Prince George's Cnty. v. Palmer Rd. Landfill

County Council of Prince George’s County v. Palmer Road Landfill, Inc. No. 2584, Sept. Term, 2018 Opinion by Leahy, J. Statutory Time Prescriptions > Waiver Where a deadline is fixed in a statute as a condition precedent to a cause of action, or is jurisdictional, it cannot be waived. See Bowles v. Russell, 551 U.S. 205, 213 (2007) (explaining that, after failing to file an appeal within the time set by statute, the petitioner could not “rely on forfeiture or waiver to excuse his lack of compliance with the statute’s time limitations”). Non-jurisdictional time prescriptions, by contrast, may be subject to forfeiture and waiver. See Kim v. Comptroller of Treasury, 350 Md. 527, 536 (1998) (“Statutes of limitations are not ordinarily jurisdictional, and are generally waivable, including the 30-day limit for filing a petition for judicial review.”).

Statutory Time Prescriptions > Waiver The timeframes in a county zoning ordinance governing special exception applications were non-jurisdictional time prescriptions, subject to waiver and forfeiture by the government. The internal deadlines, applicable to various government entities, did not present a jurisdictional impediment to the government’s ability to make a final decision on an application. Judicial Review of Administrative Agency Decisions > Arbitrary and Capricious An agency’s decision to deny an application on the ground that procedural timeframes were not followed was arbitrary and capricious because the government waived the timeframes when it invited the applicant to file a waiver of a non-jurisdictional deadline, granted that waiver, and subsequently failed to abide by the remaining deadlines itself. Circuit Court for Prince George’s County Case No. CAL18-07570 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2584 September Term, 2018 ______________________________________ COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY v. PALMER ROAD LANDFILL, INC. ______________________________________ Fader, C.J., Leahy, Eyler, Deborah S.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: August 27, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-27 15:18-04:00 Suzanne C. Johnson, Clerk The County Council of Prince George’s County, sitting as the District Council (the “Council”), appeals from a decision by the Circuit Court for Prince George’s County in favor of Palmer Road Landfill, Inc. and Palmer Road, LLC (together “Palmer Road”). Palmer Road submitted an application, in 2015, for a special exception and variance to continue operating its 175-acre rubble fill site in Fort Washington, Maryland (the “Application”). The Council denied the Application in 2018 on the ground that certain procedural time limitations contained in § 27-405.1 of the Prince George’s County Code (“PGCC”)1 were not followed, prompting Palmer Road’s petition for judicial review in the circuit court.

The court reversed the Council’s order of denial and remanded the matter to the Council with instructions to approve the Application. The ordinance in question, governing Class 3 fills, specifies that: Within one hundred and twenty (120) days after an application for a Class 3 fill is accepted by the Planning Board, the Zoning Hearing Examiner shall conduct a public hearing. The Zoning Hearing Examiner’s written decision on an application shall be issued within thirty (30) days after the public hearing. Where the District Council makes the final decision, the Council’s final order shall be issued within sixty (60) days of the Examiner’s decision.

PGCC § 27-405.01(a)(1) (emphasis added). The Council presents two questions for our review,2 which we have rephrased as follows: 1 The zoning ordinance for Prince George’s County is codified at Subtitle 27 of the Code. PGCC § 27-101 et seq. 2 The Council’s questions presented, as written in its brief, are: (Continued) 1. Did the Council err when it denied the Application based on the failure to comply with the timeframes contained in PGCC § 27-405.01(a)(1)? 2.

Did the Circuit Court err when it remanded the Council’s decision with instructions to approve the special exception and variance? We affirm the circuit court’s decision to reverse the Council’s denial of the underlying Application on procedural grounds because the timeframes contained in PGCC § 27-405.01(a)(1) were waived at every level of review, including when the Council decided to hold a hearing on the Application and failed to raise the issue until its decision to reject the Application. Concurrently, we vacate the court’s instruction to the Council to approve Palmer Road’s Application because the Council has yet to consider the Application on its merits. Accordingly, we shall affirm, in part, and vacate, in part, the judgment of the circuit court.

