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Diana H. Josephson et al. v. City of Annapolis et al., No. 48, September Term, 1998 Appellants, who were aggrieved by a zoning decision, failed to file an appeal with the Board of Appeals or thereafter to timely seek judicial review of administrative agency action. Instead, several months later, they filed suit for mandamus, declaratory and injunctive relief. The Court of Appeals held that the case should have been dismissed for appellants' failure to exhaust their administrative remedies. Furthermore, the holding of Northeast Plaza Associates v. President and Commissioners of North East, 310 Md. 20, 526 A.2d 963 (1987), applies only to combined annexation/zoning ordinances or statutes.

Circuit Court for Anne Arundel County Case # C-9739198 OC

IN THE COURT OF APPEALS OF MARYLAND No. 48 September Term, 1998

DIANA H. JOSEPHSON et al.

v.

CITY OF ANNAPOLIS et al.

Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ.

Opinion by Cathell, J.

Filed:

Plaintiffs below, Diana H. Josephson, Barbara D. Samorajczyk, Bywater Church & Crab Creek Association, Inc., and the Annapolis Neck Peninsula Federation, Inc., appellants and cross-appellees (hereinafter appellants), appeal from the decision of the Circuit Court for Anne Arundel County denying their Motions for Summary Judgment and granting the Motions for Summary Judgment of the defendants below, the City of Annapolis (Annapolis), Farmer's National Land Corporation (Farmers), and the Chrisland Corporation (Chrisland), appellees and cross-appellants (hereinafter appellees). The complaint originated as a "Complaint For Declaratory Judgment, Mandamus and Other Relief." The action, however, arose out of the rezoning of property previously annexed by Annapolis. That annexation also is being challenged and is before this Court in a separate proceeding. See generally Anne Arundel County v. City of Annapolis, ___ Md. ___, ___ A.2d ___ (1998) [No. 47, 1998 Term, slip op., filed _______ __, 1998]. On appeal, appellants raise the following issues: I. Did Appellee, the City of Annapolis, violate the prohibition of Article 23A, Section 9(c)(1), i[n] assigning zoning classification R1B to the subject, annexed property? II. Was Appellee, the City of Annapolis, required as a matter of law to amend its Comprehensive Plan in accordance with Article 66B, Section 3.01 et seq., as amended by the Economic Growth, Resource Protection, and Planning Act of 1992 (Chapter 437, Laws of Maryland, 1992), before assigning any zoning classification to the subject, annexed property? In their cross-appeal, appellees allege that the trial court erred in finding the exhaustion of administrative remedies doctrine did not apply. Appellees Farmers and

Chrisland, in their Motion to Dismiss or, in the Alternative for Summary Judgment, asserted below: 1) The Plaintiffs have failed to exhaust their administrative remedies by failing to pursue the administrative appeal procedures established and mandated by statute. 2) Declaratory Judgment is not available where, as in the case at bar, a statute provides a special form of remedy for a specific type of case. In such cases, that statutory remedy shall be followed in lieu of a proceeding under the declaratory judgment statute. (Court Art., Sec. 3-409 (b)). 3) Mandamus is not available as a remedy where specific remedies have been provided by statute. Appellee Annapolis presented and argued in its Amended Motion to Dismiss or, in the Alternative, for Summary Judgment below that "Plaintiffs failed to pursue mandatory administrative remedies; therefore, the Complaint fails to state a claim upon which declaratory relief may be granted or upon which a writ of mandamus may be issued." The trial court denied appellees' requested relief in reliance on Northeast Plaza Associates v. President and Commissioners of North East, 310 Md. 20, 526 A.2d 963 (1987). Because we hold that appellants were required to exhaust their administrative remedies prior to filing their Complaint in the circuit court, we shall vacate the trial court's order and remand with directions to dismiss this action for appellants' failure to exhaust all administrative remedies. Accordingly, we need not address the substantive issues raised by appellants.

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I. FACTS AND PROCEDURAL HISTORY The property in question in this appeal is a 103.647 acre tract of land owned by Farmers and under contract to be sold to Chrisland. This parcel of land (Chrisland property), located in Anne Arundel County, straddles Bywater Road south of Forest Drive, and extends from the headwater area of Church Creek on the west to the headwater area of Crab Creek on the east. Annapolis annexed the Chrisland property by Resolution No. R-21-96 Revised/Amended, adopted on November 4, 1996, which became effective on December 19, 1996. As initially proposed, the resolution contained provisions to annex and rezone the Chrisland property, but the rezoning provisions were deleted prior to passage. Accordingly, as adopted, the annexation ordinance contained no order to rezone the property. Almost six months later on May 12, 1997, the City of Annapolis, in a separate proceeding and by separate legislation, Ordinance No. O-28-97, rezoned the Chrisland property to a R1B Single Family Residence District zoning classification pursuant to the Annapolis City Code, section 21.08.060.1 It is this particular May 12th rezoning that is at

