Chesapeake Bay Foundation, Inc., et al. v. CREG Westport Developers I, LLC, et al., No.
53, September Term, 2021, Opinion by Booth, J.
MARYLAND FOREST CONSERVATION ACT—FINAL DECISION FOR
PURPOSES OF JUDICIAL REVIEW
The Maryland Forest Conservation Act, Maryland Code (2018 Repl. Vol., 2021 Supp.),
Natural Resources Article § 5-1601, et seq. (the “Act”) establishes the requirements for the
adoption and implementation of a forest conservation program by local governments
having planning and zoning authority. Under the Act, as well as the regulations
promulgated by the Department of Natural Resources, the local government must establish
appeal procedures in connection with the approval of a forest conservation plan and
associated variance or waiver granted by the local government from the strict application
of the provisions of the local forest conservation program or the Act.
The Court of Appeals held that the approval of a forest conservation plan and associated
waiver that permitted removal of 49 specimen trees from a site in connection with a
development plan was a final decision of the Harford County Department of Planning and
Zoning, and that the Chesapeake Bay Foundation and neighboring landowners had the right
to file a petition for judicial review of that final decision to the Circuit Court for Harford
County under the applicable provisions of the Harford County Code. The approval of a
forest conservation plan is an administratively distinct agency action and is independent
from Harford County’s general development approval process for subdivision and site plan
applications. Thus, it is a final decision of the administrative agency because it leaves
nothing further for the agency to do.
Circuit Court for Harford County
Case No.: C-12-CV-20-000022
Argued: May 9, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 53
September Term, 2021
CHESAPEAKE BAY FOUNDATION, INC., et al.
v.
CREG WESTPORT I, LLC, et al.
Watts,
Hotten,
Booth,
Biran,
Raker, Irma S.
(Senior Judge, Specially Assigned),
McDonald, Robert N.
(Senior Judge, Specially Assigned),
Getty, Joseph M.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Booth, J.
Hotten, J., and Getty, C.J., dissent.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-08-26 11:47-04:00
Filed: August 26, 2022
Suzanne C. Johnson, Clerk
In Maryland, counties and municipalities with planning and zoning powers have the
authority to approve development within their respective jurisdictions. These local
jurisdictions have the right to regulate various aspects of development on property,
including the size of buildings, the applicable setbacks from property lines, the types of
uses that may be made in zoning districts, and the minimum lot size for individually
developed parcels.
During the 1980s, a population increase in the State led to the conversion of large
tracts of agricultural and forest land into residential subdivision and commercial areas. In
response to the intense development pressure on the environment, the State adopted three
laws to protect the State’s natural resources: (1) the Chesapeake Bay Critical Area Law in
19841 to protect the Chesapeake Bay and its tributaries; (2) the Nontidal Wetlands Law in
19902 to protect the State’s nontidal wetlands; and (3) the Maryland Forest Conservation
Act in 19913 to stem the loss of forest in the State.
These laws work in concert to protect the environment and impose conditions and
restrictions on the development and redevelopment of property in the State. The enactment
1
See 1984 Md. Laws, Ch. 794. The Chesapeake and Atlantic Coastal Bays Critical
Area Protection Program (the “Critical Area Law”) is codified in the Maryland Code (2012
Repl. Vol, 2021 Supp.), Natural Resources Article (“NR”) § 8-1801, et seq.
2
See 1989 Md. Laws, Ch. 536. The Nontidal Wetlands Act is codified in the
Maryland Code (2013 Repl. Vol., 2021 Supp.), Environment Article (“EN”) § 5-901, et
seq.
3
See 1991 Md. Laws, Ch. 255. The Maryland Forest Conservation Act is codified
in the Maryland Code (2018 Repl. Vol., 2021 Supp.), NR § 5-1601, et seq.
of each of these laws created more State oversight over development approvals by local
jurisdictions exercising their independent planning and zoning authority where
development has the potential to impact natural resources.4
The Forest Conservation Act of 1991 was enacted to protect the forests of Maryland
by making the identification and protection of forests and other sensitive areas an integral
part of the site planning process. It is administered by the Maryland Department of Natural
Resources (sometimes referred to as “DNR”) but implemented primarily by local
jurisdictions having planning and zoning authority. The primary objective of the Forest
Conservation Act is to minimize the loss of forest land in connection with development
activity and ensure that priority areas for forest retention and forest planning are identified
and protected prior to development.5 The Forest Conservation Act established standards
for local jurisdictions with planning and zoning authority to enforce during development.
Identification and mapping of these priority areas occurs during the development review
and approval of a forest stand delineation, which identifies the existing forest cover and
4
The State oversight is undertaken by State agencies that are tasked with
administering the State law, adopting regulations, and ensuring compliance by local
governments that must apply the State laws in connection with undertaking development
review at the local level. Specifically, the Critical Area Commission for the Chesapeake
and Atlantic Coastal Bays (“Critical Area Commission”) oversees the implementation of
the Critical Area Law, see NR § 8-1806; the Maryland Department of the Environment
(“MDE”) oversees the statewide program for the conservation and protection of nontidal
wetlands, see EN § 5-903; and the Maryland Department of Natural Resources (“DNR”) is
charged with overseeing the Maryland Forest Conservation Act, see NR § 5-1610.
5
See “THE MARYLAND FOREST CONSERVATION ACT: A TEN YEAR
REVIEW,” Maryland Department of Natural Resources Forest Service, September 2004,
https://perma.cc/BQS3-AGFU.
2
environmental features on a proposed development site. It is submitted at the initial stages
of a subdivision or site plan approval, or before a sediment control application is
submitted.6 When a forest stand delineation is completed and approved, the information
that it provides can then be used to prepare the forest conservation plan.7
A forest conservation plan indicates the limits of disturbance for the proposed
project and how the existing forested and sensitive areas will be protected during and after
development. A forest stand delineation and forest conservation plan must be prepared by
a Maryland licensed forester, a Maryland licensed landscape architect, or other qualified
professional.8
On a property with significant forest cover, a forest conservation plan, as well as
any variance or waivers that are granted by the approving agency from the strict application
of the provisions of the Forest Conservation Act or local forest conservation program, may
dictate the scope, location, and placement of the building footprint and structures on the
property.
In this case, we must determine whether the approval of a forest conservation plan,
as well as an associated waiver that authorizes a developer to remove trees that would
otherwise be protected under the Act, is a final agency decision that is subject to
independent judicial review under the Harford County Forest Conservation Program.
6
Id.
7
Id.
8
Id.
3
For the reasons that follow, we hold that the Act, and regulations promulgated by
DNR require a right to appeal the approval of a forest conservation plan. We also hold that
a county agency’s approval of a forest conservation plan is a “final decision” for appeal
purposes.
I
Background and Procedural History
CREG Westport I, LLC9 and Harford Investors, LLP (collectively, the “Developer”)
propose to develop a mixed-use commercial development containing retail venues,
restaurants, a hotel, and warehouses, which total over one million square feet. The site,
which is referred to as “Abingdon Business Park,” is located along Interstate 95 in Harford
County, Maryland and is zoned Commercial-Industrial. It consists of five parcels of land
totaling approximately 326.47 acres. There are approximately 314.73 acres of forest
located on the site, which include 85 specimen trees.10 The site also contains: numerous
streams; nontidal wetlands; and the HaHa Branch, a tributary of the Bush River which runs
from north to south through the property and ultimately flows into the Chesapeake Bay.
9
As of March 3, 2021, CREG Westport I, LLC’s interest in this action was assigned
to BTC III I-95 Logistics Center LLC pursuant to an Assignment of Purchase Contract and
Infrastructure Agreement.
10
“Specimen trees” refer to trees larger than 30 inches in diameter at breast height
or 4.5 feet above the ground. See Md. Code, NR § 5-1607(c)(2)(iii) and Harford County
Code § 267-39D(3).
4
A. Developer’s Submission of the Forest Conservation Plan and Development
Plans
Under the Maryland Forest Conservation Act, Natural Resources Article (“NR”)
(2018 Repl. Vol., 2021 Supp.), § 5-1601, et seq. of the Maryland Code (sometimes referred
to as the “Act”) and the Harford County Code (“HCC”) § 267-37, the Developer was
required to submit a forest conservation plan outlining its plans to retain, protect, and
reforest the site in connection with its proposed development.11 The Developer first
completed a forest stand delineation12—a requirement under the Act—which identified 85
specimen trees on the development site which would be subject to the forest conservation
plan. In February 2019, the Developer submitted its initial application for a forest
conservation plan to the Harford County Department of Planning and Zoning, in which the
Developer proposed the clearing of 221 acres of forest. In connection with its initial
application, the Developer requested a waiver13 under the applicable provisions of the
11
As we will discuss in more detail herein, the Forest Conservation Act requires
local jurisdictions with planning and zoning authority to adopt and implement a forest
conservation program. NR § 5-1605. Harford County has incorporated its Forest
Conservation Program in the zoning chapter of the Harford County Code (“HCC”), §§ 267-
34–267-48.
12
“Forest stand delineation” is defined as “the methodology for evaluating the
existing vegetation on a site proposed for development, taking into account the
environmental elements that shape or influence the structure or makeup of a plant
community.” NR § 5-1601(p).
