668 A.2d 980 | Md. Ct. Spec. App. | 1995
The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the Board), appellee, approved the resubdivision of two lots in the Glen
Appellants present the following questions, which we have rephrased for clarity:
I. Did the Board err when it interpreted Montgomery County Code § 50-29(b)(2) to permit mere consideration of, not compliance with, each of the ordinance’s provisions?
II. Does the record contain substantial evidence to support the Board’s approval of the resubdivision?
FACTS
In July 1990, Marshall and Barbara Powell submitted an application to the Board for preliminary approval for the resubdivision of a 6.85-acre tract of land located at the confluence of Circle Drive, Ridge Drive, and Watts Branch Drive in the Glen Hills area of Montgomery County. This application sought a resubdivision of the property from two lots to seven lots, each with an area of 40,000 square feet. At least five of the seven lots would be accessed by a new cul-de
The Powells submitted a revised plan in May 1993 that proposed six lots.
The Board conducted a public hearing on the revised application on July 1, 1993. The Board designated a neighborhood consisting of fourteen lots surrounding the proposed resubdivided lots as required by Montgomery County Code § 50-29(b)(2) (1994) (mandating that the Board compare proposed resubdivisions with “other lots within the existing block, neighborhood or subdivision”).
Appellants attended the hearing and presented an alternative resubdivision plan, which divided the two lots into four rectangular lots. Appellants asserted that this proposal would
The Board voted 3-to-2 to approve the resubdivision plan submitted by the Powells. It issued its decision on December 14,1993, stating, in pertinent part:
In reviewing a proposal to resubdivide property, the Planning Board must determine, based upon the evidence in the record, whether the plan comports with all of the relevant sections of the Subdivision Regulations, including § 50-29(b)(2)....
The property is located in the RE-1 zone, which imposes minimum 40,000-square-foot lot sizes.... Staff explained that an earlier submitted alternative development would have involved panhandle/pipestem lots, not in keeping with the present character of the neighborhood. The current plan, however creates large, traditionally shaped lots, in keeping with the existing neighborhood.
The Board reviews applications for resubdivision with great scrutiny, recognizing that resubdivision in an established neighborhood is subject to the heightened regulatory review set forth in the Montgomery County Code.
(Emphasis added.)
The Board concluded that the proposed resubdivision would maintain the rural character of the neighborhood:
The lots proposed in this plan will front on a newly constructed street with a cul-de-sac and also on Watts Branch Drive. The lots along Watts Branch Drive will be of the same shape, area, frontage and size as those recorded lots immediately across Watts Branch, thus assuring consistency with the existing neighborhood. The*492 lots served by the cul-de-sac will also be of the same size, shape, and area as those within the defined neighborhood adopted by the Board.
(Emphasis added.)
Appellants filed a Petition for Judicial Review in the Circuit Court for Montgomery County seeking reversal of that decision. Appellees Marshall and Barbara Powell, owners of the two lots, filed a response to the petition pursuant to Maryland Rule 7-204, indicating their intent to participate. The circuit court affirmed the Board’s decision on December 29, 1994.
STANDARD OF REVIEW
A court reviewing the decision of an administrative agency 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.” United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577, 650 A.2d 226 (1994). The standard of review thus depends upon the nature of the agency finding being reviewed. Gray v. Anne Arundel County, 73 Md.App. 301, 308, 533 A.2d 1325 (1987). First, the reviewing court must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law; the court may substitute its own judgment. See, e.g., State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 59, 548 A.2d 819 (1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989). “In regards to findings of fact, the [reviewing] court cannot substitute its own judgment for that of the agency and must accept the agency’s conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record.” Columbia Road Citizens’ Ass’n v. Montgomery County, 98 Md. App. 695, 698, 635 A.2d 30 (1994).
I.
The first issue we must decide is whether the Board properly interpreted and applied the section of the Montgomery County Code that governs the design of resubdivided lots. The ordinance states that
Mots on a plat for the resubdivision of any lot, tract or other parcel of land that is a part of an existing subdivision previously recorded in a plat book shall be of the same character as to street frontage, alignment, size, shape, width, area and suitability for residential use as other lots within the existing block, neighborhood or subdivision.
Montgomery County Code § 50—29(b)(2) (1994) (emphasis added).
