Friday, April 6, 2007

Trail v. Terrapin Run, LLC (Ct. of Special Appeals)

Filed April 6, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

Maryland Code Art. 66B, which empowers certain local jurisdictions to adopt zoning codes, does not require a special exception use to be in strict compliance with a local comprehensive plan. A local jurisdiction may require strict compliance, but if it does not, a plan functions as a guide. The local ordinances and comprehensive plan, adopted by a particular jurisdiction, must be reviewed as a whole to determine the role of the plan in a special exception analysis. Thus, the conclusion as to the plan's role does not necessarily turn on the use of a particular word or phrase at a specific location within an ordinance or a plan. If a review of the ordinances and plan as a whole lead to the conclusion that strict compliance with a plan is not
required, the phrases "conforms to," "is consistent with," and "is in harmony with," when used to describe the relationship between a special exception use and a plan, have essentially the same meaning. Held that Allegany County's plan serves as a guide, not a strict regulatory requirement.
Judgment of the Allegheny County Circuit Court denying a special exception for a large-scale planned residential development was REVERSED on appeal, and REMANDED with instructions to affirm the decision of the Board of Appeals allowing the special exception.

This case arose out of the application by the developer ("Terrapin Run") to the Board of Appeals for Allegheny County for a special exception to allow it to construct a large residential community, including community-specific retail space and wastewater treatment plant, which was a permitted use under the applicable zoning classifications requiring a special exception. The Board of Appeals granted the special exception, finding the development to be in harmony with the local comprehensive plan, and that the evidence presented by the appellants ("Trail") did not demonstrate a site-specific adverse effect. The Board also found the retail use to be accessory to the principal residential use.

Trail appealed the Board's decision to the Circuit Court, alleging the Board applied the wrong standard of review, and erred in approving the retail/commercial area and the waste water treatment plant. The trial court declined to address the latter points, but agreed with the first, and reversed the Board's grant of the special exception. On appeal, Terrapin Run suggested the proper standard had been applied below, and the approval of the retail area and the wastewater treatment plant was proper.

The Court noted that, at various places in the statutes, regulations, plans and case law, the terms "conform to", "consistent with" and "in harmony with" are used to describe the necessary relationship of the proposed special exception to the comprehensive plan. After reviewing the relevant law, the Court concluded that the enabling state law, Article 66B, grants considerable discretion to the counties in how they establish land use regulations, ranging from the comprehensive plan being anything from a mere guide to a true regulatory device, notwithstanding Article 66B's phrase "use that conforms to the plan" to describe a "special exception".

Turning to the implementation of a comprehensive plan by Allegheny County, the Court found that the county had declined to use the mandatory terms "shall" or "will", but had instead in several places referred to the plan as a "guide", and had given it little regard in the statutory zoning scheme. From this, the Court found no intent to require strict compliance with the plan, but rather an intent to give the Board wide latitude in interpreting and applying the plan when considering special exceptions.

The Court also found that neither the retail area nor the wastewater treatment plant had to be considered separately and apart from the residential development, since both were clearly incidental and accessory to the primary use, and were appropriately considered and approved with the primary residential development use.

The opinion is available in PDF format.

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