Armstrong v. Mayor of Baltimore

JAMES R. EYLER, Judge. We are asked to determine the meaning of “zoning action,” as used in Maryland Code (1957, 2003 Repl.Vol.), Article 66B, § 2.09(a)(1), which provides for judicial review of “zoning action” by the City Council of Baltimore. We will use this as an opportunity to clarify our prior decision, interpreting the same language, in MBC Realty v. Mayor and City Council of Baltimore, 160 Md.App. 376 , 864 A.2d 218 (2004). Douglas M. Armstrong, an appellant, and several other owners of residential properties in Baltimore City, 1 filed in the Circuit Court for Baltimore City a petition for judicial review of an ordinance (hereinafter Ordinance 04-659), enacted by the Mayor and City Council, appellee.

The petition was filed pursuant to Maryland Code, Article 66B, section 2.09, and Title 7, chapter 200 of the Maryland Rules. Ordinance 04-659 granted permission for the establishment, maintenance, and operation of a parking lot to be used in connection with a proposed apartment building at 2807 Cresmont Avenue. ⁶⁶¹ Appellants challenged Ordinance 04-659 on the grounds that (1) the City Council violated various provisions in the zoning code and in the subdivision regulations, and (2) Ordinance 04-659 constituted an unlawful taking of appellants’ property. Appellee filed a motion to dismiss, asserting there was no statutory right of judicial review in circuit court. The circuit court granted the motion.

Appellants filed a motion to alter or amend judgment, which the circuit court denied. Appellants appealed to this Court. Appellee moved to dismiss the appeal, contending that there was no statutory right of judicial review, and as a result, we had no jurisdiction to consider the appeal. In a prior unreported opinion, we granted appellee’s motion to dismiss the appeal, and appellants petitioned for certiorari to the Court of Appeals.

The Court of Appeals reversed and remanded the case to us to determine whether the circuit court had jurisdiction to consider the petition for judicial review. See Armstrong v. Baltimore City, 390 Md. 469, 475 , 889 A.2d 399 (2006). We conclude that there was a right of judicial review in the circuit court and, thus, shall reverse and remand the case to the circuit court for further proceedings. Factual Background On November 12, 2002, the Department of Housing and Community Development issued a permit to Cresmont Properties, LLC (Cresmont), 2 the developer of a 26-unit apartment building at 2807 Cresmont Avenue, to construct the apartment building with 33 off-street parking spaces.

Appellants appealed the issuance of this permit to the Board of Municipal and Zoning Appeals (the Board), contending that the project violated section 10-504(a) 3 of the Baltimore City Zoning Code (the Zoning Code). Appellants based their argument on the ⁶⁶² fact that the property was in the Charles Village/Remington parking lot district, 4 governed by Title 10, subtitle 5, and there was no parking lot ordinance authorizing the construction of the parking lot. The Board determined that because section 10-201 of the Zoning Code required “accessory” 5 off-street parking for all newly-erected structures, 6 Title 10, subtitle 5 did not apply, and a separate parking lot ordinance was not necessary. Appellants filed a petition for judicial review in circuit court, alleging that the Board erred in approving the issuance of the permit without requiring the enactment of a separate parking lot ordinance.

On November 4, 2003, the circuit court ruled in favor of appellants, basing its determination on the fact that the Zoning Code did not expressly except accessory uses from the requirements of section 10-504(a). Therefore, the circuit court ruled that a parking lot ordinance was required before a City agency could issue a permit and ordered that the construction permit be revoked. 7 Appellee noted an appeal to this Court, but this Court dismissed the appeal on jurisdictional grounds. See Mayor ⁶⁶³ and City Council of Baltimore v. Armstrong, No. 2096, Sept. Term 2003, 163 Md.App. 704 , filed August 10, 2005. Subsequently, Cresmont requested the City Council to approve a parking lot ordinance permitting 33 off-street parking spaces at the Cresmont Avenue property.

Bill 03-1228, which provided for such accessory parking, was introduced in the City Council, and the Council approved it. On March 25, 2004, the Mayor signed the bill as Ordinance 04-659, effective 30 days later. Pursuant to the Ordinance, a new construction permit was issued to Cresmont. Ordinance 04-659 is the subject of this appeal.

