Baltimore County v. Wesley Chapel Bluemount Ass'n

HOLLANDER, Judge. This appeal requires us to interpret provisions of the Open Meetings Act (“the Act”), codified at Maryland Code, §§ 10-501 to 10-512 of the State Government Article (1984, 1995 Repl.Vol.) (“S.G.”). Pursuant to S.G. § 10—503(b)(2), the Act is applicable to a public body when it meets to consider “a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” (Emphasis added). The question here is whether a county board of appeals’s consideration of a subdivision and development plan constitutes a meeting to consider a “zoning matter” within the meaning of the Act.

The Circuit Court for Baltimore County concluded that it was. As we disagree, we shall reverse. Gaylord Brooks Realty Co., Inc. (“Brooks”), appellee, a developer, submitted a concept plan to the Baltimore County Department of Public Works for a subdivision and development in northeastern Baltimore County, which was approved by a hearing officer. Two community associations, the Wesley Chapel Bluemount Association and the Manor Area Association, and various individuals who owned property in the vicini ⁵⁹⁰ ty of the development site, 1 - appellees (hereinafter referred to collectively as “Wesley Chapel”), appealed this decision to the Baltimore County Board of Appeals (the “Board”).

At the conclusion of that hearing, the Board declined Wesley Chapel’s request that it publicly deliberate. It later issued a written opinion affirming the decision of the hearing officer. Thereafter, Wesley Chapel sought review in the circuit court. Contemporaneously, Wesley Chapel filed against Baltimore County (“the County”), appellant, the Board, and the Baltimore County Executive, a petition to enforce the Act.

With leave of court, Brooks intervened. After a hearing on cross-motions for summary judgment, the trial judge concluded that the Board violated the Act by failing to deliberate in public. Accordingly, the court voided the Board’s action and remanded the case to the Board for further proceedings in open session. The court also ordered the County to pay attorneys’ fees to Wesley Chapel.

The court did not address the merits of the Board’s decision affirming the hearing officer. The County now appeals and presents four issues for our ■ consideration: I. Does the statutory language of the Open Meetings Act of Maryland reflect the intention of the General Assembly to limit the application of the statute to zoning cases, as opposed to all types of land use cases, where the language of the statute specifically excludes land use matters other than a “special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation or any other zoning matter”?

II

Does the public body “meet” within the parameters of the Open Meetings Act when, after having heard oral argument in an appeal from the hearing officer’s .decision approving a plan of subdivision development, the panel ⁵⁹¹ members: (1) agree, without further discussion, that the panel chairman shall draft a written opinion, as required by law; (2) the panel chairman circulates the draft to the other members who, without further discussion, agree that the draft opinion represents their views of the appeal; and (3) without further discussion, a final draft is prepared which each panel member signs?

III

Are the appellees entitled to attorneys’ fees, even assuming, arguendo, that the Board of Appeals met privately to consider a zoning matter in violation of the provisions of the Maryland Open Meetings Act?

IV

Assuming, arguendo, that the Board of Appeals met privately to consider a zoning matter in violation of the provisions of the Open Meetings Act, should this Court affirm the circuit court decision to invalidate effectively the resultant proceedings and opinion by the Board of Appeals? In addition, although it did not note a cross-appeal, Brooks has asked us to reach the merits of the Board’s decision affirming the hearing officer. Wesley Chapel opposes that request. We conclude that the hearing officer’s approval of Brooks’s subdivision and development plan did not constitute a “zoning matter” within the meaning of S.G. § 10—503(b)(2).

Therefore, the Board’s consideration of that matter was not subject to the Act. Accordingly, we shall reverse the judgment of the circuit court. Our conclusion makes it unnecessary for us to consider the County’s remaining issues. We shall also decline to consider Brooks’s contentions, because the circuit court did not consider the merits of the appeal.

