Precision Small Engines, Inc. v. City of Coll. Park

Hotten, J. We must consider the interplay between the enumerated zoning authority granted to Prince George's County ("the County"), the extent of the authority of the City of College Park ("the City") as a municipality within the County, and the rights and authorities reflected in an agreement entered into between the County and the City pursuant to Md. Code (Repl. Vol. 2012) § 22-119 of the Land Use Article ("Land Use"). The parties to this appeal are Precision Small Engines ("PSE"), a tenant to the property at 9651 Baltimore Avenue, College Park, and the owners of the property, Gregory Hnarakis and Thomas Stokes (collectively "Petitioners"), and the County and the City (collectively "Respondents"). The parties contest the County's zoning authority, outlined in Prince George's County Code §§ 27-253, 4-352(a), and the City's authority under Maryland Code (Repl.

Vol. 2013) 5-211 of the Local Government Article ("Local Gov't"). We must determine whether the Memorandum of Understanding ("MOU") between the County and the City altered the City's authority to enforce zoning violations within the limits of its municipality. For reasons to be explained, we hold that the MOU does not alter the City's authority, and that the MOU permitted the City to require additional permits under the City Building Code. Accordingly, we shall affirm the judgment of the Court of Special Appeals.

Background Petitioners initially challenged citations issued by the City in the District Court of Maryland sitting in Prince George's County. PSE and other occupants of shared property received citations after failing to obtain required City permits. PSE challenged its fines, arguing that portions of the MOU prohibited the City from issuing any occupancy and building permits, including permits authorized under the City Code. On this basis, some, but not all, of the fines were dismissed.

Hnarakis employed the same argument, but it was not successful. On December 1, 2014, while the disputes were still pending before the District Court for Prince George's County, Petitioners filed an action for declaratory judgment in the Circuit Court for Prince George's County. Petitioners sought a declaration that the terms of the MOU restricted the City from requiring City non-residential occupancy or building permits where occupants previously obtained use and occupancy, or building permits, from the County. Respondents filed a Motion for Summary Judgment on December 4, 2015.

On February 18, 2016, the circuit court held a hearing. In a Memorandum Opinion and Order, issued May 24, 2016, the circuit court decided that the MOU restricted the City from requiring owners or occupants of non-residential properties within the municipal corporate limits to obtain non-residential occupancy permits issued by the City, where such persons have obtained County use and occupancy permits. The court also determined that the MOU restricted the City from requiring owners or occupants of non-residential property within the municipal corporate limits to obtain building, grading, or other construction permits from the City, where persons have obtained permits from the Department of Permits, Inspection, and Enforcement. The circuit court opined that the City's and County's permits virtually serve the same purpose, and the only difference between the permits is that the City permit must be renewed annually after re-inspection, whereas the County permit is issued upon changes in property use or occupancy.

However, the circuit court held that the City could exercise its police powers for the purpose of health, safety, and welfare, including annual inspections, and any other purpose not specifically addressed in the Order. Respondents noted a timely appeal to the Court of Special Appeals. The Court of Special Appeals issued a reported opinion on June 6, 2017, reversing the circuit court's decision. The court reasoned that the plain language of the MOU clearly dictated that the City did not give up any of its power to adopt and enforce its own building code, or its own health, safety, and welfare regulations.

City of Coll. Park v. Precision Small Engines , 233 Md. App. 74 , 87, 161 A.3d 728 , 735, cert. granted sub nom. Precision Small Engines v. Coll. Park , 456 Md. 57 , 170 A.3d 292 (2017).

The intermediate appellate court reasoned that the circuit court's ruling deviated from the MOU's plain language, and projected an interpretation outside of the parties' intention. Id. Petitioners now request that this Court determine whether the Court of Special Appeals erred in declaring that the MOU does not restrict the authority of the City to issue non-residential building and occupancy permits. 1 We determine that the Court of Special Appeals properly concluded that the MOU does not limit the City's power to enact additional ordinances. The City is granted enactment power pursuant to several statutes, including Local Gov't § 5-211.

Under these statutes, the City may enact regulations that control the issuance of permits. The MOU only controls power that the County delegated to the City, not power that originates from other sources of law. Sources of Zoning Authority Under Land Use § 22-104, the County Council for Prince George's County, sitting as the District Council, may adopt and amend the County's zoning laws. A zoning law under Land Use § 14-101(q)(1)(2) is defined as, "the legislative implementation of regulations for zoning by a local jurisdiction [and] includes a zoning ordinance, zoning regulation, zoning code, and any similar legislative action to implement zoning controls in a local jurisdiction." Pursuant to that power, the County adopted Subtitle 27 of the Prince George's County Code, which regulates all zoning matters, including use and occupancy permits.

