                                                                   REPORTED

                                                  IN THE COURT OF SPECIAL APPEALS

                                                                OF MARYLAND

                                                                     No. 1401

                                                              September Term, 2014

                                                ______________________________________

                                                              JOHN VILES ET AL.

                                                                         v.

                                                      BOARD OF MUNICIPAL AND
                                                           ZONING APPEALS
                                                ______________________________________

                                                        Kehoe,
                                                        Hotten,*
                                                        Reed,
                                                                JJ.
                                                ______________________________________

                                                               Opinion by Kehoe, J.

                                                ______________________________________



                                                             Filed: October 27, 2016




*The Hon. Michele D. Hotten participated in the conference of this case while an active member
of this Court but did not participate in the adoption of this opinion.
    As land use disputes go, the relevant facts in this case are mercifully simple. The

legal issues are a different matter.

    This appeal arises out of a 2013 decision by the Baltimore City Planning

Commission to modify some of the terms of a planned unit development that had been

established by the Baltimore City Council in 2010. John Viles, together with several

other individuals opposed to the modifications, appealed the Commission’s decision to

the Board of Municipal and Zoning Appeals of Baltimore City. The Board declined to

address the merits of their claims because it concluded that it did not have the authority to

review decisions of the Planning Commission. Appellants then filed the current case, a

judicial review action challenging the Board’s decision. The Circuit Court for Baltimore

City affirmed the Board. The appellee is the Mayor and City Council of Baltimore.

    Appellants present two issues, which we have reordered and reworded:

       1. Did the Zoning Board have jurisdiction to review the Planning Commission's
       action?
       2. Does Baltimore City Zoning Ordinance § 9-118(c) give the Planning
       Commission authority to modify the terms of a planned unit development?

    We answer “yes” to the first question. As we will explain, Md. Code Ann. (2012)

§ 10-404(a) of the Land Use Article (“LU”) authorizes the Board to hear appeals “when it

is alleged that there was an error in any . . . determination made by an administrative

official” pertaining to “any local law adopted” pursuant to the General Assembly’s grant

of land use and zoning authority to the City. BCZR § 9-118(c) is such a local law.

Additionally, the Planning Commission functions in an administrative capacity when it

approves or denies design modifications to existing PUD developments because those
                                            –1–
decisions are focused on single properties or discrete assemblages of properties. The City

also contends that Article VII § 86 of the City Charter trumps the General Assembly’s

grant of authority to the Board but this contention: (1) is based on an erroneous

interpretation of the language in § 86; and (2) in any event, is irreconcilable with long-

established legal principles relating to the relationship between local government charters

and public general laws.

       We will not address the second issue because appellants’ arguments as to the validity

of § 9-118(c) should be presented first to the Board.1




1
    We will briefly address two preliminary matters.
     First, in its brief, the City moved to dismiss the appeal as moot. The City’s mootness
theory was based on a change in ownership of the property subject to the PUD approval,
and an indication from the new owner that it did not intend to develop the property in
accordance with the PUD. The City sought to withdraw the motion after oral argument.
Although the parties’ views as to mootness are not binding on a court, we agree that the
appeal is not moot because the owner expressed its non-binding intent to develop the
property in a different way. See Carroll County Ethics Comm’n v. Lennon, 119 Md. App.
49, 61 (1998) (“[V]oluntary cessation of a challenged practice does not deprive [a court]
of its power to determine the legality of the practice.” (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)).
     Second, appellants filed a motion to strike parts of the appendix to the City’s brief,
either because they are not in the record, or for other reasons. The only part of the motion
that has any colorable merit pertains to three documents in the City’s appendix:
   1. A memorandum of law presented by appellants to the Director of the Planning
Commission pertaining to the Commission’s authority to grant modifications to PUDs.
    2. A portion of the Baltimore City Charter Revision Commission Final Report
(1994).
       3. A copy of the ordinance approving the 25th Street Station PUD.
                                                         (footnote continued . . .)

                                             –2–
                                        Background

      In 2010, the Baltimore City Council enacted Ordinance No. 10-397, which

established a PUD, called the “25th Street Station PUD,” on an eleven acre parcel located

in the Remington and Charles Village neighborhoods.2 In 2013, the Planning

Commission considered and approved an amendment to the PUD design occasioned by a

decision of a proposed major tenant to leave the development. The Planning

Commission’s approval was made pursuant to § 9-118(c) of the BCZC.3 Whether § 9-

118(c)’s grant of authority to the Commission is valid is a matter of contention between

the parties.

