should not be approved.
11
Nevertheless, having received the matter de novo, our referral for the Planning Board determination as to Master Plan conflict was essential to a final decision. The resultant finding of the actual existence of such a conflict can not, under the CRG Rules, be ignored. Therefore, once the Planning Board has now determined that such a conflict with the 2010 Master Plan does in fact exist, and no action having been taken to the contrary by the County Council, it is clear that the requested amendment to the original CRG Plan in this matter can not be allowed.
On 30 July 2009, HNS filed timely a petition for judicial review. A hearing was held on 13 April 2010 in the Circuit Court for Baltimore County. The Circuit Court issued its opinion shortly thereafter affirming the Board of Appeals’s decision. On 28 May 2010, HNS appealed timely to the Court of Special Appeals.
The Court of Special Appeals, in
HNS Development, LLC v. People’s Counsel for Baltimore County,
The Court of Special Appeals concluded also that the Baltimore County Master Plan “is binding as to development and subdivision plans in Baltimore County” because provisions of the Baltimore County Code direct that “development of land must conform to the master plan.”
HNS,
As to whether HNS’s argument that the County Council’s failure to place in reservation or acquire the subject property after the Planning Board notified it of the Master Plan conflict constituted a taking (without just compensation) of Parcel A
and Lot 42, the intermediate appellate court concluded that HNS failed to preserve the issue for appeal because it was not “raised previously in the CRG process, before the Board on appeal in 2005, through 2006, or before the Planning Board on remand and, as such, was not a part of [the] Planning Board’s April 17, 2008 Report to the Board.”
HNS,
HNS filed timely a petition for a writ of certiorari, which we granted,
HNS Development, LLC v. People’s Counsel for Baltimore County,
1) Did the county board of appeals impermissibly create a new requirement of Master Plan compliance in addition to that contained in the stated development regulations?
2) Did the county board of appeals impermissibly create upon a finding of Master Plan conflict a means of taking without just compensation?
3) Is the statement on a development plan that a county agency would oppose further development of a parcel and lot the same as an exaction or condition of development as discussed in City of Annapolis v. Waterman,357 Md. 484 ,745 A.2d 1000 (2000)?
We hold that, according to the Baltimore County Code, the Master Plan is an inextricable part of the development regulations and, as such, compliance with its recommendations is a binding regulatory requirement of the subdivision and development plan review process in the County. Thus, nonconformity with the Master Plan
II. STANDARD OF REVIEW
We review directly the action of local government administrative body, notwithstanding the same review by any intervening courts.
People’s Counsel for Balt. Cnty. v. Loyola Coll. in Md.,
When an agency resolves a question of law, however, our review is less deferential. We will not uphold an “administrative decision which is premised solely upon an erroneous conclusion of law.”
People’s Counsel for Balt. Cnty. v. Md. Marine Mfg. Co.,
III. DISCUSSION
A. The Master Plan Conflict
HNS maintains that the Board of Appeals erred in denying the proposed amended development plan on the basis of the Planning Board’s finding that approval
We begin our analysis with a brief overview of the role of the Master Plan in Baltimore County. The Baltimore County Master Plan sets forth “comprehensive objectives, policies, and standards to serve as a guide for the development of the county.” Baltimore County Charter, § 523. The Office of Planning prepares a proposed Master Plan (and amendments), which the County Council must accept or modify, and then adopts it by resolution. Id. The Master Plan objectives and policies are incorporated into the development purposes and policies set forth in B.C.C. §§ 22-37 (Development Policies) and 22-38 (Development Purposes). B.C.C. § 22-37 states that “Lajll development of land must conform to the master plan and these regulations.” A stated purpose of the development regulations is “[t]o implement the future growth and development of Baltimore County in accordance with the master plan.” B.C.C. § 22-38(b). As noted by HNS, B.C.C. § 22-38 provides that “[cjompliance with the development regulations hereinafter set forth shall be deemed the fulfillment of the development policies set forth in section 22-37 and the purposes set forth in section 22-38.” The “development regulations” are set forth in B.C.C. § 22-37 through § 22-119. B.C.C. § 22-40(b). Compliance with the Master Plan is considered a part of the development plan review and approval process. B.C.C. § 22-54(b).
