Falls Road Community Ass'n v. Baltimore County

MATRICCIANI, J. On August 8, 2008, the Falls Road Community Association, Inc., Dennis Sutton, and Kathleen House filed suit in the Circuit Court for Baltimore County, naming as defendants Oregon, LLC, and Baltimore County, Maryland. On August 31, 2010, the court granted summary judgment in favor of appellees on appellants’ counts requesting writs of mandamus. The court allowed appellants’ request for declaratory judgments to proceed and, after a three day trial, entered judgment in favor of appellees on September 29, 2010. The court subsequently denied appellants’ motion to alter or ⁴²⁸ amend judgment, and appellants noted this timely appeal on November 9, 2010. 1 Questions Presented Appellants present the following questions, which we have edited to comport with our discussion: I. Whether the Circuit Court erred in granting Appellees’ motions for summary judgment on Appellants’ claims for mandamus relief in Counts I, II, and III?

II

Whether the Circuit Court erred in entering judgment for Appellees on Appellants’ claim for declaratory relief in Count IV?[ 2 ] For the reasons that follow, we answer no to both questions and we affirm the judgments of the circuit court. Factual and Procedural History Factual History Oregon leases from The Baltimore County Department of Recreation and Parks (“Parks Department”) a 2.63 acre parcel of land located on the grounds of the Oregon Ridge Park. 3 The ⁴²⁹ lease provides that Oregon’s use must comply with all federal, state, and local laws, ordinances, and regulations, and reserves for the Parks Department the “right and duty at all times, to exercise full governmental control and regulations with respect to all matters connected with the Lease[.]” In 1994, the County submitted three petitions to the Baltimore County Zoning Commissioner. First, the County requested a special hearing, pursuant to Baltimore County Zoning Regulations (“BCZR” or the “Regulations”) § 500.7, to determine whether the property and Oregon’s proposed improvements were exempt from the Regulations. Second, the County requested a special exception to allow a restaurant on the property.

Third, the County requested a special variance from BCZR § 409.8, which required a paved parking lot. 4 On June 28, 1994, the Deputy Zoning Commissioner determined that, because the property was being leased to a private party, its use would be subject to the BCZR. The Deputy Commissioner simultaneously granted the County’s petition for a special exception to operate a restaurant, on the condition that its outdoor area must be used only for seated dining—not for catering or special events—and must not employ “tents, canopies, or other similar overhead covering,” except for “table umbrellas.” 5 Finally, the Deputy Commissioner granted a variance to allow a parking lot of “crushed stone or other permeable surface in lieu of the required paving,” so as not to “disturb the natural state” of the parking area. ⁴³⁰ Various individuals and community associations appealed the zoning commissioner’s decision. While the appeal was pending, Oregon entered into a restrictive covenant with The Valleys Planning Council, Inc., whose terms refined certain terms of the Deputy Commissioner’s order. The County and Oregon incorporated these terms in a supplemental lease agreement of November, 1994.

On February 8, 1995, the County Board of Appeals issued an order that upheld the Deputy Commissioner’s order granting the County a special exception. The Board’s order incorporated certain of the covenanted terms: 3. The alternate outdoor dining area/patio locations ... shall only be utilized for dining or pre-dinner cocktails, so long as patrons are subsequently served dinner, and shall be limited in quantity to 125 persons. There will be no outdoor bars, live music, tents, or similar overhead coverings on or serving the outdoor dining area.

Music shall not be audible from any neighboring residences that exist as of the date of this Board’s Order. 9. The parking area shall consist of a non-paved surface such as stone or a similar permeable surface unless otherwise required by law. All parking will be contained within the leased area. The Board’s Order also granted the County a variance to allow “94 parking spaces in lieu of the required 145.” In April, 2002, Oregon was negotiating the lease of an adjacent parcel from the County in order to expand its property and filed three zoning petitions, all seeking to amend the Board’s 1995 order.

First, Oregon requested a special hearing to remove restrictions on the outdoor seating area, including restriction three (above). Second, Oregon sought to expand the area subject to the special exception in order to provide additional parking on property yet to be leased. Third, Oregon sought a variance to permit the expanded portion of the parking lot to be “stone ... in lieu of a durable and dustless surface” required by BCZR § 409.8, so that its ⁴³¹ use would be consistent with restriction number nine of the 1995 order. The Board denied Oregon’s petitions in an order dated July 2, 2004.

