Colao v. COUNTY COUNCIL OF PRINCE GEORGE'S CTY.

WILNER, Judge. This appeal arises from two zoning decisions made by the Prince George’s County Council, sitting as a District Council pursuant to Maryland Code (1957, 1997 Repl.Vol.), § 8-101(a) of Article 28. Two procedural issues are before us: (1) whether the District Council was obliged to remand the two matters for a new hearing before the Zoning Hearing Examiner, rather than acting upon them, because a copy of the applicant’s Basic Plan was not in the Examiner’s file prior to the hearing that he had held on the matters, as required by § 27-187 of the Prince George’s County Code, and (2) whether appellants filed a timely petition for judicial review with respect to one of the two matters. The Court of Special Appeals answered both questions in the negative (Colao v. Prince George’s County, 109 Md.App. 431 , 675 A.2d 148 (1996)), as shall we.

I. PROCEDURAL REQUIREMENTS AND HISTORY A. The Applications On October 26, 1993, Northpeak-Race Track Limited Partnership (Northpeak) filed with the District Council two applications for zoning map amendments. Both applications were in furtherance of Northpeak’s desire to build a townhouse development and retail center on approximately 99 acres of land at the intersection of Route 197 and Race Track Road in the vicinity of Bowie, Maryland. A 30-acre tract, lying in the northwest quadrant of the intersection, was then zoned R-A (Rural Agricultural); the other 69 acres, lying in the southeast quadrant, were in R-R (Rural Residential) and R-A zones. Application No. A-9900 concerned the townhouse development and sought R-S (Residential-Suburban) zoning for the 30-acre tract in the northwest quadrant and 65 of the 69 acres in the southeast quadrant.

Northpeak proposed, initially, to ³⁴⁶ build 235 single-family attached homes on the 65-acre parcel and to leave the 30-acre parcel undeveloped. Application No. A-9901 dealt with the proposed retail center; it sought to have a four-acre parcel located within the 69-acre tract rezoned from R-R to L-A-C (Local Activity Center). The initial proposal was to build 20 single-family attached homes and 25,000 square feet of retail commercial space in the L-AC area. We were informed that a separate application was required for that parcel because a different zoning classification was requested (L-A-C as opposed to R-S).

Throughout the review process, however, the two applications were considered together; to some extent, they were based on the same supporting documents. B. Procedural Process and Requirements Under §§ 27-494 and 27-511 of the Prince George’s County Code, R-S and L-A-C zones are regarded as “comprehensive design zones.” The application and review process with respect to such zones is governed by §§ 27-179 through 27-198 of the Code. Section 27-179 prescribes what must be included in and with an application. Among other things, the application must include a copy of a Basic Plan setting forth the physical characteristics of the property, the general types of land uses proposed, the range of dwelling unit densities and commercial and industrial intensities proposed, a general vehicular and pedestrian circulation pattern and the general location of major access points, areas not proposed to be developed with residential, commercial, or industrial uses, the relationship of proposed development on the property to existing and planned development on surrounding properties, a forest stand delineation, and, when appropriate, the general location of proposed moderately priced dwelling units.

An application for L-A-C zoning must also include a construction schedule. § 27-179(c)(l)(D) & (E). There is no dispute, in this Court, that the two applications filed by Northpeak complied in every material respect with ³⁴⁷ the requirements of § 27-179. In particular, they included a reproducible copy of the Basic Plan. 1 Upon the filing of an application, the Zoning Hearing Examiner sets a date for a public hearing. § 27-185. Various notices are then given to interested persons and agencies.

The property is posted at least 60 days prior to the scheduled hearing (§ 27—186(b)); the Zoning Hearing Examiner notifies the applicant, all persons of record, any municipality located within one mile of any part of the property, and the Planning Board of the hearing date (§ 27—186(a)(1)); within 30 days after an application is filed, the Planning Board sends, by certified mail, a letter “regarding the pending application,” containing, among other things, advice on where to obtain additional information, to all adjoining property owners (§ 27-186(c)); 2 and, within 10 days after the end of each month, the Planning Board makes available to the publie a list of all map amendment applications filed during the month (§ 27-186(d)). There is no dispute in this Court that all of the notices required by § 27-186 were given in accordance with the ordinance. In addition to receiving comments from outside persons and agencies, the Planning Board receives a report on each application from its Technical Staff. § 27-189. Prior to preparing ³⁴⁸ its report, the Technical Staff sends a copy of the proposal to all public agencies and municipalities with operational or planning responsibility over the property.

