Armstrong v. Mayor of Baltimore

HARRELL, Judge. This case is one of several legal challenges brought by a group of residents of Baltimore City’s Remington/Charles Village neighborhood against a developer and the Mayor and City Council of Baltimore (“the City”) regarding the governmental approval processes for a seven-story residential apartment building (Cresmont Loft) on Cresmont Avenue. Here we are concerned with the residents’ petition for judicial review challenging the City’s Ordinance 04-659 (approving a parking lot for Cresmont Loft), on the basis that the process by which it was enacted violated the Maryland Open Meetings Act. For reasons we shall explain, we conclude that the Open Meetings Act challenge, insofar as the challenge seeks to undo the approval of the parking lot, is moot by virtue of the enactment of subsequent legislation by the City rendering Ordinance 04-659 unnecessary as a matter of law.

Although, as a result of this holding, we are not compelled to address the parties’ dispute over the award of attorney’s fees under the Open Meetings Act, we choose to comment (albeit as dicta) on this dispute for the guidance of the parties and the trial court when the latter considers the matter. ⁶⁵² I. FACTUAL AND PROCEDURAL BACKGROUND A. Preceding the Instant Case Cresmont Properties Ltd. (“Cresmont”) owns a 28,132 square-foot parcel of land (the “Property”) located at 2807-35 Cresmont Avenue in Baltimore City. Petitioners, a group of local residents opposed to Cresmont’s development of the Property, 1 challenged in various administrative and judicial fora three construction permits, as well as an occupancy permit, issued by the City to Cresmont for construction and operation of an apartment building known as Cresmont Loft. A more fulsome history of the issuance of these permits and challenges, than is necessary for the present litigation, is supplied in our opinion in the companion case of Armstrong v. Mayor and City Council of Baltimore, — Md.—, — A.2d —, 2009 WL 2178672 (2009), filed today immediately prior to this opinion. The present case derives from one of the Petitioners’ legal challenges to the third construction permit and pertains specifically to the on-site parking lot. 1.

First Construction Permit On 15 November 2002, the Zoning Administrator for the Baltimore City Department of Housing and Community Development (“DHCD”) issued to Cresmont a permit to construct a seven-story residential apartment complex consisting of twenty-six apartments and a parking lot with thirty-three parking spaces. At the time, the Property was a vacant lot. ⁶⁵³ Petitioners filed a negative appeal 2 to the Board of Municipal and Zoning Appeals (the “Board”). They alleged, among other things, that the project violated § 10-504(a) 3 of the Zoning Code of Baltimore City (“the Code” or “the Zoning Code”), which, at the relevant time, required passage of an ordinance by the City to authorize the use of land as a parking lot. The Board ruled against Petitioners, reasoning that § 10-504(a) did not apply to accessory off-street parking for newly-erected structures.

Construction of the building and parking lot began in August 2003. On 4 November 2003, however, the Circuit Court for Baltimore City, on Petitioners’ petition for judicial review, reversed the Board, concluding that the Code did not exempt accessory uses from the requirements of § 10-504(a). Shortly thereafter, the Director of Permits for the DHCD revoked ⁶⁵⁴ Cresmont’s construction permit. The City, which sided with Cresmont in the litigation, appealed to the Court of Special Appeals.

The intermediate appellate court dismissed the appeal on the ground that the provision of the Code authorizing judicial review was not in effect when the City filed its appeal. Mayor of Balt. v. Armstrong, No. 02096, September Term 2003, 163 Md.App. 704 (filed 10 Aug. 2005). 2. Second Construction Permit The circumstances surrounding the second construction permit may be found in Armstrong v. Mayor and City Council of Baltimore, 409 Md. 648 , 653-54, 976 A.2d 349 , 352-53, 2009 WL 2178672 (2009). Suffice it to say, for present purposes, that as a result of administrative and judicial litigation over its issuance, a third construction permit was issued.

B. Ordinance 04-659 and the Third Construction Permit: The Present Litigation The Property is located in the City’s Parking Lot District II, a special district created by § 10-503 of the Zoning Code. 4 At the times relevant to these proceedings prior to the City’s amendment of § 10-501’s definition of “parking lot,” discussed infra, § 10-504 of the Zoning Code prohibited land in Parking Lot District II from being used as a parking lot “unless authorized by an ordinance of the Mayor and City Council.” 5 Because of this requirement, on 27 October 2003, Bill 03-1228 (“the Bill”) was introduced in the City Council. The purpose of the Bill was to authorize, as a conditional use, a parking lot on the Property. After introduction, the Bill was assigned to the Council’s Land Use and Planning Committee (“Committee”), after consideration by the Baltimore City ⁶⁵⁵ Planning Commission. Following its consideration, in a staff report dated 4 December 2003, the Commission stated: The applicants are requesting this conditional use [B]ill because several community residents have taken this project to court regarding the use of an alley, and because they are concerned about this same group challenging them regarding the Parking Lot District provisions in the Zoning Code.

The City would not normally require this conditional use ordinance because the parking to be provided is accessory to the apartment building. The applicants simply wish to ensure that they may proceed with their project and are willing to provide the higher level of scrutiny afforded the community in the ordinance process, if that would speed the project’s implementation. The staff report recommended that, before passage by the City Council, the Bill be amended to provide that “the plans and landscaping plans [provided by Cresmont be] attached to, and made part of the [B]ill.” Sections 16—401 and 16-402 of the Zoning Code required, prior to action by the full Council on the Bill, the Committee to consider the proposed conditional use at a public hearing. 6 ⁶⁵⁶ Rules 10-9 and 10-10 of the Rules of the City Council required the Committee to report the Bill to the City Council after acting on it. 7 If the Committee proposed to amend ⁶⁵⁷ substantively the Bill after the first hearing, it was required to hold another hearing. 8 The Bill was the subject of a Committee public hearing on 4 February 2004. Although notice of the hearing had been duly posted at the Property and on the City’s website, only the Chair of the Committee and one other Committee member were present at the hearing on behalf of the Committee. 9 That hearing lasted nearly three hours and was attended by about forty-five other individuals, including some of the Petitioners.

