Baltimore County v. Wesley Chapel Bluemount Ass'n

ADKINS, Judge. This case is an appeal from a judgment of the Circuit Court for Baltimore County awarding attorneys’ fees to Wesley Chapel Bluemount Association (Wesley Chapel), appellee, in connection with its successful litigation against Baltimore County (the County), appellant, establishing a violation of the Open Meetings Act, Md.Code (1984, 1995 RephVol.), §§ 10-501 to 10-512 of the State Government Article (SG). Appellant contends that the court erred in: 1) imposing the burden of proof upon Baltimore County to establish that Wesley Chapel should not be awarded attorneys’ fees; 2) awarding attorneys’ fees to Wesley Chapel after finding that Wesley Chapel had not established any of the justifying factors enunciated by the Court of Appeals in Wesley Chapel Bluemount Ass’n v. Baltimore County, 347 Md. 125 , 699 A.2d 434 (1997); and 3) refusing to grant Baltimore County’s motion for summary judgment. We agree with appellant’s first contention, and disagree with its second and third contentions.

Accordingly, the judgment of the circuit court is affirmed in part and reversed in part. We vacate the award of attorneys’ fees and remand the case to the circuit court for further proceedings consistent with this opinion. FACTS AND LEGAL PROCEEDINGS This case originated when Gaylord Brooks Realty Co., Inc., a developer, submitted a concept plan to the Baltimore County Department of Public Works for a subdivision and development in Baltimore County. When the plan was approved by a hearing officer, Wesley Chapel, various nearby property owners, and another community association appealed the decision ¹⁸³ to the Baltimore County Board of Appeals (Board) and requested that the Board conduct open deliberations pursuant to the Open Meetings Act.

The Board declined Wesley Chapel’s request that it publicly deliberate, and affirmed the hearing officer’s approval of the development plan. It later issued a written opinion, stating that a hearing on a development plan that did not involve a special exception, variance, or special hearing did not require open deliberations under the “other zoning matter” provision of the Open Meetings Act. Thereafter, Wesley Chapel sought review of the Board’s holding in the circuit court. Contemporaneously, Wesley Chapel filed a petition against the County, the Board, and the Baltimore County Executive, to enforce the Open Meetings Act.

The two actions were consolidated. After a hearing on cross-motions for summary judgment, the trial judge concluded that the Board violated the Open Meetings Act by failing to deliberate in public. Accordingly, the court vacated the Board’s decision and remanded the case to the Board for further proceedings in open session. The court also ordered the County to pay Wesley Chapel sixty-five percent of the submitted bill for attorneys’ fees.

The court did not address the merits of the Board’s decision affirming the hearing officer. The present case is the second appeal in this case. In the first appeal, the County challenged the decision of the trial court regarding the applicability of the Open Meetings Act, and the award of attorneys’ fees to Wesley Chapel. This Court reversed the trial court on the ground that the review of a development plan is not a “zoning matter” under the Open Meetings Act, and therefore, public deliberation was not mandated.

See Baltimore v. Wesley Chapel Bluemount Ass’n, 110 Md.App. 585, 591 , 678 A.2d 100 (1996), rev’d, 347 Md. 125 , 699 A.2d 434 (1997). Because of the reversal, we did not address the attorneys’ fees issue. Wesley Chapel, the property owners, and the other community association appealed our decision to the Court of Appeals. ¹⁸⁴ The Court of Appeals reversed this Court and held that the Open Meetings Act required the Board to deliberate in public when considering a subdivision development plan, which constitutes “a kind of ‘other zoning matter’ intended to be included within” the Open Meetings Act. Wesley Chapel, 347 Md. at 148 , 699 A.2d 434 .

The Court directed that we remand the case to the circuit court for further proceedings to determine whether: 1) the violation of the Open Meetings Act justified vacating the Board’s order; and 2) the violation justified an award of attorneys’ fees. See id. at 149-50, 699 A.2d 434 . With regard to the issue of attorneys’ fees, the Court of Appeals said: Although, as we have indicated, an assessment of attorney’s fees under § 10 — 510(d)(5) does not depend on a finding of willfulness, the animus of the board, if any, would certainly be a factor to consider. We do not believe that the Legislature intended for such assessments to be automatic upon a finding of a violation, for that would require the diversion of scarce public funds for fee-shifting purposes merely because a public body guessed wrong on the eventual outcome of a legal issue.

Courts considering fee assessments need to take into account, among other things, whether, how, and when the issue of a closed session or other prospective violation was presented to the public body, the basis, if any, the public body gave for concluding that its action was permissible under the [Open Meetings] Act, whether that basis was a reasonable one under the law and the circumstances, whether the amounts claimed are reasonable, and the extent to which all parties acted in good faith. Id. While the case was pending before the Court of Appeals, the developer and appellees entered into an agreement for the approval of an alternate development plan for the subdivision and development. This agreement rendered moot the first issue, and left pending only the matter of attorneys’ fees.

