Kenwood Gardens Condo v. Whalen Properties , 449 Md. 313 ( 2016 )

Kenwood Gardens Condominiums, Inc., v. Whalen Properties, LLC, No. 86, September Term,
2015. Opinion by Greene, J.
ADMINISTRATIVE LAW — PLANNING AND ZONING — PLANNED UNIT
DEVELOPMENTS — LEGISLATIVE INTENT
The courts ordinarily do not review the motives of the Legislature when reviewing a legislative
enactment unless the evidence establishes that the government body or actor was acting outside
its legal boundaries. Actions of a local government body that are legislative in nature, as
opposed to quasi-judicial or adjudicative, are subject to a more limited review. The planned
unit development approval process in Baltimore County requires both legislative and
adjudicative processes, which involve separate standards for judicial review. The Baltimore
County resolution at issue was a legislative act and thus not subject to ordinary judicial review
beyond the limited inquiry of whether the County Council was acting within its legal authority
in adopting the resolution. As such, the Board of Appeals was correct in concluding that it and
the Administrative Law Judge lacked the authority to review an alleged appearance of
impropriety in the initiation process underlying the resolution.
Circuit Court for Baltimore County
Case No. 03-C-13-7229 IN THE COURT OF APPEALS
Argued: May 4, 2016
OF MARYLAND
No. 86
September Term, 2015
______________________________________
Kenwood Gardens Condominiums, Inc., et al.
v.
Whalen Properties, LLC
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Battaglia, Lynne A., (Retired, Specially
Assigned),
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: August 19, 2016
The Baltimore County zoning regulations create a Planned Unit Development
(“PUD”)1 approval process that is partly legislative and partly quasi-judicial or adjudicative
in nature. The instant case arises from a dispute over the approval of a PUD application in
Baltimore County. Petitioners, Kenwood Gardens Condominiums, Inc., et al.
(“Kenwood”), allege that the PUD developer made illegal campaign contributions to the
county councilman who formally accepted the PUD application submitted by the
developer. Respondent, Whalen Properties, LLC (“Whalen Properties”), the developer,
submitted the PUD application on August 9, 2011, to First District Councilman Thomas
Quirk (“Councilman Quirk”) of Baltimore County. The proposed site for the PUD is
located in Councilman Quirk’s legislative district. On August 30, 2011, Stephen Whalen,
Jr., owner and principal of Whalen Properties, withdrew $8,500 from the company’s
account and subsequently distributed this money to several individuals, who were
instructed to deposit the sums into their own accounts and to write checks in those amounts
to the campaign committee, Friends of Thomas Quirk.2
1
Pursuant to zoning regulations:
A “planned unit development” (PUD) is a development in which residential
and/or commercial uses are approved subject to restrictions calculated to
achieve the compatible and efficient use of land, including the consideration
of any detrimental impact upon adjacent residential communities.
Baltimore County Zoning Regulations, Art. 4, Section 430.1.
2
No criminal charges were ever brought against Councilman Quirk. It appears that on
January 3, 2013, Mr. Whalen, in a separate criminal proceeding, pleaded guilty to five
counts of violating Maryland campaign finance laws. The statement of facts offered to
support the guilty pleas revealed a series of email communications between Mr. Whalen
and Councilman Quirk discussing campaign contributions and the PUD application.
Contained within the written statement of facts, the State Prosecutor specifically stated
“[n]o evidence was uncovered indicating that Councilman Quirk or his campaign officers
were aware that the three checks . . . were anything other than independent contributions
Kenwood is an adjacent landowner who challenges the approval of the PUD on the
appearance of impropriety generated by the donations. We conclude that because the
introduction and passage of a resolution is a legislative action, the legislative intent is
subject to limited judicial review. In addition, the alleged “appearance of impropriety”
generated by illegal campaign contributions does not negate the presumption of validity of
the legislative act.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Article 32, Title 4, Subtitle 2, §§ 32-4-242–402.1 (2003, 2012 Supp.) of
the Baltimore County Code (“BCC”),3 the PUD approval process in Baltimore County
begins with the submission of an application to the county councilman for the district in
which the proposed PUD is to be located. BCC § 32-4-242(a). The application is
subsequently incorporated into a County Council Resolution. Substantive review of the
application may not proceed unless the County Council passes the resolution. Following
the passage of the resolution, the application undergoes an extensive review and approval
process by various Baltimore County planning and zoning agencies before concluding in a
final public hearing before an administrative law judge (“ALJ”).
by those three individuals to the Quirk campaign.” Mr. Whalen made the contributions a
few weeks before Councilman Quirk introduced Resolution No. 108-11 to the County
Council. Upon submission of the application, “[n]otice of the proposed project was posted,
and a community meeting was held on September 1, 2011 to present the project and allow
community input.”
3
All citations to the Baltimore County Code refer to the 2003 Edition unless otherwise
stated herein.
-2-
On August 9, 2011, Whalen Properties submitted a PUD application to Councilman
Quirk for a seven story mixed-use medical services building. Notice of the PUD was
posted and a community input meeting was held on September 1, 2011. On September 19,
2011, Councilman Quirk introduced Resolution 108-11, which contained the PUD
proposal. The County Council unanimously approved the Resolution on October 17, 2011.
Whalen Properties met with Baltimore County agencies on October 24, 2011 and October
29, 2011 to review the concept plan and held a community input meeting on December 22,
2011 “to solicit detailed comments from local community members.”
On June 6, 2012, approximately eight months after the County Council adopted
Resolution 108-11, the Council enacted Bill 38-12, which exempted PUDs in certain areas
of Baltimore County from traditional compatibility standards under the zoning regulations
and substituted a more lenient set of compatibility objectives for all qualifying future PUD
applications. Kenwood alleges this is evidence of an improper “special law.”4 On June 8,
2012, Whalen Properties filed a finalized development plan, which it reviewed with
Baltimore County on August 1, 2012.
Pursuant to BCC § 32-4-245(b) (2003, 2012 Supp.), a Hearing Officer, hereinafter
designated as an ALJ, is required to “review the proposed [PUD] for compliance with the
4
A special law is “one that relates to particular persons or things of a class, as
distinguished from a general law which applies to all persons or things of a class.” Cities
Servs. Co. v. Governor, 290 Md. 553, 567 (1981) (quoting Prince George’s Cnty. v. B.
& O. R. Co., 113 Md. 179, 183 (1910)). The Maryland Constitution prohibits the General
Assembly from passing special laws, and this prohibition flows through to Baltimore
County via the Express Powers Act. See Md. Const., Art. III § 33; Md. Code (1974, 2013
Repl. Vol.), § 10-202 of the Local Government Article (“LG”).
