County Council of Prince George's County v. Dutcher

HARRELL, Judge. Following conditional approval by the Prince George’s County Planning Board (“Planning Board”) of the Maryland-National Capital Park and Planning Commission (“MNCPPC” or “Commission”) of a preliminary plan of subdivision, including a traffic facilities mitigation plan, submitted by Respondent, Bob Dutcher, a nearby citizens’ association filed an administrative appeal of the Planning Board’s decision to the Prince George’s County Council (“County Council”), sitting as the District Council (“District Council”). 1 Such an appeal was authorized ostensibly by a section of the Prince George’s County Code (“PGCC”) (1999 ed.), enacted by the Prince George’s County Council. 2 On 11 February 1998, the District Council issued its Notice of Final Decision in the administrative appeal, rejecting the Planning Board’s findings of fact and reversing the Planning Board’s decision. Respondent sought judicial review by the Circuit Court for Prince George’s County. On 9 June 1999, the Circuit Court entered judgment in Respondent’s favor reversing the decision of the District Council, holding, among other things, that: (1) the District Council failed to give deference to the factual ⁴⁰⁴ findings of the Planning Board, a requirement identified by the Court of Special Appeals in County Council of Prince George’s County v. Curtis Regency Service Corp., 121 Md.App. 123, 133-34 , 708 A.2d 1058, 1062-63 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998); and, (2) the facts of record did not support the District Council’s conclusions.

The District Council’s then attorney, without specific consultation with her client, filed an appeal to the Court of Special Appeals on 7 July 1999. Four days after the expiration of the applicable 30 day appeal period provided by Maryland Code (1957, 1997 RepLVol.), Art. 28, § 8 — 106(j) and Maryland Rule 8-202, 3 on 13 July 1999, the District Council met formally and voted to pursue the appeal filed by its attorney. On 5 June 2000, the Court of Special Appeals dismissed the appeal, finding as fatal the absence during the 30 day appeal period of a discrete District Council authorization to take the appeal. County Council of Prince George’s County v. Dutcher, 132 Md.App. 413 , 752 A.2d 1199 (2000).

The District Council filed a petition for writ of certiorari with this Court. We granted certiorari on 11 September 2000. Prince George’s County v. Dutcher, 360 Md. 485 , 759 A.2d 230 (2000). The following questions were presented in the District Council’s successful petition: A. Was the District Council’s attorney authorized to file the appeal from the judgment in the Circuit Court if, by consistent and long-standing practice approved by the Dis ⁴⁰⁵ trict Council, the Council’s attorney has filed appeals from all adverse trial court judgments, subject to approval by the Council at a later date, whenever the Council is not able to meet to approve the appeal before it is filed?

B. Should the lower court have approved the Circuit Court’s disposition of the appeal, where the Circuit Court itself reviewed the evidence before the Planning Board instead of remanding the case to the District Council for that purpose? After briefing and oral argument on these questions, we issued an Order on 8 March 2001, concluding that the Court of Special Appeals should not have dismissed the appeal in this case. We also concluded that the merits of the remaining question presented by the reinstated appeal, as well as a jurisdictional issue noticed by the Court, 4 could not be resolved properly on the basis of the briefs and arguments mounted by the parties to that point. The case was set for rebriefing and reargument in May 2001.

The parties were directed to brief and argue the following three additional issues formulated by the Court: 1. Whether the Court of Special Appeals in County Council of Prince George’s County v. Curtis Regency Service Corp., 121 Md.App. 123 , 708 A.2d 1058 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998), correctly interpreted the last clause of Maryland Code (1957, 1997 Repl.Vol.), Art. 28, § 7-117, which provides that, in Prince George’s County, the “subdivision regulations . .. may include provisions for an appeal to the district council from a decision approving or disapproving a subdivision plat.” ⁴⁰⁶ 2. Whether §§ 24-124(a)(6)(D), 24-137®, and 27-132® of the Prince George’s County Code (1999 ed.) constitute subdivision regulations adopted pursuant to the authority granted by the last clause of Art. 28, § 7-117, of the Maryland Code, and if so, how should such regulations be interpreted and are such regulations valid under Art. 28, § 7-117? 3. When, in Prince George’s County, an appeal is taken to the District Council from a decision of the Commission, pursuant to Art. 28, § 7-117, of the Maryland Code, approving or disapproving a subdivision plat, what is the appropriate standard of review by the District Council?

