County Council of Prince George’s County v. Zimmer Development Company, No. 64,
September Term, 2014
ZONING AND LAND USE – REGIONAL DISTRICT ACT – DISTRICT
COUNCIL REVIEW OF PLANNING BOARD DECISION – SUBSTANTIAL
EVIDENCE
The County Council of Prince George’s County, sitting as the District Council as a
zoning body under the Regional District Act, exercises appellate jurisdiction when
reviewing the action of the county Planning Board to approve or deny a comprehensive
design plan or specific design plan of a property zoned previously to a comprehensive
design zone (a floating zone). The Council may only reverse the action of the Planning
Board if the Planning Board’s decision is not supported by substantial evidence, is
arbitrary and capricious, or is predicated on an error of law.
ZONING AND LAND USE – REGIONAL DISTRICT ACT – DISTRICT
COUNCIL REVIEW OF PLANNING BOARD DECISION – LIMITED TO
ISSUES ON REMAND
If the County Council of Prince George’s Council, sitting as District Council,
remands such a case to the Planning Board to consider or reconsider select issues,
pursuant to Prince George’s County Code § 27-523(a), and reviews after remand the
modified decision of the Planning Board, it may reverse the modified decision of the
Planning Board based only on the issues that were remanded for consideration or
reconsideration.
ADMINISTRATIVE LAW – JUDICIAL REVIEW OF DISTRICT
COUNCIL DECISION – REVERSAL OF AGENCY DECISION
A reviewing court may reverse the decision of an administrative agency, and need
not remand the case for further consideration by the agency, when there remains no
administrative discretion or function for the agency to exercise or perform properly and
the outcome is required by law.
Circuit Court for Prince George’s County
Case Nos. CAL 12-19612 & CAL 12-19613
Argued: 3 March 2015
IN THE COURT OF APPEALS OF
MARYLAND
No. 64
September Term, 2014
COUNTY COUNCIL OF PRINCE
GEORGE’S COUNTY, SITTING AS
THE DISTRICT COUNCIL
v.
ZIMMER DEVELOPMENT
COMPANY
Barbera, C.J.,
*Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Filed: August 20, 2015
*Harrell, J., now retired, participated in
the hearing and conference of this case
while an active member of this Court; after
being recalled pursuant to the Constitution,
Article IV, Section 3A, he also
participated in the decision and adoption
of this opinion.
Given the battle of almost epic proportions waged by the respective angels in the
present litigation, it seems fitting to describe metaphorically with select readings from the
entirely fictional Book of Land Use the forced march this case has made:
Chapter MMIV (2004):
In the beginning, a landowner applied to reclassify to a
floating zone a certain property in Adelphi, in the county of
Prince George’s, in the State of Maryland. The District
Hegemon looked upon the application and saw that it was
good.
Chapters MMX – MMXII (2010-2012)
Time passed. The landowner sought at last approval to
complete that which had been initiated lo’ those many years
ago. Although the landowner’s latest initiatives were deemed
acceptable by the County planning satraps, the District
Hegemon, being displeased with these offerings, spurned
them as unworthy.
The landowner, feeling much afflicted, brought its
plight before a local Sanhedrin who, finding uncharitable the
District Hegemon’s most recent treatment of the landowner’s
offerings, decreed that the offerings were pleasing indeed
unto the eyes of the law.
Chapter MMXV (2015)
The displeased District Hegemon brings its case now
before the Great Sanhedrin, which, having heard the piteous
wailing and cries from all concerned, shall now pass final
judgment.
I. THE RELEVANT LAND USE REGIME IN PRINCE GEORGE’S COUNTY:
A MIND-NUMBING PRIMER
Most judges and lawyers, and many public officials and members of the general
public, are uninitiated (and perhaps even uninterested, unless their oxen are being gored)
in the mysteries of land use regulation. With apologies particularly to the uninterested,
the following introduction to the relevant zoning, planning, and land use regime in play
virtually throughout all of Prince George’s County (and the Regional District of which it
is a part) is useful, if not essential, in order to grasp the context of the facts of this case
and our decision to follow. Because the dispute is primarily about the source and terms of
the locality’s authority to regulate land use, we will explore first the well-spring of that
authority.
