Agenda - Planning Commission - 06/03/2010

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Zoning Bulletin - April 10, 2010 ~ Volume 4 ~ No. 7 station. Eastern intended to expand the store, modernize the gas sta- uon, and add a car wash. In order to proceed with its plans, Eastern needed a special exception under the county's zoning ordinance. It also needed'the county's planning board (the "Board") to allow it to depart from Design Standards. Accordingly, Eastern. filed with the Board a "[d]esign departure request" (the "DD Request"). Eastern also filed a request fora spe- cial exception (the "SE Request") with the county's zoning hearing examiner ("ZHE"). The Board recommended approval of the DD Request. The ZHE filed a decision approving the SE Request. Thereafter, the county council, sitting as the district council (the "Council"), elected to review and make a final decision on the Board's decision on the DD Request. It also elected to review and make a fi- nal decision on the ZHE's decision on the SE Request. However, the Council never held a hearing in regard to either request. Instead, it eventually sent out notice that it was withdrawing its election to make final decisions on the DD Request and the SE Request. The notices stated that the Board's decision of approval of the DD Request was therefore final, as was the ZHE's approval of the SE Request. /`~ Neighboring landowners of Eastern's then filed an action in dis- 1 . trict court, appealing the approvals of the requests. The Council and Eastern asked the court to dismiss the action. They argued that the circuit court could not hear this appeal because no "fmal decision" had been made. State law (Maryland Code Arti- cle 28 § 8-106(e)) only authorized appeals by affected property own- ers of a "final district council decision...." The circuit court agreed with the Council and Eastern that it could not hear the matter under § 8-106(e) since no final decision had been made as to the DD Request or the SE Request. The court dismissed the Neighbors' action. The Court's Decision: Judgment of the circuit court reversed and remanded. The Court of Special Appeals of Maryland held that the Council's decision to withdraw its election to make a final decision regarding the SE Request was illegal. So too was the Council's decision to with- - draw its election to make a final decision regarding the DD Request, said the court. The court further held that the Council's decisions-to withdraw its election to make a final decision~onstituted "final de- cisions" for the purposes of appellate review (i.e., under § 8-106(e)). \ ~ The Neighbors could appeal to court from this "final decision." ~ The court pointed to §§ 27-312(f) and 27-141 of the county zon- ing o;dinance. Section 27-312(f) governed the Council's jurisdiction. © 2010 Thomson Reuters 49