N THE MATTER OF FVE M, LLC/AKA THE RDGE AT OLD COURT HOH FLE NO. : 03-490 SS OLD COURT ROAD; E OF SPRNGBRAR LANE 3 RD ELECTON DSTRCT 2ND COUNCLMANC DSTRCT * BEFORE * * * * BOARD OF APPEALS OF BALTMORE COUNTY CASE NO. CBA-12-009 RE: DEVELOPMENT PLAN DECSON ********* OPNON AND ORDER Ths matter came before the Board on an appeal f'om the decson of the Admnstratve Law Judge's (herenafter "ALJ") wth respect to the red-lned Development Plan (the "Plan")1 prepm'ed by Advanced Engneerng Consultants, PC, for the proposed development of sx (6) sngle famly dwellng on approxmately 8 acres. The matter was heard for three full days of publc hearngs, endng on May 26,2011. The ALJ ssued hs decson on June 27, 201 1. A tmely appeal was fled and a hearng on the record (oral argument) was held before the Board on November 10,1 ; 2011. Counsel for the partes agreed to wave the tme frames mposed by Baltmore County Code, ("BCC") 32-4-281. Closng Brefs were fled by Counsel on December 16, 2011. A publc delberaton on the ssues took place on Janumy 18, 20. The Developer was represented by Howard L. Aldelman, Esqure of Levn & Gann. The; 1 appeals were fled by Pkesvlle-Greensprng Communty Coalton, nc., Old Court Greensprngj Communty Assoc., Greensprng East Homeowner's Assocaton, Tom Skarzynsk, Nevlle Jacobs, Dr. Ronald Dener, Mtch Barker, Ron Dondroff, Dr. and Mrs. Paul Leand, and Phllp p.1 Wener, Protestants, were represented by J. Cal1'oll Holzer, Esqure.
The Rdge at Old Court / CBA-12-009 FACTS The property conssts of approxmately eght (8) acres zoned DR. The subject property ~ located off Old Com1 Road east of Greensprng Avenue. The Developer proposes a resdenta~ development wth sx (6) sngle famly homes. Whle the acreage of the propelty and applcabl~ zonng classfcaton would permt eght (8) homes. Lot szes wll be approxmately one-half (l/2j acres, and wll be served by publc systems. A revew ofthe record reveals that the subject propelty was tmely posted wth the notce o~ hearng as requred by the Baltmore County Code, and all procedural prerequstes wer~ satsfed. n the present case, the followng ndvduals appeared durng the three (3) day hearng and testfed that the red-lned development plan satsfed all agency requrements and that the agency therefore recommended approval of the Plan: Jeffrey Perlow-Zonng Offce; Bruce Gll-Recreaton and Parks; Brad Natz-Real Estate; Curts Murray-Offce of Plannng; Denns Kennedy-Development Plans Revew; and Jeffrey Lvngston and Robe11 Wood-Depm1ment of Envronmental Protecton and Sustanablty (DEPS). The Developer called just one wtness, Mostafa zad wth Advanced Engneerngl Consultants. Mr. zad testfed that the Developer had orgnally proposed eght (8) lots, butl through the course of the Concept Plml and Development Revew Process, that number wasl reduced to sx (6) sngle famly dwellngs. Mr. zad testfed that the proposed stormwaterl management faclty s desgned to handle a one hundred (100) year flood, and that t wll bel owned by the homeowner's assocaton, not Baltmore County. Mr. zad also ponted out that o~ the eght (8) acre ste, nearly 5.5 acres wll be dedcated to Baltmore County for envronmental and other open space purposes. 2
The Rdge at Old Court / CBA-12-009 On cross examnaton, Mr. zad testfed that the property slopes sgnfcantly toward thd rear of the property, and he would estmate a sxty (60) foot of drop off from Lots one () and sx (6) to the stormwater management area. Mr. zad further testfed that such a drop off "as a~ engneer, that s nothng." Mr. zad also testfed that there wll be a retanng wall wthn th~ stormwater management faclty, and as such, t would be owned by the Homeowner~ Assocaton. Mr. zad also ndcated that the pattern book for tlls project was submtted aftelj the DPC, and that the houses are now smaller than orgnally proposed. The Protestant called fve (5) adverse wtnesses durng the three (3) day hearng. frst "adverse" wtness was Curts Murray, from the Offce of Plalllllng. Mr. Murray testfed thar n hs opnon the lot szes proposed on the Plan were compatble wth the neghborhood but recognzed that the Plan wll certanly mpact the scenc road (Old Com Road). Mr. Murray concluded that n hs opnon the neghborhood would retan ts "estate" character, and that there, would stll be a "park lke" settng n tlus corrdor. The next wtness called by Protestants was Denns Kennedy, of the