      Appellants appealed the Commission’s decision to the Board. The Board held a

hearing, but did not reach the merits of appellants’ contentions. Instead, the Board



     We grant the motion as to the first document. See Cochran v. Griffith Energy Service,
Inc., 191 Md. App. 625, 663 (2010) (“[A]n appellate court must confine its review to the
evidence actually before the [agency] when it reached its decision.”).
The latter two documents are publicly available legislative material, of which we may,
and do, take judicial notice. Park v. Board of Liquor License Com’rs for Baltimore City,
338 Md. 366, 383 n.8.
2
 In Ray v. Mayor and City Council of Baltimore, 203 Md. App. 15 (2012), aff’d 430 Md.
74 (2013), we provide additional information about the proposed development and the
opposition to it.
3
    BCZC § 9-118(c) states:
         (c) Minor modifications – design features; interiors
          (1) The Planning Commission may authorize minor modifications that:
                (i) are limited to design features and interior planning; and
                (ii) do not include any change in the applicable density or bulk
                regulations
         (2) The Planning Commission may determine what constitutes a “minor
         modification” for purposes of this subsection.
                                            –3–
decided that it did not have the authority to consider appeals from decisions by the

Planning Commission. Its conclusion was based on Article VII, § 86 of the City Charter4

which states (emphasis added):

       The Board shall have such additional powers to examine, review and revise
       acts or rulings of other departments and officers of the City affecting the
       construction, alteration, use or operation of land or buildings in the City or
       other charges as may from time to time be conferred upon it by law, but the
       powers conferred upon it in the Charter shall not be diminished or abridged
       by ordinance, nor may the Board be given power to review or alter
       determinations of the Planning Commission.

    Appellants filed a petition for judicial review in the circuit court, which affirmed the

Board’s decision.

                               I. The Standard of Review

    In judicial review cases, an appellate court reviews the agency decision, as opposed

to the decision of the circuit court. People’s Counsel v. Loyola College, 406 Md. 54, 66

(2008); Para v. 1691 Ltd. P’ship, 211 Md. App. 335, 354 (2013). The issue decided by

the Board is one of law, specifically, the relationship between provisions of the City

Charter, on the one hand, and the Land Use Article on the other. In these circumstances,

our review is de novo. See, e.g., Spencer v. Maryland State Bd. of Pharmacy, 380 Md.

515, 528 (2004).




4
 Unless otherwise noted, all sections of the Baltimore City Charter discussed in this
opinion are found in Article VII.
                                            –4–
                       II. The Board’s Jurisdiction to Review the
                            Planning Commission’s Decision

    During the hearing before the Board, appellants argued that the Board had

jurisdiction to hear their appeal pursuant to LU § 10-404(a)(1), which authorizes the

Board to:

       hear and decide appeals when it is alleged that there was an error in any
       order, requirement, decision, or determination made by an administrative
       official or unit under [Land Use Article Title 10] or any local law adopted
       under [Title 10].

    They further contended that the Planning Commission was acting as an

administrative official under Title 10 when it approved the modification to the PUD, and

thus the Board had jurisdiction to hear this appeal. {E. 196.}

    The Board concluded that it lacked jurisdiction. It cited § 86 of the Charter,

interpreting the language that the Board may not “be given power to review or alter

determinations of the Planning Commission,” to mean that the Board is without authority

to review decisions of the Planning Commission. {E. 197.} It reasoned that, even if the

Planning Commission was acting as an “administrative official” under LU § 10-

404(a)(1), the Charter took precedence over the Land Use Article and limited the scope

of the Board’s jurisdiction. {E. 197.}

                                A. Some Historical Context

    Land use control came to Maryland in fits and starts. The earliest decision of the

Court of Appeals that considered the validity of a local law that functioned in a manner

analogous, at least in some respects, to a modern zoning code appears to be

                                            –5–
Commissioners of Easton v. Covey, 74 Md. 262, 267–69 (1891), in which the Court

upheld an ordinance that authorized the town commissioners to deny a building permit if

doing so was necessary “to protect the safety of property and the best interests of the

town[.]” (Emphasis in original.) 5 In 1923, Baltimore enacted Maryland’s first

comprehensive zoning ordinance. Garrett Power, The Unwisdom of Allowing City

Growth to Work Out Its Own Destiny, 47 MD. L. REV. 626, 633 (1988). The use

regulations of the ordinance were struck down by the Court of Appeals on substantive

due process grounds in Goldman v. Crowther, 147 Md. 282, 309 (1925). However, one

year later, the United States Supreme Court issued its landmark decision in Village of

Euclid v. Amber Realty, 272 U.S. 365, 395 (1926), in which the Court rejected a

substantive due process challenge to a zoning ordinance.6




5
  In 1912, the General Assembly prohibited all dwellings, other than detached, single
family residences, in certain areas of Baltimore. See Chapter 693 of the Acts of 1912. The
statute was declared unconstitutional on substantive due process grounds in Bryne v.
Maryland Realty Co., 129 Md. 202, 214 (1916).