During the hearing, the Committee did not adduce or discuss site plans for the proposed parking lot. According to an affidavit in the record filed by Joan L. Floyd, one of the Petitioners, “[ajt the hearing, the chair of the Committee made a statement to the effect that the [opponents] of Bill OS-1228 could not expect there to be any further public meetings or hearings on Bill 08-1228.” No further public Committee hearing or work session was held in fact. Rather, on 4 March 2004, in a report submitted to the City Council, the Committee recommended that the Bill be enacted as amended. 10 One of the amendments included a ⁶⁵⁸ detailed site plan of the parking area, a plan to which no reference was made at the 4 February hearing. The site plan had been obtained by the Committee subsequent to the public hearing, as had a follow-up City agency report addressing the issue of accessibility to the neighbors’ garages impacted potentially by the proposed development of the Property.

The report, conducted by a Transportation Department employee, was intended to “advise the [Committee] regarding existing and proposed rights-of-way between adjacent properties and the proposed development site.” It concluded that “the proposed development [will] not harm[ ]” access to adjacent garages. Petitioners contended that the measurements relied on in the report to form the basis of its conclusion were erroneous. The Committee’s method of amending and approving the Bill, after the 4 February session, was through the collection of signatures of a quorum of mostly Committee members who had not attended the hearing. According to an affidavit of the Bill’s co-sponsor: [ ] As is common practice in the City Council, a vote was not taken at the Committee hearing with regard to the adoption of a Committee Report on this [B]ill.

Instead, the method by which the Committee adopted its March 4, 2004 Report of “favorable as amended” with regard to Council Bill 03-1228 was through the collection of the written assent of at least a majority of the Committee’s members-in this case the signature of four Committee members, of which I was one. [ ] As is common practice in the City Council, one of the clerks circulated the [B]ill among the Committee’s members to collect these four signatures. There was never a second meeting of the Committee after the public hearing held on February 4, 2004 with regard to this legislation. Thus, the quorum of the Committee that recommended that the Bill be enacted as amended, including the detailed site ⁶⁵⁹ plan and in reliance on the agency report, did so: (1) without having vetted the disputed agency report or detailed site plan before the public at the hearing; (2) without having discussed the amendments suggested by members of the public at the 4 February meeting or explaining why they were rejected; and (3) without having presented or discussed in open session the amendments made subsequently. The only evidence of the Committee’s deliberations and decision-making process’ were the signatures of the four members who signed the backing of the Bill.

As a result of the Committee’s recommendation, the Bill was advanced to the full City Council. On 8 March 2004, the amended version of the Bill passed second reader. On 15 March, Petitioners delivered to the City Council President a letter relating Petitioners’ position that the Committee approved “amendments that had not been the subject of a public hearing” and “plans that did not meet minimum statutory requirements ... and that constituted an unlawful taking of the property of adjacent owners,” and that the Committee acted on the basis of an “inaccurate and misleading agency report ... without a public open meeting of the Committee as required by the State Open Meetings Act.” The letter asked the Council President to “remedy the situation by taking immediate measures to void the action of the City Council Land Use and Planning Committee on Bill 1228 and either withdraw the [Bjill, or table it and schedule it for an open public re-hearing and Committee vote.” No direct response was forthcoming. At the next City Council meeting, on 22 March 2004, Bill 03-1228 passed on the third and final reading.

On 25 March, it was signed into law as Ordinance 04-659. Petitioners filed a timely complaint in the Circuit Court for Baltimore City, alleging that the City violated Md.Code, State Government Art. § 10-501 to -512 (“Open Meetings Act”) (2004 Repl. Vol. & Supp. 2008). 11 The relief Petitioners sought ⁶⁶⁰ included a declaration that Bill 03-1228 and Ordinance 04-659 were void, that the City Council be enjoined from issuing any permits pursuant to Ordinance 04-659, and that Petitioners be awarded reasonable attorney’s fees. 12 The City and Cresmont ⁶⁶¹ filed motions to dismiss on the ground that, because the Committee did not convene a quorum of its members to discuss the proposed bill, the Open Meetings Act did not apply. The Circuit Court rejected the City’s and Cresmont’s ⁶⁶² position, concluding, in a written opinion, that the Committee’s actions with regard to the passage of Ordinance 04-659 were in violation of the Open Meetings Act: In this Court’s view, the Committee, in this case, violated the Open Meetings Act in spirit and in fact.

The Committee conducted business with a quorum of its members when it circulated the Bill for signatures of members who were going to vote in favor of sending the Bill to the City Council with a favorable report. This was done in private and away from the public’s view, in violation of the essence of the Open Meetings Act. Community and Labor United For Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183, 186-87 , 832 A.2d 804 (2003), and Md.Code Ann. State Govt[.] Art., § 10-501. Further evidence of this is highlighted by the fact that the Bill was signed by three members who did not attend the February 4, 2004 meeting.

