Appellants (two citizens of Prince George’s County and the Prince George’s County Federation of Civic Associations, all collectively referred to as “the citizens”) filed a declaratory judgment action in the Circuit Court for Prince George’s County to challenge the validity of Council Bill 90-2004 (“CB-90”), which amended the Prince George’s County Zoning Ordinance. 1 The circuit court granted the County’s motion to dismiss because the citizens had not exhausted their administrative remedies. We shall affirm.
CB-90 was a zoning text amendment enacted by the Prince George’s County Council, sitting as the District Council (hereinafter “the Council”), on November 11, 2004. The effective date of CB-90 was January 17, 2005. CB-90 amended the zoning ordinance to permit one-family detached housing for the elderly to be built in the Rural-Estate (R-E) zone pursuant to a special exception. But the potential special exception applies only to properties that: 1) contain a maximum of six acres; 2) are located in the county’s “Developing Tier”; and 3) are not adjacent to property in the “R-O-S” or “O-S” zones (unless separated by an arterial roadway). According to the citizens, only one property in the R-E zone meets those requirements, and the owner of that property wishes to develop a retirement community on the property. If the special exception created by CB-90 is granted, the housing density would be greater than elsewhere in the zone.
After CB-90 was enacted, the citizens did not seek judicial review pursuant to Maryland Code, Article 28, § 8-106(e), which provides:
Appeals authovized.—In Prince George’s County, any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, any civic dr homeowners association representing property owners affected by a final district council decision, and, if aggrieved, the applicant may have judicial review of any final decision of the district council. Proceedings for review shall be instituted by filing a petition in the Circuit Court of Prince George’s County within 30 days after service of the final decision of the district council, which may be served upon all persons of record at the district council’s hearing. Copies of the petition shall be served on the district council and all other persons of record in the manner provided by the rules of court. The filing of the petition does not stay enforcement of the district council’s decision; but the district council may do so, or the reviewing court may order a stay upon terms it deems proper.
On February 14, 2006, the citizens filed this action in the Circuit Court for Prince George’s County against both the Council and the County. The citizens’ complaint alleged that CB-90 is invalid because it “was not the product of careful study and consideration, does not cover a substantial area, does not promote uniformity in the use of R-E land, and is not consistent with the public interest.” The complaint also alleged that proper procedures were not followed when the ordinance was passed, and that the bill constituted illegal piecemeal, spot, and/or contract zoning. The citizens sought (a) a declaratory judgment that CB-90, and the method used to enact it, are invalid, and (b) an injunction prohibiting implementation of CB-90.
The Council filed a motion to dismiss, or in the alternative, for summary judgment. The Council argued that the circuit court did not have jurisdiction to hear the action because the citizens had not yet exhausted their administrative remedies. The Council also argued that the citizens failed to state a claim upon which relief could be granted.
The circuit court held a hearing on November 30, 2006. The circuit court’s order of January 24, 2007, concluded that “Plaintiffs have failed to exhaust their administrative remedies pursuant to the Regional District Act, Article 28, Section 8-106(e) of the Maryland Code,” and for that reason, the court granted the motion to
Analysis
A. Standard of Review
In the motion to dismiss, the Council asserted, as its main argument, the lack of exhaustion of administrative remedies. In
Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC,
Our review of the circuit court’s grant of a motion to dismiss is
de novo. Reichs Ford Rd. Joint Venture v. State Rds. Comm’n of the State Highway Admin.,
B. Zoning in Prince George’s County
The Regional District Act, Md.Code (1957, 1997 RepLVol.), Art. 28, §§ 1-101-8-127, governs zoning of property within the Regional District comprised of Montgomery County and most of Prince George’s County. Art. 28, § 7-103(b) provides that “[t]he entire area of Prince George’s County is within the regional district, with the exception of the City of Laurel, as its corporate boundaries are defined as of July 1, 1994.” The Regional District Act is “the exclusive source of zoning authority in those areas of Prince George’s County which [the Regional District Act] covers.”