Appellees contend that, if the Board must find that a proposed resubdivision meets all seven criteria, it may only approve lots that are identical to existing lots. Appellees argue, correctly, that this would be impossible. Appellants, however, have never contended that the resubdivision ordinance mandates identical lots.
Prior to 1965, the Montgomery County Code stated that resubdivided lots “shall be of substantially the same character as to suitability for residential use, area, street frontage and alignment ... as other land within the existing subdivision.” See Montgomery County Code § 101-9 (1960) (emphasis added); see also Montgomery County Code § 106-8 (1955). By 1965 the county council had changed the ordinance to its present wording, mandating lots “of the same character.” Montgomery County Code § 104-18 (1965) (emphasis added). The county council, when it removed the word “substantially,” indicated an intent to raise the standard an owner must meet in order to resubdivide lots.
Appellees argue that the criteria established in section 50-29(b)(2) provide mere “guidance” to the Board and assert that the Board must only determine “whether the application of
The zoning ordinance of Montgomery County defines the word “shall” as “mandatory and not optional.” Montgomery County Code § 59-A-2.2(a) (1984). Appellees argue that this section is “wholly contained in Chapter 59 and [is] specifically limited to that chapter alone.”
II.
We turn now to the Board’s findings of fact to determine whether there is evidence in the record to support each fact found, see Commissioner, Baltimore City Police Dep’t v.
The Neighborhood
The area or size of only eight of the fourteen existing lots in the defined neighborhood were placed on the record. The smallest of these is 42,000 square feet;
The Proposed Resubdivision
The suitability of all six of the proposed lots for residential use is conceded by both sides. There is no information in the
Lot 1: Lot 1 is 42,000 square feet,
Lot 2: Lot 2 is 41,000 square feet,
Lot 3: Lot 3 is 52,000 square feet, pie-shaped, with no frontage on existing streets. The lot is not in alignment with Watts Branch as it accesses onto the proposed cul-de-sac at an angle.
Lot 4: Lot 4 is 54,400 square feet, pie-shaped, with no frontage on existing streets. The lot is aligned with Watts Branch Drive but set off at the end of the proposed cul-de-sac.
Lot 5: Lot 5 is 50,000 square feet,
Lot 6: Lot 6 is 41,200 square feet, irregularly shaped with street frontage on Watts Branch. This lot is in alignment with Watts Branch Drive due to its frontage on that street, although access is gained from the cul-de-sac.
The Board did not find that the character of the lots conformed to all seven criteria, and thus it did not apply the correct legal standard. The Board found that lots 1, 2, and 6, those with street frontage on Watts Branch Drive, conformed
Many of the Board’s conclusions were not based on substantial evidence. Although the Board found that all six lots were of the same character as to shape, only proposed lot 1 is shaped like the lots in the designated neighborhood. Lots 2 and 6 are irregularly shaped; lots 3, 4, and 5 are pie-shaped. While the Board found that all six lots were of the same character as to size and area as the lots in the designated neighborhood, at least two of the lots are smaller than any other lot in the neighborhood.
The Board found that the proposed resubdivision “creates large, traditionally shaped lots, in keeping with the existing neighborhood.” The evidence simply does not support that finding. Besides being much smaller than the average lots in the designated neighborhood, three of the proposed lots (1, 2, and 6) are only slightly larger than the 40,000 square foot lots in the owners’ original July 1990 application for resubdivision, which the Board denied because the lots were not in “keeping with the character of the neighborhood.” Similarly, when compared to lots in the designated neighborhood, the size and shape of many of the proposed six lots in the approved resubdivision were not of the same character as the lots in the existing neighborhood.
Reasoning minds could not have reached the same conclusion arrived at by the Board as to the proposed resubdivision’s compliance with section 50-29(b)(2). Because there is no substantial evidence in the record supporting the Board’s decision to approve the resubdivision and because the Board applied the wrong legal standard, we substitute our own judgment, see, Billhimer, supra, 314 Md. at 59, 548 A.2d 819, and reverse the decision of the circuit court.
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY WITH INSTRUCTIONS TO REVERSE THE MONTGOMERY COUNTY PLANNING BOARD OF THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION’S APPROVAL OF THE RESUBDIVISION PLAN; COSTS TO BE PAID BY APPELLEES.
