Chesapeake Bay Foundation, Inc., et al. v. CREG Westport, LLC, et al.
No. 1063, September Term 2020. Opinion by Wells, J.
ADMINISTRATIVE LAW – EXHAUSTION OF REMEDIES
When a legislature provides an administrative remedy as the exclusive or primary means
by which an aggrieved party may challenge a government action, the doctrine of
administrative exhaustion requires the aggrieved party exhaust the prescribed process of
administrative remedies before invoking the jurisdiction of the courts.
ADMINISTRATIVE LAW– FINALITY OF ADMINISTRATIVE REVIEW
An agency order is not final when it is contemplated that there is more for the agency to
do. Therefore, to be “final,” the order or decision must dispose of the case by deciding all
questions of law and fact and leave nothing further for the administrative body to decide.
ADMINISTRATIVE LAW – FOREST CONSERVATION PLANS
Forest Conservation Plans are but one component of the administrative approval process,
the approval of which does not allow for a separate, statutorily authorized mechanism of
review subject to exhaustion.
ADMINISTRATIVE LAW – FOREST CONSERVATION PLANS
Harford County’s approval of a Forest Conservation Plan leaves “more for the agency to
do.” The administrative process is not final until the county approves either a preliminary
site plan or a final plan so that construction of the designated site may begin.
Circuit Court for Harford County
Case No. C-12-CV-20-0022
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1063
September Term, 2020
______________________________________
CHESAPEAKE BAY FOUNDATION, INC.,
ET AL.
v.
CREG WESTPORT I, LLC, ET AL.
_____________________________________
Shaw Geter,
Wells,
Ripken,
JJ.
______________________________________
Opinion by Wells, J.
______________________________________
Filed: September 8, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-22 09:03-04:00
Suzanne C. Johnson, Clerk
Appellees, CREG Westport I, LLC, et al., sought to develop several parcels of land
located in Harford County into a multi-use business park. As mandated by the county’s
development process, appellees submitted a Forest Conservation Plan (“FCP”), which the
county approved. Appellants, Chesapeake Bay Foundation and several local residents,
sought judicial review of the FCP in the Circuit Court for Harford County. Appellees
moved to dismiss, arguing that approval of an FCP is not a final decision of the county’s
zoning department. The circuit court agreed and dismissed the complaint. Appellants filed
a timely appeal. Satisfied that the circuit court did not commit error, we affirm.
BACKGROUND
CREG Westport I and Harford Investors, LLP (hereafter “the developers”) sought
Harford County’s approval of their plan to develop a mixed-use business park bordered by
Interstate 95 and Edgewood and Abingdon Roads in Harford County. The completed
project, to be called the Abingdon Business Park, would have retail venues, restaurants, a
hotel, and warehouses.
The site, also known as Abingdon Woods, is zoned Commercial-Industrial. It is
composed of multiple parcels and covers over 300 acres of forested land, including non-
tidal wetlands. Because the land is mostly forested, it is subject to the Harford County
Forest and Tree Conservation Plan Regulations and to a Forest Stand Delineation as found
in the Maryland Code (2012 Repl. Vol., 2016 Supp.), Natural Resources Article (“NR”) §
5-1605 and the Harford County Code (hereafter, “County Code”) § 267-37. As they were
required to do, the developers submitted an FCP, outlining the specific strategies the
developers would take to retain, protect, and reforest the site, consistent with the provisions
of the 1991 Maryland Forest Conservation Act. See NR §§ 5–1603(a), 5–1604, and 5–
1605.
The Director of the Harford County Department of Planning and Zoning (hereafter,
“the Department”) approved the FCP on December 9, 2019. A month later, January 8,
2020, the Chesapeake Bay Foundation and several local homeowners (hereafter,
collectively referred to as “the Foundation”) petitioned for judicial review of the FCP. The
developers moved to dismiss, arguing that the FCP was not a final decision of the
Department. The Circuit Court for Harford County set the matter for a hearing on August
19, 2020.