The accompanying memorandum explained that because the adjacent property was not yet leased from the County, Oregon was not an “interested person” under Maryland Code, Article 25A, § 5(U), and the Board lacked authority to grant Oregon’s petitions. Notwithstanding that determination, the Board went on to address several substantive issues raised in Oregon’s petitions and in the protestants’ oppositions thereto. The Board explained that Oregon’s arguments against the outdoor seating restrictions could have been raised during the proceedings in 1995, but because they were not, the Board would not disturb the 1995 restrictions. The Board noted that while Oregon “is certainly entitled to file [its] requested changes to the original 1995 Board’s Order, in the form of a special hearing, special exception, or variance request, it is the responsibility of this Board not to disturb the original Board’s Order simply to accommodate the desires of the Petitioner in response to the increased popularity and prestige of his establishment.” Similarly, Oregon’s opponents charged it with operating in violation of its special exception and requested that the Board “revisit the entire special exception because it[ was] a change of the prior use.” But the Board explained that it would not do so because, “if the restaurant was operating illegally, it more appropriately was the subject of a ‘Code Enforcement’ action—subject to investigation and determination by the Department of Permits and Development Management.” The Board did, however, note its concern as to whether Oregon “is in compliance with the original Board’s Order relative to the parking lot surface” because an engineering expert testified that the then-existing parking lot was “tar and chip” with a stone base and macadam covering, “which is considered impervious by Baltimore County for purposes of stormwater management.” The Board therefore denied Oregon’s petitions for a special exception and variance because—among other reasons—the “existing and proposed parking lots considerably exceed the 10% permeabil ⁴³² ity limit set forth in BCZR § 1A03.4.B.3.” 6 The Board’s opinion concluded by denying all three of Oregon’s petitions. 7 In early 2006, the Parks Department Director decided to investigate citizen complaints about the condition of Oregon’s parking lot.

On March first of that year, the County Department of Permits and Development Management (“Permits and Development”) received a memorandum from the Parks Department Director, who wrote as the “landlord and property owner” to request a property inspection so that the County could “formalize a plan and design that [would] allow the department to conform to ADA as well as safety requirements as they relate to the parking lot conditions.” 8 A Permits and Development Department staff member inspected the parking lot and wrote to his director that “[t]he parking lot is not ADA compliant due to the fact that the access route has numerous potholes” and because “[p]arking space striping is non existant” [sic]. The staff member further advised that “[s]triping, repaving & proper sign height is needed at the site ASAP to avoid any future issues with ADA requirements and to [reduce 9 ] chances of personal injury.” On March 28, 2006, the Permits and Development Director forwarded these findings to the Parks Department Director. On June 8, 2006, the Parks Department Director notified Oregon in writing that because “the parking lot violates the ⁴³³ Americans with Disabilities Act,” Oregon was “in default under the terms of the Lease.” The letter therefore “demanded” that Oregon, at its own expense, “pave the parking lot to bring it into compliance with the ADA and to remedy its unsafe condition.” The letter further notified Oregon that if it failed to take that action within fifteen days, the Department would “enter upon the premises and make the necessary repairs to the parking lot,” with Oregon still to bear the costs. Sometime in November of 2006, a contractor paved the property’s parking lot.

The Parks Department inspected the property and, on November 30, notified Oregon that “the parking lot is in compliance with the Americans with Disabilities Act” (emphasis in original), and that should Oregon fail to pay the contractor’s invoice of $85,700.00, the Parks Department would “have the right, but not the obligation, to terminate the Lease, take possession of the premises and pursue any and all legal remedies it may have under the Lease and Maryland Law.” In a letter dated December 19, 2006, counsel for Oregon wrote a letter to the Parks Department and explained that he thought it “necessary to summarize the sequence of events leading up to this demand for payment letter.” Counsel then wrote that after giving Oregon notice of default, “Baltimore County exercised its right to enter upon the premises and repair the condition of the parking lot, and retained the services of George Cowman, Jr., Inc. to pave the parking lot.” At some point prior to this action, Oregon installed several large squares of fabric over the outdoor seating area, each approximately ten feet on a side, hanging from structures resembling streetlights that line the area’s perimeter and are bolted into the ground. Beneath each square hangs an electric ceiling fan with lights. In 2007, appellants contacted the Permits and Development Director, the Parks Department Director, the County Office of Law, and the Director of Environmental Protection and Resource Management, and requested that each take action to change Oregon’s present condition. In the summer of 2008, ⁴³⁴ the County Office of Law informed appellants that the County would not act on the appellants’ requests.

