Town of New Market v. Frederick County

JAMES S. GETTY, Judge, Specially Assigned. The Town of New Market has appealed from an Order of the Circuit Court for Frederick County denying appellant’s Motion for Extension of Time to File Record and the resulting Judgment Order dismissing the appeal. The record establishes that on July 2, 1986, New Market filed a timely appeal from an earlier decision of the Board of County Commissioners of Frederick County wherein the Board approved a zoning change on a 6.5 acre parcel of land owned by Turnpike Farms Limited Partnership. The classification of the land changed from agricultural to commercial.

On July 11, 1986, New Market filed, pursuant to Md.Rule B2e., its petition setting forth the action appealed from, the error committed by the agency and the relief sought. Pursuant to Md.Rule B7a., the record was to be ⁵¹⁶ filed on August 11, 1986, which is thirty days from the day of appeal. 1 The Rule provides: Rule B7 a. Time Within Which Required — Content. Promptly after receipt of a copy of the first petition filed in a case pursuant to section e of Rule B2 (How Appeal Taken) and in any event within thirty days after such receipt, unless a different time shall be fixed by order entered pursuant to section b of this Rule, the agency shall transmit to the clerk of the court the original or a certified copy of the record of its proceedings, including any transcript of testimony and any exhibit filed therein; if the testimony has been recorded but not transcribed prior to the filing of the appeal, the appellant, unless otherwise provided by law, shall, if required by the agency, pay the expense of transcription and that expense shall be taxed as costs; provided, that there shall be omitted such papers as the parties to the appeal shall designate by stipulation, and such stipulation shall be transmitted with the record.

Counsel for one of the appellees, Board of County Commissioners of Frederick County, states that in zoning cases arising in the county the practice has been for the appellants to select a stenographer and assume the costs of transcribing the testimony. The county makes available its recordings of the hearing in order that an accurate transcript is produced. Appellant admits that it was aware of this practice, but it asserts that the agency cannot thereby be relieved of its burden under B7a. to transmit a complete record to the clerk of the court. Unlike Md.Rule 1026a.2 governing appeals to the Court of Special Appeals, which expressly requires the appellant to order a transcript, Rule B7 contains no such language.

Arguably, the rule should be more precise. The appellant herein believed the agency would obtain the transcript; the appellee, because of the local practice, assumed that the ⁵¹⁷ appellant would procure the transcription. Unfortunately, neither communicated with the other until the 30th day and the matter was exacerbated by the refusal of the trial court to grant an extension in order that the tapes of the administrative hearing be included in the record. We note that in at least two reported cases involving the B Rules, the appellant requested and paid for a transcript.

Those cases, decided on other grounds, are Mears v. Bruce, Inc., 39 Md.App. 649 , 388 A.2d 550 (1978), and Jacober v. High Hill Realty, Inc., 22 Md.App. 115 , 321 A.2d 838 (1974). As written, Rule B7a. is subject to at least two interpretations. One, the responsibility for transmitting the record to the clerk is expressly delegated to the agency. The agency, therefore, is obliged to obtain a transcript notwithstanding it may require the appellant to pay the costs thereof.

Two, payment of the expense of transcription is ordinarily borne by the appellant; it is, therefore, incumbent upon appellant to initiate the process of obtaining a transcript. Clearly, Rule B7a. places the responsibility for transmitting the record to the clerk of court upon the agency whose decision is being appealed. Mears v. Bruce, Inc., 39 Md.App. 649 , 388 A.2d 550 (1978). We think the onus is on the agency to forward to the clerk a complete record, since a record without the testimony is meaningless.

The issue that is dispositive of this case