RENAISSANCE CENTRO COLUMBIA, LLC. v. Broida

⁴⁷⁷ JOHN C. ELDRIDGE (Retired, Specially Assigned), J. In this declaratory judgment action, the plaintiff-petitioner Renaissance Centro Columbia, LLC, raises administrative procedure issues relating to the standing of the respondent Joel Broida to challenge, before the Howard County Board of Appeals, a decision by the Howard County Planning Board approving a site development plan. We shall not be able to reach the issues presented by Renaissance, however, because we agree with the respondent that there was no final administrative decision. Therefore, Renaissance failed to exhaust its administrative remedy. Moreover, even if there had been a final administrative decision, a declaratory judgment action does not lie to review a decision of the Howard County Board of Appeals.

I. Renaissance owns a 1.46 acre parcel of land at the intersection of Little Patuxent Parkway and Wincopin Circle in Columbia, in Howard County, Maryland. In 2005, Renaissance submitted to the Howard County Planning Board a site development plan, proposing to construct on the 1.46 acre parcel a 22-story mixed use, retail and condominium building containing 160 residential units, 10,697 square feet of retail space, and a four-level parking garage. The respondent Broida, and three other persons (Jo Ann Stolley, Lloyd Knowles, and Stephen Meskin), filed with the Planning Board a motion to deny approval of the site development plan. Broida lives in a condominium directly across the street from Renaissance’s 1.46 acre parcel of land, and his windows face the parcel.

After holding two public meetings, the Planning Board approved the site development plan with some minor changes. Broida and the other three opponents appealed the Planning Board’s decision, and, pursuant to the Howard County Code, the appeal was heard by a Howard County hearing examiner. Renaissance filed a motion to dismiss the appeal on the ground that the four opponents lacked standing under the Howard County Code. Section 16.900(j)(2)(iii) of the How ⁴⁷⁸ ard County Code (1995 edition, 2008 republication) provides in relevant part as follows: “Any person specially aggrieved by any decision of the Planning Board and a party to the proceedings before it may, within 30 days thereof, appeal said decision.... ” After holding an evidentiary hearing on the motion to dismiss, the hearing examiner dismissed the appeal, holding that all four opponents lacked standing.

With respect to Broida, the hearing examiner stated: “Renaissance does not contest ... that Mr. Broida lives within sufficient proximity to the Property to qualify for the presumption of special aggrievement. Nonetheless, I find that Renaissance presented sufficient evidence to rebut the presumption by showing that Mr. Broida is not specially aggrieved. The [challenging parties] failed to meet their countervailing burden.” The four opponents appealed to the Howard County Board of Appeals pursuant to § 16.304(a) of the Howard County Code which provides that a “person aggrieved by a decision of a Hearing Examiner may, within 30 days of the issuance of the decision, appeal the decision to the Board of Appeals * * * [T]he Board will hear the appeal de novo.... ” Renaissance filed with the Board a motion to dismiss, arguing that the four opponents of the site development plan lacked standing to appeal because they were not “aggrieved.” The Board of Appeals held an evidentiary hearing extending over four days in December 2006 and January 2007. One member of the five-member Board had resigned because of illness, and, therefore, the Board conducted the hearing with only four members.

None of the parties objected to the Board’s acting with only four members. Thereafter, on January 22, 2007, the Board, at an open meeting, deliberated on the motion to dismiss and unanimously concluded that the three opponents, other than Broida, did not have standing. The four members then discussed Broida’s standing, and, according to the “Staff Notes” of the proceedings, they “took a straw vote” which indicated that two ⁴⁷⁹ members believed that Broida had standing and two members believed that Broida lacked standing. The members of the Board of Appeals then went into a closed session to determine how to proceed.

Two new members of the Board, one replacing the member who had resigned because of illness and one replacing a member who desired to retire, had been appointed but had not been confirmed. They were scheduled to be confirmed on February 5, 2007. The Board, after its closed session, announced that it would not then decide Broida’s standing and that, upon their confirmation, the two new members would listen to the tape recording of the four-day hearing and would review the record. The new Board would on February 12, 2007, reconvene, deliberate, and vote on Broida’s standing to appeal to the Board. 1 Both Renaissance and Broida objected to the Board’s decision to re-vote on February 12, 2007, with the new members.

On February 7, 2007, Renaissance wrote a letter to the Board setting forth its objection to the Board’s re-convening, re-deliberating, and re-voting on February 12th. Also on February 7th, Renaissance instituted the present case by filing, in the Circuit Court for Howard County, a complaint for a declaratory judgment. Named as defendants were the “Howard County Board of Appeals,” “Howard County, Maryland,” ⁴⁸⁰ and “Joel Broida.” Renaissance sought a “judgment declaring that (a) the Board’s 2 to 2 decision on January 22, 2007, is a final decision; (b) that decision requires the ... Appeal [to the Board] to be dismissed....” Upon the filing of its declaratory judgment complaint, Renaissance sent a “notice” to the Board of Appeals pointing out that § 2.204(j) of the Howard County Code required that any hearing in the case be stayed during the pendency of the judicial proceedings.