6
 In Crowther, the Court explicitly did not address the height, bulk, area and density
provisions of Baltimore’s zoning ordinance. 147 Md. at 309. In R.B. Construction Co. v.
Jackson, 152 Md. 671, 678 (1927), and relying on Village of Euclid, the Court upheld
these regulations against a substantive due process challenge.
    Informative discussions of Baltimore’s initial efforts at zoning can be found in
Professor Power’s article cited in the main text at 47 MD. LAW REV. 627–33, and Joshua
Gordon, A Euclid-Turn: R.B. Construction Co. v. Jackson and the Zoning of Baltimore,
22 MARYLAND HISTORIAN 26 (1991). Finally, the City’s initial efforts at land use control
were undertaken in the context of its earlier attempts to segregate housing by race. This
story is told in Garrett Power, Apartheid Baltimore Style: the Residential Segregation
Ordinances of 1910–1913, 42 MD. L. REV. 288 (1983).
                                           –6–
    In 1927, the General Assembly enacted Chapter 705 of the Laws of 1927, which

added Article 66B to the Maryland Code. Chapter 705 applied only to Baltimore City and

other cities with populations of more than 10,000. Robert J. Carson, Reclassification,

Variance and Special Exceptions in Maryland, 21 MD. L. REVIEW 306, 307 (1961).

Chapter 705 was eventually codified as MD. ANN. CODE Article 66B §§ 2.01–2.13

(1957, 2010 Repl. Vol., 2014 Supp.). In the same year, the legislature also enacted what

is today known as the Regional District Act, which provided for the exercise of planning

and zoning authority in the Maryland-Washington Regional District, which originally

was, more or less, the area that now lies within the Capital Beltway in Montgomery and

Prince George’s Counties.7

    In 1933, the General Assembly enacted a statute, sometimes referred to as the

Maryland Zoning and Planning Enabling Act, which amended Article 66B by adding

provisions that authorized all municipalities to enact and administer planning, zoning and

subdivision control regulations. Chapter 599 of the Acts of 1933. (The scope of this

statute was later extended to non-charter counties.) Section 28 of this statute contained a

blanket repeal of any provision in a statute or local ordinance that was inconsistent with

its terms, except that:




7
  A detailed analysis of the Regional District Act is beyond the scope of this opinion. We
refer the curious reader to Judge Harrell’s thorough and scholarly discussion of the
history of the Act in Prince George’s County v. Zimmer Development Co., 444 Md. 490,
523–30 (2015).
                                            –7–
         Chapter 705 of the Acts of 1927 and all laws and ordinances passed
         pursuant thereto shall not be affected . . . and that this Act shall be deemed
         to be in addition to said Chapter 705 . . . and not in substitution therefor.

       Section 28’s direct descendant is LU § 10-103.8 Section 10-103 lies at the heart of the

controversy between the parties.

       In addition, the General Assembly enacted local public laws which authorized some

counties to exercise zoning powers. See Baltimore County v. Missouri Realty Co., 219

Md. 155, 158 (1959); Murray v. Director of Planning, 217 Md. 381, 384–86 (1958).

       There is another aspect to the historical background. In 1915, the voters ratified

Article XI-A to the Maryland Constitution, which permitted the City of Baltimore and the

state’s counties to elect a “home rule” form of local government. The purpose of Article

XI-A was to allow the authority to enact legislation affecting purely local matters to

devolve from the General Assembly to those counties, and Baltimore City, when and if

those jurisdictions wished to assume that responsibility by enacting a locally-approved

county charter. County Commissioners of Montgomery County v. Supervisors of

Elections, 192 Md. 196, 204 (1949). In 1918, and pursuant to a mandate contained in


8
    Land Use § 10-103 reads in pertinent part as follows:

       Limited application of division.
         (a) In general. — Except as provided in this section, this division does not
         apply to Baltimore City.
         (b) Provisions applicable to Baltimore City. — The following provisions of
         this division apply to Baltimore City:
         (1) this title;
         ...
         (15) Title 7, Subtitle 1 (Development Mechanisms)[.]

