MD Reclamation v. Harford County

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Re: Ma ryland Reclam ation Asso ciates, Inc. v. H arford C ounty, Marylan d, et al. No. 105, September Term, 2003 ADMINISTRATIVE LAW EXHAU STION OF ADMINISTRATIVE R EMEDIES. Upon Petitioner s request for interpretation of a provision of the local zoning ordinance, the Harford County Zoning Administrator ( the Zoning Administrator ) ruled that a 1991 provision of the zoning ordinance applied to a proposed rubble landfill owned by Petitioner, Maryland Reclamation Associates, Inc. The Zoning Administrator also denied Petitioner s request for a zoning certificate. The result of these rulings m eant that Petitioner, in order to establish the desired rubble fill in accordance with the ordinance s spatial requirements, would need to apply to the Board of Appeals and obtain variances from those requirements. The contours of the available processes were exp lained to Pe titioner by this Court in earlier litigation . See Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 677 A.2d 567 (1996). Rather than seek varian ces, Petitioner sought im mediate judicial review in the Circuit C ourt for H arford C ounty challen ging the leg ality of the Zoning Administrator s decisions on various grounds, in cluding the ories of ve sted rights, esto ppel, and substantive due process violations. This Court renews its prior direction that Petitioner should have sought variances, before its attempt to consummate judicial review of the adverse administrative decision interpreting the zoning ordinance s applicability. The exhaustion doctrine enforces the notion that an administrative agency should have the opportunity to exercise its expertise and discretion first to resolve a case befo re the judicial branch review s the matter. Circuit Co urt for Harfo rd Coun ty Case # 12-C-02-001810 IN THE COURT OF APPEALS OF MARYLAND No. 105 September Term, 2003 MARYLAND RECLAMATION ASSOCIATES, INC. v. HAR FORD COU NTY , MAR YLA ND, et al. Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridg e, John C. (retire d, specially assigned), JJ. Opinion by Harrell, J. Filed: July 30, 2004 The present case is the latest in a sequence of litigation between the parties beginning in 1990. As a consequence of the immediately preceding decision in that sequence, Maryland Reclamation Associates , Inc. v. Harfo rd Coun ty, 342 Md. 476, 677 A.2d 567 (1996), Appellant, Maryland Reclamation Associates, Inc. ( MRA ), asked the Harford County Zoning Administrator ( the Zoning Administrator ) for certain interpretations of the Harford County zoning ordinance, and particularly a 1991 amendment, as it may apply to a proposed rubble landfill o n prop erty own ed by M RA. MRA also sought a zoning certificate. Following a lengthy gesta tion period, th e Zoning Admin istrator, in a 22 February 1999 letter, essentially ruled that the 1991 amendment applied to MRA s proposal and also denied the zoning certificate application. The result of the Zoning Administrator s decisions was that MRA, as far as Harford County was concerned, could not establish its proposed rubble landfill on its prope rty unless it obtained variances from the requirements of the zoning ordinance, as amended in 1991. MRA filed an administrative appeal fro m the Zo ning Ad ministrator s ru lings to the Harford County Board of Appeals ( the B oard of App eals ).1 On 11 June 2002, the Board of Appeals affirmed the decisions of the Zoning Administrator. Ten days later, MRA sought judicial review of the B oard of App eals s decision in the C ircuit Co urt for H arfo rd Coun ty. 1 The County Council of Harford County sits also as the Harford County Board of Appeals. The different names given the same group of individuals discriminate between the exercise of different governmental functions. The Board o f Appe als makes discrete administrative decisions in contested cases, and the County Council performs the general legislative functions of the legislative branch of the Harford County charter form of home rule govern ment. The Circuit Court affirmed the decision of the Board of Appeals on 22 October 2003. MRA appealed to the Court of Special Appeals. We, on our initiative and before the appeal was briefed or argued in the Court of Special Appeals, issued a writ of c ertiorari princip ally to determine whether the Circu it Court, in view of the ap pellate history of the underlying matter, proper ly affirme d the B oard of Appe als. Maryland Reclamation v. Harford County , 379 Md. 98 , 839 A.2d 741 (2004). 2 2 In our writ of certiorari, we directed certain issues to be briefed and argued: ORDERED that in addition to the issues listed in the Cou rt of Special Appea ls Pre-Hearing Information Reports, the Court requests that the parties, in their briefs and oral arguments, address the following issues: 1. Whether Maryland Reclamation Associates, Inc. s action in the Circuit Court, insofar as it was based on Maryland law, including Maryland constitutional law, should have been dismissed for failure to exhaust administrative remedies; 2. Whether Maryland Reclamation Associates, Inc. s action in the Circuit Court, insofar as it was based on federal law and the federal constitution, was ripe for judicial determination. In conne ction w ith these issues, see Maryland Reclamation v. Harford County, 342 Md. 476, 490-506, 677 A.2d 567, 574-82 (19 96) [MRA II] . . . . See Rule 8-131(b); Robinson v. Bunch, 367 Md. 432 , 439-41, 788 A .2d 636, 641-42 (2 002). As to the ripeness question, we included it because, in MRA II, MRA had advanced argumen ts based on the Fourteenth Amendment to the United States Constitution, Article 24 of the Maryland Declaration of Rig hts, and Marylan d nonc onstitutio nal law . With respect to its federal constitutional arguments, Maryland Reclamation invoked the Civil Rights Act of 1871, 42 U.S.C. § 1983. As to those arguments, we pointed out that a plaintiff is entitled to maintain an ac tion under 4 2 U.S.C . § 1983 w ithout havin g exhaus ted admin istrative remedies. Nonetheless, we held that, under the principles set forth in Williamson Planning Comm n v. Hamilton Bank, 473 U.S . 