Garner v. Archers Glen Partners, Inc.

HARRELL, Judge. This case recalls the admonition that an appellate court should use great caution in exercising its discretion to comment gratuitously on issues beyond those necessary to be decided. Heeding that principle, we shall decide only the questions of law integral to the necessary holdings in the instant case, based on the questions properly presented in the successful petition for certiorari. On 24 September 2002, Washington Management and Development Company, Inc., 1 applied to the Prince George’s County Planning Board of the Maryland-National Capital Park and Planning Commission (the “Commission”) for approval of a preliminary plan of subdivision (the “Preliminary Plan”) for 47 residential lots 2 in Prince George’s County. 3 ⁴⁷ The proposed subdivision (the “Property”) consisted of 236.45 acres along Bald Eagle Road and is located in the so-called planned Rural Tier of Prince George’s County, as defined by the 2002 Prince George’s County Approved General Plan (the “General Plan”). 4 , 5 The Planning Board approved the Prelimi- ⁴⁸ nary Plan at a hearing on 20 February 2003, subject to certain conditions not relevant here.

The Planning Board expressed its approval and the bases therefore in a Resolution adopted on 27 March 2003. A group of area residents, individually and collectively referred to as the Greater Baden Aquasco Citizens Association (collectively, “Petitioners”), filed, in the Circuit Court for Prince George’s County, a petition for judicial review of the Commission’s action. The Circuit Court affirmed the decision of the Planning Board. Petitioners appealed to the Court of Special Appeals.

In an unreported opinion (hereinafter referred to as Archers Glen I, for convenience), a panel of the intermediate appellate court held that the Planning Board ⁴⁹ failed to articulate sufficiently the findings in support of its conclusion that the Preliminary Plan conformed to the recommendations of the Master Plan. The Court of Special Appeals vacated the Circuit Court’s judgment and directed that the case be remanded to the Planning Board for further proceedings. Although “[rjesolving [the] issue [was] unnecessary” to the intermediate appellate court’s holding, the court chose to comment on the parties’ dispute regarding “whether the Planning Board was required to consider the subdivisiones] compliance with both the General Plan and the Master Plan, or only the Master Plan.” In an attempt to avoid the expense and delay of additional appeals, we offer the following guidance for the parties to the action on remand. See Md. Rule 8-131(a). 6 We first address whether the subdivision plan must comply with both the General Plan and Master Plan, or only the Master Plan.

In Prince George’s County, development is guided by a county-wide General Plan, which operates in concert with several subregion-specific Master Plans. In land use cases generally, neither type of plan imposes mandatory criteria with which plans such as the Developer’s must comply, but in Prince George’s County, § 24-121(a)(5) of the County Code’s Subdivision Regulations requires subdivision plans to “conform to the area master plan.” See Coffey v. Md.-Nat’l Capital Park & Planning Comm’n, 293 Md. 24 [, 441 A.2d 1041 ] (1982). That section of the code, however, does not expressly state that subdivision plans must conform to the General Plan, as opposed to the Master Plan. On the basis of that omission, appellees argue that subdivision plans need not conform to the General Plan.

Appellants present no ⁵⁰ counter-argument, but they argue that appellees’ theory amounts to an after-the-fact rationalization that did not form the basis of the Planning Board’s decision. Section 24-103(a) of the Subdivision Regulations declares, “It is ... the policy of Prince George’s County to consider the subdivision of land ... as subject to the control of the County, pursuant to the General Plan, for the orderly, planned, efficient, and economical development of the County.” (Emphasis added.) Section 24-104(a)(2) then states that one of the purposes of the Subdivision Regulations is “[t]o guide development according to the General Plan, area master plans, and their amendments.” Clearly, the General Plan was intended, in some way, to guide the subdivision of land in Prince George’s County, notwithstanding the absence of the phrase “General Plan” from § 24-121(a)(5). The Master Plan, which all parties agree does apply to this subdivision, provides, “The Subregion YI Study Area Master Plan is in accordance with the General Plan, with the exception of the following which constitute amendments thereto.” Thus, the Master Plan accepts the planning policies of the General Plan as being appropriate guides to development in the particular subregion, and to the extent that the General Plan’s guidance is inappropriate for a locality, the Master Plan rejects and amends the General Plan. Given the policies and purposes of the Subdivision Regulations, as stated in §§ 24-103(a) and 24-104(a)(2), that subdivision developments in Prince George’s County be guided by the General Plan, it would make little sense if, under § 24-121(a)(5), compliance with the General Plan were not a prerequisite to subdividing land.

