Evans v. County Council of Prince George's

MEREDITH, J. Appellants (two citizens of Prince George’s County and the Prince George’s County Federation of Civic Associations, all collectively referred to as “the citizens”) filed a declaratory judgment action in the Circuit Court for Prince George’s County to challenge the validity of Council Bill 90-2004 (“CB-90”), which amended the Prince George’s County Zoning Ordinance. 1 The circuit court granted the County’s motion to ²⁵⁴ dismiss because the citizens had not exhausted their administrative remedies. We shall affirm. Facts and Procedural History CB-90 was a zoning text amendment enacted by the Prince George’s County Council, sitting as the District Council (hereinafter “the Council”), on November 11, 2004. The effective date of CB-90 was January 17, 2005.

CB-90 amended the zoning ordinance to permit one-family detached housing for the elderly to be built in the Rural-Estate (R-E) zone pursuant to a special exception. But the potential special exception applies only to properties that: 1) contain a maximum of six acres; 2) are located in the county’s “Developing Tier”; and 3) are not adjacent to property in the “R-O-S” or “O-S” zones (unless separated by an arterial roadway). According to the citizens, only one property in the R-E zone meets those requirements, and the owner of that property wishes to develop a retirement community on the property. If the special exception created by CB-90 is granted, the housing density would be greater than elsewhere in the zone.

After CB-90 was enacted, the citizens did not seek judicial review pursuant to Maryland Code, Article 28, § 8-106(e), which provides: Appeals authovized.—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 dr 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, which may be served upon all persons of record at the district council’s hearing. Copies of the petition shall be served on the district council and all ²⁵⁵ other persons of record in the manner provided by the rules of court. The filing of the petition does not stay enforcement of the district council’s decision; but the district council may do so, or the reviewing court may order a stay upon terms it deems proper.

On February 14, 2006, the citizens filed this action in the Circuit Court for Prince George’s County against both the Council and the County. The citizens’ complaint alleged that CB-90 is invalid because it “was not the product of careful study and consideration, does not cover a substantial area, does not promote uniformity in the use of R-E land, and is not consistent with the public interest.” The complaint also alleged that proper procedures were not followed when the ordinance was passed, and that the bill constituted illegal piecemeal, spot, and/or contract zoning. The citizens sought (a) a declaratory judgment that CB-90, and the method used to enact it, are invalid, and (b) an injunction prohibiting implementation of CB-90. The Council filed a motion to dismiss, or in the alternative, for summary judgment.

The Council argued that the circuit court did not have jurisdiction to hear the action because the citizens had not yet exhausted their administrative remedies. The Council also argued that the citizens failed to state a claim upon which relief could be granted. The circuit court held a hearing on November 30, 2006. The circuit court’s order of January 24, 2007, concluded that “Plaintiffs have failed to exhaust their administrative remedies pursuant to the Regional District Act, Article 28, Section 8-106(e) of the Maryland Code,” and for that reason, the court granted the motion to dismiss.

The citizens timely filed this appeal. 2 ²⁵⁶ Analysis A. Standard of Review In the motion to dismiss, the Council asserted, as its main argument, the lack of exhaustion of administrative remedies. In Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1 , 11-12 & n. 10, 878 A.2d 567 (2005), the Court of Appeals noted that Maryland Rule 2-322 converts a motion to dismiss into a motion for summary judgment only if the motion is based upon failure to state a claim. When a motion to dismiss is based upon lack of jurisdiction, the court can consider affidavits or hold an evidentiary hearing on the motion to dismiss without converting the motion into a motion for summary judgment. As the Court of Appeals stated in Md.-Nat’l Capital Park & Planning Comm’n v. Crawford, 307 Md. 1 , 13-14 n. 4, 511 A.2d 1079 (1986): “[T]he requirement that administrative remedies must be exhausted is not ordinarily a limitation upon the subject matter jurisdiction of the trial court.