The modern authority to regulate land use in Maryland may be traced to the
colonial Maryland Charter of 1632. The Charter granted to the Lord Proprietor “free, full,
and absolute power . . . to ordain, make, enact, and . . . publish any laws
whatsoever . . . .”1, 2 Maryland Charter of 1632 (modified for modern spelling). Much of
1
The Charter required any legislative action to “be consonant to Reason, and be
not repugnant or contrary, but (so far as conveniently may be) agreeable to the Laws,
Statutes, Customs and Rights of this Our Kingdom of England.” The laws of England at
the time did not limit the regulation of private land for the public good. John F. Hart,
Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L.
Rev. 1252, 1285-86 (1996); see Charles II, 1666: An Act for rebuilding the Citty of
London, reprinted in 5 Statutes of the Realm 1628-80, at 603-612 (John Raithby ed.,
1819), http://www.british-history.ac.uk/statutes-realm/vol5/pp603-612 (establishing a
building code to regulate construction of new dwellings in the aftermath of the Great Fire
of London).
In modern times, this broad authority is referred to as the State’s “police power.”
“In its broadest sense the police power is said to be the power of government inherent in
every sovereignty.” Tighe v. Osborne, 149 Md. 349, 356, 131 A. 801, 803 (1925); see
also Lawton v. Steele, 152 U.S. 133, (1894). Like the language of its primordial grant,
such power is not absolute. As we have noted,
[i]n this state the courts have uniformly held that the police
power is not unlimited, but that wherever it is invoked in aid
of any purpose or legislation, such purpose or legislation must
bear some definite and tangible relation to the health,
(Continued…)
2
this authority was wrested from the Proprietor by the legislative assembly prior to the
colony achieving independence from Great Britain. See generally Albert J. Martinez, Jr.,
The Palatinate Clause of the Maryland Charter, 1632-1776: From Independent
Jurisdiction to Independence, 50 Am. J. Legal Hist. 305 (2008-2010). The State of
Maryland retains this broad authority to regulate land use (and to delegate powers to the
political subdivisions), subject only to the Federal and State constitutions.
(…continued)
comfort, morals, welfare, or safety of the public, which must
define the farthest boundaries of its territory.
Goldman v. Crowther, 147 Md. 282, 293, 128 A. 50, 54 (1925).
2
The colonial administration exercised its land use power. Maryland’s mill act,
stating that most of the places fit for building watermills was owned by people who, on
account of being underage or “willfully obstinate,” would not sell their property to those
willing to construct mills, established a process by which an individual proposing to build
a mill could condemn another’s property. Hart, Colonial Land Use Law and Its
Significance for Modern Takings Doctrine, supra, at 1267 (1996) (quoting Act of May 8,
1669, 2 Archives of Maryland 211, 211-12 (William H. Browne ed., 1884)). One of the
apparent purposes of the statute was to diversify the agricultural output of the colony by
encouraging farmers to grow grains, rather than only tobacco. John F. Hart, The
Maryland Mill Act, 1669-1766: Economic Policy and the Confiscatory Redistribution of
Private Property, 39 Am. J. Legal Hist. 1, 7-11 (1995); see also Act of May 8, 1669, 2
Archives of Maryland 211 (William H. Browne ed., 1884) (stating in the preamble that
“husbandry in tilling the ground for and sowing of wheat and Barly is but coldly
prosecuted though the Advantages thereby in rayseing the stock of Neate Cattle be
great”). Other examples of exercise of land use power include a scheme aimed at
encouraging the construction of forges and foundries, Hart, Colonial Land Use Law and
Its Significance for Modern Takings Doctrine, supra at 1267 (citing Act of 1719, para. II,
33 Archives of Maryland 467, 467-68 (Clayton C. Hall ed., 1913)), and the prohibition of
the construction of dams that damaged fisheries or impeded navigation, Acts of June 15,
1768, Nos. 4 & 5, 61 Archives of Maryland 427 (J. Hall Pleasants ed., 1944).
3
A. Delegation of Land Use Powers to Local Governments.
Maryland, like its sister states, delegates to local political subdivisions significant
authority to regulate land use.3 1 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning
and Planning §§ 1:9, 36:2 (4th ed. 2015) [hereinafter Rathkopf’s The Law of Zoning and
Planning]; see also Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md.