The Committee sent the Bill to the City Council and recommended it as “favorable as amended.” By amending the Bill, a reasonable inference can be drawn that there was discussion or should have been discussion among the members of the Committee in order to enable a quorum to agree to recommend the Bill. At the February 4, 2004 meeting, the Chair requested further information from the city agency who conducted the access and egress of the alleys abutting the parking lot. There is no record that this information was obtained. But it is unlikely that the request of the Committee Chair would have been be [sic] ignored by a city agency; and that this information played no role in the Committee’s decision to recommend the Bill.

While it is true a quorum is technically necessary to qualify as a meeting, the contention that a quorum is necessary to trigger the Act and open the meeting to the public is not the case. The totality of the circumstances surrounding each meeting in light of the purpose of the Act and its importance to the maintenance of a democratic society must be examined. By intentionally avoiding holding a meeting with the necessary number of participants to ⁶⁶³ establish a quorum, the Committee cannot avoid compliance with the Act. Md.Code Ann., State Govt.

Art., § 10-501(a). The Legislature intended the Open Meetings Act to allow the general public to view the entire deliberative process. Community And Labor United For Baltimore Charter Committee (CLUB)[,] et al. v. Baltimore City Board of Elections, et al., 377 Md. 183, 194 , 832 A.2d 804 (2003). The Committee violated the Act by not performing “public business ... in an open and public manner!”], and not allowing citizens to observe “the deliberations and decisions that the making of public policy involves.” Md.Code Ann., State Govt.

Art., § 10-501(a)(2)(ii). LThe City and Cresmont] argue that it is the routine for the City Council to circulate a Bill for signatures without holding a meeting. Merely because it is the practice of the City Council does [not] give legal justification for violating the Open Meetings Act. The actions of the Committee, in the subject case, do not involve minor changes, e-mail or “thinking out loud.” This matter involves actual deliberations on whether a bill should be forwarded to the City Council as approved or disapproved.

If the Act is only triggered by a meeting of a quorum at one time, then it would be possible for public officials to conduct business, by e-mail or in small groups, hold no meetings and never be subject to public scrutiny. A committee could hold a meeting, without a quorum to “think out loud,” then circulate a proposed Bill from member to member without the public being permitted to observe any of the deliberative process. This is not consistent with the goal of the Open Meetings legislation as it would not allow citizens to “observe the performance of public officials and the deliberations and decisions that the making of public policy involves.” Md.Code Ann.[,] State Govt. Art.[,] § 10-501(a).

For these reasons, the Court finds that the Committee did violate the Open Meetings Act. ⁶⁶⁴ Next, this Court must consider the relief Petitioners request, that is, whether Bill 03—[1]128 and Ordinance 04-659 should be declared void in light of the violation. The Open Meetings Act does not allow this Court to void an action of a public body because there was a violation of this subtitle by another public body. Md.Code Ann., State Govt. Art., § 10—510(a)(2).

Although the Committee serves the City Council[, t]he Land Use and Planning Committee and the City Council of Baltimore are separate public bodies. The City Council was free to conduct an inquiry and vote as it saw fit on Bill 03-1228. In the subject case, ... the subsequent lawful actions of the City Council cured the violation of the Open[ ] Meeting[s] Act by the Land Use and Planning Committee; and therefore the Petitioners’ request to declare the passage of Bill 03-1228 and Ordinance 04-659 void is denied. State Govt. [Art.,] § 10—510(d)(5) permits the award of reasonable counsel fees to the party who prevails in the action.

In light of the Court’s ruling that there was a failure to comply with the Open Meetings Act, counsel for Petitioners are awarded reasonable counsel fees to be paid by [the City].[ 13 ] ⁶⁶⁶ (footnotes omitted). Everyone was disappointed in some way or another with the trial court’s rulings and, thus, all parties pursued appeals to the Court of Special Appeals. Petitioners argued that the Circuit Court should have “voided” Ordinance 04-659. The City and Cresmont argued that the Petitioners are not entitled to counsel fees.

On 2 July 2007, the Court of Special Appeals issued an unreported opinion in the matter. A panel of the intermediate appellate court determined that, although the City Council enacted Ordinance 04-855 in January 2005, which amended § 10-501 of the Zoning Code and thereby made no longer necessary the attainment of an ordinance to establish an accessory parking lot as a conditional use, as discussed infra, the present case was not moot. The intermediate appellate court agreed with the Circuit Court that the Committee violated the Open Meetings Act by recommending an amendment to Bill 03-1228 without first allowing the public an opportunity to hear the reasoning behind the recommendation. Further, the court agreed with the Circuit Court’s conclusion that when a legislative committee meeting is closed to the public improperly, in violation of the Open Meetings Act, the City Council may rectify the violation by itself holding a proper public meeting on the bill.

Thus, the intermediate appellate court determined that the City Council’s subsequent actions, taken at public meetings, “cured” the violation committed by its Land Use and Planning Committee. Finally, the panel disagreed with the Circuit Court’s determination that Petitioners are entitled to counsel fees. The Court of Special Appeals concluded that, because Petitioners did not achieve the relief they sought on the merits of their claims, they may not be considered a “prevailing” party, as required under Md.Code, State Govt. Art. § 10-510(d)(5), and, therefore, may not be awarded counsel fees.

Armstrong v. Mayor of Balt., No. 01243, September Term 2005, 175 Md.App. 762 (filed 2 July 2007). ⁶⁶⁷ Petitioners filed a Motion for Reconsideration. The City, on the other hand, requested that the Court of Special Appeals’s opinion be reported. On 25 August 2008, the court denied both requests. On 9 September 2008, Petitioners filed with this Court a Petition for Writ of Certiorari.

