Talbot County v. Miles Point Property, LLC

ADKINS, J. Petitioner Talbot County (the “County”) appeals from two judgments of the Circuit Court for Talbot County regarding the jurisdiction of the Talbot County Board of Appeals (the “Board”). 1 Respondents Miles Point Property, LLC (“Miles Point”) and Shore Lands, LLC (“Shore Lands”) had submitted applications to the Talbot County Council (the “Council”) to reclassify properties within the County for the purposes of the Talbot County Comprehensive Water and Sewer Plan. The ³⁷⁶ Council denied reclassification in both instances. Miles Point filed an appeal of the Council’s decision with the Board, which found that it lacked jurisdiction to hear the appeal. The Circuit Court, on judicial review, reversed the Board’s decision, and remanded the case for the Board to hear Miles Point’s appeal.

In a separate and subsequent case, Shore Lands filed suit in the Circuit Court, seeking a writ of administrative mandamus compelling the Council to reclassify Shore Lands’s property. Shore Lands was opposed by Respondent the Town of Easton (“Easton”), within whose borders the Shore Lands property is located. The Circuit Court, relying on the Miles Point case, found that Shore Lands was required to pursue an appeal first with the Board of Appeals before recourse may be had to judicial review, and dismissed the case. Talbot County appealed both of these judgments to the Court of Special Appeals.

On our own initiative, we granted certiorari 2 in the consolidated case in the Court of Special Appeals to consider the following issues: 3 1. Did the Board of Appeals correctly decide it had no jurisdiction under the Express Powers Act, Article 25A, Section 5(U), to review the County Council’s vote declining to approve the proposed amendments to the County Comprehensive Water and Sewer Plan? 2. Did the Board of Appeals correctly decide it had no jurisdiction under Talbot County Charter Section 502(4) because the County Council’s action was not an executive, administrative or adjudicatory order, the Council’s action was a legislative act, and because of the prohibition in Maryland Constitution Article XI-A, Section 2, prohibiting county charters from enlarging or expanding express powers granted by the General Assembly? ³⁷⁷ 3. Is the correct method for review of the County Council’s action to invoke the original jurisdiction of the lower court and not to file an administrative appeal to the Board of Appeals?

We shall hold that the Board of Appeals was correct in deciding that, under the Express Powers Act, it had no jurisdiction over an appeal from the Council’s action. We shall further hold that the proper vehicle for review of the Council’s action is to invoke the original jurisdiction of the Circuit Court for Talbot County, but that mandamus does not lie in this case. FACTS & LEGAL PROCEEDINGS This consolidated case involves two parcels of land located in Talbot County. We will review the facts relating to each parcel separately, as well as background facts relating to Talbot County’s infrastructure.

Talbot County Infrastructure The following facts serve as a backdrop for the specific party interests in this case. Talbot County owns the Region II Wastewater Treatment Plant (the “Plant”), which serves a number of towns within the County. The Plant was operated, at all times relevant to this case, by an independent contractor under contract with the Talbot County Sanitary District. The Plant is funded through user fees paid by property owners served by the Plant, and through fees paid by other owners who are not served by the Plant, but pay “benefit charges” to reserve the right to connect to the Plant in the future.

The Plant, through the Talbot County Sanitary District, also receives some funding (in the form of grants and low-interest loans) from the Maryland Department of the Environment (“MDE”). The Talbot County Council bears the ultimate responsibility for Plant management. The Plant was to be constructed with a flow capacity of approximately 1,000,000 gallons per day (“GPD”). Through the year 2003, however, a study of the Plant’s function showed ³⁷⁸ an actual flow capacity of approximately 500,000 GPD, with more than 170 problems reported in the collection system.

In recognition of these issues, the Talbot County Council voted to authorize expansion of the Plant on August 12, 2003, so that the Plant’s actual capacity would increase to 660,000 GPD. As of July 2005, the County had yet to begin construction on the expansion, and had not received a construction permit from the MDE allowing the expansion to proceed. On April 5, 2005, rainstorms caused approximately 300 gallons of untreated sewage to overflow from the Plant’s collection system into the Miles River. Three days later, continuing heavy rains and local flooding caused sewers in the Town of St. Michaels to overflow, releasing approximately 2,400 gallons of raw sewage into the Miles River.