Thereafter, the Board voted to continue the case because of the judicial proceedings. In addition to the present declaratory judgment action, Renaissance on February 12, 2007, brought a separate action by filing, in the Circuit Court for Howard County, a “Petition For Judicial Review” under Maryland Rule 7-201, et seq.” On June 5, 2007, the Circuit Court, granting a motion for a stay, ordered that the judicial review action be “stayed pending resolution of’ the declaratory judgment action. Subsequently, Renaissance filed in the Circuit Court a motion for summary judgment and a memorandum in support of the motion. Renaissance argued that, because of the 2 to 2 vote, Broida’s “appeal [to the Board of Appeals] must be dismissed,” that “both Maryland Law and the Howard County Code require dismissal” of Broida’s appeal, that “it would be improper for the Board to re-deliberate and re-vote,” and that “it would be improper for the new members to vote.” The Howard County Board of Appeals responded to Renaissance’s complaint and motion for summary judgment, arguing that the Board had not rendered a final decision, that Renaissance had failed to exhaust its administrative remedy, that the Board’s contemplated action was legally proper and in accord with the Howard County Code, and that the declaratory judgment action should be dismissed.

Broida filed a motion to dismiss, also arguing that the Board had not rendered a final decision and that Renaissance had failed to exhaust its administrative remedy. After a hearing consisting of the attorneys’ arguments, the Circuit Court filed an opinion and an order granting the ⁴⁸¹ plaintiffs motion for summary judgment and denying the defense motions. Subsequently, the Circuit Court denied a motion by Broida which was, in substance, a motion for reconsideration. 2 Broida appealed to the Court of Special Appeals, arguing both (1) the merits of the issue concerning the effect of a 2 to 2 vote by the Board of Appeals and (2) that there was no final decision by the Board and, therefore, Renaissance had failed to exhaust its administrative remedy. The Court of Special Appeals, in an unreported opinion, reversed the Circuit Court’s judgment and directed that the case be remanded to the Board of Appeals for further proceedings consistent with the Court of Special Appeals’ opinion.

The intermediate appellate court initially invoked the following principle set forth in numerous opinions of this Court (e.g., Sugarloaf Citizens’ Association v. Department of Environment, 344 Md. 271, 297 , 686 A.2d 605, 618-619 (1996), quoting Bryniarski v. Montgomery Co., 247 Md. 137, 145 , 230 A.2d 289, 294 (1967)): “In actions for judicial review of administrative land use decisions, ‘[a]n adjoining, confronting or nearby property owner is deemed, prima facie, ... a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for [judicial review] and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.’” See also County Council of Prince George’s County v. Billings, 420 Md. 84, 98 , 21 A.3d 1065, 1073 (2011). The Court of Special Appeals then held that the “party challenging the presumption that” the “ ‘adjoining, confronting or nearby property owner’ is a person aggrieved” has both “the burden of production and the burden of persuasion.” Consequently, the appellate court concluded, in the proceedings before the Board of Appeals, Renaissance had the burden of proof that Broida was not aggrieved and “that the 2 to 2 vote of the ⁴⁸² Board had the effect of upholding Broida’s status as presumptively aggrieved” and thus having standing. The Court of Special Appeals stated that, because it had decided “that the 2 to 2 vote of the Board” resulted in Broida having standing to appeal to the Board, the court did not have to decide whether there was a final Board decision and, therefore, whether there was a failure to exhaust the administrative remedy.

Nevertheless, the Court of Special Appeals’ judgment was necessarily premised upon the “2 to 2 vote” constituting a final administrative decision. Renaissance filed in this Court a petition for a writ of certiorari, challenging the merits of the Court of Special Appeals’ holding that Broida had standing. The only mention in the certiorari petition of an issue concerning the finality of the administrative decision and exhaustion of the administrative remedy was a brief footnote, pointing out that Broida had raised the issue in the Court of Special Appeals but that the appellate court did not address the issue. Broida did not file a cross-petition for a writ of certiorari, although in his answer to the petition, in addition to supporting the Court of Special Appeals’ decision, Broida argued that there was no final administrative decision and, accordingly, Renaissance had failed to exhaust its administrative remedy.

This Court granted Renaissance’s petition for a writ of certiorari.

