Montgomery Preservation v. Park and Planning Commission

MD Court of Special Appeals, No. 1176/09, Feb. 25, 2011: Held the circuit court properly refused to review the County Planning Board’s recommendation to the County District Council against designating a building as a historic site.

Montgomery County’s Historic Preservation Commission, at the request of the Silver Spring Historical Society, recommended to the Maryland-National Capital Park and Planning Commission’s (“MNCPPC”) to recommend to the Montgomery County District Council (“Council”) to designate a building known as “the Perpetual Building,” as a historic site. The MNCPPC voted not to recommend the designation. The Council voted not to hold a hearing on the proposal, thereby denying the designation. The Society and others asked the circuit court for a writ of administrative mandamus for judicial review of the MNCPPC’s decision not to recommend the designation. The circuit court granted a motion to dismiss, finding that because the MNCPPC’s action was only a recommendation and the final decision was up to the District Council, a mandamus action against the MNCPPC was not appropriate.

The appeals court, reviewing the underlying question (de novo), held that under applicable law (MD Art. 28, §7-108(d)(2)) MNCPPC’s recommendation was not an appealable “final administrative decision” and, “with rare exceptions not present in the instant case … one cannot seek judicial review until a final administrative decision is reached… When the District Council approved by inaction the Planning Board’s recommendation, it made the final decision on the proposed amendment. Thus, as the circuit court concluded, to appeal the decision not to designate the Perpetual Building as a historic site, appellants should have appealed the decision of the District Council, not the recommendation of the Planning Board.”

Decision available at http://mdcourts.gov/opinions/cosa/2011/1176s09.pdf.

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