T & R Joint Venture v. Office of Planning and Zoning of Anne Arundel County

• Decision Date: 15 December 1980
• Docket Number: No. 391,391
• Citation: 424 A.2d 384,47 Md.App. 395
• Parties: T & R JOINT VENTURE v. OFFICE OF PLANNING AND ZONING OF ANNE ARUNDEL COUNTY et al.
• Court: Court of Special Appeals of Maryland

Page 395

47 Md.App. 395

424 A.2d 384

T & R JOINT VENTURE v. OFFICE OF PLANNING AND ZONING OF ANNE ARUNDEL COUNTY et al.

No. 391.

Court of Special Appeals of Maryland.

Dec. 15, 1980.

Thomas M. Downs, Annapolis, with whom were Harry C. Blumenthal and Blumenthal, May, Downs & Merrill, P. A., Annapolis, on the brief, for appellant.

Steven P. Resnick, Deputy County Sol. for Anne Arundel County, for appellees.

Argued before GILBERT, C. J., and MELVIN and WILNER, JJ.

WILNER, Judge.

This is a zoning case, but the issue before us is solely one of "standing" whether the Anne Arundel County Office of Planning and Zoning (OPZ) had the right to appeal a decision of the Zoning Hearing Officer to the County Board of Appeals and thence to the circuit court. The Board, applying the law then in effect, concluded that it did not, and thus dismissed OPZ's appeal to it. The court, by applying a new ordinance, enacted during the pendency of the subsequent judicial appeal, concluded that OPZ did have the requisite standing, both before the Board and before it. The theretofore successful applicant (appellant) has appealed both aspects of the court's ruling.

We may best approach the issue before us by first considering briefly the statutory process for implementing zoning changes in Anne Arundel County and the role played by the three county agencies most directly involved in that process. These agencies are OPZ, the Zoning Hearing Officer, and the Board of Appeals, each being created by, and drawing its basic authority from, the county charter.

OPZ is created by § 530 of the charter. Headed by a Planning and Zoning Officer, it is responsible for "planning for the physical development and growth of the County," including preparation of a Master Plan for the county, and the "preparation, administration and enforcement of a zoning map and of zoning rules and regulations which shall constitute a zoning code." These rules and regulations have legal effect only upon approval by the County Council through the enactment of an ordinance.

In addition to its planning function, vested by the charter, OPZ also performs certain administrative duties in terms of applications for zoning changes. The county code requires that applications for zoning map amendments, special exceptions, and variances be filed with OPZ. That office then sees to it, directly or indirectly, that the proper notice is posted on the property, and ultimately forwards the application to the Zoning Hearing Officer along with its comments. ¹ OPZ is authorized to appear at the hearing before the Zoning Hearing Officer and present its position with respect to the application. ²

The Office of Zoning Hearings is created by § 534 of the county charter. It is to be administered by the Zoning Hearing Officer who, under § 535, is responsible for conducting public hearings on petitions for zoning changes or reclassifications. He is authorized to grant variances and special exceptions "(s)ubject to appropriate principles, standards, rules, conditions and safeguards ...," and he may also grant or deny reclassifications "in accordance with appropriate zoning regulations." Some of the more detailed rules governing the prehearing, hearing, and post-hearing procedures are set out in the county code. See § 13-360 (Rules IX-XVI) and §§ 13-340.5-13.340.9 (Alternate Zoning Regulations).

The County Board of Appeals is created by § 601 of the county charter, pursuant to the authority conferred by Md.Ann.Code art. 25A, § 5. Among its other duties, the Board hears, de novo, all appeals from orders of the Zoning Hearing Officer. Further appeal is authorized to the circuit court. See county charter, § 604; Md.Ann.Code art. 25A, § 5(U).

The controversy here began when appellant applied to have a 17-acre tract of land rezoned from R1 Residential to C3 General Commercial. Pursuant to the procedures described above, the matter was heard by the Zoning Hearing Officer. The Planning and Zoning Officer, or her designee, appeared at the hearing in opposition to the application. The thrust of her concern, apparently, was that the rezoning would require OPZ to make substantial alterations to the various master plans. Notwithstanding that objection, however, the Zoning Hearing Officer, on April 16, 1979, approved the application.