Under appellees’ theory, those portions of the General Plan with which the Master Plans did not disagree (i.e., those portions that were appropriate for the subregion), and therefore did not amend, would not be applied to subdivision plans. This nonsensical result is eliminated by the explanatory language in the Master Plan: “The ... Master Plan is in accordance with the General Plan, with the exception ⁵¹ of the following which constitute amendments thereto.” (Emphasis added.) By that statement, the Master Plan expressly incorporates into itself the substance of the General Plan (except as amended by the Master Plan), thereby retaining, for application to subdivisions under § 24-121(a)(5), those portions of the General Plan deemed appropriate to the subregion. The parties apparently did not litigate this issue before the Planning Board, and the Board did not expressly decide the issue in its decision.

Because we are vacating the judgment and remanding the case, ultimately, to the Planning Board, and given the fact that the issue was not litigated within the Planning Board, we find it unnecessary, and inappropriate under the circumstances, to definitively resolve how the General Plan should apply under the Subdivision Regulations. Pursuant to our remand, the parties will ham an opportunity to revisit this issue in light of the above comments. (Emphasis added). On remand, the Planning Board held another public hearing, on 23 June 2005, regarding the Preliminary Plan.

Following the hearing, the Planning Board approved the Preliminary Plan anew, again with certain conditions not relevant here. On 29 September 2005, the Planning Board adopted an Amended Resolution evidencing the reasons for its approval of the Preliminary Plan. Petitioners filed a second petition for judicial review in the Circuit Court. The Developer and the Commission responded to the petition, indicating their intent to participate in the litigation.

On 2 June 2006, the Circuit Court remanded the case to the Planning Board for “further specific and factually supported consideration^] and findings” regarding the Preliminary Plan’s conformance to the recommendations of the General Plan as “incorporated in the Master Plan when not thereby contradicted or amended.” Specifically, the Circuit Court held that the Planning Board needed to make specific findings regarding the “number of new dwelling units constructed and projected to be constructed between 2000 and 2025 in the whole of Prince George’s County; the number of ⁵² dwelling units already approved for construction in the Rural tier of Prince George’s County; and whether the addition of 46 new dwelling units in the Rural Tier will cause growth in the Rural Tier since 2000 to exceed 0.75-1.00% of overall projected dwelling unit growth.” The Developer and the Commission jointly filed a timely Notice of Appeal to the Court of Special Appeals. A panel of the Court of Special Appeals different than the one that decided Archers Glen I reversed the judgment of the Circuit Court, in a reported opinion. Archers Glen Partners, Inc. v. Garner, 176 Md.App. 292 , 933 A.2d 405 (2007) (Archers Glen II). In the Court of Special Appeals on this occasion, Petitioners argued for the first time that the Commission lacked standing to participate in the judicial review of its own decision.

The intermediate appellate court disagreed. Petitioners also contended that the Court of Special Appeals’s unreported opinion in Archers Glen I discussing the potential legal effect to be accorded the General Plan in the subdivision process (supra at 50-51, 494 A.2d at 643-44) served as the “law of the case,” and thus, the recommendations of the General Plan were binding on the Planning Board in considering and acting on the Preliminary Plan. The intermediate appellate court, however, held, in Archers Glen II, that Archers Glen I did not decide the issue of whether the General Plan was binding, and thus, the law of the case doctrine did not apply. The Court of Special Appeals went on to hold that the Planning Board had “discretion to determine whether the preliminary subdivision plan conformed ... to the goals, objectives, policies, and strategies in the General Plan.” Finally, the Court of Special Appeals concluded that the Planning Board’s approval of the Preliminary Plan was supported by substantial evidence.

We granted Petitioners’ petition for a Writ of Certiorari to consider only two questions, which we rephrase slightly: 1. May the Prince George’s County Planning Board participate as a party in a judicial review of its decision approving a Preliminary Plan for a residential development? ⁵³ 2. Does the law of the case doctrine apply to a Court of Special Appeals’s opinion in the same proceeding which addresses a legal question pursuant to Md. Rule 8-131(a) in order to provide “guidance” and “to avoid the expense and delay of additional appeals”? Garner v. Archers Glen, 403 Md. 304 , 941 A.2d 1104 (2008).

Standing of the Commission The issue of the Commission’s standing has not been preserved. Petitioners did not raise the issue of standing in the Circuit Court, either in Archers Glen I or Archers Glen II. 7 Maryland Rule 8-131(a) provides that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” See Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 71 , 825 A.2d 388, 395 (2003) (“[A]ny dispute concerning [the plaintiffs’] standing should have been raised and litigated in the Circuit Court, not the Court of Special Appeals.”); Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 292 , 686 A.2d 605, 616 (1996) (stating that the “judicial standing issue should be adjudicated by the circuit court ‘through a motion or other pleading filed by [an adverse party] to dismiss [petitioner] as a party, [petitioner’s] answer thereto, and testimony if need be on the point’”) (quoting Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 424-25 , 365 A.2d 34, 38 (1976)); Bowman Group v. Moser, 112 Md.App. 694, 698 , 686 A.2d 643, 645 (1996) (“Bowman admits that the question of standing was not raised in the circuit ⁵⁴ court. After examination of the record, we choose not to exercise our discretion and decline to review the issue of Moser’s standing to contest the rezoning.”).