In the meantime, and prior to the August 19 hearing, the developers submitted a
preliminary plan application to the Department, which, among other things, sought to
consolidate several of the parcels and create a public road. The Department approved the
preliminary plan on January 17, 2020. And, the developers submitted a site plan for three
lots, specifying what buildings were to be constructed and the specific uses for each lot.
The Department approved Lot 1 on February 19, 2020 and subsequently approved Lots 2
and 3 five days later, February 24, 2020. These approvals allowed the developers to begin
construction of the business park.
The hearing on the motion to dismiss was held as scheduled on August 19, 2020,
after which the court took the case under advisement. On November 22, 2020, the court
issued a memorandum opinion and order that sided with the developers, concluding that
the FCP was “not a final decision of the Department [of Planning and Zoning] . . . . .”
Further, the court found that,
2
many plans, in addition to the Forest Conservation Plan, make up the
components of the Preliminary and Site Plans. To permit judicial review of
the Forest Conservation Plan would permit piecemeal review of each
decision reached by each agency involved in the application process, and
would be contrary to the intent of Maryland Rule 7-201 and section 709 of
the Harford County Charter.
Finally, the court noted that the Foundation could appeal the “overall development plan.”
Significantly, the Foundation chose not to challenge either the Department’s
approval of the preliminary plan or the approval of the site development plan. Instead, the
Foundation appealed from the circuit court’s dismissal of the petition for judicial review.
Now, before this Court, the Foundation poses two questions which we have distilled
into one: Did the circuit court properly dismiss the Foundation’s petition for judicial
review of the FCP because it was not a final action of the Department?1 Additional facts
will be discussed later in the opinion.
STANDARD OF REVIEW
Whether the circuit court erred when it granted the developers’ motion to dismiss is
a question of law, which we review de novo. Greater Towson Council of Cmty. Ass'ns v.
DMS Dev., LLC, 234 Md. App. 388, 408 (2017). In reviewing the complaint, we must
“presume the truth of all well-pleaded facts in the complaint, along with any reasonable
inferences derived therefrom.” “Dismissal is proper only if the facts and allegations, so
1
The Foundation’s verbatim questions are:
1. Whether the approval of a Forest Conservation plan is a final agency action
subject to review by the Circuit Court?
2. Whether the Circuit Court erred in dismissing the petition for judicial review of
the Forest Conservation Plan?
3
viewed, would nevertheless fail to afford plaintiff relief if proven.” Higgginbotham v.
Public Service Com’n of Maryland, 171 Md. App. 254, 264 (2006). Additionally, “[t]his
Court will affirm the circuit court’s judgment ‘on any ground adequately shown by the
record, even one upon which the circuit court has not relied or one that the parties have not
raised.’” D.L. v. Sheppard Pratt Health System, Inc., 465 Md. 339, 350 (2019) (quoting
Sutton v. FedFirst Fin. Corp., 226 Md. App. 46, 74 (2015) (citations omitted), cert. denied,
Sutton v. FedFirst Fin., 446 Md. 293 (2016)).
ANALYSIS
Both parties agree that the so-called rules of “exhaustion” and “finality” apply in
this case. In other words, before a party seeks judicial review of an administrative agency’s
actions, they must first exhaust all statutorily prescribed administrative remedies and the
agency’s action must be its final one. See Renaissance Centro Columbia, LLC v. Broida,
421 Md. 474, 487 (2011). They disagree about whether an FCP is a final administrative
decision of the Department.
A. Parties’ Contentions
The Foundation contends that the Department’s approval of an FCP is a “final
agency action.” Their argument rests on the theory that because the Forest Conservation
Act and the Harford County Code “prioritizes retention of ‘[c]contiguous forest that
connect the largest undeveloped or most vegetated tracts of land within and adjacent to the
site,’” the Director’s decision on whether an applicant’s FCP “application is ‘complete and
approved,’” ends the administrative process, at least as far as forest retention is concerned.