But, because of the public policy underlying this requirement, it is for some purposes treated like a jurisdictional issue.” Because exhaustion of administrative remedies is quasi-jurisdictional, we will treat the circuit court’s decision as one granting a motion to dismiss (rather than summary judgment), even though the court may have considered material outside the complaint. Our review of the circuit court’s grant of a motion to dismiss is de novo. Reichs Ford Rd. Joint Venture v. State Rds.

Comm’n of the State Highway Admin., 388 Md. 500, 509 , 880 A.2d 307 (2005) (citation omitted). In conducting that review, “we must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.” Adamson v. Corr. Med. Servs., Inc., 359 Md. 238, 246 , 753 A.2d 501 (2000) (citations omitted). ²⁵⁷ B. Zoning in Prince George’s County The Regional District Act, Md.Code (1957, 1997 RepLVol.), Art. 28, §§ 1-101-8-127, governs zoning of property within the Regional District comprised of Montgomery County and most of Prince George’s County.

Art. 28, § 7-103(b) provides that “[t]he entire area of Prince George’s County is within the regional district, with the exception of the City of Laurel, as its corporate boundaries are defined as of July 1, 1994.” The Regional District Act is “the exclusive source of zoning authority in those areas of Prince George’s County which [the Regional District Act] covers.” County Council v. Brandywine Enters., Inc., 350 Md. 339, 342 , 711 A.2d 1346 (1998) (citations omitted). The Prince George’s County Council and the Montgomery County Council have been designated by the General Assembly as the district councils for the Maryland-Washington Regional District. Art. 28, § 8—101(a). Section 8-101 (a) provides that these two county councils are “each individually designated, for the purposes of this article, as the district council for that portion of the regional district lying within each county, respectively.” The District Council is granted powers by Art. 28, § 8-101.

A portion of that statute which is particularly relevant to this action is § 8—101(b)(2), which provides: [E]ach district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate, in the portion of the regional district lying within its county ... the uses of land, including surface, subsurface, and air rights therein, for building, trade, industry, residence, recreation, agriculture, forestry, or other purposes. The Council acts as an administrative agency when, as authorized by the Regional District Act, it sits as the District Council in zoning matters. Brandywine, supra, 350 Md. at 342 , 711 A.2d 1346 . The Prince George’s County District Council exercised its authority pursuant to § 8—101(b)(2) to enact CB- ²⁵⁸ 90, the text amendment that the citizens sought to challenge in this judicial action.

The question raised by this case is whether the citizens have an available administrative remedy that precludes direct resort to the courts until after the administrative remedy has been exhausted. See Prince George’s County v. Ray’s Used Cars, 398 Md. 632 , 922 A.2d 495 (2007). C. Exhaustion of Administrative Remedies Required In support of its motion to dismiss the citizens’ complaint, the Council argued that the citizens had not yet exhausted their administrative remedies because there will be an opportunity for the citizens to raise all objections to the validity of CB-90 if a property owner applies for the special exception contemplated by the ordinance. Because no such application had been filed as of the date the citizens filed suit, the Council argued that the suit was premature, stating: Plaintiffs, it is submitted, have set forth no facts in their complaint to justify an exception to the exhaustion rule.

They do not show that they are impeded in any way from participating in a special exception proceeding, nor do they claim that the bill they challenge prevents administrative or judicial review of a special exception decision. In particular, they do not allege that it would be futile, a waste of time or money or both, to offer evidence in a special exception case authorized by CB-90. Plaintiffs cannot show that it would be futile or impossible to oppose an elderly housing special exception application filed under CB-90. The point, for present purposes, is that they have not tried, they have not exhausted available administrative remedies.

