REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2887
September Term, 2006
_______________________________________
VICTORIA EVANS, et al.
v.
COUNTY COUNCIL OF PRINCE GEORGE’S,
SITTING AS THE DISTRICT COUNCIL, et al.
Salmon,
Meredith,
Rodowsky, Lawrence F. (Retired, specially
assigned),
JJ.
Opinion by Meredith, J.
Filed: April 30, 2009
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.
Facts and Procedural History
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.
1
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.
After CB-90 was enacted, the citizens did not seek judicial review pursuant to
Maryland Code, Article 28, § 8-106(e), which provides:
Appeals authorized. – 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 or 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
2
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 dismiss. The citizens timely filed
this appeal.2
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, 388 Md. 1, 11-12 & n.10 (2005), the Court of Appeals noted that Maryland Rule
2-322 converts a motion to dismiss into a motion for summary judgment only if the motion
is based upon failure to state a claim. When a motion to dismiss is based upon lack of
jurisdiction, the court can consider affidavits or hold an evidentiary hearing on the motion
to dismiss without converting the motion into a motion for summary judgment. As the Court
of Appeals stated in Md.-Nat’l Capital Park & Planning Comm’n v. Crawford, 307 Md. 1,
2
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).
3
13-14 n.4 (1986): “[T]he requirement that administrative remedies must be exhausted is not
ordinarily a limitation upon the subject matter jurisdiction of the trial court. But, because of
the public policy underlying this requirement, it is for some purposes treated like a
jurisdictional issue.” Because exhaustion of administrative remedies is quasi-jurisdictional,
we will treat the circuit court’s decision as one granting a motion to dismiss (rather than
summary judgment), even though the court may have considered material outside the
complaint.
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., 388 Md. 500, 509
(2005) (citation omitted). In conducting that review, “we must assume the truth of the
well-pleaded factual allegations of the complaint, including the reasonable inferences that
may be drawn from those allegations.” Adamson v. Corr. Med. Servs., Inc., 359 Md. 238,
246 (2000) (citations omitted).
B. Zoning in Prince George’s County
The Regional District Act, Md. Code (1957, 1997 Repl. Vol.), 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., 350
4
Md. 339, 342 (1998) (citations omitted). The Prince George's County Council and the
Montgomery County Council have been designated by the General Assembly as the district
councils for the Maryland-Washington Regional District. Art. 28, § 8-101(a). Section
8-101(a) provides that these two county councils are “each individually designated, for the
purposes of this article, as the district council for that portion of the regional district lying
within each county, respectively.” The District Council is granted powers by Art. 28, §
8-101. A portion of that statute which is particularly relevant to this action is § 8-101(b)(2),
which provides:
[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, 350 Md. at 342. The
Prince George’s County District Council exercised its authority pursuant to § 8-101(b)(2) to
enact CB-90, the text amendment that the citizens sought to challenge in this judicial action.
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, 398 Md. 632
(2007).
C. Exhaustion of Administrative Remedies Required
5
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., 349 Md. 45, 60-61 (1998), that there are three categories of
administrative remedies: 1) “exclusive,” meaning that only an administrative, and not a
6
judicial, remedy is available; 2) “primary but not exclusive,” meaning that “a claimant must
invoke and exhaust the administrative remedy, and [then] seek judicial review”; and 3) “fully
concurrent,” meaning that “the plaintiff at his or her option may pursue the judicial remedy
without the necessity of invoking and exhausting the administrative remedy.” “Which one
of these three scenarios is applicable to a particular administrative remedy is ordinarily a
question of legislative intent.” Id. at 61.
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,
369 Md. 476, 487 (2002).
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:
7
“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 Appeals — see Art. 28, § 8-110(a)(1) — 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 process is authorized by Art. 28, § 8-106(e), quoted above. Review of
the circuit court’s decision by this Court is expressly authorized by Art. 28, § 8-106(j).
Ray’s Used Cars, supra, 398 Md. 632, is a case that also considered whether a party
8
claiming that a Prince George’s County zoning text amendment is invalid may proceed
directly to court to seek declaratory and injunctive relief. Ray’s Used Cars bears many
similarities to the citizens’ case. In both cases the Prince George’s County District Council
amended the zoning ordinance by adopting a text amendment. No effort was made in either
case to seek immediate judicial review of the Council’s action pursuant Art. 28, § 8-106(e).
In both cases, the parties who were unhappy with the zoning text amendment waited a
substantial period of time after the effective date of the amending bill before seeking any
judicial relief. When the respective suits were filed, the plaintiffs in each case attacked the
validity of the zoning text amendment and sought declaratory and injunctive relief. In both
cases, the County moved to dismiss the complaints, arguing, as its primary basis, that the
plaintiffs had yet to exhaust their administrative remedies. In each case, the County argued
that the plaintiffs would have additional opportunities, not yet foreclosed, to raise their
challenges to the legality of the zoning text amendment.
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.” 398 Md. at 642. In other words, the car dealers were in a position
to immediately pursue an administrative remedy. But in the present case, the plaintiffs are
9
not the owners of the property directly covered by the zoning text amendment, and, as a
consequence, have no immediately available means to seek an administrative ruling with
respect to their complaint that the zoning text amendment was not legally adopted.
