Md.-Nat'l Cap. P. & P. Com'n v. Friendship Hts. and Hills

57 Md. App. 69 (1984) 468 A.2d 1353 THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. FRIENDSHIP HEIGHTS AND THE HILLS ET AL. No. 182, September Term, 1983. Court of Special Appeals of Maryland. January 6, 1984.

Certiorari Denied June 7, 1984. Maria de Loreto Rodriguez, Silver Spring, with whom were Arthur S. Drea, Jr. and Sanford E. Wool, Silver Spring, on brief, for appellant. Edward L. Genn, Rockville, with whom was Gilbert J. Genn, Rockville, on brief, for appellees, Friendship Heights and its Village Council. Norman M. Glasgow, Rockville, with whom were John F. McCabe, Jr., Christopher H. Collins and Wilkes, Artis, Hedrick & Lane, Chartered, Rockville, on brief, for appellee, Community Somerset Associates.

Argued before MOYLAN, WILNER and GETTY, JJ. GETTY, Judge. The history of the attempts by Community Somerset Associates (CSA), appellee, to develop the subject piece of land known as the Bergdoll Tract has been before the Court of Appeals on several occasions dating from Funger v. Mayor & Town Council of Somerset, 249 Md. 311 , 239 A.2d 748 (1968). Friendship Heights encompasses the entire political subdivision known as the Special Taxing District of Friendship Heights and The Hills.

It lies north of the District of Columbia, west of Chevy Chase and south of Somerset. The area is intensely developed and is situated on Wisconsin Avenue, one of the most heavily used arterials leading into the District of Columbia. Vehicular access to the Central Business District (CBD) is limited to four major streets: Wisconsin Avenue, a six lane, north-south arterial; Western Avenue, a four lane, east-west arterial; Willard Avenue, a four lane street; and Military Road, a two lane street through residential areas east of the CBD. Since the adoption of the Sector Plan for the Friendship Heights CBD in 1974, Friendship has consistently opposed the development of what it terms, with some justification, a "ring road." [1] The decision herein, by the trial court, is based upon subject matter jurisdiction.

Central to Friendship's appeal, however, is the construction of a section of that road. With this brief background, we shall proceed to the issues raised by the appeal and cross-appeal filed herein. On December 1, 1981, Community-Somerset Associates (CSA) filed an application with The Maryland-National Capital Park and Planning Commission (M-NCPPC) for approval of a site plan for development of three high-rise multi-family structures on 18.19 acres of land in the Town of Somerset in Montgomery County. The site, known as the Bergdoll Tract, fronts on Wisconsin Avenue, 14.69 acres being zoned "R-H" (multi-family, high-rise planned residential, Sec. 59-C-2) and the northern 3.5 acres zoned "R-60" (residential, one family, Sec. 59-C-1).

Included in the proposal is the construction, on private property, of a portion of Friendship Boulevard. The M-NCPPC Planning Board held hearings on the application on January 21, 1982, and on March 18, 1982, and subsequently approved a portion of the site plan authorizing the construction of one building containing 210 units and including the proposed extension of Friendship Boulevard. With the consent of the applicant, CSA, action was deferred on the remainder of the plan. Partial approval of site plans is permitted by Sec. 59-D-3 of the Montgomery County Zoning Ordinance.

Thereafter, Friendship Heights and The Hills filed an appeal in the Circuit Court for Montgomery County, pursuant to Article 41, § 256 of the Maryland Code, the Administrative Procedure Act (APA). This appellant was, according to the record, aggrieved by the decision authorizing the construction of Friendship Boulevard which, upon completion, will establish, in their view, a "ring road" connecting with Wisconsin Avenue and impacting adversely upon the residents of Friendship Heights. The Circuit Court for Montgomery County, Judge Fairbanks, dismissed the appeal citing as his reasons therefor that site plan review by the M-NCPPC is not a contested case [2] under the APA and, therefore, the Circuit Court lacked subject matter jurisdiction to review the approval of the site plan. Notwithstanding its decision on the issue of jurisdiction, the trial court addressed the substantive issues of standing, sufficiency of the evidence and alleged procedural errors in the administrative hearing.

The court did so, it stated, "for the purposes of judicial economy." The trial judge decided that the agency decision approving the site plan proposal demonstrates "beyond any doubt that this site plan received the most intensive study and review by the Board and its staff." Friendship Heights and M-NCPPC both appealed from the court's dismissal of the case. The issues are: 1. Whether M-NCPPC, whose site plan approval was upheld by the Circuit Court, may appeal from that order. 2. Whether the Circuit Court properly dismissed the appeal of Friendship Heights for lack of jurisdiction. 3.

