JOHN VILES ET AL.
BOARD OF MUNICIPAL AND ZONING APPEALS
use disputes go, the relevant facts in this case are
mercifully simple. The legal issues are a different matter.
appeal arises out of a 2013 decision by the Baltimore City
Planning Commission to modify some of the terms of a planned
unit development that had been established by the Baltimore
City Council in 2010. John Viles, together with several other
individuals opposed to the modifications, appealed the
Commission's decision to the Board of Municipal and
Zoning Appeals of Baltimore City. The Board declined to
address the merits of their claims because it concluded that
it did not have the authority to review decisions of the
Planning Commission. Appellants then filed the current case,
a judicial review action challenging the Board's
decision. The Circuit Court for Baltimore City affirmed the
Board. The appellee is the Mayor and City Council of
present two issues, which we have reordered and reworded:
1.Did the Zoning Board have jurisdiction to review the
Planning Commission's action?
2.Does Baltimore City Zoning Ordinance § 9-118(c) give
the Planning Commission authority to modify the terms of a
planned unit development?
answer "yes" to the first question. As we will
explain, Md. Code Ann. (2012) § 10-404(a) of the Land
Use Article ("LU") authorizes the Board to hear
appeals "when it is alleged that there was an error in
any . . . determination made by an administrative
official" pertaining to "any local law
adopted" pursuant to the General Assembly's grant of
land use and zoning authority to the City. BCZR §
9-118(c) is such a local law. Additionally, the Planning
Commission functions in an administrative capacity when it
approves or denies design modifications to existing PUD
developments because those decisions are focused on single
properties or discrete assemblages of properties. The City
also contends that Article VII § 86 of the City Charter
trumps the General Assembly's grant of authority to the
Board but this contention: (1) is based on an erroneous
interpretation of the language in § 86; and (2) in any
event, is irreconcilable with long-established legal
principles relating to the relationship between local
government charters and public general laws.
not address the second issue because appellants'
arguments as to the validity of § 9-118(c) should be
presented first to the Board.
2010, the Baltimore City Council enacted Ordinance No.
10-397, which established a PUD, called the "25th Street
Station PUD, " on an eleven acre parcel located in the
Remington and Charles Village neighborhoods. In 2013, the
Planning Commission considered and approved an amendment to
the PUD design occasioned by a decision of a proposed major
tenant to leave the development. The Planning
Commission's approval was made pursuant to §
9-118(c) of the BCZC. Whether § 9-118(c)'s grant of
authority to the Commission is valid is a matter of
contention between the parties.
appealed the Commission's decision to the Board. The
Board held a hearing, but did not reach the merits of
appellants' contentions. Instead, the Board decided that
it did not have the authority to consider appeals from
decisions by the Planning Commission. Its conclusion was
based on Article VII, § 86 of the City
Charter which states (emphasis added):
The Board shall have such additional powers to examine,
review and revise acts or rulings of other departments and
officers of the City affecting the construction, alteration,
use or operation of land or buildings in the City or other
charges as may from time to time be conferred upon it by law,
but the powers conferred upon it in the Charter shall not be
diminished or abridged by ordinance, nor may the Board be
given power to review or alter determinations of the Planning
filed a petition for judicial review in the circuit court,
which affirmed the Board's decision.
The Standard of Review
judicial review cases, an appellate court reviews the agency
decision, as opposed to the decision of the circuit court.
People's Counsel v. Loyola College, 406 Md. 54,
66 (2008); Para v. 1691 Ltd. P'ship, 211 Md.App.
335, 354 (2013). The issue decided by the Board is one of
law, specifically, the relationship between provisions of the
City Charter, on the one hand, and the Land Use Article on
the other. In these circumstances, our review is de novo.
See, e.g., Spencer v. Maryland State Bd. of Pharmacy,
380 Md. 515, 528 (2004).
The Board's Jurisdiction to Review the Planning
the hearing before the Board, appellants argued that the
Board had jurisdiction to hear their appeal pursuant to LU
§ 10-404(a)(1), which authorizes the Board to:
hear and decide appeals when it is alleged that there was an
error in any order, requirement, decision, or determination
made by an administrative official or unit under [Land Use
Article Title 10] or any local law adopted under [Title 10].
further contended that the Planning Commission was acting as
an administrative official under Title 10 when it approved
the modification to the PUD, and thus the Board had
jurisdiction to hear this appeal. (E. 196.}
Board concluded that it lacked jurisdiction. It cited §
86 of the Charter, interpreting the language that the Board
may not "be given power to review or alter
determinations of the Planning Commission, " to mean
that the Board is without authority to review decisions of
the Planning Commission. (E. 197.} It reasoned that, even if
the Planning Commission was acting as an "administrative
official" under LU § 10-404(a)(1), the Charter took
precedence over the Land Use Article and limited the scope of
the Board's jurisdiction. (E. 197.}
Some Historical Context
use control came to Maryland in fits and starts. The earliest
decision of the Court of Appeals that considered the validity
of a local law that functioned in a manner analogous, at
least in some respects, to a modern zoning code appears to be
Commissioners of Easton v. Covey, 74 Md. 262, 267-69
(1891), in which the Court upheld an ordinance that
authorized the town commissioners to deny a building permit
if doing so was necessary "to protect the safety of
property and the best interests of the town[.]"