Bureau o~ Development Plans Revew. Mr. Kennedy testfed that surface water wll be dveled n, collllecton wth the proposed development, and he advsed that the Developer requested that thel County Department of Publc Works (DPW) approve the dverson after the Development Planl conference n ths case. Mr. Kennedy advsed that due to Protestant's nqures, he requred the Developer to satsfy the requrements for dverson approval set folh n the new DPW desgn manual even though ths project was n fact grandfathered under the earler regulatons. Mr. Kennedy fmher testfed that Ed Adams, by letter dated Aprl 28, 2011, approved the dranage, dverson n ths case., The next wtness was Dave Snook, an engneer from the Department of Publc Works. 3
The Rdge at Old Cou)'t / CBA-12-009, Mr. Snook testfed that the Drector of DPW, Ed Adams, ssued a letter approvng the dranagd, dverson and that the "case" was therefore closed n hs mnd. The next wtness called by Protestants was Mchael Vscan'a from the Department of Permts, Approvals and nspectons. Mr. Vscan'a testfed that he frst revewed the dranag~ dverson analyss durng March, 2011, well before the Aprl 28 date on Mr. Adams' lettell allowng the dverson. The fnal adverse County wtness called by Protestants was Robel Wood, from DEPS. Mr. Wood revews stormwater management and gradng plans for complance wth Baltmore County requrements. Mr. Wood testfed that the stormwater management faclty proposed ~ j ths case was acceptable and met all Baltmore County requrements. Mr. Wood testfed that thel, County could not own the storm water management pond because t was desgned wth a retanng wall. Mr. Wood expressed that he orgnally had concerns wth the outfall of stormwater for the project, but beleves that the ssue has been addressed satsfactorly n the revsed Plan. Mr.l Wood testfed that he vsted the ste several tmes and was vely famlar wth the Plan. Mr. Wood next testfed that the Developer's proposal would not comply wth Mayland's newl stormwater management regulatons, but that tlls project was grand fathered gven that the Developer had subnltted suffcent nformaton pror to May 4, 2010 so as to consttute "prelmnay project approval ". Upon further questonng from Developer's counsel, Mr. Wood testfed that resdental developments frequently have prvately owned and mantaned stormwater management ponds, and he confrmed that f a prvately owned faclty s not mantaned, Baltmore County wll cause such work to be performed and charge the owners for the repars. Mr. Wood testfed that the houses n the vcnty of the subject property are served by publc water, and that the 4
The Rdge at Old Court CBA-12-009 rechargng of groundwater s a more mportant ssue when a propely s served by a well. Protestants expert wtness was James Patton, a professonal engneer. Mr. patto~ testfed that he dsagreed wth Curts Murray and dd not feel that the proposal was 'compatblel wth the exstng neghborhood. Mr. Patton descrbed Mr. Murray's polrat of the neghborhoodj as "lackng" and descrbed the proposed Plan as a "rural pathway" through a resdental areal Mr. Patton descrbed the Plan as defectve n that t dd not depct "prvate yard areas" as manyr of the proposed dwellngs had 3: 1 slopes n the rear yard areas. Mr. Patton opned that the deck~ ) may be the only realstc way to meet the fve hundred (500) square foot yard area. Mr. Patton testfed that to have a sutable outfall from the stormwater managemen1 faclty, the Developer must demonstrate an ablty to dscharge approprately the stormwatelj f'om the ste. Mr. Patton ndcated that hs revew of the stormwater dranage from ths ste: ~ revealed a "questonable secton" on the Plan, gven that there were no documents to show thatl an adjonng owner has granted approval for the Developer to cross ts land to reach Pond #3 o~ Greensprng East. As such, Mr. Patton opned that a sutable outfall was not depcted on the Plan, and that n hs opnon, the Plan could not be approved. Mr. Patton next descrbed what he explaned were very sgnfcant errors on thel Developer's plans delneatng the steep slopes on the ste constrants map. Mr. Patton tested thatl hs own steep slopes analyss revealed slopes of greater than twenty-fve (25%) percent n thel area of Lots two (2) and fve (5). Accordng to Mr. Patton, has these slopes been properly delneated on the ste constrants map, t would have caused "great concern" to DEPS. Mr. Patton also advsed another problem wth the Developer's ste constrant plan, whch faled to show that a "major cut" would be requred near the Leand propely lne, and that ths could cause trees to fall and water to be dverted from the Leand propely to the Developer's 5