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requirements of the Baltimore County zoning regulations and the development
regulations.” The ALJ’s review is narrow and fact-specific. Between August 22, 2012 and
December 3, 2012, an ALJ conducted five days of public administrative hearings on the
PUD development plan and approved the PUD on January 29, 2013.5
Kenwood challenged the proposed PUD at the hearing before the ALJ and
subsequently at the hearing before the Baltimore County Board of Appeals (“Board of
Appeals” or “the Board”). The ALJ rejected Kenwood’s challenge that the alleged
appearance of impropriety was reviewable or invalidated the process. Kenwood appealed
the ALJ’s approval of the PUD to the Board of Appeals. See BCC § 32-4-281(a), (c) and
(d) (2016) (“The Board of Appeals shall hear the appeals in accordance with the rules of
procedure adopted by the Board of Appeals”). Following a review of the ALJ’s decision,
the Board may:
(i) Remand the case to the ALJ;
(ii) Affirm the decision of the ALJ; or
5
Section 32-4-245(c)(1)-(c)(5) provides that an ALJ may approve a proposed PUD
development plan upon finding that:
(1) The proposed development meets the intent, purpose, conditions, and
standards of this section;
(2) The proposed development will conform with Section 502.1.A,B,C.D,E
and F of the Baltimore County Zoning Regulations and will constitute a
good design, use and layout of the proposed site;
(3) There is a reasonable expectation that the proposed development,
including development schedules contained in the PUD development
plan, will be developed to the full extent of the plan;
(4) Subject to the provisions of § 32-4-242(c)(2), the development is in
compliance with Section 430 of the Baltimore County Zoning
Regulations; and
(5) The PUD development plan is in conformance with the goals, objectives,
and recommendations of one or more of the following: the Master Plan,
area plans, or the Department of Planning.
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(iii) Reverse or modify the decision of the ALJ if the decision:
1. Exceeds the statutory authority or jurisdiction of the ALJ;
2. Results from an unlawful procedure;
3. Is affected by any other error of law;
4. Is supported by competent, material, and substantial evidence in light of
the entire record as submitted; or
5. Is arbitrary and capricious.
BCC § 32-4-281(e) (emphasis added).
On June 7, 2013, the Board of Appeals affirmed the decision of the ALJ. The
decision to affirm the ALJ’s approval of the proposed PUD was the agency’s final decision
in the matter. The Board agreed with the ALJ and concluded that any alleged improper
motivation underlying the actions by the County Council was beyond the permitted scope
of review. Kenwood sought judicial review in the Circuit Court for Baltimore County.
The Circuit Court reviewed the record and arguments presented by the parties and affirmed
the decision of the Board of Appeals. The Circuit Court concluded, however, that the
passage of Resolution No. 108-11 constituted a quasi-judicial action rather than legislative
action because the County Council’s process with regard to the “resolution for the PUD
[wa]s focused upon the analysis of factors relating to a single property.” Notwithstanding
that conclusion, the Circuit Court recognized that “[t]he issue for judicial review is not how
the process for a PUD review was initiated” and that “[t]he focus is [on] whether the
substance of the administrative review process was fair, and whether the decision to
approve the PUD complied with the law and was supported by the evidence.”
Kenwood noted a timely appeal to the Court of Special Appeals. In an unreported
opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. It held
that the ALJ’s decision did not exceed his statutory authority or result from an unlawful
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procedure or other error of law and that the ALJ’s findings were supported by substantial
evidence in the record.
Kenwood filed a petition for writ of certiorari. We granted certiorari. Kenwood
Gardens Condo. v. Whalen Properties, 446 Md. 218, 130 A.3d 507 (2016). Kenwood
raised multiple overlapping questions in its petition, which revolve around whether the
alleged appearance of impropriety generated by the campaign donations invalidates
Whalen’s submission of the PUD application to Councilman Quirk and whether the County
Council’s development process for approval of the PUD is subject to judicial review and
the scope of that review. We have condensed and restated these issues for the purposes of
clarity and concision:6
6
Kenwood presented the following questions:
1. Does the administrative agency here, the County Board of Appeals have
the authority and responsibility to review whether a serious and extraordinary
“appearance of impropriety[”] poisons, taints, and invalidates a County
Council Resolution approving the initiation of a favorable Planned Unit
Development (PUD) Zoning process consistent with its responsibility to
review all procedural and constitutional issues per Prince George’s County
v. Ray’s Used Cars, 398 Md. 632 (2007)[?]
2. Is there a serious and extraordinary problem of “appearance of
impropriety” when there is an undisputed e-mail record linking the PUD
Developer’s illegal campaign contributions to the County Council member
with the Council member[’]s sponsoring of the PUD resolution?
3. Pursuant to the Baltimore County Charter Section, 1009 and the Maryland
case law, (Overpak) is the County Council’s adoption of a PUD Resolution
as to this specific property here substantially an administrative action, even
though not the final action in the process, and so clearly reviewable for an
extraordinarily serious “appearance of impropriety”?
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1. Does the alleged impropriety or the alleged appearance of impropriety
affect Councilman Quirk’s legislative ability to introduce or vote on
Resolution 108-11 under Article 7, Title 1, Subtitle 3, § 7-1-301 (2003, 2011
Supp.) of the Baltimore County Code?
2. Does the alleged appearance of impropriety invalidate Bill 38-12 as an
improper “special law”, specifically designed to assist Respondent’s PUD
application?
STANDARD OF REVIEW
In reviewing the final decision of an administrative agency, such as the Board of
Appeals, we look “through the circuit court’s and intermediate appellate court’s decisions,
although applying the same standards of review, and evaluate the decision of the agency.”
People’s Counsel for Balt. Cnty. v. Loyola Coll., 406 Md. 54, 66, 956 A.2d 166, 173 (2008)
(quoting People’s Counsel for Balt. Cnty. v. Surina, 400 Md. 662, 681, 929 A.2d 899, 910
(2007)). Our scope of review is narrow and “is limited to determining whether there is
substantial evidence in the record as a whole to support the agency’s findings and
conclusions, and to determine if the administrative decision is premised upon an erroneous
4. Consistent with County Council for Montgomery County v. District Land
Corp., 274 Md. 691 (1975), even if County Council Resolution #108 is, or
properly is described by the Court of Special Appeals as legislative in
character, [is it] still subject to review where there is undisputed evidence of
an extraordinary “impropriety” which the reviewing administrative agencies,
and [the] Court of Special Appeals all criticized and said should not be
condoned?