13
As we will discuss in more detail, the Harford County Forest Conservation
Program contains provisions for a “waiver” from the retention and protection priorities as
established by the Act and the Harford County Forest Conservation Program, in addition
to a variance process. That said, the criteria for a “waiver” are the same as the criteria
established by DNR for a “variance.” See NR § 5-1611; Code of Maryland Regulations
(“COMAR”) 08.19.03.01, model ordinance Article XIV.
5
Harford County Forest Conservation Ordinance to permit the removal of 58 large specimen
trees from the property.
After the initial forest conservation plan submission, the County’s Development
Advisory Committee (the “DAC”) requested revisions to the forest conservation plan,
including revisions that would reduce the impact upon specimen trees.14 Thereafter, the
Developer worked with the County Department of Planning and Zoning to reduce the
impact on the identified specimen trees, including reducing the limits of clearance and
disturbance, and realigning the road network to avoid and minimize the impact on the
specimen trees identified in the initial forest conservation plan and specimen tree waiver
request. The Developer submitted a revised forest conservation plan that was approved by
a letter issued by the Department of Planning and Zoning on December 9, 2019. The
approval letter included an approval of not only the Developer’s final forest conservation
plan (the “Forest Conservation Plan”), but also the Developer’s request for a specimen tree
waiver (the “Waiver”) to permit the removal of 49 specimen trees. In connection with the
Waiver, the Department of Planning and Zoning recited the requirements that the
Developer must satisfy to obtain a waiver under the Harford County Forest Conservation
Program:15
14
As we explain more fully in Part II.D. and note 29 infra, the Harford County Code
has established a Development Advisory Committee (“DAC”), which consists of several
county agencies that review subdivisions of more than five residential lots and
developments composed of institutional and commercial sites.
15
Where an administrative agency is required to make findings of fact, our case law
requires that the agency do more than simply recite the criteria under the statute. See, e.g.,
Bucktail v. Talbot County, 352 Md. 530, 558–59 (1999) (remanding a matter to the county
6
Denial of the waiver would deprive the property owner’s rights
commonly enjoyed by others. The granting of the waiver would not confer
any special privilege on the Owner/Developer, which would be denied to
others. The waiver is necessary due to the specific site conditions and not a
result of the actions of the owner/developer. The waiver has not arisen from
a condition on a neighboring property. The removal of these trees will not
adversely affect water quality. The developer will be required to provide
Stormwater Management, Environmental Site Design practices and erosion
and sediment control in accordance with the latest version of Harford
County’s Stormwater Management ordinance and Maryland Department of
Environment (MDE) standards and specification[s] for soil erosion and
sediment control and MDE’s enhance[d] best [m]anagement practices for
Tier II waters to ensure no reduction or adverse impacts to water quality.
Given these specific site conditions, the Director of Planning and Zoning
her[e]by grants the waiver to impact forty-nine (49) specimen trees identified
with this Forest Conservation Plan.
In addition to approving the Waiver, the approval letter set forth the required
conditions associated with the proposed development of the property under the Harford
County Forest Conservation Program, including: the requirements that the Developer post
a surety bond to assure the planting and survival of the required on-site reforestation,
identify buffers and forest retention areas on final plats, and protect existing forest edges
prior to and throughout construction.
On January 8, 2020, the Chesapeake Bay Foundation, Inc. (“CBF”) and several
residents who live adjacent to the Developer’s site filed a petition for judicial review of the
Forest Conservation Plan in the Harford County Circuit Court. The petition was filed
pursuant to Maryland Rule 7-202 and Section 268-28.A. of the Harford County Code,
council to make meaningful findings of fact where the county body, acting in an
adjudicative role, recited statutory criteria and made boilerplate resolutions that precluded
judicial review). We express no opinion concerning the sufficiency of the factual findings
associated with the Waiver. Therefore, that issue may be raised in connection with any
subsequent proceedings.
7
which provides that “[a]ny interested person whose property is effected [sic] 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.”
While the appeal of the Forest Conservation Plan was pending in the circuit court,
the Developer continued with the County’s development review process. The Developer
submitted a preliminary plan application to the County, which proposed to consolidate
multiple existing parcels of record and to create a public road and nine lots. The
preliminary plan was approved on January 17, 2020. Thereafter, the Developer submitted
site plan applications for three lots depicting the proposed buildings, structures, and uses
for each lot. The site plan for Lot 1 was approved on February 19, 2020. The site plan for
Lots 2 and 3 were both approved on February 24, 2020. CBF and the adjacent property
owners did not appeal the preliminary plan approval or the approval of the site plans for
the three lots.
B. Circuit Court Proceedings
On March 27, 2020, the Developer and the Harford County Department of Planning
and Zoning filed a motion to dismiss the petition for judicial review.16 The Developer
argued that CBF’s petition was improper under Maryland case law because only final
decisions of an administrative agency are subject to judicial review. The Developer
16
The Developer and the Harford County Department of Planning and Zoning are
both parties to this matter. Their interests are aligned, and they have filed joint briefs in
the Court of Special Appeals and in this Court. For ease of reference, we will refer to
Developer and the County Department of Planning and Zoning collectively as the
“Developer.”
8
contended that the approval of the Forest Conservation Plan is not a final decision under
Maryland law, and therefore, the appeal was premature. In its opposition to the motion to
dismiss, CBF agreed that only final decisions may be appealed but argued that the approval
of the Forest Conservation Plan was a final decision.
After a hearing, on August 19, 2020, the circuit court judge entered a memorandum
opinion and order granting the motion to dismiss, concluding that the Forest Conservation
Plan is not a final decision because it is only one component of the preliminary and final
site plan. The court reasoned that once the Forest Conservation Plan was approved, “there
was more for the agency to do” regarding the overall site plan application and, therefore,
there was no final decision until the final site plan was approved.
C. Court of Special Appeals Proceedings
After CBF filed an appeal to the Court of Special Appeals, the intermediate
appellate court affirmed the circuit court’s decision. Chesapeake Bay Foundation, Inc. v.
CREG Westport I, LLC, 252 Md. App. 470 (2021). The Court of Special Appeals also
concluded “that preliminary plan approval, or site plan approval, are ‘final’ actions of the
Department [of Planning and Zoning], which only then trigger judicial review of any of
the components of the approved plans” under the applicable provisions of the Harford
County Charter and the County Code. 252 Md. App. at 485. The Court of Special Appeals
stated:
The mere approval of the [Forest Conservation Plan] 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.
9
That may only occur after the site plan is ultimately approved. Consequently,
to allow judicial review of [a forest conservation plan] 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.
Id. (citations omitted).
CBF filed a petition for a writ of certiorari, which we granted to consider the
following questions, which we have rephrased:17
1. Do the provisions of the Forest Conservation Act require an opportunity for the
direct appeal of an approved forest conservation plan?
2. Does the approval of a forest conservation plan constitute a final agency action
subject to judicial review?
For the reasons that follow, we answer both of these question in the affirmative and
reverse the judgment of the Court of Special Appeals.
II
Discussion
The questions presented here involve questions of law, which we consider de novo.
Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 384 (2010). The issues presented
in this case are relatively straightforward. The parties agree that under principles of
17
The questions presented in the petition for writ of certiorari are:
1) Whether the Forest Conservation Act requires an opportunity for direct
appeal or judicial review of an approved forest conservation plan
independent of any subsequent subdivision or zoning approvals?
2) Whether the approval of a forest conservation plan required by state law
is a final agency action subject to judicial review?
10
administrative law, which we discuss in more detail below, only a final decision of an
administrative agency is appealable. The sole issue in dispute is whether the approval of a
forest conservation plan is a final decision, and therefore, subject to a petition for judicial
review pursuant to the appeal process established by the Harford County Code. We hold
that it is. To explain our holding, it is useful to review the Maryland Forest Conservation
Act, the regulations promulgated by the Department of Natural Resources that implement
the Act, and the provisions of the Harford County Code applicable to a forest conservation
plan.
A. The Forest Conservation Act
The Forest Conservation Act is a comprehensive effort to stem the loss of the State’s
forest cover.18 The Act establishes afforestation,19 conservation, and reforestation20
requirements for subdivision plans and projects that require a grading or sediment control
permit involving areas of 40,000 square feet or more. NR § 5-1602(a). The requirements
18
The Maryland Forest Conservation Act, NR § 5-1601, et seq. (the “Act”) defines
“forest” generally as a “biological community dominated by trees and other woody plants
covering a land area of 10,000 square feet or greater.” NR § 5-1601(k)(1).
19
“Afforestation” is defined as “the establishment of a tree cover on an area from
which it has always or very long been absent, or the planting of open areas which are not
presently in forest cover.” NR § 5-1601(b).
20
“Reforestation” is defined, in part, as “the creation of a biological community
dominated by trees and other woody plants containing at least 100 trees per acre with at
least 50% of those trees having the potential of attaining a 2 inch or greater diameter
measured at 4.5 feet above the ground, within 7 years.” NR § 5-1601(gg)(1). The term
includes “landscaping of areas under an approved landscaping plan that establishes a forest
that is at least 35 feet wide and covering 2,500 square feet of area.” NR § 5-1601(gg)(2).