Procedural History In August, 2008, appellants brought suit against Oregon and the County in circuit court. In the first three counts of their complaint, appellants requested that the court issue writs of mandamus ordering Baltimore County to “comply with the County Code and County Charter” and enforce the terms of the Board’s orders, its supplemental lease agreement with Oregon, and BCZR § 1A08.4.B.3 (the impervious surface limitation). In count four, appellants also requested that the court: A. enter a declaration that Oregon has violated and shall refrain from further violating (i) the terms of the February 1995 and July 2004 orders of the Board of Appeals, (ii) the terms of the Lease Agreement and Supplemental Lease Agreement; and (iii) the impervious surface limitation in 1A03.4.B.3 of the Zoning Regulations; B. enter a declaration that the County has failed to comply with its duties under the County Code and the County Charter by (i) failing to enforce the terms of the February 1995 and July 2004 orders entered by the Board of Appeals; (ii) failing to enforce the terms of the Supplement Lease Agreement; (iii) failing to enforce the impervious surface limitation in section 1A03.4.B.3 of the Zoning Regulations; and C. enter a declaration that the terms of the February 1995 and July 2004 orders of the Board of Appeals are fully enforceable and shall be enforced by the County, including the terms of those orders providing that: (i) catering and the hosting of weddings or outdoor events at the Oregon Grille is prohibited; (ii) the parking lot at the Oregon Grille shall remain a non-paved surface such as stone or similar permeable surface; and (iii) all parking at the Oregon Grille shall be contained within the area leased from the County; ⁴³⁵ D. enter a declaration that the terms of the Lease Agreement and Supplemental Lease Agreement are fully enforceable and shall be enforced by the County, including the terms providing that: (i) the outdoor dining area at the Oregon Grille shall be used only for dining or pre-dinner cocktails so long as patrons are subsequently served dinner; (ii) catering and the hosting of weddings or outdoor events at the Oregon Grille is prohibited; (iii) the parking lot at the Oregon Grille shall remain a non-paved surface such as stone or similar permeable surface; and (iv) the Property shall “fully comply with all federal and state laws, county ordinances, and regulations of public authority”, including but not limited to the impervious surface limitation in section 1A03.4.B.3 of the County’s Zoning Regulations; E. enter a declaration that the Americans with Disabilities Act does not require that the entire parking lot at the Property be paved; F. enter an order that Oregon shall remove all paving from that portion of the parking lot at the Property that is not required to be paved under the Americans with Disabilities Act; and G. grant such other and further relief that the nature of this cause requires. On June 1, 2010, appellants moved for partial summary judgment.

Oregon opposed appellants’ motion and filed a cross-motion for summary judgment. Appellants argued that it was undisputed that appellees had violated the Board’s orders and breached the lease agreement, and that the court should issue a writ of mandamus “directing the County to enforce the prohibitions against: (1) paving the parking lot; (2) having more than 94 parking spaces in the parking lot; and (3) installing permanent canopies in the outside dining area[,]” and enter “a declaration that the ADA does not and did not require the paving of the parking lot,” as well as “a declaration that the County and Oregon, at their expense, shall remove the paving from the parking lot and return that area of the Property to a permeable condition^]” ⁴³⁶ On August 31, 2010, the court entered summary judgment against appellants on the issue of mandamus. In the same order, the court denied appellants’ motion for summary judgment on its declaratory counts, leaving those requests for trial. 10 At trial, Parks Department Director Robert Barrett testified that he advised Oregon that it could bypass the County’s competitive bidding process by selecting a paving contractor, and he asserted that the County had no involvement in the process beyond its written notices, detailed above. Oregon’s witness and owner, Theodore Bauer, denied selecting or meeting the contractor and testified that the County had retained the contractor (as Oregon’s counsel stated in the aforementioned letter of December 19, 2006).

The court also heard testimony from David Carroll, Director of the County Office of Sustainability. Carroll testified that the parking lot surface was impermeable at the time of the Board’s 1995 order and remained impermeable after the paving in 2006. At the conclusion of trial, the court found that the fabric coverings in the outdoor seating area were “very large umbrellas” that complied with the Board’s orders, and that neither the ADA nor BCZR § 1A03.4.B.3 required that the lot be paved. However, the court found that the parking lot’s impermeable surface and number of parking spaces violated the Board’s orders. 11 The court then held that although appellants “may have been required to institute some zoning ⁴³⁷ action” to enforce the Board’s orders and BCZR § 1A03.4.B.3, this did not preclude declaratory relief because the zoning action was a “concurrent remedy” 12 under § 3-409(c) of the Maryland Uniform Declaratory Judgments Act, and because the court was “not entirely persuaded that there is ... an adequate remedy available to the Plaintiffs under the zoning law[.]” However, the court held that declaratory relief would not terminate the uncertainty or controversy, that it would not be “proper,” under section 3-412 of the Declaratory Judgment Act, to order Oregon to remove the paved surface at its own expense, that appellants had not requested that the court order the County to remove the paved surface itself, and that § 3-409 of the Declaratory Judgment Act did not authorize injunctive relief.