Moreover, because Brooks failed to note a cross-appeal, Wesley Chapel has not had an opportunity to brief the issues that Brooks has raised. FACTUAL SUMMARY In June 1993, Brooks filed its concept plan with the County Department of Public Works. The plan proposed a subdivision and development to be known as “Wesley Chapel Woods,” with thirty-three single-family houses to be constructed on a ⁵⁹² rural parcel of land in northeastern Baltimore County, approximately 172.7 acres in size. At the time of the proceedings, the land was undeveloped and heavily forested.

The vast bulk of the property was zoned R.C.4, with a small portion zoned R.C.2. 2 In August and October, 1993 community input meetings were held with respect to Brooks’s concept plan. After the second meeting, Brooks submitted a development plan for the site, and a development plan conference was later conducted. At a public hearing 3 in June 1994, Wesley Chapel appeared in opposition to the development plan. The protestants raised a plethora of issues.

They contended that a Baltimore County zoning regulation required the performance of a groundwater study and that no such study had been performed. They also claimed that the plan could not proceed until the County Council adopted guidelines to implement “Bill 113-92,” a set of new zoning regulations that it had enacted in 1992. Additionally, they asserted that the area set aside under the plan for a “conservancy area” was too small, 4 and that the density of the ⁵⁹³ proposed lots was too great. Further, they attacked the application of County Bill 113-92 to the facts of the case, arguing that it “fails miserably” in its attempt “to protect and preserve R.C.4 zoned property,” because it allowed more density of lots on the proposed site than would have been permitted under the R.C.4 regulations.

The protestants also raised other contentions pertaining to vegetative clearing, the sufficiency of the local roads and infrastructure, septic and well design, storm water management, the content of the conservancy deed, and concerns involving a historical area, signage, lights, noise, and compatibility. In a written opinion dated July 7, 1994, the hearing officer approved most of the development plan, although he imposed some restrictions. 5 The hearing officer identified himself as a “zoning commissioner” beneath the space in which he signed his name. Wesley Chapel subsequently appealed to the Board, 6 which heard argument from counsel on August 31, 1994. 7 At the conclusion of the hearing, counsel for Wesley Chapel asked the Board to deliberate in public, pursuant to the Act. In support of his request, counsel submitted a copy of a letter from the Baltimore County People’s Counsel, dated August 4, 1994, ⁵⁹⁴ advising that the Act applied to hearings concerning development plans. 8 Nevertheless, the Board denied the request.

On September 15,1994, the Board issued its opinion, affirming the decision of the hearing officer. It stated that “the decision to approve the plan is supported by competent, material and substantial evidence, and that the record does not reflect in any manner that the Hearing Officer acted in any arbitrary or capricious manner, or exceeded his statutory authority, or committed any error of law.” 9 The Board also explained its denial of the request for public deliberations. The appeal that is being heard by the Board is a development plan appeal which was before the Hearing Officer and not the Zoning Commissioner for Baltimore County. No zoning petitions (i.e., special exceptions, variances, special hearings) were filed with the development plan; hence, there is no zoning matter before the Board in these proceedings.

This Board has previously ruled that appeals of development plans to this Board are not subject to the open meetings law unless they involve “other zoning matters.” It is pointed out that an open hearing was conducted on the record before this Board with regard to the appeal filed in this matter; however, this Board concludes that Section 10- ⁵⁹⁵ 503(b) does not apply as to the deliberation process since the Board is hearing a development plan appeal as opposed to a zoning matter appeal. Thereafter, Wesley Chapel sought judicial review in the circuit court. It also filed a petition to enforce the Act, in which it sought a declaration that the Act applied to the Board’s action. The petition and the appeal were consolidated.

At the hearing on cross-motions for summary judgment, Wesley Chapel claimed that the Board’s consideration of the development plan constituted a hearing on a “zoning matter,” within the meaning of S.G. § 10—503(b)(2), and that the Board’s failure to deliberate publicly amounted to “an intentional and willful act” performed “with the intention to avoid the application of the State Law concerning open meetings.” To support its claim of willfulness, it pointed to an earlier decision of the Circuit Court for Baltimore County that determined that the Board was required to conduct open deliberations in a zoning case. 10 It also sought to void the Board’s decision and recover attorneys’ fees and costs. In response, the County contended that the term “zoning matter” in S.G. § 10-503(b)(2) did not apply to a hearing on a development plan. Further, it argued that “[sjubdivision cases ... are intrinsically different from zoning cases.” The County also argued that, even if the Act applied, the Board did not “meet” in violation of the Act, because the Board neither deliberated nor discussed the issues presented in the appeal. In this regard, the County relied on an affidavit from the chairman of the Board, Michael B. Sauer, Esquire, in which he averred that, after the hearing, he and the other two panel members agreed that Sauer would draft an opinion and circulate it to them, which Sauer did.