514, 528, 814 A.2d 469, 476 (2002). Local governments possess no inherent power to
regulate land use, but rather are limited to the powers granted to them by the State. W.
Montgomery Cnty. Citizens Ass'n v. Maryland-Nat'l Capital Park & Planning Comm'n,
309 Md. 183, 186, 522 A.2d 1328, 1329 (1987) (citing Crozier v. Co. Comm. Pr.
George's Co., 202 Md. 501, 505-07, 97 A.2d 296 (1953); see also Reynolds v. Sims, 377
U.S. 533, 575 (1964) (“Political subdivisions of States—counties, cities, or whatever—
never were and never have been considered as sovereign entities. Rather, they have been
traditionally regarded as subordinate governmental instrumentalities created by the State
to assist in the carrying out of state governmental functions”). But cf. William J. Novak,
The People’s Welfare: Law and Regulation in Nineteenth Century America 171-189
(discussing the objections of Eighteenth Century jurists to state-wide regulation of liquor,
while the same jurists had upheld identical local liquor controls without serious scrutiny).
3
The State exercises concurrently limited planning authority. The State
Department of Planning and its Secretary prepare plans “to promote the general welfare
and prosperity of the people of the State” by considering “studies of governmental,
economic, physical, and social conditions and trends.” Maryland Code (2001, 2009 Repl.
Vol.), State Finance and Procurement Article, § 5-602 (“SFP”); see also SFP §§ 5-309, 5-
203.
4
Under Maryland’s constitutional scheme, a local government’s authority to regulate land
use may emanate only from enabling legislation of the General Assembly. See Maryland
Const. Art. XI; W. Montgomery Cnty. Citizens Ass'n, 309 Md. at 186, 522 A.2d at 1329
(citing Crozier, 202 Md. at 505-07, 97 A.2d 296). These powers are exercised, “in the
main, through the implementation of what is known as the planning and zoning process.”
Rylyns Enterprises, 372 Md. at 531-32, 814 A.2d at 479.
B. Zoning and Planning Distinguished
Although related concepts, it is well established in Maryland that zoning and
planning are separate functions. Appleton Reg'l Cmty. Alliance v. Cnty. Comm'rs of Cecil
Cnty., 404 Md. 92, 102, 945 A.2d 648, 653 (2008); Mueller v. People's Counsel for
Baltimore Cnty., 177 Md. App. 43, 68, 934 A.2d 974, 989 (2007) (citing Howard Co. v.
Dorsey, 292 Md. 351, 361, 438 A.2d 1339 (1982); Board of Cnty. Comm'rs of Carroll
County v. Stephans, 286 Md. 384, 389, 408 A.2d 1017 (1979)). Maryland courts have
parsed previously the distinction.
Zoning is the more finite term. Rylyns Enterprises, 372 Md. at 528-29, 814 A.2d at
476-77. Generally, “the term ‘zoning’ is ‘used to describe the process of setting aside
disconnected tracts of land varying in shape and dimensions, and dedicating them to
particular uses designed in some degree to serve the interests of the whole territory
affected by the plan.’” Maryland Overpak Corp. v. Mayor and City Council of Baltimore,
395 Md. 16, 48, 909 A.2d 235, 254 (2006) (quoting Stephans, 286 Md. at 388-89, 408
A.2d at 1019). The “territorial division of land within a jurisdiction” is “[t]he very
essence of zoning . . . .” Mueller, 177 Md. App. at 67-68, 934 A.2d at 988 (citing Heath
5
v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799 (1946)). Parcels
must be put to use in compliance with their zoning, excepting legal non-conforming
uses.4
Planning is the broader term. Bd. of Cnty. Comm'rs of Cecil Cnty. v. Gaster, 285
Md. 233, 246, 401 A.2d 666, 672 (1979); Mueller, 177 Md. App. at 69, 934 A.2d at 989;
see also Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477-78 (stating that zoning is
the more finite term). Planning concerns “the development of a community, not only with
respect to the uses of lands and buildings, but also with respect to streets, parks, civic
beauty, industrial and commercial undertakings, residential developments and such other
matters affecting the public convenience . . . .” Gaster, 285 Md. at 246, 401 A.2d at 672
(quoting 1 E. C. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978)). Unsurprisingly,
the making of “plans” falls clearly under the ambit of “planning.” See Rylyns Enterprises,
