Boyds Civic Ass'n v. Montgomery County Council

MARVIN H. SMITH, Judge, Retired, Specially Assigned. The Montgomery County zoning ordinance provides for what is called a Mineral Resource Recovery Zone. It is in the nature of a floating zone. A prerequisite to adoption of that zone for any specific area is that the master plan for the area must designate the land as suitable for such a zone.

These two appeals involve an amendment to the ⁶⁸⁶ Boyds Master Plan providing that certain land is suitable for such a zone. In No. 62 we shall hold that property owners who contested the procedures leading to the designation of land adjacent to them on the Boyds Master Plan as suitable for such a zone presented an issue cognizable in a declaratory judgment action. In No. 100 we shall hold that the adoption of an amendment to the master plan by the Maryland-National Capital Park and Planning Commission and the Montgomery County Council is not a contested case within the meaning of the Administrative Procedure Act and hence that the attempted appeal from such action was properly dismissed. I—No. 62 Boyds Civic Association and seven individual property owners brought an action for declaratory judgment in the Circuit Court for Montgomery County.

The Maryland-National Capital Park and Planning Commission and the Montgomery County Council sitting as the District Council for that portion of the Maryland-Washington Regional District located within Montgomery County were named as defendants. 1 Rockville Crushed Stone, Inc., the owner of the land in question, was granted permission to enter the proceeding as a party defendant. As this appeal was taken from an order dismissing the complaint, the facts summarized here are culled from the pleadings. 2 The sole issue before us is whether a justiciable controversy exists. ⁶⁸⁷ Boyds, a rural community in northern Montgomery County, comprises some 3,085 acres and is the subject of a master plan duly approved and adopted in 1978. The individual parties plaintiff reside in Boyds “within sight and sound” of a 530-acre tract which Rockville Crushed Stone owns and upon which it wishes to operate a quarry. It may not do so, however, unless and until its land is rezoned from its current residential classification to that of a Mineral Resource Recovery Zone.

As we indicated at the outset, a prerequisite to the granting of such zoning is that the applicable masterplan recommend that use for the property in question. The Boyds Master Plan approved and adopted in 1978 contained no such recommendation for the Rockville Crushed Stone property. Rockville Crushed Stone commenced its efforts to obtain rezoning in 1981, by (1) filing a local zoning map amendment application with the District Council, and (2) requesting the Commission, through its Montgomery County Planning Board, to propose to the District Council that the 1978 Boyds Master Plan be amended to contain a recommendation of Mineral Resource Recovery Zone suitability for the land owned by Rockville Crushed Stone. Rockville was initially unsuccessful in its efforts.

Ultimately, however, the master plan was amended in February 1985 as requested by Rockville. 3 Petitioners contended in their complaint that the master plan amendment was approved and adopted in contraven ⁶⁸⁸ tion of state and county laws requiring notice and public hearings at certain stages of the amendment process. They sought in their action for declaratory judgment to have the trial court declare that the master plan amendment was “illegal, unlawful, invalid, of no force nor [sic] effect, and unconstitutional” because of these violations. The circuit court dismissed the claim as not presenting a justiciable controversy. The Court of Special Appeals affirmed in Boyds Civic Ass’n v. Montgomery County, 67 Md.App. 131 , 506 A.2d 675 (1986).

We granted certiorari in order that we might address the important public question here presented. The Court of Special Appeals reasoned: “Because the 1985 Amendment to the master plan merely authorizes but does not require the District Council to rezone the property with the MRR classification, it did not bestow upon RCS any right to use the property in a way that would affect the rights of the appellants]. Compare Anne Arundel County v. Ebersberger, [ 62 Md.App. 360 , 489 A.2d 96 (1985) ]____ On the date appellants] filed [their] complaint, the situation clearly was one where the court was being asked to decide future rights in anticipation of an event—the rezoning to MRR— which might never take place. Accordingly, we hold that the trial court correctly determined there to be no justiciable controversy.

