Citizens Against Slots at Mall v. PPE Casino Resorts Md., LLC

• Decision Date: 24 October 2012
• Docket Number: No. 154,Sept. Term, 2009.,154
• Citation: 429 Md. 176,55 A.3d 496
• Parties: CITIZENS AGAINST SLOTS AT the MALL, et al. v. PPE CASINO RESORTS MARYLAND, LLC, et al.
• Court: Maryland Court of Appeals

429 Md. 176

55 A.3d 496

CITIZENS AGAINST SLOTS AT the MALL, et al.

v.PPE CASINO RESORTS MARYLAND, LLC, et al.

No. 154, Sept. Term, 2009.

Court of Appeals of Maryland.

Oct. 24, 2012.

Michael D. Berman (Alan M. Rifkin and M. Celeste Bruce of Rifkin, Livingston, Levitan & Silver, LLC, Annapolis, MD; Bruce L. Marcus of MarcusBonsib, LLC, Greenbelt, MD; Timothy F. Maloney of Joseph, Greenwald & Laake, PA, Greenbelt, MD), all on brief, for appellants/cross-appellees.

Anthony Herman (Alan A. Pemberton, Stephen P. Anthony, Virginia M. Rosado Desilets, Scott A. Freling and Shelli Calland of Covington & Burling LLP, Washington, DC; Andrew C. White and Erin Murphy Ehman of Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD), all on brief, for appellees/cross-appellants.

Kathleen E. Wherthey, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, and Jeffrey L. Darsie, Asst. Atty. Gen., Baltimore, MD; James C. Praley of Lessans, Praley & McCormick, P.A., Glen Burnie), all on brief, for cross-appellees.

Jonathan A. Hodgson, Co. Atty., Michael G. Comeau, Asst. Co. Atty., Annapolis, Robert S. McCord, Co. Atty., Bel Air, Margaret Ann Nolan, Co. Solicitor, Columbia, Marc P. Hansen, Acting Co. Atty., Rockville, John E. Beverungen, Co. Atty., Towson, George Nilson, City Solicitor, Baltimore City Law Department, Baltimore, MD, for amicus curiae brief of Anne Arundel County, Maryland and Charter Counties.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

JOHN C. ELDRIDGE (Retired, Specially Assigned), J.

This is the latest in a series of opinions and orders by this Court involving the constitutional provision and the implementing legislation authorizing a limited number of “video lottery terminals,” commonly known as “slot machines,” at specified Maryland facilities, including a facility in the area of northern Anne Arundel County.¹See Ch. 5 of the 2007 Special Session of the General Assembly proposing new Article XIX of the Maryland Constitution, ratified at the general election in November 2008; Ch. 4 of the 2007 Special Session of the General Assembly, codified in Maryland Code (1984, 2009 Repl.Vol., 2012 Supp.), §§ 9–1A–01 through 9–1A–36 of the State Government Article. See also Ch. 1 of the 2012 Second Special Session of the General Assembly, approved by the Governor August 15, 2012, which proposes an expansion of commercial gaming and which provides, inter alia, for a referendum on such expansion in November 2012, pursuant to Article XIX, § 1(e) of the Maryland Constitution.

The principal issues in these appeals are whether the Circuit Court's judgment was appealable and whether an Anne Arundel County zoning ordinance, authorizing video lottery facilities in certain areas of Anne Arundel County, was subject to referendum under § 308(a) of the Anne Arundel County Charter.² The zoning ordinance, which was Bill No. 82–09, authorized video lottery facilities as a “conditional use” in a “W–1 Industrial Park zoning district” and in a “Regional Commercial Complex” of Anne Arundel County. The authorized area under Bill No. 82–09 would encompass the particular area of northern Anne Arundel County where the video lottery facility was tentatively to be located.

The Circuit Court for Anne Arundel County in this case filed a judgment declaring “that Bill No. 82–09 is an interdependent and legally inseparable piece of an appropriation package for maintaining State and local government and, therefore, is not subject to referendum....” The Circuit Court, however, rejected all other challenges to a referendum on Bill No. 82–09. Both sides took appeals from the Circuit Court's judgment, and both filed in this Court petitions for writs of certiorari which we granted. Citizens Against Slots v. PPE Casino, 415 Md. 114, 999 A.2d 179 (2010).

On July 20, 2010, after the filing of briefs and oral argument, this Court issued an order which (1) denied a motion to dismiss the appeals, thereby holding that the Circuit Court's judgment was appealable, and (2) reversed the Circuit Court's judgment and remanded the case to that court with instructions to order that Bill No. 82–09 “be placed on the ballot at the November 2010 general election,” in accordance with the referendum provisions of the Anne Arundel County Charter. See Citizens Against Slots v. PPE Casino, 415 Md. 117, 999 A.2d 181 (2010). This opinion gives the reasons for the Court's order.³

I.

