Opponents of South County Rezoning Get Victory at Appeals Court

In a  26-page decision, the Maryland Court of Special Appeals has reversed the Circuit Court decision in the  rezoning case Harwood Civic Association v. Anne Arundel County. The case involves a number of up-zoned parcels — including several in Southern Anne Arundel County — will go back to the Circuit Court to be reheard.

“I am very happy to be able to let you know that I have just received the opinion of the Court of Special Appeals in our challenge to the rezoning in South County, and we won on all of the issues before the Court,” Russell Stevenson, attorney for the Chesapeake Legal Alliance, said in an email.courtofappeals

A Comprehensive Rezoning Refresher:

To refresh everyone’s memory: in 2011, the Anne Arundel County Council and County Executive, as part of once-every-ten-years comprehensive rezoning process, rezoned a number of parcels in all seven councilmanic districts. In South County, the rezoning applications were primarily up-zones, or zoning for denser use.

This legislative process is designed to align zoning to property use or to otherwise fix improper land use and zoning. This comprehensive process is a function outside of the typical judicial process, in which people go to the Office of Planning and Zoning and have a hearing with input from county planners.

In comprehensive rezoning, a number of parcels slated for up-zoning in South County were controversial. There was opposition to up-zoned parcels around the Lothian traffic circle and a denser zoning request for the former police station at the corner of Solomons Island Road and Virginia Avenue at the corner of Edgewater Beach in Edgewater, among others.

The County Council passed a number of these controversial rezoning applications. Then-County Executive John Leopold attempted to veto some of them, but several of the vetoes were overridden. You can see the final bill here: 44-11.

The residents who opposed these up-zones said that they violated the  General Development Plan (GDP) and the Small Area Plan (SAP) [PDFs]. These two documents outline land use in the county. The GDP and SAP were used as the basis for the original lawsuit, filed by the Chesapeake Legal Alliance on behalf of a number of citizens and groups, including the Harwood Civic Association, Friends of Jug Bay, South River Federation, Lothian Civic Association and the Davidsonville Area Civic Association.

The Legal Angle

The Circuit Court threw out the case, saying that the groups and citizens that filed the lawsuit didn’t have “standing” or a stake in the case. We wrote about the probable “end of the road” for the case (Oct. 2012).

The case had life left though, and in November of 2013, Stevenson argued the appeal before the Maryland Court of Special Appeals. We published a preview of the case the night before oral arguments (Nov. 2013).

Curiously, later in November 2013, the same appellate court made an important decision in a separate case, Bell v. Anne Arundel County. In that case, which centered around the same comprehensive rezoning process, the appeals court said that people and groups who lived near the up-zoned parcel had a stake in the case. In other words, they were potentially an aggrieved party due to the rezoning and had legal standing.

“I knew about the Bell case,” Stevenson said. “We were both basically raising the same substantive issue.”

Stevenson said that when he heard the Bell decision, which was issued just weeks after he’d argued Harwood Civic v. Anne Arundel, he knew that he was looking good on the standing part of the case. But his case before the appellate court was arguing the merits, which the Bell case didn’t address.

On that front, the decision of the Court of Special Appeals said that the lower court was also wrong.

“It ain’t over,” Stevenson said, adding that the decision simply means they get to go back to the Circuit Court to argue the case, which they never got a chance to do because it was tossed out so early in the process.

Before they get there, the county gets a chance to ask the court to ask for a discretionary appeal of the decision. The court doesn’t have to grant what is known as a Petition for Certiorari. The county asked the court for an appeal in the Bell decision, so Stevenson said he wouldn’t be surprised to see such a request come around on his case.

At this time, Stevenson said that the property owners haven’t moved to further develop the properties.

“My guess is that, to the extent they may need a bank loan to do that, they have a big cloud hanging over their head,” he said.

We reported on Monday that the Criswell property in Edgewater looks like it is being updated to become a used car dealership.

We attempted to reach County Councilman Jerry Walker (R-Crofton) by telephone to comment on this story. Walker introduced the amendments in question during comprehensive rezoning. He did not return our call on Tuesday. If he responds, we will add his response to this story.

Michelle Corkadel, former chair of the Planning Advisory Board (and candidate for Council District 7) said that the Anne Arundel County Charter “clearly indicates the authority the GDP has to the citizens to ensure that rezoning meets all criteria set forth and a public review of the modification should be provided.  Keeping South County Rural is prominent throughout the documents and supplemental materials.”

Here is the Court’s Opinion: Court of Special Appeals [PDF].

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About Mitchelle Stephenson

I've gotta tell Mitchelle! Send your South County news tips, brag on your fab volunteers, talk traffic, police and fire or just say "howdy" to Mitchelle Stephenson, co-founding editor of the South River Source. Mitchelle@SouthRiverSource.com or reach me in person on mobile: 410-353-4706.

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