Mossburg v. Montgomery County, Md.

ELDRIDGE, Judge. The principal issue in this zoning case concerns the validity of a requirement that four out of the five members of the Montgomery County Board of Appeals approve an application for a special exception. The requirement, often referred to as a “supermajority” requirement, was enacted by the County Council of Montgomery County in its zoning ordinance, § 59-A-4.128 of the Montgomery County Code, and was embodied in a Board of Appeals’ rule. It was not, however, expressly authorized by the General Assembly in the zoning enabling statute.

I. On October 10, 1989, William H. Mossburg, Jr. filed an application for a special exception for a private solid waste ⁴⁹⁷ transfer station. 1 The property for which the application was sought is located along Southlawn Lane in Rockville, Maryland and is classified in the Heavy Industrial Zone, I-2. 2 A solid waste transfer station is permitted in the 1-2 zone as a special exception use. § 59-C-5.21 of the Montgomery County Code (1984) (“zoning ordinance”). Pursuant to § 59-C-5.21 of the zoning ordinance, the site for a solid waste transfer station “[m]ust be included in the Comprehensive Solid Waste Management Plan for Montgomery County.” On October 20, 1987, the Montgomery County Council adopted Resolution 11-499 and thereby amended the Solid Waste Plan specifically to include Moss-burg’s Southlawn property. The resolution authorized Mossburg to accept up to 400 tons of debris per day and also stated that “[t]he County supports this amendment to facilitate moving the operation to the new site.” The Montgomery County Board of Appeals conducted several days of hearings on January 25, March 8, 12, 15, 22, and 29, 1990. 3 Extensive testimony was received from ⁴⁹⁸ witnesses in support of, as well as in opposition to, the special exception. The record before the Board consisted of 1,498 pages of testimony and 160 exhibits.

The Board then voted on the application. Three of the five members voted to grant the special exception with conditions, and two of the five members voted to deny the special exception. On September 28, 1990, the Board formally issued its decision and denied the special exception application for failure to obtain the requisite supermajority under § 59-A-4.123 of the zoning ordinance. 4 The resolution denying the ⁴⁹⁹ application contained no findings of fact or conclusions of law. Each board member who voted to deny the application wrote a separate statement setting out his/her reason for denying the application.

A third member of the board, who voted to approve the application, also submitted a statement. Mossburg filed in the Circuit Court for Montgomery County the present action for judicial review of the Board’s decision. Mossburg argued that the requirement in the zoning ordinance that four affirmative votes of the Board members were necessary to grant the special exception was invalid because it was not authorized by the General Assembly. Mossburg also argued that the denial of the special exception was invalid because the Board failed to make findings of fact and conclusions of law.

Finally, Mossburg argued that the Board’s decision was not based upon substantial evidence. The decision of the Board was defended by Montgomery County and several private entities and individuals. 5 The circuit court sustained the validity of the four vote requirement, holding that the Maryland General Assembly in the Regional District Act, Code (1957, 1990 Repl.Vol., 1992 Cum.Supp.), Art. 28, § 8-110(a), authorized the County to adopt the supermajority requirement. The circuit court reasoned that because the denial of the special exception resulted from an “operation of law,” no findings of facts or conclusions of law were required. Finally, the court held that the administrative record contained sufficient evidence to support the Board’s decision.

Therefore, the circuit ⁵⁰⁰ court affirmed the decision of the Board denying the application for a special exception. Mossburg appealed to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the circuit court’s judgment. The Court of Special Appeals held that § 5(U) of the Express Powers Act, Code (1957, 1990 Repl.Vol.), Art. 25A, § 5(U), authorized the supermajority requirement imposed by § 59-A-4.123 of the local zoning ordinance, that the Board’s action in denying the application “by operation of law” was “quasi-legislative” and that, therefore, the Board was not required to provide Mossburg with findings of fact in support of its decision, and that the Board’s decision was supported by substantial evidence and was fairly debatable.

Mossburg filed a petition for a writ of certiorari which this Court granted, 328 Md. 125 , 613 A.2d 394 . Mossburg argues that the Regional District Act, rather than the Express Powers Act, is the source of the zoning authority in Montgomery County and the source of the authority to decide special exceptions. He also contends that a special exception proceeding authorized by the Regional District Act is adjudicatory and that, therefore, the Board of Appeals was acting in a quasi judicial, rather than quasi legislative, capacity. Mossburg goes on to argue that a local ordinance providing a supermajority requirement in an adjudicatory zoning matter, such as a special exception proceeding, is valid only if expressly authorized by the General Assembly in the zoning enabling statute.

Since the Regional District Act does not expressly authorize a super-majority in a special exception proceeding, Mossburg concludes that the supermajority requirement is invalid. Montgomery County concedes in this Court that its zoning authority comes from the Regional District Act only and concedes that the Court of Special Appeals mistakenly referred to the Express Powers Act as the source of Mont ⁵⁰¹ gomery County’s zoning authority. 6 Nonetheless, the County argues that the Regional District Act authorizes the County to adopt a supermajority requirement for special exceptions. Because the Regional District Act grants broad authority to the County Council to establish zoning regulations, the County contends that the enactment of the super-majority requirement was a proper exercise of the legislative authority of the Montgomery County Council. Moreover, the County argues that the special exception proceedings before the Board have both quasi judicial and quasi legislative components and that when an application is denied because of the failure of the applicant to obtain a supermajority, the denial is by operation of law and no findings of fact are required.

