                REPORTED

IN THE COURT OF SPECIAL APPEALS

              OF MARYLAND

                  No. 2104

           September Term, 2015


      EDWARD G. MODELL, ET AL.

                     v.

      WATERMAN FAMILY LIMITED
         PARTNERSHIP, ET AL.



       Berger,
       Shaw Geter,
       Eyler, James R.,
        (Senior Judge, Specially Assigned)

                     JJ.*


       Opinion by Eyler, James R., J.


Filed: March 2, 2017


* Judge Christopher B. Kehoe did not
participate in the decision to report this opinion
       The issues raised in this case are related to the issues raised in the case of Boomer,

et al v. Waterman Family Limited Partnership, et al, ___ Md. App. ___, No. 1783,

September Term 2015 (filed: March 2, 2017). The underlying issue that gave rise to both

appeals is whether the Board of County Commissioners for Queen Anne’s County (“the

County Commissioners”) had the authority to rescind a previously adopted resolution in

which they had approved the rezoning of a parcel of land that had been annexed and

rezoned by the Town of Queenstown. In Boomer, the challenge was to the second

ordinance that purported to rescind the first ordinance. On this appeal, the challenge is to

the first ordinance.

       The procedural genesis of this appeal was a petition for judicial review filed on

October 9, 2015 in the Circuit Court for Queen Anne’s County by Kathleen B. Boomer,

Marie J. McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne’s

Conservation Association (“QACA”), whom we shall refer to collectively as the QACA

appellants. The Waterman Family Limited Partnership and the Town Commissioners of

Queenstown, appellees, responded to the petition for judicial review and filed motions to

dismiss. On November 9, 2015, appellant Edward G. Modell, who is proceeding in proper

person in this appeal, as he did below, filed a response to the petition for judicial review in

which he declared his intention to participate in the litigation. He requested that the hearing

on the motions to dismiss, set for November 17, 2015, be postponed on the ground that he

and several others were not given proper notice. The court did not rule on Mr. Modell’s

request for postponement, but the hearing was held as scheduled and was attended by all

of the parties, including Mr. Modell. After the hearing, the circuit court dismissed the
petition for judicial review on the grounds that it was barred by time and by res judicata.

This timely appeal followed.

                                QUESTIONS PRESENTED

        The QACA appellants present the following two questions for our consideration:

        I. Did the circuit court err when it held that appellants’ petition for judicial
        review was not timely filed?

        II. Did the circuit court err when it held that appellants’ petition for judicial
        review was barred by res judicata?

        Mr. Modell joins in the questions presented by the QACA appellants and also asks

us to consider the following issue:

        III. Whether the circuit court erred in holding that collateral estoppel applied
        to him in this action.

        For the reasons set forth below, we hold that, although the petition for judicial

review was filed timely, in light of our decision in Boomer that the County Commissioners

did have the authority to rescind the prior resolution, the issues presented in this appeal are

moot.

                               FACTUAL BACKGROUND

        The background facts are set forth in the related Boomer case, and we duplicate the

recitation of facts herein:

        The basic facts are not in dispute. Waterman is the owner of approximately 140

acres of land in Queen Anne’s County, commonly referred to as the Wheatlands Farm

property, located immediately south of U.S. Route 50 and across from a commercial

development known as the Queenstown Outlets. The property was zoned Countryside, a

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designation that permitted agricultural and low density uses. On June 25, 2014, Waterman

filed a petition with the Town of Queenstown seeking to have the Wheatlands Farm

property annexed into the town. The goal, after annexation, was to seek rezoning. After a

public hearing, the Town Commissioners voted to annex the property. Thereafter, the Town

Commissioners enacted an ordinance rezoning the Wheatlands Farm property from

Countryside to Planned Regional Commercial, which permitted commercial and high

density uses. The effective date of that ordinance was dependent upon a waiver by Queen

Anne’s County of the existing zoning density pursuant to Md. Code (2013 Repl. Vol., 2014

Supp.), §4-416(b) of the Local Government Article (“LG”). 1 The statute provided that the



1
    Section 4-416 of the Local Government Article provided, in part:

                  (a) Existing municipal authority. -- (1) Notwithstanding § 4-104(f) of
         this title, if an area is annexed to a municipality that has planning and zoning
         authority at the time of annexation, the municipality shall have exclusive
         jurisdiction over planning, subdivision control, and zoning in the area
         annexed.