Upon remand to the circuit court, the County moved for summary judgment on the issue of attorneys’ fees. Wesley ¹⁸⁵ Chapel answered and filed a cross-motion for summary judgment. The circuit court denied the motions, and, after an evidentiary hearing on August 4,1998, the court announced its decision, reviewing the pertinent factors mentioned by the Court of Appeals. It first considered whether there was animus: ‘The animus of the Board, if any, would certainly be a factor to consider.’ I never thought that they were evil intentioned.

I certainly thought ... that they ... should have known that anything involving zoning ... had to be deliberated in open. But then again, you never asked them to just deliberate the zoning aspect of it. You asked them to do everything.... So I have to be mindful of the fact that ... animus is to be considered; and I just can’t find any....

There is no ill-will. The court also found that the Board acted in good faith. Having concluded that the Board had no animus and acted in good faith, the court focused on a more difficult task: the determination of whether the shared viewpoint of the Board, this Court, and in part, the circuit court, was reasonable. The court concluded that the Board’s position was a reasonable one: Whether the basis was a reasonable one under the law and circumstances.’ ...

Was their position a reasonable one? To me it was unreasonable to suspect that zoning somehow was not going to be open because that was very, very clear. Was it reasonable to say that otherwise the development process was closed? It has to be viewed as reasonable when the Court of Special Appeals agreed with them, I think, and I agreed with them---- After extensive dialogue between the court and counsel, the court made its final ruling and awarded sixty-five percent of the fee requested.

It stated: All right. My award is seven thousand dollars. There is no animus. There is no absence of good faith.

It is not ¹⁸⁶ automatic. The Board was not completely reasonable. The position of the Board was an outright situation of we ain’t going to hear it. And you can’t get away from the fact that everybody agrees that part of this was zoning.

The Board closed them off completely and said we don’t care what it is, we are not going to hear it. That is not reasonable. The situation is that there was no effort to make an accommodation. The Board should not and the County should not be charged with paying the whole fee because there is some room for differences of opinion here.

There are some problems with it. In my opinion, looking at the bill and listening to [Wesley Chapel’s attorney’s] testimony and seeing it, the bill as submitted was reasonable for the work that was done. It is just that the absence of factors in my opinion that would show animus or a lack of good faith means that [Wesley Chapel] had to pay part of the toll to win their case in the Court of Appeals. The County appeals from the written order effectuating this ruling.

Additional facts will be added as necessary to supplement our decision. DISCUSSION I. Standard Applied by Trial Court When Awarding Attorneys’ Fees Section 10 — 510(d)(5) of the Open Meetings Act authorizes the assessment of attorneys’ fees in favor of a prevailing party. See SG § 10-510(d)(5). The Court of Appeals has not yet enunciated a comprehensive standard to be applied in considering attorneys’ fee requests under the Open Meetings Act.

In its opinion in the first appeal of this case, the Court of Appeals mentioned several factors to be considered upon such a request for fees, but indicated that there were other, unspec ¹⁸⁷ ified factors. See Wesley Chapel, 347 Md. at 149-50 , 699 A.2d 434 . 1 Upon remand, the circuit court considered the factors directed by the Court of Appeals. In doing so, however, it adopted a new rule of its own, creating a rebuttable presumption that the prevailing party is automatically entitled to attorneys’ fees. It couched this presumption in terms of a burden of proof.

During argument, the court announced this new “rule”: I rule that it is not [Wesley Chapel’s] burden. I rule that it is [the County’s burden]. The Court [of Appeals] didn’t say that. To my way of thinking, they have been done in and the situation is that it then shifts to the County to tell why you [held a closed session].

The Court of Appeals has said that the County did wrong. [The County] lost---- In my way of thinking, [Wesley Chapel] win[s], unless [the County] can convince me otherwise. I’m most respectfully telling [Baltimore County] that it is [its] burden. We characterize the court’s ruling as a presumption because it does not fit neatly within any of the three categories commonly considered to be burdens of proof: the burden of pleading, the burden of production of evidence, or the burden of persuasion. See 5 Lynn McLain, Maryland Evidence § 300.1, at 132 (1987).

Regardless of how its ruling is characterized, what the trial court did was to presume that the prevailing party would be entitled to attorneys’ fees absent a showing of special circumstances justifying the denial of an award. ¹⁸⁸ The County argues that the trial court erred in applying this presumption, and we agree. At issue here is a question of statutory construction and public policy: under what circumstances should the public body bear the cost of litigating controversies over the interpretation of the Open Meetings Act. Although the issue has not been clearly decided, the Court of Appeals, as well as this Court, have been reluctant to routinely shift this burden to the public body. In Malamis v. Stein, 69 Md.App. 221 , 516 A.2d 1039 (1986), this Court decided that an award of fees to the prevailing party under SG § 10-510(e)(5)(i) was not mandatory.

Rather, we concluded that the Legislature intended that trial judges “determine, in their discretion, whether the circumstances warrant the award of attorney’s fees or other