The City and Cresmont filed answers to the Petition requesting its denial. In its response, the City also included a “Conditional Cross-Petition.” On 10 November 2008, we granted the Petitioners’ Petition and the City’s Cross-Petition. 14 Armstrong v. Baltimore, 406 Md. 442 , 959 A.2d 792 (2008). Cresmont expressly declined to participate further in the present litigation. ⁶⁶⁸ C. Time Does Not Stand Still In City Hall: Ordinance 04-855 While the litigation over Ordinance 04-659 was spiraling on, the City Council got busy amending the Zoning Code to “clarify” whether a conditional use ordinance should be required for accessory parking lots in the Parking Lot Districts. On 20 October 2004, Bill 03-1219 was introduced in the City Council.

The Bill was titled “Zoning-Parking Lot Districts-Clarification.” Bill 03-1219 proposed to amend the definition of “parking lot” in § 10-501 of the Zoning Code by adding “non-accessory” to the statutory definition. Thus, under the amendment proposed in the Bill, it would no longer be necessary to enact a parking lot ordinance under § 10-504(a) to approve the construction of off-street accessory parking in the Parking Lot Districts 15 in order to comply with § 10-201 16 of the Zoning Code. Also on 20 October 2004, the Land Use and Planning Committee of the City Council held a hearing at which Bill 03-1219 was discussed. At that hearing, Douglas M. Armstrong (“Armstrong”), the lead Petitioner in this case and other cases related to the overall controversy at the heart of this case, presented the Committee with a portion of the legislative history of the Zoning Code, which indicated that, as part of a comprehensive recodification process in 1970, the City Council declined adopting an amendment similar to the one proposed ⁶⁶⁹ in Rill 03-1219. 17 On 15 November 2004, the City Council held a work session on the Bill, and on 29 November 2004, approved the Bill.

The Bill became law as Ordinance 04-855, effective 1 January 2005. On 80 December 2004, Armstrong filed a complaint in the Circuit Court for Baltimore City seeking a declaratory judgment that Ordinance 04-855 was invalid and an injunction prohibiting the City from permitting construction of parking lots pursuant to the terms of the Ordinance. The Circuit Court, on 31 October 2005, entered an order dismissing Armstrong’s request for an injunction and declaring that Ordinance 04-855 was not invalid. Armstrong pursued a timely appeal of the Circuit Court’s judgment to the Court of Special Appeals.

He urged that the Circuit Court erred: (1) in ruling that Ordinance 04-855 was not invalid because the Ordinance violated the “one subject” rule contained in Article III, section 14(b) of the Baltimore City Charter; 18 (2) in failing to conduct an evidentiary hearing and granting the City’s motion to dismiss; and, (3) in failing to enter a proper declaratory judgment. The Court of Special Appeals affirmed. The intermediate appellate court concluded that Armstrong was not entitled to an evidentiary hearing because the question of the Bill’s titling and its compliance with section 14(b) of the City Charter is a question of law. Moreover, the titling of Bill 03-1219 complied -with section 14(b) because the title was not misleading and sufficiently apprised the public, including Armstrong, of the purpose and contents of the Bill.

Thus, the Court of Special ⁶⁷⁰ Appeals concluded that Ordinance 04-855 was not invalid. Armstrong v. Mayor of Balt., No. 02210, September Term 2005, 171 Md.App. 738 (filed 5 Oct. 2006). We denied Armstrong’s Petition for Writ of Certiorari on 12 January 2007. Armstrong v. Baltimore, 396 Md. 524 , 914 A.2d 768 (2007).

II

DISCUSSION A. Mootness The City advances a threshold position that Petitioners’ Open Meetings Act claim regarding Ordinance 04-659 is moot. The argument rests on the notion that Ordinance 04-855 amended subsequently (and while the instant litigation was pending) the underlying text of the Zoning Code and made it unnecessary for Cresmont to obtain a conditional use ordinance to establish the accessoi-y parking lot. See supra Part I.C and note 15. Under the Yorkdale rule (from Yorkdale Corp. v. Powell, 237 Md. 121 , 205 A.2d 269 (1964), as recently reaffirmed in Layton v. Howard County Board of Appeals, 399 Md. 36 , 922 A.2d 576 (2007)), because the present litigation was ongoing at the time Ordinance 04-855 was enacted, the substantive zoning textual amendment applies retrospectively to this case, with the result that Cresmont does not need a separate ordinance to sanctify the construction of the parking lot associated with the Cresmont Loft.

We agree with the City. Therefore, we reverse the judgment of the Court of Special Appeals insofar as the intermediate appellate court concluded that Petitioners’ claim on the merits is not moot. In Layton, 399 Md. 36 , 922 A.2d 576 , we reaffirmed the principal conclusion of Yorkdale, that “legislated change of pertinent law, which occurs during the ongoing litigation of a land use or zoning case, generally, shall be retrospectively applied.” Id. at 38 , 922 A.2d at 577 . As there articulated: In Yorkdale, the Court addressed a situation in which a property owner (the Yorkdale Corporation) had negotiated the reclassification of the zoning of its property in order to build an apartment building.

Yorkdale also applied for a ⁶⁷¹ special exception and variance. The zoning commissioner granted Yorkdale’s requests, with the exception of limiting the number of units in the apartment building, i.e., the density of the zoning. A neighborhood property owner appealed the Board’s decision to the Circuit Court. There, the question was “whether the zoning ordinances ... gave the zoning officials power to grant a variance as to density.” Yorkdale, 237 Md. at 123 , 205 A.2d at 270 .

The Circuit Court found that the then-current law did not authorize a variance in density. Id,, at 124, 205 A.2d at 270 . Yorkdale appealed to the Court of Appeals and, after argument, but before a decision was issued, a bill was passed by the county council modifying the law in respect to the granting of variances as to density. Id.

