Columbia Road Citizens' Ass'n v. Montgomery County

• Decision Date: 01 September 1993
• Docket Number: No. 549,549
• Citation: 98 Md.App. 695,635 A.2d 30
• Parties: COLUMBIA ROAD CITIZENS' ASSOCIATION, et al. v. MONTGOMERY COUNTY, Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 695

98 Md.App. 695

635 A.2d 30

COLUMBIA ROAD CITIZENS' ASSOCIATION, et al. v. MONTGOMERY COUNTY, Maryland, et al.

No. 549, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Jan. 5, 1994.

Thomas C. Schild (Kim M. Czubaruk and Silverman & Schild, on the brief), Silver Spring, for appellants.

Karen L. Federman Henry, Associate County Atty. (Joyce R. Stern, County Atty., and A. Katherine Hart, Sr. Asst. County Atty., on the brief), Rockville, for appellee.

Argued before GARRITY, BLOOM and CATHELL, JJ.

CATHELL, Judge.

Columbia Road Citizens' Association (appellants) appeal from an order of the Circuit Court for Montgomery County affirming a decision of the Montgomery County Board of Appeals (the Board), which approved a special exception for a nursing home in a residential zone. On June 14, 1991, Global Health Management, Inc. (Global) petitioned the Board for a special exception to the Montgomery County zoning ordinance in order to build the nursing home. After a hearing before the Board on October 2, 1991, Global submitted an amended petition. The Board held subsequent hearings and on June 12, 1992, approved Global's request for a special exception. Appellants appealed the Board's decision to the Circuit Court for Montgomery County, where it was affirmed. This appeal followed. Appellants present one question:

Did the Circuit Court err in holding that the Montgomery County Board of Appeals did not act unlawfully by granting the Amended Application for Special Exception without obtaining the comments of the Montgomery County Planning Board or its Technical Staff or a statement that no further review or comment was necessary in accordance with Section 59A-4.24 and 59A-4.48(c) of the Montgomery County Zoning Ordinance?

There was no error and we shall affirm.

There are two general standards of review from administrative decisions. In regard to findings of fact, the trial court cannot substitute its judgment for that of the agency and must accept the agency's conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record; when reviewing findings of law, however, no such deference is given to the agency's conclusion. Liberty Nursing Center, Inc. v. Department of Health and Mental Hygiene, 330 Md. 433, 442-43, 624 A.2d 941 (1993); State Election Bd. v. Billhimer, 314 Md. 46, 58-59, 548 A.2d 819 (1988); Enviro-Gro v. Bockelmann, 88 Md.App. 323, 329, 594 A.2d 1190, cert. denied, 325 Md. 94, 599 A.2d 447 (1991); Department of Health and Mental Hygiene v. Reeders Memorial Home, Inc., 86 Md.App. 447, 452, 586 A.2d 1295 (1991); Gray v. Anne Arundel Co., 73 Md.App. 301, 307-09, 533 A.2d 1325 (1987).

The parties agree that the only issue to be decided by us is whether the trial court properly interpreted section 59-A-4.48(c). "This is an issue of statutory construction. Such an issue involves a question of law [citations omitted]; therefore, our review of the interpretation of that subsection by the Board of Appeals and the circuit court is expansive." Gray, 73 Md.App. at 309, 533 A.2d 1325. See also L.R. Willson & Sons v. Garrett, 76 Md.App. 120, 124, 543 A.2d 875 (1988).

The zoning ordinances at issue here reads, in pertinent part:

59-A-4.24. Amendment of petition.

An applicant may amend this statement prior to the hearing, upon consent of the board, following a motion to amend and 10 days' notice thereof to all parties entitled to original notice of filing. Amendments that are found by the board to alter materially a petitioner's proposal or evidence are cause to postpone the hearing to a date that permits all interested parties, including but not limited to public agencies, adequate time to review the amendment. The amendment must also be referred to the planning board, in accordance with subsection 59-A-4.48(c). Nothing in this section prohibits the board, during the hearing or at any time before the record is closed, from requesting the applicant to revise any aspect of the proposal.

....

59-A-4.48. Planning board report and recommendation.

....

(c) After the planning board or its technical staff has issued its initial report and recommendation, the applicant must transmit to the planning board a copy of any subsequent amendment to the petition. The record must remain open for a reasonable time to provide an opportunity for the planning board or its staff to comment. Within that time, the planning board or its staff must comment on the amendment or state that no further review and comment are necessary.