                                              –8–
Article XI-A § 2, the General Assembly enacted the Express Powers Act to designate

local legislative powers that could be exercised by charter counties. Montgomery County

Council v. Garrott, 243 Md. 634, 644 (1966). The Act specifically authorized charter

counties to enact zoning regulations. Md. Code Article 25A § 5(X) (1957).9

      The Express Powers Act does not apply to the City of Baltimore. This is because

Article 11-A of the Maryland Constitution reserved to the General Assembly the

authority to grant and limit the local legislative powers exercised by the City. Article 11-

A § 2 states in pertinent part:

         [T]he powers heretofore granted to the City of Baltimore, as set forth in
         Article 4, Section 6, Public Local Laws of Maryland, shall not be enlarged
         or extended by any charter formed under the provisions of this Article, but
         such powers may be extended, modified, amended or repealed by the
         General Assembly.

      The Code of Local Public Laws of Baltimore no longer contains the powers

enumerated in Article 4 § 6. Instead, they are now found in Article II of the Baltimore

City Charter. See Dan Friedman, THE MARYLAND STATE CONSTITUTION: A REFERENCE

GUIDE 220 (2006).

      In conclusion, local governments that exercise zoning authority fall into one of four

categories: (1) Baltimore City; (2) the charter counties; (3) Montgomery and Prince

George’s Counties; and (4) municipalities and the non-charter counties.




9
    Former Article 25A § 5(X) is now codified as Local Government Article § 10-324.
                                             –9–
    In 2012, the Department of Legislative Reference, working under the supervision of

the Land Use Article Review Committee, completed the herculean task of gathering this

widely scattered body of law, reorganizing it, and rewording many of the statutes to

delete obsolete and redundant terminology. As part of this effort, what had been Article

66B §§ 2.01–2.13—that is, the zoning enabling statute for Baltimore—was repealed and

reenacted as Title 10 the Land Use Article. However, as the General Revisor’s Note to

the Land Use Article makes clear, “the enactment of the article in no way is intended to

make any change to the substantive law of Maryland.” We now turn to the parties’

specific contentions.

                             B. Land Use Article § 10-404(a)

    Appellants contend that the Board’s authority to consider this appeal is derived from

LU § 10-404(a)(1), which states:

       (a) The Board may:
       (1) hear and decide appeals when it is alleged that there was an error in any
       order, requirement, decision, or determination made by an administrative
       official or unit under this title or any local law adopted under this title[.]

    Appellants cite Queen Anne’s Conservation, Inc. v. County Comm’rs of Queen

Anne's County, 382 Md. 306 (2004), and Wharf at Handy’s Point, Inc. v. Dep’t of

Natural Res., 92 Md. App. 659, 610 (1992), as authority for their contentions that the

Planning Commission qualifies as an administrative official, and that its approval of the

PUD modification qualifies as a decision made pursuant to Title 10 of the Land Use

Article.


                                           – 10 –
      Handy’s Point supports the first leg of appellants’ argument. One issue in that case

was whether the Kent County Planning Commission, as a multi-member entity, could be

an “administrative official” for the purposes of what was then Article 66B § 4.07.10

Section 4.07(d) stated (emphasis added):

      § 4.07 (d) General powers. — The board of appeals shall have the following powers:
         (1) To hear and decide appeals where it is alleged there is error in any
         order, requirement, decision, or determination made by an administrative
         official in the enforcement of this article or of any ordinance adopted
         pursuant thereto.

      This Court, citing Howard Research v. Concerned Citizens, 297 Md. 357, 363-66

(1983) and 64 Op. Att’y Gen. 349, 355 n.4 (1979), concluded that the term

“administrative official,” for purposes of the zoning enabling act, includes:

         whatever administrative mechanism a local jurisdiction in Maryland sets up
         to enforce its planning and zoning laws and ordinances, including a multi-
         member body such as a local planning commission.

Handy’s Point, 92 Md. App. at 672. Thus, this Court concluded that the term

“administrative official” includes Planning Commissions.

      One of the issues in Queen Anne’s Conservation was whether opponents to a

development in Queen Anne’s County were required to exhaust their administrative

remedies before filing a circuit court action challenging a decision by the County

Commissioners to approve a development rights and responsibilities agreement (a

“DRRA”). 382 Md. at 311. One aspect of the problem confronting the Court of Appeals




10
     The previous Art. 66B § 4.07 is now codified as Land Use §§ 4-301–4-306.
                                            – 11 –
was whether the County Commissioners acted in a legislative or in an administrative

capacity when they approved the agreement. Id. If the Commissioners were acting in an

administrative capacity, then the county board of appeals had the authority to review the

Commissioners’ decision because Article 66B § 4.07(d)11 authorized the county’s board

of appeals to “decide appeals where there is error in any order, requirement, decision, or

determination made by an administrative official in the enforcement” of the county

zoning ordinance. 382 Md. at 321.

