Calvert County Planning Commission v. Howlin Realty Management, Inc.

WILNER, Judge. The two issues before us are (1) whether the Calvert County Planning Commission was a proper party in the Circuit Court for Calvert County, in an action for judicial review of the Commission’s decision to rescind a subdivision approval it had granted three years earlier, and (2) whether the Commission provided due process to the owner of the subdivided lots in the hearing that it conducted on the matter. The Court of Special Appeals answered the first question in the affirmative and the second in the negative. We shall answer both in the affirmative and therefore reverse the judgment of the intermediate appellate court.

BACKGROUND The Calvert County Planning Commission was created in 1962, pursuant to the provisions of Article 66B of the Maryland Code. Among the powers vested in the Commission by that Article is the power to approve or disapprove subdivision plats. See §§ 5.01, 5.02, 5.04 of Article 66B. We are concerned here with the Hickory Creek Subdivision, which was created in 1993 by Claudette McLaughlin, William McLaughlin, and Eva Roth.

The preliminary plan, approved by the Commission in August, 1993, showed a 93-acre subdivision divided into 43 lots, with 50% open space and three separate recreation areas. The approval included a number of conditions, one of which stipulated that 3.931 acres of recreation area be provided pursuant to then-current § 5.83 of the ³⁰⁶ Calvert County Subdivision Regulations and that those recreation areas be dedicated to the lot owners of the proposed subdivision. In October, 1993, six final plats were approved by the Commission and recorded among the land records. Plat One contained Recreation Area A, consisting of 0.662 acre; Plat Two contained Recreation Area B, consisting of 1.643 acres; and Plat Six contained Recreation Area C, consisting of 1.626 acres.

In August, 1994, all of the lots in the subdivision, exclusive of roads, recreation areas, and common areas, were deeded to Edward Howlin. The McLaughlins and Roth continued to own the three recreation areas. Four months later, the county adopted a Recreational Fund Ordinance, which allowed developers of subdivisions containing less than 50 lots to pay a recreational fee to the county in lieu of providing on-site recreation areas. In July, 1995, the McLaughlins and Roth applied to convert the platted recreational areas into residential lots by paying the recreational fees provided for in the ordinance, in accordance with the revised provisions of § 5.83 of the Subdivision Regulations.

The Commission granted the request, subject to the condition that re-subdivision of the recreation areas conform to the county subdivision requirements. In September, 1995, Randy Barrett, a surveyor with the firm of Hugh W. Wilkerson & Assoc., filed an application with the Department of Planning and Zoning, on behalf of the owners of the three recreation lots, to convert Recreation Area A into one building lot and to subdivide Recreation Area B into three building lots. Recreation Area C would remain as an undeveloped recreation area. Although the subdivision regulations in effect at the time are not in the record before us, the parties agree that those regulations required, as a condition of approval, that the owners of all lots in the Hickory Creek Subdivision consent in writing to the conversion of Recreation Area A and the re-subdivision of Recreation Area B. By that time, Howlin had sold a number of the building lots to other people.

Barrett’s letter noted that some lots had already been conveyed and that others were under contract, ³⁰⁷ but he asserted that “[i]n each case an agreement was signed by the lot owners and contract purchasers acknowledging that they were aware that the recreation area would be subdivided into buildable lots” and that “[cjopies of all of the agreements are included with this application.” He stated that, because the lot owners and contract purchasers had no actual ownership interest in the recreation area, their signatures did not appear on the subdivision application, but that “their signed acknowledgments of the owner/applicants intent is provided in the agreements.” On April 17, 1996, without any apparent opposition, the Commission approved the application to re-subdivide Recreation Area B into three new building lots — Lots 44, 45, and 46. A year later, those lots were sold to Howlin Realty Management, Inc. (HRM). Soon thereafter, several of the residents noticed Recreation Area B being staked for building lots and made inquiry of the Commission, complaining that they had never consented to the re-subdivision of that area. The Commission staff responded in August, 1997, that “the required documentation was provided with the preliminary plan submission package” and that the documentation “was reviewed and deemed adequate.” In September, 1997, John Jones, an attorney retained by two of the residents, Mr. and Mrs. Bennett, informed the Commission that, in response to the August letter, he had inspected the Commission file and found that, although there were some written consents to the conversion of Recreation Area A, there were none to be found regarding the re-subdivision of Recreation Area B. The Bennetts, he said, had reviewed their own files and had not located any documents indicating their consent to the re-subdivision of Recreation Area B. The attorney further advised that, while at the Commission office, a call had been placed to Mr. Wilkerson’s office, asking that Mr. Barrett review his file for the missing consents, and that no response had been forthcoming.

