Queen Anne Conservation v. County Comm.

Annotate this Case

Download PDF

ADMINISTRATIVE LAW LAND USE DEVELOPMENT RIGHTS AND RESPONSIBILITIES AGRE EMEN T ( DRR A ) (Md. C ode, Art. 66B, § 13 .01) EXHAUSTION OF ADMINISTRATIVE REMEDIES PETITIONERS CHAL LENG ING THE EXECUTION OF A DRRA SHOULD HAVE PURSUED ADMINISTRATIVE REMEDIES AS OUTLINED BY STATUTE, RATHER THAN FILING A DIRECT DEC LAR ATO RY JU DGM ENT ACT ION I N CIR CUIT COU RT. Maryland Code, A rticle 66B § 13.01, authorizes counties and municipalities (other than Montgomery and Prince George s counties) to enter into Development Rights and Responsibilities Agreem ents (DRRA) w ith developers as a means to vest the developers rights to develop property under the zoning enjoyed at the time of execution of the agreeme nt, in return for a cceptance by the develo pers of resp onsibilities and condition s in the manner in which the property is de veloped. T he public benefits bargained for from the developer generally exce ed those m inimum re quiremen ts otherwise mandate d or obtaina ble by application of other relevant laws. The present case involves how persons or entities aggrieved by the execution of such an agreement properly may obtain administrative and/or judicial review of the lawfulness of a DRRA. In the present case, Appellants brought a direct action in the Circuit Court for Queen Anne s County seeking a d eclaratory judg ment as to th e lawfuln ess of the p articular agreeme nt. The Court of Appeals instead determined that Appellants proper recourse was an administrative appeal to the Board of Appeals of Queen Anne s County ( Board of Appeals ) under M aryland Cod e (1957, 20 03 Rep l. Vol.), Article 66B § 4.07, before seeking judicial review. The exhaustion doctrine enforces the notion that an administrative agency should have the o pportunity to ex ercise its expertise and discretion first to resolve an issue. Circuit Co urt for Quee n Anne s C ounty Case # 17-C-02-009163 IN THE COURT OF APPEALS OF MARYLAND No. 108 September Term, 2003 QUEEN ANNE S CONSERVATION, INC. v. THE COUNTY COMMISSIONERS OF QUE EN A NNE S COU NTY , MD, et a l. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: July 29, 2004 Development Rights and Responsibilities Agreements ( DRRAs ) are a relatively recent addition to the Maryland toolbox of land use and development implements approved by the Legislature for possible use by many local political subdivisions and the legal or equitable owners of real properties desiring to develop their properties. Although many states, such as California in 1979, preceded Maryland in recognizing the use of DRRAs or their equivalents, our Legislature lingered until 1995 before enacting § 13.01 ( Development Rights and Responsibilities Agreements ) of Article 66B ( Land Use ) of the Maryland Code.1 The legislation seems to be the resu lt of the balan cing of de velopers a nd prope rty owners desires for a larger measure of certainty than that offered by proceeding to market through the traditional developmen t processes, while riskin g the mon etary investme nt to develop th eir property, against local governm ents desire to receive gre ater public b enefits on a more predictable schedule than might otherwise be attainable through the traditional processes. See gene rally, Brad K. Schwartz, Development Agreements: Contracting for Vested Rights, 28 B.C . E NVTL. A FF. L. R EV 719 (2001); David L. Callies and Julie A. Tappendorf, Uncon stitutional Land Development Conditions and The Development Agreement Solution: Bargaining For Public Facilities After Nollan and Dolan, 51 C ASE W. 1 Article 66B generally regulates land use (planning and zoning) in M aryland s noncharter, Code home rule counties, Baltimore City, and municipalities possessing planning and zoning powers; h oweve r, of relevan ce to DRRAs, § 1.02(b) o f Article 66 B make s applicable also to chartered counties (except Montgomery County and Prince George s County) the provisions of § 13.01. Ordinarily, the planning and zoning powers exercised by charter counties in Maryland flow from Article 25A, § 5(X) of the Maryland Code, except for Montgom ery and Prince George s counties which look to Article 28 of the Maryland Code for e nableme nt of their plan ning and zoning a utho rity. R ES. L. R EV. 663 (2001); John J. Delaney, Development Agreements: The Road From Prohibition to Let s M ake a D eal!, 25 U RB. L AW. 49 (1993). As explained in the amicus brief of the National Association of Home Builders filed in the present case: [A] central purpose of the development agreement is to vest development rights in the landowner or developer in exchange for the dedication and funding of public facilities. A vested right allows development of a propose d use of lan d to proceed even when subsequent changes in zoning regulati ons w ould re nder th e propo sed use imperm issible . . . . Development agreements are public contracts between a municip ality and a property owner or developer, and are executed pursuant to state law as part of the developm ent approv al process. S uch agree ments can be executed in conjunction with the rezoning of land, at a post-zoning stage of the development review process (such as subdivision or site plan review), or at the time of permit a pproval. A side from developers and builders, [local governments] find these agreements advantageous as sources of funding for major infrastru cture, an d as a n ass uran ce fo r the time ly provision of needed public f acilities a nd am enities. Amicus brief at 2-4 (footnotes omitted). The present cas e does no t call for us to scrutinize the va lidity of § 13.01 of Article 66B or even of the execution of the particular DRRA that instigated the litigation. Rather, this appeal touches upon an important, but tangential threshold issue, which necessitates that we determ ine the corre ct path to be followed by a person o r entity, not a party to a DRRA, but who fe els aggrieved by the execution of the agreement, in obtaining scrutiny of the legal bona fides of the DRRA. 2 I. On 17 September 2002, a DRRA was entered into by K. Hovnanian at Kent Island, L.L.C ., ( Hovnanian ) and the Coun ty Commissioners of Q ueen Anne s County ( the County Commissioners ). Shortly thereafter, the Queen Anne s Conservation Association, Inc., and seve n individua l plaintiffs (co llectively the Conservation Association ) filed a Complaint in the Circuit Court for Queen Anne s County, naming Hovnanian and the Commissione rs as defendants, seeking declaratory and injunctive relief to the effect that the DRRA was invalid. In response, the defendants filed a Motion to Dismiss urging that the Conservation Associatio n failed to ex haust available, exclusive administrative remedies befo re se ekin g jud icial scru tiny. The Circuit Co urt entered judgment in the defendants favor on 25 February 2003, preemine ntly holding in its declaratory judgment that the Conserv ation Asso ciation failed to follow the statutory procedure for appeals of administrative decisions to the Board of Appeals for Queen Anne s County. The result was dismissal of the Complaint because the Conservation Association, having missed the deadline for noting such an administrative appeal, could not now perfect one. The Conservation Association appealed to the Court of Special Appeals. We, on our initiative and before the appeal could be decided in the intermediate appellate co urt, issued a w rit of certiorari to d etermine w hether the C ircuit Court properly dismissed the Complaint for declaratory and injunctive relief based on the 3 Conservation Association s failure to exhaust admin istrative r emed ies. Queen An ne s Conservation v. County Comm issioners, 379 Md. 224 , 841 A.2d 339 (2004). Appellants, the Conservation Association, present the following two questions for our consideration: I. Where Queen Anne s County has no adm inistrative rem edy available to challenge a developer s rights and responsibilities agreement by appeal to the Queen Anne s County Board of Appeals, is such a challenge properly brought in a declaratory action? II. Is an administrative appeal from a developer s rights and responsibilities agreement mandated by Article 66B, § 4.08, which applies to zon ing a ction s of a loc al leg islati ve body? We hold that A ppellants, in pursuing a challenge to the execution of the DRRA in this case, were first required to file an appeal to the Board of Appeals and obtain a final administrative decision prior to seeking judicial review in the Circuit Court. Therefore, we shall affirm the Circuit Court s judgment dismissing this action for Appellants failur e to exhaust an available and exclusive administrative remedy. Accordingly, we need not address the second question raised by Appellants. II. Hovnanian is the devel oper of a prop osed act ive a dult, age -rest ricte d community on Kent Islan d in Que en A nne s Co unty. The 560-acre community is to be known as Four Seasons at Kent Island ( Four Seasons ) and would consist of 1,350 residential units, an assisted living facility, and recreational uses. The Four Seasons pro perty is zoned, in the vernacular of the Qu een An ne Cou nty zoning ord inance, Ste vensville Master Planned 4 Development Zone and Chester Master Planned Development Zone. T he prope rty is identified in both the C hester Co mmun ity Plan of 199 7 and the S tevensville Community Plan of 1998 as a Planned Growth Area and was pre-mapped to receive a Chesapeake Bay Critical Area Growth Allocation. The uses sought by Hovanian were permitted ones generally under t he exis ting zon ing, but subject to subdivision and site plan review and approval processes. A. Administrative Proceedings Hovnanian submitted an application to the Queen Anne s County Planning Commission (the Planning Commission) for Concept/Sketch Plan approval for Four Seasons in June 1999. The application was reviewed by Queen Anne s County planning and public work officials, Chesapeake Bay Critical Area Commission staff, and various other State and County departments and agencies. On 26 April 2000, the Planning Commission approved the Concept/Sketch Plan. Hovnanian next filed a petition w ith the Cou nty Commissione rs requesting Growth Allocation approva l to change the Chesapeake Bay Critical Area Land Use Designa tions on the p roperty. The p etition reques ted that roug hly 293.25 acres be redesignated from the Chesapeake Bay Critical Area designation of Resource Conservation Area to Intense Development Area, and roughly 79.55 acres be redesignated from Limited Development Area to Intense Development Area. Following a public hearing before it on 13 July 2000, the Planning Commission recommended that the Co unty Comm issioners app rove Ho vnanian s request fo r Grow th 5 Allocation, subject to certain conditions, one of which was that Hovnanian enter into a DRRA with the C ounty before final plan approval. On 6 December 2000, after yet another public hearing, the Chesapeake Bay Critical Area Commission endorsed the Petition for Growth Allocation, also with certain conditions. The County Commissioners conducted another public hearing on 27 February 2001. As a result, the County Commissioners made substantial and detailed findings of fact concerning Hovnanian s reque st for Grow th Allocatio n. On 10 April 200 1, the Cou nty Commissione rs approved the redesignation of the Chesapeake Bay Critical Area Land Use Designations of the Four Seasons property, subject to conditions, including the execution of a DRRA. On 14 June 2001, the Planning Commission reviewed and approved an amended Concept/Sketch Plan for the Four Seasons, which had been revised to reflect the later conditions imposed by the Planning Commission, the Critical Area Commission, and the County Comm issioners du ring the G rowth Allocation process. On 20 August 2001, the County Commissioners adopted ordinances that required a DRRA as a condition of the Growth Allocation approva l. Ultimate ly, on 20 May 2002, Hovnanian filed a Petition for a DRRA, pursuant to the enabling legislation in Maryland Code (1957, 2003 Repl. Vol.), Article 66B § 13.012 and the 2 Maryland Code (1957, 2003 Repl. Vol.), Article 66B § 13.01 states: (contin ued...) 6 2 (...continued) (a) Definitions. (1) In this section the following words have the meanings indicted. (2) Agreement means a development rights and responsibilities agreeme nt. (3) Governing body means the local legislative body, the local