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Section 21.08.060 of the Annapolis City Code provides:

21.08.060 Zoning of annexed land. On land annexed to or consolidated with the city after August 10, 1970, no building or structure shall be erected, enlarged or moved and no change in the use of land or existing buildings or structures shall be made until an ordinance designating the zoning district classification of the annexed land is adopted by the city council. If in acting favorably on the annexation petition, the city council does not designate the zoning district classification, then within forty days of the annexation, the planning commission shall file an (continued...)
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issue in the case sub judice. Instead of appealing the rezoning decision in accordance with the requirements of section 21.88.020 of the Annapolis City Code,2 and thereafter seeking judicial review in the

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(...continued) application for an amendment to establish the zoning district classification of the land. However, if no action is taken regarding the classification of annexed land within ninety days of the date of annexation, the land shall require the R1 district classification and shall remain in that zone until properly reclassified.
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This provision provides in relevant part:

21.88.020 Board of appeals. A. Establishment. The board of appeals, as provided for in Chapter 2.48 of this code, is the board of appeals referred to in this title. The board of appeals is also the board of appeals referred to in Section 4.07 of Article 66B of the Annotated Code of Maryland. B. Jurisdiction. The board of appeals is vested with the following jurisdiction and authority under this title: 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 or body in the enforcement of this title or any ordinance adopted pursuant to this title; .... 3. To hear and decide all matters referred to it or upon which it is required to pass under this title, and as prescribed by Section 4.07 of Article 66B of the Annotated Code of Maryland; 4. To execute all of the powers conferred to boards of appeals under Article 66B of the Annotated Code of Maryland, 1957 edition, as amended from time to time . . . .
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circuit court as required by section 4.08(a) of Article 66B of the Maryland Code (1957, 1998 Repl. Vol.),3 appellants sought direct relief several months later by filing an action for mandamus, declaratory judgment and injunctive relief. Ultimately, all parties filed motions for summary judgment alleging that no disputed facts existed and that the case should be resolved as a matter of law. In addition to other points, appellees argued, as indicated above, that the matter should be dismissed for appellants' failure to exhaust their administrative remedies. During the hearing below, the first issue concerned whether the two cases, the challenge to the annexation to which we referred earlier and the rezoning challenge, should be heard together. With respect to that issue the following exchanges occurred: THE COURT: Call the cases, Diana H. Josephson, and others, versus the City of Annapolis, and others, Case No. C-97-391980C[4] and Anne Arundel County, Maryland versus the City of Annapolis, Farmers National Land Corporation, The Chrisland Corporation, C-97-363030C.[5]

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Section 4.08(a) provides:

(a) Who may appeal; procedure. -- Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals, or by a zoning action by the local legislative body, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, may appeal the same to the circuit court of the county. Such appeal shall be taken in accordance with Title 7, Chapter 200 of the Maryland Rules. Nothing in this subsection shall change the existing standards for review of any zoning action.
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Case No. C-97-391980C is the case sub judice.

Case No. C-97-363030C is an annexation case involving the same property also being considered by this Court. See generally Anne Arundel County, ___ Md. ___, ___ A.2d ___ [No. 47, 1998 Term, slip op., filed ____ __, 1998].
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.... [APPELLANT'S COUNSEL]: Your Honor, do we have to handle the cases simultaneously or one after the other? THE COURT: I would think so, or do you want to do them separate? It doesn't matter to me. .... THE COURT: Don't we have the same issue all the way around . . . ? [APPELLANT'S COUNSEL]: No, Your Honor. The issue is quite distinct on the merits. .... [APPELLANT'S COUNSEL]: I would suggest that the enclave case, [the annexation case,] the County's case, go first. The trial court then proceeded to hold the hearing on the annexation case. After that hearing concluded, the following occurred: THE COURT: . . . All right, now we are ready to go on the other case. This is Josephson and others versus the City, . . . right? .... [CITY ATTORNEY]: . . . If I might at this time raise an objection to the presence at counsel table [of] the County attorney. The County is not a party in this action.[6] .... This is the zoning case, Your Honor. These are also cross Motions for Summary Judgment. We all seem to agree on the facts, we just differ a little

