*1 easily could be believed that the case though Respondent even contemptuous knew that his Finally, Respondent resolved. justice of be- to the administration prejudicial conduct was in as defense counsel Mahone. cause of his involvement not misconduct in this case does Clearly, Respondent’s imposed as that Mahone. disposition warrant the same behavior, moreover, could have war- courtroom Respondent’s imposed than that Alison. disposition ranted a more severe matter, disciplinary first Only Respondent’s because this is do we subject disciplinary charges, he has been the where a 60-day suspension, Bar recommendation for adopt Counsel’s Accordingly, sanction. rather than a more severe impose days filing shall from the suspension days begin of 60 this opinion. ORDERED; PAY
IT RESPONDENT SHALL IS SO BY THE THIS ALL AS TAXED CLERK OF COSTS COURT, ALL TRAN- THE COSTS OF INCLUDING 16-715(c), SCRIPTS, MARYLAND RULE PURSUANT TO ENTERED IN FAVOR OF FOR WHICH JUDGMENT IS MA- THE ATTORNEY GRIEVANCE COMMISSION OF USIAK; RYLAND AGAINST NORMAN CHRISTOPHER 30 DAYS FROM SUSPENSION SHALL COMMENCE THE FILING OF THIS OPINION.
18A.3d16 Jerry SMITH, et al.
v. KENT OF COUNTY COMMISSIONERS COUNTY, Maryland, et al. 2, Sept. Term, 2010.
No. Maryland. Appeals Court of 25, 2011. April *3 (David Macy of of Law Office G. Macy Lynch Nelson S. G. Towson, MD), brief, Nelson, petitioners. on (Cristina Landskroener, Ches- Harding Daniel C. Saunders MD), Chestertown, on tertown, MD; Thomas N. Yeager, brief, for respondents. E. Gansler, Maryland, of Marianne Atty. F. Gen.
Douglas Resources, Gen., of Natural Dise, Department Atty. Asst. Area MD, brief of Critical for Amicus Curiae Annapolis, Bays. and Atlantic Coastal Chesapeake for the Commission BATTAGLIA, BELL, C.J., HARRELL, before Argued BARBERA, GREENE, MURPHY, JJ. ADKINS HARRELL, J. interesting a number of question, a case but one posing
For here, we most of which are imbedded questions additional and, so, if must decide whether today. We shall not decide of by the Board persons, assumedly aggrieved when alloca- County’s1 approval growth of Kent Commissioners Area Plan County’s tion to amend the local Critical request of the and Atlantic regulatory Chesapeake under the scheme Program, Maryland Area Protection Bays Coastal Critical (1990, §§ Natural Resources Article 8- RepLVol.), Code 1801 et seq., Jerry of that approval. seek review (collec- and a number of other Kent residents Smith “Petitioners”) tively, question Special Ap- here Court judgment dismissal of their from the of the peals’s appeal County’s Circuit for Kent which affirmed the County, Court Manor, approval growth application by Drayton of a allocation (the to allow Developer), development LLC increased its property. problem
The in this case proclamation arises from a states that the County’s approved decision is not effective until Commission). (the by the Area State Critical Apparently while consideration of the local Commission, approval by County was before the pending Petitioners sought review in the Circuit of the Court County’s decision. The County’s Circuit Court affirmed the and Petitioners thereafter approval, appeal filed an to the Special Appeals. Court of After requesting specific briefing on finality County’s of the vis á approval ability vis action, a judicial maintain the intermediate appellate court, order, dismissed the as premature. us,
Before Petitioners argue generally that: [County’s] approval Developer’s application *4 final, allocation it growth appealable was order because Furthermore, terminated the case before the the [County]. subsequent growth review of the allocation [Commission's appealability [County’s] does not affect the of the decision because the and the conduct County separate [Commission] County” throughout opinion. 1. We shall use the reference “the this It mean, context, depending will on the either the Board of political County. Kent Commissioners or the subdivision that is reviews, different standards and different apply develop records.
In the response, ap- maintains that intermediate correct, pellate appeal court’s dismissal of Petitioners’ was [ie., considering County’s approval] decision was “[t]hat final, not a appealable proposed program act because the required by amendment was law to be reviewed and approved by the Critical Area before it have any legal could effect.” The Commission filed an amicus brief generally Petitioners’ their supporting position regarding ability to seek review of the approval. We hold that County’s approval Drayton Manor’s action, request considering was not a final reject, that the required may modify, Commission’s decision delay, or even from preclude approval becoming local order, effective. As a non-final even that a to assuming right (a seek review existed with which we do not premise to agree, explained), right reasons be no immediate existed to have review take place. Accordingly, although Special Appeals’s Court of dismissal of Petitioner’s church, that court was in the it in right wrong pew. was and, It should have further more gone explained fully infra, as endorsed dismissal litigation. Circuit Court of the BACKGROUND, FACTS,
STATUTORY AND LEGAL PROCEEDINGS A. Chesapeake and Atlantic Coastal Critical Area Bays
Protection Program established the Assembly Chesapeake General and Bays Program Atlantic Coastal Critical Area Protection (“Critical (1990, or Program” Program), Area Md.Code §§ Natural Article RepLVol.), Resources 8-1801 et seq., 1984, in recognition Chesapeake Bay’s importance health, governments’ State’s and local role its future in response then-growing concerns over the deteriorat- condition of deemed “natural re- ing Legislature what *5 ” the nation.... to the State and great significance sources (a)(1).2 § Nat. Res. Art. 8-1801 jurisdictions,
The Area all local Program “require[s] Critical Area Bay the Critical Chesapeake under direction [the] Commission, to control implement plan to formulate Area in ‘critical’ or area.” Critical development protected the v. More Chesapeake Bays the and Atl. Coastal Comm’n for (2011). LLC, land, 111, 117, 12 The 418 Md. A.3d mechanism for Program’s primary protecting Critical Area in “critical Bay limiting development statutorily is defined areas,” 8-1807, § human Nat. Res. Art. where unchecked harm growth Bay. Program could cause to the The establishes of at 100 feet from development-free “buffer least landward waters, streams, high tributary mean water line of tidal 8-1801(a)(4). § and tidal wetlands....” Nat. Res. Art. The local to zone all critical areas Program requires governments (1) as one of three tiers: Resource Area Conservation (“RCA”), (2) 27.01.02.05; § Development see COMAR Limited (“LDA”), 27.01.02.04; § Area see or Intensely COMAR (“IDA”), § Area see 27.01.02.03. The Developed COMAR jurisdic amount of in IDAs and allowed in each growth LDAs tion’s “critical alloca county’s “growth area” is known as the 8-1802(a)(ll) (“ tion.” Nat. See Res. Art. ‘Growth allocation’ Bay means number of acres of land in the Chesapeake jurisdiction may Critical Area that a