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Howard County Board of Appeals dismisses Kincaid LLC appeal, finds DPZ transmittal letter not a final agency action
Summary
On Jan. 16, 2025, the Howard County Board of Appeals granted HRD’s motion to dismiss Kincaid LLC’s appeal of a Department of Planning and Zoning (DPZ) transmittal letter dated Feb. 3, 2023, ruling the letter was not a final administrative action and therefore not subject to this regulatory appeal; the motion carried on a 5–0 roll call vote.
The Howard County Board of Appeals voted Jan. 16 to dismiss Kincaid LLC’s appeal of a Feb. 3, 2023, transmittal letter from the Department of Planning and Zoning, concluding the DPZ correspondence was a procedural transmittal rather than a final administrative decision and therefore not appealable to the board.
Todd Brown, counsel for Howard Research and Development Corporation (HRD), argued at oral argument that the board lacked jurisdiction because the DPZ letter was not a final decision. “When the board does not have jurisdiction, it can't hear an appeal,” Brown told the board, citing the board's procedural rules and the principle that a regulatory appeal requires a final agency action.
Sanford Tawken, representing Kincaid LLC, pressed the opposite view, saying the transmittal letter was an operative event that left Kincaid without another forum to have certain covenant and off‑site parking issues reviewed. At one point he told the board, “We want an answer,” arguing that without review at this stage the developer would be left without an avenue to contest whether HRD complied with the off‑site parking covenant requirements referenced in the record.
Board counsel Mr. Sanders recommended the board review the Feb. 3, 2023 letter and apply the finality test; he told the panel he personally would grant the motion because the transmittal reads as a staff transmittal rather than a final administrative action. Multiple board members expressed the view that a DPZ transmittal is akin to a technical staff report to the Planning Board and that the proper time to challenge staff analysis is at the Planning Board or at the later permit stage, when a final decision could be issued.
On roll call the board voted to grant HRD’s motion to dismiss for lack of jurisdiction. The clerk recorded votes in favor from Chair Gene Ryan, Miss Fearcol, Miss Harris, Miss Phillips and Miss Shue. The chair announced the motion carried and directed the Office of Law to prepare and transmit a formal order to the parties.
The dismissal resolves only the jurisdictional threshold for BA795D; the board and counsel clarified that merits questions about covenant compliance and off‑site parking requirements (referred to in the hearing as the county’s “1‑33” requirement) were not decided by this procedural ruling. The board also indicated the Office of Law will issue the written order reflecting today’s ruling and providing instructions to the parties on next steps.