County Code § 27-253 provides that: (a) None of the following activities shall take place unless a use and occupancy permit certifying compliance with this Subtitle has been issued for the activity by the Building Inspector: (1) Use of a building, structure, or land; (2) Conversion of a building, structure, or land from one use to another use; (3) Medical practitioner's, insurance sales, and real estate sales offices; (4) Conversion of a one-family detached dwelling to include additional dwelling units (by Special Exception). (b) Use and occupancy permits shall not be required for the following: (1) One-family dwelling (other than a new one-family dwelling) used for a single family; (2) Agricultural uses; (3) Accessory uses (except where a specific use is allowed as accessory to another use); or (4) Home occupations for which no permit is specifically required, unless requested by the applicant. (c) All use of the property shall be in conformance with the use and occupancy permit, including the accompanying plans. (d) When an occupant vacates premises, and a different occupant assumes possession of such premises, the new occupant is required to obtain a use and occupancy permit, regardless of whether the use has changed.

(e) No use and occupancy permit shall be issued by the Department of Permitting, Inspections, and Enforcement until after the expiration of the specified appeal period from a Planning Board decision concerning the subject property of the permit, unless the right of appeal has been waived; nor shall any permit be issued during the pendency of any appeal to, or review by, the District Council. (f) The Chief of Police and the Fire Chief are authorized to direct the Police Department and the Fire/Emergency Medical Services Department respectively, to take all immediate reasonable and necessary action to cease and desist the operation of any activity requiring a use and occupancy permit when a use and occupancy permit has not been issued. (g) The Chief of Police, the Fire Chief, and the Director of the Department of Permitting, Inspections, and Enforcement are authorized to direct the Police Department, the Fire/Emergency Medical Services Department, and the Department of Permitting, Inspections, and Enforcement, respectively, to take all immediate reasonable and necessary action to cease and desist the operation of any activity requiring a use and occupancy permit when a use and occupancy permit has been issued and is not in compliance with the provisions of this Section and all applicable use and occupancy provisions of the Zoning Ordinance. (h) The Chief of Police and the Fire Chief are authorized to direct the Police Department and the Fire/Emergency Medical Services Department respectively, to take all immediate reasonable and necessary action to cease and desist the operation of any activity requiring a use and occupancy permit when the activity is found to present an imminent danger and threat to the health, safety, and welfare of the public by not doing so, that there are no other mitigating actions to be taken to resolve the imminent danger and threat to the health, safety, and welfare of the public, and that there are no other reasonable means of preventing further danger and threat to the health, safety, and welfare of the public resulting from the continuation of the activity.

(i) Immediate reasonable and necessary action shall include, but not be limited to: entering the building, structure, and land; securing the building, structure, and land; removing the occupants of the building, structure, and land; padlocking the building, structure, and land; and preventing the use and occupancy of the building, structure, and land. (j) Actions taken pursuant to Sections 27-253(f), (g), and (h) shall remain in force and effect unless amended or vacated by a decision of the Zoning Hearing Examiner in accordance with Section 27-264.01(g) or by a decision of a court of competent jurisdiction. Prince George's County Code § 27-253. As indicated by the Court of Special Appeals, "[a] municipal corporation within the County, such as the City, does not have zoning authority except as specifically authorized by State law; however, it has 'concurrent jurisdiction' within its corporate limits to enforce County zoning laws." Precision Small Engines , 233 Md. App. at 78 , 161 A.3d at 730 (quoting [Land Use] § 22-119(a)(2) ).

Beyond the authority granted by Land Use § 22-104, Land Use § 22-119(b) describes the requirements needed before a municipality may exercise its jurisdiction. Under § 22-119(b), a municipality must enter into an agreement with the County, which must outline the following: (1) the method by which the county will be advised of citations issued by a municipal inspector; (2) the responsibility of the municipal corporation or the county to prosecute violations cited by the municipal corporation; (3) the disposition of fines imposed for violations cited by the municipal corporation; (4) the resolution of disagreements between the municipal corporation and the county about the interpretation of zoning laws; and (5) any other matter that the district council considers necessary for the proper exercise of the authority granted by this section. Land Use § 22-119. The agreement between the County and the City is typically in the form of a MOU, and must sufficiently describe the powers granted to, and the limitations imposed upon the City in enforcing County zoning laws.

Once entered, the MOU grants a municipality the power to exercise enforcement authority equal to that of the County. In this case, the County and the City entered into a valid MOU, discussed in detail infra. The City also derives its powers to enact local regulations from Local Gov't §§ 5-211, 5-202 and 5-209. Pursuant to Local Gov't § 5-211, a municipality may enact regulations relating to the erection of buildings and signage, and may enact a building code and regulations which relate to occupancy and use permits.

Additionally, the City can require inspections of property under this Article. Local Gov't § 5-202 empowers a municipality to adopt ordinances designed to protect "personal property from damage and destruction" as well as for the protection of "the health, comfort, and convenience of the residents of the municipality." Local Gov't § 5-202. Finally, Local Gov't § 5-209 permits a municipality to regulate certain health hazards or other nuisances that may cause unsanitary conditions or conditions detrimental to health. Local Gov't § 5-209.

Pursuant to the authority derived therefrom, the City adopted an ordinance regulating use and occupancy permits. Under the City ordinance, any rented residential property or any non-residential property that is required to get a County Use permit must also obtain a City use and occupancy permit. Coll. Park, Md., City Code § 144 (1966).

Parameters of the MOU Pursuant to Local Gov't §