local use to create new ar intensely developed development areas and new limited eas.”). county’s Each allocation is at five capped 8-1808.1(b). § Art. In each percent its RCA. Nat. Res. Bell, Judge writing Foley 2. Chief for the Court in v. K. Hovnanian at Island, LLC, (2009), de- Kent surrounding scribed the circumstances the establishment of the Critical Program: Area decades, nothing magnificent. Chesapeake Bay For short of crabs, oysters plentiful supplies fishermen found of blue clams time, however, its waters. Over the results of increased human on, activity Bay in and near its deterioration and the saw Maryland in the it In General decrease fruits bore. Program] Assembly responded part. It Area [Critical enacted increasing to counteract levels of deterioration that human activi- ty Bay’s causing. Chesapeake near waters and habitats was jurisdiction, these Critical Area Zones overlay pre-existing is, zoning; zoning local ordinances must with the comply *6 Program, but add additional conditions or restric- zoning Bucktail, tions. See v. Talbot County, LLC Council of 530, 535, (1999); 352 Md. see also Md. Baltimore, Overpak Corp. Mayor v. 26 n. (2006). 241 n. 10 A.2d Program is the division of complicated responsibili- ties in its implementation govern- between the State and local 8-1801(b)(2) § ments. Nat. Res. Art. that (stating imple- See mentation of the Program cooperative is to be done “on a basis between the governments”). State and affected local jurisdiction While “each local ... primary responsibility ha[s] a such developing implementing program,” [local] responsibility “subject is to review approval by Com- 8-1808(a); § § mission.” Nat. Res. Art. Art. see Nat. Res. 8- 1808.1(c)(2) that the shall ensure that the (stating Commission local plan is “consistent with the purposes, policies, goals, and provisions Critical Area Program]”). th[e After the a adoption by local of its initial government plan, all to the local changes plan, growth allocation including subjected amendment are requests, approval to a two-tiered similar to the the initial process, process plan adoption. The local allocation government, considering growth amend- ment requests, governed by guidelines set forth in Nat. Res. 8-1808.1(c)(l).3 §Art. If government rejects the local a guidelines 3. These include: (i) Locatpng] intensely developed develop- a new area in a limited area; adjacent existing intensely developed ment area or an (ii) Locatpng] development adjacent existing a new limited area to an area; development intensely developed limited area or an (iii) Locatpng] development intensely a new limited area devel- or an oped impact area in a manner to a habitat minimizes 27.01.09,
protection area as defined in COMAR and in an area and optimizes quality. manner that to water benefits (iv) Locatpng] intensely developed develop- a limited new area or beyond ment area in a resource conservation area at least 300 feet waters; edge the landward of tidal wetlands or tidal [and] growth allocation request, application is terminated and plays no role because nothing there is for it to If, however, review. government local approves growth (with request restrictions/conditions), or without Commission must “ensure that the ... guidelines have been applied in a manner that is consistent with the purposes, policies, goals, and provisions of Program].” [the Nat. Res. 8-1808.1(c)(2). review, §Art. On the Commission may ap- prove the request, deny the request, approve request subject conditions, or return the to the request local government with a list of to be changes made. See Nat. Res. 8-1809(o )(3). §Art.
B. Kent County’s Critical Area Plan Kent County’s initial Critical plan Area “was approved by *7 the Critical Area 20,1988 Commission on January and became effective on April 12” of that year. Point, at Handy’s Wharf Res., Inc. v. Dep’t Nat. 92 Md.App. (1992). The Kent County Critical Area Plan is incorporat- ed into Kent County’s Ordinance, Land where the balance of Kent County’s zoning and planning provisions reside. See Kent County Ordinance, Land Use http://www.kentcounty. (last com/gov/planzone/newzone/Partl_A10.pdf visited 7 Feb- 2011). such, ruary As the local plan is a of a part public local law.
Growth allocation amendment requests Kent County purportedly also are governed by the Kent County Growth (“the Allocation Policy Policy”), adopted initially by the Coun- ty on 9 March 1999. More will be said about the circum- stances of the adoption of the Policy later. The reit- Policy erates that the County Board of Commissioners has the authority to grant growth requests allocation in the “incorpo- towns” and the rate[d] “unincorporated territory” of Kent (v) (vii) Except provided paragraph, as for in item of this no more than expansion one-half of the allocated in the criteria of the Com- mission be located in resource conservation areas unincorporated in the requests For County. an applicant territory approved, Policy provides to be following meet the conditions: must is identified in the Kent project 1. The proposed and expand provide Plan as a means to Comprehensive size, number, type in the and of businesses diversity more to enhance and expand in Kent or as a means natural, unique that relies locally upon based tourism cultural, features and of Kent Coun- qualities and historic ty. the sensitive location are suitable for Proposed projects
2. the environment. minimal risks to pose commu- surrounding with the project compatible 3. The and land use. nity design will use innovative development
4. location and Site on water negative impacts quality, features to minimize woodlands, areas, Exam- and forests. protection habitat of buffer areas include but are not limited to the use ples corridors, habitat, important and other wildlife protect areas, landscapes bays- use of conservation or natural through surfaces clus- impervious and limitation capes, roadways. tering and shared with the goals 5. The is consistent proposed project Plan, Zoning the Kent Comprehensive intent of Ordinance, Ordinance, Pro- and Critical Area Subdivision gram. must two of the follow- project accomplish
6. The proposed *8 caused negative to effects ing mitigate standards normally than allowed: higher intensity development area such as a developed The is within a project a. village. sewer and public has direct access to project
b. The water. are clustered. structures on the site
c. Man-made the habitat of threatened are made to enhance d. Efforts in need of protections or species species or endangered standards. required the minimum beyond e. Permanent environmental easements are donated. f. All agricultural lands on the site are into a placed
protective easement. g. Public access to natural and physical amenities is
provided. h. The development uses infill or structures. existing i. Habitat for forest interior dwelling birds other and/or
sensitive species is created or expanded. j. restoration, enhancement or creation of wetlands
are included in the project. k. is provided beyond Afforestation/reforestation
minimum required standards.