Jones asked that his letter be treated as a formal request that the Commission (1) void or set aside the re-subdivision plat of Recreation Area B, based on the failure to provide evidence of ³⁰⁸ the consent of all parties whose interest in that area vested prior to the submission, and (2) refrain from issuing any building permits on the lots created by the re-subdivision plat. At Jones’s request, the Commission scheduled a hearing on the matter for the evening of October 15,1997. On the morning of the 15th, HRM filed an action in the Circuit Court for Calvert County to enjoin the proceeding. The record in that case is not in the record now before us, but it appears that, among other things, HRM complained that (1) the Commission had no authority to reopen the matter, the Bennetts only remedy having been to seek judicial review of the initial decision, and (2) it was likely to be denied due process because it was not aware of how the Commission intended to proceed, in part because the Commission had failed to adopt any rules that would govern the proceeding.

The court denied the requested injunction. At the commencement of the hearing later that evening, counsel to the Commission attempted to deal with some of the procedural issues. He advised the Commission that, because the previous approval was presumed to be valid, the burden would be on the Bennetts to prove otherwise, to show that there was some fraud, mistake, or irregularity in the approval in that required written consents had not been obtained. He observed that, if the Commission were so to find, it might then have to deal with the rights of any intervening bona fide purchasers of the re-subdivided lots.

Counsel told the Commission that “fair play has to be accorded to everyone” — that there was no rule book, but that there were requirements of “fundamental fairness in due process of law.” Witnesses, if any, were to be sworn, and would be subject to direct and cross-examination. HRM asked the Commission not to proceed because it was unaware of what the procedure would be — whether the hearing would be informal or involve the taking of evidence — and that “we have no clue as to what’s going on.” He complained again that the Commission had failed to adopt regulations or rules of procedure and that the Commission had no authority to reopen the matter. In response to a formal request from HRM, the Commission deter ³⁰⁹ mined that it intended to conduct an evidentiary hearing on the merits of the issue and would first hear from Mr. Jones, counsel for the Bennetts. Prior to any testimony, the relevant plats and Mr. Barrett’s letter were placed into evidence, along with several deeds and agreements that were found in the Commission’s file.

The deeds were for the conveyance of lots in the Hickory Creek subdivision to Gilchrist and Dredger, Johnson, Stone, Dickerson, and the Bennetts. The agreements were from Gilchrist, Dredger, and Dickerson, each of whom consented to any future subdivision of Recreation Area A. John Bennett testified that he and his wife purchased Lot 23 — three lots away from Recreation Area B — in July, 1995, that he had no recollection of ever consenting to a re-subdivision of that Area, and that, although he asked about that area during the contract negotiations, he did not recall any discussion about Recreation Area B being re-subdivided. Bennett acknowledged that it was possible that one of the several documents he signed at settlement was a consent to the re-subdivision of Recreation Area B, but he said he had no recollection of any such document and that it was not discussed. Mrs. Bennett gave similar testimony.

Mr. Dickerson identified his deed, conveying Lot 38 to him in March, 1995, and his agreement consenting to the re-subdivision of Recreation Area A, but testified that he never consented to the re-subdivision of Recreation Area B. Like the Bennetts, he acknowledged that it was possible that, among the various documents he signed, there was a consent regarding Recreation Area B. Frank Jaklitsch, the Secretary to the Commission, advised that the staff does not check to see if all required consents are obtained but usually relies on the owner’s representation: “when they come in, and they represent and they’re saying that they got everybody agreeing to this, we take them on their face value.” Mr. Barrett, the author of the application, stated that he did not, himself, collect the signatures. Rather, he said, representatives from one of the Howlin entities, in the person of one John Weeks, “were in charge of getting the signatures on those forms.” Barrett never met with the lot ³¹⁰ owners and could not state whether a consent had ever been obtained from the Bennetts or from Dickerson. He added that he would never intentionally submit an incorrect document to the Commission. In response to Mr. Barrett’s testimony, Mr. Bennett and Mr. Dickerson stated that no one, including John Weeks, ever approached them with regard to Recreation Area B. At that point, the hearing was continued until February 18, 1998, supposedly to allow HRM time to prepare further cross-examination.