                                      *      *       *

                (b) Different land use or density. -- Without the express approval of
         the county commissioners or county council of the county in which the
         municipality is located, for 5 years after an annexation by a municipality, the
         municipality may not allow development of the annexed land for land uses
         substantially different than the authorized use, or at a substantially higher
         density, not exceeding 50%, than could be granted for the proposed
         development, in accordance with the zoning classification of the county
         applicable at the time of the annexation.

               (c) County approval of zoning classification. -- Notwithstanding § 4-
         204 of the Land Use Article and if the county expressly approves, the
         municipality may place the annexed land in a zoning classification that
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property could not be rezoned to permit development for uses substantially different from

previously authorized uses or uses at a substantially higher density, for a period of five

years, unless the County Commissioners granted express approval and waived the five-

year period.

       After a public hearing, on November 25, 2014, by a vote of three to two, the County

Commissioners passed Resolution 14-31, which granted the express approval needed to

allow for rezoning to a classification that was substantially different and at a higher density.

The approval of Resolution 14-31 allowed development consistent with the “Planned

Regional Commercial” classification without having to wait the five-year period referred

to in LG §4-416.

       On December 2, 2014, four County Commissioners, elected at the 2014 general

election, were sworn into office. On December 9, 2014, the County Commissioners, by a

four to one vote, adopted Resolution 14-33, which rescinded the express approval that

previously had been granted.




       allows a land use or density different from the land use or density specified
       in the zoning classification of the county or agency with planning and zoning
       jurisdiction over the land prior to its annexation applicable at the time of the
       annexation.
       The provisions of LG § 4-416, along with other annexation provisions, became
effective on October 1, 2013. LG § 4-416 was derived without substantive change from
Md. Code (1957, 1973 Repl. Vol., 2012 Supp.), Art. 23A, §9(c) (1) and (2) and §19(s).



                                               4
       In response to that action, Waterman filed in the Circuit Court for Queen Anne’s

County a petition for judicial review, a writ of administrative mandamus, and a complaint

for declaratory judgment seeking a declaration and order that the passage of Resolution 14-

33 was invalid, illegal, and outside the scope of the statutory authority granted to the

County Commissioners. The Town Commissioners joined in that action.

       The QACA appellants intervened as interested parties, asserting basically the same

position as the County Commissioners. The cases filed by Waterman were consolidated.

Ultimately, the circuit court concluded that the County Commissioners “had no authority

to repeal and rescind Resolution 14-31.” On July 21, 2015, the court granted summary

judgment in favor of Waterman and the Town Commissioners, and granted the relief

requested in the petition for judicial review and writ of administrative mandamus. It also

issued a declaratory judgment providing that “Resolution 14-33 adopted by the County

Commissioners of Queen Anne’s County on December 9, 2014, . . . hereby is declared to

be null, void and of no legal force and effect.”

       The County Commissioners filed a motion for reconsideration. After a hearing, on

September 30, 2015, the court denied the motion. The County Commissioners and the

QACA appellants noted appeals to this Court. Subsequently, the County Commissioners

dismissed their appeal, and the case proceeded with the QACA appellants.

       In addition to filing notices of appeal in Boomer, on October 9, 2015, the QACA

appellants filed in the Circuit Court for Queen Anne’s County a petition for judicial review,

seeking review of the County Commissioners’ enactment of Resolution 14-31. Waterman

and the Town Commissioners filed motions to dismiss that petition for judicial review on

                                              5
the grounds that it was untimely and barred by res judicata. An interested party, Edward

G. Modell, filed a response to the petition for judicial review and a request to have the

hearing on the petition postponed. The circuit court did not rule on Mr. Modell’s request

for postponement, but Mr. Modell appeared at the hearing on November 17, 2015.