       The Court of Appeals noted that a single entity may exercise different functions,

some of which may be characterized as “legislative” while others will be classified as

“executive and administrative.” Id. at 322. The Court went on to clarify that the proper

test for determining whether an action is legislative on the one hand or executive or

administrative on the other is that a legislative act “is one making a new law—an

enactment of general application prescribing a new plan or policy”; while an

administrative or executive act is one that “merely looks to or facilitates the

administration, execution or implementation of a law already in force and effect[.]” Id. at

326. The Court concluded that the Commissioners were acting in an administrative

capacity when they approved the DRRA. Id. at 328–29.


11
     Section 4.07(d) stated in pertinent part:
          General powers. — The board of appeals shall have the following powers:
          (1) To hear and decide appeals where it is alleged there is error in any
          order, requirement, decision, or determination made by an administrative
          official in the enforcement of this article or of any ordinance adopted
          pursuant thereto.
                                                 – 12 –
      Applying the reasoning in Handy’s Wharf and Queen Anne’s Conservation, we reach

the following conclusions: (1) the Baltimore Planning Commission is an “administrative

official” for the purposes of LU § 10-404(a)(1); and (2) the Commission’s decision to

approve the modifications to the 25th Street Station PUD was an administrative one

because the decision of the Planning Commission clearly was limited to design changes

within the 25th Street Station PUD property. Cf. Maryland Overpak Corp. v. Mayor and

City Council of Baltimore, 395 Md. 16, 53–54 (2006) (A decision by the Baltimore City

Council to amend the design and density of a mixed-use PUD was quasi-judicial, as

opposed to legislative, in nature.). Thus, the plain language of § 10-404(a) authorizes the

Board to review the Planning Commission’s decision.

      To avoid this result, the City presents three arguments. We will discuss them in turn.

                   (1) The Scope of the Board’s Authority Under § 10-404(a)(1)

      The City asserts that the Commission’s decision falls outside of § 10-404(a)(1)’s

purview because that subsection limits the scope of the Board’s review to those decisions

issued “under [Title 10] or any local law adopted under [Title 10].”12 The City contends

that the Planning Commission’s authority to modify PUDs is not derived from Title 10 of




12
     Section 10-404(a) reads in pertinent part (emphasis added):
         § 10-404. Board--Authority
         (a) The Board may:
         (1) hear and decide appeals when it is alleged that there was an error in any
         order, requirement, decision, or determination made by an administrative
         official or unit under this title or any local law adopted under this title[.]
                                             – 13 –
the Land Use Article, but rather from Title 7, specifically LU § 7-101(a)(6),13 which

authorizes local governments to enact laws that provide for planned unit developments.

The City’s argument cannot be squared with the relevant provisions of the Land Use Article

for two reasons.

      First, LU § 10-301(b)(15) explicitly states that the provisions of “Title 7, Subtitle 1

(Development Mechanisms)” of the Land Use Article applies to Baltimore City. Section

7-101 authorizes local jurisdictions to enact, among other land use controls, provisions

for “planned unit developments.” LU § 7-101(6). We read Title 10 as incorporating § 7-

106 by reference.

      Second, LU § 10-404(a)(1) authorizes the Board to hear appeals “when it is alleged

that there was an error in any . . . decision . . . made by an administrative official or unit

under this title or any local law adopted under this title[.]” (Emphasis added). The

Planning Commission’s authority to grant modifications to PUD requirements is

contained in BCZC § 9-118(c). The BCZC is a “local law” as that term is used in the




13
     Land Use § 7-101 states in pertinent part:
         To encourage the preservation of natural resources or the provision of
         affordable housing and to facilitate orderly development and growth, a local
         jurisdiction that exercises authority granted by this division may enact, and
         is encouraged to enact, local laws providing for or requiring:
                                              ....
      (6) planned unit developments[.]
                                             – 14 –
Land Use Article, see LU 1-101(j),14 and the BCZC was adopted pursuant to authority

granted to the City by what is now LU § 10-301.15

                              (2) An Administrative Adjustment?

