E-Alert Case Updates

Board of Appeals’ Straw Vote is Not a Final Decision

Renaissance Centro Columbia, LLC v. Joel Broida
No. 104 (Md. 2011)
by Lydia S. Hu, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The Court of Appeals applied longstanding precedent when dismissing this declaratory judgment action for failure to exhaust administrative remedies. The case was filed in the Circuit Court for Howard County related to the Plaintiff-Petitioner’s, Renaissance Centro Columbia, LLC, (hereinafter “Renaissance”) property development plan.

Renaissance owned approximately 1.5 acres of land in Columbia, Maryland. In 2005, Renaissance submitted to the Howard County Planning Board a site development plan that proposed to construct a 22-story mixed-use building that would contain 160 residential units and 10,697 square feet of retail space. The Defendant-Respondent Joel Broida (hereinafter “Broida”) filed a Motion to Deny Approval of the Site Development Plan. Broida lived in a condominium across the street from the proposed construction and objected to the building. The Howard County Planning Board ultimately approved the site development plan.

Broida, along with others, appealed the Planning Board’s decision and the appeal was heard by the Howard County Hearing examiner. Renaissance filed a Motion to Dismiss on the grounds that Broida and others lacked standing under the Howard County Code. The hearing examiner ruled in favor of Renaissance making a finding that Broida was not specially aggrieved such that he lacked standing to challenge the Howard County Planning Board’s approval of the site development plan.

Broida appealed to the Howard County Board of Appeals, which is comprised of five (5) members. Again, Renaissance argued that the appeal should be dismissed as the opponents lacked standing to appeal as they were not “specially aggrieved.” Between December 2006 and January 2007, the Board of Appeals held a four-day evidentiary hearing. Due to illness, one of the members resigned before the Board reached a decision on the standing issue.

In January 2007, the Board deliberated on the Motion to Dismiss and took a “straw vote” regarding whether Broida had standing to file an appeal. The Board was divided in a 2-to-2 vote. Next, during a closed session, the Board discussed how to proceed with this case. At this point, there were two (2) new members of the Board. One new member replaced the member who resigned due to illness, and another replaced a member who desired to retire. The new members were scheduled to be confirmed on February 5, 2007. The Board decided during its closed session that they would wait for further decisions relating to this case until the two (2) new members were confirmed. In the interim, the two (2) new members would listen to the tape recording of the four-day hearing and would review the evidentiary record. The Board would convene on February 12, 2007, after confirmation of the new members, deliberate and vote on the issue of Broida’s standing to appeal the decision by the Howard County hearing examiner to the Board of Appeals.

Both Renaissance and Broida objected to this proposal. Renaissance further filed a declaratory judgment action on February 7, 2007, in the Circuit Court for Howard County. Renaissance sought a declaratory judgment that the Board’s straw vote was a final decision on the standing issues and that the Board should dismiss Broida’s appeal.

The Circuit Court for Howard County granted Renaissance’s Motion for Summary Judgment, finding that the straw vote required the Board of Appeals to dismiss Broida’s appeal. The Court of Special Appeals reversed the trial court’s decision, which was implicitly based upon a finding that the straw vote was a final administrative decision.

Plaintiff Renaissance petitioned the Court of Appeals challenging the merits of the lower courts’ holdings relating to Broida’s standing. Without reaching the merits of the standing issue, the Court of Appeals reversed the lower courts holding that the 2-to-2 straw vote was not a final decision. Without a final decision, the administrative remedies were not exhausted, and, therefore, the case was remanded to the Circuit Court for Howard County with instructions that the case be dismissed.