Egloff v. PRINCE GEORGE'S COUNTY

MARY BETH McCORMICK (Specially assigned), Judge. This appeal concerns a proposed plan by the Peterson Companies, Inc. (“Peterson”) to build a waterfront entertainment and retail complex, to be known as National Harbor, along the Potomac River in the Smoot Bay area of Prince George’s County. The County Council of Prince George’s County, sitting as the District Council (“the District Council”) 1 approved a conceptual site plan for the project, and the Circuit Court for Prince George’s County affirmed in part and reversed in part the District Council’s decision. The court ruled that, with one exception, the District Council properly determined that the conceptual site plan conformed to the applicable zoning ordinances.

In the court’s view, the record ¹¹⁷ did not reflect that Peterson had conducted adequate study into potential noise problems and noise abatement plans. The court therefore remanded the case to the District Council for the sole purpose of requiring Peterson to present “a proper noise study.” ISSUES Appellants/cross-appellees Karen Egloff (“Egloff’), Bonnie Bick, Jon W. Robinson, the Sierra Club, Inc., and the Anacos-tia Watershed Society, Inc. now contend that the trial court erred in affirming any part of the District Council’s decision. They argue, in essence, that: — The conceptual site plan did not conform to the applicable zoning ordinances in a number of ways, and — In approving the conceptual site plan, the District Council failed to set forth sufficient findings of fact and conclusions of law. Peterson and the District Council, the appellees/cross-appellants, have incorporated in their separate briefs motions to dismiss the appeal on the grounds that (i) Karen Egloff did not have standing to petition for circuit court review and, (ii) the remaining appellants/cross-appellees (“the Bick group”) did not properly petition for circuit court review. 2 Peterson and the District Council have further filed a cross-appeal, in which they argue, in essence, that: — The trial court erred in reversing that portion of the District Council’s decision regarding the adequacy of Peterson’s noise study, and by remanding the case to the District Council for the presentation of additional evidence.

We find merit in both arguments made by the appel-lees/cross-appellants in their motion to dismiss. We thus agree that the trial court should not have reviewed the case, in that Egloff did not have standing to petition for judicial review ¹¹⁸ and the Bick group did not properly petition for judicial review. Although the appellees/cross-appellants present their arguments within a motion to dismiss incorporated in their appellate briefs, it is apparent that they are seeking not merely dismissal of the appeal of the appellants/cross-appellees but also vacation of the trial court’s judgment — including its reversal and remand of that portion of the District Council’s decision regarding the noise study. We shall therefore elevate substance over form and shall vacate the judgment of the trial court. 3 In light of our decision to vacate, we need not address the cross-appeal as to that judgment. 4 FACTS Peterson’s attempt to develop property in the Smoot Bay area into a waterfront complex follows three unsuccessful ¹¹⁹ attempts by other developers.

In the mid-1960s, an effort was launched to build the “Smoot Bay Waterfront Center.” After that project failed, another effort was made in 1983 to transform the property into “Bay of Americas.” In 1986, that plan was replaced by a plan to develop “Port of America.” In the mid-1990s, Peterson initiated its plan to develop National Harbor on 533.9 acres of land in Smoot Bay. Peterson sought and obtained from the District Council several zoning changes that would permit the contemplated use. Peterson then submitted a conceptual site plan — a “very general concept for developing a parcel of land before subdivision plans or final engineering designs are begun” 5 — to the Prince George’s County Planning Board of the Maryland National Capital Park and Planning Commission. 6 On April 23, 1998, the Planning Board conducted a public hearing at which more than 30 persons testified. That same day, the Planning Board issued a lengthy written decision by which it approved Peterson’s conceptual site plan, subject to 35 specific conditions.

The final condition was that the plan be reviewed and approved by the District Council. 7 On June 17, 1998, after reviewing the record of the proceedings before the Planning Board, the District Council affirmed the Planning Board’s decision to approve the conceptual site plan, subject to the conditions imposed by the Planning Board as well as four additional conditions. ¹²⁰ Karen Egloff and John O’Loughlin, jointly and pro se, filed a petition for judicial review on July 17, 1998. Both Egloff and O’Loughlin had appeared before the Planning Board and the District Council in opposition to Peterson’s plans to develop National Harbor. At the start of her testimony before the Planning Board, Egloff had stated that her family had a home near the proposed development, and asserted: “We have lived there for 41 years.” Egloff further informed the Planning Board that she was representing her family and “some of the residents” of the neighborhood. The chairperson of the Planning Board asked Egloff if she was an attorney and Egloff responded in the negative.