On December 2, 2004, in order to conform the City Code to prior practice, 8 the City Council approved Ordinance 04-855, amending the definition of “parking lot” in § 10-501 9 of the Zoning Code to exclude accessory parking. As a result of the amendment, appellee asserts that it is no longer necessary, under section 10-504(a), that a parking lot ordinance be enacted to approve the construction of off-street accessory parking mandated by section 10-201. 10 On April 19, 2004, appellants filed a petition for judicial review of Ordinance 04-659 in circuit court, asserting that Maryland Code, Article 66B, section 2.09(a)(1) provided a statutory right of appeal because approval of Ordinance 04- ⁶⁶⁴ 659 constituted “zoning action” within the meaning of that section. Appellee filed a motion to dismiss, arguing that the appeal was erroneously brought under section 2.09 and Title 7, Chapter 200 of the Maryland Rules; there was no statutory authority for bringing the appeal; and the circuit court lacked subject matter jurisdiction to decide the appeal. After a hearing on the motion, by order dated August 13, 2004, the circuit court dismissed the petition.

By order dated August 18, 2004, the circuit court also denied appellants’ subsequent motion to alter or amend judgment. On August 13, 2004, appellants appealed to this Court, and appellee filed a motion to dismiss the appeal, asserting that we too lacked subject matter jurisdiction. By order dated March 14, 2005, we dismissed the appeal. On June 16, 2005, the Court of Appeals granted appellants’ petition for certiorari, and on January 6, 2006, reversed and remanded the case to us for further proceedings.

The Court of Appeals noted that section 2.09(e) of Article 66B of the Maryland Code provides for a right of appeal to this Court from any decision of the circuit court. Armstrong, 390 Md. at 475 , 889 A.2d 399 . The Court further explained, It does not matter whether the Circuit Court did or did not have jurisdiction to entertain the judicial review action, whether it was right or wrong in its ruling. That is what the appeal is to resolve.

So long as the Circuit Court entered a final or otherwise appealable judgment, which it did, an appeal will lie. Id. In this Court, appellants contend that Ordinance 04-659 was a conditional use authorization by the City Council, which constituted a “zoning action” subject to judicial review. Appellants argue that the conditional use authorization was an administrative, as distinguished from a legislative, act and the administrative grant of a conditional use is a “zoning action.” In response, appellee contends that, because of the subsequent enactment of Ordinance 04-855, this case is moot and should be dismissed.

Relying heavily on MBC Realty, LLC, ⁶⁶⁵ supra, appellee also contends that Ordinance 04-659 was not a conditional use authorization, and even if it were, conditional use authorizations are not subject to judicial review under section 2.09. We conclude that the case is not moot and § 2.09 did provide a right of judicial review. Discussion Mootness Appellee argues that, because of the enactment of Ordinance 04-855, an ordinance approving a parking lot that is an accessory use is no longer required, and therefore, the issue of whether appellants are entitled to judicial review of Ordinance 04-659 is moot. Appellee relies on Lake Falls Ass’n v. Bd. of Zoning Appeals of Baltimore County, 209 Md. 561 , 121 A.2d 809 (1956), and Grau v. Bd. of Zoning Appeals of Baltimore County, 210 Md. 19 , 122 A.2d 824 (1956).

In both cases, the challenge was to a change in zoning classification with respect to a specific property. In both instances, the zoning classification under attack was again changed prior to a decision on appeal. In each case, the Court of Appeals concluded that the issue was moot. In Lake Falls and Grau , mootness was apparent because the zoning classifications were under attack, not an action taken pursuant to the classification, and the classification was changed prior to a decision on appeal.

By the time the case was heard, the properties in question were no longer subject to that classification. In the case before us, the question of whether a parking lot ordinance is required for the Cresmont property may well be moot, but the effect of Ordinance 04-855 on the building permit process is not before us, and the record is insufficient for us to make that determination. That determination may be made on remand. Additionally, appellants filed a separate action attacking the validity of Ordinance 04-855.

The circuit court upheld its validity, and that case is now pending in this Court. See Armstrong v. ⁶⁶⁶ Mayor and City Council of Baltimore, No. 2210, Sept. Term 2005. Regardless of the above, the issue before us is a matter of public importance which we can address even if the issue is moot. See J.L. Matthews, Inc. v. Maryland-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 96-97 , 792 A.2d 288 (2002).