At the time of the review and approval of Phase II of the Longfield Estates subdivision in 1991, development plan review was conducted under a prior iteration of the CRG process, which is no longer in existence.
12
In 2005, when HNS filed its amended development plan, the County Code provided
that proposed amendments to approved development plans be reviewed in the same manner as the original plan.
13
Prior to a development plan being
When the CRG meets, if it appears that the proposal conflicts with the Master Plan, the development plan must be referred to the Planning Board. B.C.C. § 22-59(a)(l). After its review of the potential Master Plan conflict, the Planning Board files concurrently a written decision with the CRG and the Baltimore County Council. B.C.C. § 22-60(b)(l). Unless the County Council overrules the Planning Board’s determination regarding the Master Plan conflict, the Planning Board’s decision is binding upon the CRG and must be incorporated into the CRG’s final action on a proposed plan. B.C.C. § 22-60(c). Any person “aggrieved or feeling aggrieved by final action on a plan” may appeal to the Board of Appeals within 30 days of the date of the final action by the CRG. B.C.C. § 22-61(a). On review by the Board of Appeals, “[t]he 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(d).
HNS’s view that its amended development plan met the “development regulations” and, therefore, must be deemed in compliance with the ordinance and the Master Plan is an illogical conclusion that imagines a unique conception of “development regulations” not contemplated by the Code. The development regulations are composed of all of the policies, definitions, procedures, and rules found in B.C.C. § 22-37 through 22-119. These sections of the code incorporate the Master Plan in multiple locations by stating that: “land must conform to the master plan and these regulations” (B.C.C. § 22-37(a) (emphasis added)); growth must be implemented “in accordance with the master plan” (B.C.C. § 22-38(a)); predevelopment conferences must address potential Master Plan intent and conflicts; (B.C.C. § 22 — 54(b)); the CRG must refer Master Plan conflicts to the Planning Board (B.C.C. § 22-59(a)(1)); and the Planning Board must dispose of the Master Plan conflict by a certain procedure (B.C.C. § 22-60(b)(l) & (c)).
HNS’s narrow reading of B.C.C. § 22-38 ignores the integrated role of the Master Plan in the overall land development regulatory scheme. We do not see how, once the Planning Board’s decision (that the proposal reflected in the amended development plan was in conflict with the Master Plan) became binding on the CRG review and approval process, the development could still be in compliance with the development regulations.
HNS concedes that the Master Plan and development regulations have a “close nexus” and that the development regulations contain strategies to achieve the goals of the Master Plan. Those strategies for compliance include the Planning Board process for determining potential Master Plan conflicts. As HNS points out, the textual recommendations of the Master Plan and community plans are rarely site-specific in their language, so the seemingly broad resolution provisions for determining conflicts are necessary to allow the technically competent county personnel to interpret the Master Plan on a site-by-site basis as development proposals are tendered. HNS failed to explain a cogent reason for why the Board of Appeals’s decision to reject an amended development plan, that conflicted admittedly with the Master Plan, was improper in light of clear statutory language that “development of land must conform to the master plan.”
The Baltimore County Code provides a process where the County Council, as part of the development review process, may place in reservation, for up to 18 months, a portion or all
of the land involved in a development submission, thus delaying development while the County determines if it should acquire the property.
Sycamore Realty Co. v. People’s Counsel for Balt. Cnty.,
HNS reasons that, because there is no provision in B.C.C. § 22-18 for what happens when (as happened here) the Planning Board, in identifying a Master Plan conflict, recommends nonetheless that the County Council not reserve or purchase the subject property, the conclusion that a Master Plan conflict exists has no efficacy. This ignores plainly the import in the development regulations of a Master Plan conflict. When the Planning Board concludes that it is not in the public interest to acquire a property, and the County Council does not override this position, the Planning Board’s conclusion that the amended development plan is in conflict with the Master Plan remains and is binding on the final action taken by the CRG. Nothing in B.C.C. § 22-18 negates B.C.C. § 22-60(c); it provides a procedure for determining whether the County should attempt to acquire the property.