A copy of the Technical Staff Report, which may be written only after responses from the public agencies and municipalities have been received, is sent to all persons of record and all other persons who request a copy. It must contain, among other things, the Technical Staffs- recommendation. Before any decision by the Zoning Hearing Examiner, the Planning Board holds its own hearing on the application. 3 § 27-191. The hearing, which is open to the public, may not be held until at least 30 days after the Technical Staff Report is received, and all persons who made a written request for the Technical Staff Report are notified of the hearing date.

Prior to the hearing, the applicant and any other person may submit written responses to the Technical Staff Report. At the conclusion of the hearing, the Planning Board, by resolution adopted at a public meeting, makes its recommendation on the application. § 27-192. A copy of the resolution is sent to the District Council and to all persons of record. The Zoning Hearing Examiner conducts a hearing in accordance with the procedures set forth in §§ 27-127 and 27-129, following which he prepares, serves on all persons of record, and files with the District Council a written report and recommended disposition.

Any person of record may file exceptions to the Examiner’s decision and a request for oral argument before the District Council. § 27-131(a). If a request for oral argument is made, it must be granted. § 27-131(c). Although no new evidence may be presented at the District Council hearing, the Council may remand a case to the Zoning Hearing Examiner “for the purpose of reopening the record to receive and evaluate additional evidence.” § 27-131(f). It may also remand a case “for clarification or for ³⁴⁹ additional testimony” and may remand a zoning map amendment case for a de novo hearing “where there is good cause and the applicant does not object.” § 27-133(a)(l).

Hearing procedures for the Council are set forth in § 27-132. If the application is for a comprehensive design zone, it may be approved only if it conforms in certain specific respects to the Master Plan. See §§ 27-195(b)(l)(A) and 27-132(c)(l)(C). Among other things and in relevant part, the applicant must satisfy the District Council that (1) the Basic Plan conforms to the specific recommendations of the General Plan map, the Area Master Plan map, or certain principles and guidelines of the plan text, (2) transportation facilities will be adequate to carry anticipated traffic and the proposed uses will not generate traffic that would lower the level of service anticipated by the land use and circulation systems shown on the approved General or Area Master Plans, and (3) environmental relationships reflect compatibility between the proposed general land use types and surrounding land uses. § 27-195(b)(l).

In approving a zoning map amendment, the District Council may impose reasonable requirements and safeguards in the form of conditions. § 27-195(c). C. Procedural History One of the issues, with particular reference to Application No. A-9900, was whether the proposed rezoning was in conformance with the regional Master Plan. That plan recommended that R-A zoning be retained for the 30-acre parcel in the northwest quadrant but that the 69-acre southeast parcel be rezoned to R-S for development at a density of 1.6 to 2.6 dwelling units per acre. As we observed, Northpeak proposed to dedicate the 30-acre parcel as a park and leave it undeveloped but to transfer from it to the southeastern tract the higher dwelling density allowed by the R-S zone.

That, it contended, would allow development of the southeastern tract to the allowable maximum of 2.6 units per acre and yet preserve the 30-acre parcel as parkland. Because the Zoning Hearing Examiner is required to consider the recommendation of the Planning Board and of any ³⁵⁰ municipalities having operational responsibilities with respect to the property, one might expect that, in the normal course, the hearing before the Examiner would await the conclusion of proceedings by those entities. In this case, due to a time constraint to which we shall shortly allude, that procedure was not followed exactly. The hearing before the Examiner was scheduled for March 2, 1994.

The Technical Staff filed its report on February 1, 1994. The City of Bowie did not transmit its recommendations until March 1, and the Planning Board did not hold its hearing and make its recommendation until March 10,1994. The Technical Staff report was extensive; it commented on the proposal, the requirements for approval, and the responses received from various public agencies. The Report recommended approval of the two applications, subject to certain stated conditions.

Among the conditions attached to the approval of Application No. A-9900 were (1) that the entire 30-acre tract be dedicated to the Maryland-National Capital Park and Planning Commission for public park use in accordance with the recommendations of the Bowie-Collington Master Plan, and (2) that development on the remaining 65 acres be limited to 200, rather than 235, attached single-family homes. Among the conditions proposed with respect to Application No. A-9901 were that development not exceed 20 single-family attached homes, 15,000 square feet of retail use, and 10,000 square feet of day care use. Attached as a proposed condition to the approval of both applications was that, prior to Comprehensive Design Plan approval and the issuance of building permits, certain road, intersection, and traffic design improvements be made. With those conditions, the Technical Staff was satisfied that the applications met the requirements for approval.

