Town of Upper Marlboro v. Prince George's Cnty Cncl

The Town of Upper Marlboro v. The Prince George’s County Council, No. 55 September 2021 Term. Opinion by Hotten, J. LAND USE – JUDICIAL REVIEW – FINAL AGENCY ACTIONS Generally, an agency action is appealable only if it is final. An agency action is final when it decides all questions of law and fact and leaves nothing further for the agency to decide. Willis v. Montgomery Cty., 415 Md. 523 , 534‒35, 3 A.3d 448 , 455–56 (2010).

Prince George’s County Council (“the Council”) passed a resolution, CR-72-2019, to consider whether to amend the 2010 Prince George’s County Historic Sites and Districts Plan by removing the historic designation of two schoolhouses in Upper Marlboro, Maryland. Following a public hearing, the Council passed a second resolution, CR-98-2019, that accordingly amended the 2010 Prince George’s County Historic Sites and Districts Plan. The Court of Appeals held that CR-72-2019 was not a final agency action because it merely initiated the process for determining whether to remove the historic designation of the two schoolhouses, leaving the final decision to be determined by a subsequent resolution and subject to the input and comment from the public. LAND USE – MINOR AMENDMENTS TO AN APPROVED ZONING PLAN – SCOPE AND PURPOSE The standard of review for an agency action, such as the passage of a resolution by the Council, depends on whether the agency acted in a legislative or quasi-judicial capacity.

As a threshold issue, the Court determined that the Council acted in a legislative capacity in the passage of both CR-72-2019 and CR-98-2019 because the Council acted in its discretion and on public policy grounds. Judicial review of legislative actions is generally “limited to assessing whether the agency was acting within its legal boundaries[.] . . .” Bucktail, LLC v. Cty. Council of Talbot Cty., 352 Md. 530, 543 , 723 A.2d 440, 446 (1999) (citation omitted). Resolutions by the Council that affect land use and zoning must comply with the procedural requirements pursuant to Prince George’s County Code (“PGCC”) § 27-642.

An initiating resolution, such as CR- 72-2019, “shall set forth the purpose and scope of the proposed amendment[.] . . .” PGCC § 27-642(d). The Court held that the Council acted within the legal boundaries of PGCC § 27-642 by specifying that the scope and purpose of CR-72-2019 was limited to the “public planning objective” of redesignating the historical status of two schoolhouses. The resolution did not exceed the legal boundaries of the statute by not providing further detail on the future uses of the two schoolhouses. Circuit Court for Prince George’s County Case No. CAL 19-40094 Argued: May 10, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 55 September Term, 2021 __________________________________ THE TOWN OF UPPER MARLBORO v. THE PRINCE GEORGE’S COUNTY COUNCIL __________________________________ Fader, C.J., Watts, Hotten, Booth, Biran, Eaves, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: August 1, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-08-01 Suzanne C. Johnson, Clerk 13:21-04:00 Respondent, Prince George’s County Council (the “Council” or “District Council”),1 sought to remove two historic schoolhouses in Upper Marlboro, Maryland from the 2010 Prince George’s County Historic Sites and Districts Plan.

Pursuant to the procedures outlined in the Prince George’s County Code, on July 23, 2019, the Council passed an initiating resolution, CR-72-2019. This resolution directed the Prince George’s County Planning Board of the Maryland-National Capital Park and Planning Commission (the “Planning Board”) to initiate the process for considering whether to adopt a minor amendment that would remove the two schoolhouses from the County’s list of historically protected sites (the “minor amendment”). Pursuant to the resolution, a joint public hearing was held on the proposed minor amendment, during which representatives of the Town of Upper Marlboro (the “Town”), Petitioner, argued against its adoption. The Town, however, did not seek judicial review of CR-72-2019 itself.

The Council ultimately adopted the minor amendment through a subsequent resolution, CR-98-2019, on November 19, 2019. Within thirty days, the Town filed a petition for judicial review of CR-98-2019 in the Circuit Court for Prince George’s County. The Town asserted that CR-72-2019 did not properly set forth the purpose and scope of the proposed minor amendment as statutorily required. Therefore, according to the Town, the adoption of the minor amendment in CR-98-2019 was arbitrary and capricious.