County Council v. Brandywine Enters., Inc.,
[E]ach district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate, in the portion of the regional district lying within its county ... the uses of land, including surface, subsurface, and air rights therein, for building, trade, industry, residence, recreation, agriculture, forestry, or other purposes.
The Council acts as an administrative agency when, as authorized by the Regional District Act, it sits as the District Council in zoning matters.
Brandywine, supra,
The question raised by this case is whether the citizens have an available administrative remedy that precludes direct resort to the courts until after the administrative remedy has been exhausted.
See Prince George’s County v. Ray’s Used Cars,
C. Exhaustion of Administrative Remedies Required
In support of its motion to dismiss the citizens’ complaint, the Council argued that the citizens had not yet exhausted their administrative remedies because there will be an opportunity for the citizens to raise all objections to the validity of CB-90 if a property owner applies for the special exception contemplated by the ordinance. Because no such application had been filed as of the date the citizens filed suit, the Council argued that the suit was premature, stating:
Plaintiffs, it is submitted, have set forth no facts in their complaint to justify an exception to the exhaustion rule. They do not show that they are impeded in any way from participating in a special exception proceeding, nor do they claim that the bill they challenge prevents administrative or judicial review of a special exception decision. In particular, they do not allege that it would be futile, a waste of time or money or both, to offer evidence in a special exception case authorized by CB-90.
Plaintiffs cannot show that it would be futile or impossible to oppose an elderly housing special exception application filed under CB-90. The point, for present purposes, is that they have not tried, they have not exhausted available administrative remedies. But they must do so, before they can bring a declaratory judgment action in this Court. The Zoning Ordinance and the Regional District Act give plaintiffs perfectly adequate and available remedies, remedies that are primary or exclusive, and they must be exhausted.
... [The citizens’] claims against CB-90-2004 are not ripe until there is a final and reviewable administrative decision based on that zoning legislation.
With respect to whether exhaustion of administrative remedies is required before a party may resort to direct court action, the Court of Appeals explained in
Zappone v. Liberty Life Insurance Co.,
There is an additional consideration in this case because the citizens chose to proceed by way of a declaratory judgment action. The Declaratory Judgment Act states: “If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.” Md.Code (1974, 2006 Repl.Vol.), Courts and Judicial Proceedings Article, § 3—409(b). As a result, the Court of Appeals “has consistently held that because, under the Declaratory Judgment Act, statutory administrative remedies are exclusive, the administrative procedures established must be exhausted before a litigant may seek declaratory relief from a trial court.”
Moose v. Fraternal Order of Police,
1. Remedies under Article 28, § 8-106
The Regional District Act provides an administrative appeal process for review of the zoning hearing examiner’s decision with respect to granting or denying an application for a special exception. Art. 28, § 8-110(a)(3) states: “In Prince George’s County the district council shall provide for the appeal of decisions of the zoning hearing examiner in special exception and variance cases to the district council.” Art. 28, § 8-110(a)(5) further provides: “The district council in either county also may authorize the board of zoning appeals to interpret the zoning maps or pass upon disputed questions of lot lines or district boundary lines or similar questions as they arise in the administration of the regulations.” Whether the administrative appeal of the zoning hearing examiner’s decision is heard by the District Council or the Board of Ap peals—see Art. 28, § 8-110(a)(l)—-judicial review is expressly authorized under Art. 28, § 8-106(e) if the appeal is heard by the District Council, and under Art. 28, § 8-111.1(a) if the appeal is heard by the Board of Zoning Appeals.
The Council argues in this Court that the citizens have not yet pursued available administrative remedies, stating:
The citizens must show, in special exception proceedings, why their rights have been violated, as they alleged in their complaint. They must also argue in administrative proceedings, if they choose to, why CB-90-2004 is unconstitutional or otherwise invalid. Then, having exhausted administrative remedies by opposing the special exception application, and having preserved their argument that CB-90-2004 is not valid by making the argument to the District Council, the citizens would be authorized, under § 8-106(e) of the Regional District Act, to file a petition for judicial review in the circuit court. They would then be able to present all validity arguments, as well as their arguments about how CB-90-2004 violates their rights and causes them injury.
