County Council for Prince George's County v. Carl M. Freeman Associates, Inc.

Decision Date19 July 1977
Docket NumberNo. 9,9
Citation281 Md. 70,376 A.2d 860
PartiesCOUNTY COUNCIL FOR PRINCE GEORGE'S COUNTY, Maryland v. CARL M. FREEMAN ASSOCIATES, INC.
CourtMaryland Court of Appeals

Michael O. Connaughton, Deputy County Atty., and Steven M. Gilbert, Assoc. County Atty., Upper Marlboro (James C. Chapin, County Atty., Upper Marlboro, on the brief), for appellant.

Paul B. Rodbell and William V. Meyers, Riverdale (Alan R. Friedman and Meyers & Billingsley, P. A., Riverdale, on the brief), for appellee.

Argued before MURPHY, C. J., SINGLEY, SMITH, DIGGES, ELDRIDGE and ORTH, JJ., and RITA C. DAVIDSON, Special Judge.

DIGGES, Judge.

This action, involving a comprehensive zoning amendment by petitioner County Council for Prince George's County, presents two essentially procedural issues for our consideration. On the one hand, the Council contends that this suit is not properly before us because respondent Carl M. Freeman Associates, Inc., instituted it by way of administrative appeal when no such remedy is provided by law. On the other hand, the respondent asserts that the map amendment is invalid as a matter of law because it was approved by resolution instead of by ordinance. Although we reject the petitioner's contention, the Council loses only the battle with a measure of last minute curative assistance from the General Assembly, it wins the war (at least in this Court) since we conclude that the respondent's assertion that the amendment was invalidly approved is now moot.

The relevant facts are not in dispute. In 1974 the petitioner, sitting as the District Council for the Maryland-Washington Regional District in Prince George's County, initiated by Council Resolution CR-3-1974 a comprehensive rezoning of Planning Area 62, known as South Laurel-Montpelier. Pursuant to Section 30A.0 of the Zoning Ordinance for Prince George's County, such rezoning is effectuated by an action of the District Council which is passed as a Council Resolution and is known as a Sectional Map Amendment (SMA). Public hearings on the proposed SMA were held in the first seven months of 1975, and on August 5 of that year, following review and discussion of the record and several proposed modifications, the District Council approved the South Laurel-Montpelier SMA with the adoption of Council Resolution CR-85-1975. Among the properties rezoned was that of the respondent.

Thirty days thereafter, on September 4, 1975, Freeman instituted an administrative appeal of the petitioner's decision to the Circuit Court for Prince George's County. The Council demurred, stating that the adoption of the SMA was "a purely legislative act from which no B-Rule appeal may be taken," and that Freeman had "failed to exhaust administrative remedies," but the demurrer was overruled. Later, respondent Freeman filed a motion for summary judgment in which it argued that CR-85-1975 was invalid because it was inconsistent with the relevant master plan. This motion was denied on September 28, 1976. However, on January 17, 1977, the trial court ruled in the respondent's favor on one of several issues of law which were advanced for determination prior to a trial on the merits. On that day, the court concluded that approval of the SMA by council resolution rather than by ordinance was invalid under Section 8-101(b) of Article 66D, Md.Code (1957, 1970 Repl.Vol., 1976 Cum.Supp.), and granted judgment in favor of Freeman. The petitioner noted an appeal from this order, and Freeman cross-appealed from the court's earlier order denying its motion for summary judgment. On March 8, 1977, we granted the Council's petition for certiorari before decision in the Court of Special Appeals.

Initially, we consider whether this Court has jurisdiction to decide the present case. 1 We conclude that we do, since it is clear that review of the petitioner's decision adopting the SMA, by way of appeal to the Circuit Court for Prince George's County, is authorized by Article 66D, Section 8-106(e) and is governed by the provisions of Subtitle B of Chapter 1100 of the Maryland Rules. 2

As we have recently stated on several occasions, the B Rules do not grant a right of appeal, but merely set forth the procedures governing appeals otherwise provided by law. See Mont. Co. v. One Park North, 275 Md. 193, 200-01, 338 A.2d 892, 897 (1975); Md.-Nat'l Cap. P. & P. v. Rockville, 269 Md. 240, 247, 305 A.2d 122, 127 (1973); Urbana Civic v. Urbana Mobile, 260 Md. 458, 462-63, 272 A.2d 628, 631 (1971). See also Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 365 A.2d 34 (1976). Rule B1 a states that these rules "apply to the review of any final action of an administrative agency by a court where such review is specially authorized by statute . . . ." (Emphasis supplied.) Clearly, the petitioner's adoption of Council Resolution CR-85-1975 was a "final action," and equally clear is the fact that when it sits as the District-Council in a zoning matter the County Council is an "administrative agency" as that term is broadly defined in Rule B1 b:

The term "administrative agency," as used in this Subtitle, shall mean any board, department, commission, authority, commissioner or other officer of the State or of a county or local government, whether appointed or elected, whether legislative, administrative, executive, ministerial or quasi-judicial, whose action or decision is specifically subject to court review, except by way of mandamus, by any provision now or hereafter set forth in any general or local statute, ordinance or regulation now or hereafter in effect; but shall not mean any court created by Article IV of the Constitution of Maryland.

Finally, it is plain that judicial review is "specially authorized by statute." Sections 8-104 and 8-106 of Article 66D generally govern amendments to zoning regulations in Prince George's County, and as defined in Section 8-106(d), the word "amendment" obviously includes the SMA process involved in the present action:

(d) Definitions for sections. For purposes of §§ 8-104, 8-105 and 8-106 herein, the word "amend" or "amendment" shall be deemed to include . . . any repeal or abolition of any map or part thereof, or any addition to any map, or any new map, or any other change in the map or maps.

Appeals from zoning amendment decisions are regulated by Section 8-106(e), which provides in pertinent part:

(e) Appeals authorized. In Prince George's County, any incorporated municipality located in Prince George's County, any person or taxpayer in Prince George's County, the applicant who is an aggrieved party, may have judicial review of any final decision of the district council.

By broadly defining the word "amendment" and by using the words "any final decision" in the Section 8-106(e) appeals provision, the legislature expressed an intent that council resolutions adopting SMA's be appealable in Prince George's County. 3

The Council nonetheless suggests that the "any final decision" language of Section 8-106(e) should be construed so as not to apply to SMA decisions because such actions are "purely legislative." We reject this suggestion. While it is true that comprehensive rezoning is essentially a legislative function, Montgomery County v. Woodward & Lothrop, Inc., --- Md. ---, ---, 376 A.2d 483, 495 (1977), it is clear to us that the General Assembly can nonetheless provide for appeals from SMA decisions if it so desires, see Eastgate Associates v. Apper, 276 Md. 698, 700-01, 350 A.2d 661, 663 (1976); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55, 64 (1975); Lohss and Sprenkle v. State, 272 Md. 113, 116, 321 A.2d 534, 536 (1974), and courts may review such decisions to the extent permitted by separation of powers principles. Md.Decl. of Rts., Art. 8; see Dep't of Nat. Res. v. Linchester, 274 Md. 211, 334 A.2d 514 (1975). 4

Having determined the jurisdictional issue, we now turn to the validity of the SMA challenged by this appeal. Although the petitioner's decision was assailed on numerous fronts in the circuit court, the court based its ruling on a single ground and did not reach most of the issues raised by the respondent. Determining that Article 66D, Section 8-101(b) mandates the enactment of SMA's by ordinance, the judge concluded that CR-85-1975 was invalid because it was enacted by resolution. However, between the date of the court's decision (January 17, 1977) and our decision today, the General Assembly enacted Chapter 283 of the Laws of 1977, a curative act which we believe has the effect of validating the Council's action, regardless of whether prior to the passage of Chapter 283, Section 8-101(b) required SMA's to be approved by ordinance. 5 Of course, we are bound to apply the law as it exists at the time a case is decided by this Court, so long as its application does not interfere with intervening vested rights, Rockville Fuel v. Gaithersburg, 266 Md. 117, 127, 291 A.2d 672, 677 (1972), or with other constitutionally protected rights. Consequently, because we conclude that as of June 1, 1977, any procedural defects in CR-85-1975 relating to the "ordinance versus resolution" dispute were cured, and that the act does not impinge on any procedural due process or vested rights insofar as they are involved in the issue we now rule upon, the sole question finally decided by the trial court is moot.

Chapter 283 of the Laws of 1977, repealing and reenacting with amendments Article 66D, Section 1-105, provides:

Any zoning ordinance, regulation, resolution, amendment or change, report, zoning map, or other zoning action enacted, adopted, made, or taken prior to the effective date of this act by the County Council of Montgomery County or the County Council of Prince George's County, acting respectively as the district councils of the regional district, or by the Commission under any applicable laws, are approved, ratified, validated, and confirmed, notwithstanding any defect in the procedure followed in the enactment, adoption,...

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