The 1 “In situations involving zoning actions entirely within Prince George’s County, the County Council of Prince George’s County sits as the District Council.” Grant v. Cty. Council of Prince George’s Cty., 465 Md. 496, 503 , 214 A.3d 1098 , 1102 (2019) (citing Md. Code Ann., Land Use (“Land Use”) § 22-101(b)). circuit court ruled against the Town, finding that the adoption of CR-72-2019 and CR-98- 2019 was not arbitrary and capricious, and was supported by substantial evidence in the record. The Town subsequently appealed to the Court of Special Appeals, which affirmed the circuit court on different grounds. The intermediate appellate court determined that CR-72-2019 was an independently reviewable final agency action because it was an “administratively distinct” action by the Council.

Town of Upper Marlboro v. Prince George’s Cty. Council, No. 0801, Sept. Term, 2020, 2021 WL 4169198 , at ⁴ (Md. Ct. Spec. App. Sept. 14, 2021). The court found that the Town forfeited its right to directly challenge CR-72-2019 because the Town failed to directly appeal within thirty days of the passage of the resolution.

The court declined to reach the merits of whether CR-98-2019 was procedurally deficient because the challenge to CR-98-2019 was “based exclusively on alleged deficiencies with CR-72-2019.” Id. The court concluded that the Town cannot circumvent the thirty-day appeal window by bringing “an appeal of CR-72-2019 through CR-98-2019.” Id. The Town filed a petition for certiorari, which we granted. Town of Upper Marlboro v. Prince George’s Cty.

Council, 477 Md. 149 , 266 A.3d 990 (2022). It presents the following questions for our review: I. Was CR-72-2019 a final appealable decision that had to be challenged within [thirty] days of finality as required by § 22-407 of the Land Use Article? 2 II. Was the Town’s appeal of CR[-]98-2019 [in]sufficient to challenge the deficiencies in CR-72-2019?[2] III. Was the decision of the County Council sitting as the District Council deficient in setting forth the purpose and scope of the minor amendment in the initiating resolution (CR-72-[2019]) as required by Section 27-642 of the Prince George’s County Code?

As explained in detail below, we answer each question in the negative. The decision of the Court of Special Appeals is therefore affirmed on alternative grounds. FACTUAL AND PROCEDURAL BACKGROUND Relevant Facts Old Marlboro Primary School and Old Marlboro High School are properties located in Upper Marlboro, Maryland and owned by Prince George’s County.3 Until the contested actions of the Council, the two schoolhouses were listed on the 2010 Prince George’s County Historic Sites and Districts Plan and protected by the County’s historic preservation ordinances. See Prince George’s County Code (“PGCC”) § 29-101, et seq.

Old Marlboro Primary School is a one-story wood-frame Craftsman-style building 2 For clarity in our response, we have slightly rephrased the second question presented, which originally asked: “Was the Town’s appeal of CR[-]98-2019 sufficient to challenge the deficiencies in CR-72-2019?” 3 The two schoolhouses are adjacent to the Dr. William & Sarah Beanes Cemetery, another site listed on the 2010 Prince George’s County Historic Sites and Districts Plan. During the War of 1812, the British army captured Dr. William Beanes, a prominent physician and planter in Prince George’s County. Francis Scott Key was sent to Baltimore to negotiate the release of Dr. Beanes. Mr. Key was successful, but was detained during the British navy’s bombardment of Fort McHenry in Baltimore.

Inspired by the sight of the American flag still flying above Fort McHenry “by the dawn’s early light,” Mr. Key wrote a poem that became “The Star-Spangled Banner.” 3 constructed in 1896 as a replacement building for an earlier public school built for girls in 1867. The building was converted into a residence in 1921. Old Marlboro High School was constructed in two phases in 1921 and 1934 and built in the Classical Revival-style. The two schoolhouses have been vacant since the early 2000s, and have deteriorated due to disuse and lack of maintenance since their historic designation in 2010.