I. On 21 May 1996, Respondent filed with the MNCPPC an application for a preliminary plan of subdivision for 8.83 acres of undeveloped property in Clinton, Maryland. 5 Respondent proposed twenty lots for single family, detached homes. The main road intersection to be affected by traffic projected to be generated by the proposed development was Surratts Road and Branch Avenue (“the critical intersection”). A. Administrative Proceedings A concern expressed by the MNCPPC staff reviewing the proposed preliminary subdivision plan was its projected effect on the critical intersection. Pursuant to PGCC § 24-124, Respondent was required, in order to obtain approval, to satisfy the Planning Board 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 ⁴⁰⁷ the Planning Board.” PGCC § 24-124(a)(l) & (2).

Levels of service are identified by alphabetical reference as A, B, C, D, E, and F (A being the optimum and F the worst), with levels of service A through D considered adequate. According to the MNCPPC staff, the critical intersection, using existing traffic and that calculated to be generated by previously approved, but undeveloped, subdivisions in the area of the critical intersection, would operate at an acceptable D level of service. 6 After adding the anticipated traffic from Respondent’s proposed subdivision, however, the level of service at the critical intersection was calculated by staff to fall below the D level, reaching an unacceptable E level of service during the morning and afternoon peak hours. 7 At a 81 October 1996 hearing before the Planning Board on Respondent’s application, a Traffic Facilities Mitigation Plan (“TFMP”) was discussed. 8 Under the proposed TFMP, osten ⁴⁰⁸ sibly to guarantee acceptable peak hour service levels, Respondent agreed to pay a computed pro rata share, amounting to $28,333, for future physical improvements to the critical intersection that, when made, would allow it to operate at an acceptable level of service. The Planning Board issued its conditional approval of the preliminary plan of subdivision and TFMP on 5 December 1996. Pursuant to PGCC § 24-124(a)(6)(D), a nearby citizens’ association appealed the Planning Board’s decision to the District Council. 9 On 11 February 1998, the District Council issued its Notice of Final Decision in which it reversed the Planning Board’s decision and denied the TFMP.

In reaching this conclusion, the District Council, relying on the same evidentiary record as was before the Planning Board and hearing only oral argument from the parties, rejected the Planning Board’s findings of fact and made its own finding that the TFMP was inadequate. 10 B. Trial Court Proceedings Pursuant to Md.Code (1957, 1997 Repl.Vol.), Art. 28, § 8-106(e), Respondent sought judicial review of the decision of the District Council to the Circuit Court for Prince George’s ⁴⁰⁹ County. On 9 June 1999, the Circuit Court finally determined that the District Council’s position, i.e. that it exercised original jurisdiction in such administrative appeals and therefore could substitute its judgment for that of the Planning Board, was legally erroneous and therefore, the District Council had applied the wrong standard of review. The Circuit Court, relying on Curtis Regency, concluded that the District Council properly sat as an appellate body in reviewing the Planning Board’s approval of Respondent’s TFMP. Curtis Regency, 121 Md.App. at 137 , 708 A.2d at 1065 .

Reversing the District Council’s decision, the Circuit Court remanded the case back to the District Council for further proceedings not inconsistent with its order. 11 C. Appeal Proceedings On 7 July 1999, the District Council’s attorney filed an appeal to the Court of Special Appeals. On 13 July 1999, four days after the expiration of the 30 day appeal period, the District Council, met and for the first time, formally considered the Circuit Court’s action, voting to pursue the appeal filed by its attorney. Respondent argued that the District Council’s attorney lacked authority to file the appeal when taken and that the District Council’s after-the-fact ratification of the appeal was untimely. The Court of Special Appeals concluded that “[t]he tradition of allowing ... [the District Council’s attorney], 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.” Dutcher, 132 Md.App. at 424 , 752 A.2d at 1205 .