executive, or other elected governmental body that has zoning powers under this article. (4) Public principal means the governmental entity of a local jurisdiction that has been granted the authority to enter agreements under subsection (b)(1) of this section. (b) Authority a nd delega tion of autho rity. (1) Subject to subsections (c) through (1) o f this section, t he governing body of a loc al jur isdic tion may: (i) By ordinance, establish procedures and requirements for the consideration and execution of agreements; and (ii) Delegate all or part of the authority established under the ordinance to a public pr incip al within the ju risdi ction of th e govern ing b ody. (2) T he public princip al ma y: (i) Execute agreements for real property located within the jurisdiction of the governing bod y with a person having a legal or equitable interest in the real property; and (ii) Include a federal, State, or local government or unit as an additional party to the agree ment. (c) Petition. Before entering an agreement, a person having a legal or equitable interest in real property or the person's representative shall petition the public principal of the local jurisdiction in which the property is located. (d) Public hearing. (1) After receiving a petition and before entering an agreement, the public principal shall conduct a public hearing. (2) A public hearing that is required for approval of the development satisfies the public hearing requirements. (e) Approval by commission. The public principal of a local jurisdiction may not enter an agreement unless the planning commission of the local jurisdiction determine s whethe r the propo sed agreem ent is consistent w ith the plan of the local jurisdiction. (f) Contents of agreement. (1) An agreement shall include: (i) A legal de scription of th e real prope rty subject to the ag reement; (ii) The names of the persons having a legal or equitable interest in the real property subje ct to the agree ment; (iii) The dura tion of the a greemen t; (contin ued...) 7 2 (...continued) (iv) T he permissib le uses of the real p rope rty; (v) T he density or in tensity of u se of the real p rope rty; (vi) The maximum height and size of structures to be located on the real prop erty; (vii) A description of the permits required or already approved for the develop men t of th e rea l property; (viii) A statement that the proposed development is consistent with the plan and development regulations of the local jurisdiction; (ix) A description of the conditions, te rms, restrictions , or other requ irements determined by the governing body of the local jurisdiction to be necessary to ensure the public health, safety, or welfare; and (x) To the extent applicable, provisions for the: 1. Dedication of a portion of the real property for public use; 2. Protection of sensitive areas; 3. Preservation and restoration of historic structures; and 4. Construction or financing of public facilities. (2) A n agreem ent m ay: (i) Fix the time frame and terms for development and construction on the real property; and (ii) Provide for other matters consistent with this article. (g) Time limitations. An agreement shall be void 5 years after the day on which the parties execute the agreement unless: (1) Otherwise established under subsection (f)(1)(iii) or (2)(i) of this section; or (2) Extended by amendment under subsection (h) of this section. (h) Amendment of agreem ents. (1) S ubject to pa ragraph (2 ) of this subsection and after a public hearing, the parties to an agreement may amend the agreem ent by mutua l consent. (2) Unless the planning commission of the local jurisdiction determines that the proposed amendment is consistent with the plan of the local jurisdiction, the parties m ay not amen d an agree ment. (i) Termination of agreements; suspension. (1) The parties to an agreement may terminate the agreem ent by mutua l consent. (2) If the public principal or the governing body determines that suspension or termination is essential to en sure the pu blic health, saf ety, or welfare, th e public principal or its governing body may suspend or terminate an agreement (contin ued...) 8 implementing provisions of Queen Anne s County Code ( QACC ) §§ 18-1301 through 1311. 3 The draft DRRA was vetted through a series of hearings before the Planning 2 (...continued) after a public hearing. (j) Applicable laws, regulations and policies. (1) E xcept as pro vided in paragraph (2) of this subsection, the laws, rules, regulations, and policies governing the use, den sity, or intensity of the real property subject to the agreement shall be the laws, rules, regulations, and policies in force at the time the parties ex ecute the ag reement. (2) If the local juris diction determ ines that com pliance with laws, rules, regulations, and policies enacted or adopted after the effective date of the agreement is essential to ensure the health, safety, or welf are of reside nts of all or part of the jurisdiction, an agreement may not prevent a local government from requiring a person to comply with those laws, rules, regulations, and policies. (k) Recording. (1) An agreement that is not recorded in the land records office of the local jurisdiction within 20 days after the day on which the parties execute the agreement is void. (2) The parties to an agreement and their successors in interest are bound to the agreement after the agreement is recorded. (l) Enforcement by interested parties. Unless the agreement is terminated under subsection (i) of this section, the parties to an agreement o r their successors in interest ma y enforce the agreeme nt. (m) Adoption of ordinance not required. This section does not require the adoption of an ordinance by a governing body or authorize a governing body to require a p arty to enter into an agreeme nt. 3 Queen Anne s County Code §§ 18-1301 through 1311 (2004) state: 18-1301. Definitions. Unless otherwise provided in this subtitle, the defi nitio ns pr ovid ed in § 18-1-0 01 of this title s hall a pply. 18-1302. Authority . The County Commissioners for Queen Anne s C ounty shall exercise the authority granted by Section 13.01 of Article 66B, Zoning and Planning, of the Annotated Code of Maryland to enter