Here the County Council did not act to overrule the Planning Board’s conclusion that the amended development plan conflicted with the 1998-2000 and 2010 Master Plans; therefore, B.C.C. § 22-60(c) mandates that that decision become part of the final CRG action. Regardless of whether the Board of Appeals erred by retaining jurisdiction over the case (as all parties contend), rather than remanding it back to the CRG (instead of the Planning Board), the end game is the same, in our view. The county agency tasked with determining whether a Master Plan conflict existed made its decision. This decision was not arbitrary or capricious, based as it was on analysis of the prevailing Master Plan at the time of the original development approval of Phase II of the Longfield Estates development in 1991, Note 18 appended to that plan, and the Master Plan in effect when the proposed amended development plan for Lot 42 and Parcel A was considered. HNS does not assert here that the Planning Board concluded improperly that there was a Master Plan conflict.
HNS strains to make something of the distinction between Master Plan conflict versus conformance. It states that the conflict provisions in the development regulations are in place only as a trigger to allow the County time to acquire properties, found to be in conflict with the Master Plan and desirable for public acquisition, through eminent domain or negotiation. In our view, whether a property, empressed with a reservation, is acquired by the County is a wholly separate process and purpose of the B.C.C., discussed
supra.
Equally significant, if not of greater importance, the development regulations determine how the County is to be developed over time and place restrictions on developments and subdivisions in order to achieve the long term goals of the Master Plan. Whether conforming development is in the best interest of the County and the public is a separate matter from acquisition of desirable public property. As pointed out by HNS, nine parcels in the original Phase II Longfield Estates development plan were found to be in conflict with the Master Plan initially, but were not acquired by the County, presumably because to do so would not benefit the public. Moreover, the developer modi
fied its development proposal for these lots so as to ameliorate the conflict and induce the County not to reserve the lots. Acquisition of a property is not the only mechanism for the County to protect its Master Plan goals. Reasonable restrictions on development, including limiting lot sizes, house siting, and numbers of lots, are implemented regularly and are not challenged here by HNS. These restrictions were implemented in the initial Phase II Longfield Estates development plan, approved by the CRG, in order to bring the
We agree with the Court of Special Appeals’s reasoning that when the development regulations incorporate Master Plan compliance the Master Plan itself becomes a regulatory device, rather than a mere guide and recommendation.
HNS,
which are the result of work done by planning commissions and adopted by ultimate zoning bodies, are advisory in nature and have no force of law absent statutes or local ordinances linking planning and zoning. Where the latter exists, however, they serve to elevate the status of comprehensive plans to the level of true regulatory devices.
B. A Taking Without Just Compensation?
HNS argues that, when the Board of Appeals denied the amended development plan solely on the basis of a Master Plan conflict, a taking without just compensation occurred. The Court of Special Appeals concluded that HNS failed to preserve properly this issue for appeal. We disagree with this reasoning because HNS presented, in oral argument to the Board of Appeals at its 17 December 2008 hearing, a vague, but notice-worthy, takings argument.
14
Although we consider the issue preserved (barely), we conclude that this challenge is waived for two reasons. Under Maryland Rule 8-504(a)(5), a brief is to contain “[a] concise statement of the applicable standard of review for each issue, which may appear in the discussion of the issue or under a separate heading placed before the argument.” Moreover,
The Court of Special Appeals refused repeatedly (based on Md. Rule 8-504(a)(5)) to address issues not briefed properly by a party.
See, e.g., Rollins v. Capital Plaza Assocs., 181
Md.App. 188, 202,
C. Is Note 18 an Exaction?
HNS argues that Note 18 on the 1991 Longfield Estates, Phase II, final development plan does not rise to the level of an exaction as discussed in
City of Annapolis v. Waterman,
There is no dispute between the parties that Note 18 is not an exaction and, therefore, we decline to offer an advisory opinion, a practice long forbidden by this Court.
Md.-Nat’l Capital Park & Planning Comm’n v. Randall,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Notes
. The lot and parcel numerical designations are as identified in the 1991 development plan for Phase II of Longfield Estates.
. The County Review Group came into being in 1982 as a government body to review land development plans. Until a recent change in the Baltimore County Code, amendments to plans approved previously by a CRG were to "be reviewed and approved in the same manner as the original plan.” Baltimore County Code (B.C.C.) § 32-4-262 (2008).
. For an explication of the conflict, infra note 11.
. The Langenfelder Mansion was not included on the County’s list of historic properties by the Baltimore County Landmarks Preservation Commission until 1996. Its inclusion was due, in part, to the advocacy of the GKCA.