On May 14, 1979, OPZ noted an appeal from that decision to the County Board of Appeals. Appellant moved to dismiss the appeal on the ground that OPZ had no standing to bring it, not being a person "aggrieved" by the Zoning Hearing Officer's decision. The Board held an evidentiary hearing on the standing issue and ultimately agreed with appellant's position. On September 14, 1979, it dismissed OPZ's appeal solely on the ground that OPZ was not "aggrieved," and therefore had no right to appeal. As noted, OPZ then, on October 5, 1979, appealed that decision to the circuit court.

On November 6, 1979, the County Executive signed into law Bill No. 141-79 which, by amending county code, § 2-200 (Rule 5), purported to give OPZ specific authority or standing to appeal "any decision of the zoning hearing officer." Although the ordinance, by its own terms, took effect "forty-five (45) days from the date it bec(ame) law," which presumably would have been December 21, 1979, the court nevertheless applied the ordinance in the case pending before it and thus held that the Board erred in dismissing OPZ's appeal.

Prior to the enactment of the 1979 ordinance, and thus at all times during which OPZ's appeal was pending before the Board, the law governing appeals to the Board was scattered among the State Code, the county charter, and the county code, and provided as follows:

(1) Md.Ann.Code art. 25A, § 5(U) authorized the county, by local law, to create the Board of Appeals and to provide

"for the decision by the board on petition by any interested person ... of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of ... the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map...." (Emphasis supplied.)

Section 5(U) further provided (and still does provide) that any "person aggrieved by the decision of the board and a party to the proceeding before it" may appeal to the circuit court, and, if "aggrieved" by the decision there, may take further appeal to this Court. The section concludes with the statement that the "review proceedings provided (in it) shall be exclusive."

(2) Acting pursuant to this authority from the General Assembly, the county, through article VI of its charter, created the Board of Appeals (§ 601) and set forth its powers (§ 602) and procedures (§ 603). Section 602 confirms the Board's authority to review, de novo, decisions of the Zoning Hearing Officer, but neither it nor § 603 says anything directly about the interest one must have in order to bring an appeal to the Board. The charter deals with that in § 536, part of the subtitle relating to the Office of Zoning Hearings. Section 536 provides:

"Within thirty days after a decision of the Zoning Hearing Officer is rendered, any person or persons, jointly or severally, or any taxpayer or any official, office, department, corporation, board, or bureau of Anne Arundel County aggrieved by any decision of the Zoning Hearing Officer shall have the right to appeal therefrom to the County Board of Appeals." (Emphasis supplied.)

(3) Three sections of the county code also bear directly on this subject. Section 13-359, being part of the "regular" zoning laws codified under Article VI ("Zoning Hearing Officer") and captioned "Appeals from orders of zoning hearing officer," repeats verbatim the provisions of § 536 of the charter. No change has been made in that section. Its counterpart in the "Alternate Zoning Regulations," § 13-340.10(a), was (and still is) essentially the same, although not identical. It provides:

"Within thirty (30) days of the decision of the zoning hearing officer, any person, firm, corporation or governmental agency having an interest therein and aggrieved thereby may file a notice of appeal with the county board of appeals, pursuant to article 25A of the Annotated Code of Maryland, and Article VI of the Charter of Anne Arundel County, Maryland (and any ordinance, rules or regulations adopted pursuant thereto)." (Emphasis supplied.)

Finally, there was § 2-200 (Rule 5), being part of article II (Board of Appeals), subtitle 2 (Rules of Practice and Procedure). Prior to the new ordinance, the relevant part of Rule 5 was nearly identical to § 536 of the charter and § 13-359 of the code. It expressly limited the right of appeal from the decision of the Zoning Hearing Officer to persons (and county officials and agencies) "aggrieved" by the Zoning Hearing Officer's decision.

What we have, therefore, is a State statute (§ 5(U)), empowering the county to confer standing before the Board to "any interested person," but the actual conference of standing only to persons and agencies "aggrieved" by the lower administrative decision. The initial question then is whether, absent the new ordinance, OPZ was so "aggrieved," that being the applicable standard in effect at the time of the administrative proceedings. ³

The condition of "aggrievement," of being "aggrieved," is a common prerequisite in the laws relating to administrative appeals, and particularly in zoning cases. The Court of Appeals first articulated some general standards or guidelines for determining who satisfies that condition (and who does not) in Bryniarski v. Montgomery County, 247 Md. 137, 230 A.2d 289 (1967). Though dealing there with the question of standing to appeal from a Board of Appeals rather than to it, the concepts are the same, it seems to us, in that the standard is still the...