MD Court of Special Appeals Holds Developers Were Not Required to Obtain County Council Resolution Authorizing Amendment of PUD Plan

The Office of Administrative Hearings of Baltimore County (“OAH”), ruled that appellees, BKL York I LLC, BKL York III LLC, Logwood LLC, Wawa Inc., and Monterey Improvement Association (collectively, “Developers”), were not required to obtain a County Council Resolution (“Resolution”) authorizing the amendment of their Planned Unit Development (“PUD”) plan. On September 13, 2013, the Circuit Court for Baltimore County issued a memorandum opinion and order affirming the decision of the Baltimore County Board of Appeals (“Board of Appeals”), which affirmed the decision of the OAH. Appellants, Lisa Tomlinson and Douglas Miller (collectively, “appellants”) appealed, asking the court to determine whether Developers were required to seek a Resolution by the County Council authorizing the material amendment of the commercial PUD plan.

PUDs, explained the court, are legislative creations in response to changing patterns of land development and the demonstrated shortcomings of orthodox zoning regulations, and were considered floating zones, created by a petition of a property owner desiring to develop his specific tract for any special zoning purpose. Under the plain language of the PUD title at the time of the Honda PUD’s approval, no approval was required for a development plan so long as it materially conformed to the concept plan that was originally approved. At the time that the Honda PUD was approved, the special exception of 1989 for the Shell Oil station was still in place. That special exception allowed for a service station and a food mart at 10111 York Road. Thus, the second amendment materially conformed with the original Honda PUD concept plan because the land underlying the Honda PUD included a special exception to its zoning for the same use contemplated by and approved in the second amendment.

The court found that even if the Developers needed to take some action for approval of the second amendment, they did more than enough to allow for public input on the second amendment. Developers and various Baltimore County agencies held a Development Plan conference on January 25, 2012, to discuss the proposed amendment, petitioned for a special hearing, then submitted the matter to the OAH for review. Furthermore, a two-day hearing was held where testimony was taken from a variety of witnesses including Developers, engineers, and residents from the community. The court held that an administrative hearing was all that was required for the first amendment, and therefore affirmed judgment of the circuit court for Baltimore County.

Tomlinson v BKL, LLC, 2014 WL 4999696 (MD 10/7/2014)

The opinion can be accessed at: http://www.mdcourts.gov/opinions/cosa/2014/1533s13.pdf