BACKGROUND 1. History of Site3 Palmer Road owns approximately 175 acres in Fort Washington and has been operating a Class 3 fill4 on the property through a series of grading permits issued by Prince 1. “Was the District Council’s final decision supported by substantial evidence, fairly debatable, and not premised upon an erroneous conclusion of law?” 2. “Did the Circuit Court err when it modified Council’s final decision with instructions on remand to approve the special exception and variance?” 3 The site history is drawn from the Statement of Justification that Palmer Road submitted in 2016 as part of its request for a special exception and a variance. 4 The PGCC defines “Class 3 Fill” as follows: (Continued) 2 George’s County. The site consisted originally of forty acres on which another company, starting in 1981, operated a rubble dump and then a Class 3 fill. Palmer Road purchased the forty-acre parcel and the landfill rights in 1989.

In 1991, Prince George’s County issued Palmer Road a grading permit, noted as a “reissue,” after Palmer Road purchased three additional parcels to expand the site. Throughout the 1990s, Palmer Road continued to add to the site area and the County continued to issue grading permits for operation of the Class 3 fill. On June 8, 2000, when the total site area was 108 acres, the County issued Palmer Road a grading permit with an expiration date of June 8, 2005. Palmer Road subsequently placed an additional sixty- seven acres under contract and, on September 26, 2003, was issued a grading permit with an expiration date of September 26, 2005 for the proposed total site area of 175 acres. 2.

CB-87-2003 Temporary use of land for the spreading or depositing of Class 3 fill materials, including without limitation soils difficult to compact or with other than optimum moisture content; rock and similar irreducible materials, without limit as to size, provided no detectable voids are formed into which overlying soils may later be washed; and topsoil, intermittently layered with nonorganic soil. On properties with Class 3 fill uses, at least twelve (12) inches of soil shall cover all rock or irreducible materials with any linear measurement greater than eight (8) inches. Class 3 fill materials deposited in a fill or disposal area shall be free of pollutants which may constitute a potential public health hazard, reduce surface or groundwater quality, or cause damage to property or drainage systems. Incidental fill operations associated with the development of subdivisions and other preliminary work of a developing site shall not be considered a Class 3 fill operation.

PGCC § 27-107.01(a)(47.3). (Continued) 3 On November 25, 2003, the Council enacted CB-87-2003, which imposed a special exception requirement on Class 3 fills in all zones where they are permitted. The section of the bill now codified at PGCC § 27-405.01 provides the criteria for approval of temporary special exceptions for a Class 3 fill.5 The bill took effect on March 31, 2004. The sponsor of the bill had expressed concern over the “proliferation of [Class 3 fill] uses in inappropriate locations in the County without any requirements other than a grading permit.” He explained that the purpose of CB-87-2003 was “to provide regulations that would allow the County to have better oversight of new and existing Class 3 fill operations.” After suggestions by the sponsor were incorporated, footnotes in the sections of the bill that set forth the uses permitted in different zones provided as follows: A Class 3 fill in existence as of October 7, 2003 that is operating pursuant to any validly issued grading permit, and is not in violation, shall be permitted to continue in operation as a matter of right, but is limited to the fill area established by any previously issued grading permit, not to exceed two renewals of the permit.

Those fill operations that are in violation on October 7, 2003 have until December 31, 2003 to comply, or their permit is void. As a result, CB-87-2003 grandfathered existing Class 3 fills, like Palmer Road, for two five-year permit renewals before requiring the fills to obtain special exception approval in order to continue. Palmer Road, therefore, was able to continue in operation under the grading permit issued on September 26, 2003 until its expiration on September 26, 2005. Then, in 5 CB-27-2003 also repealed and reenacted with amendments the definitions section of the zoning ordinance—PGCC § 27-107.01(a)—and the sections that outline the uses permitted in residential zones, commercial zones, and industrial zones—PGCC §§ 27- 441(b), 27-461(b), and 27-473(b), respectively. 4 accordance with CB-87-2003, Palmer Road was issued its first grading permit renewal on September 29, 2005.