5. Is the “appearance of impropriety” compounded where a County Council
member mentioned in the State Prosecutor’s Statement of Facts, also raising
dollars for an election campaign and then followed up the PUD resolution by
sponsoring and facilitating the approval of legislation (Bill 38-12), which
relaxed the long-standing relevant compatibility standard applicable
particularly to this PUD, and favoring it in a way which had no rational
relationship to compatibility?
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conclusion of law.” Md. Aviation Admin. v. Noland, 386 Md. 556, 571, 873 A.2d 1145,
1154 (2005). We defer to the regulatory body’s fact-finding and inferences, provided they
are supported by evidence which a reasonable person could accept as adequately
supporting a conclusion. Surina, 400 Md. at 681, 929 A.2d at 910 (quotation marks and
citation omitted). However, if we determine that the agency’s decision is based on an
erroneous conclusion of law, no deference is given to those conclusions. Surina, 400 Md.
at 682, 929 A.2d at 911. “[E]ven though the decision of the Board of Appeals was based
on the law, its expertise should be taken into consideration and its decision should be
afforded appropriate deference in our analysis of whether it was ‘premised upon an
erroneous conclusion of law.’” Marzullo v. Kahl, 366 Md. 158, 173, 783 A.2d 169, 178
(2001) (citing Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68, 729 A.2d 376,
380 (1999)).
DISCUSSION
The PUD Process
Land use in Baltimore County draws upon overlapping Baltimore County Code
provisions originating from a statutory grant under two separate Articles of the Maryland
Code. See LG § 5-203 and § 5-213 (formerly Articles 23A and 25) (granting to
municipalities legislative powers to adopt zoning regulations); LG § 10-102(b) and § 10-
324 (same with respect to charter counties and code counties); and Md. Code (2012),
Division I, Land Use Article (“LU”) (formerly Art. 66B) (regarding planning and zoning
in counties and municipalities). See also Mayor & Council of Rockville v. Rylyns Enters.,
Inc., 372 Md. 514, 528 n.3, 814 A.2d 469, 477 n.3 (2002) (“[t]racing the entire panoply of
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related enabling statutes in Maryland”); Cnty. Council of Prince George’s Cnty. v. Zimmer
Dev. Co., 444 Md. 490, 502, 120 A.3d 677, 683 (2015) (providing “[a] [m]ind-[n]umbing
[p]rimer . . . in the mysteries of land use regulation”).
“Modern zoning ordinances . . . strive to meet society’s current development needs
by providing greater flexibility in zoning patterns.” Rouse-Fairwood Dev. Ltd. P’ship v.
Supervisor of Assessments for Prince George’s Cnty., 138 Md. App. 589, 623, 773 A.2d
535, 555 (2001) (internal quotations omitted). A PUD is a planning tool employed to allow
increased flexibility in the land development process. See Md. Overpak Corp. v. Mayor
and City Council of Balt., 395 Md. 16, 22 n.4, 909 A.2d 235, 238 n.4 (2006) (“Overpak”).
Courts have recognized:
A planned unit development, or PUD, is the development of a tract of land
as a single entity which may include dwellings of various types, commercial
uses, and sometimes industrial uses . . . Such a planned unit “enables the
builder to create, within the confines of a single development, a variety of
housing types which . . . will [enhance] the possibilities of attractive
environmental design and [provide] the public with open spaces and other
common facilities.” The PUD “is a legislative response to changing patterns
of land development and the demonstrated shortcomings of orthodox zoning
regulations . . . Currently, the improvement of land is in control of developers
who assemble large tracts and improve the land for resale or rental. Given
this modern pattern of land development, planners and legislators conceived
a technique of land-use control which was better adapted to the realities of
the marketplace.” . . . Planned unit developments make it possible “to insure
against conflicts in the use of land while permitting a mix of use in a single
district.” . . . The PUD concept “has freed the developer from the inherent
limitations of the lot-by-lot approach and thereby promoted the creation of
well-planned communities.”
See Rouse-Fairwood Dev. Ltd. P’ship, 138 Md. App. at 624, 773 A.2d at 555–56 (quoting
Woodhouse v. Bd. of Comm’rs, 261 S.E.2d 882, 891 (N.C. 1980) (citations omitted)).
The Baltimore County Master Plan 2020 provides:
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The [PUD] represents an alternative development approval process that
increases and specifies benefits to the immediate community that the PUD
will impact, in exchange for an enhanced plan . . . Under the PUD process,
redevelopment can occur in forms not permitted by the standard application
of the [extant] zoning and development regulations. The PUD process can
streamline the review process for projects that utilize a site efficiently, are
compatible within the community and demonstrate a high degree of design,
quality, materials and finish. The flexibility provided by the PUD process
makes it an important tool to react to the changing market needs and
conditions in the County, and this vital function should be maintained.
Baltimore County Master Plan 2020, BALTIMORE COUNTY COUNCIL (Nov.
2010), http://resources.baltimorecountymd.gov/Documents/Planning/masterplan/masterpl
an2020.pdf [https://perma.cc/5H4M-BV7M].
Although PUD evaluations contain elements of comprehensive zoning by
considering broad policy concerns, they do so only in relation to the specific property being
evaluated. In Baltimore County, the evaluation of a PUD application is initiated by the
introduction of a resolution for consideration by the County Council. BCC § 32-4-242.
Article 32, Title 4, Subtitle 2, Part IV of the BCC sets forth the scheme for evaluating and
approving PUDs in that County. In 2005, the County Council passed Bill No. 130-2005
and changed the PUD application process. Prior to the enactment of Bill No. 130-2005,
developers applied directly to the County Planning and Zoning Commission. Currently,
the process of obtaining a PUD begins by submitting an application to the councilman
responsible for the district in which the proposed PUD will be located. BCC § 32-4-242(a).
The application requires the developer to submit the following: a map of the project site
with an explanation of how the site and acreage meet the criteria for the type of PUD
proposed; architectural schematics indicating the use, size, and location of the proposed
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structures; comparison of the present existing and the proposed future population density,
floor area ratio, and parking spaces; the projected impact on the surrounding community;
and a statement of compatibility with the requirements listed in BCC § 32-4-402. BCC §
32-4-242(b)(1)–(5). Additionally, the application must also list the community benefits
that the PUD will provide, including environmental, land use, capital improvement, and
public policy benefits. BCC § 32-4-242(b)(6)(i)–(iv). The application is required to be
posted on the County Council website, and a community meeting must be held. Notice of
the meeting must be posted and mailed to all adjoining property owners. BCC § 32-4-
242(c)(2)(i)(1). The councilmember has the discretion to schedule a second post-
submission community meeting.