The affidavit also stated that “[njeither Board member expressed any objection or any other comment to the draft other than that it was fine with ⁵⁹⁶ each,” and that “[t]here was absolutely no other discussion of any nature on either the draft or its members.” Sauer averred that he had an administrative assistant prepare' a final draft of the opinion, and that he then made revisions to correct spelling, grammar, and punctuation mistakes. All three members of the Board signed the final opinion. Additionally, the County asserted that the court should not void the Board’s decision. It stated that (1) any violation on the part of the Board was not a “willful” violation of the Act, which is a precondition to voiding an agency decision under S.G. § 10—510(d)(4), 11 and (2) voiding the decision “would serve no useful purpose because there is no conduct in which the Board engaged that ought to be punished.” The court determined that the Act imposed upon the Board the obligation to deliberate publicly.

The trial judge said that “since [the appeal hearing] did involve zoning matters,” the Board was “required to hold an open hearing on their deliberations.” The court also rejected the County’s contention that the Board had not conducted a closed “meeting” because Chairman Sauer had simply prepared and circulated a written opinion and there were no discussions on the issues. In a subsequent order, the court assessed attorneys’ fees of $2,387.78 in favor of Wesley Chapel and against the County, representing sixty-five percent of the amount that Wesley Chapel had requested. STANDARD OF REVIEW Summary judgment is governed by Rule 2-501, which provides that a court shall enter summary judgment on the motion of a party where “there is no genuine dispute as to any material fact and ... the party is entitled to judgment as a matter of law.” Md. Rule 2-501(e). In ruling upon the ⁵⁹⁷ motion, the court must view the facts, including all reasonable inferences from those facts, in the light most favorable to the opposing party.

Baltimore Gas and Electric Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995). The court does not decide disputed facts, but instead makes a ruling as a matter of law. Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); General Accident Insurance Co. v. Scott, 107 Md.App. 603, 611 , 669 A.2d 773 , cert. denied, 342 Md. 115 , 673 A.2d 707 (1996). Therefore, the standard of appellate review is whether the trial court was “legally correct.” Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993).

DISCUSSION I. We must determine whether review of a subdivision development plan constitutes a “zoning matter” within the meaning of the Act. In resolving this issue, we focus on the text of the Act and the principles of statutory construction. We conclude that the process by which a subdivision development plan is approved is not necessarily a “zoning matter” within the meaning of S.G. § 10-503(b)(2). We begin with S.G. § 10-501.

There, the General Assembly set forth the public policy embodied in the Act: (a) In general.—It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: (1) public business be performed in an open and public manner; and (2) citizens be allowed to observe: (i) the performance of public officials; and (ii) the deliberations and decisions that the making of public policy involves. (b) Accountability; faith; effectiveness.—(1) The ability of the public, its representatives, and the media to attend, report on, and broadcast meetings of public bodies and to ⁵⁹⁸ witness the phases of the deliberation, policy formation, and decision making of public bodies ensures the accountability of government to the citizens of the State. (2) The conduct of public business in open meetings increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society. (c) Public policy.—Except in special and appropriate circumstances when meetings of public bodies may be closed under this subtitle, it is the public policy of the State that the public be provided with adequate notice of the time and location of meetings of public bodies, which shall be held in places reasonably accessible to individuals who would like to attend these meetings.