The chairperson then informed Egloff: “[Y]ou can represent your family if you live there and you want to represent you family ... but you can’t represent other citizens.” Egloff responded simply: “All right. Fine.” She then presented her position to the Planning Board. O’Loughlin told the Planning Board that he personally lived near the proposed development. He stated that he had “lived in Prince George’s County for over 40 years” and “own[ed] a business in this County.” 8 Although the address listed for O’Loughlin on the petition for judicial review indicated that he did, indeed, live near the proposed development, a Calvert County address was given for Egloff.

Both Peterson and the District Council filed responses to the petition indicating their intention to participate in the action 9 , and the District Council promptly sent notice of the petition to all parties to the proceeding before it. 10 Subsequently, on September 3, 1998, Peterson and the District Council jointly moved to dismiss Egloff from the case. They asserted that Egloff had represented to both the District Council and the trial court that her address was “2950 Holland ¹²¹ Cliffs Road, Huntingtown, Maryland 20639,” and urged the court to take judicial notice of the fact that “Huntingtown, Maryland is located entirely within the geographic boundaries of Calvert County, Maryland.” On September 4, 1998, the day after the motion to dismiss Egloff from the case was filed, attorney Thomas Dernoga filed a line with the court entering his appearance on behalf of Egloff, O’Loughlin, and the members of the Bick group, all of whom he identified as “Petitioners.” Dernoga also filed a document entitled “Response to Petition for Judicial Review,” which reflected the intentions of the members of the Bick group to participate in the action but did not specify in what capacity they intended to participate. 11 On October 13, 1998, Dernoga filed a “Petitioners’ Memorandum of Law” 12 and a “Response to Joint Motion to Dismiss” on behalf of “Karen Egloff, et al.” In the response to the motion to dismiss, “Karen Egloff, et al.” asserted that, “While Karen Egloff does presently reside in Calvert County,” she “grew up” and “spent 19 years residing in” her family’s home near the proposed development. The response asserted that Egloff “spends substantial time” at the family home, “including occasional residence,” in order to care for her aging mother, Susan Egloff. 13 It added that Susan Egloff had devised the family home to Karen Egloff, and that Karen Egloff “intends to resume residence,” apparently upon her mother’s death. Also in the response, “Karen Egloff, et al.” asserted that “because John 0’L[o]uglin’s standing has not been challenged, the ... ¹²² Motion to Dismiss will accomplish nothing more than trying to silence one more voice speaking out against the artificial and arbitrary zoning process under which the District Council approved The Peterson Companies, Ine.’s entertainment/retail complex.” interestingly, the response to the motion made no mention of the Bick group or the standing of its members.

Peterson and the District Council timely filed separate memoranda in support of the District Council’s decision, and a hearing on the petition for judicial review was scheduled for November 12, 1998. Two days before the hearing, O’Lough-lin, acting pro se, filed documents dismissing Dernoga as his counsel and dismissing with prejudice the petition for judicial review as to himself only. At the hearing on November 12, counsel for Peterson and the District Council contended that the entire case should be dismissed because O’Loughlin was no longer a petitioner and, as urged in the earlier-filed written motion, Egloff did not have standing. No mention was made of the Bick group by either party.

Dernoga represented to the court that both Egloff and her mother were present in the courtroom. He proffered that they would testify to the effect that Susan Egloff had, in her will, devised the family home to Karen Egloff. Based on the proffer, the court determined that Karen Egloff had a “valid vested remainder that is an equitable interest” in the property. It therefore concluded that Egloff had standing, and the hearing proceeded.