After the councilmember submits the application to the Department of Permits,
Approvals and Inspections, that Department transmits the application to the Departments
of Planning, Public Works, Environmental Protection and Sustainability and other
appropriate reviewing agencies for preliminary review and comment. The reviewing
county agencies must provide a written preliminary evaluation of the proposal to the
Council member within fifteen days of the filing of a PUD application. BCC §32-4-
242(c)(3). Each department reviews the application and posts the preliminary evaluation
on the county’s internet website. Id. Following this preliminary evaluation, the matter of
the PUD application is then referred to the full County Council in the form of a Resolution
for action.
If the Council concludes that the proposed PUD will achieve a development of
substantially higher quality than a conventional development would achieve, and that the
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proposed site for the PUD is in accordance with the procedures of this title as well as the
requirements of the zoning regulations, then the proposed site is “eligible for County
review.” BCC § 32-4-242(d)(1). After the adoption of a resolution, the Council is required
to give public notice of the resolution and the Department of Permits, Approvals and
Inspections is required to post the property within ten business days of a final vote on the
resolution. See BCC § 32-4-242(d)(1), (3)(iii).
Approval by the County Council is not final acceptance of the PUD. Following the
passage of the resolution, the developer is required to participate in an informational
concept plan conference with the reviewing county agencies. BCC § 32-4-243(a) (2003,
2012 Supp.). Following the informational concept plan conference, the developer must
file a finalized PUD development plan. The County agencies then undertake review of and
prepare comments for the finalized development plan. BCC § 32-4-243(e). The
Department of Planning prepares a finalized report, which “together with the [PUD] and
pattern book7 shall be submitted to the [ALJ] for review[.]” BCC § 32-4-244 (2003, 2011
Supp.). The ALJ reviews the proposed PUD for compliance with the requirements of the
Baltimore County Zoning Regulations and issues a written approval or denial of the PUD.
BCC § 32-4-245. Final action on a development plan may not be taken until after a public
“quasi-judicial” hearing before an ALJ. BCC § 32-4-227(a) (2016).
7
A pattern book is a formal submission of the project details and specifications. Pattern
Book List, BALTIMORE COUNTY DEPARTMENT OF PLANNING (May 2016),
http://resources.baltimorecountymd.gov/Documents/Planning/PatternBookChecklist.pdf
[https://perma.cc/9M3D-BWDN].
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The Parties’ Contentions
Kenwood contends that the Board of Appeals erroneously upheld the approval of
the PUD application because Councilman Quirk’s involvement with Mr. Whalen created
an “appearance of impropriety” and tainted the application process. Further, Kenwood
maintains that the County Council’s process for the introduction and adoption of
Resolution 108-11 was substantially administrative or adjudicatory in nature and thus
subject to judicial review on the grounds of an “appearance of impropriety.” According to
Kenwood, an “appearance of impropriety” exists when there is an undisputed email record
indicating that Mr. Whalen made illegal campaign contributions to Councilman Quirk, the
sponsor of the PUD resolution. Conceding that the County Council serves a gatekeeping
function in the PUD approval process, Kenwood contends that this function involves
making a significant amount of specific factual findings to evaluate a particular PUD
proposal.
As an alternative argument, Kenwood suggests that even if Resolution 108-11 is
legislative in nature, it is nonetheless subject to judicial review, because there is undisputed
evidence of extraordinary impropriety in the PUD approval process. Kenwood relies upon
several out-of-state cases to support its conclusion that Councilman Quirk created a conflict
of interest that infected the entire PUD application process, and argues that the only way
to remove the taint of his involvement is for this Court to “void the resolution and resulting
PUD approval.” Moreover, according to Kenwood, the “appearance of impropriety” is
compounded by the County Council’s passage of Bill 38-12, a legislative act, which, in
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Kenwood’s view, is linked to other favorable council actions to facilitate the approval of
the Whalen Properties PUD application.
Whalen Properties sees the case differently. It contends that the introduction and
adoption of Resolution 108-11 was a legislative act subject to very narrow judicial review.
It maintains that the alleged improper motives underlying the passage of Resolution 108-
11 are irrelevant to the PUD application process, because the resolution relates primarily
to general policy-oriented considerations, such as environmental concerns, employment
and economic opportunities, and unique characteristics relating to the site of Whalen
Properties’ proposed PUD. In addition, Whalen Properties posits that the passage of
Resolution 108-11 was not quasi-judicial because no hearings were held by the Council to
consider documentary evidence or opinions in order to pass the Resolution. According to
Whalen Properties, the processes employed by the ALJ and the Board of Appeals were
rigorous. The ALJ engaged in a substantive review process that included five days of on
the record hearings. The Board of Appeals engaged in a detailed review of the
administrative record.
Whalen Properties asserts that neither the Board of Appeals nor the ALJ had the
authority to scrutinize Resolution 108-11 as long as the Council acted within its legal
bounds in passing the legislation. Whalen Properties points out that the County Council’s
process involved a separate proceeding which began with Councilman Quirk’s introduction
of the Resolution. The approval process that involved the ALJ and the Board did not
include Councilman Quirk or the County Council. Finally, Whalen Properties argues that
Kenwood’s reliance on several out-of-state cases, in an attempt to create an exception to
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the general rule that legislative motives are not subjective to judicial inquiry, is not
persuasive.
Legislative Nature of the Process and the Appearance of Impropriety
The relevant sections of the BCC regarding the PUD process specifically note that
the application must be submitted to the councilman responsible for the district in which
the proposed PUD is located. BCC § 32-4-242(a). Because the Code expressly provides
that submission to the councilman is the correct channel and does not provide for
alternative means of initiating the PUD process, it follows that Councilman Quirk was the
only individual authorized by law to act in accepting Whalen Properties’ PUD application.
Kenwood asserts, however, that the introduction and passage of Resolution 108-11
was administrative and quasi-judicial in character, and therefore, is reviewable for
impropriety. To the contrary, Whalen Properties contends that the County Council
performed a legislative action, which is not subject to review for motive. It is most
noteworthy that we have previously held that “a single decision-making process may
require both legislative and adjudicative roles for the hearing body.” Talbot Cnty. v. Miles
Point Prop., LLC, 415 Md. 372, 391, 2 A.3d 344, 355 (2010). See also Mayor & Council
of Rockville v. Woodmont Country Club, 348 Md. 572, 584–85, 705 A.2d 301, 306–07
(1998) (concluding enacting special assessments may include both adjudicative and
legislative aspects). Here, the process by which a PUD application is approved involves
action by both the County Council and further review by the ALJ; the former is legislative
and the latter is quasi-judicial.
