County Council of Prince George's County v. Dutcher

ADKINS, Judge. We must decide whether a valid appeal to this Court was timely filed when, pursuant to custom, but without explicit authority, the attorney for the County Council of Prince George’s County, Maryland, Sitting as the District Council (“District Council”), appellant, noted an appeal from a circuit court decision reversing a decision of the District Council. For the reasons that follow, we hold that appellant did not file a timely appeal to this Court, and shall therefore dismiss the appeal. FACTS On May 21, 1996, Bob Dutcher, appellee, filed an application with the Maryland-National Capital Park and Planning Commission for approval of the preliminary plan of a subdivision.

The property, Brooke-Jane Manor, Section 6, is an 8.83 parcel of land located at the end of Brooke-Jane Drive, west of Brandywine Road in Prince George’s. County. , The property lies south of the intersection of Surratts Road and Branch Avenue, the main intersection serving the property. Appellee planned to divide the property into twenty lots for single family homes. Pursuant to Prince George’s County Code (“PGCC”) section 24-124, appellee was required to show the Prince George’s County Planning Board (“Planning Board”) that there would be adequate access to roads to serve traffic that would be generated by the subdivision, and that the “traffic generated by the proposed subdivision will be accommodated on major intersections and major roadways ... such that they will be functioning below the minimum peak-hours service levels adopted by the Planning Board....” PGCC § 24-124(a)(l) & (2).

While a traffic study by the Planning Board was not required, the Planning Board determined that “there is a need to examine current transportation adequacy problems at MD 5/Surratts Road and MD 223/Brandywine Road.” The major concern with the subdivision was its effect on traffic at the intersection of Maryland Route 5 and Surratts ⁴¹⁸ Road (“critical intersection”). In determining whether an intersection can satisfy traffic needs, the Planning Board evaluates “Levels of Service.” These levels are measured as A, B, C, D, E, or F, with A being the highest level of service and other grades descending in order. Levels A through D are considered adequate, 'and levels E and F are considered inadequate. The Planning Board’s technical staff (“staff’) initially recommended disapproval of the subdivision.

According to the Staff Report, the subdivision would generate fifteen vehicle trips during the “a.m. peak hours” and eighteen trips during the “p.m. peak hours.” Furthermore, the report indicated that without the subdivision, the critical intersection operated at an acceptable D level of service and, after adding anticipated traffic from the subdivision, a D level still remained. Nevertheless, the Planning Board’s methodology required it to add “background traffic” 1 into the analysis. After doing so, the level of service at the critical intersection fell below the acceptable D grade during the morning and afternoon peak hours. A hearing before the Planning Board was held on October 31, 1996.

At the hearing, the staff indicated that it determined that an unacceptable level of service would be generated at the critical intersection and that appellee had “not proposed improvements to improve the service levels at this intersection.” The staff and appellee, however, offered what they considered a possible solution for the problem to the Planning Board — a Traffic Facilities Mitigation Plan (“TFMP”) under which appellee agreed to pay a pro rata share to build a “second left turn lane southbound approaching Surratts Road” at the critical intersection. The Planning Board did not vote on the proposed TFMP, but rather, ⁴¹⁹ continued the case in order to have a better understanding of the specifics involved in the TFMP. The Planning Board next addressed appellee’s situation on November 7, 1996. At the hearing, a planning staff representative announced that he mis-spoke at the previous hearing when he indicated the TFMP would include a double left turn lane.

The staff member explained that the improvements that appellee would bear a pro rata responsibility for were “additional pavement and striping on the eastbound Surratts Road approach and southbound 5 to provide a free right-turn lane from eastbound Surratts Road to southbound MD 5” and “additional pavement and striping on northbound MD 5 to provide a free right-turn land [sic] from westbound Surratts Road to northbound MD 5.” Appellee’s pro rata share for these improvements would be $28,333, or approximately $1,166 per unit. The Planning Board issued its conditional approval of the subdivision on December 5, 1996. In its report, the Planning Board noted that no traffic study was done; rather, the mitigation plan was based on a study prepared for a similarly located site that had already been approved. Pursuant to PGCC § 21 — 124(a)(6)(D), 2 a local citizens group appealed the Planning Board’s decision to the District Council.

