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Viles v. Board of Municipal and Zoning Appeals

Court of Special Appeals of Maryland

October 27, 2016

JOHN VILES ET AL.
v.
BOARD OF MUNICIPAL AND ZONING APPEALS

          Kehoe, Hotten, [*] Reed, JJ.

          OPINION

          KEHOE, J.

         As land use disputes go, the relevant facts in this case are mercifully simple. The legal issues are a different matter.

         This 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 Baltimore.

         Appellants 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?

         We 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.

         We will not address the second issue because appellants' arguments as to the validity of § 9-118(c) should be presented first to the Board.[1]

         Background

         In 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.[2] 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.[3] Whether § 9-118(c)'s grant of authority to the Commission is valid is a matter of contention between the parties.

         Appellants 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[4] 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 Commission.

         Appellants filed a petition for judicial review in the circuit court, which affirmed the Board's decision.

         I. The Standard of Review

         In 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).

         II. The Board's Jurisdiction to Review the Planning Commission's Decision

         During 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].

         They 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.}

         The 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.}

         A. Some Historical Context

         Land 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.) [5] 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 ordinance.[6]

         In 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 Counties.[7]

         In 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 that:

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.

         Section 28's direct descendant is LU § 10-103.[8] Section 10-103 lies at the heart of the controversy between the parties.

         In 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).

         There 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).[9]

         The 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 Assembly.

         The 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).

         In 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 counties.

         In 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.

         B. Land Use Article § 10-404(a)

         Appellants 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[.]

         Appellants 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.

         Handy's 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.[10] Section 4.07(d) stated (emphasis added):

§ 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.

         This 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, includes:

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 planning commission.

Handy's Point, 92 Md.App. at 672. Thus, this Court concluded that the term "administrative official" includes Planning Commissions.

         One of 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)[11] 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.

         The 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.

         Applying 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 ...


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