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We hold that the introduction of Resolution 108-11 was a legislative act in nature
premised on a threadbare recital of relevant facts as submitted by the developer and
evaluated on general, policy-based grounds. Resolution 108-11 was a preliminary finding
of eligibility that allowed for the continued review of the PUD proposal by the County.
Specifically, as the Circuit Court pointed out below,
[t]he resolution for the PUD in this case merely initiated a substantive review
process. The decision to approve the PUD was the culmination of several
agency reviews, community input, plan revisions, and a contested
evidentiary hearing before a neutral and independent ALJ, which was then
substantively reviewed by the Board.
We recognize in analyzing the PUD review process in Baltimore County that an action is
legislative or quasi-judicial in nature depending on the factual evaluation used.
In Overpak, 395 Md. at 33, 909 A.2d at 245, we recounted the standard for
determining whether an act is legislative or quasi-judicial in nature:
The outcome of the analysis of whether a given act is quasi-judicial in nature
is guided by two criteria: (1) the act or decision is reached on individual, as
opposed to general, grounds, and scrutinizes a single property; and (2) there
is a deliberative fact-finding process with testimony and the weighing of
evidence.
We explained in Overpak that ordinarily, “proceedings or acts that scrutinize individual
parcels or assemblages for the consideration of property-specific proposed uses, at the
owner’s or developer’s initiative, suggest a quasi-judicial process or act.” 395 Md. at 37,
909 A.2d at 247. These individualized determinations are to be distinguished “from acts
that primarily have broader, community-wide implications, which encompass
considerations affecting the entire planning area or zoning district.” Overpak, 395 Md. at
36, 909 A.2d at 246.
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The second element of the test ordinarily involves “the holding of a hearing, the
receipt of factual and opinion testimony and forms of documentary evidence, and a
particularized conclusion as to the development proposal for the parcel in question.”
Overpak, 395 Md. at 38, 909 A.2d at 248. Accordingly, “site-specific findings of fact are
necessary not only to inform properly the interested parties of the grounds for the body’s
decision, but also to provide a basis upon which judicial review may be rendered.”
Overpak, 395 Md. at 40, 909 A.2d at 249 (internal citations omitted). We pointed out in
Overpak that the “most weighty criterion” is the fact-finding. 395 Md. at 33, 909 A.2d at
245.
Further, in Overpak, we concluded that the Baltimore City Council’s amendment of
a previously-approved PUD amounted to quasi-judicial rather than legislative action,
because the amendment dealt with a specific property and its unique circumstances, and
because the City Council, in enacting the ordinance that amended the PUD, made an
extensive body of factual findings following comprehensive, adversarial hearings. 395
Md. at 40–44, 909 A.2d at 249–51. The Council made its decision “on an individualized
basis.” Overpak, 395 Md. at 41, 909 A.2d at 249. The “property alone was singled out for
proposed amendment to its zoning, rather than the entire zoning district or planning area in
which it is located.” Id. In examining “the quality of the proceeding employed to examine
the PUD amendment proposal[,]” we pointed out that the City Council complied with State
and local enactments that require a hearing so that the parties in interest and the public have
an opportunity to voice concerns. Overpak, 395 Md. at 41, 909 A.2d at 250. The Court in
Overpak noted that the City Council undertook an expansive and highly specific fact-
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finding process to evaluate the amendment according statutory criteria enumerated in
sections 9-112 and 14-205(a) of the Baltimore City Zoning Code. Overpak, 395 Md. at 42,
909 A.2d at 250.
We agree with the Court of Special Appeals that, in the present case, the fact that
the Resolution pertained to a specific property ostensibly weighs in favor of the conclusion
that the PUD approval process was quasi-judicial. The PUD approval process concerned
one development project, the approval of which turned on concerns specific to that
property. Thus, Resolution 108-11 appears on the surface to satisfy the first factor of the
Overpak standard that “the act or decision is reached on individual, as opposed to general,
grounds, and scrutinizes a single property[.]” Overpak, 395 Md. at 37, 909 A.2d at 247
(emphasis added). However, in adopting the Resolution, the County Council considered
the PUD in a general context, taking into account legislative facts and the impact of the
development on the community at large.
Notably, in Miles Point Prop., LLC, relying on our decision in Overpak, we pointed
out that “[i]t is . . . not a hearing’s ‘mere focus on one parcel that is dispositive of [the
hearing’s] quasi-judicial nature, but rather that the matter taken up at the hearing is
disposed of based on the unique characteristics’ of the property at issue.” 415 Md. at 387,
2 A.3d at 353. The Court explained that “the greater a decision-maker’s reliance on
general, ‘legislative facts,’ the more likely it is that an action is legislative in nature.” Id.
On the other hand we said, “the greater a decision-maker’s reliance on property-specific,
‘adjudicative facts,’ the more reasonable it is to term the action adjudicatory in nature.” Id.
“Generally, adjudicative facts concern questions of ‘who did what, where, when, how,
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why, [and] with what motive or intent,’ while legislative facts ‘do not usually concern the
immediate parties but are general facts which help the tribunal decide questions of law and
policy and discretion.” Miles Point Prop., LLC, 415 Md. at 387–88, 2 A.3d at 353 (quoting
1 Kenneth C. Davis, Administrative Law Treatise § 7:02 (1958)).
There is substantial evidence in the record that the County Council focused
minimally on the unique characteristics of the Whalen property itself. Instead, the County
Council focused, as directed by BCC § 32-4-242(b)(6), on public policy benefits.
Specifically, it focused on the benefits that the PUD would confer to the surrounding
community. This is evidenced in the recitals contained in Resolution 108-11:
[(1) The] project is designed to be a Transit Oriented Development and also
meets the objectives of the Baltimore County Master Plan 2020 and “Smart
Growth” which the Council approves as an acceptable public policy
benefit[;] . . . [(2)] as a community benefit, the building shell of the office
building will be constructed to at least a LEED Silver rating, which the
Council approves as an environmental benefit . . . [(3)] as a community
benefit, the PUD project will provide necessary employment opportunities
and services within the Catonsville area, and will promote economic
development opportunities [;] . . . [(4)] in addition to the tangible and
intangible benefits to the surrounding Catonsville area that would result from
the project itself, as a community benefit, the Applicant has made a
commitment to make significant traffic safety improvements, including
sidewalk improvements to Kenwood Avenue, permanent improvements to
the existing intersection of Kenwood Avenue and the ramp to the Baltimore
Beltway I-695, and the installation of a permanent traffic signal at the
intersection of Kenwood Avenue and Wilkens Avenue, which qualify as
capital improvement benefits to County-owned facilities for use by
community residents[;] . . .[(5)] the Applicant [is required] to make a
commitment to donate the sum of $50,000 to Catonsville Rails to Trials[;] .