into development rights and re sponsibility agree ment. 18-1303. Applicab ility. Any person having a legal or equitable interest in (contin ued...) 9 3 (...continued) real prop erty in Que en A nne s Co unty m ay petition the County Com missioners for Que en Ann e s Coun ty to enter into an a greemen t. 18-1304. Contents of development rights and responsibilities agreement. (a) At a minim um a dev elopmen t rights and respo nsibilities agree ment shall contain the following: (1) A lawyer s certification that the petitioner has either a legal or eq uitab le int erest in th e pro perty; (2) The names of all parties having an equitable or legal interest in the property, including lien holders; (3) A legal de scription of th e property sub ject to the agreeme nt; (4) The d uration of th e agreem ent; (5) T he permissib le uses of the real p rope rty; (6) The density or intensity of use; (7) The maximum height and size of structures; (8) Descriptio n of the pe rmits required or already approved for the d evel opm ent o f the prop erty; (9) A statement that the prop osed dev elopmen t is consistent w ith applicable development regulations, the Comprehensive Plan and Growth Area Plan; (10) A description of the conditions, terms, restrictions or other requireme nts determine d by the Cou nty Comm issioners, or the ir designees, to be nece ssary to ensure the public health, safety and welfare; (11) To the extent app licable, provisions for: (i) Dedication of a portion of the real property for public use. (ii) Protection of sensitive areas; (iii) Preservatio n and resto ration of histo ric structures. (iv) Construction or financing of public facilities; (v) Responsibility for attorney s fees, costs and expenses incurred by the Coun ty Commissione rs in the event an agreement is abandoned or breached by the petitioner. (b) An agre ement m ay fix the period in and terms by which development and (contin ued...) 10 3 (...continued) construction may commence and be completed, as well as provide for other matters consistent with this title. 18-30 5. Referral to Planning Commission. Upon receipt of a petition, the County Commissioners shall refer the petition to the Planning Commission for a determina tion wheth er the propo sed agreem ent is consis tent with the Comprehensive Plan and, where applicable, the Growth Area Plan. The County Commissioners may not enter into an agreement unless the Planning Commission determine s whethe r the propo sed agreem ent is consis tent with the Comprehensive Plan and, where applicable, the growth area plan. 18-306. Public Hearing. Before an agreement may be executed by the County Com mission ers, the County Commissioners shall hold a public hearing on the agreement. No tice of the he aring shall be published in a county newspaper of general circulation once each week for two consecutive weeks, with the first such publication of notice appearing at least 14 days prior to the hearing. The notic e shall contain the name of the petitioner, a brief description sufficient to identify the property involved, a fair summary of the contents of the petition and the date, time and place of the public hearing. 18-1307. Amend ment of ag reemen ts. (a) S ubject to paragraph (b) of this subsection and after a public hearing, the parties to an agreement may amend the agreem ent by mutua l consent. (b) The parties may not amend an agreement unless the Planning Commission determines whether the proposed amendment is consistent with the Comprehensive Plan and, where applicable, the Growth Area Plan. 18-1308. Termination of agreements; suspension. (a) The parties to an agreeme nt may termin ate the agree ment by mu tual consen t. (b) After a public hearing, the County Commissioners may suspend or terminate an agreem ent if the County Commissioners determine that suspension or termination is essential to ensure the public health, safety or welfare. 18-1309. Applicable laws, regulations and policies. (a) Except as provided in paragraph (b) of this subsection, the laws, rules, regulations and policies (contin ued...) 11 Commission and the County Comm issioners. On 11 July 2002, the P lanning C ommissio n conside red the prop osed DR RA at a public hearing. At the hearing, the Planning Commission indicated tha t there were certain technical issues that yet needed to be addressed, but concluded nonetheless that the proposed DRRA was consistent with the 2002 Comprehensive Plan for Queen Anne s County, as well as the applicable Stevensville and Chester Community Master Plans. The County Co mmission ers held a pu blic hearing on the proposed DRRA on 6 August 2002. Following the public hearing, the proposed DRRA was modified based on commen ts from all the previous hearings. On 17 September 2002, a final DRRA was executed by Hovna nian and th e Coun ty Commissioners. In pertinent part, the DRRA: (1) 3 (...continued) governing the use, den sity or intensity of the real property subject to the agreement shall be the law s, rules, regulatio ns and po licies in force at the time the Coun ty Commiss ioners and the petitioner e xecute the a greemen t. (b) An agreement may not prevent compliance with the laws, rules, regulations and policies enacted after the date of the agreeme nt, if the Cou nty Commissione rs determine that imposition and compliance with these laws and regulations is essential to ensure the public health, safety or welfare of resid ents of al l or part of Qu een A nne s Co unty. 18-1310. Recording. (a) An agreement shall be void if not recorded in the land records of Queen A nne s County within 20 days after the day on which the Coun ty Commiss ioners and the petitioner e xecute the a greemen t. (b) When an agreement is recorded, the County Commissioners and the petitioner, and their success ors in interest, are bound to the agreem ent. 18-1311. Enforc emen t by inter ested p arties. Unless terminated un der § 18308 of this subtitle, the County Commissioners or the petitioner, and their successors in interest, may en force the a greemen t. 12 established limitations on allowable development, including limitations on density and inten sity; (2) established detailed requirements concerning public improvements to be financed by