Upon becoming aware of this event, the Court set the case for reargument. In reaching its decision, the Yorkdale Court first stated that: “Maryland consistently has followed the rule that ‘an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence,’ as Judge Markell, for the Court, repeated in Woman’s Club v. State Tax Comm., 195 Md. 16 , 72 A.2d 742 (or, it may be noted, even when a judgment wrong when rendered is made right by the change in the law). See also for this proposition that a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent, Keller v. State, 12 Md. 322 ; Day v. Day, 22 Md. 530 ; Gordy v. Prince, 175 Md. 688 , 7 A.2d 611 ; Cockerham v. Children’s Aid Society, 185 Md. 97 , 43 A.2d 197 ; and Tudor Arms Apts. v. Shaffer, 191 Md. 342 , 62 A.2d 346 .” Yorkdale, 237 Md. at 124 , 205 A.2d at 271 . In discussing several zoning cases in which this rule had been applied, the Yorkdale court stated: ⁶⁷² “It would seem to follow from the decisions in Banner [v. Home Sales Co. D, 201 Md. 425 , 94 A.2d 264 (1953) ], Lake Falls [Ass’n v. Board of Zoning Appeals of Baltimore County, 209 Md. 561 , 121 A.2d 809 (1956)] and Grau [v. Board of Zoning Appeals of Baltimore County, 210 Md. 19 , 122 A.2d 824 (1956) ] that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below.” Yorkdale, 237 Md. at 126 , 205 A.2d at 272 .

Applying this reasoning to the case, and after analyzing the legislative intent of the county in its enactment of the new bill and determining that there was no evidence that the bill was not to be subject to retrospective application, the Yorkdale Court held that the change in the zoning law had made the case decided under the old law moot. Because the amended law had come into effect during the course of litigation (i.e., while the appeal was pending before a final judgment) the Court applied it retrospectively and dismissed Yorkdale’s appeal. Yorkdale, 237 Md. at 133 , 205 A.2d at 276 . 19 Yorkdale and its progeny have never been overruled. They are still good law and are determinative in evaluating whether, in a land use or zoning case, a change in statutory ⁶⁷³ law taking place during the course of a litigated issue should have retrospective application.

As discussed supra, we shall consider zoning cases based upon the law as it exists at the time the case is before us. The Riverdale [Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co., 308 Md. 556 , 520 A.2d 1319 (1987) ] Court was correct in the above statement. Ordinarily, we do construe statutes to operate prospectively, absent a clear legislative intent to the contrary. The Riverdale Court, however, did not address Yorkdale, the exception to the general rule.

The Riverdale Court’s “disapproval” of what it termed dicta from Janda [v. General Motors Corp., 237 Md. 161 , 205 A.2d 228 (1964), overruled in part by Layton, 399 Md. at 63 , 922 A.2d at 592 ] (a non-land use and non-zoning case) does not affect the Yorkdale rale. Any disapproval of Janda’s fourth rale by the River[dale] Court was made in the context of the statute at issue in that case, which had no relation to land use and zoning issues. The exception to the general rule still stands. In land use and zoning cases, the law shall be applied as it is in effect at the time of argument.

Therefore, respondents’ reliance on Riverdale is misplaced. For the aforementioned reasons, we reaffirm the York-dale rule that a substantive change in relevant statutory law that takes place during the course of the litigation of a land use or zoning issue shall be retrospectively applied by appellate courts. Layton, 399 Md. at 53-56, 58, 64-65, 70 , 922 A.2d at 586-87, 589, 593-94, 596 (footnotes omitted). In the present case, there is no doubt that Ordinance 04-855 is relevant statutory law concerning “a land use or zoning issue.” As such, we apply here the Yorkdale rule, with the result that the substantive change to the definition of “parking lot” in § 10-501 of the Zoning Code applies retrospectively to the approval requirements for the parking lot at issue here. ⁶⁷⁴ Applying the change enacted in Ordinance 04-855 retrospectively to the present case renders moot Petitioners’ present challenge to the issuance of the parking lot authorization to Cresmont without a validly enacted conditional use ordinance.

As we explained, supra in footnote 15, Ordinance 04-855 amended the definition of “parking lot” in § 10-501 of the Zoning Code to provide: In this subtitle, “parking lot” means land used for the nonaccessoiy off-street parking of 3 or more motor vehicles, together with the adjoining and perimeter areas required by this subtitle or by any other law of Baltimore City. (emphasis added). Thus, the change excludes accessory parking lots from the separate ordinance requirement of § 10-504 because the “parking lot” to which § 10-504 now refers no longer would embrace accessory parking lots. Simply put, the separate ordinance requirement of Title 10 of the Zoning Code, the requirement that supported previously Petitioners’ present challenge, no longer stands as a hurdle to Cresmont’s construction and use of the parking lot here.

See, e.g., Suter v. Stuckey, 402 Md. 211, 219-20 , 935 A.2d 731, 736 (2007) (“A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.” (citing Dep’t of Human Res. v. Roth, 398 Md. 137, 143 , 919 A.2d 1217, 1221 (2007); Att’y Gen. v. Anne Arundel County Sch. Bus Contractors Ass’n, 286 Md. 324, 327 , 407 A.2d 749, 752 (1979))). B. Petitioners’ Exceptions to Ordinance 04-855 Rendering Their Challenge Moot Petitioners advance three considerations which, they allege, spare their present challenge from being moot: (1) the parking lot may not be “accessory”; (2) the parking lot cannot be an “accessory” use to an unlawful or non-permitted structure; and (3) two other sections of the Zoning Code act as a prohibition against non-permitted or unauthorized uses of land or erection of structures from becoming permitted or made lawful due to subsequent text amendments to the Zoning ⁶⁷⁵ Code. We reject Petitioners’ considerations for the reasons that follow. 1.

