Chairperson Harvey Kaye called the meeting to order at 7:30 p.m. Members present: Vice Chairperson Richard Knoebel, Victor MacDonald, Carol Rieg and Alternate David Friend. Absent: Board Member Gary Trojak. Staff present: Caroline Seiden, Planner; Kirk Eby, GIS Planner; and William Chen, attorney to the Board of Appeals.
A-543 Archstone Westchester at Old Town LP
The application requests an Administrative Review of a decision by the City of Gaithersburg Planning Commission. The application states that the Planning Commission erred in its March 10, 2010 action approving Final Site Plan SP-10-0003 to permit a mixed use development in the MXD Zone at Goshen Road and Girard Street, Gaithersburg, Maryland
Chairperson Kaye announced that Closing Arguments would be heard from the parties and that each side would have a maximum of 15 minutes in which to present their argument.
Rebecca Walker, attorney for Appellant Archstone Westchester at Old Town LP (“Archstone”), began her argument by citing two cases (Superior v. Eller Media and Bryniarski v. Montgomery County) as precedent for standing by “aggrievement” due to proximity and noted that the Appellant’s property is located within ½ mile of the property that is the subject of Final Site Plan SP-10-003, which was filed by Woodfield Investments, LLC (“Woodfield”), consistent with the distance used in the cited cases. Walker further stated that Archstone is an aggrieved party because it is a taxpayer and will be harmed by the Planning Commission’s approval of the final site plan. Walker stated that the Planning Commission record for the final site plan (SP-10-0003) approval does not include a Traffic Impact Study (TIS), as required by Section 24-160D.7(d) of the City Zoning Ordinance, indicating that the Commission erred in its approval of the site plan. Walker closed by asking the Board of Appeals to reverse the approval of Site Plan SP-10-0003, and remand the case to the Planning Commission for a full review as to the adequacy of public facilities.
Stanley Abrams, attorney for Respondent City of Gaithersburg Planning Commission, began his argument by addressing the pending Motion to Dismiss. Abrams stated that the Board of Appeals can only review the Planning Commission record and is not permitted to consider evidence that is outside of the record, as the City code does not provide for de novo review of Planning Commission decisions. Abrams stated that the Appellant must have standing under Article 66B, Annotated Code of Maryland, and must show “aggrievement.” Abrams cited the Slusher v Hanson Road Joint Venture case, which holds that to be an “aggrieved party”, one must be a “party” and must have participated in the administrative review [Planning Commission proceeding], which the Appellant did not. Abrams next cited the Bethel World Outreach Church v. Montgomery County case, which holds that an issue must be raised during the administrative review in order to exhaust all other administrative processes prior to filing an administrative review. Further, the TIS was reviewed by the Mayor and City Council and Planning Commission prior to the final site plan review, during both the rezoning and schematic development plan processes, yet the Appellant did not raise any issues nor appear during these previous administrative reviews, again failing to exhaust all administrative remedies prior to filing an administrative review. The cases cited also discuss proximity, usually limited to one-half mile, and the Appellant’s property is on the edge of that distance, if not beyond it. The Appellant has also received financial incentives from the City, which Respondent Woodfield has not, further demonstrating a lack of “aggrievement” by the Appellant. And should the Appellant raise the issue of competitiveness as a reason for aggrievement, the courts have determined that competition is not a basis for aggrievement.
Planning Commission Attorney Abrams next discussed the pending Motion to Strike. The Board of Appeals review of the Planning Commission decision can be based only on evidence of record and the Appellant has included within its Grievance Statement facts that are not within the Planning Commission’s record. These facts should be stricken and not considered during review of the merits of the appeal itself.