11
of the Act apply to units of the State government, local government, and private entities.
NR §§ 5-1601(dd), 5-1602(a).21
Under the Act, a person seeking a permit for a subdivision or a grading or sediment
control permit on areas greater than 40,000 square feet must arrange for a licensed forester,
licensed landscape architect, or other qualified professional to prepare a forest stand
delineation to be used during the preliminary review process to determine the most suitable
and practical areas for forest conservation. NR § 5-1604(a)–(b)(1). Following approval of
the forest stand delineation, the applicant must arrange for a qualified professional to
prepare a proposed forest conservation plan. NR § 5-1605(b). Among other requirements,
the forest conservation plan must include a map of the site, an anticipated construction
timetable relating to the site and conservation requirements, an afforestation or
reforestation plan, and a two-year management agreement addressing how the areas
designated for afforestation or reforestation will be maintained. NR § 5-1605(c). The
applicant must obtain approval of the forest conservation plan from the forest conservation
authority for that jurisdiction before a subdivision plan or grading or sediment control
permit may be approved or issued. NR § 5-1608(b).
Afforestation and reforestation requirements are established by formulas set forth
in the Act. NR § 5-1606. The Act also provides a preferred sequence for afforestation and
reforestation, and priorities for certain trees, shrubs, and plants, as well as specified areas
21
The Act creates some exemptions, which are set forth in NR § 5-1602(b)(1)–(13),
such as routine maintenance of public utility rights-of-way, certain agricultural activities,
and a county that maintains 200,000 acres or more of its land area in forest cover.
12
that should be protected or left in an undisturbed condition, unless the applicant has
demonstrated, to the satisfaction of DNR or the local authority, that reasonable efforts have
been made to protect them and that the plan cannot be reasonably altered. NR § 5-1607.
Where afforestation and reforestation cannot reasonably be accomplished either on-site or
off-site, the Act establishes a fee that may be paid in lieu of the planting requirement, which
is paid into the State Forest Conservation Fund or a local forest conservation fund. NR
§ 5-1610.
The Act also establishes the timing of an applicant’s submission of a forest
conservation plan in the development approval process. NR § 5-1608(a) provides that
“[t]he 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.” In addition, an applicant shall have an approved
forest conservation plan that complies with the Act before “the approval of the final
subdivision plan, or the issuance of the grading or sediment control permit by the State or
local authority.” NR § 5-1608(b).
DNR and local governments that have adopted their own programs are authorized
to enforce the Act through administrative proceedings, such as revoking approval of a
forest conservation plan and issuing a stop work order. NR § 5-1612(a)–(c). If a person
fails to comply with the Act, related regulations promulgated by DNR, a forest
conservation plan, or an associated management agreement, DNR or a local authority are
authorized to assess a monetary penalty. NR § 5-1608(c)(1). Additionally, DNR and the
local authority may bring civil actions for injunctive relief or to impose a civil monetary
13
penalty for ongoing violations. NR § 5-1612(d). If the local authority proceeds with
enforcement authority, it is required to give notice to DNR within 15 days after the
commencement of the enforcement authority. NR § 5-1612(e).
B. Implementation of the Act by DNR and Local Jurisdictions Having Planning
and Zoning Authority
The Act became effective on July 1, 1991. 1991 Md. Laws, Ch. 255. DNR was
directed to adopt regulations, including a technical guidance manual and a model ordinance
by December 31, 1991. NR § 5-1609(a).22 Thereafter, all units of government with
planning and zoning approval were required to submit a proposed forest conservation
program to DNR by April 30, 1992. NR § 5-1603(a)(2). Following DNR’s approval, each
unit was directed to formally adopt the program and submit its adopted program to the
Department by December 31, 1992. NR § 5-1603(c)(1). Local forest conservation
programs were required to “meet[] or [be] more stringent than the requirements and
22
The Act requires that DNR adopt regulations to implement the Act, and to create
requirements and standards, establishing, among other things:
1. Standards of performance required in forest stand delineations and forest
conservation plans including the submittal process;
2. Criteria for local forest conservation programs; and
3. Implementation processes for the Department’s administration in the
absence of a local conservation program.
NR § 5-1609(a)(1)(i).
14
standards” of the Act. Id. The Act requires that local forest conservation programs be
approved by DNR, and include the following:
(i) A policy document and all applicable new and amended local
ordinances relating to the implementation of the regulated activities,
exemptions, the review, approval and appeal processes, incentives,
legal instruments for protection, enforcement program, and penalties;
and
(ii) A technical manual which outlines the submittal requirements for
forest stand delineations, required information for the approval of a
forest conservation plan, specific forest conservation criteria and
protection techniques.
NR § 5-1603(c)(2). The Act also authorizes DNR and local authorities to create a variance
process—which enables an applicant to avoid the strict application of a requirement in the
Act—in certain circumstances where the applicant can demonstrate that the applicant can
satisfy certain criteria. NR § 5-1611.23
23
NR § 5-1611 states:
(a) In the preparation of the State or local conservation programs, the State
and local authorities shall provide for the granting of variances to the
requirements of this subtitle, where owing to the special features of a site
or other circumstances, implementation of this subtitle would result in
unwarranted hardship to an applicant.
(b) Variance procedures adopted under this section shall:
(1) Be designed in a manner consistent with the spirit and intent of this
subtitle; and
(2) Assure that the granting of a variance will not adversely affect water
quality.
15
For municipalities with planning and zoning authority, the Act permits a
municipality, with the concurrence of DNR and the county in which it is located, to assign
its obligations under the Act to the county. NR § 5-1603(a)(4). Additionally, if a local
government fails to adopt an approved forest conservation program, DNR must develop a
state-level process to review forest conservation plans for that jurisdiction. NR §§ 5-
1603(d), 5-1603(e)(2)(ii)(3). DNR has continuing review authority over local programs
and is directed to conduct biennial reviews of each local jurisdiction’s program. NR § 5-
1603(e).24 In addition to the biennial reviews, on or before September 30 each year, DNR
is required to submit, to two legislative committees, a statewide report compiled from local
authorities’ reports to DNR regarding certain aspects of the forest conservation programs
24
In accordance with DNR’s statutory obligation to conduct a biennial review of
local jurisdictions’ forest conservation plans, as well as DNR’s annual reporting
requirements in NR § 5-1613, the Department publishes data related to the local
jurisdictions’ forest conservation plans. As reflected in the State Forest Conservation
Program Annual Report for FY19, https://perma.cc/3EM2-78TY, many municipalities
with planning and zoning authority have either assigned their forest conservation
compliance obligations to the county government in which the municipality is located or
have elected for DNR to conduct “State program review” of forest conservation plans that
are submitted in their jurisdiction. For example, the City of Taneytown has assigned
responsibility for forest conservation requirements to Carroll County. See City of
Taneytown Code, § 116-1 (stating that “[t]he Carroll County Forest Conservation
Ordinance . . . shall be the official Forest Conservation Ordinance for the City of
Taneytown, Maryland and such an ordinance is hereby adopted by reference. The official
of the county shall be the inspector and/or enforcement official for the city for this
purpose.”). Other jurisdictions, such as the Town of Ridgely, in Caroline County, have
elected for DNR to conduct its forest conservation review. See Ridgely Town Code § 98-
2 (stating that “[t]he Department of Natural Resources (DNR) . . . is hereby designated to
perform the requirements of [NR] § 5-1603(c)(3)(i) and (ii) . . . and to administer the
Ridgely Forest Conservation Program, the cost of all of which shall be borne by the DNR”).
16
throughout the State.25 NR § 5-1613. Since the Act’s enactment, DNR has compiled five-,
ten-, and fifteen-year reviews that analyze the forest cover in Maryland.
In late 1991, DNR promulgated regulations and a model ordinance, which became
effective on January 20, 1992. 19:1 Md. Reg. 24 (1992); see Code of Maryland Regulations
25
Specifically, NR § 5-1613 states:
On or before September 30 of each year, the Department shall submit, subject
to § 2-1257 of the State Government Article, to the Senate Education, Health,
and Environmental Affairs Committee and the House Environment and
Transportation Committee a statewide report, compiled from local
authorities’ reports to the Department, on:
(1) The number, location, and type of projects subject to the provisions
of this subtitle;
(2) The amount and location of acres cleared, conserved, and planted,
including any areas which utilize forest mitigation bank credits or
areas located in the 100 year floodplain, in connection with a
development project;
(3) The amount of reforestation and afforestation fees and
noncompliance penalties collected and expended, the number of
acres for which the fees were collected, and the number of acres
reforested, afforested, or conserved using the fees;
(4) The costs of implementing the forest conservation program;
(5) The size, location, and protection of any local forest mitigation
banks which are created under a local or State program;
(6) The number, location, and type of violations and type of
enforcement activity conducted in accordance with this subtitle; and
(7) To the extent practicable, the size and location of all conserved and
planted forest areas, submitted in an electronic geographic
information system or computer aided design format.