See NR § 5-1607(c)(ii); County Code § 267-39(C)(2).
4
In the Foundation’s opinion, the Department’s approval of an FCP is immediately
appealable under County Code § 268-28, because it is a stand-alone administrative “action,
ripe for judicial review, and not simply an interlocutory order.” Specifically, County Code
§ 268-28(A) permits a “[a]ny interested person whose property is affected by any decision
of the Director of Planning and Zoning, …within 30 calendar days after the filing of such
decision, appeal to the Circuit Court for Harford County.” Further, the Foundation argues,
that if the Forest Conservation Act mandates state-wide compliance, then there must be
some means of appealing a county’s decision to approve an FCP, even if an FCP is part of
an overall development plan.
In setting out their argument, the developers focus on that last point. They insist
than an FCP is but one
component of the final development approval process. The FCP is a
condition precedent to the issuance of a site plan approval and preliminary
plan approval, similar to a storm water management concept plan, a traffic
impact analysis, a landscaping/light/buffer plan, and everything else that is
listed on the site plan application and checklist and preliminary plan
application and checklist.
The developers assert that the administrative development process is neither exhausted nor
final until the Department issues “a preliminary plan approval letter and/or site plan
approval letter.” In fact, the developers point out that simply because the Department
approved the FCP in December 2019, that did not mean that the developers could
immediately begin construction. They had to wait until the Department approved the
preliminary plan, which was done on January 17, 2020 and the site plans submitted for
5
three separate lots were approved in February 2020.2 The developers insist that to allow
judicial review of an FCP separately from the preliminary or site plans would have required
the circuit court to insert itself in the middle of the administrative process, violating the
rules of exhaustion and finality. Therefore, according to the developers, the circuit court
correctly dismissed the Foundation’s petition for judicial review.
B. Exhaustion of Administrative Remedies
“When a legislature provides an administrative remedy as the exclusive or primary
means by which an aggrieved party may challenge a government action, the doctrine of
administrative exhaustion requires the aggrieved party to exhaust the prescribed process of
administrative remedies before seeking ‘any other remedy or invok[ing] the ordinary
jurisdiction of the courts.’” Priester v. Baltimore County, Maryland, 232 Md. App. 178,
193 (2017) (quoting Soley v. State Comm'n on Human Relations, 277 Md. 521, 526 (1976)).
Soley explained that the exhaustion rule is based, in part, on the “discretionary nature” of
agency decisions and the “expertise” that “the agency can bring to bear in sifting the
information presented.” Id.
2
At the hearing on the motions, without objection, counsel for the developers explained:
[COUNSEL FOR DEVELOPERS]: The Preliminary Plan approval
allows the Owner Developer to subdivide the property. The Site Plan
approval allows the Developer to build what it is going to build; in this case
it is warehouses. In the case here, the Preliminary Plan approval approved
nine lots and the Site Plan approval, there were three of them that were
approved by the Department of Planning and Zoning allowing the
warehouses to be built. One cannot develop property in Harford County
without a Site Plan approval or a Preliminary Plan approval or in our case
both. It simply cannot be done.
6
Indeed, the United States Supreme Court has emphasized that administrative
exhaustion acts as a brake on judicial interference in the administrative process. “[T]he
rule requiring exhaustion of administrative remedies, is concerned with promoting proper
relationships between the courts and administrative agencies charged with particular
regulatory duties.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 63–64 (1956).
“‘Exhaustion’ applies where a claim is cognizable in the first instance by an administrative
agency alone; judicial interference is withheld until the administrative process has run its
course.” Long Green Valley Ass’n v. Bellevale Farms, Inc., 205 Md. App. 636, 690 (2012)
(quoting Western Pac. R.R., 352 U.S. at 64).
