Edgewater Partnership v. Harford County
| Decision Date | 01 September 1987 |
| Docket Number | No. 1641,1641 |
| Citation | 76 Md.App. 561,547 A.2d 1065 |
| Parties | EDGEWATER PARTNERSHIP v. HARFORD COUNTY, Maryland, et al. , |
| Court | Court of Special Appeals of Maryland |
Dwight E. Thomey, Elkton, for appellant.
William D. Hooper, Jr. (Lentz, Hooper, Jacobs & Blevins, P.A., on the brief), Bel Air, for appellees.
Argued before WILNER and BISHOP, JJ., and GETTY (JAMES S.), Associate Judge of the Court of Special Appeals (retired), specially assigned.
Edgewater Partnership (Edgewater) appeals from an Order of the Circuit Court for Harford County which affirmed the decision of the Harford County Council, sitting as the Board of Appeals, which allowed appellee Hanson Partnership (Hanson), to build an Integrated Community Shopping Center near the intersection of U.S. Route 40 and Md. Route 152 in Edgewood, Maryland. Edgewater raises a number of questions, none of which we reach because of our ultimate disposition.
In order for Hanson to build an Integrated Community Shopping Center (ICSC) on 23 acres of land it owns in Harford County, a special exception must be obtained from the Board of Appeals. § 25-7(b)(2)(c) [§ 267-43B(3) ]. 1 Hanson made application for a special exception to the Planning and Zoning Department, § A274-1B, and the Board of Appeals designated a Hearing Examiner to conduct public hearings on the proposed exception. § 25-3.3(c) [§ 267-9C]. The events that followed are set out briefly in the chronology below:
MERITS
Conspicuous by its absence from either Edgewater's or Hanson's brief is any reference to Harford County Zoning Ordinance § 20.2(b)(4), 3 which provides:
[I]f the case is remanded to the Hearing Examiner for additional testimony and a decision is not rendered by the Board within ninety (90) calendar days from the date of the ... conclusion of the hearing before the Council, then the application shall automatically be considered to have been denied by the Board. The Hearing Examiner shall file his or her supplemental or amended opinion within fifteen (15) calendar days from the conclusion of the hearing on the remand.
Although both parties reproduced relevant sections of the County Code in their briefs, neither brief refers to Zoning Ordinance 20.2(b)(4). Since § 20.2(b)(4) was adopted on April 17, 1979, its provisions are clearly applicable to the case sub judice.
A reading of 20.2(b)(4) discloses two possible interpretations. The first interpretation, which is more favorable to the appellees, is that the 90 day limitation period, which becomes effective on remand, begins to run from the date that the Board concludes a hearing on the Hearing Examiner's supplemental or amended opinion. The second possible interpretation of the ordinance, which favors the appellant, is that the Board has 90 days from the date of the conclusion of its hearing preceding the remand to render a final decision. On the face of the ordinance, these two possible interpretations are equally plausible and it is only by an analysis of the relevant legislative history involved that the correct meaning can be discerned.
This ordinance, in its earliest form, was introduced on February 6, 1979, in the Harford County Council as Bill No. 79-2 which had as its stated purposes:
[T]o provide for the employment of Hearing Examiners to hear those cases to be heard by the Board of Appeals; to provide for the Hearing Examiners to make a decision in zoning appeal and reclassification cases; to provide for final argument before the Board of Appeals or the County Council; to provide for the filing of a transcript; to provide for the payment for the transcript and additional publication fees; to also refer to the Hearing Examiner when such construction would be appropriate, when a Hearing Examiner is employed by the Board of Appeals.
That original bill provided that "if the case is remanded to the Hearing Examiner for additional testimony and a decision is not rendered by the Board within (90) calendar days from the date of the Hearing Examiner's Supplemental or amended opinion then the application shall automatically be considered to have been denied by the Board." This language is clearly adverse to the position of the appellees as it confirms the second interpretation noted above; the 90 days would have expired on March 11, 1987 and the Board's final decision was not rendered until April 14, 1987.
On March 20, 1979, Amendments number 1-36 to Bill No. 79-2 were adopted by the Harford County Council. The stated purpose for those Amendments being to "speed up the process for zoning decisions but giv[ing] the applicant sufficient time to proceed." Proceedings of Public Hearing, Harford County Council, March 20, 1979 (statement by Councilman Rahll the sponsor of Bill No. 79-2 and Amendment No. 12 thereto). Amendment 12 of the March 20, 1979 Amendments was adopted by the Council and became the current version of Section 20.2(b)(4).
In reading 20.2(b)(4) so as to give effect to the stated legislative purpose of the March 20, 1979 Amendments, as this Court must do, Baltimore Building and Construction Trades Council v. Barnes, 290 Md. 9, 15, 427 A.2d 979 (1981), the only plausible interpretation is that favoring the appellant; the Board has 90 days from the date of the conclusion of its hearing preceding the remand to render a final decision. To adopt the other possible meaning in favor of the appellee would be to extend the zoning process to some indeterminable future date 90 days beyond the date on which the Board determined, at its leisure, to consider the matter. This extention of the zoning process would be in clear violation of the stated statutory purpose of speeding up the zoning process.
Read in light of legislative purpose, that section is dispositive of the case sub judice. Both the Hearing Examiner and the Board of Appeals failed to comply with the timing constraints contained therein, thus triggering the automatic denial of the zoning request. 4 Since no appeal was filed to the circuit court, the denial became final on December 11, 1986; therefore, all subsequent actions by the Hearing Examiner, the Board of Appeals, and the Circuit Court were of no effect. Certainly, then, the appeal to this Court was not timely and the Court is free to dismiss under Maryland Rule 1085 which provides that "a question as to the jurisdiction of the lower court may be raised and decided ... whether or not raised and decided in the lower court". See Annapolis v. Hartge, 38 Md.App. 629, 382 A.2d 345 (1978); Wilson v. State, 21 Md.App. 557, 321 A.2d 549 (1974).
APPEAL DISMISSED; APPELLANT TO PAY THE COSTS.
DATE ACTION TAKEN
---- ------------
June 19, Ten public hearings conducted by Hearing Examiner
1985
through See § 25-3.3(c)(e) ( § 267-9C,9E) and § A274-3.
February
26, 1986
May 21, Hearing Examiner recommends that Hanson's request be
1986
denied because it "failed to fully comply with Section 25-7.2
( § 267-45) of the Zoning Code." See 25-3.3(f) ( § 267-9F) and
§ A274-4B,4C.
May 23, Hanson requests final argument before the Board of Appeals.
1986
See 25-3.3(g) ( §
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