l. Historic structures are restored. m. Buildings are designed to reflect the heritage of Kent
County. Significantly, the Policy, originally as adopted, purports to provide for an aggrieved person a right judicial to seek review of the County’s decision on growth allocation amendment. The Policy states that “[a]ny aggrieved person with standing may within thirty days after the appeal[5] to decision[4] the Circuit Court of Maryland.”6 Finally, the Policy provides that “[applications allocation shall not be effective until approve[d by the under Natural Commission] Resources Article 8-1809....” Although,
4. "the decision” County’s seems to refer to the action on "any growth amendment," infra, as discussed that not only language. reasonable construction of this context, "appeal,” 5. An in this is understood to be an archaic reference petition what is now known proceeding. as a See 4.1, Rochvarg, (2d Maryland Arnold § Administrative Law at 102 ed. 2007) ("Despite the fact review of an administrative appellate jurisdiction, decision is not an exercise of it has been common practice to refer to such review in a circuit court as an ”). ‘appeal.’ 6.We understand Maryland" the reference to the "Circuit Court of County. mean the Circuit Court for Kent *9 Application Allocation Manor’s Growth Drayton
C. farmhouse, tract, aby improved Manor is 32-acre Drayton center, in Kent a small retreat buildings, and supporting Pond, which drains is located on Still County. property The use of the retreat center Bay. into the Since Chesapeake beds, and twenty a maximum capacity Manor had Drayton however, small, In retreats. religious had been used a “Retreat property into sought develop the owners intensify would Center, Center” which Spa & Conference use. meaningfully property’s RCA, tract, classified as use of proposed Because Program’s development Area County’s exceeded the Critical sought Developer for the property, restrictions held a to IDA. The reclassify property allocation to The was January request on 23 2007. hearing request on the restrictions/conditions, subject thirty-four explicit granted, Thereafter, on 23 Petitioners April 27 March 2007. on action in the Court filed the Circuit present Court, in 2008 memo- a March County. Kent Circuit considered the list of Petitioners’ claims opinion, randum conditionally the approve decision to County’s affirmed the request.7 Developer’s growth following questions: posed the 7. Petitioners Center, Spa [p]roposed a "Retreat Developer's] use as [Whether complies requirements in Md. Ann. with the & Conference Center” 1808.1(c)( )(iii) § “[fio- that Kent Natural Resources Code 8— intensely developed area in ... an area and manner cate ... an quality" Kent Growth optimizes to water benefits design features Policy Proposed use "use innovative that a Allocation quality.” negative impacts on water to minimize [County] improperly failed to find that the record [Whether] [compliance] to demonstrate it lacked substantial evidence before Appeals. Special to the Court of timely appealed Petitioners *10 court dis- appellate the intermediate 30 September On prema- that it was on the ground Petitioners’ missed action, explaining: the County’s review of ture to seek subject to decision was County Kent Commissioner’s was not Area the Critical approval by law applicable issued. Under “effective” at the time it was Area Bays and Atlantic Critical Chesapeake the governing allocation grant growth the Program, Commissioners’ the time it not “effective” at final because it was was not was granted---- with timely a Petition for of Certiorari
Petitioners filed Writ the 5 November 2009. Before we could act on this Court on however, Petition, 1 December amended on the time in an Policy “clarify period aggrieved which a decision of the Commissioners person may appeal statutory requirements quality in with for water found Md. Ann.Code 8-1801.1(c)(1). § [County] provide adequate explanation failed to con- [Whether] cerning Project's compliance with the Kent Land Use Ordinance.... record [County] improperly failed to find that the [Whether] goals fulfill the and intent of before it lacked substantial evidence to Zoning Comprehensive requirements of the Ordinance. Plan and sufficiently Proposed [County] explain how the failed to [Whether] surrounding] harmony land and communi- with the use would be ty- [County] finding the record contained substan- erred in [Whether] harmony Proposed with the that the use would be tial evidence overnight regard to the surrounding community and land use with guest that will be constructed. rooms determining Respondent’s applica- [County] erred in [Whether] guidelines growth in Md. Ann.Code complied with the tion 180.1(c)(1) [County] requires] the § ... [which Resources Natural 8— IDA inside an they can locate a new whether first to determine adjacent existing existing to an IDA. LDAor regarding a Allocation application.” Growth The amended Policy reads:
Any aggrieved person with standing may, within thirty (30) days decision, after the file a petition review of the decision with the Circuit Court for Kent County, Maryland pursuant Rules 7-201 et seq. of the Maryland Rules of Procedure. If the decision in which is sought Allocation, is the granting of Growth the decision shall not be considered final approved until by the Critical obtained, ... Area[ ] Commission petition and the shall be filed within thirty days approval. such Applications allocation shall not be effective until approved by the Critical Area Commission for the *11 Chesapeake and Atlantic Bays Coastal pursuant to Article 8-1809 of the Natural Resources Article of the Annotated Code of Maryland, as the same may be amended from time time.[8] to 2009,
On 18 December we granted Petitioners’ Petition for Certiorari, Writ of Smith v. County, 740, Kent 985 (2009), A.2d 538 to consider the sole question posed: whether “the decision of County Commissioners of Kent County, Maryland[,] approve to an application growth allocation [is] final, appealable despite decision the fact that it was condi- tioned upon an approval by the Area Critical Commission.” In rebanee on the 1 December 2009 amendment of the “ap- peal” provisions of the Policy, County moved this Court on 30 December 2009 to dismiss the case as moot. According to the County, the question for which we issued our writ of certiorari became moot when the County made “clear” in the 1 December 2009 amendment to the Pobcy that was not authorized until Petitioners, the Commission acted. in a 2010, filed 11 response dismissal, on January opposed arguing that the County should not be allowed to change (i.e., “law” the Pobcy) “to defeat a citizen’s to that challenge 8. The court was not informed of the existence of the amendment of the 2009, Policy until explained shortly. 30 December will be as dismissed, Moreover, if the action was action.” government’s precluded that “the will be Petitioners declaimed [c]itizens growth to challenging County’s grant from decision Area does not allocation because the Critical Commission deferred County.” consider the same criteria as the We until oral argument. action on the motion to dismiss to the respect this timeline with Notwithstanding action, parallel review action of the dimension evolved to the consideration respect with Commission’s swpra, As noted County’s approval growth allocation. while consideration of the local allocation apparently Commission, was before the approval pending Petitioners review action in the filed their Circuit from the County’s April Court decision.9 On from the requested Commission additional information Coun- ty. August requested changes On it certain be made the Developer’s growth application. A panel (“the Panel”) hearing May held a on 30 see Nat. Res. Art. 8-1809(o )(1),10 § to consider whether Dray- request ton Manor’s was consistent with the Area Critical time, At Program. that the Panel staff requested Commission to research additional information on a number of topics attendant to the Manor Drayton request.11 On June 9. It is not clear on this record the date on which the transmitted approval its to the Commission for the action. We latter’s know happened April this transmittal sometime before 27 the date on County Department which the Commission wrote the Kent of Plan- *12 ning Zoning acknowledging requesting and the transmittal and a "draft Map reflecting Drayton property’s of the Critical Area the Manor new ” County appears complied classification as an It that the [IDA].... request, hearing with the after which the Commission a on 9 conducted July requested County supplied 2007 and The additional information. by July supporting this information letter and memorandum 2007. 8-1809(o )(1) provides, pertinent § 10. Natural Resources Article amendments, part: proposed program panel "For a Commission shall public hearing jurisdiction, hold a in the local and the Commission days proposed program act on the amendment within 90 of the shall acceptance proposal.” Commission’s of the (1) Maryland Department of the Environment’s 11. These included: the ("MDE”) (2) appropri- permit process drip irrigation; water MDE’s that the the Panel recommended to the full Commission be with various additional request approved conditions.12,13 site; (3) vegetate possible ation for the whether it was a 300-foot view; (4) maintaining
setback while of storm water schematic (5) management; proposed occupancy at verification of the maximum Manor; Drayton County County and clarification from the on Areas, Areas, regarding Priority Funding Heritage Policies and Certified Chesapeake Heritage Stories of the Areas. conditions, supplemental 12. These which were different from or to the accompanying County’s approval, the included: restrictions/conditions construction, 1. Prior the will start submit to copy permit proposed Commission staff a of the MDE for the drip irrigation system. onsite construction, 2. Prior to the start of will submit to copy permit staff a of the MDE an to allow increase gallons day existing Drayton per pumped in the water from well. construction, 3. Prior to the start of will submit to copies manage- approved Commission staff of the stormwater permits. ment and sediment erosion control any permits approvals by 4. Prior to the issuance of or final County, Management appropriate a detailed Buffer Plan at an prepared scale shall be and submitted to the full Commission for approval.... review and vegetation 5. The 300-foot setback shall be established in forest as provide appropriate riparian the 100-foot buffer in order to forest currently using cover for wildlife that are the site.... disagreed County's Importantly, the Panel with at least one of approval. County provided approval conditions for its "[significant view corridors from the site and into the site will be preserved by County Planning approved and enhanced as the Kent Noting Commission.” that the State Critical Area Commission was the regula- ”consisten[cy] final arbiter on tions,” with State Critical Area laws and County's "may the Panel determined that the condition not be with the State Critical Area laws” and determined that the consistent above, Management finally Plan” in 4 and "Buffer numbers "as Commission, approved by any the Critical Area not include all or requested by County.” view corridors 13. It is not clear from this record whether and when the full Commis- sion took final action on the Panel’s recommendation. The record does any not reflect action the Commission after the Panel's "favorable” Nonetheless, treat recommendation. the Commission seems to recommendation final decision. See Brief for Critical Panel’s as its Bays Chesapeake Atlantic Area Commission for the Coastal as Petitioners, ("The ap- Supporting Amicus at 4 [Commission] Curiae conditions, proved County’s request, subject to several on June
707
filed,
2
in
July
Petitioners
on or about
2008
the Circuit
review
County,
judicial
for Anne Arundel
for
petition
Court
4
2008
presumed
approval by
June
County’s
growth
local
allocation amendment for
program
Drayton Manor.14 That case was transferred to the Circuit
reasons,
for Kent
for venue
and sur-
County, possibly
Court
faced on the docket of that court on or about 16 October
2009.15 The
in the
Commission moved
Circuit Court to dis-
(1)
that petition
underlying govern-
miss
on two
grounds:
mental
and action were
in na-
proceedings
quasi-legislative
16and, therefore,
subject
scrutiny
ture
not
in a
petition
(2)
judicial review
there
no
proceeding;
provision
is
is, however,
2008.”).