C. “Finality” in the Administrative Process
The Court of Appeals has explained that “an agency order is not final when it is
contemplated that there is more for the agency to do.” Kim v. Comptroller, 350 Md. 527,
533–34 (1998) (citations omitted). So, “[t]o be ‘final,’ the order or decision must dispose
of the case by deciding all questions of law and fact and leave nothing further for the
administrative body to decide.” Willis v. Montgomery Cnty., 415 Md. 523, 534 (2010)
(citations omitted); see also Arnold Rochvarg, Principles and Practice of Maryland
Administrative Law 190 (2011) (“The action of an administrative agency is final if it
determines or concludes the rights of the parties, or if it denies the parties means of further
prosecuting or defining their rights and interests in the subject matter in proceedings before
the agency, thus leaving nothing further for the agency to do.”).
It has been said that exhaustion and finality “overlap” to the extent that “a party
must exhaust the administrative remedy and obtain a final administrative decision …
7
before resorting to the courts.” Laurel Racing Ass’n, Inc. v. Video Lottery Facility Location
Comm’n, 409 Md. 445, 460 (2009).
The Court of Appeals explained that the purpose of the finality rule is
to avoid piecemeal actions in the circuit court seeking fragmented
advisory opinions with respect to partial or intermediate agency decisions.
Not only would a contrary rule create the real prospect of unnecessary
litigation, as a party choosing to seek review of an unfavorable interlocutory
order might well, if the party waited to the end, be satisfied with the final
administrative decision, but the wholesale exercise of judicial authority over
intermediate and partial decisions could raise serious separation of powers
concerns.
Driggs Corp. v. Maryland Aviation Admin., 348 Md. 389, 407–08 (1998); see also Priester,
232 Md. App. at 194 (“The rule of finality limits judicial intervention during the
administrative process to promote the efficiency that the legislature attempted to achieve
through the administrative process, and relieves courts of the need “to decide issues which
perhaps would never arise if the prescribed administrative remedies were followed.”)
(quoting Soley, 277 Md. at 526).
D. The Harford County Zoning Approval Process
With these principles in mind, we look to the county’s zoning process to determine
when exhaustion and finality arise regarding an FCP. We first determine whether there is
a prescribed method of challenging the Department’s approval of an FCP. To do this, we
look at Harford County’s site plan approval process.
From our review of the record, Harford County has a comprehensive process for
regulating development. The process for approval of a preliminary or a site plan, (either
of which allows the owner-developer to start construction), begins with the owner-
8
developer filling out a “site plan application.” The plan must be submitted to the
Department for review by all necessary county agencies. County Code § 267-3.
Subdivision of more than five residential lots and development of institutional and
commercial sites must be reviewed by the Development Advisory Committee (DAC).
County Code § 268-19. The DAC advises the director of planning about major
subdivisions and large-scale developments. Id. The DAC is composed of representatives
of county, state, federal, and utility agencies. Each county agency represented on the DAC
provides oral or written comment expressing that agency’s recommendation or opinion
regarding each development plan under review by the committee. Id. 3 The DAC meeting
is also a forum for the public to address issues and comment, with adequate notice being
given to the public by conspicuously posting a sign near the property as well placing a
3
The DAC includes, but is not limited to, the following:
Board of Education
Army Corps of Engineers/Maryland Department of the Environment
Department of Parks and Recreation
Department of Planning and Zoning
Department of Public Works
Fire and Ambulance Chiefs Association
Health Department
Maryland Forest, Park, and Wildlife Service
Public Utility Companies
Soil Conservation District
State Highway Administration.
See www.harfordcountymd.gov/959/Development-AdvisoryCommittee.
https://bit.ly/33xA1XS. (Last visited 5/20/21.)
9
notice in two newspapers of general circulation in the county. County Code § 268-19(4)
and (5).