When the hearing reconvened, HRM waived further cross-examination but renewed its motion to dismiss the proceeding on the grounds that no regulations were in effect making clear that the Commission had authority to reopen the matter or specifying the procedure to be followed. A particular complaint in that regard was that it was uncertain whether the Bennetts were required to prove their case by “clear and convincing evidence or only by a preponderance of the evidence. When that motion was denied, HRM made another, based on an alleged insufficiency of Mr. Jones’s letter to state a cause of action; it too was denied. Mr. Jaklitsch, recalled by HRM, testified that Travis Clark was the Commission employee who reviewed the application in question and that he was a very diligent person who would not process an application that was not fully documented.

Jaklitsch again noted, however, that the staff had “no real way of checking to see that all of the owners have signed it” and that Clark “would have to take the surveyor or applicant’s word.” He could verify that the owners had signed the consents submitted but not whether consents had been obtained from all of the owners. Michael Rodevick, an engineer with a company called Advanced Surveys, testified that he had been asked to resubmit documents previously submitted to the Commission, the inference presumably being that the Commission had misplaced the original documents. Mr. Barrett testified that he had searched through his files and had been unable to locate either a copy of the letter he had sent to the Commission or copies of any attachments to that letter. He, too, stated that he had been asked to resubmit documents to ³¹¹ the Commission.

The last item taken up was a dispute over the standard of proof required of the Bennetts: HRM contended that the standard was clear and convincing evidence; the Bennetts asserted that, whatever the standard was, they had met it. The Commission did not announce any decision on that issue. The Commission met again on the matter on March 18, 1998, at which time a motion was made and carried to rescind the earlier approval, based on a finding that one or more of the homeowners had not given the required consent. Nothing was said by any of the Commissioners about the standard of proof or about any fraud; they all simply said that their decision was based on their conclusion that the consents had not been given.

Counsel to the Commission added, after announcement of the result, that “based on that factual finding, that the board has made, that the prior approval was based on a misrepresentation of fact, whether intentional or negligent isn’t important for this purpose, but a misrepresentation of which, in a general sense, provides a ground for you to revoke the prior decision.” He added that, “[i]n a general sense, it amounts to fraud, although I had indicated to you, it’s not criminal fraud, or civil fraud, but a misrepresentation.” Counsel agreed to prepare a written document, although he advised that the motion just granted was effective. On April 17, 1998, the Commission approved a formal resolution, presumably prepared by its attorney, in which, after reciting some of the procedural history, it found as facts that: (1) “[a]ll of the property owners within the subdivision did not consent to the creation of a Transfer Zone, as required for the subdivision of Recreation Area B,” (2) the September, 1995 letter from Barrett contained “a misrepresentation of a material fact, ie., that all owners had, in fact, consented,” that although that misrepresentation may well have been negligent rather than intentional, arising out of misplaced reliance on Mr. Weeks, it nonetheless was relied on by the Planning & Zoning staff and by the Planning Commission in approving the re-subdivision, (3) the approval was therefore caused by misrepresentation constituting fraud within the meaning of Zon ³¹² ing Appeals Board v. McKinney, 174 Md. 551 , 199 A. 540 (1938) and Schultze v. Montgomery Co. Bd., 230 Md. 76 , 185 A.2d 502 (1962), and (4) there were no intervening rights of innocent third parties. Upon those findings and conclusions, it was resolved that the approval of the re-subdivision of Recreation Area B be rescinded and revoked. HRM sought judicial review of that ruling in the Circuit Court for Calvert County.