Hovnanian, including a dedication of parkland , construction of park facilities, purchase of off-site parkland, construction and reconstruction of public roads and paths, and construction of public facilities both on-site and off-site; (3) established timing for water and sewer allocation; (4) r equired su bstantial cash payments to th e Kent Island Volunteer F ire Department and to the County; and (5) froze the laws and regulations governing the use, density or intensity of the development as of the date of the execution of the Agreement for the duration of the Agreement. The DRRA was recorded on 18 September 2002. B. Circuit Court Proceedings The Conservation A ssociation file d a Com plaint for D eclaratory and I njunctive R elief with the Circuit Court for Queen Anne s County on 8 October 2002, asserting an array of legal defects w ith regard to th e DRR A. The C onservation Association requested a declaration that the DRRA w as an illegal contract violative of a prohibition against conditional use zoning; th at the DRRA was illegal contract zoning; that the DRRA was violative of constitutional due process because it created preferences for Hovanian s project denied to other developers under the law; that the process leading to approval and execution of the DRRA violated the hearing requirements of § 13.01(j)(2) of Article 66B because certain provisions were inserted in the final draft which did not appear in the earlier versions that were the subject of public hearings; and, that the DRRA violated the County s existing 13 moratorium on new development and, thus, rendered the moratorium a spe cial law contrary to Article III, § 33 of the Maryland Constitution. Hovnanian and the County Commissioners filed a Motion to Dismiss, under Maryland Rule 2-322, arguing, among other things, that the Conservation Association failed to exhaust available administrative remedies by not appealing to the Board of Appeals for Queen Anne Cou nty. After briefing and oral argument on 25 February 2003, the Circuit Court dismissed the Com plaint, reasoning preeminently that the Conservation Association should have appealed the County Commissioners approv al and exe cution of th e DRR A to the C ounty Board of Appeals ( the Board ), as required by Maryland Cod e (1957, 2003 R epl. Vol.), Article 66B § 4.07 and QACC §§ 18-1-174 through 18-1-180. The Board is to hear and decide appea ls whe re it is alleg ed there is an erro r in any ord er, requ iremen t, decisio n, or determination made by an administrative officer in the enforcement of [Art. 66B] or of any ordinance adopted u nder this article. Md. Code (1957, 2003 Repl. Vol.), Art. 66B § 4.07(d)(1). Similarly, QACC § 18-1-175(a) provides that the Board shall have the power to hear and decide appeals where it is alle ged that . . . there is error in any ord er, requirem ent, decision, or determination made by an administrative official in the enforcem ent of Ar ticle 66B o f the A nnotate d Cod e of M aryland o r this sub title . . . . The Circuit Co urt conclud ed that, when the County Commissioners approved and executed the DRRA, it acted collectively as an administrative officer, i.e., as the public principal contemplated in the DRRA enabling legislation, defined as the governmental 14 entity of a jurisdiction tha t has been g ranted the a uthority to enter agree ments un der . . . this section . Md. Code (1957, 2003 Repl. V ol.), Article 66B § 13.01(a)(4). The administrative process of appealing to the Board, therefore, was available to the Conservation Association and a necessary step in the process of seeking redress on its claims. The Circuit Court also considered Article 66B, § 4.08, which provides for imme diate judicial review by a circuit court of a zoning action of a local legislative body. Md. Code (1957, 2003 Repl. Vol.), Article 66B § 4.08(a)(1). The court concluded, however, that because the C ounty Commissio ners had acte d administrativel y as a statutory public principal when it executed the DRRA, it did not act as a local legislative body, a prerequisite to immediate judicial review under Article 66B, § 4.08. Alte rnatively, it seems, the c ourt also co ncluded th at if no dis tinction is made between the exercise of the cou nty s powers as a gove rning bod y and its powers as public principal, i.e., it is viewed as a local legislative body in both instances, the result would be direct review by this Court under § 4.08. In other w ords, Article 6 6B, § 13.0 1, in the Circu it Court s view, might countenance diff erent methods of rev iew. In either event, how ever, because the Conservation Association sought neither an admin istrative appe al to the Board of Appeals nor judicial review pursuant to Maryland Rules 7-201 through 7-209, dismissal of the Comp laint for Declaratory and Injunctive R elief was proper. We shall affirm the judgment of the Circuit Court in dismissing this case for Appellants failure to exhaust their available administrative remedies. The Conservation 15 Association s proper recourse in the present case wa s an administrative appeal to the Board of Appea ls under Article 66B, § 4.07 and, if aggrieved by the Board of Appeals s final action, a petition for judicial rev iew in the C ircuit Court. III. As alluded to earlier, Queen Anne s County is a Code home rule county within the purview of Article 25B of the Maryland Code. Article 66B of the Maryland Code, governing land use, applies to Code counties and requires the legislative bodie s of such c ounties to provide for the appointmen t of a board of appeals. M d. Code (1957 , 2003 Repl. Vo l.), Art. 66B, § 4.07(a)(1). Each board of appeals possesses expressly delegated general powers, including the power to [h]ear and decide appeals where it is alleged there is an error in any order, requirement, decision, or d etermination made by an administrative officer in the enforcement of this article [i.e., Art. 66 B] or o f any ord inance adopte d unde r this artic le. Md. Cod e (1957, 2003 R epl. Vol.), Art. 66B, § 4.07(d)(1 ). In Miller v. Pin to, 305 Md. 396, 403 n.4, 504 A.2d 1140, 1143 n.4 (1986), we stated that the local legislative body in a code county is required to enact local laws authorizing the county s boa rd of