The principal question presented by this case is whether an evenly-divided vote by the Anne Arundel County Board of Appeals operates as a denial of a special exception previously granted by a zoning hearing officer or as an affirmance of the hearing officer’s decision. The question arises in this context:
Appellee The Arundel Corporation (Arundel) requested a special exception to permit the operation of a cemetery, funeral home, and crematory on certain lands in Anne Arundel County. 1 The request was opposed by appellants Vernon E. Lohrmann, Sr., and Boyd Walton, Jr. (appellants), but was granted by a zoning hearing officer. Appellants appealed to the County Board of Appeals. The Board, with six members sitting, held a de novo hearing. It rendered the following “decision:”
There being the same number of members voting to grant the special extension as there are members voting to deny the special exception, the Board is unable to issue a majority Opinion and Order to do either.
The County Office of Planning and Zoning announced that it would give effect to the zoning officer’s decision to grant the special exception. Appellants appealed the Board’s “decision” to the Circuit Court for Anne Arundel County. In a separate action in that court, they sought a declaratory judgment “that the split decision entered by the Board of Appeals ... is deemed to be and constitutes a denial of the application____” The circuit court stayed the appeal from the Board and proceeded with the declaratory judgment case. It declared
that since the Board of Appeals refused to decide the case either way, the decision rendered by the Zoning Hearing Officer, which granted the special exception, remains in *312 effect at this time. Since there is no genuine dispute between the parties as to any material facts, the Court grants summary judgment in favor of [Arundel and the County]____
Appellants appealed to this court. We hold that the trial court erred and reverse. But before we explain our reasons for this decision, we must dispose of some preliminary matters.
Preliminary Matters
The first of these problems is raised by appellees’ motion to dismiss for lack of a final judgment. Citing
Felger v. Nichols,
In Felger the defendant moved for summary judgment. The trial court signed a paper that read, in pertinent part: “Motion for Summary Judgment Granted.” A note attached to the paper read: “Counsel will prepare order.” The docket showed that the motion for summary judgment had been granted. No judgment was entered or noted on the docket. No order was ever prepared by counsel. Under those circumstances we dismissed the appeal. We held: “There is no right of appeal from the grant of a motion for summary judgment,” reasoning that
the grant of the motion is nothing more than a determination that the moving party is entitled to a judgment. It does not itself constitute the entry of final judgment.
In the case now before us, the trial judge, at the conclusion of his memorandum opinion, signed an order reading thus:
WHEREFORE, for all the foregoing reasons, it is this 18th day of January, 1985, by the Circuit Court for Anne Arundel County, ORDERED that Summary Judgment be granted in favor of Defendants and declare [sic ] that the *313 Zoning Hearing Officer’s approval of the requested special exception is to remain in effect.
This order is reflected in the docket. We hold it constitutes an appealable final judgment for purposes of § 12-301 of the Courts and Judicial Proceedings Art. 2 This case differs from Felger in at least two respects.
In Felger no order was ever entered, although the docket showed that one was contemplated. There was nothing more than the grant of a motion preliminary to the intended order. Here, the court signed an order expressly directing that “Summary Judgment be granted in favor of Defendants____” It would have been better, no doubt, to direct that “Summary Judgment be entered” or even to say that “Summary Judgment is entered” but that is a matter of semantics; the judge’s intention, as embodied in his order, is clear.
Furthermore, we are dealing here with a declaratory judgment action. The essence of the judgment in this type of proceeding is a declaration of the rights of the parties in order “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Courts Art. § 3-402. Section 3-411 instructs that a “declaration may be affirmative or negative in form and effect and has the force and effect of a final judgment or decree” [emphasis supplied]. As we have seen, the circuit court did issue a declaration on the question before it, and it embodied that declaration in an order. We hold that this was an appealable final judgment by virtue of the express language of § 3-411.
The second preliminary problem arises out of § 3-409(b): “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 [declaratory judgment proceeding].” There is, of course, a statutory remedy for a party aggriev *314 ed by a decision of the Anne Arundel County Board of Appeals. That remedy is an appeal from the Board to the circuit court. Anne Arundel County Charter, § 604. Indeed, as we have noted, appellants took an appeal under that provision. The question is whether § 604 provides “a statutory remedy” that bars appellants from also seeking declaratory relief. Under the circumstances of this case, we hold it does not.
In the first place, § 604 applies only to “a party aggrieved” by the Board’s decision. The issue now before us is whether the effect of that decision was to affirm the hearing officer or to deny the special exception. Until that has been determined, no one really knows who was aggrieved by the Board’s action. Thus, while appellants’ appeal may have been prudent as a means of preserving their appeal rights in the event of an adverse decision in this case, it is far from clear that the appeal route would provide them with a complete and adequate resolution of the basic question: the effect of the Board’s decision.
