Planning & Environmental Law Friend of the Court — July 2008

Trail v. Terrapin Run

What is the proper role of planning and adopted plans in the day-to-day development decisions that our local officials make? That is the $10,000 question presented to the Maryland Court of Appeals last fall in Trail v. Terrapin Run. Our commentators in this issue share their opinions about the court's decision.

Last October, the American Planning Association and its Maryland Chapter jointly filed an amicus brief in this case. APA did not specifically address any of the three statutory standards in Maryland for connecting land use decisions to the comprehensive plan. Instead, planners were hoping the court would sweep away the confusion with a clear statement that whatever standard is used, a reasonable and rational decision-making process requires that there be a strong connection between the land use decision and the community's comprehensive plan.

APA's position was that (1) the adopted comprehensive plan must be implemented; (2) effective implementation requires that the day-to-day decisions made by local officials be consistent with the adopted comprehensive plan; and (3) the court's review of whether consistency is achieved should be more searching when local officials are acting in their administrative (quasi-judicial) capacity. The full brief is available at www.planning.org/amicusbriefs/pdf/terrapinrun.pdf. A portion of the amicus brief is reprinted here.

There is no crystal ball. If there were, there would certainly be no need for plans or planning. We send our children to college and we join the ranks of the retired because we have planned our financial future — or more accurately, because we have successfully implemented our plan for the future. Of course, circumstances may change and our plans must be adjusted accordingly. No plan is ever cast in concrete. However, if we fail to base our decisions today on our plan, the odds of reaching the retirement we hope for or sending our children off to college will be greatly diminished.

A community must plan for its future too. In a democratic society, the residents of the community express their goals for the future in two ways — by participating in a public planning process which culminates in an adopted plan, and by electing representatives to implement that plan. Local officials implement the community's plan day-by-day when they, among other things, approve the local government's capital infrastructure budget, when they adopt land use regulations such as zoning and subdivision ordinances, and when they approve or reject development applications. Connecting development and land use decisions to the adopted plan is the best way to achieve the community's goals, or at least to increase the odds that the community's goals will be achieved.

In the absence of a strong legislative and judicial requirement to connect land use decisions to the comprehensive plan, the plan has questionable relevance for day-to-day decision making and runs the risk of sitting on the proverbial shelf gathering dust.

There are a number of reasons why the community's comprehensive plan must be successfully implemented.

• Planning should not be an exercise in futility. Certainly, the Maryland General Assembly would never enact legislation or delegate planning authority which is ineffectual, or without a meaningful purpose.
• Some serious challenges — such as climate change — require that we take a longer view. Implementing the goals and policies in the comprehensive plan provides better odds that our community leaders are taking the longer view.

• In a democratic society, the public participates in setting the goals for the future. A comprehensive plan that is preceded by a meaningful public planning process presumably represents the desires of the community's residents and the inevitable competing interests have been heard and reconciled in that process.

• Successful implementation of the provisions of the comprehensive plan engenders greater public trust and confidence in the local decision-making process. "One of the greatest failings of contemporary zoning law," a land use law commentator notes, "has been the vulnerability of the system to influence by politically powerful individuals, a vulnerability that can only be overcome by establishing a procedural and substantive framework for individual decisions — planning."

• The general public, property owners, and developers have a desire for stability and predictability in the land use regulatory regime. Connecting development and land use decisions to the adopted plan not only implements the plan, but also provides a measure of stability to the zoning game and helps avoid ad hoc decision making disconnected from the plan.

• Planning is a process by which we evaluate and weigh alternatives, and then select the best given our understanding today. The information available to us may change, and the plan may need to be amended, but the planning process is very different from the development review process. Decision makers should not confuse one with the other, attempting a de facto amendment of the comprehensive plan through a development review process or grant of a special exception.

• And perhaps most importantly from the perspective of the local government, connecting its land use decisions to the comprehensive plan provides further evidence that the decisions are rational and reasonable. When decision makers at the local level are making legislative decisions, the court's standard of review should be deferential. However, when decision makers are acting in their administrative or quasi-judicial role, such as the approval of the special exception in this case, the court's review should be more exacting.

The Maryland Court of Appeals has spoken. Now the ball is in the Maryland Assembly's court to make a clear and unambiguous link between the adopted plans and development decisions.

Lora A. Lucero, AICP