17
(“COMAR”) 08.19.01–.06.26 Notably as it pertains to the issue presented in this case, the
regulations require that the local authority demonstrate that the “hearing and appeal
procedures” associated with the review and approval of forest stand delineations and forest
conservation plans are “consistent with the local appellate review procedures.” COMAR
08.19.02.02.C(3).27
The model ordinance contains provisions for the establishment of a variance from
the requirements of a local forest conservation program or the requirements of NR §§ 5-
1601–5-1612 if the person requesting the variance can demonstrate that enforcement of the
26
DNR’s regulations implementing the Forest Conservation Act are codified in
COMAR, Title 8, Subtitle 19. Chapter 1 of that subtitle contains general provisions,
including definitions of terms, a description of the application of the Act, and exemptions.
Chapter 2 addresses DNR’s review and approval of local programs. Chapter 3 provides a
model ordinance for local jurisdictions’ implementation of the Act. Chapter 4 establishes
the State Forest Conservation Program. Chapter 5 governs forest conservation
maintenance and management agreements. Chapter 6 outlines DNR’s training and
enforcement responsibilities and sets forth the professional qualifications necessary to
prepare a forest stand delineation or forest conservation plan.
27
COMAR 08.19.02.02(C) states:
Under the administrative review, approval, and appeal procedures, the local
authority shall demonstrate that:
(1) The review process for the forest stand delineation, simplified forest
delineation plan, or substitute plan […] and the forest conservation plan
is consistent with the local development review process;
(2) Approval of a subdivision, project plan, or issuance of either a grading
or sediment control permit is contingent upon the approval of a forest
conservation plan; and
(3) The hearing and appeal procedures are consistent with the local
appellate review procedures.
18
Act or local program would result in an unwarranted hardship. COMAR 08.19.03.01,
Article XIV. The model ordinance specifies that a variance under the Forest Conservation
Act is “not a zoning variance” and establishes criteria that the applicant must satisfy to
obtain a variance.28 COMAR 08.19.03.01.2.63B. To grant a variance, the department with
approving authority “shall make findings that the applicant has met the requirements” for
obtaining a variance before granting it. COMAR 08.19.03.01.14.1C. The model ordinance
further establishes the “right and authority of the [DNR] to initiate or intervene in an
administrative, judicial, or other original proceeding or appeal in the State concerning an
approval of a variance under [NR] §§ 5-1601–5-1612” or a local forest conservation
program. COMAR 08.19.03.01.14.1E.
28
Specifically, under the model ordinance, an applicant for a variance shall:
(1) Describe the special conditions peculiar to the particular property which
would cause the unwarranted hardship;
(2) Describe how enforcement of these rules will deprive the applicant of
rights commonly enjoyed by others in similar areas;
(3) Verify that the granting of the variance will not confer on the applicant a
special privilege that would be denied to other applicants;
(4) Verify that the variance request is not based on conditions or
circumstances which are the result of actions by the applicant;
(5) Verify that the variance request does not arise from a condition relating
to land or building use, either permitted or nonconforming, on a
neighboring property; and
(6) Verify that the granting of a variance will not adversely affect water
quality.
19
C. Harford County’s Forest Conservation Program
In July 1991, the Harford County Council enacted legislation to comply with the
requirements of the newly enacted Act. The Harford County Forest Conservation Program
is codified in Article VI, §§ 267-34 through 267-48 of the Harford County Code. The
Harford County Forest Conservation Program incorporates the requirements of the Act and
is generally consistent with the model ordinance, with some relatively minor revisions to
conform to the locality. For example, Harford County has designated the Department of
Planning and Zoning as the agency responsible for approving forest conservation plans for
the County, see HCC § 267-35.A., and has designated the Director of Planning as the
individual who may grant waivers from the priority retention and protection provisions
under the Harford County Forest Conservation Program, see HCC § 267-39.F.
Consistent with the provisions of the Act and the COMAR requirements, a forest
conservation plan must be submitted with the first of the following submissions for the site:
a preliminary subdivision plan; an application for a grading permit; or an application for a
building permit. HCC § 267-37.B.(1). Within 45 calendar days after receipt of a forest
conservation plan, the Department “shall notify the applicant whether the [f]orest
[c]onservation [p]lan is complete and approved.” HCC § 267-37.C. “If the Department
fails to notify the applicant within 45 calendar days, the plan shall be treated as complete
and approved.” Id. The Department may require “additional information or extend the
deadline for an addition [sic] 15 calendar days under extenuating circumstances.” Id. “At
the request of the applicant, the Department may extend the deadline under extenuating
circumstances.” Id. “The Department’s review of a [f]orest [c]onservation [p]lan shall be
20
concurrent with the review of the subdivision plan, grading permit application or building
permit application associated with the project.” HCC § 267-37.D. If a forest conservation
plan is required, “a person may not cut, clear or grade on the development site: (1) Until
the Department has approved the plan; or (2) In violation of the approved plan.” HCC
§ 267-37.G.
Consistent with the provisions of the Act and the COMAR regulations, certain
“trees, shrubs, plants and specific areas shall be considered priorities for retention and
protection and shall be left in an undisturbed condition,” including trees having a diameter
breast height (“DBH”) of “[t]hirty inches or more.” HCC § 267-39.D. The Director of
Planning has the authority to grant a waiver from “Subsection D” if the applicant has
demonstrated to the satisfaction of the Department of Planning and Zoning that
enforcement would result in an unwarranted hardship. HCC § 267-39.F. The applicant
shall:
(1) Describe the special conditions peculiar to the particular property which
would cause the unwarranted hardship;
(2) Describe how enforcement of these rules will deprive the applicant of
rights commonly enjoyed by others in similar areas;
(3) Verify that the granting of the waiver will not confer on the applicant a
special privilege that would be denied to other applicants;
(4) Verify that the waiver request is not based on conditions or circumstances
which are the result of actions by the applicant;
(5) Verify that the waiver request is not based on conditions relating to land
or building use, either permitted or nonconforming, on a neighboring
property; and
21
(6) Verify that the granting of a variance will not adversely affect water
quality.
§ 267-39.F. The Department of Planning and Zoning is required to give notice of the request
for a waiver to DNR within 15 days of receipt of the request. HCC § 267-39.G.
As reflected above, a developer may receive approval of a forest conservation plan
in 45 days. Once a forest conservation plan is approved, the developer may then obtain
preliminary plan approval. See HCC § 268-19.C.(11) (stating that if a forest conservation
plan is required, “the preliminary plan shall not be approved until the forest conservation
plan has been approved by the Department of Planning and Zoning[]”). In addition, a forest
conservation plan may not change once it is approved. See HCC § 267-37.E.(3) (stating
that the Department of Planning and Zoning may revoke an approved Forest Conservation
Plan if it finds that “changes in the development or in the condition of the site necessitate
the preparation of a new or amended development plan”).
D. Harford County Development Process Generally
At the preliminary plan and site plan approval stages, the developer is required to
make additional submittals, including stormwater management plans, a traffic impact
analysis, a landscaping/lighting/buffer plan, and development details such as impervious
surface and building coverage percentages, setbacks, and proposed uses of structures, as
well as other information and documentation required under the subdivision regulations.
Subdivisions of more than five residential lots and developments of institutional and
commercial sites must be reviewed by the DAC, which consists of several county agencies.
22
HCC § 268-19.C.29 In addition to the DAC, the plan is also provided to various state
agencies30 and the U.S. Army Corps of Engineers, for comment, when appropriate. DAC
meetings are open to the public and include an opportunity for comments by attending
citizens. HCC § 268-19.C.(2).
After the review process is concluded, the Department of Planning and Zoning may
approve a preliminary plan, which is valid for three years, and which may be extended.
HCC § 268-19.C.(12). A one-time, two-year extension of the preliminary plan may be
granted provided that the developer meets certain conditions. HCC § 268-19.C.(13).
With respect to appeals, the appeal provisions contained in the County’s subdivision
regulations provide, in pertinent part, that “[a]ny interested person whose property is
effected [sic] 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.” HCC § 268-
28.A.31
29
Membership in the DAC “shall include,” but is not limited to, the following: the
Department of Planning and Zoning, the Department of Public Works, the Health
Department, the Department of Parks and Recreation, the Soil Conservation District, the
Sheriff’s Office, Harford County Public Schools, and Emergency Operations. HCC § 268-
19.C.(1)(a).
30
The state agencies that receive a copy of the plans submitted to the DAC include,
but are not limited, to the State Highway Administration, MDE, and DNR. HCC § 268-
19.C.(1)(b).
31
Although the appeal provisions set forth in HCC § 268-28.A refer to the right to
appeal any decision of the “Director of Planning,” there appears to be no dispute that the
right to appeal also applies to final decisions of the Department of Planning and Zoning
that arise under the Harford County subdivision regulations. The parties dispute whether
the decision here is a “final” decision. There is no dispute that a final decision of the
Department is subject to the appeal provisions contained in the Harford County Code.
23
The question here is whether the Department of Planning and Zoning’s approval of
the Forest Conservation Plan, and the Director’s related approval of the associated Waiver,
is a “final decision” that is subject to a right of appeal that is independent from any right
of appeal of the final approval of a site plan or subdivision plat.