Therefore, the court denied appellants’ request for relief and entered judgment in favor of appellees. The court subsequently denied appellants’ motion to alter or amend judgment, and appellants noted this timely appeal. ⁴³⁸ Discussion It is easy to conceive of government as the Heraclean offspring of our mortal electorate and our immortal ideals, acting with heroic purpose and singleness of mind. But in reality, government more often resembles the many-necked Hydra, flickering its tongues and periodically replacing its departed heads. And while we wish to call upon our government as a hero, we face the tragic reality that it is fundamentally an amalgamation of elected and appointed people, each doing his or her best to serve the public but unable to maintain perfect consistency in all circumstances.

Thus we find Oregon, directed in contradiction by the County’s various heads. Appellants, meanwhile, take the County to be an animal at their command that must mindlessly enforce the law in its various forms. But the County is no beast, and there is a process to resolve these conflicts and direct the County’s actions. Because appellants have not availed themselves of that process, we shall affirm the judgments in favor of appel-lees, albeit on grounds different than the trial court’s rulings. 13 I. Duty, Discretion, and Mandamus Appellants first contend that the trial court erred when it held that the requested relief was within the County’s discretion and therefore refused to issue writs of mandamus.

Appellants argue that mandamus should have issued because “the County had a clear, non-discretionary duty to enforce the Orders of the Board of Appeals, the Zoning Regulations, and the Supplemental Lease Agreement.” 14 ⁴³⁹ A writ of mandamus issues “to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right.” Goodwich v. Nolan, 343 Md. 130, 145 , 680 A.2d 1040 (1996) (quoting Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 514 , 331 A.2d 55 (1975); George’s Creek Coal & Iron Co. v. County Comm’rs, 59 Md. 255, 259 (1883)). Importantly, mandamus “does not lie where the action to be reviewed is discretionary or depends on personal judgment.” Id. (citing Bd. of Educ. of Prince George’s County v. Sec’y of Pers., 317 Md. 34, 46 , 562 A.2d 700 (1989); In re Petition for Writ of Prohibition, 312 Md. 280, 305-06 , 539 A.2d 664 (1988)).

Appellants argue that the County Code and Charter bind certain of its agencies to enforce the Baltimore County Zoning Regulations, Board orders, 15 and the terms of the lease between the County and Oregon. 16 First, Code § 3-2-1103 ⁴⁴⁰ provides that the Department of Permits and Development Management “shall administer and enforce ... [a]ll laws, maps, and regulations related to zoning[.]” 17 Appellants argue that this mandate attaches not only to the impervious surface limitation of BCZR § 1A03.4.B.3, but also to Board orders, which appellants consider to be “laws related to zoning.” Second, Code § 3-2-604 states that the Department of Environmental Protection and Resource Management “shall ... [a]dminister and enforce environmental laws, regulations, programs, and activities,” which, according to appellants, includes BCZR § 1A03.4.B.3. Third, section 522.1(a)(5) of the Baltimore County Charter states that the Office of Planning and Zoning “shall have the responsibility and duty of planning for Baltimore County, including ... [a]dministering the zoning code,” and in particular BCZR § 1A03.4.B.3. Fourth, Charter Sections 523 and 533 charge the Department and the Board of Recreation and Parks with the “responsibility” and “duty” to manage park lands and to “perform such other functions and duties as may be provided from time to time by the legislative act of the county council,” including the requirement in Code § 3-9-110 that any lease of parklands “[ejxpressly reserv[e] for the county administration the right and duty at all times to exercise full governmental control and regulation in respect to all matters connected with the lease not inconsistent with the terms of the lease.” We first note that none of the above provisions require the enforcement of any terms in Oregon’s original or supplemental lease agreements, and we therefore agree with the ⁴⁴¹ trial court’s holding that the enforcement of its rights as lessor is generally within the County’s discretion. While the Parks Department must reserve the “right and duty” to exercise governmental control and regulation, the Code nowhere requires that the Parks Department enforce those reserved rights and duties.

