Cruz v. Balt. Cnty.

Decision Date03 May 2018
Docket NumberNo. 2499,2499
PartiesKAREN CRUZ, et al. v. BALTIMORE COUNTY, et al.
CourtCourt of Special Appeals of Maryland

Circuit Court for Baltimore County

Case No. 03-C-15-10527


Leahy, Friedman, Krauser, Peter B. (Senior Judge, Specially Assigned), JJ.

Opinion by Friedman, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellants, Baltimore County residents who object to a local development project, appeal the approval by a Baltimore County Administrative Law Judge ("ALJ") of a Planned Unit Development ("PUD") designed to permit mixed-use development on the site of the North Point Government Center in Dundalk. We conclude that the ALJ and the Baltimore County Board of Appeals properly found that the ALJ lacked jurisdiction over an underlying land sale contract, and affirm the granting of the PUD.


The southeast corner of Merritt Boulevard and Wise Avenue used to be the home of North Point Junior High School. In 1981, the Baltimore County Board of Education sold the property to Baltimore County, which converted it into a multi-use government center, including a police precinct and recreation facility. In 2013, Baltimore County determined that the land was "no longer needed for public use" and sold the property through a public bidding process. A developer, Merritt Pavilion, Inc., won the bid and entered into a contract with the County to purchase a portion of the site. Merritt Pavilion intends to demolish the old school building and construct a mixed-use development with commercial and office uses. A community recreation and arts building will also be constructed, while the remainder of the land will be retained by the County for athletic and recreational uses.

When the Board of Education sold the property to the County in 1981, it included a covenant prohibiting the County from selling any portion of the property without the approval of the State Board of Public Works ("BPW"). State v. Merritt Pavilion, 230 Md. App. 597, 639 (2016). BPW has, thus far, declined to approve the sale. Pamela Wood,Dundalk Government Center Stalled Amid Legal, Political Wrangling, BALT. SUN (May 8, 2016),

Although it has not been used as a residential property at least since the 1950s, the entire property is currently within a residential zoning district. Rather than seek a mere change of the zoning, Merritt Pavilion asked the County Council to authorize a PUD, a sort of "floating zone" that can better accommodate mixed-use development. The County Council granted permission, and Merritt Pavilion applied for a PUD. Balt. Cnty. Council Res. 52-14. The matter was assigned to a Baltimore County ALJ, who held hearings, including testimony from Merritt Pavilion's experts, County officials, and local residents. A central focus of the opponents' argument was that the ALJ should not approve the PUD because BPW had not approved the sale of the property.

After three days of hearings, the ALJ approved the PUD. As part of his ruling, ALJ found that he lacked jurisdiction to deny the PUD based on BPW's failure to approve the sale. The ALJ's decision was appealed to the Baltimore County Board of Appeals, which affirmed. An administrative appeal was taken to the Circuit Court for Baltimore County, which again affirmed. Cruz noted this timely appeal.


In administrative agency reviews, we look through the circuit court to the decision of the agency to determine if it was correct. Swoboda v. Wilder, 173 Md. App. 615, 634-35 (2007). Here, the agency consisted of two parts, the ALJ, who made the findings of fact, and the Board of Appeals, which reviewed those facts. We will give deference to the facts found by the ALJ. Id. at 634(factfinding of an administrative agency is reviewed todetermine whether there is substantial evidence in the record to support it, giving deference to the factfinder). We will review the legal conclusions made by both the ALJ and the Board of Appeals without deference, except to the extent that those bodies were applying the specific law that they are charged with enforcing, the Baltimore County Zoning Code. Marzullo v. Kahl, 366 Md. 158, 172 (2001).


Cruz raises several issues on appeal, which we will address in turn. First, Cruz argues that the ALJ erred by approving the PUD in the absence of approval of the sale of the property by BPW. Second, Cruz argues that the ALJ erred in granting the PUD because the development plan conflicted with the County Master Plan. Third, Cruz argues that the ALJ erred in finding that the development provided a community benefit. Fourth, Cruz argues that the PUD was inappropriate in this residential district.