(Boldface added; italics in original). Although the Act favors open meetings by public bodies, it is clear that the Legislature has specifically provided in S.G. § 10-501 that it does not apply in “special and appropriate circumstances.” Several other provisions of the Act are relevant to our resolution of the issue presented. S.G. § 10-505 broadly provides: “Except as otherwise expressly provided in this subtitle, a public body shall meet in open session.” The parties agree that the Board is a “public body” within the meaning of the statute. See S.G. § 10-502(h) (defining “public body”).

S.G. § 10-503(a)(l)(iii), which provides an exclusion from the scope of the Act, states: “Except as provided in subsection (b) of this section, this subtitle does not apply to ... a public body when it is carrying out ... a quasi-judicial function.” S.G. § 10—502(i), in turn, defines the term “quasi-judicial function” as a determination of: (1) a contested case to which Subtitle 2 of this title [the Administrative Procedure Act] applies; (2) a proceeding, before an administrative agency for which Chapter 1100, Subtitle B of the .Maryland Rules would ⁵⁹⁹ govern judicial review; [12] or (3) a complaint by the [State Open Meetings Law Compliance] Board in accordance with this subtitle. The parties agree that the Board was exercising a “quasi-judicial function” in this case. But S.G. § 10—503(b) provides an exception to the exemption for public bodies exercising a quasi-judicial function. The exception in S.G. § 10-503(b) is central to this case.

It provides: The provisions of this subtitle apply to a public body when it is meeting to consider: (1) granting a license or permit; or (2) a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter. (Emphasis supplied). Additionally, S.G. § 10-508(c) states: “The exceptions in subsection (a) of this section shall be strictly construed in favor of open meetings of public bodies.” (Emphasis supplied). But, by its terms, S.G. § 10-508(c) is limited in application to S.G. § 10-508(a).

That subsection, in turn, specifies the circumstances when closed sessions are permitted (such as meetings to consider the investment of public funds, meetings with counsel, collective bargaining negotiations, etc.). S.G. § 10-508(c) thus does not apply when, as here, an exception or exclusion not set forth in S.G. § 10-508(a) is alleged to apply. The fundamental goal of statutory construction is to ascertain and effectuate the intention of the Legislature. Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995).

The primary source for determining legislative intent is the language of the statute. In re Douglas P., 333 Md. 387, 392 , 635 A.2d 427 (1994); Vest v. Giant Food Stores, Inc., 329 Md. 461, 466 , 620 A.2d 340 (1993). We will read the statute in a natural ⁶⁰⁰ and sensible fashion, assigning the words of the statute their ordinary and commonly understood meanings, absent evidence that the General Assembly intended a different meaning. Board of Trustees of Maryland State Retirement and Pension Systems v. Hughes, 340 Md. 1, 7 , 664 A.2d 1250 (1995); In re Roger S., 338 Md. 385, 391 , 658 A.2d 696 (1995). “[W]hen there is no ambiguity or obscurity in the language of the statute, there is no need to look elsewhere to ascertain the intent of the legislative body.” Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994).

In the absence of an ambiguity, the courts “ ‘are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning.’ ” Fikar v. Montgomery County, 333 Md. 430, 434-35 , 635 A.2d 977 (1994), quoting Potter v. Bethesda Fire Department, 309 Md. 347, 353 , 524 A.2d 61 (1987). When the language of the statute is ambiguous, however, courts must look beyond the words of the statute and to other evidence of legislative intent. Gargliano v. State, 334 Md. 428, 438-39 , 639 A.2d 675 (1994). The court should then consider, “ ‘not only the literal or usual meaning of the words, but [also] their meaning and effect in light of the setting, the objectives and purpose of the enactment.’ ” Whack v. State, 338 Md. 665, 672 , 659 A.2d 1347 (1995), quoting Gargliano, 334 Md. at 436 , 639 A.2d 675 .

We may thus “consider the consequences resulting from one meaning, rather than another, and adopt the construction which promotes the most reasonable result in light of’ the statute’s purpose. Rucker v. Comptroller of the Treasury, 315 Md. 559, 565 , 555 A.2d 1060 (1989). In all cases, however, “[c]are must be taken to avoid construing a statute by forced or subtle interpretations.” Houston v. Safeway Stores, Inc., 109 Md.App. 177, 184 , 674 A.2d 87 (1996). See also In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 557 , 640 A.2d 1085 (1994) (“A plainly worded statute must be construed without forced interpretations designed to limit its application.”). ⁶⁰¹ Nor will we read a statutory provision in isolation.