app eals to exercise the powers provided by § 4.07(d) of Art icle 66B . Acc ordingly, the County Commis sioners enacted an ordinance establishing the Board of Appea ls of Queen Anne s County. QACC § 18-1-174(a). The establishing ordinance states that the Board shall have the powers and duties provided in Article 66B of the Annotated Code of Maryland and in this subtitle. QACC § 18-1-174(b). Mirroring the delegation of 16 powers in Article 66B, the County Commissioners granted the Board the power to hear and decide appeals w here it is alleged that: (i) there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of Article 66B of the Annotated C ode of M aryland. QACC § 18-1-175(a)(1)(i). A. Adm inistrative Officer 4 The Con serv ation Associa tion contend s that the C ounty Commissioners did not act as an administrative official because its determination of the DRRA s contents was a fundam entally legislative, rather than an administrative act. In particular, the Conservation Association points to the DRRA s description of the conditions, terms, restrictions or other requirements determined by the governing body of the local jurisd iction to be n ecessary to ensure the public health, safety, or welfare, as being the heart and soul of the agreem ent. Md. Code (1957 , 2003 R epl. Vo l.), Art. 66 B, § 13 .01(f)(ix ). The Conservation Association concludes that a determination by the governing body of the local jurisdiction as to what terms, conditions, re strictions or oth er requirem ents are necessary to ensure the public hea lth is the very e ssen ce o f the legis lativ e fun ction perf ormed by local elected officials. We disagree with this analysis for two reasons. 4 Marylan d Cod e (1957 , 2003 R epl. Vo l.), Article 66B, § 4.07(d)(1) uses the term administrative officer, whereas Queen Anne s County Code § 18-1-175(a)(1)(i) uses the term administrative official. We view the terms, in this particular context, as intercha ngeab le. See 64 Md. O p. Atty. Gen. 349, 356 n.7 (19 79). 17 First, the negotiation of terms protective of public health, safety, or welfare, in a contract entered into by a local gov ernment b ody is a discretionary executive act, no t a legislative one. See Montgomery County v. Revere Nat l Corp., Inc., 341 Md. 366, 390, 671 A.2d 1, 12 (1996) ( When the executive branch of the county government, in carrying out the laws and functions of government, enters into a contract, such action constitutes the exercise of executive discretion. ). A DRRA is not an ordinance or legislation as those terms are commonly unde rstood; rather, it is a contract w hose purp ose is to vest rig hts under zoning laws and regulations, in consideration of enhanced public benefits. Second, the public principal, not the governing body, has the principal responsibility and authority under the DRRA statute to protect the public health, safety, and welfare. Md. Code (1957, 2003 Repl. Vol.), Art. 66B, § 13.01. As we shall explain, the County Commissioners was acting as the public principal, i.e., actin g in its executive and administrative capacities, when it approved and executed the DRRA in this case. As a general matter, it long has been recog nized in M aryland that C ounty Commissione rs in much of their functioning act as administrators or in an executive capac ity. City of Bowie v. County Comm rs for Prince George s County , 258 Md. 454, 461, 267 A.2d 17 2, 176 (19 70). It is recognized that the protea n nature of a board o f county commissioners makes it a unique body and somewhat of a hybrid. Bd. of Co unty Comm rs of Washington County v. H. Manny Holtz, Inc., 60 Md. App. 133, 142, 481 A.2d 513, 518 (1984). W e have no ted that: 18 County Commissioners are outgrowths of the old Levy Courts originally established by the Act of 1794, Chapter 53. These courts were composed of the Justices of the Peace of the several counties. Their dutie s were to meet and to adjust the ordinary and necessary expenses of their counties, and to impose an assessme nt or rate on p roperty to defra y county charges. During the course of the succee ding fifty years the n ame Co unty Comm issioners cam e into existence. It was first recognized in the underlying law of the state in the Constitution of 1851, Article 7, Section 8. In that constitution it was provided that the commissioners should exercise only such powers and duties as the legislature should fro m time to time pre scribe. When the present Constitution of 1867 was adopted, Article VII, Section I, provided that the power and duties of County Commissioners should be such as now or may be hereafter prescribed by Law. Until the constitution of 1867, County Commissioners were simply administrative officers in charge of county finances, and taking care of the public roads. After the constitution of 1867 these powers could be broa dened by legis lativ e aut hority. Cox v. Bd. of Co mm rs o f Anne A rundel C ounty, 181 Md. 428, 433-34, 31 A.2d 179, 182 (1943) (citations omitted). A board of cou nty commissio ners func tions as the co unty government and is the county body politic. In performing its various functions, it exercises legislative, quasi-legislative, executive, and quasi-judicial authority, sometimes in comb ination. H. Ma nny Ho ltz, 60 Md. A pp. at 144, 4 81 A.2d at 518. A b oard of co unty commissioners can, for example, control county property and roads, enact county ordinances, enforce building codes, borrow money and issue bo nds all in ad dition to their authority under Art. 66B of the Maryland Code to enact, administer, and enforce zoning and land use laws. H. Ma nny Ho ltz, 60 Md. App. at 143, 481 A.2d at 518. As the present case illustrates, the County Commissioners particular ex ercise of its distinct roles in a give n situation de termines the appeal rights of those affected. We have held, for example, that a statute tha t authorized appeal to a circuit court from an assessment 19 made by the county commissioners did not authorize an appeal from a tax valuation by a board of county commissioners sitting as the county board of control and review. Chesapeake & Potomac Tel. Co. v. Bd. of County Comm rs , 116 Md. 220, 226, 81 A. 520, 522 (1911). A lthough the same indiv iduals com posed the