On March 1, 1994, the City of Bowie sent its recommendations with respect to the applications, along with three memoranda from the City Manager to the City Council, to the Zoning Hearing Examiner. Noting that it had conducted three public hearings on the two applications, the City recommended disapproval of Application No. A-9900 if it included ³⁵¹ the 30-acre parcel in the northwest quadrant but approval, subject to certain conditions, if that parcel were excluded, and approval, subject to certain conditions, of Application No. A-9901. Among the conditions attached to No. A-9901 was that the convenience center be limited to 15,000 square feet and that it contain within it a day care center. The City’s concern with No. A-9900 was principally that the 30-acre parcel remain as open space and be dedicated to a public agency, which, as noted, was a condition listed by the Technical Staff.

Immediately after the hearing on March 10, the Planning Board adopted Resolutions consistent with the Technical Staffs recommendations. In the Resolution identified as PGCPB No. 94-71, it recommended approval of Application No. A-9900, subject to the conditions stated therein, thus allowing development of 200 single-family attached homes. In Resolution PGCPB No. 94-72, it recommended approval of Application No. A-9901, subject to the conditions stated in that Resolution. As we indicated, the decision of the Zoning Hearing Examiner must await action by the Planning Board, whose recommendation is entitled to consideration.

Section 27—129(j) allows the Planning Board to request that the record before the Examiner remain open for up to 14 days for receipt of its recommendation. More significantly, for purposes of this case, § 27-187(a) requires that, at least 30 days before the Examiner’s hearing, the Planning Board must send to the District Council (and thus to the Zoning Hearing Examiner) “the original copy of the application, plans, maps, specifications, Technical Staff Report, and all other data, materials, and record evidence (to date) pertaining to the requested Map Amendment____” Section 27-187(b) requires that the original Map Amendment application file be available for public examination in the Office of the Zoning Hearing Examiner and that a copy of it be available for public examination in the Office of the Planning Board at least 30 days prior to the hearing. We are informed, without citation to any statutory basis, that the District Council is “required” to cease hearing zoning ³⁵² cases immediately prior to a general election, which, in 1994, would have required a moratorium after October 31, 1994, but that, on its own initiative, the Council had extended that moratorium to the spring immediately preceding a general election. Under the extended moratorium, the District Council determined not to hear any zoning case after May 23,1994.

In light of the time sequences for filing exceptions from the Zoning Hearing Examiner’s decision and setting a hearing before the District Council, that meant, as a practical matter, that the Zoning Hearing Examiner would have been required to file his decision in the matters by April 1,1994. 4 The hearing before the Zoning Hearing Examiner was advertised and scheduled for March 2, 1994. The Planning Board, of course, had not yet held its hearing or formulated its recommendation. Moreover, because February had only 28 days, the Technical Staff Report, which was filed on February 1, 1994, had not been in the Zoning Hearing Examiner’s file for a full 30 days, as required by § 27-187(a)(l). More significantly, there was apparently a blizzard of some kind on March 2, causing a number of county offices to be closed or operated with only emergency crews, and, because of that, the Zoning Hearing Examiner decided to do no more than place certain documents into evidence and then continue the hearing to March 17, to allow interested persons an opportunity to appear.

That continuance resolved the problem with respect to the Technical Staff Report. It also alleviated the problem arising from the fact that counsel for petitioners, Mr. Dernoga, had only recently been retained. When the hearing resumed on March 17, testimony was presented concerning the Basic Plan, which had been amended in a number of respects, and with respect to the Traffic Study, ³⁵³ comments received from the various public agencies, and a market analysis and engineering study showing that the project was feasible from both an economic and engineering perspective. Mr. Dernoga raised several objections during that hearing to the fact that copies of the Basic Plan and the Traffic Study had not been in the Zoning Hearing Examiner’s file during the 30-day period preceding the hearing, a matter we shall address later in this Opinion.

The case was not completed on the 17th, so a final day of hearing occurred on March 21, 1994. That hearing was devoted principally to testimony from petitioners and other opponents of the project. The Zoning Hearing Examiner filed his decision on March 29, 1994, in the form of a 35-page document covering both applications. The Examiner noted at the beginning the difficulties caused by the time constraint arising from the District Council’s election year moratorium and made clear that, but for the need for haste, he would have referred the matter back to the Planning Board Staff for further consideration.