Following that hearing, the court dismissed the petition for judicial review on the grounds

that it was untimely and barred by res judicata. It also held that Mr. Modell’s claims were

barred by collateral estoppel. The QACA appellants and Mr. Modell filed timely notices

of appeal.

       We shall include pertinent facts in our discussion of the issues presented.

                                       DISCUSSION

                                              I.

       The QACA appellants and Modell argue that the circuit court erred in dismissing

their petition for judicial review. In determining the grant of a motion to dismiss, we “must

determine whether the court was ‘legally correct.’ We accept all well-pled facts in the

complaint, and reasonable inferences drawn from them, in a light most favorable to the

nonmoving party.”       Cochran v. Griffith Energy Servs., Inc., 426 Md. 134, 139

(2012)(internal citations omitted).

       The circuit court determined that the petition for judicial review was untimely

because it was not filed in compliance with Maryland Rule 7-203(a), which provides:

               (a) Generally. Except as otherwise provided in this Rule or by statute,
       a petition for judicial review shall be filed within 30 days after the latest of:

                (1) the date of the order or action of which review is sought;

                                              6
                (2) the date the administrative agency sent notice of the order or
       action to the petitioner, if notice was required by law to be sent to the
       petitioner; or

                 (3) the date the petitioner received notice of the agency’s order or
       action, if notice was required by law to be received by the petitioner.

       Because a circuit court does not have discretion to consider late-filed petitions for

judicial review, the court cannot review an administrative decision when the petition is

filed beyond the thirty-day period. Colao v. County Council of Prince George’s County,

346 Md. 342, 361-63 (1997).

       The petition for judicial review challenged the validity of the adoption of Resolution

14-31 by the County Commissioners. There is no dispute that the County Commissioners

passed Resolution 14-31 on November 25, 2014, and the thirty day period for filing a

petition for judicial review was triggered at that time. Fourteen days later, however, the

newly elected County Commissioners adopted Resolution 14-33, which provided:

             NOW THEREFORE, BE IT RESOLVED BY THE COUNTY
       COMMISSIONERS OF QUEEN ANNE’S COUNTY, MARYLAND that
       Resolution No. 14-31 be and is hereby repealed and rescinded . . . .

       Appellants contend that any right to appeal they might have had prior to the adoption

of Resolution 14-33 was tolled until such time as Resolution 14-31 was revived on

September 30, 2015, when the circuit court denied a motion for reconsideration of its July

22, 2015 judgment declaring Resolution 14-33 “null, void and of no legal force and effect.”

Because their petition for judicial review, filed on October 9, 2015, was filed within thirty

days of the final judgment reviving Resolution 14-31, appellants assert that it was timely.

We agree.

                                             7
       Although we have found no Maryland law addressing the issue of timeliness in this

particular context, we find guidance in the Court of Appeals’ decision in Hercules Inc. v.

Comptroller of the Treasury, 351 Md. 101 (1998). In that case, Hercules, Inc., a Delaware

corporation, requested a tax refund from Maryland’s Comptroller of the Treasury.

Hercules, 351 Md. at 106. After the Comptroller denied the request for a refund, Hercules

appealed to the Maryland Tax Court which, on January 3, 1995, affirmed the Comptroller’s

decision. Id. Hercules requested the Tax Court to withdraw its opinion in order to permit

a motion for reconsideration, which it did on January 27, 1995. Id. Thereafter, the Tax

Court denied the motion for reconsideration and, on March 16, 1995, entered an order

reinstating its original order upholding the Comptroller’s decision. Id. at 106-07. Several

days later, on March 24, 1995, Hercules filed a petition for judicial review in the Circuit

Court for Baltimore City. Id. at 107. The circuit court affirmed the decision of the Tax

Court, as did this Court in a subsequent appeal. Id. The Court of Appeals granted

Hercules’s petition for writ of certiorari and the Comptroller’s conditional cross-petition,

which questioned the timeliness of Hercules’s petition for judicial review. Id. at 108.

