Posted by: Patricia Salkin | July 9, 2017

MD Court of Appeals Finds Master Plan Invalid as Amendments Should Have Been Sent Back to Planning Board for Written Comment

The County Council of Prince George’s County amended an area master plan to prohibit surface mining in certain mineral-rich areas of the county. The District Council adopted the 2013 Master Plan with amendments it added. The District Council inserted language to “encourage” mining companies to “provide specific evidence” of a mine’s economic benefit. The plan was also amended to require mining companies to “mitigate on and off-site transportation impacts” and potentially limit the hours and duration of mining activities. Finally, the Amendments required mining companies “to achieve post mining reclamation that meets environmental needs.” The District Council did not send the Amendments back to the Planning Board for comment or a public hearing prior to their approval. On August 15, 2013, the District Council published a public notice announcing its approval of the 2013 Master Plan with the Amendments, and the Mining Entities filed a petition for judicial review of the 2013 Master Plan in the Circuit Court for Prince George’s County pursuant to LU § 22-407(a)(1). The Mining Entities argued that the Amendments were invalid because the District Council failed to follow procedural requirements for their adoption. The Circuit Court affirmed the District Council’s adoption of the Amendments The appellate court rejected the District Council’s jurisdictional challenges to the Mining Entities’ suit, and held that the 2013 Master Plan was invalid because the District Council failed to send the Amendments back to the Planning Board for written comment, and that the Maryland’s Surface Mining Act (“SMA”) did not preempt the Amendments.
The court found that while LU § 22-407(a)(1) did not expressly list master plan amendments as decisions subject to judicial review, its text broadly authorized judicial review of “a final decision” of the District Council. Here, the District Council’s Resolution approving the Amendments was a clear and definitive in its adoption of policy to “restrict sand gravel mining to the Rural Tier,” a well-defined geographical area. The Mining Entities would need to apply for special exceptions for sand and gravel operations. The court determined that these legislative provisions gave the District Council the means to ensure that its policy to “restrict sand and gravel mining to the rural tier” would be enforced. As such, these Amendments created a regulatory device that was subject to judicial review.
The District Council next argued that because the Mining Entities did not attend any of the public hearings on the 2013 Master Plan, they were barred from seeking judicial review. Here, the court found the Mining Entities satisfied standing requirements of LU § 22-407(a)(1), as Chaney and Southstar were persons in the county, and the MTBMA represented at least one mining entity that owned property in the Developing Tier of Subregion 5, where the Amendments prohibited surface mining. Furthermore, the court found that it would be illogical to require participation in proceedings as a prerequisite to judicial review when the District Council did not give notice that it was considering amending the 2013 Master Plan.
Next, the District Council argued that Respondents Chaney and Southstar were required to exhaust the RDA’s administrative remedies before resorting to the courts. The court held that an exception to the exhaustion doctrine “permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority (including whether it was validly enacted) of the legislative body to adopt the legislation from which relief is sought.” Here, the District Council held the required public hearing on the original 2013 Master Plan without the challenged Amendments; without the Amendments, the 2013 Master Plan would still carry out the District Council’s intent to update the Subregion 5 Master Plan to implement the recommendations of the 2002 General Plan. Accordingly, the court held that the Amendments were severable from the 2013 Master Plan, and its remaining portions would stand.
Finally, the court found that “it cannot be that the Council—and by extension, the citizens of Prince George’s County —are powerless to restrict surface mining in those areas of the County where surface mining is no longer a safe and viable activity.” Therefore, the court held that the SMA did not preempt local zoning and planning authority.
County Council of Prince George’s County v Chaney Enterprises Limited Partnership, 2017 WL 3205518 (MD 7/28/2017)

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