See Ebersberger, supra. See also Tanner v. McKeldin, 202 Md. 569 , 97 A.2d 449 (1953).” 67 Md.App. at 144 , 506 A.2d at 682 (emphasis in original; citation omitted). As indicated, this proceeding was brought under the Maryland version of the Uniform Declaratory Judgments Act, which was altered slightly in language when it became Maryland Code (1974) §§ 3-401 to -415, Courts and Judicial Proceedings Article. Section 3-402 provides that the subtitle is remedial and “[i]ts purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” To this end “[i]t shall be liberally construed and administered.” Section 3-406 provides: ⁶⁸⁹ “Any person interested under a deed, will, trust, land patent, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, administrative rule or regulation, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, administrative rule or regulation, land patent, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.” With an exception not relevant to this proceeding, § 3-409(a) provides in pertinent part: “(a) In general.—... [A] court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: “(1) An actual controversy exists between contending parties; “(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or “(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.” Section 3-409(b) states that if a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under the declaratory judgment subtitle.

Section 3-409(c) provides that a party may obtain a declaratory judgment or decree notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, whether or not recognized or regulated by statute. On numerous occasions, we have observed that under the statute “the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action.” Hatt v. Anderson, 297 Md. 42, 45 , 464 A.2d 1076, 1078 (1983); accord, e.g., Harford County v. Schultz, 280 Md. 77, 80-87 , 371 A.2d 428, 430-33 (1977); ⁶⁹⁰ Reyes v. Prince George’s County, 281 Md. 279, 287-88 , 380 A.2d 12, 17 (1977); Hamilton v. McAuliffe, 277 Md. 336, 339-40 , 353 A.2d 634, 637 (1976). It follows, therefore, that in the absence of a justiciable controversy a court should not entertain an action for declaratory judgment. This Court has defined a justiciable controversy as one wherein “there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.” Patuxent Co. v. Commissioners, 212 Md. 543, 548 , 129 A.2d 847, 849 (1957) (emphasis added) (quoting 1 W.H. Anderson, Actions for Declaratory Judgments § 17 (2d ed. 1951)); accord Hatt, 297 Md. at 45-46 , 464 A.2d at 1078 ; Harford County, 280 Md. at 81 , 371 A.2d at 430 ; Reyes, 281 Md. at 288 , 380 A.2d at 17 ; Pr.

George’s Co. v. Bd. of Trustees, 269 Md. 9, 12 , 304 A.2d 228, 230 (1973). In Hatt , Chief Judge Murphy cautioned for the Court that addressing non-justiciable issues “would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.” 297 Md. at 46 , 464 A.2d at 1078 . Borchard describes justiciability as a concept embodying “numerous hurdles.” E. Borchard, Declaratory Judgments 770 (2d ed. 1941). In the present case, the uncleared “hurdle,” in the view of respondents, the Court of Special Appeals, and the trial judge, is that of ripeness.

Generally, an action for declaratory relief lacks ripeness if it involves a request that the court “ ‘declare the rights of parties upon a state of facts which has not yet arisen, [or] upon a matter which is future, contingent and uncertain.’ ” Brown v. Trustees of M.E. Church, 181 Md. 80, 87 , 28 A.2d 582, 586 (1942) (quoting Wahl v. Brewer, 80 Md. 237, 243 , 30 A. 654, 655 (1894)). In a similar vein the Court said in Tanner v. McKeldin, 202 Md. 569 , 97 A.2d 449 (1953): “In a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may never happen, but will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision.” 202 Md. at 579 , 97 A.2d at 454 . ⁶⁹¹ Accord Liss v. Goodman, 224 Md. 173, 177 , 167 A.2d 123, 125 (1961) (and cases cited therein). It may be said then that the purpose of the ripeness doctrine is to ensure that adjudication will dispose of an actual controversy in a conclusive and binding manner. Especially in the context of a declaratory judgment action, ripeness can become an elusive concept.

One of the primary objectives of the Act is to “relieve litigants of the rule of the common law that no declaration of rights may be judicially adjudged unless a right has been violated____” Davis v. State, 183 Md. 385, 388 , 37 A.2d 880, 883 (1944). At the same time, the ripeness doctrine prohibits adjudication if the violation is but “future, contingent and uncertain.” Borchard thus poses the question: “When are the facts sufficiently developed to admit of a conclusive adjudication, and when are they so contingent and uncertain as to justify a refusal to decide? Again, no a priori answer is possible. The only safe guide is an analysis of the precedents in which declaratory judgments have been granted and declined.” E. Borchard, supra, at 56.