      The second argument made by the City is that the PUD modification is an

“administrative adjustment” as described in LU § 4-205,16 and that, pursuant to § 4-


14
     Land Use § 1-101(j) defines “local law” as:
         (j)(1) “Local law” means an enactment of the legislative body of a local
         jurisdiction, whether by ordinance, resolution, or otherwise.
         (2) “Local law” does not include a public local law.
15
     The statute states:
      § 10-301. Districts and zones
      In General
      (a) The Mayor and City Council of Baltimore City may divide Baltimore City into
      districts and zones of any number, shape, and area as they determine are best suited
      to carry out the purposes listed in § 10-302 of this subtitle.
      Authorized action within districts and zones
      (b)(1) Within the districts and zones, the Mayor and City Council of Baltimore City
      may regulate the construction, alteration, repair, or use of buildings, structures, or
      land.
      (2)(i) Zoning regulations adopted by the Mayor and City Council of Baltimore City
      under this subtitle shall be uniform for each class or kind of development throughout
      each district or zone.
      (ii) Zoning regulations in one district or zone may differ from those in other districts
      or zones.
16
     Land Use § 4-205 states in pertinent part:
         Types of requirements
         (a) A legislative body may authorize the planning director or another
         designee to grant an administrative adjustment from the following
         requirements in a zoning law enacted by the legislative body:
         (1) height;
                                                        (footnote continued . . .)

                                             – 15 –
205(f), the local legislative body has discretion to choose whether to authorize the Board

to hear appeals from these types of decisions. The legislative history of what is now § 4-

205 undercuts the City’s argument. The statute was passed as Senate Bill 427 of the 2000

session of the General Assembly and enrolled as chapter 427 of the Laws of 2000. SB

427 was sponsored by then Senator, and now Attorney General, Brian Frosh on behalf of

the Article 66B Study Commission. The Fiscal Note to SB 427 indicates that the concept

of “administrative adjustments” had nothing to do with planned unit developments but

was rather intended to provide a means by which property owners could obtain minor and

non-controversial adjustments to height, bulk and similar requirements without the

expense of applying for a variance. See Fiscal Note at 2–3.

    Additionally, before a local government can provide for administrative adjustments,

LU § 4-205(c) requires that the local legislative body adopt criteria for granting




       (2) setback;
       3) bulk;
       (4) parking;
       (5) loading, dimensional, or area; or
       (6) similar requirements.
                                             ....
       Criteria
       (c) The criteria for an administrative adjustment shall include:
       (1) standards for actions on requests;
       (2) standards for the classes of development that are eligible for an
       administrative adjustment; and
       (3) the maximum variation from a zoning requirement that is allowed under
       an administrative adjustment.
                                             ....
                                           – 16 –
applications. BCZC § 9-118(c) contains no such criteria and the City points to nothing

elsewhere in the BCZC that does.

                             (3) The Effect of the City Charter

    The City’s final argument is that § 86 of the Charter precludes the Board from

considering any decision of the Planning Commission.

    The City’s argument is a non-starter because the provisions of local government

charters cannot preempt public general laws such as LU § 10-404(a)(1). The case law on

this point is indisputable. See, e.g., Board of Sup’rs of Elections of Anne Arundel County

v. Smallwood, 327 Md. 220, 242 (1992) (“When a provision in a county charter conflicts

with a public general law, the public general law prevails under Art. XI–A, § 1.”);

Montgomery County v. Bd. of Supervisors of Elections for Montgomery County, 311 Md.

512, 514 (1988) (“The Maryland Constitution, Article XI–A, § 1, provides inter alia that

a county charter shall be subject to the public general laws of Maryland. If a provision of

a county charter, including a charter amendment, conflicts with any public general law,

the charter provision may not be given effect.”); Rosecroft Trotting & Pacing Ass’n, Inc.

v. Prince George’s County, 298 Md. 580, 598 (1984) (“Const. Art. XI–A, § 2, after

providing that ‘[t]he General Assembly shall by public general law provide a grant of

express powers,’ further provides that ‘such powers may be extended, modified, amended

or repealed by the General Assembly.’”).

    Moreover, we do not believe it necessary to resolve any conflict between § 86 of the

Charter and § 10-404(a)(1) of the Land Use Article, because there is no conflict.

                                           – 17 –
    Section 86 states (emphasis added):

            The Board shall have such additional powers to examine, review and
       revise acts or rulings of other departments and officers of the City affecting
       the construction, alteration, use or operation of land or buildings in the City
       or other charges as may from time to time be conferred upon by law, but
       the powers conferred upon it by the Charter shall not be diminished or
       abridged by ordinance, nor may the Board be given the power to review or
       alter determinations of the Planning Commission.