According to the Council, the citizens must wait until someone applies for a special exception to build elderly housing in the R-E zone, and the citizens must then assert their arguments about the invalidity of CB-90 in that special exception proceeding. Judicial review of that administrative
Ray’s Used Cars, supra,
There is a difference, however, in the status of the plaintiffs in the two cases with respect to their relationship to the property that was the direct object of the zoning text amendment. In
Ray’s Used Cars,
the plaintiffs who objected to the zoning text amendment were property owners whose existing used car sales sites no longer satisfied the minimum lot size required for compliance with the amended zoning requirement. The County argued in that case that the used car dealers “may now institute administrative proceedings for variances or other relief.”
Although there is a clear disparity between property owners and objecting neighbors regarding the time within which the party objecting to the zoning text amendment may pursue an administrative remedy, we are persuaded that exhaustion of administrative remedies is required before either party may seek judicial intervention. As the Court of Appeals noted in
Ray’s Used Cars, supra,
Similarly, in the present case, if and when any property owner seeks to take advantage of the special exception created by CB-90, the citizens will have available
Although the Regional District Act is the exclusive source of zoning in the geographical area encompassed by' the Regional District, we have not expressly held whether the adjudicatory remedies under that Act are exclusive or whether they are simply primary. Furthermore, there is no need to resolve that issue in this case. Whether exclusive or primary, this Court’s opinions have made it clear that the adjudicatory remedies provided by the Regional District Act, for the resolution of zoning issues like those presented here, must be pursued and exhausted before resort to the courts. Our cases have applied this principle even when zoning ordinances enacted by the District Council have been challenged on the ground that they were invalid or unconstitutional. We have also held that no action may be maintained under the Declaratory Judgments Act, Maryland Code (1974, 2006 Repl.Vol.), §§ 3-401, et seq., of the Courts and Judicial Proceedings Article, for the resolution of such issues.
Turning to the case at bar, it is clear that the administrative procedures available to the plaintiffs, under the Regional District Act and the Prince George’s County Code, were either exclusive or primary. As stated in the Gingell case, [Gingell v. Board of County Commissioners for Prince George’s County,249 Md. 374 , 377,239 A.2d 903 , 905 (1968) ], “this [administrative] remedy must be followed.”
(Footnote omitted.)
See also Anderson House, LLC v. Mayor and City Council,
At oral argument in this Court the citizens’ counsel urged us to issue an opinion as to whether the citizens could have sought judicial review, pursuant to Art. 28, § 8-106(e), challenging the validity of CB-90 immediately after the bill was enacted, if they had filed their petition within 30 days following the District Council’s final decision to adopt that bill. The Council disagrees that immediate judicial review of CB-90 would have been a permissible option for the citizens, and contends that § 8-106(e) does not permit immediate judicial review of legislation adopting a zoning text amendment. Al
though the Court of Appeals held in
County Council v. Carl M. Freeman Associates, Inc., 281
Md. 70, 73-76,
But we need not resolve in this case what might have happened if things had unfolded in a different manner. The citizens made no effort to seek immediate judicial review of the Council’s decision to adopt CB-90. And the Council does not contend that such failure bars the citizens from asserting their challenges to the validity of CB-90 in administrative proceedings if and when a property owner seeks to take advantage of the special exception use created by CB-90. Whether the citizens could have pursued immediate judicial review of the zoning text amendment under Art. 28, § 8-106(e) is a question we leave unanswered because it is not necessary to our disposition of the case.
2. Exceptions to the Exhaustion Requirement
Although there are exceptions to the rule requiring exhaustion of administrative remedies,
Poe v. City of Baltimore,
1. When the legislative body has indicated an intention that exhaustion of administrative remedies was not a precondition to the institution of normal judicial action. White v. Prince George’s Co.,282 Md. 641 , 649,387 A.2d 260 , 265 (1978) .