. . . [(6)] the Applicant [is required] to install improvements to serve the
Kenwood Gardens Condominium Association [;] . . . [(7)] the proposed PUD
will achieve a development of substantially higher quality than a
conventional development will achieve[.]
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Thus, considering the County Council’s focus in passing Resolution 108-11 there is
substantial evidence in the record to support the conclusion that the Council’s action in
adopting the Resolution was legislative in nature.
Even if we were to characterize the County Council’s actions as satisfying the first
factor in Overpak—and we do not—we agree with the Court of Special Appeals in this
case that, “[a]lthough Resolution No. 108-11 clearly addressed a particular parcel of land,
in which there was particular community interest, the resolution process lacked the
requisite level of fact-finding sufficient to qualify it as a quasi-judicial act under Maryland
law.” Therefore, the resolution does not satisfy the second factor of the Overpak test which
requires a deliberative fact-finding process with testimony and the weighing of evidence.
The County Council conducted no adjudicative hearings, nor did it consider documentary
evidence or opinion testimony similar to the Baltimore City Council in Overpak. 395 Md.
at 38, 909 A.2d at 248. The BCC requires a “post-submission community meeting.” BCC
§ 32-4-242(c). Pursuant to the code, Whalen Properties informed interested persons about
the PUD and interested community members could “ask questions or make comments.”
BCC § 32-4-242(c)(1)-(2). Pursuant to the County Code, members of the public may
submit “written input and comments” to the Council. BCC § 32-4-242(c)(2)(iii). The
limited process here that permitted members of the public to express their views about the
PUD was a far cry from the evidentiary hearings that characterized the quasi-judicial
proceedings in Overpak. 395 Md. at 40–44, 909 A.2d at 249–51. See also Armstrong v.
Mayor & City Council of Balt., 169 Md. App. 655, 906 A.2d 415 (“Armstrong III”) (2006)
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(holding that a parking lot ordinance was a quasi-judicial act subject to judicial review due
to the adjudicative nature of the hearings held on the matter).
These are not the fact intensive findings as demonstrated in Overpak. 395 Md. at
40–44, 909 A.2d at 249–51. At best, the County Council’s receipt of public comment and
reports concerning the PUD application and its determinations were minimal and
preliminary. Here, the Resolution itself is best characterized as conclusory factual
assertions requiring little or no factual inquiry. The Resolution consists of the proposed
name and location of the PUD, a perfunctory review of the procedural and statutory factors
that inform the decision, and a declaration that the proposal meets the objectives of the
Baltimore County Master Plan 2020. As the intermediate appellate court stated in its
unreported opinion, the County Council’s resolution concluded that the PUD was eligible
for County review on the basis of information that “[does] not reflect either substantive or
fact-intensive review or the weighing of opposing testimonial or physical evidence.” The
BCC requires that the developer hold a post submission community meeting prior to the
adoption of the Resolution so that community residents may provide written input
regarding the proposed development. See BCC § 32-4-242(c)(2)(ii)(4). The minutes from
the community meeting are submitted following introduction of the Resolution. See BCC
§ 32-4-242(c)(2)(ii)(4). While the community meeting may provide opposing testimonial
evidence, the record reflects that no mention of review by the Council member was made
in the Resolution beyond a note that the minutes were submitted.
The BCC further provides that once the application is submitted, the reviewing
agencies must provide to the Council member a preliminary evaluation of the proposal
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within fifteen days of the filing. BCC § 32-4-242(c)(3). This review is neither substantive
nor fact-intensive; rather, it is a rote determination that the proposed PUD:
1. Generally conforms to the concept plan presented at the community input
meeting;
2. Contains the information required under §§ 32-4-221(b) and (c) and 32-4-
222 through 32-4-224 of this subtitle; and
3. Complies with other related laws, regulations, or policies.
BCC § 32-4-225 (2016). The preliminary review performed by the reviewing agencies is
limited in scope, and does not reflect either substantive review or the weighing of physical
evidence beyond comparing the application to the requirements listed in the BCC.
Resolution 108-11 was not the final determination that established that the Whalen
Properties PUD would be built. As we previously stated, it was the preliminary finding
that opened the door for the “continued review” of the PUD proposal by the County. BCC
§ 32-4-242(d)(1). This continued review accounted for all the substantive, fact-intensive
elements missing from the resolution process. As previously mentioned, the ALJ held a
five-day hearing where both sides had an opportunity to present testimony and evidence,
including cross-examination and rebuttal arguments. This process culminated in a final
conclusion by the ALJ based upon a factual determination on the record and consideration
of many statutory and regulatory standards. The ALJ’s final decision was subject to further
review on appeal to the Board of Appeals. Both the ALJ and the Board of Appeals
determined Councilman Quirk’s motivations were not within the scope of their review of
the PUD application. Similarly, we agree with the determination of the Court of Special
Appeals “that the process that culminated in Resolution 108-11 was legislative, and not
quasi-judicial, in nature.”
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Moreover, the courts are not ordinarily “concerned with whatever may have
motivated the legislative body.” Workers’ Comp. Comm’n v. Driver, 336 Md. 105, 118,
647 A.2d 96, 103 (1994). “Legislative or quasi-legislative decisions of local legislative
bodies are . . . not subject to ordinary judicial review; instead, they are subject to very
limited review by the courts.” Overpak, 395 Md. at 33, 909 A.2d at 245 (quoting Gisriel
v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 490 n. 12, 693 A.2d 757, 763
n. 12 (1997)). Judicial scrutiny of legislative action under the court’s ordinary jurisdiction
“‘is limited to assessing whether [a government body] was acting within its legal
boundaries.’”8 Miles Point Prop., LLC, 415 Md. at 393, 2 A.3d at 356 (quoting Cnty.
Council of Prince George’s Cnty. v. Offen, 334 Md. 499, 507, 639 A.2d 1070, 1074
(1994)). See also Judy v. Schaefer, 331 Md. 239, 265–66, 627 A.2d 1039, 1052–53 (1993)
(noting that when an agency action is legislative in nature, as opposed to adjudicatory or
quasi-judicial in nature, the scope of review is limited).