On July 23, 2019, the Council passed CR-72-2019, “[f]or the purpose of directing the [Planning Board] to initiate a minor amendment to the [2010] Historic Sites and Districts Plan[.]” The resolution stated: WHEREAS, the District Council finds that there is a need to reevaluate the designation of Historic Sites 79-019-51 and 79-019-52 [i.e., Old Marlboro Primary School and Old Marlboro High School] for removal from the [2010] Prince George’s County Historic Sites and Districts Plan; and WHEREAS, Section 27-642 of the Zoning Ordinance [of the Prince George’s County Code] establishes a process whereby the District Council may initiate certain minor amendments to an approved functional master plan; and WHEREAS, the Council finds that the proposed minor amendment is plainly authorized pursuant to Section 27-642, because the proposed amendment: (1) is limited to specific issues regarding public planning objectives; and (2) does not constitute an amendment which would require major transportation analysis and/or modeling, revised water and sewer classifications, and Adequate Public Facilities analysis; and WHEREAS, upon approval of this Resolution and, in accordance with applicable law, the proposed minor amendment to the [2010] Prince George’s County Historic Sites and Districts Plan shall be subject to all notice and public hearing requirements to seek public comment on the minor amendment. The resolution then stated that the Planning Board “is hereby directed to initiate a minor amendment to the [2010] Prince George’s County Historic Sites and Districts Plan . . . to 4 remove the Old Marlboro Primary School . . . and the Old Marlboro High School[.]” The resolution set a joint public hearing on the proposed minor amendment for September 17, 2019. During the joint public hearing, the Town submitted testimony, a citizen’s petition, and a Town Resolution opposing the minor amendment. Following the hearing, the Council and the Planning Board conducted additional public work-sessions on the testimony from the joint public hearing and recommendations regarding the minor amendment.

On November 19, 2019, the Council passed CR-98-2019, which officially adopted the minor amendment removing Old Marlboro Primary School and Old Marlboro High School from the 2010 Prince George’s County Historic Sites and Districts Plan: A RESOLUTION concerning [t]he 2010 Historic Sites and Districts Plan for Prince George’s County – Minor Amendment . . . WHEREAS, on July 23, 2019, the District Council adopted CR-72-2019 for the purpose of initiating a minor amendment process to amend the [2010] Prince George’s County Historic Sites and Districts Plan to remove the Old Marlboro Primary School (Historic Site 79-019-51) and the Old Marlboro High School (Historic Site 79-019-52) from the Inventory of Historic Resources[.] . . . NOW, THEREFORE, BE IT RESOLVED by the County Council of Prince George’s County, Maryland, . . . that in accordance with Sections 27-642 of the Zoning Ordinance, the following Minor Amendment to the [2010] Prince George’s County Historic Sites and Districts Plan, is hereby approved and incorporated as set forth fully within this Resolution[.] . . . Amend the [2010] Prince George’s County Historic Sites and District[s] Plan to remove the Old Marlboro Primary School, Historic Site 79-019-51, and the Old Marlboro High School, Historic Site 79-019-52, as described in Attachment A, and incorporated fully herein. 5 BE IT FURTHER RESOLVED that any proposal for redevelopment of the subject property seek to retain historic building fabric from the two school buildings to the extent practicable and to commemorate the history of the property through interpretive signage or other visual elements; and BE IT FURTHER RESOLVED that the Dr. William and Sarah Beanes Cemetery (Historic Site 79-019-22) be preserved in place and protected from any redevelopment of the subject property, including through delineation of an appropriate environmental setting[.] . . .

(Emphasis added). Legal Proceedings A. Circuit Court Proceeding On December 17, 2019, the Town filed a petition for judicial review of CR-98-2019 in the Circuit Court for Prince George’s County. The Town argued that the initiating resolution, CR-72-2019, failed to comply with the dictates of the Prince George’s County Code in setting forth the purpose and scope of the proposed minor amendment, and as a result, the Council’s decision to adopt the minor amendment in CR-98-2019 was arbitrary and capricious. The Town argued that CR-72-2019, as an initiating resolution, was not a final agency decision and not directly judicially reviewable; therefore, it properly challenged CR-98-2019 by alleging deficiencies in CR-72-2019.