The appeal, judged to be unauthorized because District Council approval was too ⁴¹⁰ late, was dismissed as untimely. Dutcher, 132 Md.App. at 431 , 752 A.2d at 1208 .

II

As announced in our 8 March 2001 Order, we conclude that the appeal to the Court of Special Appeals was authorized and timely. We do not reach the District Council’s second question presented in its petition for certiorari, in view of our disposition of the second supplementary question contained in our 8 March 2001 Order. Regarding the supplementary questions, we hold that, under the statutory scheme established by the Regional District Act (“RDA”) 12 for the regulation of subdivisions in Prince George’s County, the District Council has no authority and, therefore, no jurisdiction, for immediate review of Planning Board actions on preliminary plans of subdivision containing a TFMP. Applying the administrative appeal provisions of PGCC § 24-124(a)(6)(D), pertaining to traffic mitigation techniques, and necessarily also PGCC § 24-137(j), pertaining to cluster subdivisions, to Planning Board actions on preliminary ⁴¹¹ plans of subdivision is unauthorized by RDA, Art. 28, § 7-117. 13 Although the County Council, acting in its legislative capacity, may choose to authorize an appeal of Planning Board action on a final subdivision plat to the District Council, as permitted by RDA, Art. 28, § 7-117, such an appeal procedure has not been included by the County Council in the Subdivision Regulations of the PGCC.

We need not decide the first and third supplementary questions because the lack of a jurisdictional basis for immediate District Council review of Planning Board actions on preliminary plans of subdivision renders their consideration moot. 14 A. Timeliness of the Appeal The District Council’s then attorney filed with the Circuit Court a timely protective notice of appeal 15 on behalf ⁴¹² of her client in accordance with her professional obligation and a long-standing agency administrative policy to protect the client’s right to appeal. The District Council’s subsequent ratification of the appeal, as required by Art. 28, § 8-106(j), four days after the expiration of the statutory 30 day appeal period, does not defeat the timeliness of the filed appeal. The District Council has a long-standing policy whereby its attorney is authorized and directed to file a protective notice of appeal whenever the District Council, for any reason, is unable to vote on an appeal during the prescribed statutory period for taking an appeal. 16 The District Council thereafter acts, in the normal course of business, to ratify, or direct dismissal, of the appeal. There is no dispute that the District Council and its attorney followed the established policy in this case.

The final order in the Circuit Court was entered on 9 ⁴¹³ June 1999. On 7 July 1999, the District Council’s attorney filed a protective notice of appeal. The matter was set, in the normal course of business, for District Council review on 13 July 1999, at which time the District Council voted unanimously to maintain and pursue the appeal. In a governmental attorney-client relationship particularly, it is not uncommon to find an established policy giving the government attorney standing instructions and authority to take all actions necessary to protect the government client’s appellate interests until such time as the client may adequately consider the matter.

See, e.g., United States Attorney’s Manual § 2-2.132 (July 28, 1999) (noting Department of Justice policy that “[i]f the time for appeal or cross-appeal is about to expire ... a “protective” notice of appeal should be filed in order to preserve the government’s right to appeal.”). See also Hogg v. United States, 428 F.2d 274, 278-80 (6th Cir.1970) (holding a United States attorney has the authority to file a protective notice of appeal when the time to appeal is about to expire, even if the Solicitor General has not yet authorized the appeal), cert. denied, 401 U.S. 910 , 91 S.Ct. 871 , 27 L.Ed.2d 808 (1971); United States v. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 242 (7th Cir.1993) (explaining the United States voluntarily dismissed a protective appeal because “[a]fter the notice of appeal was filed, the Solicitor General declined to authorize [it]”). In an on-going attorney-client relationship, particularly such as exists here between the governmental client and its house counsel, and especially in view of the long-standing policy declaration in this case, the client rightfully may expect that the attorney will act to protect the client’s right to appeal. The appellate court, upon its own motion or even that of opposing counsel, will not inquire ordinarily into the authority of the attorney to file the appeal or, in the case of a governmental appellant, the procedure by which appellant subsequently ratifies, or dismisses, the actions taken by its attorney on its behalf.