Is The Parking Lot “Accessory”? Petitioners assert that “[i]t is a fallacy to assume or presume that the parking for ... Cresmont [Loft] is ‘accessory,’ ” and that “[such a] determination cannot be made based on the record of this matter.” (emphasis in original) (footnote omitted). Petitioners’ apparent position is that no determination has been made previously on this record as to whether the parking lot at issue falls under the Zoning Code’s definition of “accessory.” 20 Presumably, Petitioners want us to remand the case for that determination.

We decline the invitation. Although Petitioners’ argument that the City has not decided this question is not wholly untenable, it is in stark contrast to the intent and wording of Bill 03-1228, as well as the 4 December 2003 staff report of the Baltimore City Planning Commission. The “Recitals” section of Bill 03-1228 provides: Recitals The applicant, Cresmont Properties LLC, is the owner of 2807 Cresmont Avenue, which is located in the Parking Lot District. The owner has obtained a building permit to construct a 26-unit apartment building on the property that includes a 33-space accessory parking lot, and construction has commenced. ⁶⁷⁶ By long-standing administrative practice by the City, required accessory parking uses do not require a Parking Lot Ordinance.

Certain individuals are, however, contesting the practice in court. To expedite the development of the apartment building, the applicant requests that this Ordinance be granted, (emphasis added). Similarly, the Commission’s 4 December staff report stated: The applicants are requesting this conditional use [B]ill because several community residents have taken this project to court regarding the use of an alley, and because they are concerned about this same group challenging them regarding the Parking Lot District provisions in the Zoning Code. The City would not normally require this conditional use ordinance because the parking to be provided is accessory to the apartment building.

The applicants simply wish to ensure that they may proceed with their project and are willing to provide the higher level of scrutiny afforded the community in the ordinance process, if that would speed the project’s implementation. (emphasis added). The obvious intent of Bill 03-1228, as embodied in the “Recitals” section of the Bill, was to authorize Cresmont to proceed with its proposed development in accordance with the requirements of the Zoning Code, in particular § 10-201, which required accessory off-street parking to be provided for all newly-erected structures. 21 Before enactment of the change to the definition of “parking lot” in § 10-501 of the Zoning Code, the City was required by § 10-504 to issue an ordinance approving the use of land as a parking lot in the Parking Lot District—the District in which Cresmont’s development is situated. See discussion supra Part I.B. Therefore, implicit in the City Council’s understanding of the reason ⁶⁷⁷ for enacting Bill 03-1228, as declared in the Commission’s staff report, was the Council’s finding that the parking lot being approved and authenticated by the Bill was accessory to the apartment building being constructed.

Nothing in the record presented to this Court suggests that Petitioners challenged Bill 03-1228’s applicability to the parking lot at issue here on the ground that the City Council’s finding that the parking lot is accessory to the apartment building was erroneous, other than the bald assertions noted here. 2. Is The Parking Lot An Accessory Use To a Non-Pennitted Structure? Petitioners next assert that Apart from any and all other considerations, in order to constitute a permitted “accessory” use under § 1-102 of the Zoning [Code] ..., a parking lot must serve a permitted structure or use. There is no such thing as lawful or permitted “accessory” parking to an unlawful or nonpennitted structure or use.

Therefore, a threshold question to any determination of whether the parking lot at 2807 Cresmont Avenue is “accessory” or “non-accessory,” for purposes of any current or retrospective application of the 2005 text amendment, is the legal status of the structure or use allegedly served by the parking lot. The City has conveniently ignored this threshold question, which is the siibject of a separate case. Even if the development at 2807 Cresmont Avenue were to survive the [Petitioners’] Open Meetings Act and Judicial Review challenges to the March 2004 conditional use authorization which facilitated its construction, the legal status of the principal structure and its use has been raised in the [Petitioners’] separate action for judicial review relating to permits issued in 2004. That case is presently before this Court as September 2008, No. 106.

In that case, the [Petitioners] rely principally on a provision of the Baltimore City Zoning Ordinance expressly prohibiting the construction and use of a building far more than the number of families permitted under the bulk regulations. The [Peti ⁶⁷⁸ tioners] have diligently and consistently pursued this issue since May of 2004. Now that the separate action has reached this Court, should the permits for the principal structure at 2807 Cresmont Avenue and/or its use be deemed unlawful in that case, the already-constructed parking lot and related structures (fencing, light poles, etc.) would unquestionably constitute a “non-accessory” parking lot and could not escape the prerequisite of a lawfully granted conditional use authorization. If the parties hereto can agree on nothing else, they should at least agree that “non-accessory” parking lots in the Parking Lot District require conditional use authorization.

(emphasis in original) (citation and footnotes omitted). Petitioners do not offer any authority, in the Zoning Code or other source, in support of this assertion. The short answer to Petitioners’ contention is that we ruled against them today in their related, but separate, challenge to the apartment building as violating the Code’s prohibition against the construction and use of a building for more than the number of families permitted under the bulk regulations. Armstrong v. Mayor and City Council of Baltimore, — Md. ——, — A.2d-(2009) (No. 106, September Term, 2008) (slip op. at 80-88).