On May 20, 2005, an additional 850 gallons of untreated sewage overflowed into the Miles River. The Miles Point Property The first parcel of land at issue in this case, consisting of seventy-two acres of undeveloped land, is owned by Respondent Miles Point Property, LLC, and is located in the Town of St. Michaels. The Miles Point property is designated as “S-2” in the Talbot County Comprehensive Water and Sewer Plan (the “Plan”). Properties designated as S-2 under the Plan are contemplated for improvements, extensions, or construction of shared sanitary facilities within three to five years “following the date of adoption of the Plan and/or amendments or revisions thereto.” On February 24, 2005, Miles Point, through the Town of St. Michaels, submitted an application to Talbot County to reclassify the property as “S-l” under the Plan.

This change would designate the property as having “immediate priority status” for the purposes of extending shared sanitary facilities to service development of the property. 4 Miles Point claims that it did not seek immediate installation of sewerage hook-ups ³⁷⁹ (“allocation”) when making this request, but instead sought only to change the property’s designation under the Plan. Talbot County interpreted Miles Point’s application as requesting an allocation. On April 12, 2005, after the two reported incidents of sewage overflow occurring in April due to heavy rains and flooding, the Talbot County Council introduced Resolution No. 124 to amend the Plan per Miles Point’s request. A public hearing on the resolution was held on May 10, 2005.

The Council met on May 17, 2005, to evaluate the merits of the application, and ultimately decided against reclassification. On July 12, 2005, more than two months after the May sewage overflow, the Council adopted findings of fact relating to the resolution, and voted unanimously against the resolution. 5 Miles Point appealed the Council’s decision to the Talbot County Board of Appeals. The Board considered the issue in ³⁸⁰ a public hearing on December 5, 2005. On April 19, 2006, the Board issued a unanimous written decision dismissing the appeal for lack of jurisdiction.

The Board held that its power to hear appeals from Council decisions was circumscribed by authority granted to it by the Council, pursuant to Article 25A, Section 5 of the Maryland Code (the “Express Powers Act”), and that the Council had not specifically delegated review authority over the Plan (or requests to modify its terms) to the Board. The Board further held that it did not have such review authority under Section 502 of the Talbot County Charter (“the Charter”), which confers jurisdiction over appeals from “executive, administrative, or adjudicatory” orders. The Board held that the decision not to designate the Miles Point property as S-l under the Plan was not such an order. Miles Point sought judicial review of the Board’s decision in the Circuit Court for Talbot County, arguing that the Board did in fact have the authority to review the Council’s decision.

On August 8, 2008, the Circuit Court reversed the Board’s decision, stating that although there was no separate enabling legislation specifically authorizing an appeal relating to the Plan, Section 502 of the Charter nonetheless conferred upon the Board the authority to hear such an appeal. On August 28, Talbot County timely appealed to the Court of Special Appeals from the Circuit Court’s decision. The County argued that the Express Powers Act did not permit the Board to review the Council’s decision on appeal, and that even if this were not the case, neither the Charter nor any other local law conferred specific jurisdiction on the Board. The Shore Lands Property The second parcel of land at issue in this case, consisting of seventy-nine acres of undeveloped land, is owned by Shore Lands, LLC, and is located in the Town of Easton.

The Shore Lands property is classified “W-2/S-2” in the Plan. (The additional W-2 designation on the Shore Lands property applies to water service, as opposed to S-2, applicable to sewer service; water and sewer services follow the same ³⁸¹ priority schedule.) On January 19, 2006, Shore Lands applied to Talbot County to designate the Shore Lands property as “W-l/S-1” under the Plan. On September 25, 2007, the Council introduced Resolution No. 146 to classify the Shore Lands property as W-l/S-1, with a public hearing scheduled for November 27, 2007. The Town of Easton opposed the reclassification at the hearing.