. The B.C.C. was recodified after the original approval in 1991 of the Longfield Estates development. All B.C.C. references hereafter are to the 1988-89 Supplement to the 1987 Code (the prevailing Code in 1991), unless otherwise noted. •
. B.C.C. § 22-47 states:
If any county agency fails to act on any plan or plat submitted in accordance with these regulations within the prescribed time, the plan or plat shall be deemed to have been excused by the administrative officer, in writing, no later than seven (7) days after the expiration of the prescribed time.
. Although it is to some extent conjecture (because the Board of Appeals's explanation was a tad obscure), we infer that the specific premises for remand were: (1) that the Planning Board's pre-CRGhearing comments were not in response to a formal referral to it by the CRG; and (2) that the pre-CRG-hearing comments by the Planning Board did not elaborate whether the Master Plan conflict continued under the 2010 Master Plan, explicating its comments only in terms of the Master Plan in place in 1991.
. We are not called upon in this case to fathom why this was so.
. Likewise, we are not asked here to opine on this point.
. B.C.C. § 22 — 18(b) requires that the Planning Board determine "whether or not it believes that it would be in the public interest to reserve any portion or all of the land involved in” a proposed development plan (original or amended) and forward that recommendation to the County Council. In its report to the County Council, the Planning Board recommended against reservation.
. B.C.C. § 22-37(a), a part of the County Code governing development policies, requires that "[a]ll development of land must conform to the master plan.” In a 7 January 1991 memorandum from the then director of the Office of Planning and Zoning to the Planning Board, the Master Plan conflict was described as follows: Longfield Estates was within the designated Kingsville-Fork "rural protection land use areas” and the Master Plan directed the County to "protect existing visual elements in new development in rural protection areas.” The 1989-2000 Master Plan stated that "the primary intent of the Master Plan for rural areas is that new development be very carefully adjusted to the visual and environmental character of the area,” and that "[djevelopment of houses in the centers of fields and the clearing of woodlands for houses would dramatically and irreparably damage the visual character of the entire area.”
In a 20 February 2008 memorandum to the Planning Board, Director of the Office of Planning, Pat Keller, described the conflict with the 2010 Master Plan which "reinforces the goal of earlier master plans to protect agriculture and sensitive environmental areas of the rural county from development encroachment.” The memorandum stated that the 2010 Master Plan designated Longfield Estates as rural residential, which limits new residential growth and aims to protect and maintain the character of such areas. The memorandum cited also the 2010 Master Plan's scenic resources policy, which is to "[p]reserve and enhance the county’s scenic resources ... including scenic corridors, scenic views and gateways, as an essential component contributing to the county’s quality of life.” The memorandum relied also on the Greater Kingsville Community Plan, adopted by the County Council on 1 July 1996, which states that scenic views of historic places, including the Langenfelder Mansion, a designated historic property, be "enhanced and protected.” The Community Plan requested, in the context of residential development, that "development of significant scope have an area set aside either on individual lots or in single ownership where additional non-agricultural construction is not permitted. The location of open space would depend on environmental sensitivity, protection of neighboring agriculture, visual impact, and compatibility with the proposed development with neighboring properties.”
. “The CRG consists of the directors of the department of public works and office of planning and zoning or their designated representatives.” B.C.C. § 22-57(a).
. The Board of Appeals explained in its 6 April 2007 opinion:
The CRG process was adopted in Baltimore County by Council Bill 56, 1982, and codified in the Baltimore County Code, 1978 in Sections 22-37 et seq. The CRG process has been superceded by the development process in use today in B.C.C. Sections 32-4-101, et seq. However, any amendments to plans adopted using the CRG process were to 'be reviewed and approved in the same manner as the original plan.’ (Section 32-4-262).
B.C.C. § 32-4-262(2) now provides that amendments to development plans are reviewed under current regulations.
. The Court of Special Appeals concluded, alternatively, that there was no taking because B.C.C. § 22-18 applies only to initial subdivision plans and not the amended development plan at issue here.
HNS Dev., LLC v. People’s Counsel for Balt. Cnty.,
. HNS's sole citation of any "authority” in the relevant argument section of its brief is to
City of Annapolis v. Waterman,
. HNS’s reply brief was devoid similarly of argument and authority.