Town of Bel Air v. Bodt

Town of Bel Air, Maryland, et al. v. Barton Bodt, et al., No. 27, September Term, 2023, Opinion by Booth, J. MUNICIPAL PETITION FOR REFERENDUM OF A ZONING REGULATION. The legal sufficiency of a petition for referendum of a municipal ordinance related to a comprehensive rezoning is a matter that arises solely under the municipal charter. Md. Code Ann., Local Government Article § 5-213 (2013 Repl. Vol., 2023 Supp.).

Under the plain and unambiguous language of the Charter for the Town of Bel Air (“Charter”), the Board of Commissioners (“Commissioners”) had the authority to make a threshold determination as to whether the text of the purported petition satisfied the requirements of the Charter prior to sending it to the Board of Election Judges (“Election Board”). The Commissioners did not err in determining that the document did not satisfy the requirements of the Charter and was therefore invalid. Moreover, under the provisions of the Charter, the Commissioners were authorized to make this determination by a verbal motion adopted by a vote of the Commissioners and memorialized in the minutes of the Commissioners’ proceedings. Given that the document did not constitute a valid “petition for referendum” under the Charter, the Commissioners were not required to submit it to the Election Board for verification of signatures.

Accordingly, the plaintiff-citizens were not entitled to a writ of mandamus or the permanent injunctive relief sought in the amended complaint. Circuit Court for Harford County Case No.: C-12-CV-22-000799 Argued: March 1, 2024 IN THE SUPREME COURT OF MARYLAND No. 27 September Term, 2023 TOWN OF BEL AIR, MARYLAND, ET AL. v. BARTON BODT, ET AL. Fader, C.J., Watts, *Hotten, Booth, Biran, Gould, Getty, Joseph M. (Senior Justice, Specially Assigned) JJ.

Opinion by Booth, J. Filed: July 9, 2024 Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., now a Senior Justice, participated in Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. the hearing and conference of this case while an active member of this Court. After being 2024.07.15 09:54:59 -04'00' recalled pursuant to Maryland Constitution, Article IV, § 3A, she also participated in the Gregory Hilton, Clerk decision and adoption of this opinion. In Maryland, a municipal local government must exercise its authority to undertake particular action in accordance with controlling law. Sometimes, the controlling law is a statute in which the General Assembly directs that a particular municipal action be undertaken in a specific manner.

In other instances, the General Assembly may simply authorize the municipality to act in accordance with the authority granted by its municipal charter. Applying these principles in this case, we are asked to determine whether the Board of Commissioners of the Town of Bel Air (the “Commissioners”) correctly determined that a document submitted by citizens in connection with a comprehensive rezoning was invalid, and therefore did not err when it declined to take further action on it. Citizens submitted a purported petition for referendum to the Town of Bel Air (the “Town”). Thereafter, the Commissioners considered the document at a meeting, and determined that the text of the purported petition for referendum did not comply with the requirements of the Town of Bel Air Charter (the “Charter”).

As a result, the Commissioners did not send it to the Town Board of Election Judges (“Election Board”) for verification of signatures. Barton Bodt and other town residents (hereinafter collectively referred to as “Bodt”) 1 filed a complaint against the Town in the Circuit Court for Harford County seeking a declaratory judgment under the Courts and Judicial Proceedings Article of the Maryland Code (“CJ”) § 3-406, a common law writ of mandamus, and permanent injunctive relief. 1 The second amended complaint, which is the operative complaint, identifies the following plaintiffs: Barton Bodt and Mary F. Towers, Terence and Debra Hanley, Steven and Karen Chizmar, Patrick and Laurie Wallis, Robert Hruz, Vincent and Pam McHugh, Evan Schaule, and Cindy Ryback. After considering the Town’s and an intervenor’s motion for summary judgment, the circuit court entered a declaratory judgment declaring, in pertinent part, that the Commissioners’ determination was invalid. The circuit court entered a separate order, among other things, directing the Town to verify the signatures on the document.

We granted certiorari to determine whether the Commissioners correctly determined that the purported petition was invalid. For the reasons set forth more fully herein, we hold that the Commissioners did not err. We vacate the circuit court’s judgment and remand this case to the circuit court for the entry of a declaratory judgment in conformance with this opinion. I Factual Background A. Comprehensive Rezoning – Adoption of Ordinance 809-22 The Town, by its Commissioners, adopted an updated comprehensive plan 2 in March 2022.