possible
There
at least
other
one
scenario: under
8-1809(o )(1),
§
Natural
Article
Resources
the Commission’s non-action
days
within
acceptance
proposed program
130
of its
aof
amendment
approval by operation
“proposed
results in
program
of law of the
it, however,
ambiguity
amendment.” This scenario carries with
an
as
whether
approved
to
tion,
that which is deemed
the Panel
recommenda-
action,
County’s approval
Drayton
application
or
Manor's
as
County,
degree,
submitted to the
each of which varies to some
one from
the other.
Certiorari,
14. Petitioners’ Petition for Writ of
filed on 5 November
2009, notes,
judicial
proceeding
filed in Anne Arundel
procedural safeguard
was initiated "as a
‘to ensure that their
Special Appeals
[regarding
Court of
matter
action was] not
approval
growth
rendered moot
the final [Commission]
of [the]
”
[presumed
allocation
to have occurred on 4 June 2008].’
here,
procedural history
part
15. While this
is not
of the record
we take
Condo.,
Landing
notice of it. See Swinson v. Lords
Vill.
462, 467,
(2000) ("The
case,
A.2d
758
1011
actual record of the
placed
which
was never
into evidence
which
take
but of
we
notice,
docket....”);
judgment
shows that
on
was entered
State,
Minger v.
Md.App.
2
157
164 n.
849 A.2d
1062 n.
(2004).
See,
480, 492-93,
e.g.,
Oxford, Md.App.
16.
v.
Talbot
Town
challenge
(legal
quasi-legislative
act of
Program
State Critical Area Commission action on local Critical Area
amendment,
nature,
quasi-legislative
proceeded
characterized as
as
action,
declaratory/mandamus
companion petition
while
dismissed);
P'ship,
Md.App.
review was
92,
North v. Kent Island Ltd.
(1995) (action
petition
Considering posture rather convoluted procedural parties’ disputes, it be beneficial to the relevant may render events in a summary comparative chronological order:
COMPARATIVETIMELINES
Kent
Action
State CommissionAction
here,
question
Recogniz
17. Another
arises
which we shall not resolve.
ing
"any right
appeal
of
...
find
[or
review]
must
its
143, 147,
legislature,”
Bailey,
source in an act of the
State v.
289 Md.
1021,
(1980), superseded by
422
grounds,
A.2d
1024
statute on other
one
there,
case,
present
right
appeal
ask where is
in the
a
of
to the
granted
Special Appeals
by
public
of
Court
State statute or
local law?
(1974,
Art.,
Repl.Vol.),
§
See Md.Code
(“Unless
2006
Cts. & Jud. Proc.
12-302
law,
right
appeal
granted by
§
expressly
to
is
12-301 of this
permit
appeal
judgment
subtitle does not
an
from a final
of a court
appellate jurisdiction
reviewing
entered or made in the
of
exercise
agency,
legislative
the decision of ... an
or a
administrative
local
Elections,
body.”);
City
Supervisors
Gisriel v. Ocean
Bd.
345 Md.
of
of
477, 496,
757,
(1997) ("[W]hen
proceeding
693 A.2d
766
a circuit court
ordinary judicial
adjudicatory
an
substance constitutes
statute,
by
legislative body, pursuant
...
decision
nance,
local
to a
ordi
a[ ]
provision,
or charter
and the circuit
court renders
final
12-302(a)
judgment
jurisdiction, §
applicable,
within its
and an
12-301.”);
appeal
Special Appeals
by §
to the Court of
is not authorized
Dep’t
P'ship, Md.App.
Gen. Servs. v. Harmans Assocs. Ltd.
98
(1993).
question
germane
633 A.2d
The same
seems
Special Appeals
present
Petitioner’s
to the Court of
in the
case.
221, 242,
Staples
City
Dep’t, Md.App.
But see
v. Baltimore
Police
denied,
(1998),
cert.
3/27/07 olution alloca- pro- tion amendment posal Drayton Manor petition file Petitioners
4/23/07 review in Circuit Court for Kent *15 Circuit Court affirms
3/4/08 Board action on merits appeal file Petitioners
4/3/08 Special to Court of (COSA) Appeals Panel of Critical State Area
6/4/08 Commission recommends approval County’s pro- of amendment, posed with revised conditions petition Petitioners file 7/2/08 review Circuit Court for Anne Arundel appeal dismisses COSA Case transferred to Circuit 9/30/09 10/16/09 prematurity because Court for Kent seeking judicial re- County’s view of action that was not effective until State Commission it acted on County amends the 12/1/09 Policy to make “clear” “appeal” is author- only ized from final approval State of local- ly proposal approved plan local amend Appeals Court of
12/18/09 (COA) issues writ of certiorari in COA moves
12/30/09 case as moot to dismiss Pol- in view of amended icy ruling on COA defers
1/11/10 pend- motion to dismiss argument ing oral Court, on State Com- Circuit
3/8/10 motion, mission’s dismisses petition as not authorized action was because State quasi-legislative; no to COSA taken argument in Court Oral 9/8/10 during Appeals, no mention was which (State by parties made Commission did not participate) of the exis- disposition tence or judicial review ac- tion from the State ac- tion
ANALYSIS Statutory Right to Seek Judicial I. Is There and, So, If from in This Case Review Action? Governmental What *16 in a circuit judicial proceeding review A for petition enactment, by legislative a specially court must be authorized v. Dvorak or a statute.18 See it a local law State public be Comm’n, 446, 450, 929 400 Md. County Ethics Anne Arundel (2007) (“[A]n of the relevant 185, examination A.2d 187-88 of enactments legislative and the provisions Code Maryland to determine body necessary is subject governmental the local everyone by who has left treated at all times and This case has been 18. with judicial proceeding in accordance fingerprints it as a review on 7, Maryland of Chapter Rules gathered Title 200 rules under the ("Judicial Agency Review of Administrative Procedure Practice and Decisions”).