The Rdge at Old Court CBA-12-009 stormwater management system. Fnally, Mr. Patton opned that more dense landscapng wa~ requred between the proposed houses and Old Court Road and the Leand's adjonng propely. On cross examnaton, Mr. Patton conceded that the publc ston} dran, nto whch th~ Developer's proposed stormwater management faclty wll flow, s not over burdened. Md Patton agreed that the Developer's schematc landscape plan shows trees bufferng the house~ closest to Old COUlt Road, and he confrmed that there were no scenc easements n exstenc~ along ths stretch of Old Court Road. Mr. Patton also conceded as to the compatblty ssue tha~ the homes bult n the last ten (10) to twenty (20) years have been two story sngle famlyr dwellngs. Mr. Patton also stated that the small lots proposed n the fnal development plan wer~ enabled by the provson of publc sewerage, and that the su1'olmdng homes were on larger lod and had septc waste systems. Mr. Patton conceded that there was no requrement n the County regulatons concernnj the actve or passve nature of ths yard area, unlke the Baltmore County Open space Regulatons, whch contan such a delneaton. n ts rebuttal case, the Developer called John C. Canoles, who was accepted as an expertl natural resources consultant. Mr. Canoles testfed he vsted the ste approxmately twelve (12)1 tmes. He also testfed that he prepared the ste constrant map, as well as, the forest buffer and forest conservaton plans, all of whch were approved by DEPS. Mr. Canoles testfed that the forest on tlls ste s rated "hgh prorty" and that "to the extent possble" the majorty of ths forest s protected and deeded to Baltmore County. Mr. Canoles conceded that roughly half of the forest (3.8 acres) would need to be cleared for the development. Mr. Canoles stated t wasl preferable to clear forest nsde the URDL rather than n a rural area outsde the URDL, such as northern Baltmore County. 6
The Rdge at Old Court CBA-12-009 The Developer recalled Mr. zad as the fnal rebuttal wtness. Mr. zad presented a lette~ from Carrollton wheren the bank approved an easement for the developer to cross the propert)j wth the ppng from the stormwater management faclty to Greensprng Pond #3. Mr. zad t further testfed that polon of the subject propely would dran nto Greensprng Pond #3, and ~ porton of the property would bypass Greensprng Pond #3 on ts way to the Pont ofnterest anj the stormwater management faclty. Mr. zad also testfed that the dverson of surface watell that has hstorcally flowed onto the Leand's propely, that the Plan ncludes four or fve drj wells near the Leand's property lne to collect and allow for absorpton of ranwater. SSUES Protestants rased the followng ssues to be determned by the Board. 1. Dd the ALJ's summary of the facts presented n hs Opnon and Order fal to accurately depct the testmony of varous wtnesses throughout the three (3) day hearng? 2. Dd the ALJ err n determnng that the Rdge at Old COUl Plan s grandfathered from complance wth new Mmyland Storm Water Regulatons? 3. Dd the AL err n hs concluson that the Greensprng East Pond #3 was a sutablel outfall for the proposed SWM pond? 4. Dd the AL err n hs approval of the Steep Slope Analyss and the mpact of a Faultyl Steep Slope Analyss submtted by the Developer and revewed by EPS? 5. Dd the ALJ err both factually and legally n concludng that the proposed sx (6) homel subdvson was "compatble" wth the neghborhood and scenc Old COUl Road? FNDNGS ssue No.1 - Dd the ALJ's summary of the facts presented n hs Opnon and Order fal to [ accurately depct the testmony of varous wtnesses throughout the three (3) day hearng? 7