Although Charter Sections 523 and 533 charge the Parks Board and Department with management of park lands, those sections do not contain specific edicts requiring enforcement of any particular laws or regulations. And while they are obligated to perform “other functions and duties as may be provided from time to time by the legislative act of the county council,” there is no indication that the council has imposed legal or regulatory enforcement as one such function or duty. Thus, if the County is obligated to pursue its “rights and duties,” that obligation must be found in the Code or Charter rather than the Park Department’s contractual obligations. 18 See Hall v. State Roads Comm’n, 171 Md. 449, 453 , 189 A. 206 (1937) (“mandamus will not lie for an alleged breach of contract”); State ex rel. Clark v. Maryland Inst. for Promotion of Mechanic Arts, 87 Md. 643 , 41 A. 126 (1898) (“The city cannot by contract bargain away its legislative discretion, nor can such contract control its legislative or governmental authority.”).

Mandamus, therefore, will not lie to enforce the terms of Oregon’s lease from the County. The County argues, moreover, that § 3-6-201 of the County Code Enforcement Title trumps the foregoing provisions, but the County’s posited interpretation of that section is incorrect. Section § 3-6-20 provides that “[i]n addition to any other remedy authorized by law,” county officials “may en ⁴⁴² force and seek correction of a violation as provided in this title” (emphasis added). The County argues that this section makes any and all enforcement permissive, citing our opinion in Board of County Comm’rs v. Potomac River Ass’n, 113 Md.App. 580 , 688 A.2d 515 (1997).

In that case, we held that enforcement under Section 5.05 of Maryland Code, Article 66B is discretionary because it contains the following permissive language: The county or municipal corporation may enjoin the transfer or sale or agreement by action for injunction brought in any court of equity jurisdiction or may recover the penalty by civil action in any court of competent jurisdiction. Id. at 599-603 , 688 A.2d 515 (emphasis added). But unlike Article 66B of the Maryland Code, the word “may” in Baltimore County Code § 3-6-201 follows the phrase “any other remedy authorized by law.” This syntax limits application of the word “may” to the enforcement provisions contained in the Code Enforcement Title, leaving open the possible existence of mandatory enforcement provisions elsewhere. And mandatory enforcement provisions are precisely what we find in the various Code and Charter provisions recited above. 19 Thus, while enforcement under the Code Enforcement Title may be permissive, the County is incorrect when it asserts that enforcement is permissive in general.

The Charter and Code allow the County to choose among various methods of enforcement, but that is the limit of the County’s discretion and does not appear sufficient to overcome appellants’ rights to mandamus. Relief by mandamus is appropriate where a tribunal refuses to exercise the judgment and discretion imposed upon them by statute. See ⁴⁴³ Harvey v. Marshall, 389 Md. 243, 276-77 , 884 A.2d 1171 (2005) (“When an agency, in the face of a formal invocation of its discretion by an affected person coming within the class of persons contemplated by the statute, fails to act on a matter committed to its discretion by that statute, there is as much aggrievement and potential for abuse or prejudice as when an agency affirmatively announces an adverse decision.”), and cases cited therein. See also Mahoney v. Board of Supervisors, 205 Md. 325, 335 , 108 A.2d 143 (1954) (“[T]he courts, possessing inherent power to prevent violations of public trust, may grant mandamus requiring public officers to perform their duties without committing unlawful acts or abuses of discretion.”); Miles v. Stevenson, 80 Md. 358 , 30 A. 646 (1894); 52 Am.Jur.2d Mandamus § 49 (“Mandamus can compel the respondent to exercise his or her discretion.”).

Thus, while the trial court may have lacked authority to decree a specific course of enforcement, it could have compelled some enforcement action, to be chosen by the County in its discretion. 20 Likewise, mandamus can direct adherence to compulsory rules of administrative procedure. Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 457 , 800 A.2d 768 (2002) (“[W]e have recognized that, under some circumstances, mandamus or other traditional actions may lie to enforce administrative compliance with procedural requirements or duties.”). The most convenient course would be simply to order the County to resolve the conflicts in this case by administrative proceedings and issuance of an amended order, variance, or special exception. But appellants did not demand that the court compel administrative proceedings, which is understandable because the County’s informal acts—and present adversarial position—indicate that an administrative action likely will not resolve in their favor.

But as we explain, below, ⁴⁴⁴ this did not relieve appellants of their obligation to undertake formal administrative proceedings prior to judicial action.

II

Administrative Exhaustion The Court of Appeals addressed administrative exhaustion at length in Board of Education for Dorchester County v. Hubbard, 305 Md. 774, 786-87 , 506 A.2d 625 (1986): [W]here the General Assembly has provided an administrative remedy and there also exists an independent judicial remedy, and no statute coordinates the two or specifies which is primary, we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed.... Where ... the administrative remedy is deemed to be primary, this Court has