Thereafter, the Town initiated a comprehensive rezoning process. As part of that process, the Commissioners introduced Ordinance 809-22, which amended the Town’s official zoning map by reclassifying 13 properties. Prior to the adoption of Ordinance 2 In Maryland, the local legislative body of a municipal corporation with planning and zoning authority is required to adopt a “comprehensive plan” by legislative act. Md. Code Ann., Land Use Article (“LU”) § 3-101 (2012 Repl.

Vol., 2023 Supp.). “A comprehensive plan generally applies to a substantial area and is the product of years of long study and public input.” Dzurec v. Bd. of County Comm’rs of Calvert County, 482 Md. 544, 553 (2023) (citations omitted). Once it is adopted, the local jurisdiction may then adopt zoning, development, and subdivision regulations to implement the plan. LU § 3-303(b). The local jurisdiction is required to review its comprehensive plan at least once every 10 years and revise or amend it as necessary.

LU § 3-301. 2 809-22, the Town’s Planning Commission recommended the comprehensive rezoning, the ordinance was subject to a public hearing, and the Commissioners made certain findings, including that the proposed zoning was consistent with the newly adopted comprehensive plan. Ordinance 809-22 was adopted on May 2, 2022, and had an effective date of May 23, 2022. The Klein Family 3 owns the five properties that are the subject of this dispute. Three of the five properties are located on East Broadway, and two are on East Gordon Street.

All five properties were rezoned to the B-3 (General Business) District. Prior to the comprehensive rezoning, the properties located on East Gordon Street were zoned in the B-2 (Business Central) District, and those on East Broadway were zoned in the R-2 (Medium Density Residential) District. 4 3 The five properties that are the subject of this dispute are owned by Colgate Investments, LLC and Klein Family Development Corporation, which are entities operated by the Klein family. For ease of reference, we will collectively refer to these entities as “the Klein Family” or “Klein”—in the same manner that the parties refer to the ownership interests in their briefs. 4 In connection with the comprehensive rezoning, the Klein Family submitted a “Justification Statement” to the Town, which was included in Exhibit A to Ordinance 809-22. In the Justification Statement, the Klein Family explained that they own an existing shopping center “which has been the home to Klein’s Shoprite . . . since the 1980’s.” The Kleins sought a rezoning of adjacent properties located on Gordon Street and East Broadway to B3-A in order to accommodate future growth and expansion of Klein’s Shoprite. 3 B. Efforts to Initiate a Referendum On May 23, 2022, Bodt submitted a stack of signature pages to the Town office that was intended to constitute a petition for referendum.

In total, the document contained 1,051 signatures. The top of each signature page contained the following language: My signature on this document records my disapproval of the change of zoning from residential (R-2) to business (B-3A) for the following properties in Bel Air MD: 45, 53 and 57 East Broadway and 38 and 44 Gordon Street. We request the decision be reversed and the properties returned to R-2 zoning. The document neither contained any reference to Ordinance 809-22, nor did it request that the Ordinance be submitted to a referendum vote in a Town election.

It also contained an error—two of the described properties were not zoned in the R-2 (Medium Residential Density) District, but rather had been zoned in the B-2A (Business Central) District. The Election Board considered the purported petition at a meeting on May 25. During that meeting, the Town attorney informed the Election Board of his belief that the document did not constitute a valid petition for referendum under the Charter. Based on the advice of counsel, the Election Board declared that the document did not comply with the Charter, and thus did not constitute a valid petition for referendum.

The Election Board did not seek to verify that the signatures on the document were from registered voters. On June 10, Bodt refiled the same document that had been submitted on May 23, as well as new pages containing 926 additional signatures. In an attempt to address the concerns raised by the Town attorney at the Election Board meeting, Bodt added a cover page, which stated as follows: 4 Petition for Referendum Ordinance 809-22 The undersigned persons hereby request, pursuant to section 504 of the Town Charter, that Ordinance 809-22 (as it relates to the properties at 45, 53 and 57 E. Broadway and 38 and 44 Gordon Street) be submitted for referendum to the voters of the Town of Bel Air. However, the language at the top of each signature page remained unchanged from the May 23 filing, including incorrectly referencing two of the five properties as having a residential zoning classification prior to the comprehensive rezoning.