2. When there is a direct attack, constitutional or otherwise, upon the power or authority (including whether it was validly enacted) of the legislative body to pass the legislation from which relief is sought, as contrasted with a constitutional or other type issue that goes to the application of a general statute to a particular situation. Harbor Island Marina v. Calvert Co.,286 Md. 303 , 308,407 A.2d 738 , 741 (1979) .
3. When an agency requires a party to follow, in a manner and to a degree that is significant, an unauthorized procedure. Stark v. Board of Registration,179 Md. 276 , 284-85,19 A.2d 716 , 720 (1941).
4. Where the administrative agency cannot provide to any substantial degree a remedy. Poe v. Baltimore City,241 Md. 303 , 308-09,216 A.2d 707 , 709 (1966).
5. When the object of, as well as the issues presented by, a judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve,and do not, in any meaningful way, call for or involve applications of its expertise. Md.-Nat'l Cap. P. & P. v. Wash. Nat’l Area, 282 Md. 588, 594-604, 386 A.2d 1216 , 1222-27 (1978).
At first glance, it would appear that this case falls within the second listed exception, recognized in
Harbor Island Marina v. Calvert Co.,
As the Court of Appeals stated in
Ray’s Used Cars, id.:
“Under Maryland administrative law, the ‘constitutional exception’ to the requirement that primary administrative remedies must be pursued and exhausted is an extremely narrow one.” The Court noted that it had “consistently held that exclusive or primary administrative remedies must be pursued and exhausted, before resort to the courts, in cases presenting constitutional issues.”
Id.
at 651,
In
Ray’s Used Cars,
the Court of Appeals noted that one limitation upon the exception, pointed out in
Insurance Commissioner v. Equitable,
[T]he plaintiffs’ “substantive due process” and equal protection attacks upon the ordinance were factually based, and the Circuit Court’s declaratory judgment rested upon the court’s findings of fact. This Court in Insurance Commissioner v. Equitable,339 Md. at 623 ,664 A.2d at 876 , held as follows:
“Finally, where a constitutional challenge to a statute, regardless of its nature, is intertwined with the need to consider evidence and render findings of fact, and where the legislature has created an administrative proceeding for such purpose, this Court has regularly taken the position that the matter should be initially resolved in the administrative proceeding.”
The administrative agencies under the Regional District Act were created by the General Assembly to hear the evidence and render the appropriate findings of fact. Instead of initially performing this function itself, the Circuit Court should have deferred to those agencies.
In the present case, the citizens’ complaint alleged that the text amendment has been defined in such a way that it is applicable to a single property in the county. As a consequence, the citizens alleged, the measure is an “invalid zoning action” because it does not cover a substantial area, does not promote uniformity in the use of property within the R-E zone, and was not based upon an adjudication of change or mistake. The complaint further
In our view, the allegations of invalidity made by the citizens are highly fact based, and the challenge to CB-90 “is intertwined with the need to consider evidence and render findings of fact,” id., such that “the matter should be initially resolved in the administrative proceeding.” Id. As in Ray’s Used Cars, the constitutional exception does not apply to enable the citizens to bypass the requirement that they exhaust administrative remedies.
APPELLEES’ MOTION TO STRIKE APPENDIX DENIED.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY IS AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
Notes
. The appellants are Victoria Evans, Kelly Canavan and Prince George’s County Federation of Civic Associations. The appellees are County Council of Prince George’s County, Maryland, sitting as the District Council, and Prince George's County, Maryland.
. In this Court, the Council filed a motion to strike, asking this Court to disregard some of the material in the appendix of appellant’s brief, including one of our own unpublished decisions, and briefs submitted to this court by the Council in other appeals. The Council’s motion is denied; we can take judicial notice of our own opinions and public record documents presented to this Court. The cases were not cited by the citizens as precedential authority. See Maryland Rule 1—104(b).