County Council of Prince George's County v. Billings

• Decision Date: 20 June 2011
• Docket Number: 2010.,Sept. Term,No. 46,46
• Citation: 420 Md. 84,21 A.3d 1065
• Parties: COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council, et al.v.Dedra BILLINGS, et al.
• Court: Maryland Court of Appeals

420 Md. 84

21 A.3d 1065

COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council, et al.

v.Dedra BILLINGS, et al.

No. 46

Sept. Term

2010.

Court of Appeals of Maryland.

June 20, 2011.

Steven M. Gilbert, Principal Counsel (Office of County Council, Upper Marlboro, MD), on brief, for Petitioners.Matthew C. Tedesco (Daniel F. Lynch of Knight, Manzi, Nussbaum & LaPlaca, P.A., Upper Marlboro, MD), on brief, for Petitioners.Michael M. Hethmon, Upper Marlboro, MD, for Respondents.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.ADKINS, J.

In this case, we must consider an administrative appeals board's practice of “withdrawing an election to review.” The District Council of Prince George's County may, on its own initiative, “elect to review” certain local land use decisions. In practice, the Council sometimes, after electing to review a decision, “withdraws” its election and declares final the agency decisions. By doing so, the Council is essentially deciding not to decide. We must consider the legality of this practice, and how a party to the now finalized agency decisions must exhaust their remedies and preserve their right to judicial review.

The project at issue is the proposed expansion of a gas station, which required two local zoning approvals. The developer, Eastern Petroleum Company (“EPC”), sought the necessary approvals from the appropriate local agencies, which each held public hearings. The Respondents, a group of nearby residents ¹ (the “Citizens”), were wary of the proposed expansion, and appeared in opposition at the agency level. After the hearings, the local agencies granted both zoning approvals.

Before any action from the Citizens, the District Council of Prince George's County “elected to review” each of the zoning decisions, as allowed for by the county code. The Citizens did not file written exceptions to the agencies' decisions with the District Council, apparently waiting to contest the decisions at the public hearing for the “election to review.” Before any review proceedings, the District Council withdrew its election to review the local decisions, and declared the agency decisions “final.”

The Citizens filed an action for judicial review of the District Council's “decision” in the Circuit Court of Prince George's County. The Circuit Court dismissed the judicial review action, reasoning that the withdrawal was not a final decision. On appeal, the Court of Special Appeals concluded that the withdrawal was a final decision and reversed the Circuit Court. The intermediate appellate court then held that the District Council was not permitted, by the procedures in the Prince George's County Zoning Ordinance,² to withdraw its election to appeal, and ordered the case remanded to the District Council. Both the developer and the District Council requested certiorari from this Court, which we granted to review the following questions, rephrased for brevity and clarity:

1) Were the Citizens “eligible” to seek judicial review of the Council's decision, when the issues they raised on appeal were not raised at the agency level?

2) Did the Citizens fail to exhaust their administrative remedies by failing to present evidence at the agency level and failing to file exceptions to the administrative decisions or an appeal to the District Council?

3) Did the Court of Special Appeals err in holding that once the District Council elects to review a decision, it may not withdraw that election and must hold a hearing on the merits and adopt written findings and conclusions? ³

We shall hold that the Citizens are eligible to seek review of the Council decision, and that they did not fail to exhaust their administrative remedies. Furthermore, we shall affirm the Court of Special Appeals' holding that the District Council may not withdraw its election to review a local zoning decision.

FACTS AND LEGAL PROCEEDINGS

The EPC owns and operates a gas station located on Crain Highway in Prince George's County. In 2007, EPC sought to improve the gas station by razing its current convenience store, along with two vacant buildings on the lot, and adding a larger convenience store and a drive-through car wash.⁴ To accomplish this task according to its design plan, EPC required two administrative approvals.