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, 398 Md. at 645, “while there is no presumption
that an administrative remedy is intended to be exclusive when a recognized alternative
judicial remedy exists, there is a strong ‘presumption that the administrative remedy is
intended to be primary, and . . . a claimant cannot maintain the alternative judicial action
without first invoking and exhausting the administrative remedy.’ Zappone, 349 Md. at 63,
706 A.2d at 1069.” The Court of Appeals held that the car dealers’ suit seeking declaratory
and injunctive relief should have been dismissed because “fully adequate administrative
adjudicatory remedies could have been pursued by the plaintiff used car dealers, and, as
stipulated by Prince George’s County, can still be pursued by the plaintiffs.” Id. at 647.
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 to them “fully
adequate administrative adjudicatory remedies.” Id. The Court of Appeals “has consistently
held over the past fifty years that the question of a zoning ordinance’s validity, as applied to
the property involved, is an appropriate issue for an administrative zoning agency.” Holiday
10
Point Marina Partners v. Anne Arundel County, 349 Md. 190, 199 (1998). Consequently, we
find the following statement that the Court of Appeals made in Ray’s Used Cars, 398 Md.
at 647-50, applicable to citizens’ complaint:
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. County Commissioners, 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, 402 Md.
689, 705 (2008) (local jurisdiction’s provision for administrative remedy and judicial review
“would be pre-eminent to any remedy a plaintiff might seek under the Declaratory Judgment
Act”). For that reason, we affirm the circuit court’s dismissal of the citizens’ complaint.
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
11
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. Although the Court of
Appeals held in County Council v. Carl M. Freeman Associates, Inc., 281 Md. 70, 73-76
(1977), that the plaintiffs in that case could, pursuant to § 8-106(e), obtain judicial review of
a rezoning effectuated by passage of a resolution called a “Sectional Map Amendment,” the
Council maintains that a zoning text amendment is a distinctly legislative action that is not
within the purview of § 8-106(e). We are unaware, however, of any reported appellate
decision that has adopted the distinction the Council urges.
Several recent cases have analyzed the phrase “zoning action” as that language is used
in Maryland Code (1957, 2007 Repl. Vol.), Article 66B, § 4.08(a) and § 2.09(a) relative to
judicial review of zoning matters in other jurisdictions in the State. See, e.g., Appleton v.
Cecil County, 404 Md. 92, 101 (2008); MBC Realty, LLC v. Mayor and City Council, 403
Md. 216, 236 (2008); Anderson House, supra, 402 Md. at 710; Maryland Overpak Corp. v.
Mayor and City Council, 395 Md. 16, 21 (2006); Bethel World Outreach Church v.
Montgomery County, ___ Md. App. ___ , No. 3082, September Term 2007, slip op. at 18
(filed March 9, 2009). Because the phrase “zoning action” does not appear within Art. 28,
§ 8-106, however, these cases are not controlling with respect to the statutory construction
of the pertinent statute governing review of “final decisions” of the Prince George’s County
District Council. The General Assembly has provided in Art. 66B, § 7.03(c)(5), that the
12
Regional District Act controls in the event of any conflict with the State’s generally
applicable zoning statutes.
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, 241 Md. 303, 308 (1966), none is applicable to permit
the citizens’ circuit court action to proceed. The Court of Appeals laid out five recognized
exceptions to the exhaustion rule in Prince George’s County v. Blumberg, 288 Md. 275,
284-85 (1980), as follows:
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
13
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., 286 Md. 303, 308 (1979). See also
Richmark Realty v. Whittlif, 226 Md. 273, 281 (1961) (“Though it has been held that the
constitutionality of a rezoning ordinance may be attacked in statutory zoning review
proceedings, the jurisdiction of equity is not ousted where, as in the instant case, the primary
attack is on the validity of the challenged ordinance.” (citations omitted)). But the Court of
Appeals addressed and rejected a similar claim of exception to the exhaustion requirement
in Ray’s Used Cars, supra, 398 Md. at 650. We see no reason to reach a different result in
this case.
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
14
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. The Court further noted that the “constitutional exception” had been
“significantly limited” by more recent cases. Id. at 652 (citing Montgomery County v.
Broadcast Equities, Inc., 360 Md. 438, 455 (2000)).
In Ray’s Used Cars, the Court of Appeals noted that one limitation upon the
exception, pointed out in Insurance Commissioner v. Equitable, 339 Md. 596, 623 (1995),
comes into play if the challenge to the statute requires an evidentiary hearing and findings
of fact. The Court explained why that limitation upon the constitutional exception was one
reason the car dealers could not bypass the exhaustion of administrative remedies in Ray’s
Used Cars, 398 Md. at 655-56 (footnote omitted), stating:
[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.
15
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 alleged that the Council enacted this site-specific zoning without adhering to
approved comprehensive area design plans. The complaint alleged that the Council’s
adoption of the text amendment bypassed the normal procedures for amending
comprehensive development plans, and was not the product of careful study and
consideration. The citizens also alleged that the “questionable enforceability of the text
amendment will cause the parties uncertainty and insecurity as to the future proceedings on
those applications” for the special exception created by CB-90.
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.
16
COSTS TO
APPELLANTS.
17
BE
PAID
BY
