Maryland-National Capital Park & Planning Com'n v. Smith

• Citation: 333 Md. 3,633 A.2d 855
• Decision Date: 01 September 1992
• Docket Number: MARYLAND-NATIONAL,No. 50,50
• Parties: CAPITAL PARK & PLANNING COMMISSION v. Maenette B. SMITH et vir. ,
• Court: Court of Appeals of Maryland

Page 3

333 Md. 3

633 A.2d 855

MARYLAND-NATIONAL CAPITAL PARK & PLANNING COMMISSION v. Maenette B. SMITH et vir.

No. 50, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 8, 1993.

Isaac H. Marks, Associate Gen. Counsel (Elizabeth M. Hewlett, Associate Gen. Counsel, both on brief), Upper Marlboro, for appellant.

Jess Joseph Smith (L. David Ritter, both on brief), Upper Marlboro, for appellee.

Argued before MURPHY, C.J., and RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

Maenette and Jess Joseph Smith (the Smiths) sought to construct an office building on property they owned in Prince George's County. They filed an application for a building permit with the appropriate agency, the Department of Environmental Resources of Prince George's County (DER). As required by the Prince George's County zoning ordinance, ¹ DER transmitted copies of the application to the Prince George's County Planning Board (the Planning Board) for review and recommendation. The Planning Board, which is comprised of the five Prince George's County commissioners of the Maryland-National Capital Park & Planning Commission (the Commission), ² recommended denial of the permit because it believed that a part of the lot upon which the building was to be erected was not in a zone that permitted the contemplated use. ³ DER notified the Smiths that the permit would not be issued because the Planning Board had not given its approval.

The Smiths appealed to the Board of Appeals for Prince George's County (the Board of Appeals). The Board of Appeals held five hearings on the Smiths' appeal between June and August, 1990, and reversed the denial of the permit. The Commission and Prince George's County (the County) joined in an appeal from that decision to the Circuit Court for Prince George's County. The Smiths moved to dismiss the appeal for lack of standing. The circuit court denied the Smiths' motion as to the County, but dismissed the Commission's appeal. The trial court, citing Md.-Nat'l Cap. P. & P. v. Mont. Co., 267 Md. 82, 95, 296 A.2d 692 (1972), based the dismissal on a finding "that [the Commission] was not a party before the Board of Zoning Appeals." Acting pursuant to Maryland Rule 2-602, the trial judge directed that the order dismissing the Commission's appeal be entered as a final judgment. The Commission appealed the dismissal to the Court of Special Appeals, and the Smiths filed a cross-appeal. Prior to any consideration of the case by the intermediate appellate court, we issued a writ of certiorari on our own motion.

I.

Initially, the Smiths allege that the trial judge abused his discretion in certifying the order of dismissal as final. Maryland Rule 2-602 provides, in part, that an order which adjudicates the rights and liabilities of fewer than all the parties to the action is not a final judgment, but a trial judge may direct the entry of a final judgment as to fewer than all the parties if the judge expressly determines in a written order that there is no just reason for delay. The discretionary authority given to the trial judge under this Rule is subject to review by an appellate court. Planning Board v. Mortimer, 310 Md. 639, 648, 530 A.2d 1237 (1987); Diener Enterprises v. Miller, 266 Md. 551, 555, 295 A.2d 470 (1972). Although the certification permitted by Rule 2-602 should be used sparingly so that piecemeal appeals and duplication of efforts and costs in cases involving multiple claims or multiple parties may be avoided, we will not disturb the trial judge's exercise of discretion in this case. Even though the County remains a party to the appeal even if the Commission is dismissed, it is not clear that the County ever intervened or participated in earlier proceedings, and it is not free from doubt that the County has standing to pursue the appeal. See Mont. Co. v. One Park North, 275 Md. 193, 201, 338 A.2d 892 (1975). Moreover, even if the County does have standing, it appears that County officials may not share the view of the Planning Board with respect to the correct interpretation of the zoning map, or whether the maps maintained by the Commission should take precedence over those maintained by the County. Under these circumstances, we find no abuse of discretion in the decision to certify as final the order dismissing the Commission as a party.

II.