II

Howard County is a chartered home rule county under Article XI-A of the Maryland Constitution and the Express Powers Act, Maryland Code (1957, 2005 Repl.Vol.), Art. 25A. The Howard County Board of Appeals is established pursuant to, and governed by, Art. 25A, § 5(U). 3 Moreover, the admin ⁴⁸³ istrative remedy before a board of appeals subject to Art. 25A, § 5(U), and thus the administrative remedy in the present case, is either exclusive or primary. Maryland Reclamation Associates v. Harford County, 382 Md. 348 , 364-365 n. 6, 855 A.2d 351 , 360-361 n. 6 (2004). 4 Therefore, like other exclusive ⁴⁸⁴ or primary administrative remedies, the remedy provided by § 5(U) must be exhausted before resort to the courts. See Holiday v. Anne Arundel County, 349 Md. 190, 201 , 707 A.2d 829, 834-835 (1998), where the Court stated: “This Court has consistently held that, where there exists a remedy before a charter county’s board of appeals under Art. 25A, § 5(U), an aggrieved party must invoke and exhaust the administrative and judicial review remedy provided by § 5(U).

Md. Reclamation v. Harford Cty., supra, 342 Md. [476] at 494, 677 A.2d [567] at 576 [ (1996) ]; United Parcel v. People’s Counsel, supra, 336 Md. [569] at 588-589, 650 A.2d [226] at 236 [ (1994) ]; Hope v. Baltimore County, 288 Md. 656, 657-658 , 421 A.2d 576, 577 (1980); Klein v. Colonial Pipeline Co., 285 Md. 76, 83 , 400 A.2d 768, 772 (1979).” See, also, e.g., County Council of Prince George’s County v. Billings, supra, 420 Md. at 99 , 21 A.3d at 1065 (“As a prerequisite to judicial review, we generally require that parties pursue and complete all administrative avenues of relief which the legislature has provided”); Laurel Racing v. Video Lottery, 409 Md. 445, 458 , 975 A.2d 894, 902 (2009) (“ ‘Where ... the administrative remedy is deemed to be primary [or exclusive], this Court has generally held that it must be pursued and exhausted before a court exercises jurisdiction to decide the controversy’ ”); University System v. Mooney, 407 Md. 390, 412 , 966 A.2d 418, 431 (2009) (“Where, as here, an administrative remedy is primary, ... exhaustion of administrative remedies must occur prior to seeking judicial relief’); Prince George’s County v. Ray’s, 398 Md. 632, 647 , 922 A.2d 495, 504 (2007) (“Whether exclusive or primary, this Court’s opinions have made it clear that the adjudicatory [administrative] remedies provided by the [statute there involved] ..., for the resolution of zoning issues like those presented here, must be pursued and exhausted before resort to the courts”); Dorsey v. Bethel A.M.E Church, 375 Md. 59, 76 , 825 A.2d 388 , ⁴⁸⁵ 398 (2003) (Involving a Board of Appeals created pursuant to Art. 25A, § 5(U), and the Court stated: “There could be no exhaustion of administrative remedies until there was a Board of Appeals’ decision finally approving or disapproving [a party’s] development plan. Until such time, no party to the administrative proceedings was entitled to maintain a Circuit Court action”), and cases there cited. Overlapping the principle that administrative remedies must be exhausted is the requirement of a final administrative decision. If there is no final administrative decision in a case before an administrative agency, there is ordinarily no exhaustion of the administrative remedy.

In Dorsey v. Bethel A.M.E. Church, supra, 375 Md. at 74-75 , 825 A.2d at 397 , we set forth the finality principle as follows: “[TJhis Court has consistently held that, in the absence of a statutory provision expressly authorizing judicial review of interlocutory administrative decisions, and in the absence of an interlocutory administrative decision with immediate legal consequences causing irreparable harm, ‘the parties to the controversy must ordinarily await a final administrative decision before resorting to the courts.’ State v. State Board of Contract Appeals, 364 Md. 446, 457 , 773 A.2d 504, 510 (2001) (emphasis added).” Consequently, apart from the two exceptions delineated in the above quotation, a final administrative decision is a prerequisite for “resorting to the courts,” ie., for a court to consider and decide the merits or other issues in a case like the present one. See, e.g., Willis v. Montgomery County, 415 Md. 523, 534 , 3 A.3d 448, 455 (2010) (“ ‘As a general rule, an action for judicial review of an administrative order will lie only if the administrative order is final,’ ” quoting Holiday Spas v. Montgomery County, 315 Md. 390, 395 , 554 A.2d 1197, 1199 (1989)); Laurel Racing v. Video Lottery, supra, 409 Md. at 460 , 975 A.2d at 903 (A “party must exhaust the administrative remedy and obtain a final administrative decision ... before resorting to the courts”); Arroyo v. Board of Education, 381 Md. 646, 667 , 851 A.2d 576, 589 (2004) (“LI]n cases where the administrative remedy is primary, and there are alternative judicial ⁴⁸⁶ remedies available, the alternate judicial remedy may not be resolved ... prior to ... the final agency determination”); Driggs Corp. v. Md. Aviation, 348 Md. 389, 407 , 704 A.2d 433, 443 (1998) (“The salutary purpose of the finality requirement is to avoid piecemeal actions in the circuit court”). Turning to the case at bar, Renaissance does not challenge the general principle that an administrative decision must be final before resort to the courts. Instead, Renaissance advances several arguments in response to Broida’s contention