Finally, the County maintains that the Board’s decision was fairly debatable, was supported by substantial evidence in the administrative record, and was not arbitrary or capricious. The Twin Lakes Citizens Association also filed a brief and presented oral argument in this Court. The Association’s arguments are essentially the same as Montgomery County’s, although the Association contends that the Court of Special Appeals correctly held that the supermajority requirement is authorized by the Express Powers Act.

II

Article 25A, § 5, enumerates the express powers which “are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A” of the Maryland Constitution. Montgomery County is a charter county under Article XI-A of the Constitution. Section 5(U) of the Express Powers Act provides: ⁵⁰² “County Board of Appeals “To enact local laws providing (1) for the establishment of a county board of appeals whose members shall be appointed by the county council; (2) for the number, qualifications, terms, and compensation of the members; (3) for the adoption by the board of rules of practice governing its proceedings; and (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 ... 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____” The Court of Special Appeals reasoned that because the Express Powers Act provides for the creation of a county board of appeals which may adopt “rules of practice governing its proceedings,” the Act authorized the supermajority requirement in the zoning ordinance. The Express Powers Act authorizes a county to have a board of appeals.

The zoning authority, however, comes from the zoning enabling act which, in the present case, is the Regional District Act. The Regional District Act is the exclusive source of zoning authority in Montgomery County. As Chief Judge Murphy stated for this Court in Chevy Chase View v. Rothman, 323 Md. 674, 685 , 594 A.2d 1131, 1136 (1991): “[It is] clear that the Regional District Act is now the exclusive source of zoning authority in Montgomery County and that any enactment concerning zoning in the county, which is at variance with the Regional District Act, is inoperative within the district. Thus, the Express Powers Act, Code, Article 25A, § 5(X), authorizing chartered counties to enact laws relating to zoning and planning, has no application in Montgomery County, see § 5 of ch. 70 of the Acts of 1975, as long as the Regional District Act remains in force and effect.” ⁵⁰³ See also Northampton v. Prince George’s County, 273 Md. 93, 96 , 327 A.2d 774, 776 (1974); Prince George’s County v. Maryland-Nat’l.

Capital Park and Planning Comm’n, 269 Md. 202, 225-226 , 306 A.2d 223, 226 , cert. denied, 414 U.S. 1068 , 94 S.Ct. 577 , 38 L.Ed.2d 473 (1973). Consequently, the Court of Special Appeals erred in holding that Montgomery County was authorized by § 5 of the Express Powers Act to enact a supermajority requirement for the approval of a special exception.

III

The question remains, however, whether the Regional District Act authorizes Montgomery County to adopt a supermajority requirement for special exceptions. Section 8-110 of the Regional District Act, Art. 28, provides in relevant part as follows: “(a) A district council in either county, in its zoning regulations, may provide that the board of zoning appeals, the district council, or an administrative office or agency designated by the district council, in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations, may either grant or deny, upon conditions as may be deemed necessary to carry out the purposes of this article, special exceptions and variances to the provisions of the zoning regulations in harmony with their general purposes and intent____ “(b) In Montgomery County, notwithstanding any provision in Article 25A, § 5(U), of the Annotated Code to the contrary, a decision by the county board of appeals on applications for zoning variances or exceptions may be appealed within 30 days by any person, municipality, corporation, or association, whether or not incorporated, which has appeared at the hearing in person, by attorney, or in writing, to the circuit court for the county, which may affirm or reverse the decision appealed from or remand it to the board for further consideration for any reason, or dismiss the appeal as provided by law. Any ⁵⁰⁴ party to the proceedings in the circuit court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this section are exclusive.” The language of § 8-110 does not expressly state that a county may require a supermajority in special exception cases.

Nevertheless, the County and the Twin Lakes Citizens Association rely on several cases decided by this Court upholding supermajority requirements. This reliance is misplaced, as the cases in this Court upholding supermajority requirements have done so when the supermajority was expressly authorized by the General Assembly. The leading case is Mayor and City Council of Baltimore v. Biermann, 187 Md. 514 , 50 A.2d 804 (1947). In Biermann , the applicant applied for a permit to construct a filling station in Baltimore City.

Section 7 of the zoning enabling act for Baltimore City then provided that “[t]he concurring vote of four members of the board” was necessary for the board to approve an application for a filling station. 187 Md. at 519 , 50 A.2d at 806 . Two members of the five member board in Biermann voted against the approval of the application, and this Court upheld the super-majority requirement. The supermajority provision applied by the board in Biermann , however, was required by the General Assembly in the enabling statute. It was not simply a product of the City’s zoning ordinance.

Moreover, in Biermann “[n]o attack was made upon the validity of the Enabling Act ... under which the Board acted.” 187 Md. at 521 , 50 A.2d at 808 . See also Prince George’s County v. McBride, 268 Md. 522 , 302 A.2d 620 (1973) (supermajority required by the General Assembly in a public local law); Adler v. City of Baltimore, 220 Md. 623, 629 , 155 A.2d 504, 507 (1959); Gilmor v. Mayor and City of Baltimore, 205 Md. 557, 563 , 109 A.2d 739, 742 (1954) (the Court specifically noted that the supermajority in the Biermann case, as well as in the Gilmor case, was required by the General Assembly in the enabling act). ⁵⁰⁵ No case has been called