Published: March 12, 2008 11:59 am      

Terrapin Run permit confirmed

CUMBERLAND - Maryland's highest court on Tuesday upheld a lower court's opinion to grant Terrapin Run its land-use permit for a proposed 4,300-unit subdivision in eastern Allegany County.

The 4-3 ruling, said Bob Paye, attorney for Terrapin Run developer PDC Inc. of Columbia, means that "land-use plans in Maryland are local plans, not necessarily state-mandated plans."

The complete ruling can be viewed at http://mdcourts.gov/opinions/coa/2008/44a07.pdf.

Opponents of Terrapin Run had argued that to grant a special exception to the county zoning ordinance, that exception must "conform" to local land-use policies. But the court noted that the oft-practiced "in harmony with" is the "traditional standard in applications for special exceptions."

"The insertion of the word 'conform' in a 1970 statute was neither intended to, nor did it, change the standard," the court ruled.

Judge Dale R. Cathell wrote in the opinion, which upholds the August 2005 decision by the Allegany County Board of Zoning Appeals, that "local planning processes or decisions are governed by the local visions, not the state policies and are subject to local, not state, regulation."

Paye said Allegany County has a "very responsible plan" with a number of areas spared from development after being designated as sensitive areas. But, Paye said, "Terrapin Run was not one of them."

"I think it also really vindicates the local planning commission and the local board of zoning appeals," Paye said. "Both did a very, very thorough job of reviewing this thing."

Hagerstown attorney William Wantz, who represented Terrapin Run opponents, said the case "expands the power of local boards of appeal."

"The boards are free to apply a much more permissive standard in determining whether special exceptions conform to the plan," Wantz said. Boards have "more freedom to disregard fundamental planning principles (and the decision) broadens the scope of authority to approval of special exceptions."

Dale Sams, a Cumberland resident and founder of Citizens for Smart Growth in Allegany County, opposed Terrapin Run for a number of reasons. He said that Wantz appropriately argued that a special exception shouldn't be granted unless the plan conforms to the county's comprehensive plan.

"I think the legal argument that we put forward was a very significant and important legal argument," Sams said. "I think there's testimony to that fact because the decision is a split decision."

Sams said that development still cannot commence. Numerous permits must still be applied for and evaluated on a case-by-case basis, he said. PDC also must submit an anti-degradation study, which shows the social and economic impact of the subdivision on the area and how the development will affect Fifteen Mile Creek, a Tier II waterway, and its watershed.

"It has many more hurdles to cross before the development can become practical," Sams said.

He disagreed with the prevailing opinion.

"If the court's decision is permitted to stand, it undermines two decades of smart growth advocacy and leadership," Sams said. "It seems to me that the General Assembly may want to have the last word on what it meant by using 'conform' in the enabling legislation."

Paye discounted the notion of any further legal wrangling. He said any further attempt to appeal would be an effort to raise a federal issue "and no federal issue has been involved. So far as we know, this is the end of the line."

Had the ruling been reversed, Paye said it would have been a "major change" in Maryland law.

"The ruling upholds the same standards that's been in use for over 25 years, which is the standards our board has always followed," Paye said. "This does justify all the work they've done."

Contact Kevin Spradlin at kspradlin@times-news.com.



Below is a brief timeline of events surrounding yesterday's Terrapin Run ruling in favor of developers.

* Aug. 2-30, 2005: Terrapin Run received 2-1 approval for special exception to the county zoning ordinance by the Allegany County Board of Zoning Appeals.

* Opponents filed suit in Allegany County Circuit Court, arguing the development must "conform" to master plan as required by Code of Maryland Regulations.

* Judge Gary G. Leasure decided the Board of Zoning Appeals used incorrect testing in its deliberations and instructed the case should be reconsidered under more stringent standards "consistent with" the master plan.

* Terrapin Run opponents filed an appeal to Maryland Court of Special Appeals, continuing the argument that special exceptions must "conform" to local comprehensive plans.

* April 6, 2007 - Court of Special Appeals said the master plan is "merely advisory in nature," strict compliance not required and told circuit court to affirm local zoning board's decision.

* Terrapin Run opponents filed a petition with the Court of Appeals. A hearing was held Nov. 29, 2007.

* Court ruled 4-3 Tuesday in favor of developers.