The issue enables us to clarify what constitutes “zoning action” by the City Council so that all interested persons will know what procedural avenue for seeking judicial review is applicable in a given situation. It also enables us to limit overly broad language in MBC Realty , our prior opinion. Judicial review General principles Technically, a circuit court does not exercise “appellate” review of a decision by a local administrative or legislative body. Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 490-91 , 693 A.2d 757 (1997); Shell Oil Co. v. Supervisor of Assessments of Prince George’s County, 276 Md. 36, 43 , 343 A.2d 521 (1975) (“[T]he exercise of appellate jurisdiction requires a prior action by some judicial authority, or the prior exercise of judicial power[.] ... [Rjeview of the decision of an administrative agency is an exercise of original jurisdiction and not of appellate jurisdiction.”).

The basis for judicial review of a decision by a local administrative or legislative body acting in an adjudicatory or quasi-judicial capacity may be (1) a statute or (2) common law or an equity writ (mandamus, injunction, certiorari, or declaratory judgment). Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 500 , 331 A.2d 55 (1975); Lohss v. State, 272 Md. 113, 116 , 321 A.2d 534 (1974). We shall refer to adjudicatory or quasi-judicial actions as administrative actions.

In both instances referred to above, the circuit court is exercising original and not appellate jurisdiction. Shell Oil, 276 Md. at 43 , 343 A.2d 521 . Nevertheless, judicial review actions based on statute were regularly called “appeals” prior to the Shell Oil case. Moreover, even since the Shell Oil case, ⁶⁶⁷ such actions have frequently been referred to as “appeals” in cases, statutes, and the Maryland Rules.

See Gisriel, 345 Md. at 495 , 693 A.2d 757 . In 1993, the Court of Appeals adopted Title 7 of the Maryland Rules, which reflected the correct terminology and referred to statutory review of an act by an administrative agency as an action for judicial review. Rule 7-201. Despite the language of Title 7, actions for judicial review based on statute are still frequently called “appeals” or, sometimes, “administrative appeals.” In the absence of a statutory basis for judicial review of administrative decisions by a local body, such decisions are reviewable, based on a court’s inherent power, in an action invoking the original jurisdiction of the circuit court, through the writ of mandamus, by injunction, declaratory action, or by certiorari.

Gould, 273 Md. at 500-04, 512 , 331 A.2d 55 ; see also Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 542 , 723 A.2d 440 (1999); Baltimore Imp. Car Serv. & Storage, Inc. v. Maryland Port Auth., 258 Md. 335, 342 , 265 A.2d 866 (1970); Hammond v. Love, 187 Md. 138, 144 , 49 A.2d 75 (1946); Heaps v. Cobb, 185 Md. 372, 378-79 , 45 A.2d 73 (1945); Hecht v. Crook, 184 Md. 271, 280 , 40 A.2d 673 (1945). Based on Gisriel and Bucktail, it is clear that the Gould principle applies not only to the acts of administrative agencies but also extends to the acts of legislative bodies when the acts are administrative in nature. In Gisriel , the decision maker was the City Council of Ocean City, and in Bucktail, the decision maker was the County Council of Talbot County.

In both instances, the Gould principles were applied. There is little, if any, difference in the standard of review between statutory judicial review of an administrative action and a non-statutory review under Gould and its progeny. While the language is not always the same, the Court of Appeals has, on several occasions, stated that the substantial evidence or arbitrary or capricious test, usually associated with statutory judicial review of administrative actions, applies to non-statutory review of administrative actions. See Bucktail, 352 Md. at 550-52 , 723 A.2d 440 ; Goodwich v. Nolan, 343 ⁶⁶⁸ Md. 130, 147, 680 A.2d 1040 (1996); Silverman v. Maryland Deposit Ins.

Fund Corp., 317 Md. 306, 325-26 , 563 A.2d 402 (1989); Dickinson-Tidewater, Inc. v. Supervisor of Assessments of Anne Arundel County, 273 Md. 245, 255-56 , 329 A.2d 18 (1974). In Harvey v. Marshall, 389 Md. 243, 295-304 , 884 A.2d 1171 (2005), the Court of Appeals reviewed the two different lines of cases and concluded that the standard of review was essentially the same. A legislative or quasi-legislative decision, as distinguished from a quasi-judicial or administrative decision, is also subject to court review, by invoking the court’s original jurisdiction. Unlike ordinary statutory and nonstatutory judicial review of administrative decisions, legislative actions are subject to much more limited review.

