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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2809 September Term, 2008

DEBRA NAYLOR, ET AL. v. PRINCE GEORGE'S COUNTY PLANNING BOARD

Eyler, James R., Kehoe, Kenney, James A. (Retired, Specially Assigned), JJ.

Opinion by Kenney, J.

Filed: August 31, 2011

In its 2002 General Plan, the Maryland-National Capital Park and Planning Commission (the "Commission") set, as a "smart growth" initiative, an objective of limiting the percentage of dwelling unit growth in the Rural Tier of Prince George's County through the year 2025 to less than one percent. Md. Nat'l Capital Park & Planning Comm'n, Prince George's County Approved General Plan 27 (2002). We shall refer to this as the "1% growth objective." In 2009, the Court of Appeals resolved a long-simmering dispute when it held that the Prince George's County Planning Board of the Commission is obligated to consider the 1% growth objective when evaluating an application for a preliminary subdivision plan. See Md. Nat'l Capital Park & Planning Comm'n v. Greater Baden Aquasco Citizens Ass'n, 412 Md. 73, 106 (2009) (hereafter "Greater Baden"). This appeal, however, stems from proceedings that occurred before that question was settled. In 2004 and, after remand, again in 2006, the Planning Board approved a preliminary subdivision plan submitted by Archers Glen Partners, Inc. (the "Developer"), appellee, for construction of nineteen homes in a development to be known as Bennington Farms.1 Located in the Rural Tier of Prince George's County, the parcel adjoins Developer's "sister" subdivision known as Archers Glen, the approval of which was litigated simultaneously and eventually affirmed in Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292 (2007), aff'd on other grounds, 405 Md. 43 (2008) (hereafter "Archers Glen").

1

Although the subdivision is variously referred to in the record as Bennington Farm and Bennington Farms, we shall use the plural that Developer uses in its brief. 2

When the Planning Board adopted an amended resolution (the "Amended Resolution") approving a preliminary subdivision plan for Bennington Farms (the "Preliminary Plan"), appellants Debra Naylor, Esther O. Naylor, Ruth Naylor, Joyce Anderson, Charles and Janette Hoisington, Scott and Susan Morrill, Ross Williams, and the Greater Baden-Aquasco Citizens Association (collectively "Citizens") petitioned for judicial review in the Circuit Court for Prince George's County. Despite Citizens' complaint that the subdivision plan is inconsistent with the 1% growth objective, the circuit court affirmed the Amended Resolution approving the Preliminary Plan. Citizens challenge that judgment, raising three issues for our review, which we have reordered and slightly rephrased as follows: I. Does the Planning Board have standing to participate in this appeal? II.Did the Planning Board adequately articulate factual findings regarding the 1% growth objective? III.Is there substantial evidence in the administrative record to support the Planning Board's finding that the Preliminary Plan is not inconsistent with the 1% growth objective? Because this appeal can be resolved without deciding whether the Planning Board has standing to defend its Amended Resolution, we decline to address that issue. As for the Planning Board's approval of the Preliminary Plan for Bennington Farms, we shall apply lessons from Archers Glen and Greater Baden to conclude that the Planning Board properly considered the 1% growth objective in finding that this plan is not inconsistent with that objective, and that there is substantial evidence in this administrative record to support that

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finding. FACTS AND LEGAL PROCEEDINGS In 2002, the Commission adopted a General Plan stating that, beginning in 2000, "[t]he growth objective of the [General Plan] is that 33 percent of the county's residential growth over the next 25 years is to be located in the Developed Tier, 66 percent in the Developing Tier, and one percent in the Rural Tier." Md.-Nat'l Capital Park & Planning Comm'n, Prince George's County Approved General Plan 4 (2002). As noted, this appeal arises from Citizens' opposition to the proposed development of Bennington Farms on the ground that approval of the nineteen dwelling units in that proposed subdivision is inconsistent with this 1% growth objective. The property at issue is a 95.5 acre parcel in the Rural Tier, located on the south side of Bald Eagle Road in Westwood, which is in Planning Area 87A of Subregion VI. The parcel is zoned Open-Space ("O-S"), which permits single family detached residences on five acre lots, subject to a density limit of .2 dwelling units per acre. Adjoining this parcel is Archers Glen, a separately approved subdivision of forty-seven homes by this same Developer. On December 9, 2004, the Planning Board approved the Developer's initial preliminary subdivision plan for Bennington Farms. Subsequent proceedings before the Board and in the courts resulted in the Amended Resolution that is under review in this appeal. The pertinent events are summarized in the following time line. September 2004 Developer submitted a Preliminary Plan seeking approval of the Bennington Farms subdivision.