In 2004, Easton had received loans and grants from the State of Maryland in order to effect an upgrade of the Town’s sewer treatment plant. As part of that agreement, Easton represented that certain land within its borders, including the Shore Lands property, would only be developed according to the terms of the State’s Smart Growth Law, which sets habitation density standards (in this case, a minimum of 3.5 dwellings per acre) for areas designated for development. The Shore Lands property, as zoned (“Agricultural,” or “A-l”), required a lesser habitation density (a maximum of 1.0 dwellings per acre). Easton claimed that the Shore Lands property was included in its agreement with the State only through an error on the part of the MDE, and that the Town was working with the MDE to correct the error.

Nonetheless, Easton was concerned that classifying the Shore Lands property as W-l/S-1 would allow for immediate development of the land at less than the State’s minimum habitation density requirements, thereby jeopardizing Easton’s funding agreement with the State. The Council adopted findings of fact pertaining to the Shore Lands property on December 18, 2007, and based on those findings, voted 4-1 to reject Resolution No. 146. In response, Shore Lands filed a Complaint for Writ of Administrative Mandamus in the Circuit Court for Talbot County, seeking review of the Council’s decision to deny re-designation 6 . The Circuit Court, in a memorandum opinion issued September 26, 2008, dismissed the petition for mandamus.

The court cited ³⁸² its judgment in the Miles Point case in ruling that Shore Lands had failed to exhaust its administrative remedies before pursuing a writ of mandamus, and that the proper mechanism to review the Council’s ruling initially was an appeal to the Talbot County Board of Appeals. On October 24, 2008, Talbot County timely appealed the Circuit Court’s decision to the Court of Special Appeals, arguing that the Board lacked jurisdiction to hear an appeal from the Board’s decision, and that invoking the original jurisdiction of the Circuit Court was the proper procedure. The Parties’ Positions With the facts and procedure so aligned, each of the four parties in this case (Talbot County, Miles Point, Shore Lands, and the Town of Easton) argues for a different result. Talbot County asks us to reverse the judgment of the Circuit Court in both cases, and hold that the Board lacks jurisdiction to hear an administrative appeal relating to decisions not to amend the properties’ designations in the Plan.

The County further argues that judicial scrutiny of a Council decision on the Plan requires invoking the original jurisdiction of the Circuit Court, and that a complaint for a writ of administrative mandamus would be the proper vehicle for review. Shore Lands agrees with Talbot County that the Board lacks authority to hear such an appeal, and argues that the Circuit Court had jurisdiction to hear Shore Lands’s mandamus action regarding the Council’s decision. Shore Lands argues that seeking a writ of administrative mandamus is a proper mechanism for review. Accordingly, Shore Lands asks us to hold that it had not failed to exhaust its administrative remedies when it sought a writ of administrative mandamus in the Circuit Court, and that the Circuit Court erred in dismissing the writ.

Like Talbot County, the Town of Easton argues that this Court should hold that the Council’s rejection of Resolution No. 146 was a legislative act, and that it is not appealable to the Board. Easton further claims, however, that administra ³⁸³ tive mandamus does not lie in this case, because that remedy is not appropriate for reviewing the Council’s discretionary legislative acts. Easton argues that we should therefore affirm the Circuit Court’s dismissal of Shore Lands’s complaint. Finally, Miles Point argues that the Board had jurisdiction to hear its appeal from the Council’s decision.

It claims that it is consistent with the Express Powers Act for the Board to have jurisdiction over the appeal, and that the authority conferred on the Board by the Talbot County Charter is an actual grant of authority to the Board sufficient to sustain the Board’s jurisdiction. Miles Point therefore asks this Court to affirm the Circuit Court’s judgment that the Board was required to hear Miles Point’s appeal from the Council’s decision. DISCUSSION In order to resolve the questions presented by the parties, we will address three issues. First, we must decide whether the Council’s decisions were subject to review by the Board.

Second, if the Council’s decisions were not subject to review by the Board, we must decide if the Circuit Court for Talbot County has jurisdiction to review the Council’s decisions. Third, if that court has jurisdiction to review the decisions, we must decide the proper mechanism for review. The diversity of parties and interests in this case, however, creates an unusual situation with respect to our analysis and our holdings. Miles Point’s principal argument is that the Board should be permitted to review the Council’s decisions on water and sewer reclassification of property.

