Anne Arundel County v. 2020C West Street, Inc.

FISCHER, Judge. This appeal arises from a petition filed with the Circuit Court for Anne Arundel County requesting judicial review of a decision of the Anne Arundel County Board of Appeals (the “Board”). On December 16, 1992, the Anne Arundel County Office of Planning and Zoning (the “County”) 1 issued a Notice of Zoning Violation (the “notice”) to appellees, 2020C West Street, Inc. (“2020C”) and Michael Piera and Kathe Piera (the “Pieras”). Appellees responded to the notice by filing an appeal with the Board on January 13,1993, pursuant to § 602 of the Anne Arundel County Charter and Article 3, § l-102(c) of the County Code.

The Board dismissed the appeal on the basis that the notice did not constitute a final order within the appellate jurisdiction of the Board and that it was inappropriate to rule on allegations that the regulatory scheme was unconstitutional. Appellees filed a petition to the circuit court, requesting judicial review of the Board’s order. The parties submitted a joint statement of facts. On April 24, 1994, after a hearing on the petition, the court issued a written order reversing the Board and remanding to the Board for a hearing on the merits.

The County appeals and asks us to consider the following questions: I. Did the Circuit Court err in reversing the decision by the Anne Arundel County Board of Appeals that the Notice of Zoning Violation did not constitute a final order within the appellate jurisdiction of the Board?

II

Was the dismissal of the Notice of Zoning Violation by the Board of Appeals proper under the doctrine of primary jurisdiction? FACTS On April 14, 1983, 2020C opened for business, after obtaining a Zoning Certificate of Use from the County for a retail use described as an adult movie arcade and bookstore. The business includes the display, sale, and rental of books, maga ³²³ zines, videotapes and other expressive materials. A portion of these materials involves themes of a sexual nature.

At the time 2020C opened, County law did not define or specially regulate adult bookstores or movie arcades. Anne Arundel County revised its zoning laws to define and specially regulate adult uses, effective November 1,1991. The new regulations were included in County Bill No. 98-91. This Bill removed adult uses as permitted uses in the Town Center zoning district in which 2020C was located.

In addition, the Bill created an amortization schedule, requiring businesses to register as nonconforming uses that must cease operation within twelve months. Anne Arundel County later enacted Bill No. 101-92, shortening the twelve month amortization period to six months. On January 9, 1992, the County sued 2020C in the Circuit Court for Anne Arundel County to enforce the licensing provisions of Bill 98-91 (case number C-91-01038). On April 14, 1992, appellees filed an action for declaratory judgment and injunctive relief (case number C-92-04432).

Appellees attack the constitutionality of Bill 98-91 on its face and as it is applied to their property. These suits have been consolidated and are still pending. 2 On December 16, 1992, the County issued a Notice of Zoning Violation to the Pieras stating that property they owned at 2020C West Street was being used in violation of zoning regulations set forth in the Anne Arundel County Code (the “code”). The Pieras own the property and the building located at 2020 West Street and lease a portion of the building to 2020C. The business identified in the notice was an “adult bookstore and/or an adult motion picture theater which is not a permitted use in the town center district,” owned and operated by 2020C.

The Pieras connection to 2020C is a ³²⁴ landlord/tenant relationship. 3 The notice identified the following as the applicable corrective action: Cease operation of the business by the above date [February 15, 1993] or apply for registration as a nonconforming use within 60 days of the date of receipt of this notice. Should a nonconforming use be granted, the date of discontinuance shall be six months from the date of the receipt of this notice. The notice cited to Article 28, §§ 6-303(1), 3-303, and l-126(b) of the Anne Arundel County Code. Instead of proceeding with the corrective action set forth in the notice, appellees filed an administrative appeal to the Board pursuant to Md.Code (1957, 1994 Repl.Vol.), Art. 25A, § 5(U), § 602 of the Anne Arundel County Charter, Article 3 of the Anne Arundel County Code, and the Rules of Practice and Procedure of the County Board of Appeals.

In its appeal, appellees argued that the regulatory scheme under which the County purported to act in making the administrative decisions is illegal and void, contrary to the Charter, an invalid exercise of legislative power, arbitrary, capricious, and unconstitutional: Appellees also disputed the factual determination ■ that the business is an adult bookstore or movie theater and argued that the decision was arbitrary, capricious, and not in accordance with law. The County moved to dismiss the appeal maintaining that the Board did not have the authority to hear an appeal from a Notice of Zoning Violation and that the Board lacked jurisdiction to rule on constitutional questions. The Board held a hearing on the limited issue of whether the Board had subject matter jurisdiction over the appeal. Without reaching the merits of the appeal, the Board determined that the notice was not an appealable order or decision and granted the County’s motion to dismiss.

In its opinion and order, the Board wrote: ³²⁵ This Board in the past has consistently found that a notice of zoning violation is not a final order upon which an appeal can be based. Since the Board under the County Charter, Article 25A, § 5(U), may consider appeals from any adjudicatory order and order which has been determined to be a final order, a notice of zoning violation has not been deemed in the past to be a final order. Title 17 of Anne Arundel County Code sets out specific jurisdiction and remedies available to the recipient of a notice of zoning violation. Consequently, it has been concluded by this Board that the notice of zoning violation is not an appealable order or decision....