The Rdge at Old COllrt / CBA-12-009 The Board's revew of an approved Development Plan s set folh n the Baltmore Count) Code at 32-4-281 (e) () (4) and (5). The Board has the authorty to modfy or remand the case f\ fmds the decson of the ALJ s unsuppoled by competent, materal, and substantal evdence ~ lght of the entre record as submtted; or s arbtrary or caprcous. After a revew of the testmony: and exhbts we fnd that the ALJ's decson was suppoled by the facts and fnd no error of law 1 The Developer presented substantal and credble evdence n suppol ofthe Development Plan. ssue No.2 - Dd the ALJ elt n determnng that the Rdge at Old Court Plan s grandfathel'ed from complance wth new Maryland Storm Water Regulatons? Under Maryland regulatons, a development project whch has "receved a prelmnary project approval pror to May 4, 2010" may be granted an admnstratve waver from complance wth the State's newly-enacted stormwater management regulatons. COMAR Secton 26.17.02.01-2. The Baltmore County Councl belatedly enacted Bll 25-10, whch was codfed at B.C.C. 33-4-112.1, governng stonnwater management wavers. A revew ofthe record reveals both the comments at the Development Plan Conference as well as the Development Plan tself reflect that a "prelmnary approval" of the concept stormwater management plan was granted by the Department of Envronmental Protecton and Sustanablty (DEPS), Stormwater Management Dvson on May 4, 2010. We agree wth the fndngs of the ALJ that the Plan n ths case need not comply wth the new Mmyland stormwater management regulatons. ssue No.3 - Dd the ALJ err n hs concluson that the Greensprng East Pond #3 was a sutable outfall for the proposed SWM pond? One of the prncple dsputes concernng the stormwater management was 8
The Rdge at Old Court / CBA-12-009 whether or not the Developer was able to use Greensprng East pond #3 (an nstream stormwater management devce) for the surface water dranage generated by the proposed development. Mr. Bondroff testfed that the homeowner's assocaton whch owns the pond voted to prohbt the Developer from dschargng any water nto t or makng any use thereof. However, the Developer col1'ectly asserts that when the stormwater management plan for Greensprng East was approved by Baltmore County on May 29, 1990, an easement for the stormwater dranage of upstream propertes -- ncludng most of the property owned by the Developer - was noted thereon. See Protestants' Exhbt 14. The Developer of Greensprng East was oblged to construct that stormwater faclty n such a fashon to accommodate the amount of runoff generated by "the entre upstream area" as f that area were "fully developed n accordance wth the Baltmore County Zonng Regulatons." B.C.C. 32-4-410(c). Further, Maryland common law also permts a landowner to dscharge stormwater onto lower lyng propertes, and correspondngly, prevents owners of those lower lyng propertes from erectng barrers to prevent the flow of that water. Baer vs. Board of County Commssoners of Washngton County, 255 Md. 163 (1969). The testmony ndcates that the surface/storm water from the subject property has always flowed downgrade and that post-development such flow wll be less n velocty and quantty. The other ssue n connecton wth the stormwater management plan was whether 01' not the Developer had proposed a "sutable outfall." Both Developer's engneer (Mustafa zad) and Mr. Wood from DEPS opned that a sutable outfall 9
The Rdge at Old Court / CBA-12-009 was n fact demonstrated on the Plan, whch receved County approval. Protestants' engneer conceded that the publc stormwater system nto whch the runoff would flow was not "overburdened" but he testfed that there was a "questonable secton" of prvate land between the Developer's property and pond #3, and that t was unclear whether the Developer had approval to cross that party's land. Research showed Carrollton Bank was the owner of the prvate land n queston. Developer was able to produce credble evdence that Carrollton Bank has granted the Developer an easement to make use of ts propelty for the stormwater management conduts, upon a payment of twenty thousand dollars ($20,000). ssue No.4 - Dd the ALJ err n hs approval of the Steep Slope Analyss and the mpact of a Faulty Steep Slope Analyss submtted by the Developer and revewed by EPS? The Protestants also rased concerns over alleged errors made n the Developer's plans where slopes of greater than 25% were not specfcally dentfed. Mr. Patton testfed that between Lots 2 and 5 on the Plan and the roadway adjacent thereto slopes of greater than 25% exsted, yet were not ndcated as such on the Plan. The Developer's natural resources consultant, John P. Canoles, testfed, he does take slopes nto consderaton when preparng forest buffer and forest conservaton plans, and uses three ranges whch have scores assocated therewth, as follows: 0-10%; 10-20%; and slopes greater than 20%. These are the vely same scales set forth n the B.C.C. n connecton wth the preparaton offorest buffer plans. B.C.C. 33-3-111. Mr. Canoles dd reference and demarcate those areas where slopes were 10