The Council responded that CR-72-2019 was a judicially reviewable final agency decision, and because the Town challenged the adoption of the minor amendment solely based on alleged deficiencies in CR-72-2019, the Town waived its challenge by failing to directly appeal CR-72-2019 within thirty days. The Council also argued that it complied with the procedural requirements pursuant to the Prince George’s County Code when setting forth the purpose 6 and scope of the minor amendment, and its decision was supported by substantial evidence in the record and was not arbitrary and capricious. The circuit court did not directly address whether CR-72-2019 was a final agency action that should have been directly challenged by the Town, but ruled in favor of the Council, finding that the decision to adopt the minor amendment was not arbitrary and capricious, but was supported by substantial evidence in the record. Specifically, the circuit court stated: An administrative decision is deemed arbitrary and capricious if it is made impulsively, at random, or according to individual preferences rather than motivated by relevance or applicable set of norms.

Thus, as long as the decision of the District Council was reasonably or rationally motivated, this Court must affirm its decision, as such decisions cannot be deemed arbitrary or capricious. The adoption of County Resolution 72-2019, the initiating resolution, and CR-98-2019, the resolution approving the minor amendment, was not impulsive, random, or based on an individual preference, and such adoptions were conducted under lawful and statutory authority. They were subject to public notice and a deliberative process that is required under the law, further noting that substantial evidence test remains the ultimate consideration on judicial review and does not involve reweighing of the evidence that went before the Council. This Council finds the District Court’s -- excuse me, the District Council decision was substandard by -- supported by substantial evidence in the record. *** For all the reasons I have outlined on the record, this Court is bound by the determination of the Prince George’s County Council, having found that it was not arbitrary, capricious, or based on erroneous conclusion of law, and it’s [sic] decision is hereby affirmed. 7 B. Opinion of the Court of Special Appeals The Town appealed the circuit court’s ruling to the Court of Special Appeals, which affirmed the circuit court on different grounds in an unreported opinion.

Town of Upper Marlboro, 2021 WL 4169198 , at ⁵. The intermediate appellate court held that the Town forfeited its right to appeal any procedural deficiencies in CR-72-2019 when it failed to bring an action within thirty days of its passage pursuant to Maryland Code, Land Use Article (“Land Use”) § 22-407(a)(2). Id. at ³–4. The court reasoned, relying on Colao v. County Council of Prince George’s County, 109 Md. App. 431, 436 , 675 A.2d 148, 150 (1996), aff’d, 346 Md. 342 , 697 A.2d 96 (1997), that although CR-72-2019 and CR-98- 2019 were related and concerned the same properties, they were nonetheless “administratively distinct actions of the Council[]” and CR-72-2019 should have been independently appealed as a final agency action.

Town of Upper Marlboro, 2021 WL 4169198 , at ⁴. The court held that “[t]he Town cannot circumvent the 30-day appeal requirement by bringing an appeal of CR-72-2019 through CR-98-2019.” Id. Because the Court of Special Appeals found that the Town had waived its arguments alleging deficiencies in CR-72-2019, it declined to reach the merits of whether that resolution adequately set forth the purpose and scope of the minor amendment. Id. at ⁵.

The court concluded that because “[t]he Town did not make any argument that CR-98- 2019 was arbitrary and capricious independent of the alleged defects in CR-72-2019,” the court “need not rule on whether the Council’s decision to adopt CR-98-2019 was supported by substantial evidence.” Id. 8 DISCUSSION I. Contentions of the Parties A. Finality of an Agency Action The Town argues that the Court of Special Appeals erred in determining that CR- 72-2019 was a judicially challengeable final agency action. The Town contends that it could not have appealed the passage of CR-72-2019 because the resolution was a non-final action that “contained no binding or regulatory effect,” and therefore, the Town could not establish any “aggrievement” to give the Town standing to challenge the resolution under Land Use § 22-407(a)(1). The Town argues that the defect in the initiating resolution, CR- 72-2019, was a defect in the procedure for approval of CR-98-2019 and that it properly challenged the passage of CR-98-2019 by alleging a defect in CR-72-2019. The Council responds that the Court of Special Appeals correctly determined that CR-72-2019 was a final agency action subject to judicial review, and that the Town waived its arguments based on CR-72-2019’s alleged deficiencies by not bringing its challenge within thirty days of the resolution’s adoption.