Whether the M-NCPPC's site plan approval was supported by substantial evidence and was otherwise procedurally correct. STANDING The trial court found that Friendship Heights had standing to appeal from the action taken by M-NCPPC by reason of the expanded concept of the powers of the District and the Village Council articulated in Smith v. Edwards, 292 Md. 60 , 437 A.2d 221 (1981). That case held that the Village Council had the implied power to engage in administrative and judicial proceedings to oppose intensification of development in Friendship Heights and The Hills. CSA alleges that Friendship Heights lacks standing to appeal because the roadway under consideration is outside their boundaries, citing Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137 , 230 A.2d 289 (1967).

Under Bryniarski , two conditions precedent must be met before a person has standing to appeal to the Circuit Court from an administrative decision: 1. He must have been a party to the proceeding before the Board; and 2. He must be aggrieved by the decision of the Board. Conceding that Friendship Heights is a "party," CSA reasons that it is not "aggrieved" where the property directly affected is not within its boundaries.

We note that Bryniarski dealt with the rights of private citizens to appeal from administrative decisions and not with the standing of duly elected officials to act on behalf of their constituents. Five years after the decision in that case, moreover, the Legislature added to the APA Section 256A which states: For the purposes of this subtitle, the political subdivisions of this State and their agencies and instrumentalities have the status of an interested person, petitioner, or party, as the case may be, in all matters including appeals. (1972, Ch. 449) Admittedly, the project involved is contiguous to Friendship Village. The southern boundary of the site coincides with the boundary between Somerset and Friendship Heights.

Two Friendship Heights streets come to dead ends at or near the southern site boundary which also marks the edge of the Friendship Heights Central Business District. Whether Friendship Boulevard is a "ring road" as alleged by Friendship Heights, or a private right of way controlled by a card operated automatic gate, as envisioned by M-NCPPC, we believe that Friendship Heights has demonstrated the requisite interest to be considered as an aggrieved party and, therefore, has standing to appeal from a decision that may adversely impact upon the safety, health and orderly development of appellant's district. On the issue of standing to appeal, as to Friendship Heights, we concur in the decision of the trial court. A second issue of the right to appeal relates to the vicariously successful party in the Circuit Court, M-NCPPC.

Generally, a party who prevails at the trial level may not appeal. Offutt v. Montgomery County Board of Education, 285 Md. 557 , 404 A.2d 281 (1979). This principle, however, has exceptions. Administrator, Motor Vehicle Admin. v. Vogt, 267 Md. 660 , 299 A.2d 1 (1973).

The party favored by the trial court may appeal from a favorable judgment in order to preserve its right of review of adverse rulings. Fennell v. G.A.C. Finance Corp. of Balto, 242 Md. 209 , 218 A.2d 492 (1966). The M-NCPPC, although nominally successful herein, maintains that it has been in fact prejudiced by the trial court's judgment that site plan review is not a contested case under APA. Typically, site plan decisions are appealed to the Circuit Court under the provisions of the APA.

The decisions become final in thirty days and, when appealed, are regulated by specific provisions in the Act and by the "B" rules of the Maryland Rules of Procedure. The trial court's decision, unchallenged, would render M-NCPPC's decisions on site planning subject to attack under a mandamus, declaratory or injunctive action for a three year period, rather than for thirty days. Completion of approved development projects would, therefore, be severely compromised. In Vogt, supra, the Court of Appeals dismissed the cross appeal of the successful party, because the trial court explicitly confined its decision to the issue mentioned in the judgment (unconstitutionality of a statute).

Additionally, the issues raised by the cross appeal were considered in the opinion, but an appeal will not lie from the trial judge's opinion, since it forms no part of the judgment. Ibid., 267 Md. p. 665, 299 A.2d 1 . We believe the present case is distinguishable. Here, the court attempted to decide the substantive issues and conditioned that determination upon appellate review of the question of jurisdiction.

Judge Fairbanks said: "Therefore, assuming that another tribunal may rule that jurisdiction under the Administrative Procedure Act does exist, the questions of standing, administrative procedures, sufficiency of evidence and the like are presented." Fennell, supra, makes it clear that a cross appeal must be taken by the party prevailing in the trial court if he wishes to preserve adverse rulings. See Reece, Adm'r v. Reece, 239 Md. 649 , 212 A.2d 468 (1965). The trial court herein explicitly held that site plan review is not a contested case under the Administrative Procedure Act. Despite the court's approval of the M-NCPPC fact finding, the judgment rendered was dismissal of the appeal for lack of subject matter jurisdiction.

Clearly, M-NCPPC is aggrieved thereby and has the requisite standing to appeal from this adverse decision. The trial court properly so held. JURISDICTION The trial court filed a comprehensive Memorandum and Order concluding that Section 59-D-3 of the Montgomery County Code does not require a hearing in site plan applications and, therefore, the case is not a "contested case" as defined by statute. Consequently, the court held, no appeal is available and the court lacks jurisdiction to entertain an appeal under the Administrative Procedure Act.