Barbara Sears, attorney for Respondent Woodfield, endorsed the argument by attorney Abrams and incorporated it into her own argument. Sears argued that the administrative review should be dismissed due to the Appellant’s failure to raise any issues or appear before the Planning Commission during the review of Final Site Plan SP-10-0003. Sears cited the Circala v. Disability Review Board of Prince Georges County case, which holds that a party that knows or should have known that an administrative agency was making an error, but failed to object or raise the issue during the administrative proceeding, has waived its right to object. Sears next cited the Meadowridge Industrial Center Limited Partnership v. Howard County case, which holds that an issue must be raised during an administrative proceeding before it can be raised in an administrative review or appeal. Sears stated that the Appellant did not raise the issue of the Respondent’s project’s TIS during the Planning Commission proceeding, although the Appellant raised a related issue (monetary contributions by other developers to the intersection improvements associated with its own TIS) with staff (Mumpower) outside of that proceeding. Sears next cited the Del Maso v. Board of County Commissioners of Prince Georges County case, which holds that administrative agencies are not bound by technical common-law rules of evidence but must instead adhere to basic rules of fairness to the parties that appear before them and as long as a party has an opportunity to review and challenge evidence in the record, the required procedural “fairness” has been met. Both the staff report and the Planning Commission Resolution state that the public facilities were adequate, yet no challenge or objection to this statement was made by anyone during the public hearing. Further, the Mayor and City Council Resolution approving schematic development plan SDP-09-002 adopts and incorporates the findings of staff (i.e., staff report), which includes a statement about the TIS being approved and satisfying the adequacy of transportation facilities. The Charles Colao v. Maryland-National Capital Park and Planning Commission case establishes that by the time an application is ready for approval by an administrative body, the technical evidence of record (approved by staff) is fait accompli (assumed sufficient to render a decision) and that agency decisions are prima facie correct and presumed to be valid, similar to the Montgomery County Council v. Shiental case. The case further discusses the notion of “opportunistic litigation” when an objection is raised after a decision has been made or evidence has become fait accompli.
Attorney Sears submitted copies of the Meadowridge, Del Maso, Colao, and Shiental cases as evidence for the Board of Appeals record, along with the staff report for rezoning case Z-307(A) and schematic development plan SDP-09-002. The Board accepted the court cases as exhibits but directed Ms. Sears not to submit the staff report. Stephen Orens, attorney for the Appellant, objected to the submission of the staff report because the report is not part of the Planning Commission record for SP-10-0003. Ms. Sears re-iterated her contention that the report is part of the record as it is incorporated into the SDP resolution R-86-09. Board of Appeals Attorney Chen clarified that the resolution adopts and incorporates “findings”, not a “staff report”. Attorney Walker further objected to the proffered staff report because the “findings” referred to in the resolution are those made by the Planning Commission, and only the Commission, not staff, can make such findings.
Attorney Sears stated that, even without the additional staff report that provides findings of adequate public facilities, the staff report for SP-10-0003 (BOA Exhibit 10) includes a statement that the public facilities are adequate and no objection was raised to this statement during the Planning Commission proceeding. Planning Commission attorney Abrams stated that the TIS in question had been the subject of several prior hearings, had not changed between those hearings and the final site plan hearing, and no objections had been made. Attorney Orens stated that the TIS is a requirement of City Code, yet is not part of the SP-10-0003 record, so the Commission’s finding is invalid because it cannot be based on history, memory, or reference, but must be based on the evidence of record; therefore the Board should remand the case. Attorney Sears read from the staff report and Planning Commission resolution for SP-10-0003, which indicate that transportation and other public facilities are adequate, and again cited case law that holds that an issue must first be raised during an administrative proceeding and that an agency’s record is considered complete and sufficient if there are no objections raised during the proceeding. Attorney Orens cited the MXD zoning language that requires adequate public facilities exist at the time of schematic development plan approval and site plan approval, and re-iterated that the final site plan record does not include the TIS and should, therefore, be remanded to the Planning Commission for further review.
