Harford County v. Edgewater Partnership
| Citation | 316 Md. 389,558 A.2d 1219 |
| Decision Date | 01 September 1988 |
| Docket Number | No. 115,115 |
| Parties | HARFORD COUNTY, Maryland et al. and Hanson Partnership v. EDGEWATER PARTNERSHIP. , |
| Court | Court of Appeals of Maryland |
George A. Nilson, Kurt J. Fischer, Piper & Marbury, Baltimore, William D. Hooper, Jr., Lentz, Hooper, Jacobs & Blevins, P.A., on brief, Bel Air, for Hanson Partnership.
Victor K. Butanis, County Atty., Lester H. Feinberg, Council Atty., Jacqueline A. Moore, Asst. County Atty., Bel Air, on brief, for Harford County, Md.
Dwight E. Thomey, Elkton, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.
In April 1985, petitioner Hanson Partnership (Hanson) submitted to the Harford County Department of Planning and Zoning an application for approval of the location of a proposed integrated community shopping center. Throughout lengthy subsequent proceedings that application was ardently opposed by respondent, Edgewater Partnership (Edgewater), the owner of an existing shopping center not far from Hanson's proposed location. On 14 April 1987 Hanson seemed to have achieved its goal; the Harford County Board of Appeals approved its request. 1 The Circuit Court for Harford County (Baldwin, J.) affirmed.
Edgewater, however, appealed to the Court of Special Appeals, raising a number of issues, none of which were decided by that court. Instead, the intermediate appellate court dismissed the appeal on its own motion. But the grounds for dismissal produced the paradoxical result that the appellant whose appeal before that court was dismissed emerged as the victor. This outcome was achieved because the Court of Special Appeals believed the circuit court had lacked subject-matter jurisdiction. 2 Edgewater Partnership v. Harford Cty., 76 Md.App. 561, 547 A.2d 1065 (1988). That conclusion followed from the appellate court's construction of § A274-5.B. (3)(c) of the Harford County Code: 3
(3) A zoning request shall automatically be considered to have been denied in the event that:
* * *
(c) The case is remanded to the Hearing Examiner for additional testimony and a decision is not rendered by the Council/Board within ninety (90) calendar days from the date of the conclusion of the hearing before the Council/Board. The Hearing Examiner shall file his/her supplemental or amended opinion within fifteen (15) calendar days from the conclusion of the hearing on the remand [emphasis supplied].
As we shall see, this case was remanded by the Board to a hearing examiner. That occurred on 12 August 1986. On 11 December the hearing examiner issued a supplemental decision recommending approval of Hanson's application. The Board held a hearing on that recommendation on 7 April 1987, and on 14 April issued a written decision adopting the hearing examiner's recommendations. But in the view of the Court of Special Appeals, the Board's action came too late. Although the issue of the construction of § A274-5.B(3)(c)'s 90-day provision (like that of subject-matter jurisdiction) had been raised by no party in either the circuit court or the Court of Special Appeals, the latter read the Code as requiring the 90-day period run from the date of the remand--12 August 1986.
By that reading, the 90 days had expired in November 1986, long before the Board's April 1987 decision. Under the County Code provision, failure of the Board to render a decision on the zoning request within the 90 days meant that the request was automatically denied at the beginning of the 91st day. On that date began the 30-day time period within which to note an appeal to the circuit court. See Md. Rule B4.a. But no appeal was taken until after the Board's April 1987 decision. Consequently, the appeal to the circuit court was untimely and that court, held the Court of Special Appeals, had no jurisdiction to decide it. The statutorily-deemed denial of Hanson's application became final on 11 December 1986, 30 days after the statutory automatic denial date of 11 November. Thus, Edgewater prevailed.
At Hanson's behest we granted the writ of certiorari primarily to determine the proper construction of § A274-5.B. (3)(c) of the Harford County Code. 4 314 Md. 508, 551 A.2d 874 (1989). We shall assume, without deciding, that a "deemed denied" provision like that contained in § A274-5.B. (3)(c) deprives the tribunal affected by it of power to act after the "deemed" date, and that the "deemed" date becomes the date from which time for appeal runs. See Scherr v. Braun, 211 Md. 553, 561, 128 A.2d 388, 391 (1957) (); Pearce v. Board of Liq. Comm'rs, 228 Md. 515, 524, 180 A.2d 651, 655 (1962) (); Robinson v. Montgomery County, 66 Md.App. 234, 242, 503 A.2d 275, 278, cert. denied, 306 Md. 119, 507 A.2d 631 (1986) ().
