Montgomery Preservation, Inc. v. Montgomery County Planning Board of Maryland-National Capital Park & Planning Commission

ADKINS, J. In their quest to obtain historic designation for Silver Spring’s Perpetual Building, Montgomery Preservation, Inc., et al., (“Petitioners”) wade hip-deep into Maryland administrative law and appropriate remedies. After Petitioners made proper formal requests, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (“MNCPPC”) decided not to recommend the Perpetual Building for historic designation, and not to amend the county’s Master Plan for Historic Preservation to include the building. The Planning Board (“Respondent”) forwarded this non-recommendation to the Montgomery County Council, which, sitting as an administrative agency, concluded it could take no action on the matter and therefore did nothing. Petitioners brought a complaint, seeking a writ of administrative mandamus and claiming that the Council’s inaction rendered the Planning Board’s previous recommendation final and appeal-able.

The Circuit Court for Montgomery County dismissed the Petitioners’ complaint, holding that the Council’s inaction trig ³⁶⁹ gered a default provision of the relevant statute, meaning the Council had indeed “acted” and no judicial review of the Planning Board’s recommendation could take place. This dismissal was affirmed by the Court of Special Appeals, and we granted certiorari on June 17, 2011. Petitioners presented the following question for our review, as summarized and restated by us: 1 Was the Planning Board’s recommendation to not amend the Master Plan a final appealable administrative agency decision? We shall hold that the Planning Board’s recommendation was not a final appealable agency decision and, consequently, affirm the Court of Special Appeals’ decision.

STATEMENT OF FACTS In May 2007, the Silver Spring Historical Society applied to Montgomery County’s Historic Preservation Commission to nominate the Perpetual Building, in Silver Spring, for historic designation. In Montgomery County, historic designation is achieved by inclusion of a property, via amendment, on the “Master Plan for Historic Preservation.” Following county procedure, 2 the Preservation Commission reviewed the nomination and recommended to the MNCPPC’s Planning Board (“Planning Board”) that the Perpetual Building be designated on the county’s Master Plan. ³⁷⁰ Once the Planning Board receives a nomination, it must evaluate it and send a recommendation to the County Council. 3 Montgomery County law lists nine criteria for the Planning Board to use to evaluate designation nominations, and the Planning Board determined that the Perpetual Building met five of them. See Montgomery County Code Chapter 24A-3(b). Accordingly, Planning Board staff prepared a “Draft Amendment to the Master Plan for Historic Preservation,” recommending that the Perpetual Building be designated for historic preservation.

The Planning Board then held a hearing on January 10, 2008, as mandated by Montgomery County Code Chapter 33A-6, to consider whether to designate the Perpetual Building on the Master Plan. That March, the Planning Board ultimately voted 3 -0, with two members absent, against recommending the Perpetual Building as a historic resource. The Planning Board revised its “Draft Amendment” to reflect the March decision and sent it to the Montgomery County Council (“Council”) 4 on July 14, 2008. The Draft Amendment stated: This amendment recommends that the Silver Spring Branch of the Perpetual Building Association should not be designated on the Master Plan for Historic Preservation, and should not be protected by the County’s Historic Preservation Ordinance^] ³⁷¹ When the chairman of the Planning Board sent the Draft Amendment to the Council, he included a cover letter that explained: After extensive deliberation, the Board voted to not recommend this property for historic designation.

We were not convinced that the history or architecture of this building met the standards of Chapter 24A or the Master Plan for Historic Preservation. Although we are not recommending this property for historic designation, we recognize that the County Council is the final decision maker in regard to amending master plans. Thus, we are sending this document forward for the Council’s review and consideration; however, we urge the Council to concur with the Board’s recommendation and to not designate this particular property. The Council took up the matter during a meeting on October 28, 2008.

After a proper motion and second, the Council voted against scheduling a public hearing on the Planning Board’s Draft Amendment. The Council did nothing further concerning the Petitioner’s application or the Planning Board’s recommendation. On December 1, 2008, Petitioners filed a complaint for a writ of administrative mandamus in the Circuit Court for Montgomery County. 5 Petitioners requested “judicial review of the Planning Board’s decision to not recommend designation” of the Perpetual Building as a historic site. Respondent moved to dismiss, arguing mainly that the Planning Board’s recommendation was not appealable as the final order of an agency.

After a hearing, the Circuit Court granted the Respondent’s motion, reasoning: I am not persuaded that this complaint ... is appropriate for mandamus. [The Planning Board’s] action was a recommendation only. In this case they did not recommend it, and in the end, the final decision was up to the Council. ³⁷² [I]f the petitioners have a complaint, it is with the District Council----But I don’t think a writ of mandamus is appropriate in this case[.] Petitioners moved to alter or amend the judgment, which the Circuit Court denied. In a timely appeal, Petitioners argued to the Court of Special Appeals that the Council’s inaction transformed the Planning Board’s recommendation into “a final appealable agency action under which [Petitioners] can seek mandamus review.” Montgomery Pres. Inc. v. Montgomery County Planning Bd., 197 Md.App. 388, 393 , 14 A.3d 1, 3-4 (2011).