See Hogg, 428 F.2d at 280 (“[Appellee] has no more right to question the process by which a decision ⁴¹⁴ was made to file the Government’s notice of appeal than the United States could question the procedure by which a private practitioner and his client reach a decision to file a notice of appeal.”). An exception to the rule would be where the appellant-client complains that the appeal was unauthorized. Because a timely notice of appeal was filed by the District Council’s attorney, and the District Council has made no complaint, it is beyond the legitimate purview of this, or any appellate court, to dismiss the appeal. Respondent’s principal contention is that the procedure in place in the present case represented an unauthorized delegation of the decision whether to appeal.

This argument is based on the asserted applicability of Commission on Human Relations v. Anne Arundel County, 106 Md.App. 221 , 664 A.2d 400 (1995), to the case sub judice. In Anne Arundel, the Court of Special Appeals held that the Executive Director and General Counsel of the Maryland Commission on Human Relations (“HRC”), acting alone, and without apparent or express authority, had no ability to seek judicial review of a HRC appeal board action because “[u]nder § 10-222 of the APA 17 ... the appeal must be approved by the appropriate individual or group of individuals comprising the agency, within whom is reposed the ultimate legal authority to pursue such review.” Anne Arundel, 106 Md.App. at 241 , 664 A.2d at 410 . The Court of Special Appeals relied on Anne Arundel in the present case to conclude that: 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 long-standing 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, ⁴¹⁵ 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.

Dutcher, 132 Md.App. at 424 , 752 A.2d at 1204-1205 . At the time of the occurrence of the relevant events in Anne Arundel, the final administrative decision in a contested case before the HRC was made by an appeals board composed of some, but not all, of the HRC commissioners. Anne Arundel, 106 Md.App. at 231 , 664 A.2d at 405 . Dissatisfied with the appeals board’s decision in that particular case, the Executive Director and the General Counsel of the HRC collaborated in filing a petition for judicial review in the name of the HRC in the circuit court.

Anne Arundel, 106 Md.App. at 232 , 664 A.2d at 405-06 . As justification for initiating the petition for judicial review “[t]he Commission’s appellate counsel proffered [to the Court of Special Appeals] 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 [HRC] appeal board’s action.” Anne Arundel, 106 Md.App. at 240 , 664 A.2d at 410 (emphasis added) (footnote omitted). The intermediate appellate court in Anne Arundel found these arguments wanting, concluding that the agency, as defined by APA § 10-201(b), was the entity granted the right by statute to seek judicial review and that, in this case, meant the 9 members of the HRC itself. Anne Arundel, 106 Md.App. at 241 , 664 A.2d at 410 .

There was no clear indication that the HRC elected to seek judicial review of its appeals board’s decision or ratified the staff filing of the petition. Accordingly, the purported delegation to the Executive Director and General Counsel was inefficacious. As we recently reiterated in Kant v. Montgomery County, 365 Md. 269 , 778 A.2d 384 (2001): [A] circuit court action reviewing the adjudicatory decision of an administrative agency or local legislative body is not an “appeal.” Instead, it is an original action for judicial ⁴¹⁶ review. [ ] [This] “refers to an original circuit court action, authorized by statute, judicially reviewing an adjudicatory decision of an administrative agency or an adjudicatory decision of a local legislative body when it acts in a quasi-judicial capacity.” ( 365 Md. at 274 , 778 A.2d at 387 ; citations omitted). The subject matter of Anne Arundel was the initiation of an original action in the Circuit Court which the relevant statute only authorized to be taken by the agency itself.

