County Council of Prince George's County v. Dutcher

752 A.2d 1199, 132 Md. App. 413, 2000 Md. App. LEXIS 98
CourtCourt of Special Appeals of Maryland
DecidedJune 5, 2000
DocketNo. 1039
StatusPublished
Cited by1 cases

This text of 752 A.2d 1199 (County Council of Prince George's County v. Dutcher) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County Council of Prince George's County v. Dutcher, 752 A.2d 1199, 132 Md. App. 413, 2000 Md. App. LEXIS 98 (Md. Ct. App. 2000).

Opinion

ADKINS, Judge.

We must decide whether a valid appeal to this Court was timely filed when, pursuant to custom, but without explicit authority, the attorney for the County Council of Prince George’s County, Maryland, Sitting as the District Council (“District Council”), appellant, noted an appeal from a circuit court decision reversing a decision of the District Council. For the reasons that follow, we hold that appellant did not file a timely appeal to this Court, and shall therefore dismiss the appeal.

FACTS

On May 21, 1996, Bob Dutcher, appellee, filed an application with the Maryland-National Capital Park and Planning Commission for approval of the preliminary plan of a subdivision. The property, Brooke-Jane Manor, Section 6, is an 8.83 parcel of land located at the end of Brooke-Jane Drive, west of Brandywine Road in Prince George’s. County. , The property lies south of the intersection of Surratts Road and Branch Avenue, the main intersection serving the property. Appellee planned to divide the property into twenty lots for single family homes.

Pursuant to Prince George’s County Code (“PGCC”) section 24-124, appellee was required to show the Prince George’s County Planning Board (“Planning Board”) that there would be adequate access to roads to serve traffic that would be generated by the subdivision, and that the “traffic generated by the proposed subdivision will be accommodated on major intersections and major roadways ... such that they will be functioning below the minimum peak-hours service levels adopted by the Planning Board....” PGCC § 24-124(a)(l) & (2). While a traffic study by the Planning Board was not required, the Planning Board determined that “there is a need to examine current transportation adequacy problems at MD 5/Surratts Road and MD 223/Brandywine Road.”

The major concern with the subdivision was its effect on traffic at the intersection of Maryland Route 5 and Surratts [418]*418Road (“critical intersection”). In determining whether an intersection can satisfy traffic needs, the Planning Board evaluates “Levels of Service.” These levels are measured as A, B, C, D, E, or F, with A being the highest level of service and other grades descending in order. Levels A through D are considered adequate, 'and levels E and F are considered inadequate.

The Planning Board’s technical staff (“staff’) initially recommended disapproval of the subdivision. According to the Staff Report, the subdivision would generate fifteen vehicle trips during the “a.m. peak hours” and eighteen trips during the “p.m. peak hours.” Furthermore, the report indicated that without the subdivision, the critical intersection operated at an acceptable D level of service and, after adding anticipated traffic from the subdivision, a D level still remained. Nevertheless, the Planning Board’s methodology required it to add “background traffic” 1 into the analysis. After doing so, the level of service at the critical intersection fell below the acceptable D grade during the morning and afternoon peak hours.

A hearing before the Planning Board was held on October 31, 1996. At the hearing, the staff indicated that it determined that an unacceptable level of service would be generated at the critical intersection and that appellee had “not proposed improvements to improve the service levels at this intersection.” The staff and appellee, however, offered what they considered a possible solution for the problem to the Planning Board — a Traffic Facilities Mitigation Plan (“TFMP”) under which appellee agreed to pay a pro rata share to build a “second left turn lane southbound approaching Surratts Road” at the critical intersection. The Planning Board did not vote on the proposed TFMP, but rather, [419]*419continued the case in order to have a better understanding of the specifics involved in the TFMP.

The Planning Board next addressed appellee’s situation on November 7, 1996. At the hearing, a planning staff representative announced that he mis-spoke at the previous hearing when he indicated the TFMP would include a double left turn lane. The staff member explained that the improvements that appellee would bear a pro rata responsibility for were “additional pavement and striping on the eastbound Surratts Road approach and southbound 5 to provide a free right-turn lane from eastbound Surratts Road to southbound MD 5” and “additional pavement and striping on northbound MD 5 to provide a free right-turn land [sic] from westbound Surratts Road to northbound MD 5.” Appellee’s pro rata share for these improvements would be $28,333, or approximately $1,166 per unit.

The Planning Board issued its conditional approval of the subdivision on December 5, 1996. In its report, the Planning Board noted that no traffic study was done; rather, the mitigation plan was based on a study prepared for a similarly located site that had already been approved.

Pursuant to PGCC § 21 — 124(a)(6)(D),2 a local citizens group appealed the Planning Board’s decision to the District Council. On May 5, 1997, the District Council remanded the case and ordered the Planning Board to supplement the record with the TFMP and the “agency comments from State Highway Administration and the Department of Public Works and Transportation, to the Planning Board.” The Planning Board supplemented the record, and a second appeal was taken to the District Council.

On February 11, 1998, the District Council issued its Notice of Final Decision in which it reversed the Planning Board’s decision and denied the mitigation plan. In doing so, the District Council rejected the Planning Board’s findings of fact [420]*420and made its own finding that the mitigation plan was inadequate. Specifically, the District Council found:

1. [T]hat the intersection of MD Rt. 5 and Surratts Road is currently operating at Level of Service “F,” and that mitigation of the traffic at this intersection is required.
2. [T]hat the proposed provisions of a second southbound left-turn lane from MD Rt. 5 on to Surratts Road, including any improvements to the receiving lanes of Surratts Road deemed necessary by the State Highway Administration, are inadequate to alleviate the Level of Service “F” at the [critical] intersection.
3. [T]hat Planning Board Resolution Condition 1, a formula for the assessment per building permit for a pro-rata share of the construction of improvements to the intersection of MD Rt. 5 and Surratts Road as described above, will not alleviate Level of Service “F” at this intersection.
4. [T]hat the transportation infrastructure (existing and proposed) is inadequate to service the proposed Preliminary Plat of Subdivision.
5. [T]hat the mitigation plan proposed by [appellee] is inadequate to reduce the existing Level of Service “F” at the [critical] intersection ... Therefore, the proposed mitigation is unacceptable and must be denied[.]

Pursuant to Md.Code (1957, 1997 Repl.Vol.), Art. 28 (“Art. 28”), § 8-106(e), appellee appealed the decision of the District Council to the circuit court. In a written order and opinion, the circuit court reversed the decision of the District Council. The circuit court held: (1) that the District Council is required to give deference to the factual findings of the Planning Board; and (2) facts in the record did not support the District Council’s conclusions. This appeal followed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

County Council of Prince George's County v. Dutcher
780 A.2d 1137 (Court of Appeals of Maryland, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
752 A.2d 1199, 132 Md. App. 413, 2000 Md. App. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-council-of-prince-georges-county-v-dutcher-mdctspecapp-2000.