But they must do so, before they can bring a declaratory judgment action in this Court. The Zoning Ordinance and the Regional District Act give plaintiffs perfectly adequate and available remedies, remedies that are primary or exclusive, and they must be exhausted. ²⁵⁹ ... [The citizens’] claims against CB-90-2004 are not ripe until there is a final and reviewable administrative decision based on that zoning legislation. With respect to whether exhaustion of administrative remedies is required before a party may resort to direct court action, the Court of Appeals explained in Zappone v. Liberty Life Insurance Co., 349 Md. 45, 60-61 , 706 A.2d 1060 (1998), that there are three categories of administrative remedies: 1) “exclusive,” meaning that only an administrative, and not a judicial, remedy is available; 2) “primary but not exclusive,” meaning that “a claimant must invoke and exhaust the administrative remedy, and [then] seek judicial review”; and 3) “fully concurrent,” meaning that “the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy.” “Which one of these three scenarios is applicable to a particular administrative remedy is ordinarily a question of legislative intent.” Id. at 61 , 706 A.2d 1060 . There is an additional consideration in this case because the citizens chose to proceed by way of a declaratory judgment action.

The Declaratory Judgment Act states: “If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.” Md.Code (1974, 2006 Repl.Vol.), Courts and Judicial Proceedings Article, § 3—409(b). As a result, the Court of Appeals “has consistently held that because, under the Declaratory Judgment Act, statutory administrative remedies are exclusive, the administrative procedures established must be exhausted before a litigant may seek declaratory relief from a trial court.” Moose v. Fraternal Order of Police, 369 Md. 476, 487 , 800 A.2d 790 (2002). 1. Remedies under Article 28, § 8-106 The Regional District Act provides an administrative appeal process for review of the zoning hearing examiner’s decision with respect to granting or denying an application for ²⁶⁰ a special exception. Art. 28, § 8-110(a)(3) states: “In Prince George’s County the district council shall provide for the appeal of decisions of the zoning hearing examiner in special exception and variance cases to the district council.” Art. 28, § 8-110(a)(5) further provides: “The district council in either county also may authorize the board of zoning appeals to interpret the zoning maps or pass upon disputed questions of lot lines or district boundary lines or similar questions as they arise in the administration of the regulations.” Whether the administrative appeal of the zoning hearing examiner’s decision is heard by the District Council or the Board of Ap peals—see Art. 28, § 8-110(a)(l)—-judicial review is expressly authorized under Art. 28, § 8-106(e) if the appeal is heard by the District Council, and under Art. 28, § 8-111.1(a) if the appeal is heard by the Board of Zoning Appeals.

The Council argues in this Court that the citizens have not yet pursued available administrative remedies, stating: The citizens must show, in special exception proceedings, why their rights have been violated, as they alleged in their complaint. They must also argue in administrative proceedings, if they choose to, why CB-90-2004 is unconstitutional or otherwise invalid. Then, having exhausted administrative remedies by opposing the special exception application, and having preserved their argument that CB-90-2004 is not valid by making the argument to the District Council, the citizens would be authorized, under § 8-106(e) of the Regional District Act, to file a petition for judicial review in the circuit court. They would then be able to present all validity arguments, as well as their arguments about how CB-90-2004 violates their rights and causes them injury.

According to the Council, the citizens must wait until someone applies for a special exception to build elderly housing in the R-E zone, and the citizens must then assert their arguments about the invalidity of CB-90 in that special exception proceeding. Judicial review of that administrative process is authorized by Art. 28, § 8-106(e), quoted above. Review of the circuit court’s decision by this Court is expressly authorized by Art. 28, § 8-106(j). ²⁶¹ Ray’s Used Cars, supra, 398 Md. 632 , 922 A.2d 495 , is a case that also considered whether a party claiming that a Prince George’s County zoning text amendment is invalid may proceed directly to court to seek declaratory and injunctive relief. Ray’s Used Cars bears many similarities to the citizens’ case.

In both cases the Prince George’s County District Council amended the zoning ordinance by adopting a text amendment. No effort was made in either case to seek immediate judicial review of the Council’s action pursuant Art. 28, § 8-106(e). In both cases, the parties who were unhappy with the zoning text amendment waited a substantial period of time after the effective date of the amending bill before seeking any judicial relief. When the respective suits were filed, the plaintiffs in each case attacked the validity of the zoning text amendment and sought declaratory and