Issue Preservation – Concerned Citizens of Cloverly is a reminder to not let your best appellate issues be needles in trial haystacks
The Court of Special Appeals’ recent decision in Concerned Citizens of Cloverly v. Montgomery County Planning Board, Case No. 620, Sept. Term 2021 (May 2, 2022)[i] provides a helpful example, if not cautionary tale, of issue preservation. It is well-known that Maryland Rule 8-131(a) lays out the scope of appellate review and provides that other than jurisdiction, “the appellate court will not decide any other issue not raised in or decided by the trial court . . . .” (emphasis added). But what does “raised in” mean and how much airtime do you need to give an issue in the trial court (or in the case of Concerned Citizens, the administrative agency) for it to be “raised” and preserved for appellate review?
Concerned Citizens of Cloverly is an appeal of the Montgomery County Planning Board’s approval of RCCG Jesus House, DC’s (“Jesus House’s”) preliminary plan to construct a 1,600-person church and private school on its 15.55-acre parcel. Key to the Planning Board’s consideration was a covenant on the property, which was imposed several years prior in exchange for allowing the property to connect to public water and sewer lines. The covenant required the property owner to set aside and preserve, as a forested area, the land that would have been required for an on-site septic system; this condition was referred to as the “septic set-aside” or the “forest set-aside” calculation. Before the Planning Board, Jesus House, based on the calculation of its civil engineer and with the supportive recommendation of the Planning Board Staff, included a 4.82-acre forest set-aside calculation in its preliminary plan.
The Concerned Citizens, in opposition to the proposed development, offered their own expert engineer, who presented a written report and oral testimony to opine that the forest set aside calculation, for both the anticipated church and school, should be substantially larger and approximately 18 acres. In other words, Concerned Citizens argued that the development project was too big for the subject property. Ultimately, the Planning Board voted unanimously to approve the preliminary plan, and upon judicial review, the Circuit Court for Montgomery County affirmed.
Before the Court of Special Appeals, Concerned Citizens’ first question presented challenged that the Planning Board erred in approving the preliminary plan without first seeking the review and approval of the forest set-aside calculation by the Maryland Department of the Environment. When asked by the intermediate appellate court where in the record the issue was presented to the Planning Board, Concerned Citizens pointed to just one sentence in their expert’s written report, which referred to MDE generally: “[t]he size of this hypothetical onsite treatment would have required approval through MDE.” Slip op. at 25. (Emphasis in original.)
Was this sentence enough, to raise the issue to the Planning Board – that it could not approve the preliminary plan without the MDE’s review and approval? The Court said “no,” and then said more.
Calling it a “minor” or “brief” reference to the MDE, which was neither raised in the oral testimony nor in argument to the Planning Board, the Court of Special Appeals concluded that this sentence “did not fairly put the board on notice of the claim that the Preliminary Plan should not have been approved because the set-aside calculation had not been reviewed and approved by MDE . . . .” The Court cited repeated argument by the appellants that there were three specific reasons why the Planning Board had erred—reasons which, of course, did not include the argument made on appeal that prior review and approval by MDE was required before the Planning Board could rule.
The Court explained that “raised,” for purposes of issue preservation, can depend on the circumstances. If the record is large or the subject matter complex, a brief mention among hundreds of pages is not sufficient to put the administrative agency on notice of the issue and the need to address it:
In Center for Sustainable Economy v. Jewell, 779 F.3d 588, 602 (D.C. Cir. 2015), the court explained:
The question in determining whether an issue was preserved, however, is not simply whether it was raised in some fashion, but whether it was raised with sufficient precision, clarity, and emphasis to give the agency a fair opportunity to address it.
Whether an objection is fairly raised depends on, among other things, the size of the record, the technical complexity of the subject, and the clarity of the objection. See, e.g., Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998). As we have previously explained, “[t]he fact that, buried in hundreds of pages of technical comments . . . some mention is made [of an argument related to a claim brought on judicial review] . . . is insufficient to preserve the issue for review on appeal.” Id.Slip op. at 26.
For the Concerned Citizens, a “brief reference to MDE in a written document in a lengthy record did not fairly raise the issue presented on appeal.” Id.
Although Concerned Citizens of Cloverly is an administrative appeal, it should be considered by all practitioners, at the appellate and trial level.