The second renewal was issued in September 2010. 3. 2015 Special Exception Application On September 25, 2015, days before its second grading permit renewal was set to expire, Palmer Road submitted an application for a special exception so that it could continue the operation of the existing fill site for an additional five years. One year later, in September 2016, Palmer Road supplied the Prince George’s County Planning Department, Development Review Division (“DRD”) with a Statement of Justification (“SOJ”) in support of the special exception request. Palmer Road included a request for a variance from PGCC § 27-405.01(a)(5)6 at the end of the SOJ. Palmer Road’s Application was deemed filed on October 10, 2016 when it was accepted by the DRD.

On December 2, 2016, Christina Pompa, a member of the technical staff of the DRD (“Technical Staff”), emailed Palmer Road’s counsel requesting a response to her comments and revisions to the special exception Application, the SOJ, and the site plan. She instructed Palmer Road to “update [the] project description in [its] application to reference [the] variance sought” and to “update [the] Introduction and Request on page 6 Section 27-405.01(a)(5) places the following restriction on locating a Class 3 fill as a temporary special exception: The subject property shall not be located within a three (3) mile radius of properties containing an active or pre-existing approved or non-conforming Class 3 fill, sanitary landfill, transfer station, rubble fill, recycling facility, mining facility, sludge facility, processing facility, sand and gravel operation, or wash plant. As Palmer Road explained in its SOJ, two closed Class 3 landfills located near its facility created conflicts with § 27-405.01(a)(5). Accordingly, Palmer Road required a variance to obtain special exception approval. 5 1 of the SOJ to reference the need for a variance[,]” unless Palmer Road could provide information to eliminate the need for a variance.

Ms. Pompa also informed Palmer Road that she would review the resubmittal and then, if no further changes were necessary, request additional copies for the Zoning Hearing Examiner (“ZHE”). In January 2017, Ms. Pompa followed up and asked Palmer Road’s counsel when the resubmittal would be filed and advised that Palmer Road would need to file a “waiver request”: Per Section 27-405.01(a)(1) of the County Code, the ZHE is required to hold a public hearing within 120 days of date of acceptance by the Planning Board. In this case, the project was accepted on October 10, 2016. Therefore the ZHE is required to hold a hearing by February 7, 2017.

We are not going to make that date because the project still needs to be scheduled for a Planning Board date and the TSR needs to be published 2 weeks prior to the PB meeting date. A waiver request will need to be filed with the Zoning Section and we will provide that information to the ZHE either when we transmit the case or prior to transmitting. That same day, Palmer Road’s counsel responded to Ms. Pompa by letter stating: Pursuant to Section 27-405.01(a)(1), the applicant respectfully requests a waiver of the 120-day review period for the above-referenced Special Exception to allow time for the applicant to address recently discovered site design related questions. Therefore, please accept this request for the Zoning Hearing Examiner hearing to be rescheduled for a later date.

One month later, on February 6, 2017, the DRD applications supervisor emailed Palmer Road’s counsel to request submission of an amended special exception application, a revised SOJ, and a variance fee. Counsel replied the next day to confirm the amount of the variance fee. Then, on February 16, 2017, Palmer Road filed its resubmittal materials, including a revised special exception application and SOJ, and a point-by-point response to the items delineated in Ms. Pompa’s December 2, 2016 email. 6 In March 2017, the Technical Staff issued its report recommending approval of the Application with conditions. Because the Planning Board did not schedule the matter for public hearing and, instead, adopted the Technical Staff’s recommendation, the Application was transmitted directly to the ZHE on April 4.

The ZHE held a public hearing on June 21, 2017 and issued her notice of decision, which approved the Application with conditions, on July 21, 2017. Pursuant to its authority under PGCC § 27-312(a)(2)(C),7 the Council, on September 11, 2017, elected to make the final decision on the Application. On October 23, 2017, the Council held oral argument on the matter and heard from a member of the Planning Department, who gave a presentation on the Application, and from Palmer Road. The Chair noted, “[w]e have opposition, but he’s not signed up to speak.” After asking Palmer Road’s counsel a series of questions, another councilmember elected to take the matter under advisement and the oral argument concluded.

On February 12, 2018, the Council issued its final decision denying Palmer Road’s Application. The Order of Denial stated that the ZHE’s hearing and written decision failed to comply with the procedural requirements of PGCC § 27.405(a)(1). The Order explained that the zoning ordinance “required that the [ZHE] conduct a public hearing on the 7 The Zoning Hearing Examiner’s decision on an application for a special exception becomes final 30 days after filing the written decision, with certain exceptions. PGCC § 27-312(a)(2).