The court disagreed, holding that “the Planning Board’s recommendation was not an appealable final administrative decision.” Id. at 394 , 14 A.3d at 5 . Petitioners filed a petition for certiorari, which we granted. See Montgomery Pres., Inc. v. Park & Planning, 420 Md. 81 , 21 A.3d 1063 (2011). DISCUSSION We are reviewing the dismissal of Petitioners’ request for a writ of administrative mandamus.

We must interpret Maryland statutory and case law, and we will review whether the lower courts’ conclusions were correct as a matter of law. See, e.g., Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 384 , 2 A.3d 344, 351 (2010); Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879, 883 (2004). We look to Maryland’s statutory grant of power to determine each entity’s role to play in this case.

First, Article 28 of the Annotated Code of Maryland outlines the general powers that the Council and the MNCPPC have over master plan amendments: The general plan may be amended, extended, added to, or revised from time to time by the initiation and adoption of appropriate amendments to it by the [MNCPPC]. Any functional master plan, local area master plan, or any amendment thereto shall be an amendment to the general plan if so designated by the appropriate district council. ³⁷³ [Njothing in this subsection shall prevent, in a judicial review on the record of a governmental action concerning development, consideration of the reasonableness of a plan or its appropriateness and completeness in relation to the governmental action and review. Each functional master plan, or any amendment thereto, shall be an amendment to the general plan if so designated by the appropriate district council. Md.Code Ann. (2009, 2010 Repl.Vol.), Article 28, § 7-108(a)(5)-(6), (c)(2).

The statute further describes the procedure for amending the master plan, including the interplay between the Planning Board and the appropriate district council: On completion of the plan or amendment, the planning board shall transmit the plan or amendment to the district council, and also transmit copies of the plan or amendment to the County Executive. Within 60 days, the County Executive shall transmit a fiscal impact analysis to the district council with any other comments and recommendations the County Executive deems appropriate. Within 180 days after the receipt of the County Executive’s comments, recommendations, and fiscal impact analysis, the district council shall approve, modify, or disapprove the plan or amendment.... Failure of the district council to act within the time limits imposed shall constitute approval of the plan or amendment as submitted by the planning board.

Md.Code Ann. (2009, 2010 Repl.Vol.), Article 28, § 7-108(d)(2)(ii). The statute also recognizes the implications that these master plan amendments have with regard to historic preservation: The [MNCPPC] may make and adopt and, from time to time, amend a plan which shall identify and designate sites, structures with their appurtenances and environmental settings, or districts having a historical, archeological, architectural, or cultural value.... The plan shall constitute an ³⁷⁴ amendment to the general plan ... with the consent of the governing body of that municipality. Consent of the governing body shall constitute the agreement of the municipality to be bound by all rules and regulations governing such sites[.] Md.Code Ann. (2009, 2010 Repl.Vol.), Article 28, § 7-108(e).

The legislation also gives the Council the authority to adopt regulations to further historic preservation. See Md.Code Ann. (2008, 2010 Repl.Vol.), Article 28, § 8-101(c). The Council has broader power and more definite authority to alter the master plan, and the Planning Board’s power is defined narrowly, subject to the final decision-making power of “proper authorities” — in this case, the Council: The [MNCPPC] and the county planning boards, or either of them, may recommend to the proper authorities text amendments to the zoning ordinances, subdivision regulations, and any other rules or regulations authorized in this title. Md.Code Ann. Art. 28, § 7—111(b) (emphasis added); see also Md.Code Ann. (2008, 2010 Repl.Vol.), Article 28, § 8-101(c) (“[E]ach district council may provide ... regulations for the protection, preservation and enhancement of sites, structures with their appurtenances and environmental settings, or districts of historical, archeological, architectural or cultural value designated on the adopted and approved general plan.”).

Montgomery County’s Code supplements the state statute, further delineating the allocation of power between the Planning Board and the Council: After the record of a public hearing is closed, the [MNCPPC] must prepare and submit to the District Council a Planning Board draft of the plan or amendment, incorporating appropriate revisions and modifications to the public hearing draft. Montgomery County Code, Chapter 33A-7. These grants of authority provide a foundation for determining how decisions made under them may be appealed, considering that a party may seek judicial review only of an ³⁷⁵ appealable final administrative decision. See Goodwich v. Nolan, 343 Md. 130, 151 , 680 A.2d 1040, 1050 (1996) (“[T]he