C. Town Commissioners’ Consideration of the Purported Petition The Commissioners considered the purported petition at their regularly scheduled meeting on June 21. The minutes of that meeting reflect that the Commissioners undertook a detailed discussion of the document and whether it complied with the requirements of the Charter. At the outset of the discussion, a motion was made, and seconded, to declare “that the signatory documents submitted to the Town” on June 10 “do not constitute a petition for referendum and therefore are legally insufficient and invalid to be considered for scheduling a referendum on Ordinance 809-22.” The Town’s Director of Administration gave an overview of the Town’s comprehensive rezoning process that culminated in the adoption of Ordinance 809-22. The Director recited the provisions of Section 504 of the Charter that govern petitions for referenda.

Thereafter, the Town attorney expressed his view that the document did not constitute a valid petition for referendum under the Charter and touched upon several deficiencies. He noted that the language at the top of each signature page was factually 5 inaccurate because it reflected that the newly rezoned properties on East Broadway were previously zoned in a residential district, when they had, in fact, been designated in a commercial one. He explained that Section 504 requires that a referendum petition request that an ordinance be submitted to the voters of the Town. The attorney pointed out that the signature pages did not mention the ordinance or request a referendum on the ordinance, but instead, sought a zoning reclassification of five of 13 properties.

The Town attorney’s view was that the document did not comply with the requirements set forth in the Charter to be considered a “petition for referendum,” and, therefore, Ordinance 809-22 became effective on May 23, 2022. The Commissioners then discussed the purported petition. One Commissioner noted that the “circulated signature sheets ma[d]e no mention” of words such as “petition,” “referendum,” or “vote.” She observed that, based on the language in the document, citizens “would have no idea that they were signing a document calling for a town-wide vote on the issue,” as the language simply called for the reversal of a zoning decision. She pointed out that “the Town Charter is clear that any petition for a referendum should include” a reference to the ordinance number that is the subject of the petition, and also “incorporate language communicating” that, by signing the document, the signatories “are requesting that the ordinance be put to a public vote in a town election.” She also observed that the “last minute cover sheet” prepared by the circulators’ attorney was not seen by the citizens prior to them signing the document.

Other Commissioners agreed, observing that the deficiencies in the purported petition were not simply legal technicalities insufficient to declare the petition invalid. 6 At the conclusion of the discussion, the Chairperson called for the vote on the pending motion. The motion carried by a vote of 4-1. 5 D. Proceedings in the Circuit Court Bodt filed a complaint against the Town in the Circuit Court for Harford County in November 2022. The second amended complaint is the operative complaint and includes three counts. In Count I, Bodt seeks a declaratory judgment pursuant to CJ § 3-406, declaring that, among other things: • The purported petition complied with Section 504 of the Town Charter “in all respects.” • The Commissioners’ determination that the document did not constitute a valid petition for referendum was legally incorrect and invalid. • Because the purported petition contained more than 20% of the qualified voters, the Commissioners had no authority to declare it to be legally insufficient or invalid. • Because the purported petition contained the requisite number of signatures and was filed in the appropriate time frame, Ordinance 809-22 did not become effective. • The Town is prohibited from taking any further action pursuant to Ordinance 809- 22 unless and until the Commissioners and the Election Board perform their duties under Section 504 of the Charter.

Count II seeks a common law writ of mandamus compelling the Commissioners to: (1) direct the Election Board to verify the signatures on the document; and if the Election 5 Thereafter, this matter took an unnecessary procedural detour that has no relevance to our consideration of the issues presented here. We mention it briefly for completeness. Under Charter § 503(d), any person who is aggrieved by a decision of the Election Board may appeal the decision to the Commissioners. Pursuant to this section, the citizens noted an appeal of the Election Board’s May 25 decision to the Commissioners.

They argued that the Election Board lacked the authority to decide whether the petition was valid because the Commissioners are the legislative body authorized to make that determination. The Commissioners agreed, and there does not appear to be any dispute on that point. 7 Board confirms that at least 20% of the signatories are registered voters in the Town election, and (2) pass a resolution specifying the date and hours for a Town election on the petition. Count III seeks a permanent injunction enjoining the Town from, among other things, “taking any further action pursuant to Ordinance 809-22 as it relates to the properties that are the subject” of the petition unless and until the Commissioners and Election Board “perform their duties” under Section 504, including holding an election (after verification of signatures), and the “results of the election” “are known.” The Klein Family moved to intervene. The Town and the Klein Family each filed a motion to dismiss, or alternatively, for summary judgment.

After Bodt filed a response, the court scheduled a hearing on the motions. Thereafter, the circuit court issued a memorandum opinion and order, which declared the rights of the parties. The court determined that there were no disputes of material fact. After reviewing the minutes of the June 21 Commissioners’ meeting, the court stated that it was “clear” that the Commissioners “by oral motion declared that the documents submitted” to the Town “did not constitute a valid or legally sufficient petition for referendum in order to proceed with a referendum.