711 case, judicial of or whether, right there is a given in a body.”); final decision of an administrative from the review Marshall, 243, 273, 884 A.2d Harvey v. prop- administrative action
(2005) (“[I]n agency’s order for an court) review, (or judicial any this erly to be before Court to seek grant right a of legislative there ... must be review.”). no the State Critical judicial provision There is review judicial authorizing Area scheme Program regulatory county to amend a either the local or State decisions of Thus, case, the in the present Area or plan program. Critical such supply source only legislative purporting possible Policy, seemingly Kent County is the special authorization County resolution of the Commissioners initially by adopted on 1 December by and amended resolution on 9 March 2009. (or the equiv that the constitutes
Assuming Policy of) grant sufficient to alent a local law or ordinance public action,19 we must determine for a authority assume, noted, point As 19. This is a that we but do not hold as such. granted authority must be for initiation of a review action law, (ordinance) specially by typically by public law or State local incorporated in the County’s Critical Area Plan is statute. While Kent Ordinance, part clear where the Code as of its Land it is less fits, all, regarding Policy hierarchy law if at within the of the local parties’ Area Plan. All that we know from the Kent Critical that, briefs, seemingly by appendices, and the record extract is resolu- (and part whether its terms became tion without reference therein to Code), adopted the in the the Board the Land Ordinance Kent best, 2009. At Policy in March 1999 and amended it in December We Policy appears of a stand-alone "resolution.” to take form (at Policy portions least the couch as "at best” because the initial this any permutation of the word provided parties) does not use to us 1 December We this with the "resolution" to describe itself. contrast Policy which was framed as a "resolution” amendment to the throughout. descriptor "resolved” contained the "resolution,” Assuming Policy question remains whether is a (for may grant right judicial review of the assumed a "resolution” government or ad- purposes) quasi-judicial actions of a local present is, an adminis- supra, "in order for agency. That as noted ministrative (or court) any agency’s properly to be before this Court trative action review, right legislative grant ... be a there must Marshall, Harvey Md. judicial review." v. seek added). (2005) (emphasis *17 712
from what governmental action —local or State —does the Poli cy grant the right judicial to seek simply, review. Put courts generally only will review a “final” agency.20 decision of an generally See Rochvarg, supra § 4.5, at An 110. action is considered “final” when it “dispose[s] of the case by deciding all question[s] of law and fact and further nothing leave[s] the administrative body to decide.” Willis v. Montgomery County, 523, 534, 415 448, Md. see Arroyo (2010); 3 A.3d 455 v. Bd. Howard County, 381 Md. 666 n. 851 of Educ. of (2004). A.2d 588 n. 16 In the context, administrative more specifically, we have stated that “not every administra tive order which rights liabilities, determines and or from which legal consequences flow, subject is final and thus final, Generally, review. to be an administrative order County The Kent Code is silent as to whether a "resolution” of the Board (1957, public of Commissioners Maryland is a local law. Code 25B, Repl.Vol.), § 2005 Art. "public 1 defines local law”—the phrase thought typically synonymous legislative as with a act aof government local tion, applicable "a law incorporation, organiza- to the —as government or county of a code county's and contained in the code added). Further, 25B, (Emphasis ----” “public § Art. l’s definition of specifically local law” county government excludes "resolutions of the XI-F, public enacted under local § laws." See also Md. Const, art. 1. Our search of the Kent Policy Code did not reveal that the contained in the adding Code. Absent these "resolutions” ex- (which
pressly existing their terms to they some or new local law do not apparently), legal what is the effect of the resolutions? It is best not to question decide presented this until parties with a case in which the event, argue point fully. brief any this In a finite answer need not be reached here afflicting "pa- because another mortal illness tient.” finality Intertwined with the doctrine of is the doctrine of exhaustion 20. of administrative fairly remedies. It be litigant said that when a remedies, fails to exhaust his or her administrative he or she seeks agency review of an Arroyo action that is not “final.” See Bd. v. 646, 658, County, Howard 851 A.2d of Educ. of ("The requires issue ... point during raised us to ... address at what decisions, potential this chain of administrative reviews and appeals can there be said finality, to exist an administrative i.e. an remedies.”); ‘exhaustion’ of administrative Md. Comm’n on Human Commo'ns., Inc., 493, 528, Downey Relations v. Md.App. (1996) ("The ‘finality’requirements ‘exhaustion’ and both share goal preventing potentially the common unnecessary premature disruption by agencies.”). the courts of the activities of administrative *18 to do.” Holi- agency further for the nothing must also leave Comm’n, Human Relations County v. day Spas Montgomery (1989) (internal 390, 396, 1197, quota- 1200 315 Md. 554 A.2d omitted). Where, however, any remaining admin- tion marks “ministerial,” or are deemed procedures processes istrative immediately. is reviewable agency the initial determination See, Island, LLC, 410 Md. v. K. Hovnanian at Kent e.g., Foley 128, 159, 222, (2009); v. Prince A.2d 241 Bowie City 978 of (2004).21 413, 976, A.2d George’s County, 384 Md. of the present these to the facts Applying principles Policy case is a rather exercise. the as straightforward Under it existed as of 9 March 1999 and as amended on December most, Petitioners, it clear that at had a effectively seems judicial facial of the final right only approval seek times, because, by action the Commission.22 This is so at all Although by parties comparable 21. we have not been directed the to a Plan, process County in the Kent Critical Area some Eastern Shore appear plans counties to treat as non-final their even the Commis- amendment, approval growth sion’s action on the local allocation approval appended where the Commission modifies the conditions of government provision the local to its action. This sort of has implications finality plan application for the of action amendment on a review, purposes appropriate. for if review is Queen example, County appears approval For Anne’s to treat its local petitions purely "conceptual,” decisions on allocation as unless County’s conceptual approval. and until the Commission acts on the Island, LLC, Foley See v. K. at 133-34 n. Hovnanian Kent Queen (2009); § 225 n. 3 Anne's Code 14:1- 74(D) ("At regularly meeting their scheduled the Commissioners conceptually proposed evaluate the amendment ... and either shall Queen Moreover, amendment.”). approve disapprove proposed or the that, County’s Program contemplates the Anne’s Critical Area once County's conceptual approval, finality Commission acts on the depends County revisiting petition if that action on the to determine agrees petition approval it with the Commission's action before Queen 14:1-74(F). § Giv- becomes effective. See Anne’s Code County’s conceptual ap- potential en differences between the conditions) subsequent proval (possibly with and the Commission's conditions), (with approach possibly an seems action different such prudent locality’s vantage. from the reason, grant properly Assuming Policy, whatever could not 22. growth allocation right the local action on a review from recourse to the request, amendment Petitioners were not without the Policy stated expressly approval that no local action was effective until the Commission gave approval (putting its aside the potential need to reconcile any differences between the case). local and approvals, State such as exist in the present Further, override ultimately Coun- ty’s effect, decision to approve growth allocation In request. action may replace Commission’s or at supercede, subsume, actions, least the local action where both at their core, said, then, an represent approval. It cannot be there is further for “nothing [here, the administrative body to decide” or that the Commission] Commission’s action on the growth request is merely “ministerial.” Accord- *19 ingly, County’s approval of the growth request action, and, was not a final thus, and “appealable” the Court of Special Appeals was correct to dismiss Petitioners’ appeal, although the intermediate appellate gone court should have (on further and vacated the judgment Circuit Court’s County’s merits of the approval) and remanded the matter to the Circuit Court with judi- directions to dismiss Petitioners’ action.23,24 cialreview declaratory injunctive courts. Actions for and relief have been enter- challenges
tained as the modalities for
of the same or similar actions.
