Howard Research & Development Corp. v. Concerned Citizens for the Columbia Concept

Davidson, J., delivered the opinion of the Court. This case presents the question whether the Howard County Board of Appeals (Board of Appeals) has authority to ³⁵⁹ entertain an appeal from an action of the Howard County Planning Board (Planning Board) approving the construction of a gasoline service station (gas station) in the Columbia New Town District (Columbia). 1 The relevant statutory, charter, and code provisions are Md. Code, Art. 25A, § 5 (U), Howard County Charter, Art. V, § 501 (b) and § 501 (f), and Howard County Code, § 16.301. Maryland Code (1957, 1981 Repl. Vol. & 1982 Cum.

Supp.), Art. 25A, § 5 and § 5 (U), effective 1 June 1962, provide in pertinent part: "The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article 11A of the Constitution . . . : "To enact local laws providing (1) for the establishment of a county board of appeals ... (4) for the decision by the board on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order....” (Emphasis added.) ³⁶⁰ Howard County Charter, Art. V, § 501, as amended effective 4 December 1980, provides in pertinent part: "(b) Powers and functions. The Board of Appeals may exercise the functions and powers relating to the hearing and deciding, either originally or on appeal or review, of such matters as are or may be set forth in Article 25A, Section 5, Subparagraph (U) of the Annotated Code of Maryland, excluding those matters affecting the adopting of or change in the general plan, zoning map, rules, regulations or ordinances. "(f) Implementing legislation.

The powers and functions of the Board of Appeals as herein provided for shall be defined by implementing legislation heretofore or hereafter enacted by the Council, subject to and to the extent required by applicable State law.... To the extent permitted by State law, the Council shall also have the power, by legislative act, to prescribe other appeals to be heard by, or to limit the jurisdiction of, the Board of Appeals in addition to those specified in this Article.” (Emphasis added.) Howard County Code (1977), § 16.301, enacted 12 March 1969, provides in pertinent part: "The Howard County Board of Appeals shall have the following zoning powers: "(b) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by any administrative official in the application, interpretation or enforcement of this title or of any regulations adopted pursuant thereto.” (Emphasis added.) ³⁶¹ This case originated in 1978 when BP Oil Company, Inc. (BP), pursuant to Howard County Zoning Regulation, § 119 C.15, 2 petitioned the Planning Board for approval of a site development plan that proposed the construction of a gas station in Columbia. On 8 November 1978, the Planning Board, over the protest of The Concerned Citizens for the Columbia Concept (protestants), granted BP’s petition and approved the construction of the gas station. The protestants appealed to both the Circuit Court for Howard County and the Board of Appeals.

On 16 January 1979, while these appeals were pending, BP filed a petition for a declaratory judgment in the Circuit Court for Howard County in which The Howard Research and Development Corp. (HRD), the developer of Columbia, intervened. In its petition, BP requested that the trial court declare, insofar as here relevant, that the Board of Appeals had no jurisdiction to hear the appeal from the action of the Planning Board approving BP’s construction of a gas station. On 2 November 1979, the trial court entered an order declaring, among other things]” that the Board of Appeals had no such jurisdiction. An appeal was filed to the Court of Special Appeals.

In Howard Research and Development Corp. v. Howard County, 46 Md.App. 498 , 418 A.2d 1253 (1980), cert. denied, 289 Md. 736 (1981), that Court considered the question whether, under the then Howard County Charter, 3 the Board of Appeals had authority to hear an appeal from an action of the Planning Board. The Court of Special Appeals ³⁶² noted that the then Howard County Charter, Art. V, § 501 (b) granted the Board of Appeals all of the powers enumerated in Md. Code, Art. 25A, § 5 (U) including the power to review an action of an administrative agency approving a project. That Court concluded that under Md. Code, Art. 25A, § 5 (U) and then Howard County Charter, Art. V, § 501 (b), the Board of Appeals had authority to review the action of the Planning Board approving the construction of a gas station. On 8 September 1980, the Court of Special Appeals reversed the decision of the trial court and "remanded for the passage of a decree consistent with [its] opinion.” Howard Research & Dev.

Corp., 46 Md.App. at 518 , 418 A.2d at 1264 . As a result of the 4 November 1980 General Election, Howard County Charter, Art. V, § 501 (b) and § 501 (f) were amended to their present form, effective 4 December 1980. On remand, on 27 August 1981, the trial court determined that under Howard County Charter, Art. V, § 501 (b) and § 501 (f) as amended, the Board of Appeals had no jurisdiction to hear an appeal from the Planning Board’s action approving the construction of a gas station. The protestants appealed to the Court of Special Appeals.

That Court, in an unreported opinion, The Concerned Citizens for the Columbia Concept v. BP Oil, Inc., No. 1254, September Term, 1981, filed 30 April 1982, determined that the amendment to Howard County Charter, Art. V, § 501 (b), effective 4 December 1980, constituted "nothing more ³⁶³ than linguistic housecleaning”; that it had effected no substantive change; and that, under Md. Code, Art. 25A, § 5 (U) and Howard County Charter, Art. V, § 501 (b), the Board of Appeals continued to have authority to hear an appeal from the Planning Board’s action approving the construction of a gas station. Accordingly, it reversed the judgment of the trial court and remanded the case "for further proceedings pursuant to this opinion.” Petitions for a writ of certiorari were filed and granted. We shall affirm the judgment of the Court of Special Appeals for reasons other than those expressed by that Court. Here, the petitioners contend that the 1980 amendments to Howard County Charter, Art. V, § 501 (b) and § 501 (f) effectuated a substantial change in the authority of the Board of Appeals.

They assert that, as a result of the amendments to the Charter, the Board of Appeals now has the power to entertain only such appeals as are authorized by the Cbunty Council of Howard County (County Council). They maintain that Howard County Code, § 16.301 does not authorize an appeal from an action of the Planning Board because the Planning Board is an administrative agency composed of five members and, therefore, is not an "administrative official” as specified in that section. Additionally, they assert that there is no other code provision that specifically authorizes an appeal to the Board of Appeals from an action of the Planning Board. The protestants contend that the 1980 amendments to Howard County Charter, Art. V, § 501 (b) and § 501 (f) did not alter the authority of the Board of Appeals and that, now as before, the language of § 501 (b) as amended, coupled with the language of Md. Code, Art. 25A, § 5 (U), authorizes the Board of Appeals to entertain an appeal from an action of the Planning Board.

In our view, the unambiguous language of the Howard County Charter as amended and of preexisting implementing legislation establishes that the Board of Appeals has the authority to entertain an appeal from an action of the Planning Board. ³⁶⁴ A charter or an ordinance generally is read and construed in the same manner as a statute. See Pickett v. Prince George’s County, 291 Md. 648, 660-61 , 436 A.2d 449, 456 (1981); Clarke v. County Comm’rs for Carroll County, 270 Md. 343, 349 , 311 A.2d 417, 421 (1973); Prince George’s County v. Beard, 266 Md. 83, 91 , 291 A.2d 636, 640 (1972); Anderson v. Harford County, 50 Md.App. 48, 51 , 435 A.2d 496, 498