Cruz makes two arguments based on the fact that BPW has not yet approved the sale of the property. First, Cruz contends that the ALJ should have interpreted the covenant and land sale contract to disallow the sale to Merritt Pavilion, and declared the contract to sell the land void. Second, Cruz argues that the lack of approval from BPW so far means that there is no "reasonable expectation that the proposed development ... will be developed to the full extent of the plan," Baltimore County Code ("BCC") § 32-4-245(c)(3), and that, therefore, the ALJ erred in finding that there was such a reasonable expectation of development, and approving the PUD.

The ALJ found that he had no authority to void the contract, and the Board of Appeals agreed with the ALJ's legal analysis:

[T]he Office of Administrative Hearings and Board of Appeals are administrative agencies that are created by statute. They have no authority beyond what is granted unto them under law and the language of the enabling statute. ... Absent specific authority the ALJ and Board cannot void ... or interpret private contracts.

The Board's reasoning is correct as a matter of law. The ALJ is empowered to review the plan and approve or disapprove of the PUD, but has no power beyond that granted by the Baltimore County Code. Blakehurst Lifecare Cmty. v. Balt. Cnty., 146 Md. App. 509, 519 (2002) ("An administrative agency is a creature of statute, which has no inherent powers and its authority thus does not reach beyond the warrant provided it by statute.") (cleaned up).1 The contract is external to the PUD approval. Thus, the ALJ and Board were correct in finding that the ALJ had no jurisdiction over the contract.

Despite this, Cruz argues that the ALJ had jurisdiction under the doctrine of primary jurisdiction, which allows administrative agencies that have concurrent jurisdiction with the courts over some matter to exercise subject matter jurisdiction over that and related matters. Converge Servs. Group, LLC v. Curran, 383 Md. 462, 478-79 (2004) (quoting Md.-Nat'l Capital Park and Planning Comm. v. Wash. Nat'l Arena, 282 Md. 588, 601-02(1978)). The Court of Appeals only allows the doctrine of primary jurisdiction to apply to areas in which "the claim is initially cognizable in the courts but raises issues or relates to subject matter falling within the special expertise of an administrative agency." Id. at 479 (emphasis added). The ALJ is not an expert in contracts of sale or covenants, or if he is, he is certainly no more of an expert in those topics than is the circuit court. Moreover, there is nothing about the interpretation of this contract of sale or covenant that requires the special zoning expertise of the ALJ. Further, a central consideration that courts use in determining whether primary jurisdiction is appropriate in a given situation is whether the available administrative remedy is the right way to resolve an issue. Id. at 479-80. The only power given to the ALJ was to approve or deny the PUD. Denying a PUD would not remedy what Cruz contends is an illegal land sale. Thus, the doctrine of primary jurisdiction is not applicable does not extend jurisdiction to the ALJ here.2

Finally, Cruz argues that the failure of BPW to approve the sale meant that there was no reasonable expectation that the development would be completed. "The [ALJ] mayapprove a proposed PUD ... only upon finding that ... [t]here is a reasonable expectation that the proposed development ... will be developed to the full extent of the plan." BCC § 32-4-245(c)(3). We are not convinced, however, that the lack of approval thus far means that the PUD process must halt. As the ALJ noted, a contract purchaser—someone who doesn't yet own the land—may apply for a PUD, which suggests that the County Code envisions that the application process may begin before a land sale is complete. BCC § 32-4-101(e). Cruz is arguing, in effect, that there is no certainty that BPW will approve the sale. While we appreciate that this approval has been and continues to be a major point of contention, we do not consider it erroneous to approve a PUD simply because another aspect of the project is awaiting approval from another administrative agency.3 We find no error in the ALJ's and Board's legal analysis that delay at BPW does not affect the ALJ's approval of the PUD, or in the ALJ's factual finding that there was a reasonable expectation that the development would be fully developed.


Cruz next argues that the Development Plan in the PUD conflicts with the County Master Plan. The ALJ found that the PUD was not required to comply with the Master Plan, but that, in any event, it did comply with the Master Plan. The Board of Appeals affirmed the ALJ's legal analysis:

The ALJ may approve a proposed PUD development plan only upon finding ... [t]he PUD development plan is in conformance with the goals, objectives, and recommendations of [1] the Master Plan, [2] area plans, or [3] the Department of Planning.

BCC § 32-4-245(c)(5). Compliance with the...

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