Canaan Christian Church v. Montgomery Cnty.

335 F. Supp. 3d 758
CourtDistrict Court, D. Maryland
DecidedAugust 15, 2018
DocketCivil Action No. TDC-16-3698
StatusPublished
Cited by3 cases

This text of 335 F. Supp. 3d 758 (Canaan Christian Church v. Montgomery Cnty.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canaan Christian Church v. Montgomery Cnty., 335 F. Supp. 3d 758 (D. Md. 2018).

Opinion

Charles B. Day, United States Magistrate Judge

Before this Court are Plaintiffs Burtonsville Associates and Burtonsville Crossing, LLC's Motion to Compel Responses to Discovery (ECF No. 52) ("Plaintiffs' Motion") and Defendants' Cross-Motion for Protective Order (ECF No. 54) ("Defendants' Motion"), collectively the "Motions." The Court has reviewed the Motions, related memoranda and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion.

I. Analysis

A. Defendants Have Asserted Privileges In A Manner That Is Procedurally Correct.

Plaintiffs contend that Defendants have made assertions of privilege in a conclusory fashion, failing to set forth specific facts in support thereof. Pls.' Mem. In Supp., at 3-4 (ECF No. 52-1). Defendants have complied with the letter and spirit of the Federal Rules of Civil Procedure and this Court's Local Rules.

Federal Rule of Civil Procedure 26 requires Defendants to (1) "expressly make the claim" of privilege; and, (2) "to describe the documents, communications, or tangible things not produced or disclosed-and *763do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A)(i-ii). See also Local Rules, Discovery Guideline 10.d.iii.

In their reply briefing, Plaintiffs rightly abandon this issue. Defendants have asserted legislative and executive privileges in a manner that sufficiently identifies the categories of information they view as non-discoverable.

B. Defendants Have Established The Existence Of Legislative Privilege

1. The Burtonsville Crossing Neighborhood Plan and Zoning Text Amendment are Legislative Acts.

Maryland requires each local jurisdiction to have a comprehensive land use master plan, and to make zoning decisions consistent with their master plans, said plans having the "binding force of law." Pulte Home Corp. v. Montgomery Cty., Case No. GJH-14-3955, 2017 WL 2361167, at *4, (D. Md. May 31, 2017).

In Pulte, this Court wrestled with nearly identical issues regarding water and sewer change applications, and master plan amendments. The Court determined both acts to be legislative in nature. "Planning and zoning actions are legislative when they 'decide questions of law and policy and discretion' and have broad community-wide implications, which encompass considerations affecting the entire planning area or zoning district." Id. (relying on Kenwood Gardens Condos, Inc. v. Whalen Props., LLC, 449 Md. 313, 144 A.3d 647 (2016) ). In Kenwood Gardens, the court found that the County Council took "into account legislative facts and the impact of the development on the community at large." Id. at 334, 144 A.3d 647. Therefore, the master plan and zoning decisions in that case had the "binding force of law" and the resolutions amending the master plan were considered legislative acts.

Plaintiffs readily concede that the Burtonsville Crossing Neighborhood Plan ("BCNP" or the "Plan") and Zoning Text Amendment ("ZTA") 12-13 are "legislative in nature." Pls.' Mem. in Opp'n, at 20 (ECF No. 56). Defendants set the context for this litigation as being driven by community-wide concerns for the preservation of drinkable water from the Rocky Gorge Reservoir and its tributaries. The foundation for their position rests on the statements set forth in the BCNP. Defs.' Opp'n, at 3 (ECF No. 54-1). The succinct issue here is that Plaintiffs submitted change requests for sewer service which were denied. Plaintiffs dispute the legislative quality of the denial of these change requests.1

The BCNP speaks to deep concerns about "declining water quality, sensitive tributary headwaters, high impervious levels, and sewer and water service." Without doubt, the BCNP represents the comprehensive land use master plan for the Burtonsville area. In furtherance of the Plan, the County Council lowered the impervious cap in the Rural Cluster ("RC") zones and declined requested extensions of sewer service beyond a circumscribed envelope. The Plan recommended "no public sewer service should be permitted for any use." Explanation is also provided for the rejection of the 10% impervious cap established by other guidelines, given the environmental sensitivity of the area, as well as the favorable results when an 8% cap *764had been employed elsewhere. See Defs.' Mot., Ex. 3, p. 45.

2. Defendants' Actions Regarding Plaintiffs' Change Requests are Legislative Acts.

In 2003, the County Council adopted a "Ten Year Comprehensive Water Supply & Sewerage Systems Plan" ("Water & Sewer Plan" or "WSP"). Defs.' Mot., Ex. 5. This too was a legislative act. The WSP has been amended over the years. This Court determined long ago that amending a water and sewer plan is also a legislative act. Kent Island Joint Venture v. Smith, 452 F.Supp. 455, 457-58 (D. Md. 1978). The WSP recognizes a policy exception, (i.e. a change request), applicable to Private Institutional Facilities ("PIF"). Churches like Plaintiff Canaan enjoy the PIF designation.

Plaintiffs sought a change request under the PIF policy. Plaintiffs' sewer change requests were not favored by the Planning Board, County Executive, Council Staff, nor the Council Committee on Transportation, Infrastructure, Energy & Environment. The County Council adopted the recommendations of these entities and denied Plaintiffs' requests. Plaintiffs claim this was not a legislative act, and therefore not protected by privilege. Defendants assert the County Council had the discretion to deny the request and did so in accordance with the master plan. One of the County's Senior Legislative Analysts commented that the PIF policy allows for changes to the master plan, but "in cases where a master plan has established specific water/sewer restrictions for certain areas ...

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Bluebook (online)
335 F. Supp. 3d 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canaan-christian-church-v-montgomery-cnty-mdd-2018.