In a setback for the state's efforts to manage growth, the Maryland Court of Appeals has upheld Allegany County's approval of a 4,300-home development in a rural area of mountainous Western Maryland.
The state's highest court declared that Maryland law does not require local governments to stick to their master plans or state growth-management policies in making development decisions.
"Why bother to have a plan at all?" asked an exasperated Dru Schmidt-Perkins, executive director of 1000 Friends of Maryland. She and many other environmentalists had hoped the court would overturn the county's approval of the Terrapin Run project, and some vowed to seek legislation to reverse the decision.
But a lawyer for the developer hailed the ruling. "This opinion upholds the tradition of local land-use planning in Maryland," attorney Robert S. Paye said. Allegany needs development because it is economically depressed and losing population, he said.
In its opinion released yesterday, the appeals court narrowly upheld the 2005 decision by the Allegany zoning appeals board to approve Terrapin Run.
PDC Inc. of Columbia proposes to build an "active adult" community on 935 partially wooded acres off Scenic Route 40 near Green Ridge State Forest. Plans include stores, a riding stable and trails.
The appointed citizen board granted the project a "special exception" to the local zoning code. That triggered a lawsuit by opponents, who argued that the equivalent of a small city had no place in a rural area, 30 miles east of Cumberland.
In a 4-3 vote, the appeals court rejected arguments that the county board did not adhere closely enough to the county's master plan.
The court's majority also brushed aside arguments against the project by the O'Malley administration, which contended that a 1992 growth-management law requires localities to conform to seven broad "visions" for growth in Maryland.
That law calls for steering new development to existing population centers, preserving open space and protecting environmentally sensitive lands.
Judge Dale R. Cathell, writing for the majority, said that "the use of the words `conform' and `visions' were never intended by the legislature to impose absolute requirements on local governments in their practices involving their local land use programs."
The three judges in the minority disagreed, arguing that state laws enacted since 1970 have tightened the legal requirements for local governments to follow their plans in deciding whether to approve development proposals.
Siding with the project's opponents were the Chesapeake Bay Foundation and the American Planning Association, which saw it as a national test case for the value of community planning.
The O'Malley administration also agreed with opponents and intervened in the case on their side.
"We think this is a time when we need more smart, sustainable growth, not less," said Richard E. Hall, state secretary of planning.
Strictly speaking, the case focused on whether the zoning board should have been required to decide whether Terrapin Run "conformed" to the county's comprehensive plan. The board found the project "in harmony with" the plan, which opponents had argued was too loose a standard.
A Circuit Court initially overturned the zoning board's decision, ordering it to reconsider. But the state's second highest court sided with the developer, declaring that such plans are merely guides for local officials in deciding where to allow development.
Opponents of the project appealed to the state's highest court.
"If the court's decision is permitted to stand, it undermines two decades of smart-growth advocacy and leadership on the part of the state of Maryland," said Dale Sams, a retired paper mill executive in Cumberland who is among the project's critics.
Opponents pointed out that Terrapin Run still must clear a variety of local and state hurdles. The Maryland Department of the Environment has rejected the county's attempt to include Terrapin Run in its water and sewer plan, and it ordered the developer to prove that disturbance of the land will not degrade the creek of the same name that flows nearby.
William C. Wantz, a lawyer for residents opposed to Terrapin Run, said the decision applies in a narrow legalistic sense only to zoning board decisions in the state's municipalities and 15 most rural counties.
But environmentalists and growth-management advocates say they fear the ruling could open the door elsewhere in the state to other developments at odds with locally adopted plans.
Kim Coble, Maryland director of the bay foundation, called the appeals court ruling "very short-sighted.
The Annapolis-based environmental group had argued that the development would harm the stream, which ultimately flows into the Potomac River and the bay.
"It's not consistent with the direction the state's going or needs to go," Coble said. She said her group would ask lawmakers to "make sure the law's very clearly spelled out" regarding growth management.
Some growth-management advocates vowed to seek legislation to reverse the court's decision. Hall said the O'Malley administration wants to study the ruling more before deciding whether to seek such legislation.