See,
128,
222;
e.g., Foley, Md.
County
410
at
978 A.2d at
v.
Talbot
Town
480,
(2007);
Oxford, Md.App.
177
the Present
There have been rare occasions in which we have ordered
stay
of
proceedings
Circuit Court
to await
future
possible
remedies,
exhaustion of available administrative
see
Rec
Md.
Assocs.,
lamation
Inc. v.
County, 382 Md.
Harford
(2004); however,
A.2d 351
we most often have dismissed such
(1997) ("Legislative
quasi-legislative
legislative
or
decisions of local
are,
course,
agencies
bodies or administrative
subject
ordinary
of
not
to
review; instead,
they
subject
very
are
limited review the
courts.”).
action,
why
That is
the Petitioners'
initiated
(on
after the
purported
approve
a different conditional
basis)
County’s approval
Drayton
application,
Manor’s
was
supra
p.
dismissed. See
at
judgment
18 A.3d at
That
24-25.
was
appealed.
not
Foley,
aggrieved
In
parties
filed in the
complaint
Circuit Court a
declaratory
injunctive
relief from the
Commissioner’s
action,
legislative
final
which action
resolving
was taken after
differ-
County’s conceptual
ences between the
approval
ap-
and the State’s
136-37,
proval. Foley, 410 Md. at
litigation
407 Md.
966 A.2d
431
35, Inc.,
Police,
369
County Lodge
Montgomery
nal Order of
(2002);
476, 478,
v.
Josephson
City
791
Md.
800 A.2d
667, 669,
(1998); Ques
728 A.2d
Annapolis, 353 Md.
Comm’n, 311 Md.
enberry Washington
Sanitary
v.
Suburban
(1988).
417, 426,
481, 485
an
Policy grants
“appeal” (petition
that the
Assuming
review)
approval, arguably
for
from the Commission’s
to
single statutory
proceeding
Petitioners had but a
avenue of
pursue:
timely-filed petition
following
a
for
pursued
remedy by
action.25 Petitioners
such a
Commission’s
judicial review in the Circuit Court for
filing
petition
a
ultimately
which was transferred
to the
County,
Anne Arundel
agreed
for Kent
The Circuit Court
County.
Circuit Court
n withthe Commission’s
petition
conclusion that Petitioners’
because the
judicial review was not authorized
Commission’s
action
and dismissed the
process
quasi-legislative
was
has no record of
Special Appeals
case. Because
Court
an
taken
Petitioners
from this dismissal —a
appeal being
fact of which we take
notice—Petitioners abandoned
case,
arguments
question
ment with
await a future
where the
this
must
fully developed by parties.
are
distinguished
Maryland
25. This case is
from
Reclamation Associates v.
("MRA III").
County,
In
382 Md.
Petitioners’ predicament may be likened to that of Chrys
Wilson, in
Wilson,
Public Service Commission Md. v.
of
(2005).
Md.
Wilson,
at 857.
This Court found that Wilson’s failure to
pursue
timely
(within
fashion
days
being notified of the
firing)
second
the statutorily-prescribed
remedy
administrative
for challeng-
ing her second termination barred further litigation
any
(be
her
constitutional,
law)
claims
they
statutory,
common
Wilson,
under exhaustion of remedies principles.
718
review
proceeding
of their
Court’s dismissal
Circuit
action,
barred
“final”
would be
from the
taken
Commission’s
present
in the
that “final” action
similarly
challenging
from
(and
argued by
other reasons
it remanded
for
case were
here).
To allow Petitioners
in its amicus brief
would be to
in the Circuit Court
proceedings
resuscitate these
the proverbial
additional bite at
them an unwarranted
give
approval subsumed
where the Commission’s
apple, especially
facial
Petitioners exhausted whatever
County’s approval.
judicial review of the State’s
they may have had to seek
right
review action—the
filed the second
they
action when
then failed to seek
decision—and
review of
Commission’s
Special Appeals
in the
Circuit
review
Court
appellate
dismissal of that action.
Court’s
Petitioners
to trod was not as clear for
Although
path
agency
decisional
litigants
here as for
other administrative
that it
contexts,
by legal
concealed
thickets
way
a
was not so
discerned, i.e., see
note 22. Anderson
supra
not be
could
Rockville,
Md.
House,
Mayor
City
v.
&
Council
LLC
context,
(2008),
in a
illus-
A.2d 116
albeit
different
may
of how to
analogous
proceed
how an
confoundment
trates
House,
ag-
a
owner
property
In Anderson
approached.
be
of Rockville’s
City
text amendment to
grieved by zoning
accompanying
zone and an
creating
ordinance
a new
zoning
zone,
of its
to the new
rezoning
property
comprehensive
petition
its bet
first
hedged
filing
dismiss)
(which
later a “protective”
moved to
and
City
Injunctive Relief.
Declaratory Judgment
complaint
House,
702-01,
at
JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; REMANDED THAT COURT WITH CASE TO APPEAL, THE DIRECTIONS TO DISMISS VACATE THE JUDGMENT OF THE KENT CIRCUIT COURT FOR COUNTY, AND REMAND THE THE CASE TO CIRCUIT COURT WITH DIRECTIONS THAT IT PETI- DISMISS REVIEW; TIONERS’ PETITION FOR JUDICIAL COSTS *23 BE PAID BY TO PETITIONERS. Dissenting Opinion argues
27. If I understand the that the result for in case, prevail, pyrrhic victory this were its views to the ultimate would First, given any ability obtain. it is a that Petitioners forfeited further challenge directly only arguably governmental to case, the final action in this approval the State Critical Area Commission’s of an amendment County to the Kent Critical Area Plan the to reflect Drayton development proposal. notwithstanding, Manor’s That fact the Dissent would return to the Circuit Court Petitioners’ instant decision, where, judicial regarding County review action the Board's affirmance, merits, having prior had its on the of the Board's approval by prematurity, vacated the Dissent for the Circuit Court merits, effectively reconsidering, would be tasked with on the the course, County’s approval. “stay” Of argues which the Dissent should have been present entered before the Circuit Court decided the litigation (although stay requested earlier no was Petitioners Court) legal arguments Circuit would have no effect on the record or Court, point before the Circuit which remain static as of the in time Moreover, immediately prior to the vacated affirmance on the merits. predicate perceived "prematurity” of the Dissent's of the Circuit affirmance, prior premised Court’s as it must be on the concurrent or continuing ability pursue legal challenge of Petitioners to to the State action, appeal Commission’s ceased to exist when Petitioners failed to Special Appeals disposition to the Court of the Circuit their Court’s regarding review action the State decision. Commission’s So, best, at what the Dissent would have done here is have the Circuit merits, ruling Court reconsider its on the based on the same record and legal arguments previously same on which it affirmed breast, hope springs Board’s decision. Because eternal in the I human suppose beyond pale hope epiphany it is not for an Petitioners part judge, at all on Circuit Court but the odds do not seem circumstances, promising. Perhaps, princi- under a different set of ples Dissenting opinion might applicable marshaled in the have been difference; here, appears they and made a it do not. only. in the Judge joins judgment BATTAGLIA BELL, C.J., GREENE, ADKINS, JJ., and Dissent. C.J., ADKINS, J., BELL, dissenting, in which GREENE, J., join. majority opinion
I dissent because I believe the respectfully unfair, achieves a new low in the unfortunate strain of point has entered “gotcha” jurisprudence finality which our I agree administrative exhaustion case law. with the majority that the Circuit Court should not have the County’s reviewed decision until after the was proceeding State Commission however, I that we should dismiss this completed. disagree, The the Petitioners should appeal. majority concludes that time, later point have filed a review action at a procedures in the local barely acknowledging requirement thirty days that an must be taken “within after Kent Allocation [County’s] See Growth decisionf.]” 1999). would, instead, I Policy (adopted March Because Court, remand this case to the I dissent. Circuit “Stay” of a review action as
an alternative to dismissal. of a filed appropriate disposition prematurely action at least in on the that action is depends, part, reason *24 premature. requirements finality administrative First, exhaustion serve two these re- important purposes. non-final requests judicial screen out review of quirements Second, “or- serve as an agency requirements decisions. function,” agency review of certain “final” dering delaying have been ex- processes decisions until other administrative judicial review of a decision is Although hausted. immediate categories, distinguishing in both of these between prohibited important deciding dispose the two is when how to i.e., or review whether to dismiss the case premature action— grant stay. prelimi- administrative decision is a challenged
When the decision, In these or dismissal is warranted. nary non-final decisions, incomplete challenged something there is itself, in a later be or subsumed superseded decision which will that a Any complaints party final decision. looming, agency in a chal- preliminary has with the decision be raised decision, if survive. The lenge agency they to the final then will never be decision, subject judicial preliminary review, jurisdiction. and the court has no reason to retain on example, Maryland Comm’n. Human Relations
For
(“MCHR”)