Rather, we must consider the statutory scheme as a whole, as well as the purpose of the statute. Department of Public Safety and Correctional Services v. Howard, 339 Md. 357, 369 , 663 A.2d 74 (1995); Ward v. Department of Public Safety and Correctional Services, 339 Md. 343, 351-52 , 663 A.2d 66 (1995); Outmezguine v. State, 335 Md. 20, 41 , 641 A.2d 870 (1994). Moreover, when there is a specific statutory provision on point, a court has no choice but to apply the specific provision, rather than the general one. See Snyder v. State, 189 Md. 167, 170 , 55 A.2d 485 (1947) (courts must determine legislative intent from the language of the statute at issue, and not from any general statement of policy).

See also Department of Economic and Employment Development v. Taylor, 108 Md. App. 250, 276 , 671 A.2d 523 (1996) (only the specific grounds for disqualification from unemployment benefits may be used to deny claimant’s entitlement to benefits, and not the general policy provision; incongruities between the general policy provision and the disqualification provision may be eliminated only by the Legislature). The issue here focuses on the meaning of the word “zoning.” As we have noted, Wesley Chapel contends that review of a development plan constitutes a “zoning matter.” Quoting the People’s Counsel, Wesley Chapel states: “Like many words, the word ‘zoning’ may have particular meaning in various contexts. Historically, it is a generic term virtually synonymous with land use law.” Accordingly, Wesley Chapel asserts that “[z]oning means planning, zoning, and subdivision regulations.” (Italics omitted). We disagree.

In our view, the term “zoning” has a specific and commonly understood meaning in the eyes of the law. Although the concepts of “zoning” and subdivision control are related and even cross paths at times, they are nonetheless separate and distinct. The review of a subdivision development plan is not, in and of itself, a “zoning matter” within the meaning of S.G. § 10-503(b)(2). ⁶⁰² ■ “Zoning by its definition is ‘the division of a city or town by legislative regulation into districts and the prescription and application in each district of regulations having to do with structural and architectural designs ... and ... use [of] buildings.’ ” Neufeld v. City of Baltimore, 863 F.Supp. 255, 260 (D.Md.1994), aff'd without published opinion, 70 F.3d 1262 (4th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1852 , 134 L.Ed.2d 952 (quoting Black’s Law Dictionary 1618 (2nd ed.1985)). “Zoning” is defined in Black’s Law Dictionary 1618 (6th ed.1990) as: The division of a city or town by legislative regulation into districts and the prescription and application in each district of regulations having to do with structural and architectural designs of buildings and of regulations prescribing [the] use to which buildings within designated districts may be put. Division of land into zones, and within those zones, regulation of both the nature of land usage and the physical dimensions of uses including height setbacks and minimum area.

Webster’s Third New International Dictionary (1976) defines the verb “zone,” in relevant part, as “to partition (a city, borough, or township) by ordinance into zones or sections reserved for different purposes (as residence, business, or manufacturing or combinations of these) and governed by appropriate building regulations (as of the height and area of all structures).” Id. at 2660. The Court of Appeals has recognized that the term “zoning” “describe[s] the process of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses designed in some degree to serve the interests of the whole territory affected by the plan.” Applestein v. Mayor & City Council of Baltimore, 156 Md. 40, 51 , 143 A. 666 (1928). “ ‘The very essence of zoning is territorial division according to the character of the land and the buildings, their peculiar suitability for particular uses, and uniformity of use within the zone.’ ” Northwest Merchants Terminal v. O’Rourke, 191 Md. 171, 190 , 60 A.2d 743 (1948), quoting Heath v. Mayor & City Council of Baltimore, 187 Md. 296, 305 , 49 ⁶⁰³ A.2d 799 (1946). More recently, the Court has stated that “[z]oning provides a tool by which to establish general areas or districts devoted to selected uses.” Schultz v. Pritts, 291 Md. 1, 20 , 432 A.2d 1319 (1981) (emphasis supplied). Indeed, the Court has remarked that the devotion of general areas or districts to selected uses is the “purpose” of the zoning law.