E. Approval of a Forest Conservation Plan is a Final Agency Decision Subject to
Judicial Review
“It is a basic tenet of administrative law that ‘[w]here an administrative agency has
primary or exclusive jurisdiction over a controversy, the parties to the controversy must
ordinarily await a final administrative decision before resorting to the courts for resolution
of the controversy.’” Board of Public Works v. K. Hovnanian’s Four Seasons at Kent
Island, LLC, 443 Md. 199, 215 (2015) (“Hovnanian”) (quoting State v. Maryland State Bd.
of Contract Appeals, 364 Md. 446, 457 (2001)). “To be ‘final,’ the order or decision must
dispose of the case by deciding all question of law and fact and leave nothing further for
the administrative body to decide.” Town of Upper Marlboro v. The Prince George’s
County Council, ___ Md. ____ (2022) (quoting Willis v. Montgomery County, 415 Md.
523, 535 (2010)); see also Hovnanian, 443 Md. at 215. Stated another way, ordinarily, an
“agency order is not final when it is contemplated that there is more for the agency to do.”
Kim v. Comptroller of Treasury, 350 Md. 527, 534 (1998). “It is well-established that
‘[t]he salutary purpose of the finality requirement is to avoid piecemeal actions in the
circuit court seeking fragmented advisory opinions with respect to partial or intermediate
agency decisions.’” Hovnanian, 443 Md. at 222 (quoting Driggs Corp. v. Maryland
Aviation Administration, 348 Md. 389, 407 (1998)).
24
The parties agree that, for the Forest Conservation Plan to be an appealable agency
action, it must be a “final decision” of the agency. They disagree on whether the approval
of the Forest Conservation Plan is a final decision. The Developer contends that it is not a
final agency decision because the Forest Conservation Plan does not permit the Developer
to undertake any construction activity, and that it is “merely a requirement and element of
the preliminary plan and site plan applications and checklists.” According to the
Developer, the Forest Conservation Plan is not a final decision because there is “more for
the agency to do.” The Developer characterizes the Forest Conservation Plan as “part and
parcel” of the preliminary plan and site plans, which the Developer contends are the final
decisions of the Department and are subject to appeal. The Developer contends that the
Forest Conservation Plan may only be appealed as part of an appeal of a preliminary plan
or site plan.
On the other hand, CBF argues that the Department of Planning and Zoning’s
approval of the Forest Conservation Plan, and the associated Waiver, is a final agency
decision because it marks the end of the decision-making process as it pertains to the Plan.
CBF contends that the approval of the Forest Conservation Plan is a separate and distinct
administrative agency action that, once approved, remains fixed and static. In other words,
it cannot change as the County undertakes the development review process associated with
a site plan or subdivision plan. We agree with CBF.
25
1. The Act Clearly Contemplates a Right to an Appeal of a Forest Conservation
Plan
First, as discussed above, a forest conservation plan is required by State law and
must be approved prior to the approval of a subdivision plan or a site plan. NR § 5-1608.
The Act establishes the minimum standards that must be included in a local forest
conservation program. It requires any “unit of local government having planning and
zoning authority” to “develop a local forest conservation program, consistent with the
intent, requirements and standards of this subtitle.” NR § 5-1603(a)(1) (emphasis added).
Local programs must “meet[]” or be “more stringent than the requirements and standards”
of the Act. NR § 5-1603(a)(2). The Act therefore establishes the minimum substantive
standards and procedural requirements that local jurisdictions must include in their local
programs. One such procedural requirement is an appeal process. The Act states that a
“local forest conservation program . . . shall include[] a policy document and all applicable
new and amended local ordinances relating to implementation of the regulated activities,
exemptions, the review, approval and appeal processes, incentives, legal instruments for
protection, enforcement program, and penalties[.]” NR § 5-1603(c)(2)(i) (emphasis
added). DNR’s criteria for local forest conservation programs similarly require that the
local jurisdiction demonstrate that the “hearing and appeal procedures” associated with the
review and approval of forest stand delineations and forest conservation plans are
“consistent with the local appellate review procedures.” COMAR 08.19.02.02C. The Act
and implementing regulations, by their plain and unambiguous language, require that local
26
forest conservation programs have “appeal procedures” in place as part of their local
programs.
The Harford County Code provides an avenue for appealing decisions of the
Director of Planning and Zoning in the subdivision regulations. Specifically, HCC § 268-
28 states that “[a]ny interested person whose property is effected [sic] 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.”32 Although the appeal provision of the
HCC does not state that only “final” decisions may be appealed, we agree with the parties
that under basic principles of agency law, only final decisions of the Department or
Director may be appealed.
32
The parties agree that the subdivision provisions and the zoning provisions of the
Harford County Code (in which the Forest Conservation Program is located) must be read
together and consistently with one another. The Harford County Charter, Article VII,
Section 709 contains the following right of appeal:
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.
The parties also agree that neither the approval of a forest conservation plan, nor a
site plan, would be considered a “zoning case.” That said, the Harford County Charter and
the Harford County subdivision provisions clearly contemplate that any appeal of a final
decision of the Department of Planning and Zoning, or its Director, arising under either the
zoning code or the subdivision regulations, is to be filed in the Circuit Court for Harford
County.
27
2. The Approval of a Forest Conservation Plan is a Separate and Distinct Agency
Decision
A forest conservation plan is a separate and distinct State-required approval that
establishes the location and number of trees that may be cleared from a site. On a site that
contains significant forest cover—which is the case with the proposed Abingdon Business
Park—the approval of a forest conservation plan establishes the location and extent of the
building envelope and development footprint on a particular site. The approval of a forest
conservation plan marks the end of the County’s decision-making process with respect to
the location and extent of tree removal on a site. It is completely independent from other
state or county development approvals. Neither the County nor the Developer may change
the parameters of a forest conservation plan during the development process once it has
been approved. In this respect, a forest conservation plan approval is different from other
county approvals in connection with the development plan such as a traffic impact analysis
or a stormwater management plan, which may change as the development plans evolve.
Under the Act, the regulations promulgated by DNR, and the provisions of the
Harford County Code, we determine that the County’s approval of a forest conservation
plan is a separate and distinct agency action. It is independent from the County’s site plan
approval process. Although it is a condition precedent to the approval of a preliminary
plan or site plan, we reject its characterization as simply being “part and parcel” of the
County’s development review process. It is a separate approval required by State law with
distinct substantive criteria, and for which a right of appeal is required under the Act and
DNR’s regulations.
28
The separate and distinct nature of the forest conservation plan approval process
would be more obvious or intuitive if, hypothetically, the proposed development had
occurred in a municipality that had planning and zoning authority, but that did not have its
own municipal forest conservation program. As we pointed out in footnote 24, there are
several municipal jurisdictions that have either assigned forest conservation approval to the
county in which the municipality is located or to DNR. In such instances, if a county
agency or DNR were the approving authority for forest conservation plans associated with
development within the municipality, clearly the approval of a forest conservation plan
would be a final decision because there would be nothing further for the county or DNR to
do in connection with subsequent development approvals by the municipality. Here, the
fact that the Department of Planning and Zoning also approves the preliminary plan or site
plan does not transform forest conservation plan approval into a fluid component of the
preliminary plan approval process. It is a separate approval under the Act, with statutory
and regulatory criteria that must be applied by the approving agency.33 Once the plan is
33
In support of its position that the Forest Conservation Plan is not a final agency
decision, but instead, “a constituent element of the entire development plan,” the Dissent
points to the language in the Act, as well as the Harford County Forest Conservation
Program, which require that the review of the forest conservation plan “shall be
concurrent” with the review of the subdivision plan, grading permit application, or building
permit associated with the project. Dissent Slip. Op. at 3, 8, 11. Respectfully, we disagree.
The fact that the Act and the local program require that a forest conservation plan be
reviewed concurrently with other development approvals relates solely to the timing of the
forest conservation plan review and approval process. This timing sequence makes sense
because a site plan, subdivision plat, grading permit, or building permit cannot be finalized
unless and until the forest conservation plan is approved. In many development projects,
although the forest conservation plan review may commence concurrently with other
development plan reviews, the forest conservation plan will be approved months, or even
years before the approval of the final plan. The forest conservation plan, once approved,
29
approved, it is final and may not change during the remainder of the development approval
process.
The separate and final nature of the approval of a forest conservation plan would
also be apparent if the Developer had been the party who filed a petition for judicial review
of a denial of the plan—as opposed to the procedural posture presented in this case—where
CBF and the adjacent landowners have filed a petition for judicial review of the approval
of the plan. If the Department of Planning and Zoning had denied the approval of the
Developer’s Forest Conservation Plan and associated Waiver, and consequently the
Developer was prohibited from removing any specimen trees from the site, such a denial
would certainly have an adverse impact on any potential development plans on the
property. That denial would be a final decision, and the Developer would have a right to
file a petition for judicial review. Just as the denial of a forest conservation plan or
associated waiver would be a “final” decision for purposes of an appeal by the Developer,
so too is the approval of the Forest Conservation Plan and the associated Waiver in this
case.
Here, the Department of Planning and Zoning and its Director approved not only
the Forest Conservation Plan, but also the Waiver, permitting the removal of 49 specimen
trees from the site that would otherwise be protected under the Act, DNR’s regulations,
and the Harford County Code. The Director was required to make findings of fact with
does not change for the duration of the project. See HCC § 267-37.E.(3) (stating that the
Department may revoke an approved Forest Conservation Plan if it finds that “changes in
the development or in the condition of the site necessitate the preparation of a new or
amended development plan”).