Additionally, this Board also concludes that it is inappropriate for the Board to rule on Petitioner’s allegations that the regulatory scheme is unconstitutional and void. It is well established that this Board is without authority to consider and determine constitutional questions raised by the appellants. Since the issue raised here is that the regulations upon which this violation is based are illegal, unconstitutional and void, the Board cannot consider this. Appellees then filed a petition for judicial review and asked the circuit court to decide an issue of law: Does the County Board of Appeals have subject matter jurisdiction to hear the appeal filed by 2020C and the Pieras challenging the County’s December 16, 1992 Notice of Zoning Violation?

The circuit court held that the Board had jurisdiction pursuant to § 602 of the Anne Arundel County Charter and erred in dismissing the appeal. The matter was remanded to the Board for a determination on the merits. STANDARD OF REVIEW We set forth the standard of review for administrative appeals extensively in Mortimer v. Howard Research and Development Corp., 83 Md.App. 432, 440-443 , 575 A.2d 750 , cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). We will review it briefly here.

The role of the circuit court in reviewing a Board of Appeals decision is set forth in Md.Code (1957, 1994 Repl. Vol.), Art. 25A, § 5(U), which provides in pertinent part: ³²⁶ Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive.

(Emphasis added.) The circuit court’s standard of review is limited to whether the Board’s decision is or is not “in accordance with the law.” The Court of Appeals has stated that the reviewing court may set aside, as “not in accordance with law,” a decision of the Board of Appeals that is arbitrary, illegal, or capricious. Levy v. Seven Slade, Inc., 234 Md. 145, 149 , 198 A.2d 267 (1964). To determine whether the Board’s decision is arbitrary, illegal, or capricious, the reviewing court must decide whether the question before the agency was fairly debatable. Mortimer, 83 Md.App. at 441 , 575 A.2d 750 .

An issue is fairly debatable if reasonable persons could have reached a different conclusion on the evidence and, if so, a reviewing court may not substitute its judgment for that of the administrative agency. The fairly debatable test is analogous to the clearly erroneous standard under Rule 8-131(c) and a decision is fairly debatable if it is supported by substantial evidence on the record taken as a whole. Mortimer, 83 Md.App. at 441 , 575 A.2d 750 . (Citations omitted.) The circuit court, therefore, was to determine whether the Board’s decision was arbitrary, illegal, or capricious.

On appeal to this Court, we must be certain that the circuit court did not err in its review. Mortimer, 83 Md.App. at 442 , 575 A.2d 750 . In addition, the circuit court “is -under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law.” Younkers v. ³²⁷ Prince George’s County, 333 Md. 14, 19 , 633 A.2d 861 (1993) (quoting People’s Counsel v. Maryland Marine, 316 Md. 491, 496-497 , 560 A.2d 32 (1989) (citations omitted)). Our role is to determine whether the circuit court was correct in deciding that the Board of Appeals has jurisdiction to entertain an appeal from the notice.

DISCUSSION I. Article 25A, § 5(U) authorizes Anne Arundel County to enact local laws establishing the County Board of Appeals. A county board of appeals may be empowered to hear and decide such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; and the assessment of any special benefit tax. Md.Code (1957, 1994 Repl.Vol.), Art. 25A, § 5(U). The Anne Arundel County Board of Appeals was created by § 601 of the County Charter.

The powers and functions of the Board are set forth in § 602 of the County Charter, which authorizes the Board to exercise all of the authority enumerated in Article 25A, § 5(U). Section 602 provides in pertinent part: (b) Appeals From Orders Relating to Zoning. The County Board of Appeals shall have and exercise all the functions and powers of the Board of Appeals of Anne Arundel County and the County Board of Appeals described in Article 25A of the Annotated Code of Maryland as supplemented by other public general laws. All references in law ³²⁸ to the Board of Appeals or the Board of Zoning Appeals shall be construed to refer to the County Board of Appeals created by this Article where such construction is reasonable.

In all cases heard by the County Board of Appeals, its decision shall be final unless further appeal be taken therefrom in the manner provided Section 604 of this Article. (e) Appeals From Executive, Administrative and Adjudicatory Orders. The County Board of Appeals shall hear and decide appeals from all other administrative and adjudicatory orders other than those affecting the internal operation of the executive branch as may from time to time be provided by Article 25A of the Annotated Code of Maryland or by ordinance of the County Council not inconsistent therewith. The Reporter’s notes for § 602 provide as follows: The purpose of this Section is to outline the various appeals to be heard by the newly created Board.

Subsections (a), (b), (c), and (e) [now subsections (b), (c), (d) and (f) ] refer specifically to appeals from orders now heard by other administrative agencies. Subsection (d) [now subsection (e) ] is a “catch-all” provision designed to transfer to the County Board of Appeals the right to hear and decide appeals from all other administrative and adjudicatory