On May 5, 1997, the District Council remanded the case and ordered the Planning Board to supplement the record with the TFMP and the “agency comments from State Highway Administration and the Department of Public Works and Transportation, to the Planning Board.” The Planning Board supplemented the record, and a second appeal was taken to the District Council. On February 11, 1998, the District Council issued its Notice of Final Decision in which it reversed the Planning Board’s decision and denied the mitigation plan. In doing so, the District Council rejected the Planning Board’s findings of fact ⁴²⁰ and made its own finding that the mitigation plan was inadequate. Specifically, the District Council found: 1. [T]hat the intersection of MD Rt. 5 and Surratts Road is currently operating at Level of Service “F,” and that mitigation of the traffic at this intersection is required. 2. [T]hat the proposed provisions of a second southbound left-turn lane from MD Rt. 5 on to Surratts Road, including any improvements to the receiving lanes of Surratts Road deemed necessary by the State Highway Administration, are inadequate to alleviate the Level of Service “F” at the [critical] intersection. 3. [T]hat Planning Board Resolution Condition 1, a formula for the assessment per building permit for a pro-rata share of the construction of improvements to the intersection of MD Rt. 5 and Surratts Road as described above, will not alleviate Level of Service “F” at this intersection. 4. [T]hat the transportation infrastructure (existing and proposed) is inadequate to service the proposed Preliminary Plat of Subdivision. 5. [T]hat the mitigation plan proposed by [appellee] is inadequate to reduce the existing Level of Service “F” at the [critical] intersection ...

Therefore, the proposed mitigation is unacceptable and must be denied[.] Pursuant to Md.Code (1957, 1997 Repl.Vol.), Art. 28 (“Art. 28”), § 8-106(e), appellee appealed the decision of the District Council to the circuit court. In a written order and opinion, the circuit court reversed the decision of the District Council. The circuit court held: (1) that the District Council is required to give deference to the factual findings of the Planning Board; and (2) facts in the record did not support the District Council’s conclusions. This appeal followed.

DISCUSSION Timeliness of appeal Appellee contends that the District Council’s attorney did not have authority to file the instant appeal and that no timely ⁴²¹ appeal was filed. Final judgment in the circuit court was entered on June 9, 1999. This appeal was noted by appellant’s attorney on July 7, 1999. The District Council, however, did not vote to authorize the appeal until July 13, 1999, four days past the expiration of the thirty-day appeal period provided by Maryland Rule 8-202. 3 Appellee contends that the appeal must be dismissed because an appeal of a “final judgment to which the District Council is a party, is not authorized until such time as a vote to appeal the final judgment is formally taken by the District Council,” and relies on Comm. on Hum.

Rel. v. Anne Arundel Co., 106 Md.App. 221 , 664 A.2d 400 (1995). In Anne Arundel, this Court addressed the capacity of an administrative agency to seek judicial review. In Anne Arun-del, the petition for judicial review and appeal to this Court was authorized by the agency’s executive director and general counsel. On our own motion, we raised the issue of whether the executive director and general counsel possessed standing to seek judicial review.

In reaching our decision, we observed that an administrative agency does not have the right to seek review of its own final decision absent statutory authority. See id. at 237-38 , 664 A.2d 400 . Moreover, “[w]e recognizefd] that, where judicial review is provided by statute, the statutory method of review is exclusive ... [and] defines the limits of the court’s power to review the determinations of the agency.” Id,, at 238, 664 A.2d 400 . We held that the general counsel and executive director did not have standing to authorize the appeal because the statute granting the agency power to seek judicial review vested that power in the agency, and a vote by the agency’s commissioners was necessary to seek judicial review.

In doing so, we explained: Because the power to authorize judicial review rests exclusively in the ‘agency’ by statute, the Commissioners them ⁴²² selves must sanction any determination to adjudicate a contested ... case • beyond the decision of [the agency]. Id. at 241 , 664 A.2d 400 . In the instant case, the District Council’s authority to seek an appeal to this Court is found in Art. 28, § 8-106(j), which states: In Prince George’s County, the district council, the applicant, or any party to the circuit court review who is an aggrieved party may secure a review of any final judgment of the Prince George’s County Circuit Court under this title by appeal to the Court of Special Appeals. The appeal shall be taken in the manner provided by law for appeals from law courts in other civil cases.