We disagree. Jurisdiction under the statute is conferred by virtue of Art. 41, § 255 of the Act which reads: "(a) Right to review — Any party aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof under this subtitle." The critical phrase is "contested case." If the proceeding constitutes such a case, an appeal under the statute is authorized. Article 41, § 244(d) of the Act provides the following definition: " Contested case means a proceeding before an agency in which the legal rights, duties, statutory entitlements or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing." We believe that the trial court's interpretation of the pertinent statute is too narrow and inconsistent with the case law applicable thereto. The Act is a general grant of statutory review power to the Circuit Court over administrative decisions.

Once the definitional standard of a contested case is met, there is no need or requirement for separate jurisdictional authority; entitlement to review is provided by Section 255 of the Act. A hearing is required in site plan review by virtue of the Montgomery County Planning Board's Rules of Procedure. These rules have been adopted pursuant to authority granted to the agency under Section 245 of the APA. [3] We recognized in Hopkins v. Md. Inmate Grievance Comm., 40 Md. App. 329 , 391 A.2d 1213 (1978), that rules and regulations promulgated by an administrative agency cannot be waived, suspended, or disregarded as long as such rules and regulations remain in force. See also Board of Education of Anne Arundel County v. Barbano, 45 Md. App. 27 , 411 A.2d 124 (1980).

Adherence to administrative agency regulations has been recognized in federal as well as state jurisdictions and has become known as the "Accardi Doctrine" following its adoption by the Supreme Court in U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954). There the Court vacated a deportation order of the Board of Immigration and Appeals because the Board and the Attorney General failed to follow their own regulations. Our recitation of the doctrine in Hopkins, supra, tracks the language from United States v. Heffner, 420 F.2d 809 (4th Cir.1970); "An agency of the government must scrupulously observe rules, regulations or procedures which it has established.

When it fails to do so, its action cannot stand and courts will strike it down." We hold that a hearing is required "by law" under the rules adopted by M-NCPPC and, therefore, the proceeding is within the ambit of the APA as a contested case. The trial court's determination that it lacked jurisdiction to entertain the appeal is incorrect. Although the trial court herein stated that the case of Prince George's County v. Blumberg, 288 Md. 275 , 418 A.2d 1155 (1980), is distinguishable, we note that the Court of Appeals held that the judicial review provisions of the APA were applicable to that case. In Blumberg , the Washington Suburban Sanitary Commission had no statutory provisions requiring the WSSC to hold hearings, nor were there any rules providing for a hearing as a matter of right. [4] The court, in deciding the applicability of APA, noted that the WSSC provided respondents with a hearing in that case.

We discern no difference, for the purposes of this case, between the M-NCPPC and the WSSC. Both were created by the General Assembly as state agencies responsible for providing services which would otherwise be the responsibility of the respective counties. The powers granted to each are similar; each has regional functions and responsibilities as the representative of the State of Maryland in carrying out its powers and duties. As state agencies, the procedures of each are governed by the APA.

Blumberg, supra; Katz v. Washington Sub. San. Comm., 284 Md. 503 , 397 A.2d 1027 (1979); O & B, Inc. v. Md. Nat'l Cap. P. & P., 279 Md. 459 , 369 A.2d 553 (1977).

The issue in Katz and in O & B was sovereign immunity; that does not, however, dilute the agency status of either for purposes of review under the Administrative Procedure Act. Additionally, we disagree with the trial court's determination that site plan review is a legislative function. Where an administrative body is resolving disputed questions of adjudicative facts concerning particular parties, it is engaged in a quasi-judicial function which requires a hearing. Hyson v. Mont.

Co. Council, 242 Md. 55 , 217 A.2d 578 (1966). The M-NCPPC's planning board action involves the application of statutory standards, under the authority set forth in Sec. 59-D-3, to the facts presented by the testimony and exhibits presented at the site plan review hearing. Where, as here, the administrative tribunal is under a duty to consider evidence and apply the law to the facts as found, thereby exercising some discretion, the function is quasi-judicial. See Handlon v. Town of Belleville, 4 N.J. 99 , 71 A.2d 624 (1950), cited in Eliason v. State Roads Comm., 231 Md. 257 , 189 A.2d 649 (1959).

The trial court, furthermore, found that "legal rights" and "statutory entitlements" of specific parties were determined in this case. The court should have concluded therefrom that procedural due process required a hearing. Hyson, supra; Albert v. Pub. Serv.

Comm., 209 Md. 27 , 120 A.2d 346 (1956). SUBSTANTIAL EVIDENCE Under Md.Rule 1085 we will not ordinarily review any matter not raised and decided by the trial court. The rule, however, permits us to review a point or question of law where the point or legal question was presented to the trial court thereby avoiding the expense and delay of another appeal to this Court. The question of substantial