In some situations, the existence or nonexistence of ripeness is a question of degree. To borrow a term coined by the Supreme Court of Pennsylvania, if a court is satisfied that the “ripening seeds” of an actual controversy exist, the facts are not too contingent or speculative for declaratory relief. Kariher’s Petition (No. 1), 284 Pa. 455, 471 , 131 A. 265, 271 (1925). Borchard explains: “By ‘ripening seeds’ the court meant, not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of the full-blown battle which looms ahead.

It describes a state of facts indicating ‘imminent’ and ‘inevitable’ litigation, provided the issue is not settled and stabilized by a tranquilizing declaration.” E. Borchard, supra, at 57. ⁶⁹² He continues: “The imminence and practical certainty of the act or event in issue, or the intent, capacity, and power to perform, create justiciability as clearly as the completed act or event, and is generally easily distinguishable from remote, contingent, and uncertain events that may never happen and upon which it would be improper to pass as operative facts.” Id. at 60. To date, the doctrine of ripeness as it applies to declaratory judgment actions has figured in only a handful of decisions by Maryland’s appellate courts. In Hatt, 297 Md. 42 , 464 A.2d 1076 , a fire fighter sought a declaration of invalidity as to a county fire department regulation which prohibited criticism of superior officers. We held that the circuit court should have dismissed the complaint for lack of a justiciable issue.

Any violation of Hatt’s rights was, at that point, merely speculative: “There is no allegation that the regulation has been, or is threatened to be interpreted or applied by Klasmeier in any particular way. Nor does Hatt assert that any of his claimed free speech rights are actually being disputed, challenged or contested by the Fire Administrator. There is no indication that Hatt has been ordered to do, or not do, anything under the regulation, either in his individual capacity as a firefighter, or as president of the county firefighters’ association. At most, Hatt speculates as to what might happen under the regulation if he criticizes his superior officers.” 297 Md. at 47 , 464 A.2d at 1079 (footnote omitted).

On the issue of ripeness, the case of Hamilton v. McAuliffe, 277 Md. 336 , 353 A.2d 634 , is equally clear. Hamilton, a Jehovah’s Witness, was ordered by Judge John F. McAuliffe (then a judge of the Circuit Court for Montgomery County) to submit to an emergency blood transfusion. Eleven months later, Hamilton filed a declaratory judgment action in which he requested both a declaration that the judge’s order had been “erroneous” and an order preventing the judge “from presently and in the future ordering a blood transfusion for Mr. Hamilton.” 277 Md. 338 , 353 ⁶⁹³ A.2d at 636. The record contained no indication that Hamilton would require further transfusions in the future.

On this and other aspects of the case, the Court concluded that the record plainly evidenced a lack of justiciability. 277 Md. at 341 , 353 A.2d at 637 . Chief Judge Murphy added for the Court: “Whether an individual has the right to refuse a blood transfusion necessarily turns upon facts existing at the moment. See Anno., 9 A.L.R.3d 1391 (1966). The declaratory judgment process is therefore ill fitted as a vehicle to declare the rights of parties in future circumstances as yet unknown.” 277 Md. at 341 , 353 A.2d at 638 .

Tanner, 202 Md. 569 , 97 A.2d 449 , furnishes another illustration of a lack of ripeness. The complainants in that case resided upon land over which the United States exercised exclusive jurisdiction, except that Maryland retained the right to serve thereon all civil and criminal process of the courts of this State. The complainants sought a declaration of their status, rights, and obligations with respect to several matters, including voting rights, payment of State income tax, and applicability of State probate and testamentary law. 4 Our predecessors affirmed the trial court’s order sustaining a demurrer to the entire bill of complaint. Several of the issues were not justiciable because the complainants failed to allege the existence of a controversy.