Likewise, Shore Lands’s principal argument is that seeking a writ of administrative mandamus from the Circuit Court is a proper avenue for reviewing the Council’s decisions. Although each of these parties approaches the legal questions presented in a different fashion, our analysis will depend largely on resolution of an issue common to all, i.e., whether the Council acted in a legislative fashion or an adjudicative fashion in making its ³⁸⁴ decisions. We resolve this issue below, after stating our standard of review. Standard of Review The judgments of the Circuit Court for Talbot County and the decisions of the Talbot County Board of Appeals in these cases pertained solely to conclusions of law respecting jurisdiction.

As such, we owe no deference to those decisions, and will review them de novo. See Belvoir Farms Homeowners Ass’n v. North, 355 Md. 259, 267 , 734 A.2d 227, 232 (1999) (“Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.”); see also Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879, 883 (2004) (“When the trial court’s order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.”) (quotation marks and citation omitted). The Miles Point Property and the Talbot County Board of Appeals The Talbot County Board of Appeals’s review authority over the Council’s decisions, if it exists, must derive from the General Assembly’s grant of power contained within the Express Powers Act, because Talbot County has elected a charter form of local government.

See Md.Code (1957, 2005 RepLVol.), Art. 25A, § 5 (“Express Powers Act” or “the Act”). Maryland Constitution Article XI-A, Section 2, provides that “[t]he General Assembly shall by public general law provide a grant of express powers for such County or Counties as may thereafter form a charter under the provisions of this Article.” Md. Const, art. XI-A, § 2. The Express Powers Act is the General Assembly’s fulfillment of this constitutional command.

See Anne Arundel County v. Bowen, 258 Md. 713, 715 , 267 A.2d 168, 169 (1970) (explaining that the statute was enacted “[i]n obedience to [Article XI-A’s] mandate .... ”); see also County Council for Montgomery County v. Investors Funding ³⁸⁵ Corp., 270 Md. 403, 418 , 312 A.2d 225, 233 (1973) (holding that the purpose of the Act “is to share with the counties, within well-delineated limits, the legislative powers formerly reserved to the General Assembly.”). The Express Powers Act confers a number of “enumerated express powers” upon charter counties, including Talbot County. Express Powers Act, §§ (A)-(FF). Among these enumerated powers is the ability to create a County Board of Appeals, codified in Paragraph (U) of the Act.

Specifically, that paragraph permits a charter county to “enact local laws providing ... for the establishment of a county board of appeals whose members shall be appointed by the county council____” See Express Powers Act, § (U). Although the Act grants no direct authority to a board of appeal, as this must be implemented by the charter county, it limits which matters counties may authorize their boards to review: [T]he 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 (either originally or on review of the action of an administrative officer or agency) 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: [a]n application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order.... See Express Powers Act, § (U) (emphasis added). We shall refer to the italicized language as the “Limiting Clause” of the Act.

The question of the Board’s jurisdiction, as Talbot County argues in its brief, is thus predicated on the language of the Express Powers Act. The critical issue is whether an appeal from a denial of an amendment to the Plan can be read, in the ³⁸⁶ words of Miles Point, as being “consistent” with one of the spheres of jurisdiction enumerated in the Limiting Clause of the Act. In other words, does the Express Powers Act even permit a county to authorize its Board of Appeals to review the council’s denial of this type of decision? 7 The Talbot County Board of Appeals, in considering its jurisdiction over Miles Point’s appeal, did not expressly find that review of a proposed amendment to the Plan fairly fit within the enumerated list of subject matters set forth in the Limiting Clause of the Express Powers Act; the Board found that even if such an appeal were permissible under the Limiting Clause, the Council had not authorized the Board to hear such an appeal through the enactment of a local law. Miles Point argues that the Limiting Clause allows its appeal, pointing to the general category of jurisdiction permitting a county to delegate review authority over the “denial ... of any adjudicatory order” to its Board of Appeals. 8 Express Powers Act, § (U).