172, 105 S .Ct. 3108, 87 L.Ed.2d 126 (1985), the federal (contin ued...) 2 MRA presents the following nine questions for our consideration: I. Has MRA exhausted its administrative remedies such that its claims of error based upon State law including preemption, estoppel, vested rights, non-conforming use and constitutional violations can be heard by this Court? II. Are the federal issues raised by MRA as grounds for its assertion that Bill 91-10 can not be applied to MRA s proposed rubble landfill ripe for review by this Court? III. Is Harford County preempted by State Law including the comprehensive regulatory scheme set forth in the Environmental Article of the Maryland Annotated Code and regulations adopted in support thereof, from applying Bill 91-10 to MRA s property on Gravel Hill Road g iven that B ill 91-10 w as enacted and purp ortedly applied to MRA s property after Harfo rd Coun ty zoning and Solid W aste Management Plan approvals had be en given to M RA s rubble land fill application during Phase 1 of the State rubble landfill permit application process? IV. Is Harford County prevented by the United States and/or Maryland Constitutions and/or the Maryland Declaration of Rights from applying Bill 91-10 to M RA s p roposed ru bble landf ill on its property given that MRA had a vested right in its County zon ing appro val to proce ed with Phases 2 and 3 the MDE s rubble landfill permitting process without 2 (...continued) constitutional arguments were not ripe for judicial decision. MRA II, 342 Md.505, 677 A.2d 5 82. In the present litigation, MRA, in its petition filed in the Circu it Court, did not include a count und er, or file a separate complaint under, or otherwise invoke 42 U.S.C. § 1983. The defenda nts in the actio n were H arford C ounty and ind ividuals opposing the construction and operation of the rubble landfill. Because 42 U.S.C. § 1983 is not the exc lusive route for obtaining resolution of federal constitutional issues (see, e.g., Montgomery County v. Broadcast Equities, 360 M d. 438, 451 and n.8, 758 A .2d 995, 10 02 and n .8 (2000) (it is appropriate for federal and state constitutional issues to be ra ised and d ecided in S tate administrate and judicial review proceedings), we, from an abundance of caution in light of the prior litigation history of this disp ute, included the ripeness question in o ur writ. 3 Harford County being permitted to rescind its prior zoning approval and thereby veto the MDE s permit application process? V. Is Harford Co unty estopped from ap plying the provisions of Ha rford County Bill 91-10 to MRA s proposed operation of a rubble landfill on its property pursu ant to its State-issued permit given that MRA purchased its property in justifiable reliance on Harfo rd County s zoning and Solid Waste Managem ent Plan approvals during Phase 1 of the State s rubble landf ill permitting pro cess, Harf ord Cou nty arbitrarily and unreasonably applied Bill 91-10 to MRA s proposed rubble landfill after MDE s Phase 1 permit review was complete, and MRA suffered substantial damages by being prevented from using its property for a rubble landf ill by Harford C ounty s applica tion of Bill 91-1 0 to M RA s property? VI. Will MRA s operation of a rubb le landfill on its property at Gravel H ill Road pursuant to its State-issued Refuse Disposal Permit No. 92-12-3510-D and as renewed by Refuse Disposal Permit 1996-WRF-0517 violate applicable Harford County zoning given that Harford County granted zoning and Solid Waste Management Plan approval to M RA s proposed rubble landfill during Phase 1 of the State rubble lan dfill permit application process? VII. Will MRA s continue d operation of a rubb le landfill on its p roperty pursuant to its State-issued permit constitute a valid non-conforming use purs uant to H arfo rd County Zoning Code, Section 267-18 of the Harford County Zoning Code? VIII. Did Harford County properly fail to issue MRA s grading permit due to the passage and application of Bill 91-10 to MRA s property, which grading permit issuance is a condition of MR A s Solid Waste Management Plan appr oval, even though all a pplicable County review agencies, including zoning, approved the grading permit application before the enactment of Bill 91-10? IX. Did the Hearing Examiner properly rule that MRA is not entitled to rely upon its 1989 C ounty Site Plan approval which pre-dated the enactment of Bill 91-10 given that th is issue was not raised b y MRA in a Request for Interpretation and was not ruled upon or mentioned by the Zoning Administrator but w as raised sua sponte by the H earing Examine r? 4 We hold that MRA was required to exhaust its administrative remedies prior to the Circuit Court considering its petition for judicial review in this matter. MRA failed to do so because it has not sought variances from the Board o f Appe als. Theref ore, we sh all vacate the Circuit Court s order and remand with directions that consideration of the Petition for Judicial Review be stayed. Accordingly, we need, and shall, not address at this time the other questions raised by MRA. I. The present case is the third repo rted opinion from M aryland s app ellate courts addressing the parties dispute . The factual history was summarized extensively in Holmes v. Maryland Reclamation Associates, Inc., 90 M d. App . 