A strip-mall style commercial building containing a fast-food drive-thru proposed to be built in the parking lot of the Lakeview office complex on Broken Land Parkway across from Lake Elkhorn remains in flux following the latest twist in this proposal's approval process. The Howard County Planning Board is questioning an order from the Appeals Board that they must approve the plan.
In 2021, the Howard County Planning Board denied the proposal in a unanimous decision. This decision was appealed to the Howard County Board of Appeals, which had originally been deadlocked in a 2-2 tie as board members deliberated whether to overturn the Planning Board's action. See The Lakeview Retail Proposal: Are Strip Malls and Drive-Thrus the future of Broken Land Parkway?
A fifth member has recently been appointed to the Board of Appeals and the tie has finally been broken. The Appeals Board voted 3-2 to overrule the planning board's decision, explaining in a May 26 Decision and Order:
After reviewing and considering the Petition, and all the materials submitted with it, and all of the evidence and testimony presented at the hearings, and for the reasons detailed below, the Board finds that the (Lakeview Site Development Plan) meets all the requirements of law and that Appellant met their burden of proof demonstrating that the Planning Board’s decision was clearly erroneous, arbitrary and capricious, and contrary to law. The Planning Board’s administrative decision-making authority under Section 125.0.G.1 of the Regulations is limited to the enumerated criteria contained in the FDP and the Planning Board went beyond the FDP criteria in their decision to deny the SDP.
While this decision seemingly ended the case with approval for Lakeview, there is a catch. In the Decision and Order, the Appeals Board ordered the following:
Based upon the foregoing, it is this 26th day of May, 2022, by the Howard County Board of Appeals, ORDERED: That the Petition of Appeal of AGS Borrower Lakeview, LLC, in BA Case No. 781-D is hereby GRANTED; that the Howard County Planning Board’s denial of SDP20-042 is hereby REVERSED; and that SDP-20-042 is hereby REMANDED to the Planning Board with the specific instruction that the Planning Board APPROVE SDP20-042.
Of note is the final part of this order (which I bolded) remanding the case back to the planning board with specific instructions that the planning board approve the SDP.
In a Planning Board work-session held on June 16, the planning board members discussed this instruction at length, touching on the following important questions.
Why did the Appeals Board remand the decision back to the planning board with specific instructions that the Planning Board approve the SDP?
Couldn't the Appeals order been to just GRANT the appeal and REVERSE the Planning Board's decision, thus ending the case with Lakeview's approval? Why the extra step?
Does the Appeals Board have the authority to tell the Planning Board what to do?
Is the Planning Board now compelled to follow the instructions of the Appeals Board?
Would approving the SDP now essentially equate to the Planning Board admitting that its initial decision to deny the Lakeview proposal was clearly erroneous, arbitrary and capricious, and contrary to law, as the Appeals Board concluded?
Would taking this action create a precedent that limits the Planning Board's options in subsequent cases?
What options, if any, does the Planning Board have given this instruction from the Appeals Board?
Can the Lakeview retail development still proceed if the Planning Board does not follow the instructions from the Appeals Board?
Ultimately, the planning board did not come to any resolution during this worksession. The planning board has tabled the discussion and will seek further guidance and potentially permit additional testimony. The Lakeview case is on the agenda of the planning board's July 7, 2022 meeting.
It should also be noted that in a separate case, the planning board approved a site development plan for a standalone 1-story 5,000 square foot restaurant retail building with a drive-thru lane in the parking lot of the Woodmere business center on Broken Land Parkway adjacent to Lakeview. The Woodmere developers considered community feedback and adjusted the setback, pathway, landscaping and restaurant based on this input. See Planning Board approves Restaurant with drive-thru in Woodmere Office on Broken Land Parkway.
UPDATE (6/29/22, 8 AM):
A former Board of Appeals member who declined to be identified provided input into the questions posed above. Here is their input:
1. and 2. are best taken together. In an appeals case (which are handled differently from conditional uses cases the Board of Appeals typically handles), the Board Rules (contained in the County Code) specify the following:
> The Board may dismiss the administrative appeal or may affirm, reverse, or modify the agency's action, remand the action to the agency for further proceedings, or an appropriate combination of the above. (Sec. 2.210(c))
In general, it's the combination of reverse and remand that's at issue here and that is extremely normal for an appellate venue to reverse and remand with specific instructions on what to do. It is sometimes called "reverse and render" in other jurisdictions, but the decision is mostly a stylistic issue. You want to venue that heard the case to be formal decider. In this case, it is helpful because the Board of Appeals doesn't "know how" to issue an SDP approval; it knows how to write decisions and orders. Issuing SDPs is what the Planning Board does. There's an extra procedural step, but once taken, there's a certain cleanliness and elegance to the process.
This seems so weird because overturning the Planning Board almost never happens. That's not to say it shouldn't. The procedural hurdle of "clearly erroneous, arbitrary and capricious, or contrary to law" is nearly impossible to clear in cases where there is no record created before the Planning Board (and there's a whole flowchart to follow in the Planning Board's rules about type of case and whether or not a record is created). If there's no evidence, e.g., a record, showing a problem, an appellant is at a disadvantage to showing there's a problem.
I am not even sure of the last time the Planning Board was overturned, which is probably why there is confusion. I do not recall any instance of it in my time on the Board of Appeals, and I know for certain it didn't happen in a New Town case.
3. Yes, absolutely, without a doubt, that is its job. There is no wiggleroom here.
4. Yes, absolutely, without a doubt, that is its job. There is no wiggleroom here, either. See 7 for more information.
5. Well, I suppose so, but since the Board of Appeals has already ruled, what the Planning Boad thinks matters as much as what you or I think now.
6. No moreso than they are currently limited. This is an enforcement of those limits already in place.
7. In theory, they could appeal to the Circuit Court. However, since they declined to participate in the process before the Board of Appeals, they probably have no basis for such an appeal.
8. Well, ultimately, the members can do whatever they want. However, failure to deal with the directions given in a timely fashion, would likely lead to a suit against the County and/or members of the Planning Board for failure to issue the appropriate documents.