(Emphasis in original.)  In 1923, Baltimore enacted
Maryland's first comprehensive zoning ordinance. Garrett
Power, The Unwisdom of Allowing City Growth to Work Out
Its Own Destiny, 47 Md. L. Rev. 626, 633 (1988). The use
regulations of the ordinance were struck down by the Court of
Appeals on substantive due process grounds in Goldman v.
Crowther, 147 Md. 282, 309 (1925). However, one year
later, the United States Supreme Court issued its landmark
decision in Village of Euclid v. Amber Realty, 272
U.S. 365, 395 (1926), in which the Court rejected a
substantive due process challenge to a zoning
1927, the General Assembly enacted Chapter 705 of the Laws of
1927, which added Article 66B to the Maryland Code. Chapter
705 applied only to Baltimore City and other cities with
populations of more than 10, 000. Robert J. Carson,
Reclassification, Variance and Special Exceptions in
Maryland, 21 Md. L. Review 306, 307 (1961). Chapter 705
was eventually codified as Md. Ann. Code Article 66B
§§ 2.01-2.13 (1957, 2010 Repl. Vol., 2014 Supp.).
In the same year, the legislature also enacted what is today
known as the Regional District Act, which provided for the
exercise of planning and zoning authority in the
Maryland-Washington Regional District, which originally was,
more or less, the area that now lies within the Capital
Beltway in Montgomery and Prince George's
1933, the General Assembly enacted a statute, sometimes
referred to as the Maryland Zoning and Planning Enabling Act,
which amended Article 66B by adding provisions that
authorized all municipalities to enact and administer
planning, zoning and subdivision control regulations. Chapter
599 of the Acts of 1933. (The scope of this statute was later
extended to non-charter counties.) Section 28 of this statute
contained a blanket repeal of any provision in a statute or
local ordinance that was inconsistent with its terms, except
Chapter 705 of the Acts of 1927 and all laws and ordinances
passed pursuant thereto shall not be affected . . .
and that this Act shall be deemed to be in addition to said
Chapter 705 . . . and not in substitution therefor.
28's direct descendant is LU § 10-103. Section 10-103
lies at the heart of the controversy between the parties.
addition, the General Assembly enacted local public laws
which authorized some counties to exercise zoning powers.
See Baltimore County v. Missouri Realty Co., 219 Md.
155, 158 (1959); Murray v. Director of Planning, 217
Md. 381, 384-86 (1958).
is another aspect to the historical background. In 1915, the
voters ratified Article XI-A to the Maryland Constitution,
which permitted the City of Baltimore and the state's
counties to elect a "home rule" form of local
government. The purpose of Article XI-A was to allow the
authority to enact legislation affecting purely local matters
to devolve from the General Assembly to those counties, and
Baltimore City, when and if those jurisdictions wished to
assume that responsibility by enacting a locally-approved
county charter. County Commissioners of Montgomery County
v. Supervisors of Elections, 192 Md. 196, 204 (1949). In
1918, and pursuant to a mandate contained in Article XI-A
§ 2, the General Assembly enacted the Express Powers Act
to designate local legislative powers that could be exercised
by charter counties. Montgomery County Council v.
Garrott, 243 Md. 634, 644 (1966). The Act specifically
authorized charter counties to enact zoning regulations. Md.
Code Article 25A § 5(X) (1957).
Express Powers Act does not apply to the City of Baltimore.
This is because Article 11-A of the Maryland Constitution
reserved to the General Assembly the authority to grant and
limit the local legislative powers exercised by the City.
Article 11-A § 2 states in pertinent part:
[T]he powers heretofore granted to the City of Baltimore, as
set forth in Article 4, Section 6, Public Local Laws of
Maryland, shall not be enlarged or extended by any charter
formed under the provisions of this Article, but such powers
may be extended, modified, amended or repealed by the General
Code of Local Public Laws of Baltimore no longer contains the
powers enumerated in Article 4 § 6. Instead, they are
now found in Article II of the Baltimore City Charter.