120, 60 0 A.2d 864, cert. dismissed sub nom., County Council v. Maryland Reclamation, 328 Md. 229, 614 A.2d 78 (1992) (MRA I), and Maryla nd Recla mation A ssociates, Inc . v. Harford County , 342 Md. 476, 677 A.2d 567 (19 96) (MRA II). We need reco unt h ere o nly a b rief p ortio n of that h istor y. In 1989, MRA began the arduous process of seeking governmental approva ls to operate a rubble landfill on its Gravel Hill Roa d pro perty in Harfo rd County. Late in 1989, Harford County inclu ded M RA s G ravel Hill Road property as a rubble landfill site in the County s Solid Waste Management Plan.3 In 1990, after an electoral turnover at the top 3 The State Legislature delegates to local coun ty governme nts, in the first instance, the responsibility to plan facilities for solid waste disposal. Md. Code (1957, 1996 Repl. V ol., 2003 Supp.), § 9-503 o f the Env ironment A rticle. The C ode of M aryland Reg ulations deta ils the counties responsibilities. Each co unty must ado pt and ma intain a com prehensiv e Solid (contin ued...) 5 rungs of the Harford County local government, Resolution 4-90 was introduced in the new County Council providing for the removal of M RA s property from the County s Solid W aste Management Plan. In the litigation that ensued ove r the passage of this resolution, the C ourt of Special Appeals held that Resolution 4-90 was invalid because it was preempted by the State s authority to regulate so lid waste m anagem ent plans an d the issuan ce of rubb le landfill permits . MRA I, 90 Md. App. at 157, 600 A.2d at 882. During the pendency of the litigation in MRA I, Bill 91-10 was introduced in the County Counc il. Bill 91-10 p roposed to change th e spatial zon ing requirem ents for a ru bble landfill, as a permitted use, by increasing the m inimum num ber of acres required and changing the buffe r, setback, an d relative topo graphic elevatio n requiremen ts. Bill 91-10, as enacted, became effective on 27 March 1991, and is now codified as section 267-40.1 of the Harford County Co de. The G ravel Hill Road prop erty could not c onform strictly to man y, if not all, of the requirements added or changed by Bill 91-10. MRA filed a complaint in the Circuit Court against Harford County challenging the enactment and application of B ill 91-10 and seeking declaratory and injunctive relief. In MRA II, the upshot of the initial litigation over the en actment o f Bill 91-10, we held that, because MRA had not exhausted its administrative remedies, the issue of the application of Bill 91-10 to the Gravel Hill Road property was not ripe for jud icial dete rminatio n. MRA II, 342 Md. at 497, 677 A.2d at 578. 3 (...continued) Waste Man agem ent Plan , using a ten year h orizon . COM AR 2 6.03.03 .02(A ). 6 In MRA II, we explained that there clearly were administrative remedies [then] availab le to M aryland R eclama tion, [Section] 267.7B(5) of the Harford County Code authorizes the Zoning Administrator to render decisions on the applicability of zo ning regu lations to particular property under the factual circumstances presented, and § 267-7E of the Code au thorizes an a ppeal from his decision to the Board of Appeals. Maryland Reclamation could have sought a ruling by the Zoning Administrator under that section an d could ha ve prosec uted an ap peal from any adverse ruling, but it failed to do so. Even if it be assu med, arguendo, that the May 2, 1991, letter from the Director of P lanning was such a decision under § 267.7B(5), Maryland Reclamation failed to pursue its appeal to the Board of Appeals. Moreove r, if it was determined that B ill 91-10, or any other Harford County zoning regulation, precluded Maryland Reclamation from proceeding with a rubble landfill on its property, the landowner could have applied for a variance under §§ 267-9 D and 267-11 of the Harford County Code, and could have appealed any adverse decision to the Board of Appeals. In addition to the provisions of the Harford County Code, state law vests jurisdiction in the Harford C ounty Board of A ppeals over [a]n application for a zoning variance or exception . . . . Code (1957, 1994 R epl. Vol.), Art. 25A, § 5(U). Furthermo re, under Maryland law , the Harford County Board of Appeals would be authorized and required to consider any of the constitutional and other issues raised by Maryland Reclamation to the extent that those issues would be pertinent in the particular proceedings b efore the Bo ard. MRA II, 342 Md. at 490 -92, 677 A.2d at 57 4-75 (citations and footno te omitted). Following our decision in MRA II, MRA presented its first request for interpretation to the Zoning Administrator on 15 November 1996. Four questions were presented: 1. Does Bill 91-10 apply to MRA s property on Gravel Hill Road? 2. Can the requirem ents of Bill 91-10 be va lidly applied to MRA s property on Gravel Hill road under the circumstances of this case and in light of the Environmental Article of the Maryland Code as well as other principles of law? 7 3. Will operation of a rubble landfill by MRA on its property at Gravel Hill Road pursuant to its State perm it be deem ed to violate app licable Harford County Code Sections 267-40.1, 267.28C, 267-28D(4) and 267.41? 