Co.,
v. Baltimore
& Electric
Gas
296 Md.
(1983) (“BG
E”),
A.2d 205
Maryland
&
Commission on
BG & E’s
Human
Appeal
Relations’s
Board determined
refusal to hire the
of an
spouse
employee
discriminatory
was
status,
on the basis of marital
but remanded to a hearing
examiner to determine whether
the discrimination was moti-
by
justified
vated
“business
and thus
necessity,”
by Maryland
law. See id. at
In many agency review of an deci- premature only sion is because other administrative remedies *25 exist, and not because the decision is a or non- preliminary
722 final decision. When review of an decision is agency remedies, it delayed to allow for exhaustion of administrative considerations, jurisdic- a practical is for and not because of Hubbard, 774, 787, 625, tional defect. 305 Md. A.2d See 506 (1986) (Failure to exhaust a administrative review primary remedy ordinarily “does not result in a trial court’s being deprived jurisdiction^”); of fundamental Towson Univ. v. Conte, 941, 384 Md. 122 n. n. 4 862 A.2d J., (“Exhaustion (Eldridge, dissenting) of a adminis- required trative/judicial ‘jurisdiction- not a remedy ordinarily ‘jurisdictional requirement’ Maryland al’ matter or a under law.”).1 cases,
In these the “exhaustion” is a mere requirement which, ordering function like a traffic when the cop, decides different avenues of review proceed: [Wjhere the Assembly provided General has an administra- tive there remedy independent also exists an remedy, and no statute coordinates the two or specifies primary, which is we have construed the ordinarily perti- nent require remedy enactments to that the administrative be first invoked and followed. pragmatic flexibility
1. The
of the exhaustion rule is further demonstrat-
Capital
Crawford,
Planning
ed in Md.-Nat’l
Park &
Comm’n. v.
1, 17-18,
(1986),
representative
a case
of our
There,
procedural approach in an administrative
case.
an
exhaustion
employee Maryland-National Capital
Planning
at
Park and
aggrieved by personnel
was
id. at
at 1081—
decision. See
A.2d
and,
grievance
82. She initiated an administrative
while that was
pending,
George's County.
filed a lawsuit in the Circuit Court for Prince
jurisdiction
See id. The court
the matter while the
assumed
over
pending,
disposed
preliminary,
administrative action was
of some
evidentiary
process
matters in the case. After the administrative
was
completed,
regarding
the initial
the court held a trial on
merits
Although
decision. See id. at
723 Hubbard, 774, 786, 625, Board Educ. v. 305 Md. 506 A.2d of (1986). 630-31 also Josephson City Annapolis, See v. of 667, 675-677, 690, (1998) (“[T]he Md. 728 A.2d 694-695 admin- istrative remedy is intended to be even where the primary” Legislature “specified] has not that the administrative reme- exclusive.”). dy primary or “agencies This first” rule promotes judicial efficiency and protects agen- exercise of cy expertise:
The decisions of an administrative are often of agency nature, discretionary and frequently require an expertise which the can agency bring to bear in sifting informa- presented tion it. The agency should be afforded the initial opportunity to exercise that discretion to apply Furthermore, that expertise. to permit interruption purposes intervention at various stages of the administrative process well undermine might very effi- ciency which the Legislature intended to achieve in the first instance. Lastly, courts be might upon called to decide issues which perhaps would never arise if the prescribed administrative remedies were followed.
Soley
Relations,
v. State Commission on Human
277 Md.
521, 526,
(1976).
Wilson,
356 A.2d
See also
286 Md.
(“[Wjhen
at
order.
circumstances like
where
Under
and an
remedy
independent
has both an administrative
action,
jurisdiction
agency’s
and the administrative
it is
for the trial court
primary,
appropriate
is deemed
time,
retain,
jurisdiction
over
period
for a reasonable
exhaus-
invocation and
independent judicial
pending
action
procedures.
tion of
administrative
Wittner,
602, 612-13,
552 A.2d
v.
314 Md.
McCullough
(1989).
Reclamation Assocs. v.
Maryland
See also
Harford
490-491,
574-575
County,
*27
(constitutional
zoning
to local
ordinance must await
challenge
actions); State v. Md.
zoning
of two administrative
completion
(2001) (“[T]he
BCA,
364 Md.
To be
the requirement
that a party exhaust all admin-
istrative remedies can develop into an absolute bar requiring
dismissal. This
occurs,
harsher
treatment
however, only
when a party
to take the steps required
our
by
exhaus-
fails
See,
tion principles.
e.g.,
Wilson,
Public Service Comm’n. v.
Wilson,
(2005).
potential
potential
alteration or
testimony,
sought
influence of
and
preliminary injunctive
exhausting
relief from the Circuit Court before
Crawford,
her administrative remedies.
file in the
court
pending
action[.]”
any
“choice” foreclosed
at 857. The
held that this
A.2d
Court
period
the relevant time
relief: because she “allowed
potential
§ 11—
directive under
following
statutory
to
without
expire
and
113[,]”
satisfy
requirement
failed to
the exhaustion
she
in the
was unable to “seek alternative redress
Circuit Court.”
Thus,
requirement
at 857.
the exhaustion
Id. at
rights
relief for
who sit on their
deny
parties
serves to
a
not
differently,
party may
opt
review. Put
administrative
out administrative review dead
by waiting
v.
Sys.
Thompson,
lines.
Ret. & Pension
See State
of Md.
(retiree’s
request
the Circuit Maryland.” reality Court of the that the Given State highly complete Commission is to its unlikely review within 30 days, Policy requires the a effectively pre-exhaustion exactly filing. potential This conflict is the procedural prob- lem which many has led courts to conclude that is stay a superior to a dismissal.