As is relevant in this appeal, the ZHE’s decision will not be final “[i]n any case where, within thirty (30) days after receipt of the Zoning Hearing Examiner’s decision, the District Council, upon its own motion and by a majority vote of the full Council, elects to make the final decision on the case itself[.]” PGCC § 27-312(a)(2)(C). Pursuant to PGCC § 27-291(a), the calculation of the 30-day time limit was postponed during the month of August when the Council was in recess. 7 application within 120 days after [the] Planning Board accepted the application on October 10, 2016[,]” making February 7, 2017 the “deadline” to conduct the hearing. A hearing was not held until June 21, 2017, “more than 134 days after the deadline[.]” Further, the Order stated, the ZHE’s written decision “was filed more than 30 days after the last day that a public hearing was required to be conducted on the application[:] March 9, 2017.” The Order concluded: “These procedural defects violated the limitations and restrictions imposed by law to approve a temporary Special Exception and Variance in this case.” On February 21, 2018, Palmer Road requested, via letter, that the Council reconsider its final decision because the Order of Denial did not discuss the merits of the Application. At the District Council hearing on February 26, the Council took the request for reconsideration under advisement.

On March 13, 2018, Palmer Road filed a petition for judicial review of the Council’s final decision in the Circuit Court for Prince George’s County.8 A hearing was held in the circuit court on August 3, 2018. Palmer Road argued that the word “shall” in PGCC § 27-405.01(a)(1) was directory, and did not, as the Council believed, create mandatory deadlines. In addition, Palmer Road contended that there was 8 An applicant who is aggrieved by any final decision of the Council may request judicial review of the decision by filing a petition in the Circuit Court for Prince George’s County within 30 days after service of the final decision. Maryland Code (2012, 2018 Supp.), Land Use Article (“LU”), § 22-407(a).

Three days after filing its petition, Palmer Road notified the Council, through another letter, of the appeal and withdrew its request that the Council reconsider the denial. Palmer Road explained that the appeal was filed because the “District Council did not reconsider the application as requested in the letter, during the 30-day time period during which [Palmer Road] had to note an appeal to the Circuit Court for Prince George’s County.” 8 no opposition to the Application and “there is no basis for the District Council to deny the special exception. So there [is] no reason to remand it back.” In turn, the Council argued that it could not “decide the case on the merits because the [] hearing was not held within 120 days.” The Council asserted that if the court found that it did err in denying the Application on procedural grounds, the “Council should have an opportunity on remand to make the decision on the merits.” The court, on September 12, 2018, reversed the Council’s order denying Palmer Road’s Application and remanded the matter to the Council “with instructions to approve [Palmer Road’s] application” for the special exception and variance. The court established, in its written memorandum order, that its role was “to determine the meaning of ‘shall’ in the context of a statute setting deadlines for the completion of certain acts in the approval process of a landowner’s application for a special exception” under PGCC § 27-405.01.

The court ruled that “shall” was directory and not mandatory under the circumstances, and that the Council erred, as a matter of law, in denying Palmer Road’s Application for a special exception and variance. Following the court’s entry of final judgment, the Council voted to appeal. 9 This timely appeal followed on September 27, 2018. DISCUSSION I. 9 The District Council may appeal a final judgment of the circuit court to this Court; “[e]ach member of the district council is entitled to vote on whether the district council shall appeal to the Court of Special Appeals[.]” LU § 22-407(f). 9 Standard of Review “When acting in its zoning capacity, the District Council acts as an administrative agency.” Grant v. Cty. Council of Prince George’s Cty., 465 Md. 496, 503 (2019). “In an appeal from a judgment entered on judicial review of a final agency decision, we look ‘through’ the decision of the circuit court to review the agency decision itself.” Ware v. People’s Counsel for Baltimore Cty., 223 Md. App. 669, 680 (2015) (citations omitted).

