Court of Appeals of Maryland Finds Resolution to Remove Historic Schoolhouses from Historic Sites and District Plan was an Initiating Resolution that Did Not Trigger a 30 Day Time to Appeal

This post was authored by Matthew Loescher, Esq.

Prince George’s County Council 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, 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. Pursuant to the resolution, a joint public hearing was held on the proposed minor amendment, during which representatives of the Town of Upper Marlboro, Petitioner, argued against its adoption.

The Council ultimately adopted the minor amendment through a subsequent resolution: CR-98-2019. 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 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 appealed to the Court of Special Appeals, which affirmed the circuit court on different grounds. The Town filed a petition for certiorari, which was granted.

At issue in this case was whether CR-72-2019 constituted 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. The title of CR-72-2019 as an initiating resolution provided the first indication that there was more work for the Council to do before enacting the minor amendment. The court found that the text of CR-72-2019 made no determination of whether to adopt the minor amendment and expressly left this decision for the Council. Accordingly, it held that CR-72-2019 was not a final agency action subject to judicial review. As such, the Town was not required to file a petition for judicial review within thirty days of its passage to preserve its right to challenge the purpose and scope of CR-72-2019.

The record reflected that the Council made a final agency action through the passage of CR-98-2019. Thus, the Town did not waive its challenge to CR-98-2019, based on alleged deficiencies in CR-72-2019, by failing to appeal CR-72-2019 within thirty days of its passage. Nevertheless, the court rejected the Town’s position that CR-72-2019 was procedurally deficient. Here, CR-72-2019 complied with the circumscribed “scope” set forth in PGCC § 27-642(c) because it expressly stated that its purpose was limited “to specific issues regarding public planning objectives.” Conversely, the Town failed to provide statutory support for its assertion that CR-72-2019 required any specific factual details regarding the “specific issues regarding public planning objectives. The court therefore held that CR-72-2019 satisfied the statutory requirements set forth in PGCC § 27-642 for an initiating resolution for a minor amendment, and affirmed the judgment of the Court of Special Appeals on alternative grounds.

Town of Upper Marlboro v Prince Georges County Council, 2022 WL 3025099 (MD 8/1/2022)