The present case, involving the invocation of the appellate jurisdiction of the Court of Special Appeals, in order to protect the client’s right to obtain appellate review at all, is fundamentally different. Moreover, the record in the present case, unlike that in Anne Arundel, reflects a clear and long-standing administrative policy that authorized the ministerial act of filing a protective notice of appeal and also required the agency’s ultimate action. B. RDA, AH. 28, § 7-117 As is customary in statutory construction cases, we begin by reminding ourselves of the pertinent rules of interpretation. The rules are well settled.

The goal with which we approach the interpretation of a statute or ordinance is to determine the intention of the Legislature enacting it. Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987, 991 (2000). In Chesapeake and Potomac Telephone Co. of Md. v. Director of Finance, 343 Md. 567, 578-79 , 683 A.2d 512, 517-18 (1996) (citations omitted), we said: Of course, the cardinal rule is to ascertain and effectuate legislative intent. To this end, we begin our inquiry with the words of the statute and, ordinarily, when the words of the statute are clear and unambiguous, according to their commonly understood meaning, we end our enquiry there also.

Where the statutory language is plain and unambiguous, a court may neither add nor delete language so as to “reflect an intent not evidenced in that language,” Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 755 (1993), nor may it construe the statute with “ ‘forced or subtle interpretations’ ⁴¹⁷ that limit or extend its application.” Id. (citation omitted). Moreover, whenever possible, a statute should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.” Application of these rules to § 7-117 produces a clear and logical result. 18 We begin by noting that, under the RDA, action on a subdivision plat is not synonymous with action on a preliminary plan of subdivision. In this regard, it is not ambiguous.

The RDA expressly states that the County Council may enact legislation enabling the District Council to hear appeals of a “decision approving or disapproving a subdivision ⁴¹⁸ plat.” Art. 28, § 7-117. The distinction between a preliminary plan of subdivision and a subdivision plat, however, is also clear within § 7-117. A close reading of § 7-117 highlights the careful distinction that the General Assembly intended between preliminary plans and final plats of subdivision. Section 7-117 of the RDA reads, inter alia, as follows: The Commission shall approve or disapprove a subdivision plat within 30 days after its submission ...

In Prince George’s County, the Commission shall approve or disapprove a preliminary subdivision plan within 70 days____ Art. 28, § 7-117 (emphasis added). The different deadlines demonstrate that the General Assembly recognized two separate and distinct administrative processes and actions. Chase, 360 Md. at 126-27 , 756 A.2d at 990 (“[T]he Legislature knows how to differentiate ... and has done so clearly whenever that is what it intended.”). Different timetables are envisaged for the two administrative processes and actions, as well as for the waiver of the deadlines.

The waiver provision in § 7-117 says: The applicant for the Commission’s approval may waive either or both of these requirements [the 30-day deadline for approval or disapproval of a subdivision plat or the 70-day deadline for approval or disapproval of a preliminary subdivision plan] and consent to the extension of the periods. However, in Prince George’s County, no such waiver may be for a period greater than the original period [30 or 70 days, respectively] allowed for approval of the plat or preliminary plan. Art. 28, § 7-117 (emphasis added). Moreover, the General Assembly’s intent to recognize a distinction between the two types of administrative action is shown by the use of the disjunctive “or” between plat and preliminary plan within § 7-117.

Finally, the title of § 7-117 implies a distinction between the two administrative actions. It reads: “§ 7-117. Approval or disapproval of subdivision plats; Prince George’s County preliminary subdivision plans.” Art. 28, § 7-117. ⁴¹⁹ Petitioner contends that it makes no “good sense” to say that the term “plat” means final plat, but not preliminary plan. Petitioner’s Suppl.

Reply Br. at 7. Petitioner believes that the only possible, meaningful interpretation is that “plat” means both preliminary plat (or plan) and final plat. The plain meaning of the language of the statute, however, does not support Petitioner’s position. Imposing Petitioner’s approach to make “plat” mean “preliminary plan” and “preliminary plan” to mean “plat,” renders meaningless the obvious distinctions fashioned by the General Assembly.