"The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute." Subsequent Injury Fund v. Pack, 250 Md. 306, 309, 242 A.2d 506 (1968) (citation omitted); see also Maryland Rule B3; Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55 (1975); 2 Poe, Pleading and Practice § 826 (Tiffany's Ed.1925). The applicable statute in this matter is Maryland Code (1990 Repl.Vol.) Art. 28, § 8-111.1, which states:

(a) Appeal to circuit court; ... (1) Any person aggrieved by the decision of the board of zoning appeals of Prince George's County and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board or if the decision is not in accordance with law, to modify or reverse the decision, with or without remanding the case for rehearing as justice may require.

(Emphasis added.) The trial court dismissed the Commission's ⁴ appeal for lack of standing under section 8-111.1, stating:

The Court finds that MNCPPC was not a party before the Board of Zoning Appeals. See Md.-Nat'l Cap. P. & P. v. Mont. Co., 267 Md. 82, 95, 296 A.2d 692 (1972). Also, they were not aggrieved by the decision of the Board. The Commission was not aggrieved because they only make recommendations to the County as to whether building permits are issued; they are merely an advisory body, they do not make decisions. Furthermore, the Commission does not have authority to enforce the zoning laws. Article 28, Section 8-112, gives the authority to enforce the zoning laws to the County Council and to municipal corporations. MNCPPC is not a municipal corporation. Id. 267 Md. at 90-91 . Article 28, Section 1-101, states that MNCPPC is a body corporate, and an agency. Having failed to establish that it was a party or aggrieved, MNCPPC does not have the statutory right to appeal.

We agree with the conclusion reached by the circuit court, but not with all of that court's reasoning. The trial judge's reliance on Md.-Nat'l Cap. P. & P. v. Mont. Co. is misplaced. As here, that case involved a determination of whether the Commission had standing to appeal to the circuit court from a decision of the Board of Appeals. We rejected the appeal in part because a statute relied on by the Commission to establish its right to appeal required the Commission to prove that it was a political subdivision. We found that the Commission "possesses none of the characteristics which mark a 'political subdivision,' " 267 Md. at 93, 296 A.2d 692, and therefore refused to award standing on that theory. Alternatively, we considered whether the Commission might qualify under the analysis at issue here: by showing that it was " 'aggrieved by the decision of the Board [of Appeals] and a party to the proceeding before it[.]' " Id. at 94, 296 A.2d 692 (quoting Montgomery County Code) (brackets and emphasis in opinion). We never reached the issue of whether the Commission might be aggrieved because we found that it had not established itself as a party. The Commission "neither stated for the record 'that [it appeared as] a party to the proceedings,' nor that it wished to be regarded 'as a protestant,'...." Id. at 95, 296 A.2d 692 (brackets in opinion). Thus, we affirmed the decision to dismiss the appeal.

The fact that the Commission had not appeared as a party in that case does not preclude it from establishing that it appeared as a party in this case. That is a determination which must be made based on the facts of each individual case, and any previous decisions in other cases have no bearing on it. The Commission argues that in the case before us it was a party to the proceedings before the Board of Appeals because it appeared as a party, was referred to as a party, subpoenaed witnesses, introduced exhibits which were accepted into evidence, and examined and cross-examined witnesses. ⁵ In support of that position, the Commission relies on Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 423, 365 A.2d 34 (1976), where we held that an individual who "was present at the hearing before the Board, testified as a witness and made statements or arguments" regarding the subject matter of the hearing had established himself as a party before the board. We also stated:

Bearing in mind that the format for proceedings before administrative agencies is intentionally designed to be informal so as to encourage citizen participation, we think that absent a reasonable agency or other regulation providing for a more formal method of becoming a party, anyone clearly identifying himself to the agency for the record as having an interest in the outcome of the matter being considered by that agency, thereby becomes a party to the proceedings.

Id.

Morris and other cases of this Court indicate that the threshold for establishing oneself as a party before an administrative agency is indeed low. Although we have said that one's presence at the hearing and testimony in favor of an asserted position is sufficient, id., we have also said that personal appearance and testimony at the hearing are not required. Hertelendy v. Montgomery Cty., 245 Md. 554, 567, 226 A.2d 672 (1967); Largo Civic Ass'n v. Pr. Geo's Co., 21 Md.App. 76, 81, 318 A.2d 834 (1974). In fact, it has been held to be sufficient that the hearing examiner considered the appellant to be a party, Northampton v. Pr. George's Co., 21 Md.App. 625, 633-34, 321 A.2d 204, rev'd on other grounds, 273 Md. 93, 327 A.2d 774 (1974), or that the appellant's name was submitted to the Board of Appeals as...