The Real Deal - December 2014

Date: December 8, 2014

The Changing Impact of Comprehensive Planning on Zoning
By: John B. Gontrum, Esq.

Recent decisions from trial and appellate courts have marked a major point in the evolution of importance of comprehensive plans to zoning decisions.   Although there has always been a close relationship between comprehensive plans and development regulations, the relationship between comprehensive plans and land use or zoning regulations has been less close.  That may be changing and could have major implications for local zoning decisions including comprehensive re-zonings. 

Comprehensive plans contain multiple elements intended to address not just how land is to be used but also community growth and needs for transportation, recreation, healthy environment, etc.    Prior to the enactment in Maryland of legislation requiring comprehensive plans from local jurisdictions the Maryland Planning and Zoning Law Commission concluded that comprehensive plans are “the foundation upon which zoning, subdivision, and other land use regulatory devices shall be constructed.”  Although development regulations have generally required that developments conform or comply with comprehensive plans, comprehensive plans have usually operated only as “guides” in local zoning decisions.    Indeed, absent a provision in a local ordinance even if zoning legislation diverged from recommendations in a comprehensive plan, reviewing courts did not consider such divergence probative of error in the zoning.

The game-changer was the Allegany County case of Trail v. Terrapin Run.  In that case a special exception was upheld by the Court of Appeals for a large development which numerous groups and state agencies including the Maryland Department of Planning opposed for being antithetical to smart growth.   The Maryland General Assembly so disliked the decision that it enacted legislation specifically to overturn the decision and to require that special exceptions comply with comprehensive plans.   The Sustainable Growth Act of 2009 stated the General Assembly’s intent that “comprehensive plans should be followed as closely as possible while not being elevated to the status of an ordinance and … deviations from the plan should be rare.”

This enactment was relied upon by the Circuit Court of Queen Anne’s County in a case where the rezoning of 11 parcels of land during a comprehensive zoning map process was the subject of protest.   Because Queen Anne’s County is a non-charter county, the state laws directly govern the local zoning authority, and the Court held, therefore, any re-zoning should comply with the comprehensive plans.   The Court relied on the 2009 Sustainable Growth Act in stating that land use enactments had to be consistent with the enacted comprehensive plan.

Land use impacts on property come about through legislative enactments placing zones on particular parcels limiting use.   Another form of land use impact on property comes from quasi-judicial decisions involving special exceptions or special use permits and zoning variances.   The Sustainable Growth Act made it clear that, whether the local land use ordinances explicitly stated it or not, special exceptions or special use permits had to comply with comprehensive plans. 

In 2013 the General Assembly may have extended to all local governments a requirement that all land use enactments had to comply with a comprehensive plan.   Chapter 674 of the Laws of 2013 amended the state code to provide that even charter counties such as Baltimore, Harford, Howard and Anne Arundel, which are free to adopt their own land use regulations, should only adopt implementation programs such as zoning laws “that are consistent with the comprehensive plan.”  

In Harwood Civic Association v. Anne Arundel County, Maryland, an unreported Court of Special Appeals case, members of a community challenged the rezoning of specific properties during a comprehensive map process alleging spot zoning and comprehensive plan inconsistency.  There are several issues of importance in this case, including who has standing to challenge the outcome of comprehensive zoning as well as the attack on a legislated rezoning.  The Court of Special Appeals found standing to raise the argument on particular properties and remanded the case to the circuit court to determine whether the rezoning was consistent with the comprehensive plan of Anne Arundel County as required by Chapter 674.  

The Maryland Court of Appeals has granted review of the case and is scheduled to hear arguments on January 14, 2015.  The decision of the Court of Appeals will be significant in determining who has the right to bring a comprehensive zoning objection before a court of general jurisdiction and whether comprehensive plans have been elevated beyond being mere guides to a status requiring compliance in zoning enactments and decisions.  
Generally comprehensive plans are lengthy documents containing many, often contradictory, goals and statements, particularly when applied to land use issues.   A further complication is that comprehensive plans often contain references adopting local community plans or other plans, which themselves may well contain statements contradicting other portions of a comprehensive plan.  

If legislative enactments granting or denying zoning classifications on individual properties are going to be subject to attack because they didn’t comply with comprehensive plans, courts of general jurisdiction will not only become the arbiters of land use matters, which are typically reserved for legislative councils and executive agencies, but certainty in zoning and in land use will significantly suffer.