The scope of our review is narrow, and our role is generally limited to “determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel for Baltimore Cty., 336 Md. 569, 576-77 (1994). The agency’s fact-finding is based on substantial evidence when it is “supported by such evidence as a reasonable mind might accept as adequate to support a conclusion.” Ware, 223 Md. App. at 681 (citation omitted). For “legal questions or the agency’s conclusions of laws[,]” our review is de novo. Grant, 465 Md. at 509 .

Certain agency decisions regard matters that are committed to the agency’s discretion and expertise. On appeal, we will only reverse when we determine that the decision is “arbitrary and capricious” because “the courts owe a higher level of deference to functions specifically committed to the agency’s discretion[.]” Cty. Council of Prince George’s Cty. v. Zimmer Dev. Co., 444 Md. 490, 574 (2015) (citation omitted).

The “arbitrary and capricious” standard is “highly contextual, but generally the question is whether the agency exercised its discretion ‘unreasonably or without a rational basis.’” 10 Maryland Dep’t of the Env’t v. Cty. Comm’rs of Carroll Cty., 465 Md. 169, 202 (2019), cert denied sub nom. Cty. Comm’rs of Carroll Cty., Maryland v. Maryland Dep’t of Env’t, 140 S. Ct. 1265 (2020) (citing Harvey v. Marshall, 389 Md. 243, 297 (2005)).

Correspondingly, we give “considerable weight” to an agency’s interpretation and application of a statute which the agency administers. Baltimore Police Dep’t v. Brooks, __ Md. App. __, __, Nos. 979, 980, 982, 983, 985, 988, 989, 991, 992, 993, 994, September Term 2019, slip op. at 21-22 (filed July 30, 2020) (citation omitted). “The level of deference we provide an administrative agency’s interpretation of a statute, however, ‘depends on several factors,’ including ‘the duration and consistency of the administrative practice’ and ‘the degree to which the agency’s construction was made known to the public.’” Id. (quoting Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445 (1997)).

II

Timeframes Under PGCC § 27-405.01(a)(1) A. Contentions The Council challenges the circuit court’s determination that it erred when it denied Palmer Road’s Application for a special exception and variance because the ZHE’s recommendation of approval was void ab initio for failure to comply with the timeframes set forth in PGCC § 27-405.01(a)(1). The Council asserts that the word “shall” in PGCC 11 § 27-405.01(a)(1) is mandatory, rather than directory, and that Palmer Road “repeatedly failed to revise or resubmit its application(s) to comply with mandatory timeframes in PGCC § 27-405.01(a)(1).” In support, the Council cites case law for the proposition that “the word ‘shall’ creates a presumption that compliance is ‘mandatory’ and that failure to comply will invalidate the proceedings or result in some other drastic sanction.” The Maryland General Assembly has bestowed on the Council, under Maryland Code (2012, 2018 Supp.), Land Use Article (“LU”), § 22-206, the power to promulgate procedures and amend its zoning laws.10 Such “procedures and zoning laws may include 10 In County Council of Prince George’s County v. Convenience & Dollar Market/Eagle Management Company, we reiterated that Prince George’s County derives its authority to engage in land use regulation from the Maryland-Washington Regional District Act (the “RDA”), codified in the Maryland Code in Division II of the Land Use Article (“LU”). 238 Md. App. 613, 617-18 (2018). Writing for our Court, Judge Kehoe expounded: No single provision of the RDA sets out the land use control authority of the [D]istrict [C]ouncil[]. However, and among other things, the [D]istrict [C]ouncil[] ha[s] the legislative authority to adopt and amend zoning laws, LU § 22-104; to establish programs for the transfer of development rights, LU § 22-105; to establish procedures for the resolution of disputes as to building permits and other “zoning questions,” LU § 20-503; and to enact historic preservation regulations.

LU § 22-108. Additionally, the RDA specifically provides that the [District Council] may exercise quasi-judicial review authority over certain land use decisions by that County’s Planning Board. See LU § 25-210 (authorizing the District Council to review decisions of the Planning Board approving or disapproving detailed site plan applications). Finally, LU § 22-111 authorizes the District Council to make provisions in the County Zoning Ordinance for the County Board of Appeals to decide questions concerning the extension of legal nonconforming uses within or on buildings or lots, and the resumption of a nonconforming use after