See Dan Friedman, The Maryland State Constitution: A
Reference Guide 220 (2006).
conclusion, local governments that exercise zoning authority
fall into one of four categories: (1) Baltimore City; (2) the
charter counties; (3) Montgomery and Prince George's
Counties; and (4) municipalities and the non-charter
2012, the Department of Legislative Reference, working under
the supervision of the Land Use Article Review Committee,
completed the herculean task of gathering this widely
scattered body of law, reorganizing it, and rewording many of
the statutes to delete obsolete and redundant terminology. As
part of this effort, what had been Article 66B §§
2.01-2.13-that is, the zoning enabling statute for
Baltimore-was repealed and reenacted as Title 10 the Land Use
Article. However, as the General Revisor's Note to the
Land Use Article makes clear, "the enactment of the
article in no way is intended to make any change to the
substantive law of Maryland." We now turn to the
parties' specific contentions.
Land Use Article § 10-404(a)
contend that the Board's authority to consider this
appeal is derived from LU § 10-404(a)(1), which states:
(a) The Board may:
(1) hear and decide appeals when it is alleged that there was
an error in any order, requirement, decision, or
determination made by an administrative official or unit
under this title or any local law adopted under this title[.]
cite Queen Anne's Conservation, Inc. v. County
Comm'rs of Queen Anne's County, 382 Md.
306 (2004), and Wharf at Handy's Point, Inc. v.
Dep't of Natural Res., 92 Md.App. 659, 610
(1992), as authority for their contentions that the Planning
Commission qualifies as an administrative official, and that
its approval of the PUD modification qualifies as a decision
made pursuant to Title 10 of the Land Use Article.
Point supports the first leg of appellants'
argument. One issue in that case was whether the Kent County
Planning Commission, as a multi-member entity, could be an
"administrative official" for the purposes of what
was then Article 66B § 4.07. Section 4.07(d) stated
§ 4.07 (d) General powers. - The board of
appeals shall have the following powers: (1) To hear and
decide appeals where it is alleged there is error in any
order, requirement, decision, or determination made by an
administrative official in the enforcement of this
article or of any ordinance adopted pursuant thereto.
Court, citing Howard Research v. Concerned Citizens,
297 Md. 357, 363-66 (1983) and 64 Op. Att'y Gen. 349, 355
n.4 (1979), concluded that the term "administrative
official, " for purposes of the zoning enabling act,
whatever administrative mechanism a local jurisdiction in
Maryland sets up to enforce its planning and zoning laws and
ordinances, including a multi-member body such as a local
Handy's Point, 92 Md.App. at 672. Thus, this
Court concluded that the term "administrative
official" includes Planning Commissions.
the issues in Queen Anne's Conservation was
whether opponents to a development in Queen Anne's County
were required to exhaust their administrative remedies before
filing a circuit court action challenging a decision by the
County Commissioners to approve a development rights and
responsibilities agreement (a "DRRA"). 382 Md. at
311. One aspect of the problem confronting the Court of
Appeals was whether the County Commissioners acted in a
legislative or in an administrative capacity when they
approved the agreement. Id. If the Commissioners
were acting in an administrative capacity, then the county
board of appeals had the authority to review the
Commissioners' decision because Article 66B §
4.07(d) authorized the county's board of
appeals to "decide appeals where there is error in any
order, requirement, decision, or determination made by an
administrative official in the enforcement" of the
county zoning ordinance. 382 Md. at 321.
Court of Appeals noted that a single entity may exercise
different functions, some of which may be characterized as
"legislative" while others will be classified as
"executive and administrative." Id. at
322. The Court went on to clarify that the proper test for
determining whether an action is legislative on the one hand
or executive or administrative on the other is that a
legislative act "is one making a new law-an enactment of
general application prescribing a new plan or policy";
while an administrative or executive act is one that
"merely looks to or facilitates the administration,
execution or implementation of a law already in force and
effect[.]" Id. at 326. The Court concluded that
the Commissioners were acting in an administrative capacity
when they approved the DRRA. Id. at 328-29.
the reasoning in Handy's Wharf and Queen
Anne's Conservation, we reach the following
conclusions: (1) the Baltimore Planning Commission is an
"administrative official" for the purposes of LU
§ 10-404(a)(1); and (2) the Commission's decision to
approve the modifications to the 25th Street Station PUD was
an administrative one because the decision of the Planning
Commission clearly was limited to design changes within the
25th Street Station PUD property. Cf. Maryland Overpak
Corp. v. Mayor and City Council of Baltimore, 395 Md.
16, 53-54 (2006) (A decision by the Baltimore City Council to
amend the design and density of a mixed-use PUD was