Ellicott v. Mayor & City Council of Baltimore, 180 Md. 176, 181 , 23 A.2d 649 (1942). We have also stated that “the function of zoning is to preserve various types of neighborhoods, be they residential, industrial, commercial, or historical.” Montgomery County v. Harman, 46 Md.App. 491, 497-98 , 418 A.2d 1249 (1980). In contrast, “subdivision control” pertains to land use control. Black’s Law Dictionary, supra, defines “subdivision” as: “Division into smaller parts of the same thing or subject matter.

The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development.” Id. at 1424. Local governments regulate the development of subdivisions, but in a process that is distinct from the notion of “zoning.” Case law recognizes the distinction between zoning and subdivision control. In Board of County Commissioners of Cecil County v. Gaster, 285 Md. 233 , 401 A.2d 666 (1979), in the course of an extensive discussion of development control, the Court stated: “There are three integral parts of adequate land planning, the master plan, zoning, and subdivision regulations.” Id. at 246 , 401 A.2d 666 . It noted further that “ ‘zoning ordinances are not calculated to protect the community from the financial loss which may result from imperfect development.

Some of these purposes are sought through the imposition of subdivision controls.’ ” Id. (quoting 4 R. Anderson, American Law of Zoning § 23.03 (2nd ed.1977)). The Court also quoted from the report of a commission on the reform of Maryland’s planning and zoning laws, which stated that § 3.05 of Article 66B of the Code “ ‘is designed to assert the full force of the [master] plan as being the foundation upon which zoning, subdivision, and other land use regulatory ⁶⁰⁴ devices shall be constructed.’ ” Id., 285 Md. at 241 , 401 A.2d 666 . (Emphasis supplied).

In Clarke v. County Commissioners for Carroll County, 270 Md. 343 , 311 A.2d 417 (1973), the Court held that a county planning and zoning commission’s approval of a subdivision plan, by which the houses proposed for construction were permissible under the applicable zoning regulations, did not constitute a “rezoning” of the land (which would have been a legislative act beyond the commission’s authority). The Court stated that the Commission’s approval of the plan “was not an ‘illegal’ rezoning, but merely the approval of a subdivision plan in accordance with Art. 66B, the zoning ordinance and the subdivision regulations.” Id., 270 Md. at 350 , 311 A.2d 417 . Similarly, courts in other jurisdictions have held, under their local statutes, that boards of zoning appeals do not have the authority to regulate or control the subdivision of land. See Van Deusen v. Jackson, 35 A.D.2d 58 , 312 N.Y.S.2d 853, 858 (N.Y.App.Div.1970), aff'd, 28 N.Y.2d 608 , 319 N.Y.S.2d 855 , 268 N.E.2d 650 (1971); Noonan v. Zoning Board of Review of Town of Barrington, 90 R.I. 466 , 159 A.2d 606, 608 (1960).

These distinctions necessarily rest upon differences between zoning and subdivision control as land use regulation devices. The distinction between zoning and subdivision control may also be analogized to the distinction between zoning and “planning,” a separate aspect of land use control. In essence, “zoning” pertains primarily to the use of property, whereas “planning” is a broader concept that connotes the development of a community. 101A C.J.S. Zoning and Planning § 5 at 34 (1979). See Black’s Law Dictionary, supra, at 880 (defining “land use planning” as a “[gjeneric term used to describe activities such as zoning, control of real estate developments and use, environmental impact studies and the like”).

The Court of Appeals has acknowledged that the terms “are not synonymous.” Board of County Commissioners of Carroll County v. Stephans, 286 Md. 384, 389 , 408 A.2d 1017 (1979). In Howard County v. Dorsey, 292 Md. 351, 362 , 438