Agenda - Planning Commission - 06/02/2011

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April 10, 2011 I Volume 5 I No. 7 Zoning Bulletin proposed subdivision was to be developed on a site in the A-1 "Agricul- ture -Rural" zoning district. It would contain 147 lots on the 519.2-acre tract. Lots would average 1.04 acres in size and 352.30 acres would re- main undeveloped as forested set -aside and open space area. Ultimately, the Commission denied PB's preliminary plat for the sub- division. The Commission did so upon concluding that the subdivision did not meet the "purpose" of a cluster development, as outlined in the county zoning code (the "Code"). In relevant part, the Code provided that the purpose of the "cluster development" regulations was: "[t]o encourage innovative and creative cluster design of residential develop- ments"; "[t]o encourage more efficient use of land ..."; and "[t]o pre - Serve agriculture lands and enhance the rural atmosphere and visual character in the county." The Commission determined that PB's plat did not represent any of those purposes. PB appealed the Commission's denial to the county Board of Appeals (the "Board"). The Board adopted the Commission's findings and up- held the denial. PB appealed to court. The circuit court affirmed the Board's decision. PB again appealed. On appeal, PB contended, among other things, that: "because an A-1 `cluster subdivision' [was] a permitted use pursu- ant to `unambiguous criteria' set forth in [the Code], the Commission did not have the authority to deny an application for such use, especially by relying on the `purpose provisions' of [the relevant sections of the Code]." The county countered that "the Commission had the authority to consider the `purpose provisions,' because they [were] not preambles, but rather [were] part of the `statutes themselves."' DECISION: Affirmed. The Court of Special Appeals of Maryland held that the Commission could rely on the "purpose" sections of the Code in denying approval of PB's plat. The court observed that the Board's findings, as adopted from the Commission's findings, went "beyond just the purpose provisions of the Code and of the Comprehensive Plan." In any event, said the court, the Board (and Commission) was entitled to consider the purposes of the Code and the Comprehensive Plan as part of its analysis. As the county had asserted, "the purpose sections [were] part of the ordinances them- selves, not a preamble to an ordinance," found the court. PB had argued that the Board had "exceeded its authority as an ad- ministrative body and acted legislatively when it relied on purposes and plans." The court disagreed, finding the Code gave the Board "consider- able latitude in determining the design of a cluster development consis- tent with the maximum density permitted": "The language of the Code ... [was] permissive, not mandatory .... While residential use [was] a permitted use, and a cluster form of development [was] permitted under 8 © 2011 Thomson Reuters