First, the project required a Departure from Design Standards.⁵ A Departure from Design Standards request is handled by the Prince George's County Planning Board or Planning Director. PG Code § 27–239. 01.⁶ The Planning Board considered EPC's Departure from Design Standards request (“DDS 564”) in public hearings on April 5, 2007 and May 3, 2007. At these hearings, three of the Citizens appeared in opposition at the Planning Board's hearing on DDS 564: David Johnson, Cheryl Corson, and Dedra Billings. Johnson summarized his opposition to the expansion as follows:

This is taking a nonconforming use and expanding it five times in perhaps the worst spot you can imagine.... [Y]ou're putting a much expanded gas station and a carwash and a C-store ... between a highway which[,] as you've already heard, is extremely dangerous and between a [branch of the Charles River] which the Maryland National Capital Parks and Planning has been trying to protect for years.Corson focused on safety issues:

Even with the current configuration of the station, this is a very dangerous short stretch of Route 301....

Cars heading north on Route 301 from the [ ] area usually are traveling well over the speed limit when the traffic light is green, plus given the topography they are traveling down a long hill right toward the BP Station area. With the added complication of cars exiting the BP Station, this can be extremely dangerous with the current conditions.

* * *

When there is an emergency, fire vehicles need the safest route of travel through the intersection[.] Do we need to make this intersection any more dangerous than it already is? Only months ago a T.V. journalist was killed at exactly this spot on Route 301[.]

* * *

Please do not allow the proposed expansion of the BP Station, and I will concur with my neighbors and friends, I have no trouble with modernizing the existing facility.

In Billings' statement at the hearing, she touched on a number of issues:

[T]here appears to be no plans for adding to or increasing the length of a deceleration lane for northbound Route [301] traffic.... [There is] an additional traffic safety issue with drivers coming north on Route 301 because they will be coming around a blind curve and down a hill and to a traffic light. As far as I know there is currently no deceleration lane for people to [enter into] BP. So you're going to have people stopping quickly, making a decision to enter BP, and I can only foresee more accidents.

* * *

We're really happy that the applicant is considering ways to mitigate street runoff.... But simply adding this runoff to a stormwater retention pond [,] as the applicant proposes, does not make it the best solution for site drainage. Funneling all the runoff from the road and the gas station raises the issues of whether problems that arise later on may well go unmonitored and uncorrected and scaling back it's overly intense proposed use of the site would also certainly leave enough room for a better stormwater management system within the confines of the commercial property itself.

* * * And we want them to incorporate elements of the rustic vernacular architecture that are in the rural tier now.

* * *

[In conclusion,] [w]e support, among other things, minimizing traffic hazards and congestion, protecting the environment, reducing light pollution and the avoidance of urban [architecture] at the entrance to the rural tier.

Nonetheless, the Planning Board approved the request, as proposed, on May 31, 2007, issuing a written Resolution on June 5, 2007. The notice for DDS 564 included the following passage:

The [agency's] decision will become final ... (31 days after the date of this letter) unless:

1. Prior to this date, a written appeal is filed with the District Council for Prince George's County by any person of record; or

2. Prior to this date, the District Council decides on its own motion, to review the [administrative] decision.

EPC's project also required a Special Exception.⁷ A Special Exception Request is decided by a Prince George's County Zoning Hearing Examiner (“ZHE”). ⁸ See PG Code § 27–312. The ZHE held a hearing for EPC's request for Special Exception (“SE 4549”) on May 2, 2007, where Respondent Billings appeared in opposition. Billings expressed concern over whether EPC's expansion would be consistent with the character of the neighborhood:

[O]ne of the issues we always had was that we thought [the proposed design] is not really appropriate or this type of architecture is not as appropriate for a rural area[,] which we still technically are, and it's more appropriate for a suburban or urban location.

One of the issues that we had been bringing up—we were very happy to see about the green flat roof. We had been looking at and suggesting something along the lines of[,] say[,] a more rustic barn-type siding and maybe a false roof in front of it with a porch that comes down[.]

* * *

What I would like to see ... is the indigenous architecture, the rural heritage[,] and some of those types of things reflected because one of the issues that we have in terms of development on the east side of Route 301—it's the gateway into the rural tier.

Later in the hearing, Ms. Billings summarized her positions as follows:

[W]e are not objecting to most of the things that they're trying to do and even though I had to write that I was in opposition—most of the issues that we're concerned with are not the operation of the business. It has to do with environmental, pollution, traffic safety, lighting ... and the architectural issues have not been addressed as well.

The ZHE, however, approved the request...