The Rdge at Old Court CBA-12-009 greater than 20%, whch of necessty would encompass those slopes of greater than 25% whch Mr. Patton contends exst on the subject propely. Mr. Patton acknowledged that DEPS' analyss ncluded all slopes n excess of20%, and therefore, slopes of 25% where ncluded n the analyss. ssue No.5 - Dd the ALJ ert' both factually and legally n concludng that the proposed sx (6) home subdvson was "compatble" wth the neghborhood and scenc Old Court Road? All Development plans are subject to the performance standards set forth n B.C.Z.R. 260. Those regulatons seek to ensure that "resdental development n Baltmore County conforms wth a hgher qualty of desgn," and that the proposed buldngs and ste mprovements "complement those n the su1l'oundng neghborhood." Curts Murray from the Offce of Plannng testfed that n hs opnon the Plan satsfed the performance standards set forth at B.C.z.R. 260, and hs agency recommended approval. The Protestants faulted Mr. Murray's analyss and crtczed hm for never vstng the ste. Mr. Murray testfed Dane tter, had sgnfcant nput nto ths proposal and that she s ntmately famlar wth tus area. Protestants also rased concerns that two StOlY homes are beng proposed for the Rdge at Old Court subdvson, whereas the majorty of surroundng homes are one StOlY. Whle that may n fact be the case, Protestants' expert, James Patton, conceded that wthn the last 10 to 20 years only two StOlY homes have been constructed n the vcnty of ths project, reflectng a more modern trend n home constructon. The Protestants also rased concerns over the lot szes as the sx homes planned for the subdvson would each have an approxmately half-acre lot wlle those homes n the sultoundng area have an
The Rdge at Old COllrt / CBA-12-009 acre or more. A revew of the evdence reveals that whle most of the homes along ths polon of Old Court Road n fact have one acre or larger lots, that s celanly not the case for the adjonng Greensprng East subdvson, whch contans over 300 homes. Whether or not a development s "compatble or ncompatble" wth the surroundng neghborhood, or would preserve the "estate lke" character ofthe neghborhood, s a subjectve judgment call. Mr. Murray conceded as such n hs testmony, and absent compellng testmony to the contrmy, the Board wll not substtute ts personal judgment for that of the Offce of Plmmng whch has partcular expelse n these matters, or the ALJ. DECSON n accordance wth 32-4-281, the Bom'd of Appeals s lmted n ts revew of the ALJ's decson. Secton 32-4-281(e) states: (e) Actons by the Board of Appeals. 1. n a proceedng under ths secton, the board may: () Remand the case to the hearng offcer; () Affrm the decson of the hearng offcer; or () Reverse or modfy the decson f a fndng, concluson, or decson of the hearng offcer: (1) Exceeds the statutory authorty or jursdcton of the hearng offcer; (2) Results from an unlawful procedure; (3) s affected by any other error of law; (4) s unsupported by competent, materal, and substantal evdence n lght of the entre record as submtted; or (5) s arbtrary or caprcous. 12
The Rdge at Old COUl't / CBA-12-009 The Board has consdered the ssues rased by Protestants and has concluded that there s nsuffcent evdence to overturn the Opnon of the Admnstratve Law Judge n ths case. ORDER T S THEREFORE ths lz,nd day of k\0jc<:lrg, 2012 by the Board Appeals of Baltmore County ORDERED that the Development Plan for the Fve M, LLC, AKA The Rdge at Com, dentfed as Developer's Exhbt No. B, n HOH Case No.: 03-490 and Board Appeal Case No.: CBA-12-009, ssued n the Admnstratve Law Judge's Opnon Development Plan Order, dated June 27, 2011 be and s hereby APPROVED; and t s further ORDERED that the decson of the Admnstratve Law Judge, dated June 27, 2011, HOH Case No.: 03-490 be and the same s hereby AFFRMED. Any petton for judcal revew from ths decson must be made n accordance wth 7-201 through Rule 7-210 of the MWJ1land Rules. BOARD OF APPEALS OF BALTMORE COUNTY 'Andrew M. Belt, Panel Charman Wendell H. Grer ~(U)'u:\ df. T\rW)-L(J,m\ KC- Davd L. Thurston 13