4. Can MRA obtain the grading permit (No. 92-123) for which it has already applied and paid for and which has not yet been issued, without meeting the current requirements of Harford County Zoning Law? The Zoning Administrator responded to the 15 November 1996 request for interpretation with a letter dated, 18 February 1997, simply stating that Bill 91-10 was applicable to MRA s proposed rubble landfill. On 7 March 1997, MRA appealed the Zoning Administrator s decision to the Board of Appeals. MRA advance d various c onstitutional, preemption, estoppel, and non-conforming use bases for finding the Zoning Administrator s decision inc orrect. MRA filed with the Zoning Administrator on 10 December 1998 a second request for interpretation of the zoning ordinance. Pursuant to § 267-8 of the Harford County Code, MRA also applied on 29 D ecembe r 1998 fo r a zoning c ertificate to construct an d operate its desired rubble land fill.4 In the second request for interpretation, MRA asked the Zoning 4 Section 267-8(A) of the Harford County Cod e makes it unlaw ful for any owner, tenant, licensee or occupant to initiate development of, change the use of or commence a use of any lot or structure, except agricultural uses or structures, in whole or part, without first obtaining a zoning certificate issued by the Zoning A dministrator. An app roved an d duly issued zoning certificate indicates that the proposed use of the building or premise s are in conformity with Harf ord County Zoning laws. Harford C ounty Code § 267 -8(B). 8 Administrator to answe r five more questions re lated to the ab ility of the Co unty to apply the requ irem ents of B ill 91 -10 to M RA s Grave l Hill Road prope rty. The five questions presented were: 5. Whether MRA s operation of a rubb le landfill on its p roperty at Gravel Hill Road p ursuant to the State-issu ed Refu se Dispos al Permit No. 9212-35-10 D and as renewed by Refuse Disposal Permit 1996-WRF0517 will be deemed to violate applicable Harford County zoning? 6. Whether Harford County is prohibited by the principles of estoppel from applying the provisions of Harford County Bill 91-10 (Section 267-4 0.1 of the Harford Co unty Code) to MR A s operation o f a rubble landfill on its prope rty pursuant to its sta te-issued pe rmit referen ced in question 1? 7. Whether applying the p rovisions of Bill 91-10 to MR A s property and, spec ifica lly, the MRA s ope ratio n of a rub ble la ndfill on its pr operty, is prohibited b y the United S tates Cons titution and/or the Maryland Declaration of Rights? 8. Whether Harford County is preempted by the Environmental Article of the Maryland Annotated Code, including but not limited to Sections 9201 et seq. and 9-501 et seq. and applicable regulations promulgated thereto from applying the provisions of Bill 91-10 to MRA s property and specifically, to MRA s operation of a rubble lan dfill on its property pursuant to its State-issued permit referenced in question 1? 9. Whether MRA s operation of a rubble landfill on its property pursuant to its State-issued permit refe renced in q uestion 1 is a valid nonconforming use pursuant to the Harford County Zoning Code? In a 22 February 1999 letter denying MRA s request for a zoning certificate, the Zoning Administrator also answered MRA s questions five and nine, but declined to answer its questions six, seven, and eight. After a remand from the Board of Appeals to the Zoning Administrator, questions six, seven, and eight were answered in a 4 October 2000 letter. 9 After consolidating MR A s two appeals, the Board of Appeals, by delegation to its Zoning Hearing Examiner, heard the matters on various days over the course of January to October 2001. The Zoning Hearing Examiner issued on 2 April 2002 an extensive written decision affirming the decisions o f the Zoning A dministrator. According to th e Hearing Ex aminer, the weight of the evidence showed that the application o f Bill 91-10 to the propo sed rubble landfill did not violate federal, state, or local laws. Specifically, the Zoning Hearing Examiner s answers to MRA s nine questions may be summarized as follows: 1. Bill 91-10 applies to MRA s property on Gravel Hill Road. 2. The requirements of Bill 91-10 can be v alidly applied to MRA s property on Gravel Hill road under the circumstances of this case and in light of the Environmental Article of the Maryland Code as well as other principles of Maryland law. 3. MRA s operation of a rubble landfill on its proper ty at Gravel H ill Road pursuant to its state permit will v iolate applica ble Harfo rd Coun ty Zoning law, particularly Harford County Code §§ 267-40.1, 267-28C, 267-28D(4) and 267-41. Moreover, the Hearing Examiner questions whether the permit issued to MRA by MDE is validly issued as it was based on misinform ation provid ed to the Sta te by MRA regarding the conformance of the property and use with Harford County Zoning law. 4. MRA cannot ob tain a gradin g permit unless it can meet the requireme nts of Harford County Zoning law. To the extent MRA does not meet specific standards it must seek a variance and obtain a variance from provisions with which it cannot comply. MRA s reliance on site plan approvals that pre-date the enactm ent of Bill 9 1-10 is without m erit. 5. MRA s operation of a rub ble landfill on its property at Gr avel Hill Road pursuant to its State-issued Refuse Disposal Permit No. 91-12-3510 10-D and as renewed by Refuse D isposal Perm it 1996-W RF-051 7 will violate applicable Harford County zoning law. 6. Harford County is not prohibited by the principles of estoppel from applying the provisions of Harford Coun ty Bill 91-1 0 (sectio n 267- 40.1 of the Harford County Code) to MRA s property and specifically, to MR A s operatio n of a rub ble la ndfill on its property. 