Each member of the district council in Prince George’s County is entitled to vote on whether the district council shall appeal to the Court of Special Appeals, regardless of whether the member participated in the hearing on the matter or in the decision. In analyzing a statute, we must ascertain and carry out the true intentions of the legislature. See Tortuga v. Wolfensberger, 97 Md.App. 79, 84 , 627 A.2d 56 , cert. denied, 332 Md. 703 , 632 A.2d 1209 (1993). To discern the legislative intent, we look to the plain meaning of the language of the statute.

See Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730 (1986). “Where the language is clear and unambiguous, a court may not add or delete words to make a statute reflect an intent not evidenced in that language to avoid a harsh result.” Condon v. State, 332 Md. 481, 491 , 632 A.2d 753 (1993) (citation omitted). Appellant contends that the statutory language does not require its members to approve an appeal within the thirty-day period, and that the District Council’s vote on July 13, after the thirty-day appeal period, was sufficient to satisfy the section 8-106(j) requirement that each member of the council “is entitled to vote on whether the district council shall appeal.” To accept this argument would be to ignore the teachings of Anne Arundel, in which we held that to be properly noted, the appeal must “be approved by the ... ⁴²³ group of individuals ... within whom is reposed the ultimate legal authority to pursue such review.” Anne Arundel, 106 Md.App. at 241 , 664 A.2d 400 . Appellant further contends that its attorney had “standing authorization” to file the notice of appeal on behalf of the District Council and “was authorized to do, by the practice accepted and followed for many years.” Specifically, appellant proffers that: By prior practice in administrative cases, from about 1982 to the present, the District Council’s standing authorization and instructions to its attorneys have been as follows: First, the attorney is authorized and directed to appear in every case appealing or challenging a District Council decision; second, the attorney is required to defend all actions of the Council, including all findings, orders, and conditions; third, the attorney is authorized and required to preserve all District Council rights in litigation, unless the Council approves a dismissal, compromise, or waiver of rights; and fourth, the Council is to be advised by the attorney of the course of litigation and the need for a decision, whenever required.

It presents affidavits from its Principal Counsel and Council Administrator, which support the proffer in its brief. A similar argument, however, was presented and rejected in Anne Arundel . There, we characterized the customary practice regarding appeals by the Commission on Human Relations: [Cjounsel for the Commission conceded that the Executive Director of the Commission and the agency’s General Counsel, and not the Commissioners, had made the decision to seek review of the Board’s decision. The Commission’s appellate counsel proffered to us that, at some unspecified time in the past, the Commissioners had delegated to the Executive Director and the General Counsel the authority to determine whether to take an appeal of an appeal board’s action.

Counsel conceded, however, that such delegation was merely an unmemorialized internal agency practice that ⁴²⁴ had not been authorized by any statute, COMAR rule, or, for that matter, any published rule or edict generally discoverable by the public. Apparently, it has merely been, at best, a policy of some duration within the institutional memory of at least some Commission staff that the Executive Director and General Counsel make the decision whether to seek judicial review in contested cases on an ad hoc basis. Id. at 240-41 , 664 A.2d 400 (bold emphasis added) (footnote omitted). The long-standing practice, described in the present case, of having the Principal Counsel and Council Administrator make the decision to file an appeal to protect the interests of the District Council, is not meaningfully different from the longstanding practice of the Commission on Human Relations proffered to and rejected by us in Anne Arundel .

We only reiterate the conclusion reached in Anne Arundel , as we conclude that the tradition of allowing Principal Counsel, in conjunction with the Council Administrator, to file appeals is not an effective delegation of the District Council’s right to decide whether to appeal. 4 Lastly, appellant contends that the notice of appeal was sufficient because it was ratified by the District Council membership after the thirty-day appéal time had expired. In support of this contention, appellant cites Switkes v. John McShain, 202 Md. 340, 350 , 96 A.2d 617 (1953), for the proposition that a client may ratify an appeal after its filing. Appellant’s reliance of Switkes is misplaced. Switkes involved a lawyer filing an appeal of a workmen’s compensation claim to the Court of Common Pleas on behalf of his client, who had died two days before the notice