    As the authority granted the Board in § 10-404(a)(1) clearly falls into the category of

“other charges as may from time to time be conferred upon by law,” § 86 of the Charter

supports the City’s position only if that section has the legal effect of limiting the General

Assembly’s authority to enact legislation pertaining to the City. But this is not the

function of a local government charter.

    Maryland case law has “repeatedly explained that a county charter is equivalent to a

constitution.” Save Our Streets v. Mitchell, 357 Md. 237, 248 (2000); see also

Smallwood, 327 Md. at 237; Haub v. Montgomery County, 353 Md. 448, 450 (1999); Bd.

of Election Laws v. Talbot County, 316 Md. 332, 341 (1989). Thus, the “basic function”

of the charter is to “distribute power among the various agencies of [local] government,

and between the [local] government and the people who have delegated that power to

their government.” Save Our Streets, 357 Md. at 248 (quoting Smallwood, 327 Md. at

237.). In other words, a charter does not change the balance of power between a local

jurisdiction and the General Assembly.

    Section 86 of the Charter states that the Board may not be given the power to review

or alter determinations of the Planning Commission; § 86 does not state that the Board is

                                            – 18 –
without power to review Planning Commission determinations. Who is it then, that may

not give power to the Board to review the Planning Commission’s decisions? The answer

must be the City. It is certainly not the General Assembly. Any other answer would stand

the rule articulated in Smallwood, Rosecroft Trotting & Pacing Assn, Inc., and other cases

on its head.

    Because a charter provision that conflicts with a general public law must yield to the

general public law, the City Charter provision cannot restrict the power of the General

Assembly to pass public local laws that affect the City. Accordingly, we interpret the

language of § 86 of the City Charter to mean that the City Council may not authorize the

Board to consider decisions by the Planning Commission, but it does not preclude the

General Assembly from providing the Board with this power. And, as we have explained,

LU § 10-404(a)(1) confers upon the Board to authority to hear appeals from decisions of

the Commission when it administers provisions of the BCZR.

    Finally, the City cites to City of Baltimore v. Princeton Const., 229 Md. 176 (1962)

and Windsor Hills Imp. Ass’n v. Mayor & City Council of Baltimore, 195 Md. 383

(1950), which it argues collectively held that the Board is without authority to consider

decisions of the Planning Commission. The difficulty with the City’s argument is that

both Princeton and Windsor predate the General Assembly’s enactment of Title 10’s

predecessor, Section 2 of Article 66B, which was enacted in 1970. Chapter 672 of the

Laws of 1970 amended Article 66B by adding § 2.08—the predecessor to LU § 10-

404(a)(1)—to expressly grant to the Board authority to decide appeals “where it is

                                           – 19 –
alleged there is an error in any order, requirement, decision, or determination made by an

administrative official in the enforcement of this article or any ordinance adopted

pursuant thereto.” Thus, when the Court of Appeals decided Princeton and Windsor,

there was no statutory right to appeal an administrative decision of the Planning

Commission to the Board. Notably, the City cites no cases that state the City is without

authority to consider Planning Commission decisions after 1970. Princeton and Windsor

are no longer apposite to the issue before us.

     In summary, because the Planning Commission was acting in an administrative

capacity when it approved the design modifications to the PUD, appellants had the right

of appeal to the Board via LU § 10-404(a)(1). This right was not foreclosed by § 86 of

the Charter. The Board erred in dismissing appellants’ appeal for lack of jurisdiction.17