Kenwood seeks the invalidation of Resolution 108-11 and to disqualify Councilman
Quirk from the PUD application process, because of the alleged appearance of impropriety
8
The actions of the County Council members are clearly subject to review, for example,
by the Ethics Commission, and inquiry into the alleged appearance of impropriety falls
under the Commission’s purview. See Sugarloaf Citizens Ass’n, Inc. v. Gudis, 78 Md.
App. 550, 554 A.2d 434 (1989), aff’d, 319 Md. 558, 573 A.2d 1325 (1990) (holding that
the county ethics commission had primary jurisdiction to hear and investigate any
complaint about violations of the ethics code where petitioner alleged that a councilman
had violated the county ethics code when voting on a zoning issue); Bd. of Pub. Works v.
K. Hovnanian’s Four Seasons at Kent Island, LLC, 443 Md. 199, 211, 115 A.3d 634, 641
(2015) (noting that a Wetlands Administrator’s alleged conflict of interest was referred to
State Ethics Commission for review). In addition, Office of the State Prosecutor conducted
its investigation and found no basis for criminal charges against a member of the County
Council.
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in his acceptance of campaign contributions and the submission and approval of the
Resolution by the County Council. The process that Councilman Quirk was involved in
was legislative and not quasi-judicial or adjudicative.9 As the Court of Special Appeals
indicated in its opinion, “Resolution 108-11 was not the final determination that established
whether Whalen Properties’ PUD application would be [approved]; rather it was a mere
preliminary finding of eligibility that allowed for ‘continued review’ of the PUD proposal
by the County.” As long as Councilman Quirk acted within the legal boundaries of the
law, his actions were beyond the scope of any extended judicial review. And we agree
9
In a judicial or quasi-judicial proceeding, the decision-maker is presumed to be impartial.
Regan v. State Bd. of Chiropractic Exam’rs, 355 Md. 397, 410, 735 A.2d 991, 998 (1999).
We have recognized in the context of evaluating the recusal or disqualification of a decision
maker or fact finder “that the ‘appearance of impropriety’ standard set forth in our cases
involving judges and some others is applicable generally to the participation of members
of Maryland administrative agencies performing quasi-judicial or adjudicatory functions
. . . .” Id. In such a context, we would apply an objective test to examine the record facts
and the law, and decide whether a reasonable person knowing and understanding all the
relevant facts would be led to conclude that the decision maker’s impartiality might
reasonably be questioned. Regan, 355 Md. at 410–411, 735 A.2d at 998. The reasonable
person standard is applied most often to the actions of judges and lawyers, but it pertains
to actions of all public officials. See, e.g., Spencer v. Md. State Bd. of Pharm., 380 Md.
515, 846 A.2d 341 (2004) (members of the Maryland State Board of Pharmacy); K.
Hovnanian’s Four Seasons at Kent Island, LLC, 443 Md. at 211, 115 A.3d at 641 (wetlands
administrator); Regan, 355 Md. at 410–11, 735 A.2d at 998 (members of the Maryland
Board of Chiropractic Examiners); Sinclair v. State, 278 Md. 243, 254, 363 A.2d 468, 475
(1976) (prosecutor); In re Turney, 311 Md. 246, 253, 533 A.2d 916, 920 (1987) (district
court judge). See also Young v. State, 297 Md. 286, 298, 465 A.2d 1149, 1155 (1983)
(holding “that mere appearance of impropriety is not of itself sufficient to warrant
disqualification of entire State’s Attorney’s office”).
The record facts in the present case, however, show that the State Prosecutor was
well aware of the allegations of impropriety, but, on the basis of the evidence, never
brought criminal charges against the Councilman. To the contrary, the State Prosecutor
determined that Councilman Quirk had no express knowledge of the improper donations
or that Mr. Whalen had paid them. There were no facts to the contrary made a part of the
administrative record.
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with the Court of Special Appeals in this case that “[t]he Board of Appeals and the ALJ
properly determined that Councilman Quirk’s motivations were beyond the scope of
review.”
Under the circumstances, there is no basis upon which to apply the reasonable
person standard10 to the legislative actions of Councilman Quirk. Neither the
Councilman’s actions in the PUD application and approval process, nor the County
Council’s actions amounted to that of a decision maker in a judicial or quasi-judicial
proceeding. Thus, both the ALJ and the Board of Appeals were correct in refusing to
disqualify Councilman Quirk’s or the County Council’s participation in the PUD
application process.11
10
See supra note 9.
11
Additionally, after the oral arguments in the case at bar, Kenwood asked that we review
two recent United States Supreme Court cases, McDonnell v. United States, 579 U.S. ___
(2016) (No. 474, October Term, 2015) and Williams v. Pennsylvania, 579 U.S. ___, 136 S.
Ct. 1899, 195 L. Ed. 2d 132 (2016) (No. 5040, October Term, 2015). McDonnell is a
widely publicized case regarding the former Governor of Virginia, Robert McDonnell, who
was convicted of “honest services” fraud and Hobbs Act extortion charges relating to
$175,000 in gifts from a businessman. McDonnell, 579 U.S. at ___. The Supreme Court
vacated McDonnell’s convictions on the basis of erroneous jury instructions regarding the
definition of “official action.” Id. The case, however, is distinguishable from the present
case as Governor McDonnell was actually charged and convicted of a crime. Id. Here, the
record reflects no evidence that Councilman Quirk knew the campaign contributions were
unlawful or were anything other than independent contributions to his campaign. The
Court of Special Appeals noted that no charges were ever brought against Councilman
Quirk and there is no evidence of a quid pro quo connection between the contributions by
the developer and official action taken by the Councilman.
In Williams v. Pennsylvania, the Supreme Court held that a Pennsylvania Supreme
Court Chief Justice with prior significant involvement in a case as a prosecutor should have
recused himself from hearing a post-conviction death penalty appeal on the same case as a
judge. 579 U.S. at __, 136 S. Ct. at 1908–10, 195 L. Ed. 2d at 144–46. The judge was one
of five justices to hear the appeal and was the author of a concurring opinion, but the Court
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Moreover, we decline to apply the conflict-of-interest review urged by Kenwood
and used by a minority of states. See Aldom v. Borough of Roseland, 127 A.2d 190, 197
(N.J. Supr. Ct. App. Div. 1956); Netluch v. Mayor & Council of Borough of W. Paterson,
325 A.2d 517, 520 (N.J. Supr. Ct. Law Div. 1974). Those cases are inconsistent with
Maryland law, and we are not persuaded by Kenwood’s arguments that we should modify
our precedent. In both cases referenced, the Supreme Court of New Jersey addressed the
validity of an ordinance when voting members stood to benefit from the passage of the
ordinance in question. Aldom, 127 A.2d at 196–98; Netluch, 325 A.2d at 519–20. The
Court concluded that both ordinances were voidable. Aldom, 127 A.2d at 198; Netluch,
325 A.2d at 520. It was determined that the appearance of impropriety had affected both
the legislative act of introducing the resolution and the subsequent quasi-judicial fact
finding process. Aldom, 127 A.2d at 197. Under Maryland law, however,
when the judiciary reviews a statute or other governmental enactment, either
for validity or to determine the legal effect of the enactment in a particular
situation, the judiciary is ordinarily not concerned with whatever may have
motivated the legislative body or other governmental actor.
held that the impropriety created by the appearance of bias demeaned the reputation and
integrity of the court as a whole, and thus constituted reversible error. Id.