On the other hand, he expressed his confidence that “the recommendation herein is sound and supported by the record.” Much of the decision was taken up with long quotations from recommendations of the City of Bowie and the Technical Staff. The Examiner’s ultimate conclusion was that R-S zoning should be denied with respect to the northwestern 30-acre tract, that it should be granted with respect to the 65-acre tract subject to certain stated conditions, and that the four-acre tract should be rezoned to L-A-C, subject to stated conditions. Under the Examiner’s recommendation, 162 dwelling units would be authorized on the 65-acre tract, of which at least 11 would have to be detached dwellings. 5 An accompanying notice informed persons of record of their right to file exceptions and request oral argument before the District Council. ³⁵⁴ Neither side was entirely happy with the Zoning Hearing Examiner’s recommendations, and both filed exceptions. Northpeak objected only to the proposed disallowance of rezoning of the 30-acre parcel, but it later acquiesced in that proposal and, on May 17, 1994, withdrew its exceptions.

Through Mr. Dernoga, petitioners complained (1) that the Examiner commenced the hearing on March 2 in contravention of § 27-185(b), continued the hearing to March 17 without the notice required by § 27-186(a), and improperly failed to continue the March 17 hearing when it appeared that the Basic Plan and Northpeak’s Traffic Study were not in the Zoning Hearing Examiner’s file, as required by § 27-187, (2) that the impending moratorium did not permit the Examiner time to conduct a fair hearing, to remand the application to the Technical Staff, or to write legally sufficient findings of fact and conclusions of law, and (3) that Northpeak failed to demonstrate that the development conformed to the Master Plan, was economically justified, and was compatible with surrounding land uses. The District Council heard oral argument on petitioners’ exceptions on May 18, 1994. On May 23, it enacted separate ordinances effectively adopting the recommendations of the Zoning Hearing Examiner. In Zoning Ordinance No. 27-1994, the Council amended the Regional District Zoning Map by rezoning the 65-acre southeastern tract from R-R and RA to R-S, subject to the conditions recommended by the Examiner.

In Zoning Ordinance No. 28-1994, it amended the Zoning Map by rezoning the four-acre tract from R-R to LA-C, subject to the conditions recommended by the Examiner. On June 17, 1994, the Council adopted two additional ordinances, one with respect to each application, recording that Northpeak had duly consented in writing to the respective conditions, incorporating those consents into the Zoning Map amendments, and granting final conditional zoning approval. A separate notice of each ordinance, which was declared effective as of June 17, was sent to persons of record on June 22,1994. ³⁵⁵ On July 22, 1994—the last day allowed for doing so— petitioners filed a petition for review in the Circuit Court for Prince George’s County. The caption of the pleading identified the agency as the County Council of Prince George’s County, sitting as the District Council, but did not identify the case or the District Council case number.

The introductory paragraph of the petition stated that judicial review was sought “of the decision of the County Council of Prince George’s County, Maryland, Sitting as the District Council, Appellee, in the case of ZMA Nos. A-9901----” The petition recited that petitioners were parties to the proceedings before the District Council “on this matter” and that they were aggrieved by “the action” of the District Council. Pursuant to that petition, the District Council, on August 1, 1994, gave notice to all persons of record—52 persons in all—that petitioners had filed a petition for review “of the District Council’s approval of Zoning Map Amendment Application No. A-9901.” On the same day, it filed a response to the petition, stating that it intended to participate in the proceeding. On August 15, the court scheduled the case for argument on October 21, 1994. The record pertaining to Application No. A-9901 was filed with the court on September 20,1994.

On October 18, 1994—three days before the scheduled hearing—petitioners filed a Motion To Correct Petition And Record, in which they averred that, due to a clerical error, they had filed “an incorrectly captioned Petition for Review of ZMA Nos. A-9900 and A-9901.” The caption of the motion included the words, omitted from the Petition for Review, “IN THE CASE OF ZMA NOS. A-9900 AND A-9901.” Petitioners recited that the Basic Plan submitted by Northpeak encompassed both applications, that the Technical Staff Report covered both, and that both the Planning Board and the Zoning Hearing Examiner had conducted “joint evidentiary hearings” and rendered one decision covering both applications. They noted that, of the exceptions they had filed, four related to the hearings conducted on both applications, two related specifically to Application No. A-9900, and one related only to Application No. A-9901. They acknowledged that, ³⁵⁶ although a joint hearing was conducted by the District Council, separate approvals were issued for each application.