At one point in the opinion Judge Delaplaine said for the Court: ⁶⁹⁴ “Complainants pray for advisory opinions on probate and testamentary laws and inheritance and estate taxes. In a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may never happen, but will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision. Petition of Kariher, 284 Pa. 455, 131 A. 265, 271 . Many things may happen before the death of complainants.

They may no longer be residents of Camp Detrick. They may not own any property subject to inheritance or estate taxes. The Federal Government may not be exercising jurisdiction over the Camp Detrick land. The testamentary laws may be changed.” 202 Md. at 579 , 97 A.2d at 454 .

On two occasions, this Court has held that declaratory judgment actions were not brought prematurely. In Brown, 181 Md. 80 , 28 A.2d 582 , remaindermen, life tenants, and an executor sought a declaration of their rights under a will and codicil which contained apparently conflicting provisions. The respondents objected on the ground that a declaration of the proper distribution of proceeds was premature so long as the life tenants remained alive. The Court acknowledged that a declaration concerning the proceeds would have no effect until the life tenancy ended.

However, noting that the purpose of the rule against premature actions is to ensure the requisite conclusiveness of an adjudication, the Court held the prematurity objection to be without merit: “[I]t is plain that the parties in the future will be the parties now before us, and that the parties now before us are of age and are competent to argue their right; in short, adjudication now will be conclusive and binding. For this reason, the prematurity objection seems without merit in view of the interest in settling the matter for personal representative’s benefit early in his administration of the estate.” 181 Md. at 88 , 28 A.2d at 586 . Liss, 224 Md. 173 , 167 A.2d 123 , involved a dispute between the Baltimore City Council and that city’s Board of ⁶⁹⁵ Estimates over their powers in budgetary matters. The City Council sought a declaration as to whether it had the authority to reject or return proposed budgets submitted to it by the Board of Estimates. 5 The case presented a question of ripeness because at the time the City Council sought the declaration, the Board of Estimates had not yet submitted the annual budget and there was no certainty that the City Council would even want to reject or return that particular budget.

The Court held the action ripe nonetheless. We explained: “But the power [to reject or return a budget] is claimed, and in the light of the past history we think it is a fair assumption that the power would be exercised, if found to exist.” 224 Md. at 177 , 167 A.2d at 125 . After noting that declaratory procedure should not be used to decide purely theoretical questions, Judge Henderson explained for the Court that the question before it was practical rather than theoretical: “The Council has asserted a right to reject or return the ordinance when submitted. To do so in the closing days of the year without a prior adjudication might well cause an impasse and seriously affect the City’s financial needs and obligations.

It would seem to be peculiarly appropriate to have the issue resolved in advance. Other courts have indicated that declaratory relief is appropriate where public agencies are at loggerheads.” 224 Md. at 177-78 , 167 A.2d at 125 . The Court of Special Appeals and the respondents perceive Anne Arundel County v. Ebersberger, 62 Md.App. 360 , 489 A.2d 96 (1985), as governing the instant case. See Boyds Civic Ass’n, 67 Md.App. at 144 , 506 A.2d at 682 .

In Ebersberger , a group of homeowners from the Indian Hills ⁶⁹⁶ community in Anne Arundel County challenged as unconstitutional and ultra vires a county ordinance which authorized their community association, on behalf of the Indian Hills Special Community Benefit District, to raise money for swimming pool renovation and maintenance. The Court of Special Appeals held that the action lacked ripeness. In so doing, it emphasized the fact that the ordinance merely authorized, but did not require, the renovations and the fact that there was no certainty the work would ever be done: “[T]he ... ordinance does not require the district to renovate the pool; it merely authorizes such work. Nor does it specify any particular means of financing the renovation.

There is certainly no assurance, from the record now before us, that a budget containing an appropriation for the pool will ever be approved or that a special benefit tax to support such an appropriation will ever be levied. “At least until the prospect of such an appropriation or such a tax becomes substantially more certain, the plaintiffs will have suffered no injury from the challenged ordinance, and its validity or invalidity is therefore of no practical consequence.” 62 Md.App. at 371 , 489 A.2d at 101-02 (emphasis