two boards, we reasoned that their duties are as separate and distinct in the respective capacities in which they act, as if they were different individuals. Chesapeake & Potomac Tel. Co., 116 Md. at 225, 81 A. at 522. As regards DRRAs in particular, Maryland Code (1957, 2003 Repl. Vol.), Article 66B, § 13.01(a)(4) defines the public principal as the governmental entity of a local jurisdiction that has been granted the authority to enter agreements under a local ordinance. The Coun ty Commissioners in Queen Anne s County exercise the administrativ e authority of the pub lic princ ipal with respec t to DR RAs. QACC § 18-1302.5 Maryland Code (1957, 2003 Repl. Vo l.), Article 66B , § 13.01 en ables the p ublic principal to perform a series of essentially administrative tasks that include: § 13.01(c) (accepting the petition of a property owner or its representatives for a DRRA); § 13.01(d) (holding a hearing on the petition); §§ 13.01(b)(2) and 13.01(e) (executing the DRRA after obtaining the local planning commission s approva l); § 13.01(h) (amendin g the DR RA, if desired, by mutual consent and 5 Queen Anne s County Code § 18-1302 provid es that the County Com missioners for Queen Anne s C ounty shall exercise the authority grante d by Section 1 3.01 of A rticle 66B, Zoning and Planning, of the Annotated Code of Maryland to enter into development rights an d respo nsibility ag reeme nts. 20 after public hea ring); § 13.01 (i) (either termin ating the D RRA by mutual consent or, if essential to ensure th e public he alth, safety, or welfare, suspending or terminating the DRRA after a public hearing). The Queen Anne s County Code, tracking Maryland Code (1957, 2003 R epl. Vo l.), Article 66B, § 13.01, assigns this same series of administrative functions of the pu blic principal to the County Commissioners: QACC § 18-1303 (accepting the petition of a property owner for a DRRA); § 18-1306 (holding a hearing on the petition); §§ 18-1302 and 18-1305 (executing the DRRA after obtaining the local planning commission s approval); §§ 18-1307(a) (amending the DRRA, if desired, by mutual consent and after public hearing); and § 18-1308 (either terminating the DRRA by mutual consent or, if essential to ensure the public health, safety, welfare, suspending or terminating the DR RA after a pu blic hearing). Subsection (b) of Article 66B, § 13.01 divides authority for the creation of DRRAs into two parts. Under Article 66B, § 13.01(b)(1), the governing body of a county (in the present case the County Commissioners) is given power to: (i) By ordinance , establish procedures and requirements for the consideration and execution of agreements; and (ii) Delegate all or part of the authority established under the o rdinance to a public princip al within the jurisd iction of the gov erning body. These powers of the governing body are circumscribed by statutory direction that the pow ers of the g overning body are Subject to subsections (c) through (l) of this section. Under Article 66B, § 13.01(b)(2), a public principal is given power to: 21 (i) Execute agreements for real property located within the jurisdiction of the governing body with a person having a legal or equitable interest in the real property; and (ii) Include a federal, State, or local government or unit as an add itional party to the ag reeme nt. The distinction between the legislative powers of the governing body and the executive and administrative powers of the public principal is important. The governing body has no power with respect to the actual operation of the statute. Aside from those matters listed in § 13.01(b)(2) above, the governin g body may on ly and co-exte nsively with the public principal, after a public hearing . . . suspend or terminate an agreement upon determination that such is e ssential to ensure the public health, safety, or welfare. Md. Code (1957, 2003 Repl. Vol.), Art. 66B, § 13.01(j). Otherwise, the governing body has no authority with respect to any particular DRRA. The public principal, on the other hand, is defined as the governmental entity of a jurisdiction tha t has been g ranted the a uthority to enter ag reements under . . . this section . Md. Code (1957, 2003 Repl. Vol.), Art. 66B, § 13.01(a)(5). Sole power to negotiate, execute, and enforce agreements lies with the public prin cipal. Petitions to enter into agreeme nts are made to the public principal; and the required public hearing is conducted by the public principal. In any particular case, the only limitations on the pu blic principal s authority is to follow general procedures adopted by the governing body and a requirement unrelated to the governing body or its legislative functions that all agreements be determined by the Planning Commission to be consi stent w ith the pl an of th e jurisdic tion. 22 Md. Code (1957 , 2003 R epl. Vo l.), Art. 66 B, § 13 .01(e). Further evidence of the distinction, and the autono my of the pu blic principal, lies in Article 66B, § 13.01(m) which states, this section does not require the adoption of an ordinance by a govern ing body. T his can on ly be read as applying to agreements, because an earlier provision, specifically requires that procedures be established by ordinance. Md. Code (1957, 2003 Repl. Vol.), Art. 66B, § 13.01(b )(1)(i) The County Commissioners in the present case succe ssively wore tw o differen t hats and performed a legislative action followed by an administrative/executive action. The test to determine when action is legislative and when executive or administrative is whether the [action] is one making a new law - an enactment of general application prescribing a new plan or policy - or is one which merely looks to or facilitates the administration, execution or implementation of a law already in force and effect. City of Bo wie, 258 Md. at 463-64, 267 A.2d at 1 77 (c itatio ns om itted ). Initially, the C ounty Commissio ners acte d leg islati vely, as a governing body under Maryland Code (1957, 2003 Repl. Vol.), Article 66B, § 13.01(b)(1), by authorizing DRRAs in Queen Anne s County throug h enactm ent of Su btitle 13 of the Land Use and Development Title of the Queen Anne s County Code. In enacting Subtitle 13, the County Comm issioners rese