We do not agree, however, with the intermediate appellate court's construction of § A274-5.B. (3)(c). Since the merits of Hanson's zoning application also are encompassed within our grant of certiorari, and since we believe the circuit court did not err when it affirmed the Board on the merits, we shall reverse the judgment of the Court of Special Appeals and remand with direction that the judgment of the Circuit Court for Harford County be affirmed.
Our excursion into the depths of § A274-5.B. (3)(c) will be aided by a map of sorts--an outline of general procedures to be followed in Harford County, with respect to applications like that filed by Hanson.
An application for an integrated community shopping center must be filed with the Department of Planning and Zoning. Harford County Code §§ 267-7.B. (1), 267-9.D., A274-1.B. Within five days of the receipt of the application, the department must process and forward the application to a hearing examiner. Id. § A274-1.B.; see also § A274-1.C. The hearing examiner schedules a public hearing and gives notice of it as required by the Harford County Charter. Id. § A274-2.A. The Charter prescribes notice once a week for two consecutive weeks in two newspapers published in the county, the second notice to be published at least 14 days before the hearing. Charter § 704(b). Procedures for the public hearing are established. Code § A274-3. The hearing examiner may require briefs. Id. § A274-4.A. (12). The examiner must file a decision no later than 30 days after closing the record, § A274-4.A. (12), and that decision is final unless request for final argument is made within 20 days of that filing. Id. §§ 267-9.F., A274-4.B.
The concept of final argument is central to the Harford County scheme, for it is by request for final argument that matters are brought before the Board, and thus become subject to various dismissal or "deemed denied" provisions. Request for final argument may be made by a Board member, the applicant, the People's Counsel, or an aggrieved party who appeared at proceedings before the hearing examiner. Id. §§ 267-9.G., A274-5.A. (1). When a request is made, the applicant must obtain a transcript of the proceedings before the examiner and deposit it and hearing advertising costs with the Secretary of the Board. Id. § A274-5.A. (4), -5.B. (1). If the transcript is not filed and the fees not paid within 90 days of the date of request for final argument (or within an extension of the 90-day period), the application is dismissed without prejudice. Id. § A274-5.A. (5). But if those prerequisites are met, final argument must be scheduled and heard within 90 calendar days of the date when the last requirement was met. Id. § A274-5.B. (1)(c).
If final argument has been requested, and the prerequisites have been met, but for some reason the Board does not hear final argument, the application "shall automatically be considered to have been denied." Id. § A274-5.B. (3)(a). That result also occurs if the "Council/Board does not render a decision within the ninety-calendar day period." Id. § A274-5.B. (3)(b). 5
Following final argument, the Board may affirm, reverse, modify, or remand the hearing examiner's recommendation. 6 Id. §§ 267-9.H., A274-5.E. If there is a remand, the applicant must deposit $50 with the secretary of the Council "to cover the additional cost of advertising, as may be required...." Id. § A274-5.G. Failure to deposit the fee within 10 days of the date of notice of remand results in dismissal of the application without prejudice to the applicant. Id. If there is a remand, as we have seen, the application is automatically denied if "the Council/Board" does not render a decision "within ninety (90) calendar days from the date of the conclusion of the hearing before the Council/Board." Id. § A274-5.B. (3)(c).
As noted previously, Hanson initiated the process above described on 5 April 1985, when it submitted to the Department of Planning and Zoning its application for approval of the location of a proposed integrated community shopping center. On 21 May 1986, after 10 separate hearings conducted between 19 June 1985 and 26 February 1986, the hearing examiner recommended denial of the application. Hanson requested final argument before the Board. That occurred on 12 August 1986. The Board remanded to the hearing examiner for further testimony and analysis. The examiner held additional hearings in early October. On 11 December 1986, the examiner issued a supplemental decision recommending approval of Hanson's application.
It was now Edgewater's turn to request final argument before the Board. The Board held a...
To continue reading
Request your trial