7. MRA s rubble landfill did not acquire vested rights in its use that would insulate it from the application of Bill 91-10 to that use. It is the vested rights doctrine itself that allows a landowner to raises issues of constitutional protections. There is no constitutional infringement on the rights of MRA because a vested right was not established. Applying the provisions of Bill 91-10 to MRA s Gravel Hill Road property is, therefore, not prohibited by the United State s Constitution and/or the Maryland Declaration of Rights. 8. Harford County is not preempted by the Enviro nmental A rticle of the Maryland Code, particularly sections 9-201 et seq . and 9-501 et seq, from applying Bill 9 1-10 to M RA s Grave l Hill Road prope rty. 9. MRA s operation of a rubble landfill on its Gravel Hill Road property is not a valid non-conforming use pursuant to Ha rford County Zoning Code. On 11 June 2002, the County Council, sitting as the Board of Appeals, adopted the Zoning Hearing Exa miner s deci sion . Harfor d Co unty, therefore, refused to issue to MRA a grading permit or zoning certificate for the proposed rubble landfill because of the strictures of Bill 91-1 0. Neither in response to the Board of Appeals s final decision, nor on a parallel course to its requests for interpretation or a zoning certificate, did MRA seek variances for relief from the requirements of Bill 91-10. On 21 June 2002, MRA commenced the current phase of the litigation by petitioning the Circuit Court for Harford County for judicial review of the Board of Appeals s decision. 11 The Circuit C ourt aff irmed th e decisio n of the Board of Ap peals o n 22 O ctober 2 003. It concluded that all nine requests for interpretation were answered correctly [by the Zoning Administrator, Zoning Hearing Examiner, and Board of Appeals], in accordance with the law, and based on substantial evidence, and the decision was also correct when it upheld the zoning admin istrator s denial o f Ma ryland R eclama tions req uest fo r a zonin g certific ate. Reg retta bly, because MRA still has not exhausted its available administrative remedies, as explained in MRA II, we shall va cate the Circ uit Court s judgment and remand with directions to s tay final action on the petition for judicial review. Before it may prosecute its petition for judicial review in this matter, MRA must apply for the zoning variances assertedly need ed to obtain relief from Bill 91-10. W hen final a dministrative action is taken on variance applications, MRA, if still aggrieved, may seek additional judicial review of Harford County s actions on the variances and prosecu te the present matter. Failure to prosecute variance applications within a reasonable time could result in dismissal of the present petition. II. A. A fundam ental precep t of admin istrative law is the requirement that exclusive or primary administrative remedies ordinarily be exhausted before bringing an action in court. 5 5 We have recognized a few limited exceptions to the requirement that administrative remed ies be ex hauste d, but no ne app ly here. See Moose v. Fraternal Order of Police, 369 (contin ued...) 12 See, e.g., Brow n v. Fire an d Police E mployee s Retirem ent System, 375 Md. 661, 669, 826 A.2d 525, 530 (2003); Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 76, 825 A.2d 388, 39798 (2003); Moose v. Fraternal Order of Police, 369 Md. 476, 492-93, 800 A.2d 790, 801 (2002); Furnitureland v. Comptroller, 364 Md. 126, 133, 771 A.2d 1061, 1065 (2001) ( [W]here the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended su ch remed y to be primary and intended that the administrative remedy must be . . . exhausted before resort to the c ourts ); Montgomery County v. Broadcast Equities, 360 Md. 438, 461, 758 A.2d 995, 1008 (2000) ( [T]he norma l rule [is] that prim ary admin istrative . . . remedies must be exha usted. ); Josephson v. City of An napolis, 353 Md. 667, 674-78, 728 A.2d 690, 693-95 (1998) (when administrative remedies exist in zoning c ases, they must be exhausted before other actions, including requests for declaratory judgments, mandamus, and injunctive relief, may be brought); Holiday P oint Mar ina Partn ers v. Anne Arunde l County , 349 Md. 190, 201, 707 A.2d 829, 834-35 (1 998); Zappone v. Liberty Life Ins., 349 Md. 45, 60-66, 706 A.2d 1060, 5 (...continued) Md. 476, 489, 800 A.2d 790, 798 (2002). One exception to the exhaustion requirement arises in some actions challenging the facial validity of a statute. See C omm 'n on Human Relations v. Mass T ransit, 294 Md. 225, 232, 449 A.2d 385, 388 (1982). The requirement also may not apply when the Legislature expresses an intent that the administrative remedy need not be invoke d and e xhaus ted. See Mass T ransit, 294 Md. at 232 n. 4, 449 A.2d at 388 n. 4. We have also recognized that exhaustion of administrative remedies may not be required when an agency is palpably withou t jurisdict ion. See Comm'n on Human Relations v. Freedom Express/Domegold, Inc., 375 Md. 2, 825 A.2d 354 (20 03); SEFAC Lift & Equipment Corp. v. Mass T ransit, 367 Md. 374 , 382, 788 A.2d 1 92, 197 (2002). 