372 Md. at 529, 814 A.2d at 477.
Included in the zoning or planning powers is also the authority to enforce zoning
and planning actions and decisions. For example, Maryland courts recognize the
requirement and issuance of building and occupancy permits as part of the zoning power,
Joy v. Anne Arundel Cnty., 52 Md. App. 653, 657-68, 451 A.2d 1237, 1240 (1982), and
subdivision controls as an element of the exercise of the planning power, Richmarr Holly
Hills, Inc. v. Am. PCS, L.P., 117 Md. App. 607, 645-46, 701 A.2d 879, 898 (1997). Just
as the power to zone implies more than establishing classifications and placing them on
4
We describe non-conforming uses infra at note 16.
6
an official map, so too does the planning power encompass more than merely producing
plans and acting on subdivision applications. Because “planning and zoning complement
each other and serve certain common objectives,”5 People's Counsel for Baltimore Cnty.
v. Surina, 400 Md. 662, 689, 929 A.2d 899, 915 (2007); accord Richmarr, 117 Md. App.
at 650, 701 A.2d at 900 (quoting 4 R. Anderson, American Law of Zoning § 23.20 (2nd
ed. 1977)), some implementation and enforcement procedures may have both planning
and zoning aims.6
C. Zoning in General
Maryland’s first local zoning enabling statute was enacted by the General
Assembly in 1927 authorizing zoning in Baltimore City and other municipalities with
5
The zoning and planning, when implemented together, aim to guide growth
in a manner that allows for the expansion of economic
activities and opportunities in the area or region for the
benefit of its residents, while at the same time attempting to
maintain the quality of life of the region, all without unduly
disturbing the reasonable expectations of the citizenry as to
the permissible uses they may make of real property.
Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 532, 814 A.2d
469, 479 (2002); see also Maryland Code (2012), Land Use Article, §§ 4-202, 10-302
(“LU”) (requiring certain objectives for zoning regulations and, in Baltimore City,
requiring such zoning regulations to be “in accordance with the plan”).
6
For example, implementation of subdivision controls, an element of the planning
power, must comply as well with applicable zoning regulations. People's Counsel for
Baltimore Cnty. v. Surina, 400 Md. 662, 691-92, 929 A.2d 899, 916 (2007); see also,
e.g., Prince George’s County Code § 24-121(a) (“PGCC”) (“The Planning Board shall
require that proposed subdivisions . . . [are] platted in conformance with all of the
requirements of the Zoning Ordinance applicable to the subject property.”).
7
more than 10,000 inhabitants.7 See 1927 Md. Laws ch. 705. In reliance on this delegation,
Baltimore City enacted its first comprehensive zoning ordinance on 30 March 1931.8 See
Jack Lewis, Inc. v. Mayor & City Council of Baltimore, 164 Md. 146, 148, 164 A. 220,
221 (1933). Since then, counties (both charter and otherwise) have been delegated also
zoning powers. See Maryland Code (2012), Land Use Article §§ 4-102, 22-104 (“LU”).
1. Original and Comprehensive Zoning Versus Piecemeal Zoning
Local zoning authorities implement their delegated zoning authority through
“establishment of original zoning through adoption of a [an original] zoning map,
comprehensive rezoning of substantial areas of the jurisdiction through a legislative-type
process initiated by the local government, and piecemeal rezoning of individual
properties (by application of the owner or contract purchaser) through a quasi-judicial
7
That same year, the precursor to the Maryland-Washington Regional District Act
(more on this later) was enacted by the Legislature. See 1927 Md. Laws ch. 448; see also
infra note 29. At that time, however, primary zoning authority was not delegated to the
local governments in the Regional District, but rather rested with the Maryland-National
Capital Park & Planning Commission. 1927 Md. Laws ch. 448, § 23.