The initial petition in this case was submitted to the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (planning board) for review. The planning board's role is to give advisory opinions to the Board on pending actions, as the Board has no professional planning staff of its own. The planning board recommended that the initial submission not be approved, but stated that if the project were reduced in scale or otherwise redesigned to reduce visual bulk and provide additional set backs, it could support the project. After the October 2, 1991, hearing, Global amended its special exception petition to address concerns discussed by the Board related to the previous objection of the planning board. The amendment was received by the Board on December 3, 1991, and submitted to the planning board as directed by section 59-A-4.48(c). At oral argument, it was noted, among other things, that the amendment reduced the size of the application. It was thus not a new application nor was it a substantial increase in scope but a reduction by amendment. The Board held the record open until February 17, 1992, for further comment. Neither the planning board nor its technical staff commented on the amended petition before the Board closed the record.

Appellants argued in the circuit court that the language of subsection (c) is mandatory and requires the Board to receive comments from the planning board or its staff before making any decision. Because no comments were received, its argument goes, the Board's decision should be vacated and the case remanded to consider the planning board's comments, if any. The circuit court disagreed, ruling that the zoning ordinance's language was "directory" and not "mandatory." Therefore, the Board's decision could not be overturned solely because planning board comments were not received. The only issue to be decided in this appeal is whether the circuit court erred in determining that the language of 59-A-4.48(c) is "directory" and not "mandatory."

That is the issue we now address.

The word "shall" in a statute is "presumed mandatory on the parties, denoting 'an imperative obligation inconsistent with the exercise of discretion.' " Unless the context indicates otherwise, "shall" and "must" will be construed synonymously "to foreclose discretion" and "impose a positive absolute duty."

Robinson v. Pleet, 76 Md.App. 173, 182, 544 A.2d 1 (1988) (citing Tranen v. Aziz, 59 Md.App. 528, 534, 476 A.2d 1170 (1984), aff'd, 304 Md. 605, 500 A.2d 636 (1985)) (citations omitted). See also Flat Iron Mac Assoc. v. Foley, 90 Md.App. 281, 298, 600 A.2d 1156, cert. denied, 327 Md. 79, 607 A.2d 921 (1992); Tucker v. State, 89 Md.App. 295, 298, 598 A.2d 479 (1991). The Court of Appeals, however, has said:

"... it is well settled that the use of the words 'shall' or 'may' [is] not controlling, in determining whether a particular provision is mandatory or directory.... The question of construction turns upon the intention of the Legislature as gathered from the nature of the subject matter and the purposes to be accomplished."

Director v. Cash, 269 Md. 331, 344, 305 A.2d 833, cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1973) (citing Hitchins v. City of Cumberland, 215 Md. 315, 323, 138 A.2d 359 (1958)). See also Resetar v. State Bd. of Education, 284 Md. 537, 547, 399 A.2d 225, cert. denied, 444 U.S. 838, 100 S.Ct. 74, 62 L.Ed.2d 49 (1979) (mandatory or directory nature dependent on legislative intent, subject matter and purpose of provision); Moss v. Director, 279 Md. 561, 564-65, 369 A.2d 1011 (1977) (look to context of provision for mandatory or directory nature); Prince George's County v. McBride, 268 Md. 522, 533, 302 A.2d 620 (1973) (nature of provision dependent in large part on character, purpose and legislative intent); Tucker, 89 Md.App. at 298, 598 A.2d 479 (courts look to context of provision and legislative intent to determine sanction); Tranen, 59 Md.App. at 535, 476 A.2d 1170 (nature of provision indicated by its context); Harvey v. State, 51 Md.App. 113, 116, 441 A.2d 1094, cert. denied, 293 Md. 616 (1982) (to overcome "mandatory" presumption look to purpose and absence of penalty provision); Pope v. Secretary of Personnel, 46 Md.App. 716, 717, 420 A.2d 1017 (1980), cert. denied, 289 Md. 739 (1981).

To overcome the presumption that the use of "must" makes an enactment mandatory, courts will also look to whether the enactment provides a sanction for noncompliance. See Resetar, 284 Md. at 550, 399 A.2d 225; Moss, 279 Md. at 566, 369 A.2d 1011; Tucker, 89 Md.App. at 299, 598 A.2d 479; Harvey, 51 Md.App. at 116, 441 A.2d 1094; Pope, 46 Md.App. at 717, 420 A.2d 1017. The lack of any sanction in the statute or provision tends to militate towards a finding that the statute or provision is directory.

Non-observance of "[a] mandatory provision in a statute ... renders the proceedings to which it relates illegal and void, while [the observance of] a directory provision ... is not necessary to the validity of the proceedings." Bond v. Mayor & City Council, 118 Md. 159, 166, 84 A. 258 (1912). See also Black's Law Dictionary 962 (6th ed. 1990). More recently, in Tucker, 89 Md.App. at 298, 598 A.2d 479, we stated the essence of the "mandatory/directory" distinction: "if the command is 'mandatory,' some fairly drastic sanction must be imposed upon a finding of...