In short, the legislative body denied a referendum by oral motion.” The court concluded that the Commissioners’ determination concerning the validity of the purported petition was invalid for two reasons. First, the court found that the Commissioners were required to submit the document to the Election Board for verification of signatures prior to making any determination that the document did not otherwise satisfy the requirements for a valid referendum petition under the Charter. Second, the court ruled that the Commissioners were required to act on this matter by the adoption of an “ordinance 8 or arguably, a resolution.” Because the Commissioners acted by “verbal motion,” the court determined that the Commissioners’ action “was ultra vires and of no legal force and effect.” The court entered a declaratory judgment consistent with these findings. Among other things, the court declared that Bodt was entitled to have the Election Board verify the signatures and that “Maryland common law require[d]” that the signature verification be “completed before determining the validity of the petition itself.” The court entered a separate order dated July 21, 2023, ruling that Ordinance 809-22 was not currently effective.

The court directed the Town to take the following action with respect to Bodt’s petition: • To verify the signatures and count the number of registered voters who signed the petition within 45 days of the date of the order. • To report the results of the signature verification at the Commissioners’ next regularly scheduled meeting following the verification and counting of signatures. • Within 30 days “after public presentation of the” “results of the count” to proceed by “resolution or ordinance to grant or deny the referendum.” In its accompanying memorandum, the court ruled that the Commissioners could “not make use of a mere oral motion” because, “under Maryland law,” any such Commissioner action “is required to proceed by ordinance or arguably by resolution.” The court also stated that its order constituted a “final order in the case,” determining that there “are currently no further matters before the [c]ourt to consider.” 6 6 Although the circuit court did not specifically mention Bodt’s mandamus or injunction counts in its final order, that order did in fact partially grant the relief he sought in those counts. 9 No party was satisfied with the declaratory judgment and order entered by the circuit court. The Town and Klein Family each filed a notice of appeal, and Bodt filed a cross- appeal. Prior to the Appellate Court’s consideration of this case, the Town filed a petition for writ of certiorari, which we granted to consider the following questions, which we have condensed and rephrased: 7 1. Did the Commissioners correctly determine “that the signatory documents submitted to the Town” did “not constitute a petition for referendum” under the provisions of Section 504 of the Town Charter, and were therefore “legally insufficient and invalid to be considered for scheduling a referendum on Ordinance 809-22”? 2.

Were the Commissioners permitted to make the determination set forth in question 1 by a verbal motion at a Commissioners’ meeting that was memorialized in the minutes of the meeting? We answer yes to both questions. We therefore vacate the judgment of the circuit court and remand the case with instructions to enter a declaratory judgment consistent with this opinion. II Standard of Review The circuit court entered its declaratory judgment on the basis of a motion for summary judgment.

A case may be resolved on summary judgment when there is no dispute of material fact, and the moving party is entitled to judgment as a matter of law. 7 In addition to these questions, the petition for writ of certiorari also requested that we address whether organizers of a petition for referendum are prohibited from altering the language of a petition after they have obtained signatures in support of the petition. Given our resolution of the two questions that we are addressing here, we do not need to address that question. 10 Md. Rule 2-501(f). There is general agreement in this case that no material facts are in dispute and that the issues before us are purely legal, namely, whether the Commissioners correctly determined that the purported petition for referendum did not comply with the provisions of the Charter, and whether they were authorized to make such a determination by verbal motion. These are questions that we consider de novo and without any deference to the circuit court’s conclusions.

See, e.g., Bennett v. Harford County, 485 Md. 461, 473 (2023) (explaining that the interpretation of a charter is a legal question, which we review without deference). Where the circuit court does not enter a proper declaratory judgment, “[t]his Court, in its discretion, may ‘review the merits of the controversy and remand for entry of an appropriate declaratory judgment by the circuit court.’” Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 256 (2009) (quoting Bushey v. N. Assurance Co. of Am., 362 Md. 626, 651 (2001)). III Discussion A. Municipal Referendum on a Zoning Ordinance—All Roads Lead to the Municipal Charter In this case, we are asked to consider whether the local legislative body of a municipality correctly construed the applicable provisions of its charter pertaining to a purported petition for referendum, and if so, whether it exercised its authority to determine the validity of the purported petition in a lawful manner. As we recently observed, when 11 considering the correctness of a municipal legislative body’s action, 8 it is important to consider: (1) the substance of the municipal action in question, (2) the source of the municipality’s authority to undertake the action, and (3) the manner in which the action was undertaken because “municipalities possess only such powers as have been conferred upon them by the Legislature.” K. Hovnanian Homes of Md., LLC v. Mayor of Havre de Grace, 472 Md. 267, 288 (2021) (quoting River Walk Apartments, LLC v. Twigg, 396 Md. 527, 543 (2007)); see also Hardy v. Hous.