13 1067-70 (1998); MRA II, 342 Md. at 492-97, 677 A.2d at 575-76, and cases there cited. Moreover, pursuant to the Uniform Declaratory Judgment Act, "[i]f a statute provides a special form of r emedy for a specific type of case, that statutory remed y shall be follow ed in lieu" of a declaratory action proceed ing. Md. Cod e (1973, 2002 R epl.Vol., 2003 Supp .), § 3-409(b) of the Courts and Judicial Proceedings Article. In Soley v. State Commission on Human Relations, 277 Md. 521, 526, 356 A.2d 254, 257 (197 6), we ob served as f ollows: The rule requiring exhaustion of administrative or statutory remedies is supported by sound reasoning. The decisions of an administrative agen cy are often of a discretionary nature, and frequ ently require an expertise which the agency can bring to bear in sifting th e inform ation pr esented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise . Furthermo re, to permit interruption for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the L egislature intended to achieve in the first instance. La stly, the courts mig ht be called u pon to decide issues which perhaps would never arise if the prescribed adm inistrative remedies were followed. Eight years ago in MRA II, this Court instructed M RA tha t before it m ay obtain judicial review in the Circuit C ourt for Harford County of any adverse administrative decisions in this case, it must exhaust its available administrative remedies under the applicable laws. MRA II, 342 Md. at 497, 677 A.2d at 578. In MRA II, this Court identified the administrativ e remedie s available to M RA: (1) request an interpretive ruling from the Zoning Admin istrator and, if th at ruling we re adverse to MR A s interests, a ppeal to the Board of Appeals; (2) if the Board of Appeals s decision was adverse to MR A, it should 14 apply for zoning var iances o r excep tions. MRA II, 342 M d. at 501 , 677 A .2d at 58 0. We hold with regard to the present action that because MRA failed to apply for, and receive final administrative action on, zoning variances before returning again to the courts, it exhausted only the first of these two admin istrative remedies; therefore, the Circuit C ourt for Harford County should not have decided MRA s petition for judicial review on its merits at the time it did. MRA argues that the proper application to its situation of the exhaustion of administrative remedies p rinciple shou ld permit a tw o-step proc ess by whic h it may pursue in turn judicial review of each discrete adverse administrative decision. MRA believes that this Court m ust decide th e issues it advance s in the present c ase and, if d ecided ad versely to MRA s position, it retains the option of seeking a variance from the application of Bill 9110 and other Harfo rd County regulations to its property. We do not subscribe to this inefficient and piecemeal approach. Seeking zoning variances is not, as MRA co ntends, merely an option. The right to request zoning interpretations and a zoning certificate and, if denied, the right to seek variances are two parallel or successive remedies to be exhausted, not optional selections on an a la carte menu of administrative entrees from which MRA may select as it pleases. See Dorsey, 375 Md. at 75, 825 A.2d at 397. Once both administrative remedies are pursue d to comp letion, MR A, if still feeling itself aggrieved, may pursue judicial review of the County agencies adverse actions. 15 A party aggrieved by a decision of a local zoning official, such as the Zoning Administrator, must exhaust available exclusive or primary administrative remedies be fore pursuing judicial review in the circuit court. Md. Code (1957, 1998 Repl. Vol., 2003 Supp.), Art. 25A § 5(U) (setting forth th e jurisdiction a nd proce dural require ments w ith respect to boards of appea l in chartered counties). 6 6 Harford County has chosen the charter form of local home rule under the Maryland Express Powers Act and, therefore, is subject to Article 25A § 5(U) of the Ex press Powers Act. See Klein v. Colonial Pipeline Co., 285 M d. 76, 78 , 400 A .2d 768 , 769 (1 979). Whether the administrative remedies provided in Article 25A, § 5(u) are exclusive, as they clearly were prior to 1999 (see Holiday Point Marina Partners v. Anne Arundel County , 349 Md. 190, 201, 707 A.2d 829, 834 (1998), or primary, is open to debate. Prior to 1 October 1999, the final sentence of Art. 25A, § 5(U), stated: The review proceedings provided by this subsection shall be exclusive. This sentence appears to have been the basis for our holdin gs that the ad ministrative-ju dicial review remedies under § 5 (U) were exclusive. Thus, in Holiday v. Anne Arundel, 349 Md. 190, 202-203, 707 A.2d 829, 834, 835-836 (1998), we explained: The General Assembly in Art. 25A, § 5(U), has expressly stated that the administrative and judicial review remedy applicable to the present case is e xclusiv e. The effect of such language is to abrogate a ny alternative leg al or equitab le remedies that might othe rwise hav e existed. A s explained in numerous cases, where the administrative and judicial review procedures are exclusive, neither a declaratory judgment action nor a common law or e quitable action w ill lie. See Zappone v. Liberty Life Insurance Co., 349 Md. 45,70 6 A.2d 1060 (1998); Bowman v. Goad, 348 Md. 199, 703 A.2 d 144 (19 97); Insurance Commissioner v. Equitable, supra, 339 Md. at 623, 664 A.2d at 876; Moats v . City of Hagerstown, 324 Md. 519, 529, 597 A.2d 972, 977 (199 1); Muhl v. Magan, 313 Md. 462 , 480-481, 545 A.2d 1321, 1330 (1988); Nordhe imer v. M ontgom ery Cou nty, 307 Md. 8 5, 96-9 8, 512 A .2d 379, 384-386 (1986); Potomac Elec. Power v. P.G. Co unty, 298 Md. 185, 189-191, 468 A.2d (contin ued...) 16 Judge Eldridge, speaking for this Court, pellucidly explained the doctrine of exhaustion of administrative remedies, as applied to the circum stances of this dispute, in 6 (...continued) 325, 327 (1983); Apostol v. A nne Aru ndel Cou nty, 288 Md. 667, 672-673, 421 A.2 d 582, 58 5-586 (19 80); White v. Prince Geor ge's Co., 282 M d. 641, 6 49-653, 387 A.2d 260, 265-267 (1978 ). The Gen eral A ssem bly, however, by Ch. 651 of the Acts of 1999, effective 1 October 1999, amended Art. 25A, § 5(U), so as to repeal the final sentence of the subsection containing the exc lusivity lan guage . While a preamble to Ch. 651 indicates that the legislative purpose w as to author ize appeals to courts in b anc, in lieu of appeals to the Cou rt of Special Appea ls, the actual amendme