That fact leads to a second conclusion. This case is not an appeal from the Board, and it is not designed to raise for review the usual issues in an administrative appeal: whether the agency misapplied the law and whether its factual determinations were fairly debatable and
see
Code, State Government Art. 10-215(g);
Germenko v. County Board of Appeals of Baltimore County,
*315 The Merits
We now proceed to consider the effect of the Board’s evenly-divided “decision.” Did it affirm the hearing officer’s grant of the special exception or did it amount to a denial of the special exception? We examine this question in the context of § 603 of the Anne Arundel County Charter, which provides: “All decisions by the County Board of Appeals shall be made after ... hearing de novo upon the issues before said Board.”
The trial judge treated the Board’s decision as a nullity— “The Board of Appeals refused to decide the case either way” — and for that reason he concluded that the zoning officer’s decision “remains in effect at this time.” Appellees agree with this conclusion, but eschew the reasoning. They analogize to judicial appellate review, and observe that in that situation an equal division on an appellate court results in affirmance of the lower court.
Attorney Grievance Commission v. Mandel,
In
Levy
the Baltimore County Zoning Commissioner denied an application for change in zoning classification and a special exception. The applicant appealed to the County Board of Appeals, which split 1-1. The applicant appealed to the circuit court. That court “felt there was no presumption of the correctness of the denial of the application which resulted” and that it should, therefore, “make its own independent determination of the facts as the record disclosed them.”
The Court of Appeals reversed and reinstated the zoning commissioner’s denial. It said that “[t]he inability of the Board to act affirmatively ... produced a continuance of
*316
the denial of the application which the Zoning Commissioner had ordered....”
Both of these cases lend facial support to appellees’ position. And we agree with appellees that the “split decision” zoning cases cited by appellants do not undercut the holdings of
Levy
and
Stocksdale.
They deal with a different problem. In
Montgomery County Board of Appeals v. Walker,
Here, as we have seen, we do have a de novo provision. We think that provision is decisive, for it tells us that the Board was not acting in a true appellate capacity; it was not functioning as does this court or the Court of Appeals in reviewing the action of a lower judicial tribunal. It was, in effect, exercising original jurisdiction.
There are many provisions in Maryland law for what are loosely termed
de novo
“appeals.” Some of these appeals are less
“de novo
” than others in that the action of the body subject to review retains some vitality and must be considered in the reviewing process. For example, although appeals from the Workmen’s Compensation Commission are “essentially de novo,”
Maryland Bureau of Mines v. Powers,
Perhaps the best example of proceedings in this category is that of
de novo
“appeals from the District Court to the circuit courts.” Section 12-401(d) of the Courts Art. provides: “In every ... case [other than a civil case in which the amount in controversy is more than $1,000] an appeal shall be filed de novo.” In
Hardy v. State,
We find similar reasoning in cases dealing with
de novo
appeals from Orphans’ Courts under § 12-502 of the Courts Art.;
Lowenthal v. Rome,
That is the sort of proceeding that is contemplated by § 603 of the Anne Arundel County Charter. Indeed, we so held in
Boehm v. Anne Arundel County,
In effect, then, in this case the Board was exercising what amounts to original jurisdiction. It was as though the zoning officer had made no decision. In that situation, Arundel had the same burden it had before the zoning officer — “the burden of proof (including the burden of going forward with the evidence and the burden of persuasion) of all questions of fact.” Anne Arundel County Code, Title 13, § 13-341.2(a). See also Anne Arundel County Code § 2-200, Rule 11(e): “In appeals from the zoning hearing officer, evidence presented at the public hearing shall be presented first by the applicant requesting ... the special exception, ... then by the persons in opposition.” The evenly-divided Board decision demonstrates that it did not meet that burden. Accordingly, the effect of the *320 Board’s action was to deny Arundel’s request for a special exception. See Walker and Gorin, both supra.
For these reasons we reverse the judgment of the trial court. We remand with direction that the judgment be entered declaring that the Board’s evenly-divided decision constitutes a denial of Arundel’s application.
MOTION TO DISMISS DENIED. JUDGMENT REVERSED. CASE REMANDED FOR ENTRY OF DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION. APPELLEES TO PAY THE COSTS.
Notes
. The other appellee in this court is Anne Arundel County (the County).
. In pertinent part, § 12-301 provides that "a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.”
. In both Levy and Stocksdale de novo appeal provisions were involved. But examination of the briefs filed in both cases reveals that in neither one was an issue raised as to the effect of a split decision on a de novo administrative appeal. No doubt for that reason the Court of Appeals did not address that issue, instead treating the cases as though they involved non-de novo appeals.
. These principles are not modified by
Stanton v. State,