8
Baltimore City enacted previously a precursor ordinance that required a permit
from a “zoning commissioner” to erect any structure or change the use of land or
structures. Tighe, 149 Md. at 353, 131 A. at 802. The zoning commissioner was
authorized to refuse issuance of the permit for any non-residential construction or use if,
“in his judgment after investigation, the proposed buildings or structures, use, or changes
of use would create hazards from fire or disease, or would in any way menace the public
welfare, security, health or morals.” Tighe, 149 Md. at 353, 131 A. at 802. We held this
regulation invalid because allowing denial of a permit justified only by “public welfare”
considerations “delegate[d] to the zoning commissioner and the board of zoning appeals
of Baltimore city arbitrary, undefined, and unreasonable powers.” Tighe, 149 Md. at 368,
131 A. at 808. In a later dispute between the same parties, we held the revised ordinance,
which did not authorize denial of the permit based on “public welfare” considerations, to
be a valid delegation of the police power. Tighe v. Osborne, 150 Md. 452, 459-60 133 A.
465, 467-68 (1926).
8
process.” Anne Arundel Cnty. v. Bell, 442 Md. 539, 553, 113 A.3d 639, 647 (2015)
(citing Rylyns Enterprises, 372 Md. at 532, 814 A.2d at 479). Original zoning and, by
definition, comprehensive rezoning involve large geographic areas and emanate largely
from policy considerations, including future public needs, potential for orderly growth,
and the public health, safety, and general welfare to be advanced.9 Bell, 442 Md. at 553-
54, 113 A.3d at 647-48 (citing Montgomery County v. Woodward & Lothrop, Inc., 280
Md. 686, 713, 376 A.2d 483, 498 (1977)). Piecemeal rezonings, in contrast, concern an
individual property (or a relatively finite assemblage of properties) that is rezoned
through a deliberative fact-finding process, including “at least one evidentiary hearing
(generally), factual and opinion testimony, documentary evidence, cross-examination of
the witnesses, and objections to the weighing of evidence.” Bell, 442 Md. at 555, 113
A.3d at 649 (citing Anderson House, LLC v. Mayor of Rockville, 402 Md. 689, 708 n.17,
939 A.2d 116, 127 n.17 (2008)). The piecemeal rezoning “process results in a
particularized set of written findings of fact and conclusions of law as to the zoning
proposal for the parcel or assemblage in question.” Id. Both processes conclude with a
9
In Rylyns Enterprises, we stated that for a legislative act of zoning to qualify as a
“proper” comprehensive rezoning it must:
1) cover a substantial area; 2) be the product of careful study
and consideration; 3) control and direct the use of land and
development according to present and planned future
conditions, consistent with the public interest; and, 4) set
forth and regulate all permitted land uses in all or
substantially all of a given political subdivision, though it
need not zone or rezone all of the land in the jurisdiction.
372 Md. at 535, 814 A.2d at 481.
9
legislative act creating or altering the official zoning map for the jurisdiction. Anderson
House, 402 Md. at 707 n.17, 939 A.2d at 127 n.17.
The scope of review by Maryland courts of the legislative decisions embodied in
original zonings and comprehensive rezonings is quite narrow.10 These actions “‘are
limited only by the general boundaries of appropriate procedural and due process
considerations.’” Bell, 442 Md. at 554, 113 A.3d at 648 (quoting Rylyns Enterprises, 372
Md. at 533, 814 A.2d at 480.) Courts look to whether the local zoning authority: (1)
followed the appropriate procedure designated by the zoning enabling statute and its own
ordinances; (2) comported with the requirements of due process; (3) aimed to achieve a
valid public purpose; and, (4) did not otherwise exceed the police powers.11 See Rylyns
10
We described recently in Anne Arundel County v. Bell, 442 Md. 539, 113 A.3d
639 (2015), the standing requirements a plaintiff must meet to challenge a comprehensive
rezoning. See generally 442 Md. at 554-85, 113 A.3d at 649-67. A plaintiff must
demonstrate that he, she, or it is eligible under taxpayer standing by “alleg[ing] two
things: (1) that the complainant is a taxpayer and (2) that the suit is brought, either
expressly or implicitly, on behalf of all other taxpayers.” Bell, 442 Md. at 577, 113 A.3d
at 662 (quoting State Ctr., LLC v. Lexington Charles Ltd. P'ship, 438 Md. 451, 547, 92
A.3d 400, 457 (2014)). “Once a complainant establishes eligibility to bring a suit, he, she,
or it must allege, as noted above, both a governmental action that is illegal or ultra vires
and that the action may affect injuriously the taxpayer's property (meaning that it
reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes).” Bell,
442 Md. at 578, 113 A.3d at 662 (citing State Center, 438 Md. at 540, 92 A.3d at 453).
The harm alleged must be particularized and pecuniary, as opposed to harms to the
general public (e.g., changes to the neighborhood, increased traffic, or increased noise),
and caused potentially by the comprehensive rezoning. Bell, 442 Md. at 578-79, 585, 113
A.3d at 662-63, 667.
11
Original zonings and comprehensive rezonings are subject to judicial
invalidation when found to be arbitrary, discriminatory or illegal. See Anderson House,
LLC v. Mayor & City Council of Rockville, 402 Md. 689, 720, 939 A.2d 116, 134-34
(2008); Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 4, 246 A.2d 220, 221 (1968).
(Continued…)
10
Enterprises, 372 Md. at 533, 814 A.2d at 480 (quoting White v. Spring, 109 Md. App.
692, 696–97, 675 A.2d 1023, 1025 (1996)). Properly enacted original zoning and
comprehensive rezoning are presumed to be correct and may only be changed by the
local zoning authority through later comprehensive zoning or an application for
piecemeal rezoning. Bell, 442 Md. at 554, 554 n.6, 113 A.3d at 648, 648 n.6 (quoting
Rylyns Enterprises, 372 Md. at 535–36, 814 A.2d at 481).
Courts are somewhat less deferential in their review of quasi-judicial piecemeal
rezoning.12 Like other quasi-judicial decisions, piecemeal rezoning is reviewed most
frequently under the substantial evidence test. Cremins v. Cnty. Comm'rs of Washington
(…continued)
When an original zoning or comprehensive zoning is “the product of careful study and
consideration” and “control[s] and direct[s] the use of land and development according to
present and planned future conditions, consistent with the public interest[,]” however, its
legislative determinations will not be disturbed. See Bell, 442 Md. at 554, 113 A.3d at
648 (quoting Rylyns Enterprises, 372 Md. at 535, 814 A.2d at 481).
12
We summarized also in Bell the requirements for property owner standing that
applies typically to piecemeal rezonings and other administrative land use decisions or
executive actions. To establish property owner standing, a complainant must be
“specially aggrieved.” See Bell, 442 Md. at 558, 113 A.3d at 651. The most important
consideration in whether a property owner is specially aggrieved is the presumption
derived from the proximity of his/her/its property to the rezoned property. Bell, 442 Md.
at 558, 113 A.3d at 650 (citing Ray v. Mayor & City Council of Baltimore, 430 Md. 74,
82, 59 A.3d 545, 550 (2013)). Our cases demonstrate that a party will only be specially
aggrieved for purposes of property owner standing if the party is “an adjoining,
confronting, or nearby property owner” (prima facie aggrieved) or is “farther away than
an adjoining, confronting, or nearby property owner, but is still close enough to the site of
the rezoning action and offers ‘plus factors' supporting injury” (almost prima facie
aggrieved). Bell, 442 Md. at 559, 113 A.3d at 651 (quoting Ray, 430 Md. at 91, 59 A.3d
at 551-52). We have found almost prima facie aggrieved complainants whose property is
between 200 and 1000 feet away from the subject property. Id. (citing Ray, 430 Md. at
91, 59 A.3d at 555).
11
Cnty., 164 Md. App. 426, 438, 883 A.2d 966, 973 (2005). The determination of the
zoning authority should be upheld “if reasoning minds could reasonably reach the
conclusion from facts in the record.” Cremins, 164 Md. App. at 438, 883 A.2d at 973
(citing Stansbury v. Jones, 372 Md. 172, 182-83, 812 A.2d 312, 318 (2002)).
2. Euclidian Zones
Early zoning ordinances sought to separate incompatible land uses through a
method that would become known as “Euclidean” zoning.13 1 Rathkopf’s The Law of
Zoning and Planning § 1:4. Under a Euclidian zoning scheme, a zoning authority divides
geographically an area into use districts. Rylyns Enterprises, 372 Md. at 534, 814 A.2d at
480 (quoting Rouse–Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments for Prince
George's County, 138 Md. App. 589, 623, 773 A.2d 535, 555 (2001)). Certain permitted
uses are specified by local ordinance and allowed in particular geographic areas. Id.