As part of the site plan application, a developer must submit an FCP, among several
other requirements, such as, site plans, a landscaping/lighting/buffer plan, a storm water
management concept, and a traffic impact analysis “to ensure acceptance of the plan for
processing.” As previously discussed, an FCP is required by County Code § 267-37 and
NR § 5-1605.
After reviewing the County Code and the relevant statutory authorities we have not
discovered a means by which an FCP may be administratively reviewed, except in the
context of the approval of an overall development plan. For example, County Code § 267-
37(D) indicates that the FCP should be viewed as part of the Department’s approval of a
preliminary plan or a site plan.
The Department’s review of a forest conservation plan shall be
concurrent with the review of the subdivision plan, grading permit
application or building permit application associated with the project.
(Emphasis supplied). Additionally, we note that NR § 5-1608(a) has an almost identical
provision:
Concurrent review. The review of the forest conservation plan
shall be concurrent with the review process of the State or local
authority for the subdivision plan, or the grading or sediment control
permit, whichever may be submitted first.
(Emphasis supplied). From our review of the relevant statutory authority, there does not
appear to be a statutorily derived means of obtaining judicial review of an FCP as an
“independent” or “stand alone” agency decision as the Foundation insists. Instead, what
10
we take from County Code § 267-37(D) and NR § 5-1608(a) that the Department’s
approval of an FCP is but one component of the entire zoning process and is subject to the
county’s review of the entire subdivision plan.
But the Foundation insists that the authority to request judicial review of the
approved FCP lies under County Code Article IV, “Concept Plans, Preliminary
Subdivision Plans and/or Site Plans,” section 268-28A, which, in pertinent part, states that,
[a]ny interested person whose property is [a]ffected by any decision
of the Director of Planning, may within 30 calendar days after the filing of
such decision, appeal to the Circuit Court for Harford County.
We note, however, that the Harford County Charter, Article VII, Planning and Zoning,
section 709 clarifies the County Code:
Any person aggrieved by any final decision in a zoning case shall
have the right to appeal that decision to the Circuit Court for Harford
County and shall have the further right of appeal to the Court of Appeals of
Maryland. The words “person aggrieved” shall be liberally construed to
substantially broaden that class of persons and shall be interpreted to
effectuate the general purposes of this Article.
(Emphasis supplied.) The County’s charter specifies that only a final decision, not simply
“any decision” made in a zoning case, is appealable to the circuit court. We read these
county provisions much like statutes, so that they make sense within the county’s overall
development scheme. “We do not read a statutory provision in isolation. Instead, we
consider its purpose, goal, and context as a whole.” Bartenfelder v. Bartenfelder, 248 Md.
App. 213, 235 (2020), cert denied, 472 Md. 5 (2021) (citing Papillo v. Pockets, Inc., 119
Md. App. 78, 83-84 (1997). Examining the context of the statute includes construing
11
provisions within the same section harmoniously, if possible. George Wasserman & Janice
Wasserman Goldsten Family LLC v. Kay, 197 Md. App. 586, 628 (2011).
The Court of Appeals has said that a county’s charter is its “constitution.” In this
sense, to rephrase the popular saying, the charter is the “supreme law of the county.” Bd.
of Sup’rs. of Elections of Anne Arundel County v. Smallwood, 327 Md. 220, 237 (1992)
(“This Court has ‘repeatedly explained that a county charter is equivalent to a
constitution.’”); Save Our Streets v. Mitchell, 357 Md. 237, 248-49 (2000). “A charter is
thus a permanent document intended to provide a broad organizational framework
establishing the form and structure of government in pursuance of which the political
subdivision is to be governed and local laws enacted. It is the organic, the fundamental
law....” Cheeks v. Cedlair Corp., 287 Md. 595, 607 (1980).
Consistent with our obligation to make sense of seemingly conflicting county
zoning provisions, we read the county charter and the County Code together to effectuate
the overall regulatory scheme, which in this case involves county approval of commercial
construction. We give greater weight to the county’s charter as the authorizing authority
for when appeals may be filed in zoning cases. See Smallwood, 327 Md. at 237; Mitchell,
357 Md. at 248-49. The charter makes clear that only “final” decisions of the Department
may be the subject of judicial review in the circuit court.