rved to them selves the ro le of the p ublic principal under M aryland Cod e (1957, 20 03 Rep l. Vol.), Article 6 6B, § 13.0 1, with its concomitant powers to conduct hearings on, enter into, execute, and enforce DRRAs. Sub sequ ently, the County Commissioners signed off on the DR RA in its administrative and 23 executive role as the public principal. The County Commissioners approval was the act of an administrative officer o r administrative official under the M aryland and C ounty Codes, resp ectiv ely, be caus e th e term adm inistrativ e off icial is m ost re ason ably read as embracing whatever administrative mechanism a local jurisdiction in Maryland sets up to enforce its planning and zoning laws and ord inance s, includ ing a m ulti-mem ber bod y . . . . See Wharf at Han dy s Point, Inc. v. Dep t of Natural Res., 92 Md. App. 659, 672, 610 A.2d 314, 320 (1992) (holding tha t the term an administrativ e official in § 4.07(d) includes the Kent County Planning Commission) (citation om itted); Howard Research & Dev. Corp. v. Concerned Citizens for Columbia Concept, 297 Md. 357, 366-67, 466 A.2d 31, 35-36 (1983) (holding that a five-member Planning Board constituted the administrative official whose decisions were subject to appeal to the Howard C ounty Board of App eals); see also Md. Code (1957, 2001 Repl. Vol.), Art. 1, § 8 (stating the rule of construction when interpreting the Code is that the singular always includes the plural, and vice versa, except where such construction wou ld be unreasonab le. ). B. The S cope of th e Board s Authority The Conserv ation Asso ciation also co ntends that QACC § 18-1-175 contemplates that aggrieved persons may appeal to the Board only from decisions of the Planning Director or any other emp loyee of the D epartmen t of Plannin g and Zo ning. QA CC § 1 8-1-179(c ). This kind of limiting argument was raised to no avail by the appellees in Wharf at H andy s P oint. 24 We agree with the Court of Special Appeals reasoning in Wharf at Han dy s Point and apply it to the pr esent ca se. Wharf at Handy s Point, 92 Md. App. at 670-73, 610 A.2d at 319-20. In Wharf at Handy s Point, an issue arose as to whether the term administrative official included the Kent County Planning Commission, within the m eaning of the statute requiring county boards of appeals to hear and decide appeals from administrative officials. Pursuant to the autho rity granted to it in Article 66B, § 4.07(d), the Coun ty Commissioners of Kent County provided in its zoning ordinance that the Board of Appeals shall have the power [t]o hear and decide appeals of any decision or determinations made by the Administrator in the enforcem ent and ad ministration o f this Ordinance. Ordinance, Art. IX, § 2.1. The zoning ordinance defined the Administrator as [t]he Zoning Administrator of Kent County. Appellees there argued that an ad ministra tive off icial in A rticle 66 B, § 4.07(d) should not be construed to include the Kent County Planning Commission. The Court of Special Appeals quoted the Attorney General s conclusion that on the whole, we think the term administrative official is most reasonably read as embracing whatever administrative mechan ism a local ju risdiction in Maryland s ets up to enf orce its planning and zoning laws and ordinances, i nclu ding a mu lti-m emb er bo dy such as a local planning comm ission. Wharf at Handy s Point, 92 Md. App. at 672, 610 A.2d at 320 (quoting 64 Op. Atty Gen. 349, 355 n.4 (1979)). The intermediate appellate court concluded that regardless of what was intended by the County Commissioners in the local ordinance , the more b roadly drafted Article 66B, § 4.07(d) took precedence, and inves ted the local b oard of ap peals with 25 authority to hear app eals from th e Kent C ounty Planning Commission, as well as the Zoning Admin istrator. Wharf at Handy s Point, 92 Md. App. at 670-73, 610 A.2d at 319-20. Furthermore, the Court o f Special Appeals s interpretation of the overriding authority of Article 66B, § 4.0 7(d), is consiste nt with the 1971 amendment of Article 66B, § 4.07. 1971 Md. Laws, Chap. 793. The 1971 revision of Article 66B, § 4.07 broadened its scope, empowering local boards to act on matters arising out of the enforcement of any part of Article 66B o r an ord inance passed under a ny of the subtitles of Art icle 66B . 64 Op. Att y Gen. 349, 351 (1979). In addition, our conclusion that Article 66B, § 4.07 overrides the reference in QACC § 18-1-175 to the Planning Director is consistent with the established principle that in cases of conflict between local and State enactments, the State statute must prevail. Boulden v. Mayor and Co mm rs of Town of Elkton, 311 Md. 411, 415, 535 A.2d 477, 479 (1988) (finding that Article 66B, § 4.08 overrode local ordinance limiting right of appeal from the board of appeals). The Board has the general power to decide an appeal involving an error in any order, requiremen t, decision or determination made by an administrative official. QAC C § 18-1-175 (a)(1)(i). The Board s gen eral powers refer to an administrativ e official (not limited to the Planning Director) an d encom pass the en tirety of Article 66B (not simply the Planning Director s role in the administration of zoning issues). Acc ordingly, under the authority of Article 66B, § 4.07, the Board is the proper body to hear and decide in the first instance an appeal from the County Com missioner s 26 administrative/executive actions in negotiating and executing the DRRA with Hovnanian. The Conserv ation Asso ciation s failur e to avail itself of this appeal to the Boa rd means that the Conservation Association failed to exhaust its administrative remedies. As exclusive or primary administrative remedies must be exhausted before judicial relief is sought, the present litigation could not be ma intained and must b e dismis sed. See Brown v. Fire and Police Employees Retirement System, 375 Md. 661, 669, 826 A.2d 525, 530 (2003) ( The exhaustion doctrine enforces the notion that an administrative agency should have the opportunity to exercise its expertise first to resolve an issue. ). JUDGM ENT AFFIRMED. COSTS TO BE PAID BY APPELLANTS. 27

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.