The disposition of that case settles before us the only contention pending that attacks the legality of the apartment building on zoning grounds. 3. Do Sections 1-202 and 3-306(a) of the .Zoning Code Forestall Mootness? Petitioners assert that two sections of the Zoning Code prohibit expressly retrospective application to the Cresmont development of the text amendment enacted under Ordinance 04-855. As this argument proceeds, application of the Baltimore City zoning scheme “as it exists” does not moot the validity of the authorization to construct the parking lot granted by the City Council through Ordinance 04-659 in March of 2004. ⁶⁷⁹ The first section of the Zoning Code upon which Petitioners rely is § 1-202.

Section 1-202 provides: Nothing in this article may be taken to be a consent, license, or permit to: (1) use any property; (2) locate, erect, or maintain any structure or facility; or (8) carry on any trade, industry, occupation, or activity. Petitioners maintain that under § 1-202, “no text amendment to the Zoning [Code] may be judicially determined to serve as, substitute for, or convey any construction or use permit.” Second, Petitioners pin their hopes on § 3-306(a). That section 22 provides: (a) Unlawful preexisting uses and structures. Any structure or use that is unlawfully existing: ⁶⁸⁰ (1) does not become lawful solely by the adoption of this article or any amendment to it; and (2) to any extent or manner that the unlawful structure or use is in conflict with the requirements of this article, that structure or use remains unlawful.

Petitioners argue that, by enacting §§ 1-202 and 3-306(a), 23 the City Council made a “legislative choice” to restrain itself from being able (1) to approve unlawfully a developer’s application for a conditional use authorization—here the parking lot ordinance, Ordinance 04-659—to allow construction to commence, and then (2) later amend the zoning text so as to relieve the need for its prior action. This application should be an exception to the Yorkdale rule, so it goes, because the operative effect of these sections is to prevent subsequent text amendments to the Zoning Code from legitimating previously enacted, but unlawful, authorizations to construct developments. 24 The City retorts that Petitioners misinterpret the intention of §§ 1-202 and 3-306(a) of the Zoning Code. With regard to ⁶⁸¹ § 1-202, the City contends that its plain meaning is simply that the existence of the Zoning Code, wherein lists of various uses of land are authorized (either as of right or by way of application to the Board or the City Council) does not eliminate the need for the use or structure to be in compliance with all other applicable laws and regulations, including obtaining the proper permits, or, in certain cases, obtaining a license or any other approval made necessary by some other pertinent part of the Baltimore City Code. The City describes that every decision by the Board recites similar language to inform applicants that even if an instant application is approved, the applicant, at a minimum, yet must obtain a permit from the pertinent authority.

With regard to § 3~306(a), the City imagines the logical extension of Petitioners’ interpretation to mean that any structure or use unlawful at the time of the 1971 recodification of the Zoning Code 25 (or any amendment thereafter) remains unlawful even if the Zoning Code is changed subsequently to permit such a structure or use. Petitioners’ interpretation, thus stated, is inconsistent with the legislative choice of the word “solely” in § 3-306(a)(l), or with § 3~306(a)(2)’s provision that “to any extent or manner that the unlawful structure or use is in conflict with the requirements of this article, that structure or use remains unlawful.” A more logical reading of “solely” in subsection (a)(1) and the language of subsection (a)(2), according to the City, is that if a structure or use once prohibited is then made a permitted use, pursuant to a text amendment, the amendment does not otherwise free the structure or use from compliance with other requirements of the Zoning Code. The City illustrates its interpretation of these sections: A hypothetical example of how this might work follows. Assume for the moment that in 1971 retail uses were prohibited in certain districts of the City but that the owner of a property in such a district was nonetheless using the ⁶⁸² property for retail.

Assume also that in 1971 the City Council, as part of its comprehensive rezoning of the City in that year, made retail a permitted use in the hypothetical property’s zoning district. Under [Petitioners’] theory of the meaning of § 3-306, the use of the property at issue would remain unlawful notwithstanding the change and the property would be forever locked into the prior zoning-scheme. This was surely not the intention of the drafters of the 1971 Zoning Code. After all, when they comprehensively rezoned the City in 1971, they specifically intended that their changes would eliminate the prior zoning scheme. [Petitioners’] theory would contravene that intention.

The City’s theory of the meaning of [§ 3-306(a) ] is that if the hypothetical use independently violated some other provision of the Zoning Code that had not been changed-e.g., setback requirements, floor area ratio, etc.-the use or structure would remain unlawful and would still have to adhere to this other requirement. Viewed in such manner, the City’s theory gives specific meaning to the use of the word “solely ” in § 3-306(a)(l) as well as the inclusion of the language in § 3—306(a)(2) as part of the provision. (emphasis in original). We agree with the City’s interpretation of § § 1-202 and 3-306(a) of the Zoning Code.

Although we are sympathetic to the Petitioners’ position here because Ordinance 04-659, the ordinance pursuant to which the parking lot was constructed actually, later correctly was found to have been enacted in violation of the Maryland Open Meetings Act, Petitioners’ interpretation of § § 1-202 and 3-306(a) is misguided. Use of the word “solely” in subsection (a)(1) of § 3-306 indicates an intention on the part of the City Council that any change to the Zoning Code that authorizes a structure or use that was not authorized properly under the Code prior to the text change does not otherwise free that use or structure from compliance -with any other pertinent requirements of the Code. Subsection (a)(2) affirms this intention by advising expressly that regardless of whether a change in the text of the Code authorizes the use or structure, that use or structure ⁶⁸³ remains unlawful so long as it is in conflict with the other requirements of the Code. Also, § 1-202 simply provides that the text of the Zoning Code does not eliminate the need for the applicant to comply with the other requirements of the Baltimore City Code, including obtaining the proper permits, and any other approvals from the appropriate authorities, as provided in the City Code. 26 Were we to agree with Petitioners’ interpretation, any change in the zoning text would not apply to any unlawful preexisting uses or structures to which the change in the text would be applicable.

