Billings v. County Council of Prince George's County

SALMON, Judge. The appellants in this zoning case are Dedra Billings, David B. Johnson, Michelle Coffee, Cheryl Corson, and Friends of Croom Civic Association. The appellees are the County Council of Prince George’s County, Maryland, sitting as the District Council (hereafter, “the District Council”) and Eastern Petroleum Corporation (“Eastern Petroleum”). Maryland Code (2003 Repl.Vol.) Article 28 § 8-106(e) reads: (e) Appeals authorized.—In Prince George’s County, any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, any civic or homeowners association representing property owners affected by a final district council decision, and, if aggrieved, the applicant may have judicial review of any final decision of the district council.

Proceedings for review shall be instituted by filing a petition in the Circuit Court of Prince George’s County within 30 days after service of the final decision of the district council, which may be served upon all persons of record at the district council’s hearing. Copies of the petition shall be served on the district council and all other persons of record in the manner provided by the rules of court. The filing of the petition does not stay enforcement of the district council’s decision; but the district council may do so, or the reviewing court may order a stay upon terms it deems proper. (Emphasis added.) Several questions are presented in this appeal, but one of them is novel, viz: When the District Council, after first ⁶⁵³ having notified the parties that it had elected to make the final decision in a zoning matter, but then withdraws its election to make the final decision, does the District Council’s withdrawal of its election amount to a “final decision” within the meaning of section 8—106(e)?

Appellants contend that a final decision, within the contemplation of section 8-106(e), was made in this case because the District Council’s action left them with no further recourse before that administrative agency. Appellees, on the other hand, contend that a “final decision,” as that term is used in section 8-106(e), was not made by the District Council when it withdrew its election. According to appellees, a “final decision” is: an action—quasi-legislative, see County Council v. Carl M. Freeman Associates, 281 Md. 70 , 376 A.2d 860 (1977), quasi-judicial, see Cox v. Prince George’s County, 86 Md.App. 179 , 586 A.2d 43 (1991), including a special exception action, e.g., County Council v. E.L.Gardner, Inc., 293 Md. 259 , 443 A.2d 114 (1982), Entzian v. Prince George’s County, 32 Md.App. 256 , 360 A.2d 6 (1976)—that conies to a conclusive result for or against a pi’operty owner. The Circuit Court for Prince George’s County agreed with appellees and dismissed appellants’ petition for judicial review on grounds, among others, that the court, under section 8-106(e) of Article 28, had no jurisdiction to consider appellants’ petition for judicial review.

For reasons set forth below we shall reverse the judgment entered in the circuit court that dismissed appellants’ petition for judicial review. I. Eastern Petroleum owns approximately 13 acres of land on the east side of Maryland Route 301 in Prince George’s County. The zoning actions here at issue involve 2.98 acres of the 13 acre parcel. The 2.98 acre parcel is located approximately 289 feet south of the intersection of Croom Road and Route 301.

That parcel is zoned C-S-C (Commercial Shopping Center) and is presently improved by a gas station with ⁶⁵⁴ two pump islands and a food and beverage store. The existing gas station constitutes a certified non-conforming use. Eastern Petroleum intends to expand the food and beverage store, modernize the gas station and add a car wash. More specifically, it wants ... to operate an eight (8) Multi Product Dispenser (“MPDs”) Gas Station with 16 fueling positions, under the BP logo.

It will operate in conjunction with a 4,224 square foot Food and Beverage Store (t/a “BP Connect”) that is permitted by right in the C-S-C Zone. Applicant also wishes to construct a diesel fuel dispenser, a stucco canopy, and a 1,300 square foot rollover automated Car Wash. 31 parking spaces are required for the uses and 34 are provided. To expand the gas station and to operate the car wash, Eastern Petroleum needed a special exception, which could be granted only if the requirements of Section 27-317 and 27-358 of the Prince George’s County zoning ordinance were satisfied. Eastern Petroleum also needed the approval of the Prince George’s County Planning Board (“the Board”) in order to allow it to depart from Design Standards (“DDS”) because the access drive to one of the loading spaces is only twenty-nine (29) feet from residentially zoned property and Prince George’s County zoning code section 27-579(b) requires that such an access drive be located at least fifty (50) feet away from any residential zone.

Accordingly, Eastern Petroleum filed with the Prince George’s County Planning Board a Design departure request of twenty-one (21) feet. The Board filed this request as “DDS 564.” DDS-564 was considered by the Board at a public hearing held on May 3, 2007. On May 31, 2007, the Board recommended approval of DDS-564. On June 5, 2007, the Board notified all interested persons of record of the Board’s actions.