Through counsel, petitioners explained that the petition was drafted by counsel on July 21, 1994 on his home office computer, that, because he had no printer at home, the WordPerfect document was converted to a “text” document and faxed to counsel’s Annapolis office, so that it could be retyped, printed, and delivered to court by its due date—July 22. Petitioners stated that the original document drafted by counsel included the case numbers A-9900 and A-9901, but that, in the retyping, the reference to A-9900 was dropped due to a clerical error. They contended that, through a telephone conversation on July 21, counsel for Northpeak was aware that the petition was intended to cover both applications but that petitioners remained unaware of the clerical error. Asserting that no prejudice ensued from the error, they asked that the court “[cjorrect” the petition for review “to clarify that it applies to both ZMA Nos. A-9900 and A-9901” and that it order that the record be filed in ZMA No. 9900.

The District Council and Northpeak objected to petitioners’ attempt to expand their petition for review to include No. A-9900. First, on October 26, they moved to strike the motion. On November 2, they moved to dismiss the “appeal” in No. A-9900 as untimely and, in a separate paper, also filed an Opposition to petitioners’ motion. In their motion to strike and in an accompanying memorandum, they contended that the “appeal” had been noted only from the adoption of ZMA No. A-9901, that the time had expired for noting an “appeal” from No. A-9900, and that the court had no “jurisdiction” to add No. A-9900 to the caption or to entertain a petition for review in that matter.

Reciting some of the legislative history behind Maryland Rule 7-203, they urged that the 30-day period allowed for filing a petition for judicial review was in the nature of an absolute statute of limitations and that the court no longer had the authority it possessed under former Rule B5 to enlarge the time. ³⁵⁷ This new development caused the scheduled hearing to be postponed. On December 23,1994, the court granted petitioners’ motion and denied the motion to strike as moot. In its remarks from the bench, the court found that there had been a clerical mistake in the typing of the petition, that there had been “substantial compliance” in that the two applications had always been treated together, and that there had been no prejudice to the respondents. Although petitioners won the procedural battle, they ultimately lost on the merits, in the circuit court.

Five issues were presented to the court: whether the District Council provided sufficient specific findings of fact and conclusions of law in its two decisions, whether the Council erred in not remanding the case to the Zoning Hearing Examiner because the Basic Plan and the Traffic Study were missing from his file, whether there was substantial evidence in the record that the project would satisfy the conditions of § 27~195(b) of the county zoning law (Criteria for Approval), whether the Council erred in not remanding the case when the applicant amended its application, and whether the zoning process deprived petitioners of due process of law. After a further hearing on April 12, 1995, the court rejected petitioner’s arguments and affirmed the decisions of the District Council. On appeal by petitioners, the Court of Special Appeals concluded (1) that petitioners had failed to file a timely petition for judicial review of the Council’s approval of Application No. A-9900, that, accordingly, the circuit court had erred in granting petitioners’ motion to amend the petition for review to encompass that application, and that all other issues pertaining to that application were therefore moot, (2) that the District Council’s decision approving Application No. A-9901 lacked specific findings of fact and conclusions of law, and (3) that the other complaints as to Application No. A-9901, including the complaint that the District Council should have remanded the matters to the Zoning Hearing Examiner because of the missing documents from his file, were either without merit or were moot. Although the mandate of the court states that the judgment of the circuit court was affirmed in part and ³⁵⁸ reversed and remanded in part, it appears from the last part of the opinion that, for different reasons, the judgments were reversed in their entirety.

As to the judgment entered on Application No. A-9900, the appellate court declared that it was remanding with instructions to dismiss the petition for review; the judgment entered on Application No. A-9901 was reversed, and the case was remanded for further remand to the District Council “for a decision comporting with the legal principles explained herein.” Colao v. Prince George’s County, supra, 109 Md.App. at 474-75 , 675 A.2d at 170 . We granted petitioners’ petition for certiorari to consider the two questions presented therein: whether the Court of Special Appeals erred in concluding (1) that a timely petition for review was not filed with respect to Application A-9900, and (2) that the District Council was not obliged to remand the case to the Zoning Hearing Examiner because of the missing documents.

II

DISCUSSION A. Timeliness of Petition as to No. A-9900 Petitioners’ argument that their petition for review of Application No. A-9900 was timely is based, at its core, on the assertion that the omission of the petition filed on July 22, 1994 to refer to that application, being the product of a secretary’s typographical mistake, constituted a “clerical error.” From that, petitioners offer two alternative theories for sustaining the circuit court’s action. First, they suggest that the court should have looked to what they regard as the “correct