Petitioners conceded at oral argument before us that a challenge to the standing of the Commission was not raised in the Circuit Court, but argued that the Developer and the Commission had not asserted Petitioners’ waiver of the standing challenge in the Court of Special Appeals in Archers Glen II. In essence, according to Petitioners, the Commission and the Developer waived their right to assert Petitioners’ waiver as a defense to the Commission’s lack of standing. It “is a settled principle of Maryland law that, ‘where there exists a party having standing to bring an action ... we shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 297 , 686 A.2d 605, 618 (1996) (quoting People’s Counsel v. Crown Dev. Corp., 328 Md. 303, 317 , 614 A.2d 553, 559-60 (1992)); Dorsey, 375 Md. at 67 n. 1, 825 A.2d at 392 -93 n. 1; Md. Ass’n of Health Maint.

Orgs. v. Health Servs. Cost Review Comm’n, 356 Md. 581, 589-90 , 741 A.2d 483, 487 (1999); Coalition for Open Doors v. Annapolis Lodge No. 622, Benevolent & Protective Order of Elks, 333 Md. 359, 371 , 635 A.2d 412, 417 (1994); County Council v. Md. Reclamation, 328 Md. 229 , 232 n. 1, 614 A.2d 78 , 80 n. 1 (1992); Bd. of Supervisors of Elections of Anne Arundel County v. Smallwood, 327 Md. 220 , 233 n. 7, 608 A.2d 1222 , 1228 n. 7 (1992); Bd. of License Comm’rs for Montgomery County v. Haberlin, 320 Md. 399, 404 , 578 A.2d 215, 217 (1990); Montgomery County v. Bd. of Supervisors of Elections for Montgomery County, 311 Md. 512 , 517 n. 3, 536 A.2d 641 , 643 n. 3 (1988); State’s Attorney of Balt. v. City of Balt., 274 Md. 597, 602 , 337 A.2d 92, 96 (1975). Our traditional reluctance to address issues of standing not necessary to the outcome of a case is highlighted in Sugarloaf Citizens Ass’n v. Northeast Maryland Waste Disposal Authority, 323 Md. 641 , 650 n. 6, 594 A.2d 1115 , 1119 n. 6 (1991). There we declined to address a possible standing issue because it was unnecessary, ⁵⁵ noting “[i]n light of our decision on the merits, we need not and do not reach any issue of standing.” In the present case, Petitioners concede that “the Developer has standing to appeal.” We ordinarily do not decide issues of standing not raised in the trial court.

Similarly, we ordinarily do not decide issues of standing where it is undisputed that one party on each side of the litigation has standing. Thus, we decline Petitioner’s invitation to address the issue of standing where unnecessary to do so in order to decide the outcome of the case. The Law of The Case Petitioners contend that the noted portion from the Court of Special Appeals’s unreported opinion in Archers Glen I, supra at 4-6, directed to the legal effect of the General Plan in the subdivision review process, established the “law of the case” and bound the Commission on remand. The “ ‘law of the case doctrine is one of appellate procedure.’ ” Scott v. State, 379 Md. 170, 183 , 840 A.2d 715, 723 (2004) (quoting Goldstein & Baron Chartered v. Chesley, 375 Md. 244, 253 , 825 A.2d 985, 990 (2003)). “[0]nce an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case.” Scott, 379 Md. at 183-84 , 840 A.2d at 723 . “Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the ‘law of the case’ and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the question decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal.” Loveday v. State, 296 Md. 226, 229 , 462 A.2d 58, 59 (1983) (quoting Fid.-Balt.

Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 372 , 142 A.2d 796, 798 (1958)). ⁵⁶ “It is well settled that the law of the case doctrine does not apply when one of three exceptional circumstances exists: the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision on the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.” Turner v. Hous. Auth. of Balt., 364 Md. 24, 34 , 770 A.2d 671, 677 (2001) (internal quotation omitted).

In Archers Glen I, however, the Court of Special Appeals did not decide the issue of whether the General Plan was a binding document in the subdivision review process in Prince George’s County. Archers Glen I is clear that its limited reflection on the role of the General Plan is not binding on the parties. Because we are vacating the judgment and remanding the case, ultimately, to the Planning Board, and given the fact that the issue [of whether the General Plan’s recommendations were binding] was not litigated within the Planning Board, we find it unnecessary, and inappropriate under the circumstances, to definitively resolve how the General Plan should apply under the Subdivision Regulations. Pursuant to our remand, the parties will have an opportunity to revisit this issue in light of the above comments.

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