17
  There is another provision of the Land Use Article that at first glance appears to be
relevant but actually isn’t.
     LU § 10-203 states (emphasis added):
       The powers granted to the Mayor and City Council of Baltimore City under
       this title do not:
                                            ....
       (3) authorize the Mayor and City Council or the officers of Baltimore City
       to engage in any activity that is beyond their power under any other public
       general law or public local law or otherwise.
    If “otherwise” includes the Baltimore City Charter, then § 10-203 might limit the
Board’s authority to consider decisions by the Planning Commission through the
authority provided by § 10-404(a)(1). However, the legislative history of § 10-203
suggests a different result.
                                                           (footnote continued . . .)
                                            – 20 –
    What is now § 10-203 was first enacted as part of Chapter 395 of the Laws of 1983.
Among other things, Chapter 395 added subsection (b) to what was then codified as
Article 66B § 2.01. The amended statute read as follows:
          (a) Grant of powers. — For the purpose of promoting the health,
      security, general welfare, and morals of the community, the Mayor and City
      Council of Baltimore City are hereby empowered to regulate and restrict
      the height, number of stories, and size of buildings and other structures, the
      percentage of lot that may be occupied, off-street parking, the size of yards,
      courts, and other open spaces, the density of population, and the location
      and use of buildings, signs, structures, and land for trade, industry,
      residence, or other purposes.
          (b) Statement of policy; construction of powers. — (1) It has been and
      shall continue to be the policy of this State that the orderly development
      and use of land and structures requires comprehensive regulation through
      implementation of planning and zoning controls.
          (2) It has been and shall continue to be the policy of this State the
      planning and zoning control shall be implemented by local government.
          (3) To achieve the public purposes of this regulatory scheme, the
      General Assembly recognizes that local government action will limit free
      business enterprise and competition by owners and users of property.
          (4) It is the policy of the General Assembly and of this State that
      competition and enterprise shall be so limited for the attainment of the
      purposes of the State policy for implementing planning and zoning controls
      as set forth in this article and elsewhere in the public local and public
      general law.
          (5) The powers granted to the Mayor and City Council of Baltimore
      City pursuant to this subsection shall not be construed:
          (i) To grant to the Mayor and City Council powers in any substantive
      area not otherwise granted to the Mayor and City Council by other public
      general or public local law;
          (ii) To restrict the Mayor and City Council from exercising any power
      granted to the Mayor and City Council by other public general or public
      local law or otherwise;
                                                      (footnote continued . . .)

                                          – 21 –
           (iii) To authorize the Mayor and City Council or its officers to engage
       in any activity which is beyond their power under other public general law,
       public local law, or otherwise; or
           (iv) To preempt or supersede the regulatory authority of any State
       department or agency under any public general law.
    The preamble to Chapter 395 states that it was enacted as a result of the General
Assembly’s perception that units of local government were subject to “unanticipated and,
in some respects, unclear liabilities under the federal antitrust laws” as a result of two
decisions of the United States Supreme Court, Community Communications Co. v. City of
Boulder, 455 U.S. 40 (1982), and City of Lafayette v. Louisiana Power & Light Co., 435
U.S. 389 (1978).
     In very brief summary, City of Lafayette held that the “state action exemption” to
antitrust claims first recognized in Parker v. Brown, 317 U.S. 341, 350–51(1943), did not
extend to local governments unless the alleged anticompetitive conduct was “engaged in
as an act of government by the State as sovereign, or, by its subdivisions, pursuant to
state policy to displace competition with regulation or monopoly public service.” 435
U.S. at 413. In City of Boulder, the Court held that a general grant of “home rule”
authority by a state to local governments was an insufficient basis to conclude that a
city’s anticompetitive practices were in furtherance of a state policy to displace
competition. 455 U.S. at 52–53.
     The only purpose of Chapter 395 was to make it clear that a local government’s
exercise of zoning authority was, in fact, in furtherance of state policies that might have
the effect of limiting competition. To drive the point home, the preamble to the statute
stated (emphasis added):
           It is the purpose of the General Assembly not to grant local
       governments powers in any substantive area not otherwise granted them
       under existing law, and not to restrict local governments from executing
       powers granted them by existing law, but to confirm existing powers of
       local governments to displace or limit competition with respect to the
       subjects dealt with herein.
                                                        (footnote continued . . .)



                                           – 22 –
    Because the Board never reached the merits of appellants’ appeal, we will order the

case to be remanded to the Board so that it can have the first opportunity to address this

question. This is consistent with the general principle that courts do not ordinarily

initially address a controversy when the legislature has provided an administrative

remedy. See United Ins. Co. of Am. v. Maryland Ins. Admin., ___ Md. ___, No. 101,

September Term, 2015, 2016 WL 4499175, at *4–5 (Aug. 25, 2016) (“[T]his Court has

‘ordinarily construed the pertinent [legislative] enactments to require that the

administrative remedy be first invoked and followed’ before resort to the courts.”

(quoting Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 493

(1996)); Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 658 (2004)

(“Exhaustion applies where a claim is cognizable in the first instance by an

administrative agency alone; judicial interference is withheld until the administrative

process has run its course.” (internal quotation marks omitted)).

    The circuit court should remand this case to the Board so that the Board can consider

appellants’ substantive contentions.

       THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY
       IS REVERSED AND THE CASE IS REMANDED FOR PROCEEDINGS
       CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.




    Article 66B § 2.01(b) is now codified as LU §§ 10-201, 10-202 and 10-203. We
conclude that the phrase “or otherwise” in LU § 10-203 does not mean that § 86 of the
Baltimore City Charter restricts the authority granted to the City by LU § 10-404.

                                            – 23 –