Both the Commission and the Bennetts opposed HRM’s petition and indicated their intent to participate in the proceeding. Relying largely on Zoning Appeals Board v. McKinney, supra, and Howard County v. Mangione, 47 Md.App. 350 , 423 A.2d 263 (1980), HRM moved to strike the Commission as a party on the ground that it had no standing to be a party to the review of one of its “quasi judicial decisions.” The Commission responded that the McKinney doctrine had been limited to agencies exercising only quasi-judicial functions, which was not the case with the Commission, and that, in any event, McKinney and Mangione merely precluded an agency from appealing a judgment of the Circuit Court reversing its decision, not from being a party in the Circuit Court. The Circuit Court was not impressed with the Commission’s response and entered an order striking it as a party. That victory proved to be a hollow one for HRM, however, as the court later affirmed the Commission’s decision on the merits.

The Court concluded that proceeding in the absence of adopted rules presented no due process violation, as urged by HRM, and that a finding of fraud justified the Commission in reopening and rescinding its earlier approval. The Court of Special Appeals, as noted, reached exactly opposite conclusions, holding that (1) the Commission was a proper party to the Circuit Court action, but (2) it had not afforded HRM due process of law. The first holding was premised on a finding that the Commission was not acting solely as a quasi-judicial body but had a strong public policy interest in the integrity of its subdivision approval. As to the due process claim, the intermediate appellate court held that, ³¹³ although the lack of written rules of procedure alone did not suffice to constitute a Constitutional violation, the lack of clarity up front regarding the standard of proof did have that effect.

In that regard, the court held that “[a]s a party to the hearing, Howlin was entitled to know what facts the property owners needed to prove to obtain a revocation of the resubdivision approval and the measure of proof by which they were required to prove those facts.” We granted the Commission’s petition for certiorari to determine whether the Court of Special Appeals erred in concluding that it had violated HRM’s due process rights, and we granted HRM’s petition to determine whether that court erred (1) in concluding that reversal was not justified by the Commission’s failure to adopt written regulations or rules of procedure, and (2) in holding that the Commission was a proper party in the Circuit Court. DISCUSSION Standing of the Commission HRM’s objection to the standing of the Commission in the Circuit Court stems from this Court’s pronouncements in McKinney, supra, a case, as we shall see, that has a dual significance in this appeal. In McKinney , the Baltimore City Board of Zoning Appeals denied an application for a permit to build a service station because the station would be located within 300 feet of a “building or structure used as a church,” which the zoning law prohibited. The church in question was located in the front room of a building that also contained a number of residential apartments.

After the board made its decision, but before written confirmation of it was mailed to the parties, the applicant leased the building in which the church was located and evicted the church. He then asked the board to reconsider its denial of the application, asserting that the impediment no longer existed. In fact, the impediment remained, as the church rented space in a loft across the street and was still within 300 feet of the proposed service station. The board, with new members, nonetheless, did ³¹⁴ reconsider its action and, reversing its earlier view, concluded that neither building was a “building or structure used as a church,” within the meaning of the zoning ordinance, and therefore entered an order approving the application.

The pastor of the church, McKinney, sought judicial review, naming as defendants the board and the building engineer. The applicant was permitted to intervene. After an evidentiary hearing, which was permitted under the then-current statute, the court reversed the board’s decision, holding (1) that the buildings did constitute buildings used as a church, in that the religious use was not required to be an exclusive one, and (2) that the board had no authority to reopen the matter after having finally decided the issue. The board, which, as noted, was a named party in the Circuit Court, noted an appeal to this Court.

McKinney moved to dismiss that appeal on the ground that the statute allowed only a party aggrieved by the court’s judgment to appeal and that the board could not be aggrieved by the reversal of its decision. The only person aggrieved, he argued, was the applicant, who had not joined the appeal. This Court found merit in that motion and dismissed the appeal. Although noting that the board exercised both quasi-judicial and legislative functions, we concluded that its principal duties were to hear and decide appeals from decisions of the building engineer and determine whether to grant special exceptions and variances.

After examining the laws governing its jurisdiction and operation, we concluded that the board “has no executive duties, it formulates no policies, its function is merely to find facts, to apply to those facts rules of law prescribed by the Legislature, and to announce the result,” and that, accordingly, “[i]t has no interest, personal or official, in the matters which come before it other than to decide them according to the law and the proved fact, and it is in no sense a party to such proceedings.” McKinney, supra, 174 Md. at 560-61 , 199 A. at 544 . We observed that there were some administrative agencies, such as the Public Service Commission and the former State ³¹⁵ Tax Commission, “the functions of which are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State’s interests,” but that, in those instances, the Legislature, by “clear and unmistakable language,” had conferred on them the right and duty to take part in such litigation. Id. at 561 , 199 A. at 545 . The zoning board, we held, was not such an agency, as no provision existed in the legislation authorizing it “to defend its own decisions on appeal or to take part in litigation concerning them.” Id. at 561-62 , 199 A. at 545 .