The Board further advised those interested parties, in a letter dated June 5, 2007, as follows: This is to advise you that on May 31, 2007 the above-referenced application was acted upon by the Prince ⁶⁵⁵ George’s County Planning Board in accordance with the attached Resolution. The Planning Board’s decision will become final on July 5, 2007 (31 days after the date of this letter) unless: 1. Prior to this date, a written appeal is filed with the District Council for Prince George’s County by any person of record; or 2. Prior to this date, the District Council decides on its ami motion, to review the Planning Board’s decision.

(Emphasis added.) The appellants did not file an appeal to the District Council concerning the Planning Board’s actions in DDS-564 but, on June 21, 2007, the Clerk of the District Council sent out a notice to all persons of record. That notice read, in pertinent part, as follows: RE: DDS 564 BP Amoco Station (U.S. 301) (Companion Case: SE 4549—Pending Zoning Hearing Examiner’s Decision) On June 18, 2007, the County Council sitting as the District council elected to review the above referenced case. A notice of hearing will be sent to all parties of record, thirty days prior to the hearing dale. (Emphasis added.) Meanwhile, during the period that DDS-564 was pending before the Planning Board, Eastern Petroleum’s request for a Special Exception (hereafter “SE-4549”) to use 2.98 acres for a gasoline station and car wash was considered by Maurene Epps-Webb, a Prince George’s County Zoning Hearing Examiner (“ZHE”).

The ZHE held a public hearing to consider SE-4549 on May 2, 2007, and on September 4, 2007, filed a decision approving SE-4549, albeit with certain conditions attached. In an undated letter sent to all interested parties, the ZHE notified them of her decision and that the decision had been filed with the District Council on September 4, 2007, and “shall become final unless: 1) written appeal within thirty days of the above date is filed with the District Council by any ⁶⁵⁶ person of record or by the peoples Zoning Council; or 2) the District Council directs the case be transmitted to the Council for final disposition by the Council.” (Emphasis added). On September 28, 2007, the Clerk of the District Council sent out a notice concerning SE-4549 that read, in relevant part, as follows: On September 24, 2007, the County Council sitting as the District Council elected to make the final decision on the above referenced case. Should a hearing be scheduled, a notice of hearing will be sent to all parties of record thirty days prior to the hearing date.

The District Council never held a hearing in regard to either DDS-564 or SE-4549. Instead, on October 31, 2007, the District Council sent out two documents that were both titled: “NOTICE OF DISTRICT COUNCIL ACTION WITHDRAWING ELECTION TO MAKE FINAL DECISION.” In the Special Exception case the notice read: On October 22, 2007, the District Council withdrew the election to make final decision on the above referenced case. Therefore, the Zoning Hearing Examiner’s decision for Approval, with conditions is final. The notice filed in DDS-564 was worded as follows: On June 18, 2007, the District Council elected to review the above referenced case.

On October 22, 12007, the district Council withdrew the election to review the above referenced case. Therefore, the Planning Board’s decision of approval stands final. Within thirty (30) days of the date of the aforementioned notices, the appellants filed, in the Circuit Court for Prince George’s County, a petition for judicial review of the District Council’s actions in regard to SE-4549 and DDS-564. The District Council and Eastern Petroleum filed motions to dismiss the petition.

The appellees took the position that the circuit court did not have jurisdiction to consider the petition because no “final decision” within the contemplation of Article ⁶⁵⁷ 28, § 8-106(e) had been made. In a closely related argument, appellees contended that appellants had failed to exhaust all available administrative remedies because they never filed an appeal to the District Council concerning either the Planning Board’s decision in DDS-564 or the ZHE’s decision in SE-4549. In addition to the arguments already mentioned, Eastern Petroleum, citing Md. Rule 7-207(a), filed a motion to strike appellants’ July 1, 2008 memorandum of law; movant contended that appellants had filed their memorandum “almost three months after they were required to” do so. On October 3, 2008, the circuit court held a hearing to consider Eastern Petroleum’s motion to dismiss appellants’ petition for judicial review along with its motion to strike appellants’ memorandum of law.