The Council asserts that the Town can only challenge whether CR-98-2019 was adopted within the boundaries of its statutory authority. B. Purpose and Scope of an Agency Action The Town argues that the Council did not comply with the procedure set forth in PGCC § 27-642 for adopting minor amendments. Specifically, it contends that CR-72- 9 2019 did not adequately set forth the purpose and scope of the proposed minor amendment pursuant to PGCC § 27-642(d). The Town asserts that PGCC § 27-642(b) and (c) set forth permissible “purpose[s]” and “scope[s]” for minor amendments that must be included in an initiating resolution.

The Town argues that CR-72-2019 did not adequately state or apply any facts that would satisfy those provisions. The Council responds that this Court need not reach the issue of purpose and scope because the Court of Special Appeals correctly concluded that the Town waived this argument by failing to appeal CR-72-2019 within thirty days of its passage. However, should this Court reach the issue, the Council argues that CR-72-2019 set forth the purpose and scope of the minor amendment pursuant to PGCC § 27-642(d). Contrary to the position of the Town, the Council asserts that PGCC § 27-642(b) does not create a mandatory list of permissible purposes of minor amendments that must be expressly included in a resolution.

Even if the statute required express purpose and scope language, the Council argues that the purpose provided in CR-72-2019, “the need to re-evaluate and remove the historic designation” of the two schools, satisfied any statutory requirement. (Emphasis omitted). The Council likewise asserts that the scope of CR-72-2019 was limited as required by PGCC § 27-642(c) to “specific issues regarding public planning objectives, including public comment on the proposed minor amendment.” (Emphasis omitted). The Council 10 argues that the future use of the property is not necessary to discern the purpose and scope of the minor amendment.

II

Standard of Review A. Waiver and Finality of an Agency Action The determination of whether an argument has been waived under a relevant statutory scheme, or whether a particular agency action is final for the purpose of judicial review, is a question of law that this Court reviews de novo. See Arroyo v. Bd. of Educ. of Howard Cty., 381 Md. 646, 658 , 851 A.2d 576, 583 (2004) (determining whether an administrative decision was final pursuant to a statute); Wholey v. Sears Roebuck, 370 Md. 38, 48 , 803 A.2d 482, 487 (2002) (“The viability of a legal cause of action is clearly a question of law which, as with all questions of law, this Court shall review de novo.”); Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 551 , 132 A.3d 866 , 870–71 (2016) (“As with all questions of law, we review this matter de novo.”) (quoting State v. Johnson, 367 Md. 418, 424 , 788 A.2d 628, 631 (2002)). B. Purpose and Scope of an Agency Action The standard of review for an action of an agency such as the District Council depends on whether it is legislative or quasi-judicial in nature. See Maryland Overpak Corp. v. Mayor & City Council of Balt., 395 Md. 16, 33 , 909 A.2d 235, 245 (2006).

Judicial review of agency actions deemed to be legislative are generally “limited to assessing whether the agency was acting within its legal boundaries[.] . . .” Bucktail, LLC v. Cty. 11 Council of Talbot Cty., 352 Md. 530, 543 , 723 A.2d 440, 446 (1999) (quoting Dep’t of Nat. Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 224 , 334 A.2d 514, 523 (1975)). By contrast, when the District Council acts in its quasi-judicial capacity, “the courts review the appealed conclusions by determining whether the contested decision was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner.” Id., 723 A.2d at 446 (1999) (quoting Linchester Sand & Gravel Corp., 274 Md. at 224 , 334 A.2d at 523 ). Quasi-judicial decisions are generally reviewed under the “substantial evidence test” which requires that the “determination of the zoning authority [] be upheld ‘if reasoning minds could reasonably reach the conclusion from facts in the record.’” Cty.

Council of Prince George’s Cty. v. Zimmer Dev. Co., 444 Md. 490, 510 , 120 A.3d 677 , 688–89 (2015) (quoting Cremins v. Cty. Comm’rs of Washington Cty., 164 Md. App. 426, 438 , 883 A.2d 966, 973 (2005)).