30
respect to the criteria for granting waivers under the provisions of the Harford County
Code. HCC § 267-39.F. The approval of the Forest Conservation Plan and associated
Waiver was a final decision—there was nothing further for the Department of Planning
and Zoning and its Director to do. Moreover, nothing in the development approval process
could have modified or changed that decision. The Court of Special Appeals and circuit
court erred in concluding that the approval of the Forest Conservation Plan was not a final
decision that was subject to judicial review.34
Respectfully, we disagree with the intermediate appellate court that an appeal of the
Forest Conservation Plan will lead to “piecemeal consideration” of a development plan
“which [this Court] has strongly disfavored.” Chesapeake Bay Foundation, 252 Md. App.
at 485. Where a development plan involves an administratively distinct approval that is
34
To be sure, there may be instances where an aggrieved party’s right to file a
petition for judicial review of a forest conservation plan, as well the right to file a petition
for judicial review of separate development approval will converge. For example, where
a county planning board adopts a single resolution as part of its development approval
process that concurrently approves a preliminary plan, as well as a variance under the local
forest conservation program, an aggrieved party may have the right to file a petition for
judicial review of all approvals granted by the resolution. See, e.g., W. Montgomery
County Citizens Ass’n v. Montgomery County Plan. Bd. of Maryland-Nat’s Capital Park
& Planning Comm’n, 248 Md. App. 314, 347 (2020), cert. denied sub. nom. W.
Montgomery County Citizens Ass’n v. Montgomery County Planning Bd., 474 Md. 198
(2021) (upholding the county planning board’s approval of a preliminary plan and variance
under the county forest conservation plan where the board approved both the preliminary
plan and tree variance in a single resolution). We are not suggesting that the right to file a
petition for judicial review of a forest conservation plan will always be separate from the
right to file a petition for judicial review of other development approvals. In this case, the
Forest Conservation Plan and associated Waiver were approved separate from the site plan
approvals. It was a final decision because there was nothing left for the Department to do.
Under the applicable provisions of the Harford County Code, an aggrieved party had the
right to file a petition for judicial review to the circuit court.
31
required under a State law, with a right to file a petition for judicial review, that right may
be exercised independently from any other right to appeal that may arise in connection with
a final approval of a site plan or subdivision plat. For example, an aggrieved party has a
right to appeal a nontidal wetlands permit. See § EN § 5-204(f)(1); Patuxent Riverkeeper
v. Maryland Department of the Environment, et al., 422 Md. 294 (2011). By way of
another example, where a property is located in the critical area, and the property owner or
developer seeks a variance for the construction of a structure within the critical area buffer,
there is a right to appeal a decision to grant a variance from the strict application of a local
critical area program. See NR § 8-1808(d). These statutory rights of appeal exist
independent from any right to appeal from a local government’s approval of a final
subdivision plat or development site plan. Here, we similarly determine that the approval
of a forest conservation plan is an administratively distinct final decision for which there
is an independent right of appeal. The Act, DNR’s promulgated regulations, and the
provisions of the Harford County Code all contemplate that a right of appeal exists from
this final agency decision.
III
Conclusion
The Department of Planning and Zoning’s approval of the Forest Conservation Plan
and associated Waiver was a final decision, and CBF had the right to file a petition for
judicial review under the Harford County Code. Approval of a forest conservation plan is
a final administrative decision that is separate and distinct from other County approvals
32
under the Harford County development process. Although the Act permits DNR to
delegate responsibility for administering the Act to local jurisdictions through the adoption
of local forest conservation programs, it is a separate and distinct process. The Act and the
DNR regulations contemplate that persons aggrieved by a decision arising from a forest
conservation plan approval shall have a right to appeal in accordance with appeal
procedures established by the local jurisdiction. Under the provisions of the Harford
County Code, that right to appeal is to the Circuit Court for Harford County.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED, AND
CASE REMANDED TO THAT COURT
WITH DIRECTIONS TO REMAND THE
CASE TO THE CIRCUIT COURT FOR
HARFORD COUNTY FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS IN THIS COURT
AND THE COURT OF SPECIAL APPEALS
TO BE PAID BY THE RESPONDENTS.
33
Circuit Court for Harford County
Case No. C-12-CV-20-000022
Argued: May 9, 2022 IN THE COURT OF APPEALS
OF MARYLAND
No. 53
September Term, 2021
__________________________________
CHESAPEAKE BAY FOUNDATION,
INC., ET AL.
v.
CREG WESTPORT I, LLC, ET AL.
__________________________________
Watts,
Hotten,
Booth,
Biran,
Raker, Irma S.,
(Senior Judge, Specially Assigned)
McDonald, Robert N.,
(Senior Judge, Specially Assigned)
Getty, Joseph, M.,
(Senior Judge, Specially Assigned)
JJ.
__________________________________
Dissenting Opinion by Hotten, J., which
Getty, C.J., joins.
__________________________________
Filed: August 26, 2022
I respectfully dissent. The right to appeal an administrative decision derives entirely
from statute. Even when a statute bestows the right to appeal an administrative decision,
judicial policy requires the administrative decision to be final. The appeal of the approved
forest conservation plan violates both conditions precedent for judicial review. The right
to a direct and independent appeal of an approved forest conservation plan is not provided
by the plain language of the Forest Conservation Act, the Harford County Code, or the
Harford County Charter. The approval of the forest conservation plan is likewise not a
final administrative decision, but one of several necessary steps that must be completed
before a land development proposal may be approved according to Harford County law. I
would hold that the approval of the forest conservation plan is not judicially reviewable.
A. There are no statutory provisions permitting direct appeal of a forest
conservation plan.
“[Q]uestions of appealability [are] entirely governed by statutes.” Prince George’s
Cnty. v. Beretta U.S.A. Corp., 358 Md. 166, 173, 747 A.2d 647, 651 (2000) (footnote
omitted); Maryland-Nat’l Capital Park & Planning Comm’n v. Smith, 333 Md. 3, 7, 633
A.2d 855, 857 (1993) (“The right to take an appeal is entirely statutory, and no person or
agency may prosecute an appeal unless the right is given by statute.”) (quotation omitted);
see also Harvey v. Marshall, 389 Md. 243, 273, 884 A.2d 1171, 1189 (2005) (“[I]n order
for an administrative agency’s action properly to be before this Court (or any court) for
judicial review, there . . . must be a legislative grant of the right to seek judicial review.”).
We narrowly construe any grant of appellate authority. Rush v. State, 403 Md. 68, 98, 939
A.2d 689, 706 (2008).
1. Forest Conservation Act
A plain text and narrowly construed interpretation of the Forest Conservation Act,
Md. Code Ann., Natural Resources (“Nat. Res.”) §§ 5-1601‒1613, demonstrates that there
is no statutory right to a direct and independent appeal of an approved forest conservation
plan. See Antonio v. SSA Sec., Inc., 442 Md. 67, 74, 110 A.3d 654, 658 (2015) (“When
interpreting statutes, our overarching goal is to ascertain and implement the intention of
the [General Assembly]. . . . [If] the words of the statute, given their common and ordinary
meaning are unambiguous and express a plain meaning, our inquiry stops normally and we
interpret the statute as written.”) (citation omitted).
Nat. Res. § 5-1603(a) obligates local governments with “planning and zoning
authority” to “develop a local forest conservation program, consistent with the intent,
requirements, and standards of [the Forest Conservation Act].” The statute requires local
governments to specifically create, among other things, “[a] policy document and all
applicable new and amended local ordinances relating to implementation of the regulated
activities, exemptions, the review, approval and appeal processes, incentives, legal
instruments for protection, enforcement program, and penalties[.]” Nat. Res. § 5-
1603(c)(2)(i) (emphasis added).
Contrary to the assertions of the Chesapeake Bay Foundation, et al. (“Petitioner”)
Nat. Res. § 5-1603(c)(2)(i) does not establish a statutory right to appeal directly and
independently the approval of a forest conservation plan. This provision generally requires
a local government’s forest conservation program to include a policy statement with a
designated appeal process, but it does not set forth any specific requirements for the appeal
2
process of a forest conservation plan. It does not provide a direct and independent appeal
of an approved forest conservation plan, and deriving such a right from the plain text would
impermissibly stretch the meaning of Nat. Res. § 5-1603(c)(2)(i). Soper v. Montgomery
Cnty., 294 Md. 331, 335, 449 A.2d 1158, 1160 (1982) (“[N]either statutory language nor
legislative intent can be stretched beyond the fair implication of the statute’s words or its
purpose.”).
The statute clarifies that the appeal of an approved forest conservation plan must
proceed concurrently with the review of other required components of a proposed land
development. Nat. Res. § 5-1608 provides:
(a) 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.
(b) Before the approval of the final subdivision plan, or the issuance of the
grading or sediment control permit by the State or local authority, the
applicant shall have an approved forest conservation plan that shall include
the requirements in §§ 5-1605, 5-1606, and 5-1607 of this subtitle.