In its opinion affirming in part and reversing in part the District Council’s decision, the trial court noted that the members of the Bick group entered the case as petitioners after Egloff and O’Loughlin filed their petition, and that O’Loughlin discharged Dernoga prior to the hearing and did not appear to represent himself. In response to a post-trial motion filed by Peterson 14 , the court amended its opinion to clarify that the members of the Bick group were respondents ¹²³ rather than petitioners, and that O’Loughlin had dismissed his case with prejudice. DISCUSSION I Egloff s Lack of Standing Section 8-106(e) of art. 28 of the Annotated Code of Maryland authorizes judicial review of decisions of the District Council of Prince George’s County and sets forth the requirements for standing. The section provides, in pertinent part: In Prince George’s County, any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, any civic or homeowners association representing property owners affected by a final district council decision, and, if aggrieved, the applicant may have judicial review of any final decision of the district council.

Proceedings for review shall be instituted by filing a petition in the Circuit Court of Prince George’s County within 30 days after service of the final decision of the district council.... Code (1975, 1997 Repl.Vol.), § 8-106(e) of art. 28 (emphasis added). 15 ¹²⁴ Peterson and the District Council argued in the trial court, as they argue on appeal, that Egloff was not a “person or taxpayer in Prince George’s County” within the meaning of § 8-106(e) and therefore did not have standing to petition for judicial review of the District Court’s approval of Peterson’s conceptual site plan. Peterson and the District Council also argued below and reiterate on appeal that Egloff was not “aggrieved” by the District Council’s decision. In denying the motion to dismiss, the trial court did not address the argument that Egloff was not a person or taxpayer in Prince George’s County.

Rather, the court focused on whether Egloff was aggrieved and determined that she was. As we have observed, the court concluded that because Egloff s family home, which was located near the proposed development, was devised to Egloff in her mother’s will, Egloff had a “valid vested remainder interest” in the property. There is simply no requirement under § 8-106(e) that a petitioner be aggrieved in order to have standing unless the petitioner is the applicant for approval of the conceptual site plan — in this case Peterson. 16 By 1994 Laws of Maryland, ¹²⁵ Chapter 405, the Legislature amended § 8-106(e) for the specific purpose of “clarifying that the aggrievement standard required to appeal to the circuit court only applies to the applicant.” 17 The key inquiry, therefore, was not whether Egloff was aggrieved but whether she was a person or taxpayer in Prince George’s County. The parties agree that, pursuant to the plain language of § 8-106(e), in order to have had standing Egloff must have been either a person in Prince George’s County or a taxpayer in Prince George’s County.

They further agree that Egloff was not a taxpayer in the County. The appellants/cross-appellees contend that Egloff was nevertheless a person in Prince George’s County. In support of their position, the appellants/cross-appellees point to the assertions in the petitioner’s response to the motion to dismiss Egloff from the case, to the effect that Egloff spent a “substantial” amount of time at the family home and occasionally resided there in order to take care of her mother. No evidence in the record supports the assertion that Egloff resided in the family home, occasionally or otherwise.

At the hearing before the Planning Board, Egloff cryptically stated: ¹²⁶ ... I am mostly representing my family. They have a home at 229 Panorama Drive. We have lived there for 41 years.

I also represent some of the residents that I’ve had a chance to speak with. They share some of my views and my family’s. (Emphasis added.) When the chairperson informed Egloff that she could represent her family only if she lived in the family home and could not represent other area residents at all, she responded only: “All right. Fine.” Egloff did not state that she did, in fact, reside in the family home.

Indeed, the assertions made in the response to the motion to dismiss and, later, in the brief of the appellants/cross-appellees filed in this Court make clear that Egloff left the Planning Board with a misimpression. While other members of her family may have lived in the home for 41 years, Egloff herself lived there for only 19 years, apparently during her youth. Her address at the time of the hearing was in Calvert County. At the hearing before the trial court, .the petitioners offered no evidence regarding Egloffs residence.

Although counsel for the petitioners told the court that Egloff and her mother were in the courtroom and available to testify, that statement was made in the course of discussion of Susan Egloff s will. Counsel did not proffer that Egloff or her mother would testify that Egloff resided in the family home. Even if the evidence did establish that Egloff occasionally resided in the family home — and we find that it does not — we would not conclude that Egloff was therefore a “person ... in Prince George’s County” within the contemplation of § 8-106(e). Section 8-106(e) confers a benefit on persons in Prince George’s County — the right to petition for judicial review of a decision of the District Council in a zoning case.