Mgmt., Co., 293 Md. 394, 396 (1982) (noting that “[i]t is well established under our decisions that a municipal corporation has but limited authority”); Birge v. Town of Easton, 274 Md. 635, 639 (1975) (explaining that a “municipal corporation[] possesses only limited powers”). 8 In Maryland, municipalities derive their authority from the Municipal Home Rule Amendment, Article XI-E of the Constitution of Maryland, which was ratified by the citizens of Maryland on November 2, 1954. Under the Home Rule Amendment, Article XI-E, § 3, the legislative body of a municipality may adopt, amend, or repeal its charter, consistent with the authority granted by the Maryland Constitution and the express powers conferred by the General Assembly. The Home Rule Amendment was implemented by former Maryland Code Article 23A (1957). Former Article 23A, § 1 gave municipal corporations general authority “to pass and adopt all ordinances, resolutions or bylaws necessary or proper to exercise the powers granted herein or elsewhere.” In addition to this general authority, the General Assembly enumerated a list of “express ordinance-making powers” ranging in subject matter.

See former Article 23A, § 2. In 2013, Article 23A was repealed and its provisions were re-codified in a new article of the Maryland Code designated as the “Local Government Article.” 2013 Md. Laws 584–2120. The express ordinance-making powers formerly described in Article 23A, § 2 are now codified in Local Government Article (“LG”) Title 5, Subtitle 2 titled “Enumeration of Express Law Making Powers.” 12 Here, we are reviewing the Commissioners’ consideration of a purported petition for referendum pertaining to a zoning ordinance. The General Assembly has expressly provided that the adoption of a zoning regulation—such as a comprehensive rezoning—is subject to a right of referendum as may be provided by the municipal charter.

See Md. Code Ann., Local Government Article (“LG”) § 5-213 (2013 Repl. Vol., 2023 Supp.) (stating that “[a] municipality may adopt zoning regulations, subject to any right of referendum of the voters at a regular or special election as may be provided by the municipal charter” (emphasis added)). A citizen’s right to petition for referendum of a municipal zoning regulation is a right that arises solely under the municipal charter. Other types of municipal referendum petitions are governed by state statutes, and in such instances, any applicable charter provisions must be construed consistently with the statutory directives.

For example, the General Assembly has provided certain statutory rights and associated procedures that govern municipal annexation referenda, see LG §§ 4-409 through 4-413, and municipal referenda on charter amendments, see LG §§ 4-304, 4-305, 4-307. It is also notable that, unlike state or county petitions for referendum, municipal petitions for referendum are not governed by the statutory requirements that apply to referendum petitions generally. See Md. Code Ann., Election Law Article (“EL”) § 6-102(b) (2013 Repl. Vol., 2023 Supp.) (excluding petitions for referendum applicable to municipalities from the petition requirements and procedures contained in Title 6 of the Election Law Article); see also 13 id. § 1-101(v)(3) (excluding municipal elections generally (other than Baltimore City) from the provisions of the Election Law Article unless otherwise stated). 9 In contrast to other types of petitions arising from statutory rights of referendum, the right of the qualified voters of a municipality to file a petition for referendum of a zoning ordinance arises entirely under the municipal charter. 10 Having identified the nature of the action being undertaken by the Commissioners, we turn to whether they correctly construed the provisions of their Charter.

B. Bel Air Charter We interpret the provisions of a charter using the same canons of construction that we use to interpret statutory language. See, e.g., Bennett, 485 Md. at 484 ; Prince George’s County v. Thurston, 479 Md. 575, 586 (2022). “To discern legislative intent, we first assign the words of the charter provision their ‘ordinary and natural meaning.’” Thurston, 479 9 Although municipal elections are not generally subject to the provisions of the Election Law Article (“EL”), there are some provisions that may apply. For example, after a municipal election “in which a referendum vote is held on a law, ordinance, or resolution,” the municipality is required to report the results to the clerk of the court for the county, who, in turn, is required to certify the results of the referendum to the State Board of Elections. EL § 11-605. 10 The circuit court relied on Gray v. Howard County Board of