. Appellants are Susarme M. Lee, Harold E. Collins, Gamer W. Duvall, Jr., Mary H. Duvall, Benjamin P. Elliott, William E. Heflin, Sr., Janet S. Olding, Robert P. Olding, Paula Oser, Warren Oser, and Michael S. Renner, all of whom own property in the Glen Hills area of Rockville, Maryland.
. Appellants also ask: Did the Board violate appellants’ due process rights by failing to identify the neighborhood prior to the hearing? Appellants argue that the failure of the Board to identify the neighborhood lots until the date of the hearing caused appellants to lose the opportunity to properly prepare their case before the Board. This allegedly had a direct, adverse impact on appellants’ participation in the Board’s decision-making process and denied appellants due process. We need not reach the merits of this issue because we answer question one in the affirmative and question two in the negative.
. A copy of the plan of this proposed resubdivision has been appended to this opinion as exhibit 1.
. • A copy of the map of the neighborhood as designated by the Board is appended to this opinion as exhibit 2.
. The lots must be aligned “to existing lots and streets." Montgomery County Code § 50-2(i) (1994).
. The word "character” has been discussed but not defined in rezoning cases in which the issue is whether there has been a substantial change in the character of the neighborhood. See, e.g., Randolph Hills, Inc. v. Whitley, 249 Md. 78, 83, 238 A.2d 257 (1968). In Randolph Hills, supra, Judge Barnes, concurring in part and dissenting in part, stated, “[W]e have frequently indicated in a particular case that certain ‘changes’ did not occur within the neighborhood or did not result in a change in the ‘character’ of the neighborhood. But, alas, we have not established the criteria of what does change ‘the character' of a ‘neighborhood.’ ” Id. at 91, 238 A.2d 257. The Court of Appeals has used a case-by-case analysis in this area, holding that certain fact-specific changes in the area surrounding the proposed rezoning do not amount to a change in the character of the neighborhood. See, e.g., Hooper v. Mayor of Gaithersburg, 270 Md. 628, 638, 313 A.2d 491 (1974) (increase in number of people in community and additional traffic does not effect a change in character); Germenko v. County Bd. of Appeals of Baltimore County, 257 Md. 706, 711, 264 A.2d 825 (1970) (fact that rezoning may result in a more profitable use of the land or that hardship may follow retention of existing classification are insufficient justifications for rezoning); Helfrich v. Mongelli, 248 Md. 498, 503-504, 237 A.2d 454 (1968) (widening of street and development of colleges in the area did not change character of neighborhood).
. Appellants argue this presumably because the ordinance states “[i]n this chapter ... [‘shall’ is] mandatory.” Montgomery County Code § 59-A-2.2(a) (1984) (emphasis added).
. The record does not indicate which lot is this size. The trial judge, however, took "judicial notice” of the land records of the Circuit Court for Montgomery County and determined that Lot 3 in Block 10 was 42,983 square feet. In doing so, he made an independent finding of fact that is impermissible. See Baines v. Board of Liquor License Comm’rs for Baltimore City, 100 Md.App. 136, 142-43, 640 A.2d 232 (1994) (reviewing court restricted to record made before the administrative agency). The trial judge also looked at the size and alignment of lots outside the designated neighborhood in upholding the Board's approval. This also was impermissible. See United Steelworkers of Am. Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679, 472 A.2d 62 (1984) ("[I]n judicial review of agency action the court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.”).
. There is a discrepancy in the record as to the size of several of the proposed lots. We will use the area as stated in the Board’s opinion approving the plan. The plan submitted by the Powells, however, gives the area of this lot as 42,300 square feet.
. The plan submitted by the Powells gives the area of this lot as 41,200 square feet.
. The plan submitted by the Powells gives the area of this lot as 50,400 square feet.
. Lot 2 is 41,000 square feet, and lot 6 is 41,200 square feet. The smallest lot in the neighborhood is 42,000 feet; the trial judge found that it was actually 42,983 square feet. See, supra, note 8. If the smallest lot in the neighborhood actually is 42,983 square feet, lot 1, at 42,000 square feet, is also smaller than any existing lot in the neighborhood. Thus, half of the proposed lots would be smaller than any existing lot in the neighborhood.
. Based on the size given in the record of eight of the fourteen neighborhood lots.