In arguing that Egloff occasionally resided at the family home, the appellants/cross-appellees implicitly posit that a person in Prince George’s County is a resident of Prince George’s County. The Court of Appeals has explained that, where a constitutional or statutory provision confers a benefit based on residency, a person’s residence is deemed to be the ¹²⁷ place where he or she is domiciled, not merely where he or she is physically present. See Bainum v. Kalen, 272 Md. 490, 496-99 , 325 A.2d 392 (1974) (where State Constitutional provision required candidate to reside in Maryland for three years immediately prior to running for State Senate or House of Delegates, person who was raised in Montgomery County but was domiciled in Michigan for portion of required period was not qualified to run, even though he occasionally visited and resided with parents in Montgomery County during period). A person may have several places of abode or dwelling but “[h]e can have only one domicile at a time.” ...

A person’s domicile has been defined as the place “with which he has a settled connection for legal purposes” and the “place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention[ 18 ] of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.” Id. at 497 , 325 A.2d 392 (citations omitted). “ ‘It is a fundamental rule that, in order to effect a change of domicile, there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time.’ ” Id. at 498 , 325 A.2d 392 (citation omitted). See also Best Drywall, Inc. v. Berry, 108 Md.App. 381, 392-93 , 672 A.2d 116 (1996). In short, the argument that Egloff is a person in Prince George’s County because she occasionally resides in Prince George’s County must fail because it runs afoul of the established rule that a statute that confers a benefit based on residency confers that benefit only on those persons who maintain a principal, fixed, and permanent home in the designated place. To hold otherwise would open the door for any person who occasionally visits Prince George’s County over ¹²⁸ night to challenge a decision of the District Council.

Challenges could be lodged by tourists from other states who stay in Prince George’s County hotels or campgrounds, or by persons who spend holidays visiting friends or relatives in Prince George’s County. It defies common sense to believe that the Legislature intended to create such a free-for-all when it enacted the standing requirements set forth in § 8-106(e). “[A] statute must be construed to effectuate the real and actual intention of the legislature.” Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195 (1985). “[W]e approach the analysis of the language from a ‘commonsensical,’ rather than a technical perspective.... ” Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483 (1992) (citation omitted). The “rules of statutory construction require us to avoid construing a statute in a way that would lead to absurd results.” Blandon, 304 Md. at 319 , 498 A.2d 1195 . The appellants/cross-appellees point to nothing, other than Egloffs “occasional residence” in Prince George’s County, to support their contention that Egloff had standing.

We therefore conclude that Egloff did not have standing to petition for judicial review. II Members of Bick Group as Petitioners Peterson and the District Council further contend that, while members of the Bick group may have had standing to petition for judicial review of the District Council’s decision, they did not file a proper petition. The appellees/cross-appellants contend that since O’Loughlin dismissed his case, Egloff did not have standing, and the Bick group did not file a proper petition, there was nothing before the trial court to review. The appellants/cross-appellees respond that, while the Bick group did not file a petition, its members properly secured their status as petitioners and joined in the petition filed by Egloff and O’Loughlin when the group filed its response to that petition before O’Loughlin dismissed his case.

The appellants/cross-appellees seemingly ignore that the trial ¹²⁹ court granted Peterson’s post trial motion to clarify that the members of the Bick group were respondents and not petitioners. Preliminarily, we observe that Peterson and the District Council did not move below to dismiss the Bick group from the case. Nothing in the record persuades us, however, that the appellees/cross-appellants were required to file such a motion to dismiss. The Bick group did not specify its status in its response to the petition for review filed by Egloff and O’Loughlin.

In the headings of the documents filed by Derno-ga on behalf of the petitioners after the Bick group entered the case, the petitioners were identified simply as “Karen Egloff, et al.” The response to the motion to dismiss asserted that O’Loughlin had standing to petition for judicial review even if Egloff did not. It made no mention of the standing of the members of the Bick group. Dernoga identified