(Emphasis added and subtitles and other markings omitted). A direct and independent
appeal of an approved forest conservation plan contravenes the plain text of Nat. Res. § 5-
1608 because a forest conservation plan must be considered in conjunction with the
subdivision plan or grading or sediment control permit before final approval may be
granted.
The legislative history of the Forest Conservation Act confirms our plain text
interpretation that there is no statutory right to appeal the approval of a forest conservation
plan. It is “the modern tendency of this Court [] to continue the analysis of the statute
3
beyond the plain meaning to examine ‘extrinsic sources of legislative intent’ in order to
‘check [] our reading of a statute’s plain language’ through examining ‘the context of a
statute, the overall statutory scheme, and archival legislative history of relevant
enactments.’” Berry v. Queen, 469 Md. 674, 688, 233 A.3d 42, 50 (2020) (quoting In re
S.K., 466 Md. 31, 50, 215 A.3d 300, 311 (2019)). Analyzing the legislative history is
typically conducted in situations involving ambiguous statutory language but may also be
helpful in instances where the statutory language appears to be plain and unambiguous.
Blackstone v. Sharma, 461 Md. 87, 113, 191 A.3d 1188, 1203 (2018) (quoting State v.
Roshchin, 446 Md. 128, 140, 130 A.3d 453, 460‒61 (2016)).
The legislative history of the Forest Conservation Act shows that local governments
are tasked with “establish[ing]/manag[ing] their own forest conservation programs with
technical assistance from the State.” See Floor Report, Senate Bill 224, Senate Economic
and Environmental Affairs Committee of the Maryland Senate, 1991 Leg., 401st Sess. (Md.
1991) at pg. 62. A letter written by Jeffrey L. Horan, Associate Director of Chesapeake
Bay Programs, to David M. Jenkins, Government Affairs Committee Chairman of Charles
County states that “coordination with local zoning ordinances and local subdivision
ordinances will be left up to the individual counties.” See Letter from Jeffrey L. Horan,
Associate Director of Chesapeake Bay Programs, to David M. Jenkins, Government
Affairs Committee Chairman of Charles County in legislative bill file for Senate Bill 224
(Md. 1991), at pg. 118.
In addition to the legislative history of the Forest Conservation Act, the conclusion
that implementation of the requirements of the Forest Conservation Act are largely left to
4
local governments is evident in opinions from the Maryland Attorney General. In an April
29, 1992, letter to the Board of Commissioners of Carroll County, the Maryland Attorney
General opined that “[t]he Forest Conservation Act reflects a legislative judgment that the
forest conservation program is best implemented and administered at the local level.” 77
Md. Op. Atty. Gen. 127 Opinion No. 92-011 (1992). Specifically, “the act recognizes that
the forest conservation program is an integral part of the local governmental process for
review and approval of any development project.” Id. More recently in an October 21,
2015 letter to the Chair of the House Environment and Transportation Committee, the
Maryland Attorney General advised that “the Act . . . generally leaves to the local
jurisdictions (or the Department, with respect to developments that fall within the State’s
limited jurisdiction) the task of spelling out the details of how” the requirements of the
Forest Conservation Act “must be satisfied under their respective plans.” 100 Md. Op.
Atty. Gen. 120 (2015).
The legislative history of the Forest Conservation Act shows that the intention of
the legislature in enacting the Forest Conservation Act was to combat the loss of large
tracts of forests in Maryland by requiring local governments to create a forest conservation
program. See Floor Report, Senate Bill 224, Senate Economic and Environmental Affairs
Committee of the Maryland Senate, 1991 Leg., 401st Sess. (Md. 1991) at pg. 369. As
mentioned previously, the State, through the Department of Natural Resources, was to
implement requirements for this plan, and local governments with planning and zoning
authority were to meet or exceed these requirements. While the Department of Natural
Resources set requirements that local governments with planning and zoning authority had
5
to abide by, it was left up to local governments to establish the review and approval process
for forest conservation plans within their jurisdiction. As long as local governments
complied with the requirements of the Forest Conservation Act, they had discretion in how
their forest conservation plans were created, including the decision on whether to provide
a direct appeal process. The General Assembly has amended Nat. Res. § 5-1603, the
section regulating local forest conservation programs, numerous times since it was first
enacted and none of those amendments added language explicitly requiring a right to
appeal the approval of a forest conservation plan.1
2. Harford County Code and Charter
As the Forest Conservation Act does not require a statutory recourse for judicial
review of a forest conservation plan and gives great deference to local government, if there
were a right to appeal a forest conservation plan, it would lie within a county’s code. After
applying the same canons of construction of statutes to local ordinances and charters, Kane
v. Bd. of Appeals of Prince George’s Cnty., 390 Md. 145, 161, 887 A.2d 1060, 1069 (2005),
I conclude that the Harford County Code, like the Forest Conservation Act, does not
1
See 1992, Md. Laws, Ch. 22, § 1 (annual corrective bill); 1993, Md. Laws, Ch.
489 (allowing clustering and other land use techniques as well as allowing local authority
to establish procedures to recover costs stemming from local forest conservation plans);
1994, Md. Laws, Ch. 556 (adding a waiver of paved surfaces); 1997, Md. Laws, Ch. 559,
§ 2 (adding language reflecting state administered forest conservation plans); 1998, Md.
Laws, Ch. 653 (cross listing with the Public Utility Companies Article); 2009, Md. Laws,
Ch. 298 (removing waiver for paved surfaces); 2010, Md. Laws, Ch. 52 (changing “Public
Utility Companies Article” to “Public Utilities Article”); 2013, Md. Laws, Ch. 384, § 3
(adding waiver for certain previously developed areas as well as granting the Department
of Natural Resources enforcement mechanisms against local governments for non-
compliance).
6
provide a statutory right to a direct and independent appeal of an approved forest
conservation plan.
Petitioner contends that Harford County, Md., Code (“HCC”) § 268-28A establishes
such a right. HCC § 268-28A provides, in relevant part: “Any 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.”
Petitioner reasons that because the approval of a forest conservation plan is a decision of
the Director of Planning, HCC § 268-28A authorizes a direct and immediate appeal.
While HCC § 268-28A authorizes an appeal of any decision by the Director of
Planning, including the approval of a forest conservation plan, the plain text of the Harford
County Code does not grant the right of a direct and independent appeal. See Griffin v.
Lindsey, 444 Md. 278, 291, 119 A.3d 753, 761 (2015) (noting that any interpretation of a
statute must not “undermine our rule that we must narrowly construe statutes granting the
right to appeal.”). Similar to Nat. Res. § 5-1603(c)(2)(i), the Harford County Code
establishes the general right to appeal an adverse administrative decision, but does not
provide the right to selectively appeal an adverse decision that is part and parcel of an
ongoing administrative review.2
This interpretation accords with the overall structure of the Harford County Code.
We interpret a single statutory provision in context and in harmony with the entire statutory
scheme. Haile v. State, 431 Md. 448, 470, 66 A.3d 600, 612–13 (2013) (“A longstanding
2
Interpreting HCC § 268-28A to allow a direct appeal of a forest conservation plan
would also violate the rule of finality. See infra part B.
7
principle of statutory construction provides that ‘our interpretation of [a] statute and the
legislature’s intent must be examined by looking to the statutory scheme in its entirety
rather than segmenting the statute and analyzing only its individual parts.’”) (citation
omitted). Part of this analysis includes recognition that specific statutory provisions trump
general provisions. Harvey v. Marshall, 389 Md. 243, 270, 884 A.2d 1171, 1187 (2005);
Young v. Anne Arundel Cnty., 146 Md. App. 526, 576, 807 A.2d 651, 681 (2002) (“When
two provisions, one general and the other specific, appear to cover the same subject but
seem to conflict, the specific provision is controlling and prevails over the general
enactment.”).
In a near identical provision to Nat Res. § 5-1608(a), HCC § 267-37D provides:
“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 added). The general language establishing the
right to appeal pursuant to HCC § 268-28A is controlled by the specific language of HCC
§ 267-37D that restricts when a party may appeal a forest conservation plan. See Gisriel v.
Ocean City Bd. of Supervisors Elections, 345 Md. 477, 489, 693 A.2d 757, 763 (1997),
cert. denied, 522 U.S. 1053, 118 S. Ct. 702 (1998) (holding that an appeal was not
authorized under the general right to appeal provided in Md. Code Ann., Courts and
Judicial Proceedings (“Cts. & Jud. Proc.”) § 12-301, because a more specific provision,
Cts. & Jud. Proc. § 12-302(a), applied). Like the Forest Conservation Act, the Harford
County Code does not contemplate a review of a forest conservation plan that is
independent from other parts of a development plan.
8
The Harford County Charter further indicates that a forest conservation plan would
not be directly and independently appealable. Art. VII § 709 of the Harford County Charter
provides: “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.” (Emphasis added). The plain text
of the charter limits the right of appeal to final decisions. Where provisions of Charter and
the County Code conflict, the Charter, as the foundational document for the county,
prevails. Bd. of Supervisors of Elections of Anne Arundel Cnty. v. Smallwood, 327 Md.
220, 237, 608 A.2d 1222, 1230 (1992) (“A charter . . . is the organic, the fundamental law,
establishing basic principles governing relationships between the government and the
people.”). As explained below in part B, the charter does not permit the direct appeal of
the approved forest conservation plan because the decision was not final as a matter of law.