It had no more right to appeal than a justice of the peace or Worker’s Compensation Commission would have to appeal from the reversal of one of its decisions. The holding in McKinney , and its conceptual underpinning, held sway in this Court for more than 40 years, being confirmed in numerous cases. See, for example, Roeder v. Brown, 192 Md. 639 , 65 A.2d 333 (1949); Md. Pharmacy Board v. Peco, 234 Md. 200 , 198 A.2d 273 (1964); Subsequent Injury Fund v. Pack, 250 Md. 306 , 242 A.2d 506 (1968); Bd. of Ex. of Landscape, Arch. v. McWilliams, 270 Md. 383 , 311 A.2d 792 (1973); Maryland Board v. Armacost, 286 Md. 353 , 407 A.2d 1148 (1979); see also Insurance Comm’r v. Allstate Ins., 268 Md. 428 , 302 A.2d 200 (1973); Real Estate Comm’n v. Tyler, 268 Md. 641 , 303 A.2d 778 (1973). In more recent times, however, both this Court and the General Assembly have significantly constrained that doctrine.

As we pointed out in Consumer Protection v. Consumer Pub., 304 Md. 731, 743 , 501 A.2d 48, 54 (1985), the McKinney doctrine had never been applied to governing bodies or constitutional officers in the Executive Branch of the State Government, and, in that case, we declined to apply it to the Consumer Protection Division of the Attorney General’s Office, notwithstanding the lack of any specific statutory authority for the Division to appeal from a reversal or modification of its decision by a trial court. We concluded, in that regard, that the Consumer Protection Division, though clearly exercis ³¹⁶ ing quasi-judicial, adjudicative functions, was “not the kind of non-adversarial, quasi-judicial agency contemplated by McKinney, Peco and their progeny.” Consumer Protection, 304 Md. at 744 , 501 A.2d at 55 . The Division, we said, exercised a broad range of functions that were closely identified with the execution of public policy, and “[w]ith its many different functions, its mandate to protect consumers and its role as a representative of the interests of the State, the Division is not the type of agency to which the rationale of McKinney applies.” Id. at 746, 501 A.2d at 56 . It had a strong interest in the outcome of its case and was therefore aggrieved by the reversal of its order.

The criterion enunciated in Consumer Protection , though not conceptually different from that stated in McKinney , clearly constituted a refocusing on how the McKinney doctrine would be applied. In McKinney , we noted that the zoning board did have quasi-legislative functions and was charged with studying the zoning laws and municipal development in Baltimore City and making recommendations for changes in the laws. Our view was that those broader functions were essentially subservient to the board’s principal function of deciding appeals, special exceptions, and variances, which we treated as more or less exclusively quasi-judicial. The Consumer Protection Division of the Attorney General's Office also performed quasi-judicial functions, and, indeed, the order at issue was entered after a contested case hearing and had a quasi-judicial quality to it.

We looked, however, at the broader mission of the agency as one of implementing legislative public policy and regarded that as more important than whether the implementation happened to be in the form of a quasi-judicial determination. As noted, our holding was not based on any specific statutory authority to appeal, as alluded to in McKinney , but rather that, with the various policy functions performed by the Division, it was “not the type of agency to which the rationale of McKinney applies.” Consumer Protection, 304 Md. at 746 , 501 A.2d at 56 . That shift in focus is now well-established. In Department v. Bo Peep, 317 Md. 573 , 565 A.2d 1015 (1989), cert. denied, ³¹⁷ Cassilly v. Maryland Dep’t of Human Resources, 494 U.S. 1067 , 110 S.Ct. 1784 , 108 L.Ed.2d 786 (1990), we applied the reasoning of Consumer Protection to the child care licensing function of the State Department of Human Resources and found standing on the Department’s part to appeal the vacation of its decision to revoke Bo Peep’s day care license.

The role of the Department in that regard, we