Chair Kaye asked the Appellant to state the factual basis for its argument that it is an aggrieved party with standing. Attorney Orens stated that the Appellant is a property owner, is a taxpayer, owns property within approximately one half mile of the Woodfield property, and will have residents that use the same intersection and streets as the residents of the Woodfield property; thus the public and the residents of both projects are adversely affected if the public facilities are not adequate. Orens stated that the Appellant has prima facie aggrievement due to its proximity of one half mile and, even without such prima facie aggrievement, the Appellant is still aggrieved because a newer TIS for the Woodfield project was not required nor reviewed by the Planning Commission, yet the increased traffic from that project will adversely affect the viability of the Appellant’s project due to inadequate public (transportation) facilities, specifically the failing intersection of Summit and MD 355.
Attorney Abrams referred to the Village Square No. 1 v. Crow-Frederick Retail Limited Partnership case, which holds that the first developer can be made responsible for all necessary public improvements and subsequent developments do not have to contribute toward those public improvements. Abrams asserted that the Appellant has not provided any evidence that the traffic impact from the Woodfield project will adversely affect the Appellant’s project and thus has failed to prove the “aggrievement” postulated by Mr. Orens. Attorney Walker stated that evidence had been presented at the previous meeting that showed the Appellant’s project was being treated disproportionately because it was required to include intersections beyond one half mile, but the Woodfield project was not. Walker also stated that the Appellant is prima facie aggrieved under the half-mile standard set by the Bryniarski case.
Board of Appeals Chair Kaye solicited additional evidence from the Appellant related to aggrievement to which Walker responded that the Appellant had not submitted such evidence because it is outside of the Planning Commission record and the Appellant continues to object to the submission of such evidence. Board of Appeals Attorney Chen requested the Appellant to submit evidence that shows the factual basis for its assertion that it is aggrieved because the Planning Commission’s decision places the Appellant’s project in an adverse position due to increased trips through the Summit/MD 355 intersection, which supposedly will affect the viability of the project. Attorney Orens stated that this evidence is outside of the Planning Commission record and declined to submit it to the Board. Orens asserted that the Board should consider only the evidence in the Planning Commission record, which shows that the record is insufficient because it does not include the TIS, as required by City code.
The Board discussed the failure of the Appellant to appear at the Planning Commission hearing and the failure to submit any written or oral objections to the approval of the Woodfield final site plan. The Board noted that no evidence has been presented that shows the Appellant has been harmed by the Planning Commission’s decision, nor has evidence been submitted that shows the intersection of Summit and MD 355 is failing, nor that Woodfield’s project would have been required to include that intersection. The Board next discussed the concept of proximity, observing that distance is relative and dependent upon several factors, and noted that no evidence has been presented that shows the actual distance between the two projects and no evidence has been submitted that shows the distance between the projects is relevant to the issue of aggrievement. The Board also noted that no evidence has been submitted that shows the traffic impact to the road network will affect the Appellant’s project more than the general public or other projects located a similar distance away. Board of Appeals Attorney Chen again solicited additional evidence from the Appellant related to aggrievement and standing to which the Appellant declined.
The Board asked staff to provide the exhibit numbers (BOA Exhibits 50-53) for the court cases submitted by Attorney Sears. The Board directed staff to assign an exhibit number (BOA Exhibit 54) for the staff report offered by Attorney Sears and stated that the Board would not review the staff report as part of its decision but would like to include it in the record in the event of an appeal of the Board’s decision.
Motion was made by Board Member MacDonald, seconded by Board Member Knoebel, that the record for Administrative Appeal A-543 be closed.
VOTE: 5-0; Approved
The Board discussed the evidence and arguments presented regarding the aggrievement and standing of the Appellant.
Motion was made by Board Member Friend, seconded by Board Member Knoebel, that Administrative Appeal A-543 be dismissed.
VOTE: 5-0; Approved
The Board directed staff and counsel to prepare an opinion and resolution to grant the Motion to Dismiss filed by the Planning Commission and Woodfield.