       The Comptroller argued that Hercules failed to comply with Md. Rule 7-203(a)(1)

because the petition for judicial review was not filed within thirty days of the date of the

decision from which review was sought. Id. The Comptroller, relying on Hess v.

Chalmers, 27 Md. App. 284, cert. denied, 276 Md. 744 (1975), argued that twenty-three

days had elapsed prior to the Tax Court’s withdrawal of its January 3rd order, and that the

clock therefore started at day twenty-four after the filing of the March 16th order. Hercules,



                                              8
351 Md. at 108. As a result, Hercules’s petition for judicial review was untimely by two

days. Id.

       The Court of Appeals rejected that argument, stating that the Comptroller

“conflate[d] the meaning of ‘stay’ and ‘withdraw.’” Id. at 109. The Court held:

       Prior to the expiration of the time for petitioning for judicial review, an
       administrative body has the power to strike its own order, which is what
       occurred here. Consequently, the March 16 order was the final order in the
       proceeding. Indeed, by means of a stamped legend the Clerk of the Maryland
       Tax Court gave notice that the parties had the right to ‘appeal’ within thirty
       days ‘from the date of the above Order.’

Id.

       The same reasoning applies in the instant case. The County Commissioners adopted

Resolution 14-31 and, subsequently, rescinded that resolution by adopting Resolution 14-

33. The immediate result of the County Commissioners’ decision to adopt Resolution 14-

33 was the repeal or rescission of its prior resolution. Any attempt by appellants to note

an appeal at that time pertaining to Resolution 14-31 would undoubtedly have been

dismissed as moot.     But once Resolution 14-31 was revived by the circuit court’s

declaratory judgment, the thirty day time period for filing an appeal began to run anew.

Thus, the October 9, 2015 petition for judicial review was filed timely.

                                             II.

       The QACA appellants and Mr. Modell contend that the circuit court erred in

dismissing the petition for judicial review on the ground of res judicata. They argue that

res judicata does not apply to bar a claim that was either moot or not ripe while the action

was litigated and that the claims asserted in the petition for judicial review and declaratory

                                              9
judgment proceedings filed by Waterman were not identical to the claims they raised with

respect to the propriety of Resolution 14-31. They also argue that they were not required

to assert as a defense, cross-claim, or counterclaim the invalidity of Resolution 14-31.

Relying on Rowland v. Harrison, 320 Md. 223 (1990), the QACA appellants and Mr.

Modell contend that when the same facts may be asserted as either a defense or

counterclaim, and the issue raised by the defense is not litigated and determined so as to be

precluded by collateral estoppel, a defendant in a previous action is not barred by res

judicata from subsequently maintaining an action on the counterclaim.

       We need not decide this issue because, given our decision in Boomer v. Waterman

Family Ltd. Partnership, the issue presented in the instant case is moot. In Boomer, we

held that the County Commissioners had the power to reverse their action with respect to

Resolution 14-31 by adopting Resolution 14-33. Pursuant to Resolution 14-33, Resolution

14-31 has been withdrawn, rescinded, voided, and nullified. Accordingly, the issues

presented by the QACA appellants and Mr. Modell in the instant appeal are moot.

                                            III.

       The same is true with respect to Mr. Modell’s contention that the circuit court erred

in concluding that he was barred by the doctrine of collateral estoppel from participating

in the petition for judicial review filed by the QACA appellants. Again, we need not reach

this issue because our decision in Boomer, recognizing the right of the County




                                             10
Commissioners to adopt Resolution 14-33, which withdrew, rescinded, voided, and

nullified Resolution 14-31, renders moot the claims raised in the instant case.



                                          APPEAL FROM THE CIRCUIT COURT
                                          FOR QUEEN ANNE’S COUNTY
                                          DISMISSED; COSTS TO BE PAID BY
                                          APPELLEES.




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