Pomeranc-Burke applied for approval of a preliminary plat for a “cluster subdivision” which would have been located in an area zoned agricultural-rural. After a public hearing, the Planning and Zoning Commission (“Commission”) denied the preliminary plat subdivision but with findings of fact to be looked into later. In its decision, however, the Commission noted that the proposed subdivision would profoundly change the rural landscape and character of the region. Specifically, the Commission stated that a subdivision at a density of one unit per 15 acres would be preferable in rural areas.
When Pomeranc-Burke appealed, Wicomico Environmental Trust intervened and the Commission rendered a written Findings of Fact and Resolution affirming the Commission’s previous decision. Pomeranc-Burke appealed and alleged that its’ proposed “cluster subdivision” constituted an inherently permitted use in the agricultural-rural district and the Commission did not have authority to deny Pomeranc-Burke’s application on the basis that the application failed to comply with the general purpose provisions in the applicable code. Moreover, Pomeranc-Burke argued that the Commission failed to support its decision with evidence.
Here, the Court agreed with the lower court. The lower court noted that the issue in this case was one of statutory interpretation. Specifically, the issue was whether the Commission could lawfully consider purpose provisions in the local code in addressing the proposed cluster development. The lower court determined that the Commission was permitted to consider purpose provisions when interpreting the code and addressing the cluster development application because they were a part of the statute itself. Here, the Court also agreed that the proposed subdivision did not satisfy the criteria for a cluster development. Finally, the Court explained that language in the code was permissive, not mandatory and despite permitting residential uses in the agricultural zone, subdivision plans were still subject to approval.
Pomeranc-Burke, LLC v. Wicomico Environmental Trust, Ltd., 2011 WL 711955 (Md.App. 3/2/2011)
The opinion can be accessed at: http://mdcourts.gov/opinions/cosa/2011/2492s09.pdf