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December 9 2004 ,

The Planning Board's Planning staff presented to the Board a composite Staff Report recommending approval of the Preliminary Plan with specified conditions. The Community Planning Division of the Board's Planning Staff, after reviewing the plan for compliance with the GeneralPlan and the MasterPlan, concluded that "[t]his application is not inconsistent with guidelines for development in the Rural Tier as defined in the General Plan" and that, because "[t]his application conforms to the Low Rural residential land use characteristics recommended in the master plan[,] [t]here are no master plan issues associated with this application." The Planning Board passed a resolution approving the plan, with the recommended conditions. Citizens petitioned for judicial review of the Planning Board's action in the Circuit Court for Prince George's County.

February 8, 2005

December 22, 2005 After Developer agreed that further administrative findings were necessary, the circuit court remanded the Preliminary Plan to the Planning Board for additional factual findings consistent with this Court's opinion in an appeal relating to Archers Glen. See Garner v. Prince George's County Planning Bd. of the Md. Nat'l Capital Park & Planning Comm'n, No. 2715, Sept. Term (Md. App.) (filed Jan. 18, 2005). May 25, 2006 subdivision plan, issuing the Amended Resolution. Citizens petitioned for judicial review of the Amended Resolution. July 13, 2006 The circuit court held oral argument on Citizens' judicial review petition. August 16, 2006 March 9, 2007 The Planning Board held a hearing to reconsider its resolution approving the Preliminary Plan for Bennington Farms. The Planning Board again approved the 5

July 6, 2007

This Court affirmed an amended resolution approving the preliminary subdivision plan for Archers Glen against a challenge by a neighbor, Betty Garner, the individual appellants in this appeal, and the Greater Baden-Aquasco Citizens Association.2See Archers Glen, 176 Md. App. 292, 295, 296 n.3 (2007). Further proceedings in the circuit court, on Citizens' petition for judicial review of the Amended Resolution approving the Bennington Farms Preliminary Plan, were stayed pending appeal of the Archers Glen subdivision plan to the Court of Appeals.

October 3, 2007

June 9, 2008 The Court of Appeals affirmed, on limited grounds, the judgment affirming the amended resolution for Archers Glen. See Archers Glen, 405 Md. 43 (2008). November 17, 2008 The circuit court heard additional arguments on Citizens' petition for judicial review of the Amended Resolution approving Bennington Farms. January 26, 2009The circuit court affirmed the Amended Resolution approving the Preliminary Plan for Bennington Farms. February 23, 2009 Citizens noted this appeal. We shall add facts as they pertain to the issues raised by Citizens. DISCUSSION Law Governing Review of the Planning Board's Amended Resolution This appeal challenges the circuit court's judgment affirming the Planning Board's Amended Resolution. We therefore perform the same task as the circuit court, which is to review the Board's decision to approve the Amended Resolution based on the administrative record that was presented to the Board. See Greater Baden, 412 Md. at 83-84. "Our review . . . is a narrow and highly deferential inquiry." Id. at 83. "We determine whether the Board's decision is premised upon an erroneous conclusion of law and whether there is substantial

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Each of the appellants in this appeal was also an appellant in Archers Glen. See Archers Glen, 176 Md. App. 292, 296 n.3, 297 n.4 (2007), aff'd on other grounds, 404 Md. 203 (2008). 6

evidence in the administrative record taken as a whole to support the Board's findings and conclusions." Id. at 84. In undertaking this review, we are guided by two cases in which Citizens challenged the Planning Board's approval of other preliminary subdivision plans for different proposed developments in the Rural Tier of Prince George's County. Because these opinions explain in detail the intricate web of statutes, codes, and regulations that govern preliminary subdivision plans in Prince George's County, an "Article 28 charter" county, we will not reiterate those principles. Instead, our focus will be on the analogous facts and legal issues because these provide the framework for our analysis. Nevertheless, we shall carefully review those opinions

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