The first eight sentences of § 7-117 establish a dichotomy between, on the one hand, plats that are final, and on the other, plans that are preliminary. Consistent with that, the remaining five sentences of the statute refer to plat or subdivision plat. Petitioner isolates these last five sentences from their contextual antecedents to support its argument that it is not clear as to what the word “plat” refers. These sentences are unambiguous, however, when read in the entirety of § 7-117.

The careful distinctions made in the statute demonstrate that the General Assembly did not intend to use the terms “plat” and “preliminary plan of subdivision” interchangeably or as synonyms. The last sentence of § 7-117 authorizes an administrative appeal provision in subdivision regulations to “[i]nclude provisions for an appeal to the district council from a decision approving or disapproving a subdivision plat.... ” Art. 28, § 7-117. Our preceding analysis makes clear the intent of the General Assembly, in the last sentence of § 7-117, only to authorize the adoption of local legislation by the County Council permitting administrative appeals to the District Council from Planning Board actions on final subdivision plats. The plain meaning of the RDA confers no authority on the County Council to implement a process for an administrative appeal pertaining to Planning Board actions on preliminary subdivision plans, whether including a TFMP or as a cluster subdivision proposal. ⁴²⁰ C. Legislative History Petitioner continues by arguing that legislative history supports a subtle blending of the subdivision plat and preliminary plan terminology in § 7-117.

Our cases indicate that, even when the language of a statute is free from ambiguity, “in the interest of completeness” we may, and sometimes do, explore the legislative history of the statute under review. E.g., Harris v. State, 331 Md. 137, 146 , 626 A.2d 946, 950 (1993). We do so, however, to examine the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account. Id.

In other words, the resort to legislative history is a confirmatory process; it is not undertaken to seek contradiction of the plain meaning of the statute. See Coleman v. State, 281 Md. 538, 546 , 380 A.2d 49, 54 (1977) (“[A] court may not as a general rule surmise a legislative intention contrary to the plain language of a statute or insert exceptions not made by the legislature.” (citations omitted)). The only legislative history cited by Petitioner are certain bill amendments and their dates of enactment by the General Assembly. Petitioner concedes that the available history regarding § 7-117 provides no clear and definitive support for its asserted meaning of the term “subdivision plat” in the last sentence of the statute. 19 Instead, Petitioner suggests that the 1969 pre-enactment deletion of a proposed subdivision plat appeal provision that was to be § 7-117’s last sentence, and the inclusion in 1975 of the same provision, somehow means that the term “subdivision plat,” in the last sentence, refers to both “subdivision plat” and “preliminary subdivision plan.” 1969 Md. Laws sec. 1(72), ch. 711.

The provisions in § 7-117 relating to preliminary plans of subdivision were enacted eight years before the 1975 inclusion ⁴²¹ of the last sentence containing the subdivision plat appeal provision. 1967 Md. Laws sec. 2(72), ch. 582. It is settled law in Maryland statutory construction that [t]he General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. Police Commissioner of Baltimore City v. Dowling, 281 Md. 412, 419 , 379 A.2d 1007, 1011 (1977) (citations omitted). The relevant statute in 1975 contained a clear distinction between preliminary plans and final plats of which the General Assembly is presumed to have possessed full knowledge.

The Legislature chose to reintroduce a final sentence allowing appeals for “subdivision plats” only. If the General Assembly had wanted to make Planning Board action on preliminary plans similarly appealable, it would have inserted the disjunctive “or,” as it had in the processing time waiver provision (supra pp. 417-18), after “subdivision plat,” and added “preliminary plan.” The amendment of § 7-117 in 1967 to include provisions pertaining to when a preliminary plan may be approved or disapproved sheds light on legislative intent. 1967 Md. Laws ch. 582. Prior to this amendment, § 7-117 only addressed the 30 day period in which a decision to approve or disapprove a subdivision plat must be made. Id.

The 1967 amendment highlighted the distinction that any decision regarding a preliminary plan