nt to the statute was more sweep ing. It repealed the language which had made the administrative and circuit court judicial review proceedings exclusive. Consequently, since 1 October 1999, the remedies under Art. 25A, § 5(U), may no longer be exclusive. Even if the remedies under Art. 25A, § 5(U), ma y no longer be exclusive, they are certainly primary. Nothing in the language or history of Ch. 651 of the Acts of 1 999 sugg ests that the Legisla ture intende d to permit circumvention of the administrative remedies s et forth in Art. 25A , § 5(U). Th e legislative pu rpose in de leting the last sentence of § 5(U), and making the remedies non-exclusive, was to allow alternative judicial app ellate remedies. Neither the language of Ch. 651 nor its history support the view that the administrative remedies under § 5(U) may be by-passed. As this Court has emphasized on numerous occasions, while there is no presumption that [an] administrative remedy was intended [by the Legislature] to be exclusive, there is, however a presumption that the administrative remedy is intended to be primary, and that a claimant cannot maintain [a] judicial action without first invoking and exhausting the administrative remedy. Zappone v. Liberty Life , 349 Md. 45, 63, 7 06 A.2 d 1060 , 1069 ( 1998) . See, e.g., Dorsey v. Bethel A.M.E., 375 Md. 59, 76, 825 A.2d 388, 397-398 (2003), quoting Furnitureland v. Comptroller, supra, 364 Md. at 133, 771 A.2d at 1065 ( [W]here the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended such remedy to be primary and intended that the administrative remedy must be . . . exhausted before resort to the courts ); Montgomery Cou nty v. Broadcast Equities, supra, 360 Md. at 461, 758 A.2d at 10 08 ( [T]he norm al rule [is] that primary administrative . . . remedies must be exhausted ); Josephso n v. Anna polis, 353 M d. 667, 6 74-67 8, 728 A .2d 690 , 693-695 (1998). 17 MRA II. As MRA appears not to have appreciated completely the directions of MRA II, we can only reiterate the reasoning here. In MRA II, we had to determine whether MRA was required to invoke and exh aust administrative remedies av ailable under the Harfo rd County Code and the Expre ss Pow ers Ac t, Maryla nd Co de (195 7, 1994 Repl. V ol.), Art. 2 5A, § 5(U). MRA II, 342 Md. at 490, 677 A.2d at 574. If MRA were so required and had not sought to utilize those remedies, i.e., invoking administrative action and then seeking judicial review of the admin istrative agen cy action, we s tated that the re would be no occasion for the Court t o reach the me rits of su ch issue . Id. This Co urt conclud ed that [t]he re clearly were administrative remedies available to Maryland Reclamation, affording . . . the means for obtaining the relief sought if it was entitled to such relief. Id. We explained: When the legislative body expressly states that the administrative remedy is primary or exclusive or must be exhausted, the mandatory nature of the exhaustion requirement is underscored. Su ch expres s languag e is totally inconsistent with the notion that the administrative agency s jurisdiction over the matter can be circumvented. MRA II, 342 Md. at 493, 677 A.2d a t 576 (c itation an d form atting om itted). What we stated in MRA II continues to apply to MRA s latest attempt to skirt for now the remaining, available administrative process. We stated in Dorsey v. Bethel A.M.E. Church that the requirement that administrative remedies must be exhausted before bringing an action to court . . . overlap s the finality principle. Dorsey, 375 M d. at 76, 825 A.2d at 39 7. A com mon pu rpose beh ind both doctrines is the avoidance of piecemeal actions in the Circuit Court seeking fragmented 18 advisory opinions. Dorsey, 375 Md. at 75, 825 A.2d at 397 (quoting Driggs Corp. v. Maryland Aviation Admin., 358 Md. 389, 40 7, 704 A .2d 433 , 442 (1 998)). MRA s present effort illustrates, in a negative sense, the sound policy behind the requirement of exhaustion of adm inistrativ e reme dies. B. MRA s failure to exhaust administrative remedies, before bringing this judicial review action, applies to the federal constitutional issues as well as the state constitutional and nonconstitutional issues. MR A migh t file a 42 U .S.C. § 198 3 claim prio r to exhaus ting administrative variance remedies. Our order granting certiorari specifically raised the issue. For the reasons extensively discussed in MRA II, supra, 342 Md. at 497-506, 677 A.2d at 578-82, we hold that the federal constitutional issues raised by Maryland Reclamation also are not now ripe for judicial decision. C. Under the circumstances, a stay by the Circuit Court of final consideration on the merits of this petition for judicial review is the correct disposition for the present, rather than dismissal of the petition. When a litigant is entitled to bring two separate legal proceedings in an effort to obtain relief in a particular m atter, when the litigant institutes the first of those proceedings and the case is pen ding in a trial co urt, and wh en the trial cou rt is unable to decide the merits of that case be cause of p rimary jurisdiction or exhau stion principles associated with the sec ond proc eeding, the tria l court ordina rily should stay the first 19 proceeding for a reasonable period of time. During that period, the litigant may pursue and obtain a final administrative decision in the second proceeding. If still aggrieved, the litigant will be able to file an action for judicial review in the second proceeding, and the trial cou rt may hear the two ca ses toge ther. If the litigant, within a reasonable period of time, fails to pursue the second proceeding, the court sh ould th en dism