County Council of Prince George’s County v. Offen, 334 Md. 499, 506-07 , 639 A.2d 1070 (1994); Dep’t of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 221-24 , 334 A.2d 514 (1975) (where a government body “is acting in a manner which may be considered legislative in nature ..., the judiciary’s scope of review of that particular action is limited to assessing whether the agency was acting within its legal boundaries”). Administrative versus legislative In light of these general principles, the first question we must resolve is whether, in enacting Ordinance 04-659, the City Council was acting in a quasi-judicial, or administrative capacity, rather than in a legislative one. “The difference between adjudicative and legislative facts is not easily drawn[.]” Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-12 , 376 A.2d 483 (1977). Adjudicative facts are “facts about the parties and their activities, businesses and properties. They usually answer the questions ‘of who did what, where, when, how, why, with what motive or intent[.]’ ” Id. at 712 , 376 A.2d 483 (quoting Davis, Administrative Law Supplement, § 7.02 (1970)).

On the other hand, “legislative facts ‘do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.’” Id. (quoting Davis, supra, at ⁶⁶⁹ section 7.02). The difference essentially depends on “whether the decision is to be made on individual or general grounds.” Id.; see also Bucktail, 352 Md. at 545 , 723 A.2d 440 (“This determination is not based on whether the zoning decision adversely affects an individual piece of property but whether the decision itself is made on individual or general grounds.”). Moreover, it is not determinative that a zoning authority’s decision may dramatically affect an individual; rather, “it is the nature of the decision’s fact-finding process, not the ultimate effect of the decision” that determines whether the action is adjudicative or legislative in nature.

Woodward & Lothrop, 280 Md. at 712 , 376 A.2d 483 . The distinction between a legislative body acting administratively or legislatively has been discussed in the zoning context. For example, the legislative body acts in a legislative capacity when it engages in comprehensive, rather than piecemeal, rezoning proceedings because it does not consider and determine adjudicative facts concerning particular parties. Id.

The focus is not on a single piece of property, but on a “considerable number of properties as they relate to each other and to the surrounding area.” Id. at 713 , 376 A.2d 483 . By contrast, in piecemeal rezoning hearings, the zoning authority “considers a single piece of property and must make ... factual determination^].” Id. at 712 , 376 A.2d 483 . Therefore, piecemeal rezoning hearings are administrative in nature, even though the final action in granting or denying the reclassification is legislative in character. Bucktail, 352 Md. at 545 , 723 A.2d 440 (citing Hyson v. Montgomery County Council, 242 Md. 55, 64-65 , 217 A.2d 578 (1966)).

In Mayor and Council v. Woodmont Country Club, 348 Md. 572 , 705 A.2d 301 (1998), the issue before the Court of Appeals was whether there was a right of reasonable cross-examination at a hearing in which the City passed several ordinances, officially levying special assessments against a particular property in connection with construction of a road and water main. The City argued Woodmont had no right of cross-examination because the hearings were legislative in nature. The Court ⁶⁷⁰ found that, although the determination of whether to impose a special assessment and the manner of doing so are legislative determinations, the hearing process itself was adjudicative in nature. Woodmont, 348 Md. at 584 , 705 A.2d 301 .

The Court explained: [T]he application of the mode of assessment to a particular piece of property to determine the specific amount to be assessed against that particular property is an adjudicative act. The proceeding to determine the amount of benefit to a specific piece of property is adjudicatory or quasi-judicial____Thus, the determination of whether the Council is acting in a quasi-judicial or quasilegislative manner is dependent upon the nature of the particular act in which it is engaged. In a case such as this, where the Council was holding a hearing, receiving written and oral testimony, and considering evidence to determine the specific amount of special benefit to a particular piece of property, the Council at that point was acting in a quasi-judicial capacity, even if earlier actions in the process or the final act of passing an ordinance to levy a special assessment constitute legislative functions. Id. at 584-85 , 705 A.2d 301 .

In this case, similar to Woodmont , the hearing to consider Ordinance 04-659 was adjudicative in nature. During the hearing before the Land Use and Planning Committee of the City Council, various members of the community testified regarding the effect the building and parking lot had on their and nearby properties. Committee members asked Cresmont to testify as to the economic impact of improving the Cresmont property and allowing accessory parking. The focus of the hearing was on a single piece of property and the effect of its development on surrounding properties.

In addition, under section 10-504 of the Zoning Code, in determining whether to allow use of land as a parking lot, the Mayor and City Council may consider