Williams is distinguishable from the present case on the basis of actual impropriety
as compared to the alleged appearance of impropriety and Williams involved judicial acts,
while Councilman Quirk’s actions were legislative. Id. A judge’s failure to recuse himself
in a situation where the evidence supports clear and actual impropriety differs from the
facts contained in the record of the instant case. Id. It was never established that
Councilman Quirk was knowingly involved in any wrongdoing. Kenwood merely alleges
that the Councilman’s actions appeared to be improper, and fails to establish any actual
impropriety in his actions in submitting the PUD application to the County Council.
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Driver, 336 Md. at 118, 647 A.2d at 103. See also Bethel World Outreach Church v.
Montgomery Cnty., 184 Md. App. 572, 598 n.17, 967 A.2d 232, 248 n.17 (2009) (“[I]n
reviewing legislative action, we refrain from ‘institut[ing] an inquiry into the motives of
the legislature in the enactment of laws.’”) (quoting Cnty. Council for Montgomery Cnty.
v. Dist. Land Corp., 274 Md. 691, 704, 337 A.2d 712, 720 (1975)). One commentator
points out:
Judge–made “appearance of fairness” doctrines and special due process
standards governing conflicts of interest and bias in adjudicative zoning
proceedings generally are not applied to members of a legislative body when
engaged in purely legislative zoning actions. The judicial reluctance to
review legislative action for bias or conflicts of interest, stems from a concern
for the separation of powers and manifests itself in the traditional rule that a
court will not inquire into legislators’ motives.
2 EDWARD H. ZIEGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING (4th Ed.
Rev. 1994), § 32:15 (“Rathkopf’s”).
Here, the ALJ decided the merits of Whalen Properties’ PUD application. Neither
Councilman Quirk nor the County Council participated in the ALJ’s decision to approve
the PUD or the review conducted by the Board of Appeals. Thus, the Board of Appeals
correctly held that it, and the ALJ, lacked the authority and responsibility to review the
Resolution for an appearance of impropriety.12 The standards of review applicable to the
12
The motives of the Legislature do not completely escape review, however. We will
review motive “to the extent that a governmental body’s motive may cast light upon the
meaning of its enactment.” Driver, 336 Md. at 119, 647 A.2d at 103. See also Schisler v.
State, 394 Md. 519, 602, 907 A.2d 175, 224 (2006) (acknowledging the Legislature’s
motives behind an enactment when determining that the Legislature was firing
Commissioners, “thus encroaching on the Executive Branch’s function”). In the present
case, the legislative intent underlying Baltimore County’s scheme, pursuant to Article 32,
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ALJ and the Board of Appeals do not contemplate scrutiny of the County Council’s
motives or review for an appearance of impropriety of those motives. See BCC § 32-4-
245(b) (stating that the ALJ shall review the proposed [PUD] for compliance with the
requirements of the Baltimore County Zoning Regulations and the development
regulations); BCC § 32-4-281(e) (stating that the Board of Appeals in reviewing the ALJ’s
determination may reverse or modify the ALJ’s decision only under certain circumstances
delineated by statute). Applying the above principles and in light of our determination that
Resolution 108-11 was legislative in nature, we conclude that the ALJ and the Board of
Appeals were not permitted to examine the alleged appearance of impropriety arising from
Mr. Whalen’s and Councilman Quirk’s involvement. And, in any event, as explained
above, the process by which the PUD was actually approved was an independent process
that did not involve Councilman Quirk or even the County Council.
Bill 38-12 as a “Special Law”
Lastly, Kenwood alleges that the appearance of impropriety is compounded by the
passage of Bill 38-12, the content and timing of which indicate that the primary purpose of
the bill was to facilitate approval of Whalen Properties’ PUD. Bill 38-12 applies to parcels
of land in certain areas of the County and relaxes the compatibility requirement between
current land use and proposed future land use. The Bill was voted into law on June 6, 2012,
two days before Whalen Properties filed a finalized development plan on June 8, 2012. We
reject Petitioners’ argument that Bill 38-12, now codified at Article 32, Title 4, Subtitle 4,
for evaluating and approving PUDs in that county is not a question we have been asked to
address.
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§ 32-4-402.1 (2003, 2012 Supp.) of the BCC, is in some way affected by the alleged
impropriety and therefore invalid as a “special law.”13 The Court of Special Appeals noted
that the Bill was intended to provide alternative compatibility requirements for a specified
class of future PUD developments and does not apply solely to the Whalen Properties PUD
application. In our view, there is nothing unlawful or improper about the County Council’s
enactment of Bill 38-12. We agree with the Court of Special Appeals that we cannot
reasonably conclude that the law was designed specifically to assist in the passage of this
PUD simply because the Bill applied to this PUD application. The record before us does
not support Kenwood’s conclusions.
CONCLUSION
The introduction and passage of Resolution 108-11, essentially, were legislative
actions, the motivations behind which are not subject to review for the appearance of
impropriety. The alleged appearance of impropriety generated by Mr. Whalen’s actions
did not invalidate Councilman Quirk’s or the Council’s legislative actions. The
preliminary fact-finding review processes carried out by the planning and zoning agencies
and the Board of Appeal’s substantive review following the passage of the resolution were
quasi-judicial actions, which are subject to broader review. Councilman Quirk and the
County Council were not involved directly in the proceedings before the ALJ or the Board
of Appeals. Any alleged appearance of impropriety involving Councilman Quirk or the
County Council would not invalidate the ALJ’s decision or the Board of Appeal’s decision.
13
See supra note 4.
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Therefore, we hold that there was substantial evidence in the record to support the
Agency’s final decision to approve the PUD. That decision was not contrary to the law.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
COSTS TO BE PAID BY PETITIONERS.
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