iss the fir st proce eding. See, e.g ., State v. State Bd. of Contrac t Appeals , 364 Md. 446 , 458, 773 A.2d 5 04, 511 (2001); McCullough v. Wittner, 314 Md. 602, 613, 552 A.2 d 881, 88 6 (1989); Maryland-National Capital Park & Planning Comm n v. Crawford, 307 Md. 1, 18, 551 A.2d 1079, 1087-88 (1986); Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792-93, 506 A.2d 625, 634 (1986); Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557 , 562, 404 A.2d 2 81, 284 (1979). A decision very much on point is United States v. Michigan National Corp., 419 U.S. 1, 95 S.Ct. 10, 42 L.Ed.2d 1 (197 4). In that case, a Michigan bank holding company owned several national banks and desired to acquire four additional Michigan banks. The circumstances of the proposed transaction brought it within two separate federal regulatory statutes, each providing fo r a separate administrative proceeding before federal government agencies. One federal statute required that the acquisition of the additional banks be approved by the Federal Reserv e Board, and a different federal statute required that the acquisition be approved by the Comptroller of the Currency. Each statute provided for judicial review of final administrative decisions approving the acquisition, by authorizing an 20 objector to file an action under § 7 of the Clayton Act, 15 U.S.C. § 18, within 30 days of the administrative approvals. The Michigan bank holding company filed the approp riate applicatio ns with bo th the Federal Reserve Board and the Comp troller of the Currency. The F ederal Reserve B oard approved the acquisition in October 1973. The Government (presumably the Department of Justice s anti-trust division) opposed the acquisition and filed in the United States District Court for the Eastern District of Michigan an action, within the prescribed 30-day period, challenging the Federal Reserve Board s decision and seeking to enjoin the acquisition. The Comptroller of the Currency, however, had not rendered an administrative decision when the judicial action was filed. The United States District Cou rt dismissed th e Gove rnment s su it, holding that it was premature and that a decision by the Comptroller of the Currency in the other administrative proceeding might give the Government the relief which it sought and thus would moot the judicial action. The Supreme Court in Michigan National Corp. reversed, holding that the District Court s dismissal was error. The Supreme C ourt, however, did not hold that the District Court should have decided the merits of the judicial action. Instead, the Supreme Court held that the District Court should have stayed the action before it pending an administrative decision by the Comptroller of the Currency. The Court pointed out that this procedure has generally been followed when the resolution of a claim cognizable in a federal court must await a de termination by an administrative age ncy having primary 21 jurisdicti on. United States v. Mich igan Nat l Corp., supra, 419 U.S. at 4-5, 95 S.Ct. at 12, 42 L.Ed.2d at 1, citing numerous cases. The Court continued (419 U.S. at 5-6, 95 S.Ct. at 12, 42 L.Ed.2d a t 1, footnote omitted): In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. * * * By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired. By waiting for approval of the Comptroller before filin g its lawsuit, the Government runs the risk that complete relief will be barred . . . . The Suprem e Court conclude d (419 U.S. at 6, 95 S .Ct. at 12, 42 L.Ed.2d at 1): Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully prote cted. Other cases in the Supre me Cou rt and in other jurisdictions also support a stay, rather than a dismissal, under circumstances similar to those in the ca se at bar . See, e.g., Ricci v. Chicago Mercantile, 409 U.S. 289, 302, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973) ( [G]iven administrative author ity to exam ine the . . . dispute in the light of the regulatory scheme and . . . rules, the [judicia l] action should be stayed until the administrative officials have had opportun ity to act ); Carnation Co. v. Pacific Conference, 383 U.S. 213, 223, 86 S.Ct. 781, 787, 15 L.E d.2d 70 9 (196 6) (The judicial action . . . cannot be easily reinstituted at a later time. Such claim s are subjec t to the Statute of Limitations and are likely to be barred by the time the Commission acts. Therefore, we believe that the Court of Appeals should have 22 stayed the action instead of dismissin g it ); Thompson v. Texas Mexican Ry. Co., 328 U.S. 134, 151, 66 S.Ct. 937, 947, 90 L.Ed. 113 2 (1946) ( [T]he ca se [should ] be held pending the conclusion of appropriate administra tive procee dings ]; Tank Car Corp. v. Terminal Co., 308 U.S. 422, 433, 60 S.Ct 325, 331, 84 L.Ed. 361 (1940) ( There should not be a dismis sal, but, . . . the cause should be held pending the conclusion of an appropriate administrative proceedin g ); Hanson v. Norfolk & Wester Ry. Co., 689 F.2d 707, 71 4 (7 th Cir. 1982) ( Because the primary jurisdiction doctrine is designed to govern timing of judicial consideration, and not to allocate ultimate pow ers between courts and agencies, . . . a stay of court proceedings is often more consonant with the doctrine than a dismissal of a complaint ); Hoffburg v. Alexander, 615 F.2d 633, 64 2 (5 th Cir. 1980) ; Concordia v. United States Postal Service, 581 F.2d 439, 44 4 (5 th Cir. 1978). JUDGMENT OF THE CIRCUIT C O U R T F O R H A R F O RD COUNTY VACATED; CA SE REMANDED TO THAT COURT WITH DIRECTIONS T O S T A Y A P P E L L A N T S PETITION FOR JUDICIAL REVIEW CONSISTENT WITH THIS OPINION. APPELLANT TO PAY CO STS. 23

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