III

Analysis A. The Town’s Arguments Have Not Been Waived Because CR 72-2019 Was Not A Final Appealable Decision. Section 22-407(a) of the Land Use Article governs the procedure for judicial review of the Prince George’s County Council, sitting as the District Council, pursuant to its zoning authority. See Grant v. Cty. Council of Prince George’s Cty., 465 Md. 496, 503 , 214 A.3d 1098 ,1102 (2019) (citing Land Use § 22-101(b)).

The statute in pertinent part provides: 12 (1) Judicial review of any final decision of the district council, including an individual map amendment or a sectional map amendment, may be requested by any person or entity that is aggrieved by the decision of the district council and is: (i) a municipal corporation, governed special taxing district, or person in the county; (ii) a civic or homeowners association representing property owners affected by the final decision; (iii) the owner of the property that is the subject of the decision; or (iv) the applicant. (2) A petition for judicial review under this subsection shall be filed in the Circuit Court for Prince George’s County within 30 days after service of the final decision by the district council. *** Land Use § 22-407(a) (emphasis added). At issue is whether CR-72-2019 constitutes a “final decision” within the meaning of Land Use § 22-407(a), so that a petition for judicial review should have been filed within thirty days after service of the decision by the Council. Land Use § 22-407(a) mandates that only final decisions of the District Council are judicially appealable.

The statute comports with the general rule of Maryland administrative law that “an action for judicial review of an administrative order will lie only if the administrative order is final.” Driggs Corp. v. Maryland Aviation Admin., 348 Md. 389, 407 , 704 A.2d 433, 442 (1998); see also Dorsey v. Bethel A.M.E. Church, 375 Md. 59 , 74–75, 825 A.2d 388, 397 (2003) (“[I]n the absence of a statutory provision expressly authorizing judicial review of interlocutory administrative decisions, and in the 13 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[.]”) (cleaned up). This Court has clarified that “not every administrative order which determines rights and liabilities, or from which legal consequences flow, is final and thus subject to judicial review.” Holiday Spas v. Montgomery Cty. Hum. Rels.

Comm’n, 315 Md. 390, 396 , 554 A.2d 1197, 1200 (1989). Instead, “[t]o be ‘final,’ the order or decision must dispose of the case by deciding all question[s] of law and fact and leave nothing further for the administrative body to decide.” Willis v. Montgomery Cty., 415 Md. 523, 535 , 3 A.3d 448 , 455–56 (2010). In simple terms, this Court has explained “[o]rdinarily an agency order is not final when it is contemplated that there is more for the agency to do.” Kim v. Comptroller of Treasury, 350 Md. 527, 534 , 714 A.2d 176, 179 (1998) (emphasis added). The purpose of the doctrine of finality relates to both judicial efficiency and authority.

In Driggs Corp., we explained: The salutary purpose of the finality requirement is to avoid piecemeal actions in the circuit court seeking fragmented advisory opinions with respect to partial or intermediate agency decisions. Not only would a contrary rule create the real prospect of unnecessary litigation, as a party choosing to seek review of an unfavorable interlocutory order might well, if the party waited to the end, be satisfied with the final administrative decision, but the wholesale exercise of judicial authority over intermediate and partial decisions could raise serious separation of powers concerns. 348 Md. at 407 , 704 A.2d at 443 ; see also Bd. of Pub. Works v. K. Hovnanian’s Four Seasons at Kent Island, LLC, 443 Md. 199, 216 , 115 A.3d 634, 644 (2015) (“The doctrines 14 of exhaustion and finality ‘share the common goal of preventing potentially unnecessary and premature disruption by the courts of the activities of administrative agencies.’”).4 We have consistently applied the rule of finality to land use decisions of local governments. See, e.g., Renaissance Centro Columbia, LLC v. Broida, 421 Md. 474, 485 , 27 A.3d 143, 149 (2011); K. Hovnanian, 443 Md. at 215 , 115 A.3d at 643‒44; Smith v. 4 In addition to arguing that CR-72-2019 did not meet the requirements of finality, the Town argued in its brief that CR-72-2019 was not judicially appealable based on the administrative law doctrine of exhaustion.

This argument was addressed and rejected by the Court of Special Appeals. Town of Upper Marlboro, 2021 WL 4169198 , at ⁴ (“The Town does not explain, however, what remedies it was required to pursue and exhaust before seeking