B. The approval of the forest conservation plan was not a final agency action.
“It is a general principle of Maryland Administrative law that an action for judicial
review of an administrative order will lie only if the administrative order is final.” Bd. of
License Comm’r for Anne Arundel Cnty. v. Corridor Wine, Inc., 361 Md. 403, 418, 761
A.2d 916, 924 (2000) (internal quotation marks omitted and emphasis added). “[N]ot every
administrative order which determines rights and liabilities, or from which legal
consequences flow, is final and thus subject to judicial review.” Holiday Spas v.
Montgomery Cnty. Human Relations Comm’n, 315 Md. 390, 396, 554 A.2d 1197, 1200
(1989). “To be ‘final’ the order or decision must dispose of the case by deciding all
9
question of law and fact and leave nothing further for the administrative body to decide.”
Willis v. Montgomery Cnty., 415 Md. 523, 535, 3 A.3d 448, 455–56 (2010).
The rule of finality advances the judicial policies of efficient litigation and
unfragmented opinions. Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. 289, 298, 112
A.3d 429, 435 (2015); Bd. of Pub. Works v. K. Hovnanian’s Four Seasons at Kent Island,
LLC, 443 Md. 199, 216, 115 A.3d 634, 644 (2015). In Driggs Corp. v. Maryland Aviation
Admin., we explained:
The salutary purpose of the finality requirement 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.
348 Md. 389, 407, 704 A.2d 433, 443 (1998).
“We have consistently applied the rule of finality to land use decisions of local
governments.” Town of Upper Marlboro v. The Prince George’s Cnty. Council, ___ Md.
___, ___ A.3d ___ (2022) (citing Renaissance Centro Columbia, LLC v. Broida, 421 Md.
474, 485, 27 A.3d 143, 149 (2011); K. Hovnanian, 443 Md. at 215, 115 A.3d at 643‒44;
Smith v. Cnty. Comm’rs of Kent Cnty., 418 Md. 692, 712, 18 A.3d 16, 28 (2011); Dorsey
v. Bethel A.M.E. Church, 375 Md. 59, 75, 825 A.2d 388, 396 (2003); Prince George’s
Cnty. v. Blumberg, 288 Md. 275, 295, 418 A.2d 1155, 1166 (1980); American Wild Horse
Campaign v. Bernhardt, 442 F. Supp. 3d 127, 150 (D.D.C. 2020) (observing that the rule
of finality generally applies to land use plans)).
10
The approval of the forest conservation plan was not a final agency action because
the Harford County Department of Planning and Zoning (“the agency”) still needed to
approve the preliminary plan and the site plan. Both parties agree that a party may not
initiate development of a property until after the entire development plan is approved. The
forest conservation plan is a constituent element of the entire development plan. HCC §
267-37D (“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 added). Therefore, a party should not
be able to appeal a forest development plan unless and until the other necessary elements
of the entire development plan have been adjudicated.
In the case at bar, the Director of Planning approved the forest conservation plan,
but CREG Westport I, LLC, et al. (“Respondent”) could not have initiated development
until both the preliminary plan and site plan were also approved. The pending approval of
the preliminary plan and site plan demonstrates that there was more for the agency to do
following the approval of the forest conservation plan before the administrative review was
complete. Willis, 415 Md. at 535, 3 A.3d at 455–56.3 The forest conservation plan was
not a final decision because it left additional, necessary determinations by the Director of
Planning before development could begin.
3
Three preliminary plans were approved in the months following the approval of
the forest conservation plan, and prior to the Department’s hearing on their appeal of the
forest conservation plan. See Chesapeake Bay Found., Inc. v. CREG Westport I, LLC, 252
Md. App. 470, 474, 259 A.3d 219, 221 (2021). Petitioner therefore had the opportunity to
appeal the approvals preliminary site plans, which were final agency actions, but declined
to do so.
11
Petitioner argues that the approval of the forest conservation plan was final because
it conclusively determined the status of forest conservation on the property—i.e., there was
nothing left for the Director of Planning to decide with respect to forest conservation. This
Court has rejected the proposition that an administrative decision is final merely because
it was made by a board, executive, or unit atop an administrative hierarchy. Dorsey, 375
Md. at 75, 825 A.2d at 397. The approval of the forest conservation plan may have been
final as to the status of the trees on the property, but it did not constitute a final, reviewable
agency action as a matter of law, because it did not decide all of the rights, responsibilities,
and legal consequences that could have flowed from an agency adjudication for the entire
property. Holiday Spas, 315 Md. at 396, 554 A.2d at 1200. The forest conservation plan
was one of several necessary pieces towards approval of the entire site plan. Allowing
direct appeal of the approval of a forest conservation plan is exactly the type of piecemeal
action prohibited by the rule of finality Driggs, 348 Md. at 407, 704 A.2d at 442.
Petitioner incorrectly argues that it would create unequal appeal rights to determine
that a denial of a forest conservation plan would be a judicially reviewable final agency
action, but approval of a forest conservation plan is not. The approval of a forest
conservation plan is necessary, but not sufficient for the approval of the whole site plan or
preliminary site plan. If the whole site plan or preliminary site plan is approved, Petitioner
would have an opportunity to appeal the approval of the forest conservation plan by
appealing the approval of the site plan or preliminary site plan. If those comprehensive
plans are not approved, the forest conservation plan cannot be acted upon, and an appeal
by Petitioner becomes unnecessary.
12
In contrast, because a forest conservation plan is necessary for the approval of the
whole site plan or preliminary site plan, if the forest conservation plan is denied, the
administrative process is over and there is nothing more for the agency to decide with
regards to development of the site. No further action can be taken until the developer
receives an approved forest conservation plan, and there is no later opportunity for the
developer to appeal the merits of that decision. Unlike an approval of a forest conservation
plan, the denial of a forest conservation plan is a final agency action subject to judicial
review.
This approach is consistent with how forest conservation plans are treated in other
Maryland counties. In Prince George’s County, applications for certain development plans
are required to include one of two types of “tree conservation plans.” Prince George’s
County, Md., Code (“PGCC”) § 25-119(a)(1) & (2) (“[T]his Woodland and Wildlife
Habitat Conservation Division applies to . . . [a]ll applications pursuant Subtitles 4
(Building Code), 24 (Subdivision Ordinance and 27 (Zoning Ordinance) of the County
Code[.]”). PGCC § 25-120(b)(2) provides that appeals of “[d]ecisions of the Planning
Board or the District Council related to this Division[,]” namely the division governing,
among other things, tree conservation plans, “may be made by following the appeal
provisions applicable to the associated plan.” (Emphasis added). In the most recent Forest
Conservation Annual Report, the Prince George’s County Planning Department explained
that tree conservation plans “are conceptual in nature and are prepared and approved in
conjunction with Conceptual Site Plans, Preliminary Plans of Subdivision, and
13
Comprehensive Plans.”4 Prince George’s County Planning Department, FY 2020 Forest
Conservation Annual Report 3 (Mar. 29, 2021),
https://www.mncppc.org/DocumentCenter/View/15337/FY-2020-Forest-Conservation-
Annual-Report?bidId=, archived at https://perma.cc/6CMS-XLTK (emphasis added).
Like in Harford County, review of a forest conservation plan in Prince George’s County is
reviewed as one constituent part of the larger development plan.
Other Maryland counties have seen challenges to the approval of a forest
conservation plan as part of an appeal of the entire site plan. See, e.g., W. Montgomery
Cnty. Citizens Ass’n v. Montgomery Cnty. Plan. Bd. of Maryland-Nat’l Capital Park &
Planning Comm’n, 248 Md. App. 314, 347, 241 A.3d 76, 95 (2020), cert. denied sub nom.
W. Montgomery Cnty. Citizens Ass’n v. Montgomery Cnty. Planning Bd., 474 Md. 198,
253 A.3d 625 (2021) (determining that there was substantial evidence in the record for a
tree variance to be granted under an applicant’s approved forest conservation plan in a case
in which petitioner filed for judicial review of the county board’s approval of a preliminary
site plan). Granting judicial review of an approved forest conservation plan contravenes
the rule of finality in Maryland.
4
PGCC § 25-119(a)(2)(B) also provides for a more technical tree conservation plan
(i.e., “TCP2”) for applications for a “Special Exception, Detailed Site Plan, Specific Design
Plan, grading permit or similarly detailed plan[.] . . .” Even with this specialized form of
tree conservation, PGCC § 25-119(a)(2)(B) states that “[i]f a site requires approval of a
TCPS with an associated and development application, the TCP2 shall not be reviewed
independently of the associated plan.” (Emphasis added).
14
C. Conclusion
State and local law provide a general right to appeal the approval of a forest
conservation plan, but none of the statutory provisions cited by Petitioner expressly
authorize a direct and independent appeal of an approved forest conservation plan. A direct
and independent appeal of the forest conservation plan also violates the rule of finality
because it would initiate judicial review of one aspect of a development plan that would be
rendered moot if other necessary aspects of the development plan were denied approval.
For these reasons, I dissent and would affirm the judgment of the Court of Special Appeals.
Judge Getty has authorized me to state that he joins in this opinion.
15