The court, on October 7, 2008, signed an order that read, in relevant part, as follows: Upon consideration of Respondent, Eastern Petroleum Corporation’s, Motion to Strike and Motion to Dismiss, Petitioners’ Opposition thereto, and the oral arguments held on October 3, 2008, it is this 7th day of October, 2008, by the Circuit Court for Prince George’s County, Maryland, ORDERED that Respondent, Eastern Petroleum Corporation’s, Motion to Strike be, and the same is hereby, GRANTED; ORDERED that Petitioners’ Memorandum filed on July 1, 2008 be, and the same is hereby, STRICKEN; ORDERED that Respondent, Eastern Petroleum Corporation’s Motion to Dismiss Petitioners’ Petition for Judicial Review be, and the same is hereby, GRANTED; ORDERED that this Court lacks subject matter jurisdiction in this matter and pursuant to Maryland Rule 2~324(b), Petitioners’ Petition for Judicial Review shall be, and the same is hereby, DISMISSED with prejudice; ORDERED that this case be closed statistically. This timely appeal followed. ⁶⁵⁸ ISSUE I. Did the District Council Take Final Action In Regard To DDS-564 And SE-4549, When It Withdrew Its Election To Make The Final Decision In Both SE4549 and DDS-564? Before addressing, directly, the issue of whether a final decision was reached within the meaning of Article 28, section 8-106(e), it is useful to discuss whether the District Council had the right to first tell all interested parties that it would make the final decision in these matters and thereafter, without explanation, reverse its position and announce that it would not make the final decision. This issue is important because, as shown by the facts in the subject case, if the District Council is allowed to change its position in this manner, there is a great potential that interested parties could be lulled into a belief that a contemplated appeal was not needed inasmuch as the District Council had elected to decide the matter.

Section 27-312(a)(2)(e) of the Prince George’s County Ordinance provides, in pertinent part: (2) The Zoning Hearing Examiner’s decision on an application for Special Exception shall be final thirty (30) days after filing the written decision, except: ... (C) In any case where within thirty days after receipt of the Zoning Hearing Examiner’s decision, the district council, upon its own motion and by a majority vote of the full Council, elects to make the final decision on the case itself.... (Emphasis added.) As mentioned earlier, within thirty (30) days of the ZHE’s decision regarding SE-4549 the District Council elected to make the final decision in regard to that special exception request. Under the plain language of section 27-312(a)(2)(C), the ZHE’s decision in regard to the Special Exception was no longer final once the District Council announced that it would make the final decision. ⁶⁵⁹ The pertinent provisions of the Prince George’s County-Zoning Ordinance did not mandate that the District Council hold a hearing concerning SE-4549, but, as will be shown, infra, once it made the election to review the decision of the ZHE it was required to exercise original jurisdiction over the matter and, do one of four things: 1) approve the Special Exception, 2) approve the Special Exception with conditions, 3) remand to the ZHE, or 4) deny the application for Special Exception.

Our conclusion in this matter is based on section 27—812(f) of the Prince George’s Zoning Ordinance, which reads: Jurisdiction. (1) In deciding an appeal to the District Council, or Council election to review a decision made by the Zoning Hearing Examiner or the Planning Board, the Council shall exercise original jurisdiction. (2) For any appeal or review of a decision made by the Zoning Hearing Examiner or the Planning Board, the Council may, based on the record, approve, approve with conditions, remand, or deny the application. Section 27-141 of the Prince George’s County Zoning Ordinance reads as follows: Based on Record.

The final decision in any zoning case shall be based only on the evidence in the record, and shall be supported by specific written findings of basic facts and conclusions. In addition, the Council may take judicial notice of any evidence contained in the record of any earlier phase of the approval process relating to all or a portion of the same property, including the approval of a preliminary plat of subdivision. (Emphasis added.) The District Council, once it made its election to review the decision of the Zoning Hearing Examiner, did not comply with section 27-141 because it did not make any “specific written findings of basic facts and conclusions.” In regard to the special exception, it is therefore clear that the District Council ⁶⁶⁰ did not have the right to first elect to review the decision of the ZHE and thereby assume original jurisdiction, then reverse course and, without making written findings of basic facts and conclusions, simply decide not to make the final decision. What we have just said with respect to the District Council’s action in regard to the special exception request is equally applicable to its handling of DDS-564.

In regard to DDS-564, the District Council was required to exercise original jurisdiction over that appeal once it notified the parties that it had elected to review the Planning Board’s decision. And, as with the special exceptions, the District Council was required, based on the record, to either: 1) approve the DDS, 2) approve the DDS with conditions, 3) remand the DDS matter to the ZHE, or 4) deny the application for a DDS.