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<br />The majority concluded that the state planning law
<br />is permissive in nature and plans are only advisory
<br />guides, so a strong link between plans and
<br />implementation is not required.
<br />
<br />approval of the special exception and deter-
<br />mined that the "in harmony with" traditional
<br />standard in applications for special exceptions
<br />remains the standard, in the absence of specific
<br />legislative language to the contrary. The court's
<br />decision is available at www.planning.orgjami-
<br />cusb ri efs j pdf jterra pin run decisi 0 n. pdf.
<br />Terrapin Run, LLC, the developer, proposed
<br />to build an "active adulf' community of 4.300
<br />homes on 935 partially wooded acres in
<br />Allegany County, a rural area of mountainous
<br />Westem Maryland. The land is primarily zoned
<br />District "A" (Agricultural, Forestry, and Mining),
<br />with a portion located in District "C"
<br />(Conservation). In addition to the homes, the
<br />developer proposed to build an equestrian cen-
<br />ter, a community building, and a 125,000-
<br />square-foot shopping center.
<br />The residential density is 4.6 units per acre.
<br />A planner who testified at trial indicated that the
<br />density of the proposed development would
<br />approximate that of Kentlands, in Montgomery
<br />County. The initial phase of development would
<br />use individual septic tanks, butthe project would
<br />eventually require its own sewage treatment
<br />plant Significantly, the property is not located in
<br />one of Maryland's priority funding areas.
<br />The zoning ordinance divides Allegany
<br />County into urban and nonurban afeas. "A" and
<br />"C" are classified as nonurban zoning districts.
<br />The zoning ordinance provides:
<br />
<br />"Non-urban districts are designed to
<br />accommodate a number of non-urban land
<br />uses including agriculture, forestry, mining,
<br />extractive industries, wildlife habitat, out-
<br />door recreation, and communication, trans-
<br />mission and transportation services, as
<br />well as to protect floodplain areas, steep
<br />slope areas, designated wetlands and habi-
<br />tat areas, and Public Supply Watersheds
<br />from intense urban development" Allegany
<br />County Code, Chapter 141, Part 4 (Zoning)
<br />9141-5(B) (emphasis supplied).
<br />
<br />Opponents to the project argued that the
<br />ZBA erred when it found that strict conformity
<br />with the plan was not required and that the pro-
<br />posed development would be "in harmony
<br />with" the Allegany County Comprehensive Plan
<br />
<br />because Maryland Code (Article 66, 9 l(k))
<br />requires a special exception to be "in conformity
<br />with" the plan.
<br />Gov. Martin O'Malley's administration
<br />argued in its amicus brief that counties and
<br />municipalities are required to conform to the
<br />seven broad "visions" for growth in Maryland as
<br />listed below:
<br />
<br />9 1.01. Visions
<br />(1) Development is concentrated in suitable
<br />areas.
<br />(2) Sensitive areas are protected.
<br />(3) In rural areas, growth is directed to
<br />existing population centers and resource
<br />areas are protected.
<br />(4) Stewardship ofthe Chesapeake Bay and
<br />the land is a universal ethic.
<br />(s) Conservation of resources, including
<br />a reduction in resource consumption, is
<br />practiced.
<br />(6) To assure the achievement of items (1)
<br />through (s) of this section, economic
<br />growth is encouraged and regulatory mech-
<br />anisms are streamlined.
<br />(;7) Adequate public facilities and infrastruc-
<br />ture under the control of the county or
<br />municipal corporation are available or
<br />planned in areas where growth is to occur.
<br />
<br />APA and its Maryland Chapter jointly filed
<br />an amicus brief. We argued that "[p]lans are doc-
<br />uments that describe public policies that the
<br />community intends to implement and not simply
<br />a rhetorical expression of the community's
<br />desires." APA's position is that (1) the adopted
<br />comprehensive plan must be implemented;
<br />(2) effective implementation requires that the
<br />day-to-day decisions made by local officials be
<br />consistent with the adopted comprehensive
<br />plan; and (3) the court's review of whether con-
<br />sistency is achieved should be more searching
<br />when local officials are acting in their administra-
<br />tive (quasi-judiciaO capacity. APA's amicus brief
<br />is available at www.planning.orgjamicusbriefsj
<br />pdfjterrapinrun.pdf.
<br />The lengthy majority opinion (s2 pages)
<br />recounts much of Maryland's legislative history in
<br />statutory reforms. "mhis case, in one sense is a
<br />continuation of legislative battles that began in
<br />th.e early 1990s, where representatives of the
<br />
<br />environmental protection and professional land
<br />planning interests attempted to establish that
<br />the State, or State planners, should exercise
<br />greater control than theretofore enjoyed over
<br />most aspects of land use decision-making that
<br />then reposed in the local jurisdictions" (Trail, et
<br />al. v. Terrapin Run, LLC, et aI., 2008 WL 638691,
<br />p.l). The majority concludes that the "in har-
<br />mony" standard is synonymous with "iri con-
<br />formity." However, the three dissenting justices
<br />said the majority "sets special exception consid-
<br />erations on a lubricious path" (Trail, et al. v.
<br />Terrapin Run, LLC, et aI., Minority Opinion, P.13).
<br />The statutory amendments made by the legisla-
<br />ture in 1970, and subsequent case law, but-
<br />tresses the argument that a stricter linkage is .
<br />required between the adopted plan and the
<br />grant of a special exception, the minority opined.
<br />Richard Hall, Maryland secretary of plan-
<br />ning and past president ofthe Maryland Chapter
<br />of APA, said: "We think this is a time when we
<br />need more smart, sustainable growth, not less."
<br />The O'Malley administration is going to study the
<br />ruling before deciding whether to advance legis-
<br />lation to reverse the court's decision.
<br />
<br />Lora Lucero, AICP, is editor of Planning &
<br />Environmental Law and staf{liaison to APA's
<br />amicus curiae committee.
<br />
<br />Cover concept by Lisa Barton.
<br />Photos: Sign @ iStockphoto.comjDavid
<br />McShane; Screen @ iStockphoto.comj
<br />Alexey I<hlobystov
<br />
<br />VOL. 25, NO. if
<br />Zoning Practice is a monthly publication of the
<br />American Planning Association. Subscriptions
<br />are available for $75 (U.s.) and $100 (foreign).
<br />W. Paul Farmer, FAICP, Executive Director; William
<br />R. Klein, AICP, Director of Research.
<br />
<br />Zoning Practice (ISSN 1548-0135) is produced at
<br />APA. Jim Schwab, AICP, and David Morley, Editors;
<br />Julie Von Bergen, Assistant Editor; Lisa Barton,
<br />Design and Production.
<br />
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