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The trial court permitted the County attorney to remain.
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bit on the law. .... This was a proceeding completely separate and distinct and actually several months . . . apart from the act of annexation. . . . So, for all intents and purposes, this was land located within the city that was zoned according to our . . . City Code Article 21, zoning powers as conferred upon the city by the Annotated Code of Maryland, Article 66[B], Title 4. .... [Ordinance] 02897 was adopted and became final on May 12, 1997. . . . [T]hese proceedings [, the annexation proceedings and the zoning proceedings,] are bifurcated. They are very much separate. It will reflect an impact upon the critical issue and that is the failure of the Plaintiffs to pursue mandatory administrative remedies under 66[B]. . . . .... [Section 4.08] [s]pecifically provides that if you are aggrieved of a zoning decision of a municipal legislative body, you must file your appeal under the administrative procedures of the Maryland Rules, Chapter 7, Title 2, the old "B" rules. If you want to appeal a zoning of a parcel of land [(piecemeal zoning)], if it is a legislative act of a local legislature, that is your remedy. They filed mandamus and declaratory action here, but it is our position that they had to go under the old "B" rules. . . . [A]ll four Plaintiffs appeared at those zoning hearings. .... What did they do? One thing they did not do was pursue an administrative appeal. The 30 day deadline came and went, and many months later they filed an action for mandamus and declaratory relief. It is our position that they have failed to pursue mandatory administrative remedies, therefore, the case must be dismissed.

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Now, I anticipate that the Plaintiffs will argue the case of Northeast to you. In that case, what was before the court, was one of these combined annexation and zoning ordinances . . . [and the Court] found that, well when you combine the two . . . we will allow them to bring a declaratory action. Very different in Annapolis. We bifurcated the two processes, this land was in the City of Annapolis for six months . . . before this property was ever zoned R-1-B. So it is purely a 66[B] exercise of authority. In response, appellants made a brief reference to a memorandum they had filed in the case, which apparently relied on Northeast Plaza Associates, 310 Md. 20, 526 A.2d 963, and then relied almost exclusively upon provisions relating to combined annexation/rezoning resolutions or ordinances. The trial court, although ultimately ruling in favor of appellees on the merits, found against them on the failure to exhaust administrative remedies argument, relying on Northeast Plaza. In doing so, the trial court extended the exception created in Northeast Plaza beyond its limited scope and erred as a matter of law. We shall vacate the judgment of the circuit court and direct it on remand to dismiss this case for appellants' failure to exhaust their administrative remedies. II. DISCUSSION AND ANALYSIS A. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES This Court discussed the relationship between administrative and judicial remedies at great length in Zappone v. Liberty Life Insurance Co., 349 Md. 45, 706 A.2d 1060 (1998). Explaining that the appropriateness of each remedy ordinarily depends upon legislative intent, we stated: Whenever the Legislature provides an administrative and judicial review remedy for a particular matter or matters, the relationship between that
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administrative remedy and a possible alternative judicial remedy will ordinarily fall into one of three categories. First, the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Under this scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy. Second, the administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy. See, e.g., McCullough v. Wittner, 314 Md. 602, 613, 552 A.2d 881, 886 (1989) . . . ; Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 18, 511 A.2d 1079, 1088 (1986). . . ; Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986). Third, the administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy. Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. at 22-31, 511 A.2d at 1090-1094; Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 791, 506 A.2d at 633; Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 600, 386 A.2d 1216, 1225 (1978). .... Despite occasional dicta in a few opinions suggesting the contrary, where neither the statutory language nor the legislative history disclose an intent that the administrative remedy is to be exclusive, and where there is an alternative judicial remedy under another statute or under common law or equitable principles, there is no presumption that the administrative remedy was intended to be exclusive. There is in this situation, however, a presumption that the administrative remedy is intended to be primary, and that a claimant cannot maintain the alternative judicial action without first invoking and exhausting the administrative remedy. See, e.g., Md. Reclamation v. Harford County, supra, 342 Md. at 493, 677 A.2d at 576 ("this Court has `ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked and followed' before resort to the Courts"); Luskin's v. Consumer Protection, 338 Md. 188, 194-199, 657
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A.2d 788, 791-793 (1995); Clinton v. Board of Education, 315 Md. 666, 678, 556 A.2d 273, 279 (1989) ("Ordinarily, when there are two forums available, one judicial and the other administrative, . . . and no statutory directive indicating which should be pursued first, a party is often first required to run the administrative remedial course before seeking a judicial solution"); Quesenberry v. WSSC, 311 Md. 417, 424, 535 A.2d 481, 484 (1988); Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. at 13, 511 A.2d at 1085; Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 786, 506 A.2d at 631 ("we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed"); Prince George's Co. v. Blumberg, 288 Md. 275, 283-284, 418 A.2d 1155, 1160 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). Id. at 60-61, 63-64, 706 A.2d at 1067-68, 1069 (emphasis added) (footnotes omitted) (alteration in original). Judge Eldridge, for this Court, visited the doctrine of exhaustion of administrative remedies as it relates to State common law and State constitutional law in Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 677 A.2d 567 (1996). In that case, we had to determine whether Maryland Reclamation Associates (Maryland Reclamation) was "required to invoke and exhaust administrative remedies available under the Harford County Code and the Express Powers Act, Maryland Code (1957, 1994 Repl. Vol.), Art. 25A,

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