Talbot County argues that the Council’s action was legislative in nature, and therefore lacked the quasi-judicial quality that is characteristic of an adjudicatory order. 9 ³⁸⁷ In determining whether the Council’s action was adjudicatory or legislative in nature, we are informed by our analysis of zoning decisions in Bucktail, LLC v. County Council of Talbot County, 352 Md. 530 , 723 A.2d 440 (1999). In Bucktail, we held: The determination of whether a local zoning authority is acting in an adjudicative or legislative manner is dependent upon the nature of the particular act in which it is engaged. This determination is not based on whether the zoning decision adversely affects an individual piece of property but whether the decision itself is made on individual or general grounds. Id. at 545 , 723 A.2d at 447 (quotation marks and citation omitted).

It is thus not a hearing’s “mere focus on one parcel that is dispositive of [the hearing’s] quasi-judicial nature, but rather that the matter taken up at the hearing is disposed of based on the unique characteristics” of the property at issue. Md. Overpak Corp. v. Mayor & City Council of Balt., 395 Md. 16, 39 , 909 A.2d 235, 248-49 (2006). In other words, the greater a decisionmaker’s reliance on general, “legislative facts,” the more likely it is that an action is legislative in nature. Likewise, the greater a decision-maker’s reliance on property-specific, “adjudicative facts,” the more reasonable it is to term the action adjudicatory in nature.

Although we have recognized that “[t]he difference between adjudicative and legislative facts is not easily drawn[,]” Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-12 , 376 A.2d 483, 497 (1977), the proper classification of the Council’s hearings in these cases is quite straightforward. Generally, adjudicative facts concern questions of “who did what, where, when, how, why, [and] with what motive or ³⁸⁸ intent,” while legislative facts “do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.” Id. (<quoting 1 Kenneth C. Davis, Administrative Law Treatise § 7:02 (1958)). While the Council’s review of the Plan was spurred by Miles Point’s request for reclassification, few of the facts discussed by the Council address unique characteristics of the Miles Point property itself.

As stated above, the Council does iterate the particulars of Miles Point’s application, and identify the property in question, but only at the outset of its findings. The balance of the Council’s findings address broad-based facts relating to Talbot County infrastructure, the capacity and history of the Region II Wastewater Treatment Plant, and policy issues. Specifically, the Council discussed a number of problems with existing sewage treatment procedures. The Council found that the Plant had experienced a steady increase in wastewater inflow between 2002 and 2005, and a corresponding decrease in available capacity for additional treatment.

The Council also noted that peak flows into the Plant could reach 2,000,000 GPD—twice the Plant’s design capacity and approximately four times its total functional capacity. The findings of fact addressed the sewage overflow issues that the Plant had experienced, and the litany of problems that had been revealed by an inspection of the Plant’s function. The Council also discussed Talbot County’s agreement with the Martingham Utilities Cooperative, a private sewage treatment facility located north of the Town of St. Michaels. The County had previously agreed that the Plant would accept an additional 19,000 GPD of effluent from the Martingham facility to assist that facility in meeting its MDE permit requirements.

In addition to these findings, the Council addressed policy matters. The Council discussed the County’s plan to expand Plant capacity, and noted that in spite of the County’s intentions, the expansion had not yet been authorized by the MDE, “[n]o bid [had] been approved[,] ... and no construction contract [had] been executed.” The Council addressed the history of sewer allocation policy in Talbot County, including ³⁸⁹ the County’s larger water and sewer planning scheme in relation to the Plant’s historical capacity, and found that granting Miles Point’s application would be incompatible with the overall scheme as organized by the County as early as 1987. 10 The Council’s findings of fact also acknowledge that the Talbot County Planning Commission, the Public Works Advisory Board, and the County Engineer recommended that the resolution be rejected; both the Planning Commission and the Public Works Advisory Board were unanimous in their recommendations. Finally, the Council discussed the requirements of state law, specifically the requirements of the Maryland Code’s Environment Article. Among other items, the Council referred to Section 9-505(a)(4)(i) of the Environment Article, which requires that each county provide “[f]or sewage treatment facilities that are adequate to prevent the discharge of any inadequately treated sewage or other liquid waste into any waters....” 11 Md.Code (1982, 2007 RepLVol.) § 9-505(a)(4)© of the Environment Article.

The Council found that “[ajmending the Plan to allow additional