When our
requirement delays,
exhaustion
rather than extin-
guishes, judicial
decision,
of an
administrative
and that
deadline,
delay may
with a
the
filing
stay remedy
interfere
party
protect
right
allows
to
its
to
review of
case,
30-day
local decision.
In
with
appeals
this
deadline
looming,
losing
Petitioners were at risk of
their
to
right
should,
local
appeal of the
decision. We
of
instead
dismissing this appeal, vacate the Circuit Court’s premature
merits,
decision on the
and
remand to
court for further
BCA,
Md.
See
proceedings.
Md. at
Rather this approach, than follow common-sense the majori- ty dismisses abrogates the Petitioners’ to right challenge County’s majority justifies decision. The its (1) problematic dismissal with three assertions: that this case III, (2) is distinguishable from MRA that the Petitioners are in Public instead like Service Com- disappointed litigant Wilson, mission Md. v. (2005), Md. A.2d 849 that the Petitioners right by abandoned their to appeal failing appeal the Circuit Court’s dismissal its action for judicial review of the State decision.
The majority’s approach decision contradicts the adopted III, the Court in MRA Judge in which Harrell explained: bring litigant separate legal When a entitled to two relief in proceedings in an effort to obtain a particular matter, litigant when the institutes the first of those pro- court, case is in trial ceedings pending and the and when the trial unable court is to decide the merits of that case jurisdiction because of exhaustion primary principles or trial court ordi- proceeding, the second associated with reasonable for a proceeding the first narily stay should time. period Here, no one III, at 362. MRA at
See separate two bring are “entitled that Petitioners disagrees obtain relief’: in an effort to legal proceedings and an administrative decision review action of the “institute[d] The Petitioners at the level. challenge State in a trial pending and the case [was] first of those proceedings *31 court unable [was] that “the trial disagrees No one court[.]” jurisdic- case because of primary to decide the merits of that pro- with the second exhaustion associated principles tion or III, with MRA Petition- thus ceeding^]” aligns This case ers are candidates for a remand. perfect half-hearted to distin- only attempt
The makes a majority III, MRA guish stating: Maryland Reclamation distinguished
This case is from A.2d 351 County, Associates v. Harford (2004) (“MRA III ”)____The fact that MRA had two con- action, con- neither of which MRA was secutive courses of statutory period within a time limitations pursue strained to (unlike in the the Petitioners had days “appeal” the 30 to case), fashioning to this Court pivotal was present outcome in MRA III. 30-day appeal that the limitation majority
The thus concludes remedy “stay” case a from requires departure in this MRA III. I not more. disagree could Petitioners better window makes anything, 30-day
If In MRA in MRA III. than the party for remand candidates exhaustion; here, III, free to refile after was party from remand, time-prohibited are the Petitioners without majority’s This County decision. of the refiling any appeal stay main purposes one of the holding ignores thus (be it administra- deadlines remedy party facing allow a —to limitations) to right its protect to or statutes of tive deadlines to exhaus- prior action for by filing an tion. then majority concludes that predica- “the Petitioners’ Wilson,”
ment be likened to that of an Chrys administra- tive litigant whom this Court found had lost her right to further challenge an administrative decision. The similarities between the Petitioners and Ms. Wilson are scarce. To be sure, decision; both were aggrieved at an administrative Wilson, PSC, here, Ms. Wilson was fired County granted a growth allocation. Both required were to Wilson, pursue another administrative review: in the statute required an aggrieved employee to file an administrative here, appeal, and the Petitioners had contest the growth allocation in front of the State Commission.
But that is where the similarities cease. Ms. Wilson was statute, required, by to file an administrative grievance within days. so, She failed to do and instead chose to file a contrast, review action. In the Petitioners were re- statute, quired, by file review action within 30 days, which they Furthermore, did. while Ms. Wilson’s ad- ministrative remedy was never failure, exhausted due to her (the the Petitioners’ administrative remedy State Commission review) proceeded automatically duly and was completed. Wilson establishes that the administrative exhaustion require- *32 ment may judicial become a bar to review if not satisfied. But Wilson, here, unlike the required administrative proceeding Thus, completed. was justifications none of the for the dis- missal in Wilson here. apply
Finally, majority faults the Petitioners’ failure to appeal the Circuit Court’s dismissal judicial of its action for review of the State Commission decision: that the
Assuming Policy an grants “appeal” for (petition review) judicial from the Commission’s approval, arguably Petitioners had but a single statutory avenue of proceeding pursue: timely-filed judicial petition for review follow- ing Commission’s action. pursued Petitioners such a remedy by filing petition judicial for review in the Circuit for Anne County, Court Arundel which was transferred ultimately to the County. Circuit Court for Kent agreed Circuit Court with the Commission’s conclusion that Petitioners’ petition review was not authorized because the Commission’s process and action was quasi- legislative and dismissed the case. Because the Court of Special Appeals has no record of an appeal taken being by Petitioners from this dismissal—a fact of which we take judicial notice—Petitioners abandoned the only “right” to judicial review arguably afforded the Policy.
This conclusion is startling.
In the above passage, majority considers the “single statutory judicial review, avenue” of under the policy, to be a judicial review action following the State Commission’s deci- Yet, sion. breath, the same the majority that acknowledges it is unsettled whether such an action is permissible: “The Circuit Court with agreed the Commission’s conclusion that petition Petitioners’ review was not authorized because the Commission’s process and action was quasi-legis- added). lative.” (emphasis Thus, while denying the Petition- ers the avenue to go forward with their timely filed appeal from decision, the County it refrains from holding that Peti- tioner had any right to appeal from the State Commission. Moreover, (1) the majority fails to address whether the Peti- tioners could raise unique issues to the County decision its challenge (2) to the decision, State whether the Petition- ers could have re-filed a separate challenge to the County decision, within days decision, the State even though this current appeal Thus, was pending. the majority decision leaves the law regarding review of Growth Allocation requests in a muddled state.
At time, the same the majority applies harshest stan- dard to expecting they be prescient. Under Petitioners — standard, this harsh Petitioners must have been able to cor- rectly predict the following Court, uncertainties: that this MRA III and other departing from cases, would not honor their effort timely to appeal from the County decision as called *33 (2) for under the Kent County Growth Allocation Policy, that they right had to review of the State Critical Area (3) decision, that they should raise all of the issues pertaining to the County decision the possible appeal court, and that to the circuit
from State Commission to from the Circuit obligation appeal and they right had raising questions Appeals, to the of Special Court Court this, from the Growth appeal to earlier filed unique decision, this was though pending. Allocation even bemay “applicable concerns majority my admits cases, that it in future but concludes a difference” [make] case, in this because the to and remand is useless vacate as the Perhaps, reached the merits. already Circuit Court has the same would reach majority suggests, Circuit Court victory” rather “pyrrhic on remand. I would risk this result day their court. unfairly than the Petitioners of deprive trenches, lawyers in the who respect should the efforts We conflicting regu- meaning complicated must discern the and reasonable conduct lations. The of fairness principles Otherwise, harsh unnecessarily by adopting demand this. the “got- we reinforce interpretations, rules and procedural our upon jurisprudence. that has descended approach cha” diligent steps preserve Petitioners took reasonable and County’s have a court review the decision. right their premature I would vacate the Circuit Court’s Accordingly, proceedings. that court for further decision and remand to have authorized Judge BELL and GREENE Judge Chief dissenting this they join opinion. me to state that