The constitutional amendment and implementing legislation authorizing video lottery facilities in various Maryland locations has been described in several recent opinions of this Court, and we shall not here repeat in detail what was set forth in those opinions. See Stop Slots v. State Board of Elections, 424 Md. 163, 34 A.3d 1164 (2012); Smigiel v. Franchot, 410 Md. 302, 978 A.2d 687 (2009); Laurel Racing v. Video Lottery, 409 Md. 445, 975 A.2d 894 (2009). Of particular importance in the present case are two provisions of Article XIX of the Maryland Constitution. They are Article XIX, § 1(c)(3)(i), authorizing a video lottery facility in “Anne Arundel County, within 2 miles of MD Route 295,” and Article XIX, § 1(c)(5), stating that “[a] video lottery facility shall comply with all applicable planning and zoning laws of the local jurisdiction.”

Prior to the enactment of Bill No. 82–09, video lottery facilities were not permitted uses under Anne Arundel County zoning law. On December 7, 2009, the Video Lottery Facility Location Commission “award[ed] a Video Lottery Operation License for 4,750 video lottery terminals to [appellee] PPE Casino Resorts Maryland, LLC, contingent on zoning approval.” The license was for a video lottery facility “to be located at the intersection of Route 100 and Arundel Mills Boulevard, located within two miles of Route 295, at Arundel Mills Mall in Hanover, Maryland.” Anne Arundel County Bill No. 82–09, permitting video lottery facilities in certain areas, including the above-described location at Arundel Mills Mall, was passed by the Anne Arundel County Council on December 21, 2009, and signed by the County Executive on December 22, 2009.

Upon the enactment of Bill No. 82–09, the appellant Citizens Against Slots at the Mall, along with others opposed to a video lottery facility at Arundel Mills Mall, began a petition drive to place Bill No. 82–09 on the ballot, pursuant to the referendum provisions in § 308(a) of the Anne Arundel County Charter.⁴See n. 2, supra. On February 4, 2010, the first group of petition signatures was filed with the Anne Arundel County Board of Elections. Also on February 4, 2010, counsel for PPE Casino Resorts wrote to the County Board of Elections, contending that Bill No. 82–09 “may not be submitted to a referendum under Section 308 of the Anne Arundel County” Charter because it is an “ordinance[ ] making an appropriation for the maintenance of the County government.” Counsel for PPE Casino Resorts argued that, “because Bill 82–09 was enacted pursuant to a statewide initiative and because its rejection could undermine the implementation of that initiative, it may not be submitted to a public referendum at the County level.” The Anne Arundel County Board of Elections, after being advised by its counsel that “Bill 82–09 addresses only zoning issues, [and] does not make any appropriation of funds,” rejected the contentions of PPE Casino Resorts and decided that Bill No. 82–09 was subject to referendum under § 308 of the Anne Arundel County Charter. On April 1, 2010, the Anne Arundel County Board of Elections certified that enough valid signatures in favor of the referendum on Bill No. 82–09 had been filed with the Board and that Bill No. 82–09 “qualifies to be placed on the ballot for the 2010 Gubernatorial General Election ballot.”

While the petition drive was taking place, the appellee PPE Casino Resorts, which opposed the referendum, along with other appellees opposed to the referendum, commenced the present action by filing in the Circuit Court for Anne Arundel County a complaint for a declaratory judgment against the Anne Arundel County Board of Elections, challenging the Board's review of the petitions and the signatures. Citizens Against Slots filed a motion to intervene, and the motion was granted. On April 7, 2010, after the Board of Elections' certification, PPE Casino Resorts filed a second amended complaint, and later a third amended complaint, seeking both judicial review of the certification by the Anne Arundel County Board of Elections and a declaratory judgment. Also, the State Board of Elections was added as a defendant.

Hearings before the Circuit Court took place at various times during the latter part of May 2010 and early June 2010. PPE Casino Resorts argued that Bill No. 82–09 was not subject to a referendum under § 308(a) of the Anne Arundel County Charter because it was a component of an appropriation package, and § 308(a) stated: “No ordinance making any appropriation for current expense for maintaining the County government ... shall be subject to rejection or repeal under this section.” ⁵ PPE Casino Resorts also claimed that the circulator's affidavit on the pages of the petition was defective. Finally, PPE Casino Resorts sought to introduce in the Circuit Court what it described as evidence of “fraud, misrepresentation,and forgery in the Petition and Petition signature-gathering process.” Citizens Against Slots objected to the evidence, and the Circuit Court sustained the objection because the evidence was not presented to the administrative agency, i.e. the Anne Arundel County Board of Elections, and was not contained in the administrative record.

The Circuit Court on June 25, 2010, filed an extensive opinion and declaratory judgment dealing with the various issues raised by the parties. As previously mentioned, the Circuit Court held that Bill No. 82–09 was not subject to referendum because the Bill was “interdependent...