For obvious practical reasons, illustrated in the City’s hypothetical, this is a result with which we cannot agree in the face of Yorkdale and Layton . 27 C. Attorney’s Fees under the Maryland Open Meetings Act Although we conclude that, under the Yorkdale rule, Petitioners’ challenge to the validity of the City Council’s authorization of the parking lot in Ordinance 04-659, in light of the Council’s subsequent enactment of Ordinance 04-855, is moot, this is so only insofar as their challenge seeks to undo the ⁶⁸⁴ validity of the parking lot at the Cresmont complex. Whether Petitioners are entitled to attorney’s fees and, if so, how much those fees should be, as awarded generally by the Circuit Court upon its conclusion that Petitioners’ proved that the Committee’s process leading to the adoption of Ordinance 04-659 violated the Maryland Open Meetings Act, is a separate and collateral consideration that remains to be decided finally by the trial judge. As noted at the outset of this opinion, we are not compelled here to reach the parties’ questions in this regard, because of our holding as to mootness; however, we shall comment (admittedly as dicta) on the issue for guidance when this matter is considered by the trial judge. The Maryland Open Meetings Act is found in the State Government Article in Title 10, Subtitle 5, §§ 10-501 to -512.

See, e.g., Md.Code, State Gov’t Art. § 10-512 (“This subtitle may be cited as the ‘Open Meetings Act.’.”). The Act provides, in § 10-510(c), that “[i]n an action under this section, it is presumed that the public body did not violate any provision of this subtitle, and the complainant has the burden of proving the violation.” Md.Code, State Gov’t Art., § 10-510(c). Subsection (d) of § 10-510 grants the following powers to a court hearing an action brought by a complainant alleging that a public body violated the Act: A court may: (1) consolidate a proceeding under tins section with another proceeding under this section or an appeal from the action of the public body; (2) issue an injunction; (3) determine the applicability of this subtitle to the discussions or decisions of public bodies; (4) if the court finds that a public body willfully failed to comply with § 10-505, § 10-506, § 10-507, or § 10-509(c) of this subtitle and that no other remedy is adequate, declare void the final action of the public body; (5) as part of its judgment: ⁶⁸⁵ (i) assess against any party reasonable counsel fees and other litigation expenses that the party who prevails in the action incurred; and (ii) require a reasonable bond to ensure the payment of the assessment; and (6) grant any other appropriate relief. Md.Code, State Gov’t Art., § 10-510(d).

In the present case, the Circuit Court determined that Petitioners proved that the Committee acted in violation of the Open Meetings Act. As part of its judgment, the Circuit Court awarded attorney’s fees generally, pursuant to § 10-510, to Petitioners. The Court of Special Appeals reversed the Circuit Court’s award of attorney’s fees. The intermediate appellate court opined that, because Petitioners “did not obtain any of the relief that they requested,” Petitioners were not “prevailing” parties under § 10-51 0(d)(5)®, and thus did not qualify for an award of attorney’s fees.

For the reasons that follow, we reverse the judgment of the Court of Special Appeals regarding the award of attorney’s fees. Section 10-510(d)(5)(i)’s provision for an attorney’s fees award in Open Meetings Act violation claims has been addressed by both Maryland appellate courts on several occasions. In Malamis v. Stein, 69 Md.App. 221 , 516 A.2d 1039 (1986), the Court of Special Appeals considered “whether a trial judge must award attorney fees and other litigation expenses to the prevailing party” in an action brought pursuant to the Open Meetings Act. Id. at 222 , 516 A.2d at 1040 .

The appellants in Malamis filed a petition in the Circuit Court challenging the actions of the Allegany County Board of Education in reaction to the flooding of one of the county schools. Id. at 222-23 , 516 A.2d at 1040 . The flooding of the school necessitated its closing and the reassignment of its students to other schools in Allegany County. Id. at 222-23 , 516 A.2d at 1040 .

Three days after the flooding incident, a meeting was held involving Board officials, parents, and students to discuss the relocation assignment options. Id. at 223 , 516 A.2d at 1040 . During the meeting, the School Superinten ⁶⁸⁶ dent informed those assembled that the final decision regarding reassignment of students would be made at a closed meeting to be held later that day. Id. at 223 , 516 A.2d at 1040 .

At the closed meeting, a final decision was reached, and that decision was ratified subsequently at a regularly scheduled public meeting. Id. at 223 , 516 A.2d at 1040 . Appellants alleged that the closed afternoon meeting violated the Open Meetings Act. Id. at 223 , 516 A.2d at 1040 .

They sought a declaration holding that the Board’s decision was invalid, an injunction against implementation of the plan, and an award of “the cost of this action, including reasonable attorneys’ fees.” Id. at 223-24 , 516 A.2d at 1040-41 . The trial court found that the Board violated the Open Meetings Act by having the closed hearing. Id. at 224 , 516 A.2d at 1041 . Consequently, the trial judge ordered the Board to conduct an open meeting for the purpose of adopting a plan of reassignment for the students.

Id. at 224 , 516 A.2d at 1041 . He did not void, however, the plan in effect, which was to remain in effect until a new plan was adopted. Id. at 224 , 516 A.2d at 1041 . Concerning appellants’ request for attorney’s fees, the trial judge ruled: The Act provides that the Court as part of its judgment may assess against any party reasonable counsel fees that the party who prevails in the action incurs.

The Court finds that while the Board failed to comply with the Sunshine Act its actions were not taken in bad faith nor with an intention to deceive the public. Rather, the Board acted to deal with an emergency