We conclude that there is not a separate right to seek judicial review of an approved
FCP any more than there is a seperate right to seek a separate review of any other
component of a zoning site plan. Indeed, from our review of the Harford County zoning
approval process we think that the developers were accurate when, at oral argument, they
12
referred to the FCP as part of a negotiation between the relevant agencies and the
Department. Once the FCP, like other “negotiations” the DAC (and ultimately the
Department) considers, is approved it then becomes an essential term of the contract
between the developers and the county. That contract is a preliminary plan or a site plan.
In this case, the developer had to obtain both. And only with a preliminary plan or a site
plan may the developer begin construction.
So while the Foundation argues that the county’s approval of an FCP “marks the
end of the [c]ounty’s decision-making process with regard to the removal, retention, and
replacing of forested area associated with the development,” we agree that approval of an
FCP indeed ends that part of the approval process. But we disagree that simply because
that part of the process ends, a party then has a right to seek judicial review, particularly
where none is statutorily permitted.
The Court of Appeals has explained that “in order for an administrative agency’s
action properly to be before this Court (or any court) for judicial review, there generally
must be a legislative grant of the right to seek judicial review.” Appleton v. Cecil County,
404 Md. 92, 98–99 (2008) (quoting Harvey v. Marshall, 389 Md. 243, 273 (2005)).
Maryland Rule 7–201(a) regulates an action to review an order or action of an
administrative agency “where judicial review is authorized by statute ....” See Bucktail,
LLC v. County Council of Talbot County, 352 Md. 530, 541 (1999) (noting that Maryland
Rules 7–201 and 7–202 do “not grant a right of judicial review, and ... [are] inapplicable
where judicial review is not authorized by statute”). We conclude that the Department’s
13
approval of an FCP is but one stage of the development process for which there is no
separate mechanism of administrative review subject to exhaustion.
Turning specifically to the issue of finality, we conclude that the Department’s
approval of an FCP does not end the administrative process. Kim, 350 Md. at 533–34.
After reviewing Harford County’s zoning policies and the comprehensive process that the
county has established to approve large-scale commercial development such as the
Abingdon Business Park, we determine that preliminary plan approval, or site plan
approval, are “final” actions of the Department which only then trigger judicial review of
any of the components of the approved plans under County Charter § 709 and County Code
§ 268-28.4 The mere approval of the FCP during the process leaves “more for the agency
to do,” such as assessing the impact that the development will have on local traffic, storm
water management, surveys and the creation of plats, public hearings, etc. The goal, and
therefore the final stage in the process, is for the developer to commence construction. That
may only occur after the site plan is ultimately approved.5 Consequently, to allow judicial
review of an FCP in the middle of the zoning approval process would amount to the type
of “piecemeal” consideration of administrative decisions which the Court of Appeals has
strongly disfavored. Driggs Corp., 348 Md. at 407–08.
4
Additionally, we note that the record shows that the Abingdon Business Park is in
the center of the county’s “development envelope.” In other words, the site is within the
area that the county has specifically designated for commercial development.
5
See https://www.harfordcountymd.gov/Faq.aspx?QID=488.
https://bit.ly/3eJ4Pvk. Last visited May14, 2021.
14
We hold that the circuit court properly determined that the Department’s approval
of an FCP is not a final administrative act. Therefore, the circuit court properly dismissed
the complaint, as the Foundation’s allegations do not afford them a legal basis for relief.
See Sheppard Pratt Health System, Inc., 465 Md. at 350.
JUDGMENT OF THE CIRCUIT COURT
FOR HARFORD COUNTY AFFIRMED.
APPELLANT TO PAY THE COSTS.
15
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/1063s20cn.pdf