Respondents, a group of residents in Prince George’s County, MD (hereinafter “the Citizens” and “the County”, respectively), filed an action for judicial review of a decision made by the County’s District Council (hereinafter “the Council”). The Eastern Petroleum Company (hereinafter “EPC”), sought to improve the gas station it already owned with a larger convenience store and a drive-through car wash. These improvements required a Departure from Design Standards (hereinafter “DDS”) and a Special Exception (hereinafter “SE”) from the County Planning Board. Three of the Citizens appeared in opposition at the DDS hearing, and one of the Citizens appeared to oppose approval of the SE request. The Planning Board approved both applications. After each agency approval, the parties received notice of options for future action. Either the parties could file a written appeal with the Council, or the Council could initiate its own review of the approval; if neither group took action, the agency decision would become final. The Council first “elected to review” zoning decisions made by local land use agencies, as allowed under the county code. However, before any review proceedings, the Council “withdrew its election to review,” making the agency decisions that allowed for expansion of a gas station near the Citizens’ homes, “final.”
The County Circuit Court dismissed the Citizens’ petition for judicial review, stating that the withdrawal was not a final decision. The Court of Special Appeals reversed and remanded, holding that it was a “final” decision and that the Council was not permitted to withdraw its election to appeal. The Court of Appeals of Maryland granted certiorari to consider the legality of this practice, that is, whether the Court of Special Appeals erred in holding that the Council may not withdraw election to review, thus requiring a hearing on the merits, adopting written conclusions and findings. Specifically, the Court examined whether the Citizens were eligible to seek judicial review of the decision and whether the Citizens failed to exhaust their administrative remedies.
The Council’s first assertion, which essentially made a standing argument, claimed that the Citizens were not “eligible” to seek judicial review. The Regional District Act § 8-106(e), allows any County taxpayer to seek judicial review of a final Council decision if they are affected and aggrieved by it. The Citizens met the requirements because a nearby landowner is presumed “aggrieved” in actions for review of land use decisions.
The Council primarily argued that the Citizens’ failure to file a written appeal with the Council equated to a failure to exhaust their administrative remedies, thereby requiring dismissal. The Court found, however, that “the road to judicial review . . . had to run through the District Council,” as the Citizens had a statutory right to judicial review, provided they filed written exceptions within thirty days. Under this logic, unless the Citizens’ would not fail to exhaust their administrative remedies unless their inaction (failure to file written exceptions) prevented the agency decisions from ever reaching the Council. The Council’s ability to “elect to review” exacerbated the complexities of exhaustion issue. The parties received notice that this potential Council action constituted an alternative to filing written exceptions, which is significant because it made the relevant inquiry one as to whether the parties’ must file written exceptions after the Council elects to review a decision. The Court found nothing in the statute to suggest that the Citizens would have to file exceptions after the Council elected to review the decisions, and noted that the Council’s own notices designated the filing of written exceptions as an alternative to the grant of an election to review. Therefore, the exhaustion requirement does not mandate that parties file a separate request for appeal, invalidating the Council’s exhaustion argument.
The Court then looked at the statutes governing DDS and SE requests to determine whether they gave the Council the right to withdraw its election to review. It found that the DDS procedure provides a specific, mandatory path for an appeal after an election to review, and thus clearly does not provide for a withdrawal of election. The SE statute argued that the statute’s language that “whenever the District Council conducts a public hearing (including an oral argument) for a Special Exception case, it shall do so in accordance with [the County Code]” amounts to permissive, discretionary language involving the decision to conduct a public hearing. Prince George’s County Code § 27-315 (emphasis added) (internal quotation marks omitted). The Court noted that the Council’s discretion extends only to whether the Council will hold oral argument. The Court then looks to other statutory provisions regarding the Council’s review of a SE application, and found that the Council must issue a decision with written findings of fact and conclusions. It noted the absence of any option to withdraw an election to review, and emphasized that approving a lower agency’s decision in full violates the statute because it does so without any written findings of fact or conclusions.
As a result, the Court of Appeals of Maryland held that the Citizens did not fail to exhaust their administrative remedies and were eligible to seek review of the Council decision. It affirmed the holding of the Court of Special Appeals that the Council may not withdraw its election to review a local zoning decision.
County Council of Prince George’s County v. Billings, 2011 WL 2437339 (Md., 6/20/2011)
The opinion can be accessed at: http://www.courts.state.md.us/opinions/coa/2011/46a10.pdf