(citing Rouse–Fairwood Dev., 138 Md. App. at 623, 773 A.2d at 555). These geographic
areas and the zoning assigned to them are then recorded on an official zoning map. Id.
(citing Rouse–Fairwood Dev., 138 Md. App. at 623, 773 A.2d at 555). The number of
classifications that are available to be applied within a district has increased exponentially
since the early schemes, but Euclidian zoning remains a basic framework for
implementation of land use controls at the local level. 1 Rathkopf’s The Law of Zoning
and Planning §§ 1:4, 1:5; see also, e.g, Prince George’s County Code § 27-109
13
Euclidian zoning owes its name to Village of Euclid, Ohio v. Ambler Realty Co.,
272 U.S. 365 (1926). In Euclid, the U.S. Supreme Court held that a zoning scheme that
excluded apartments and commercial uses from a single-family residential district was
constitutional. 272 U.S. at 396-97.
12
(“PGCC”) (listing the categories of zones that have been created in Prince George’s
County).
Euclidian zoning aimed to provide stability and predictability in land use planning
and zoning. Rylyns Enterprises, 372 Md. at 534, 814 A.2d at 481. The legislative
enactment of a Euclidian original zoning or comprehensive rezoning is self-executing,
id., and discretionary consideration of individual proposed uses is the exception rather
than the rule, 1 Rathkopf’s The Law of Zoning and Planning § 1:4. Euclidian zoning laws
in Maryland must “be uniform for each class or kind of development throughout a district
or zone[,]” LU §§ 4-201(b)(2)(i), 10-301(b)(2)(i); 22-201(b)(2)(i), to ensure that similarly
situated properties are subjected to similar regulation,14 see Anderson House, 402 Md. at
713-14, 939 A.2d at 131. The original or comprehensive zoning may be changed (unless
by a subsequent comprehensive zoning) only by a subsequent piecemeal zoning, which in
the case of a Euclidean zone may be granted only upon a showing of unforeseen changes
in the surrounding neighborhood occurring since the prior original zoning or
comprehensive rezoning or mistake of fact made by the zoning authority in the original
14
This requirement is referred to commonly as the “uniformity requirement” of
Euclidean zoning. Anderson House, 402 Md. at 713, 939 A.2d at 130. It originated from
the Standard State Zoning Enabling Act, which “was written during the 1920s by ‘the
distinguished original group of planning lawyers in this country[,]’ Edward Bassett,
Frank Williams, and Alfred Bettman with the advocacy of Herbert Hoover's Department
of Commerce.” Anderson House, 402 Md. at 713, 939 A.2d at 130 (alteration in original)
(quoting Norman Williams, Jr. & John M. Taylor, American Land Planning Law § 18.01,
at 461 (3rd ed. 2003)). Although the uniformity requirement arises from policy decisions
to prevent arbitrary zoning classifications, and may not be a legal necessity, it has been
adopted in the zoning enabling acts of nearly every state. Anderson House, 402 Md. at
713, 939 A.2d at 131.
13
zoning or previous comprehensive rezoning.15 Rylyns Enterprises, 372 Md. at 538, 814
A.2d at 483 (citing Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A.2d 244, 249
(1973); Richmarr, 117 Md. App. at 635-37, 701 A.2d at 893-94).
A school of thought evolved that the stability and predictability of Euclidian
zoning amounted sometimes to undesirable rigidity. See People's Counsel for Baltimore
15
This requirement is known as the “change-mistake rule.” Rylyns Enterprises,
372 Md. at 538, 814 A.2d at 483. As described in Rylyns Enterprises:
The “change-mistake” rule is a rule of the either /or type. The
“change” half of the “change-mistake” rule requires that, in
order for a piecemeal Euclidean zoning change to be
approved, there must be a satisfactory showing that there has
been significant and unanticipated change in a relatively well-
defined area (the “neighborhood”) surrounding the property
in question since its original or last comprehensive rezoning,
whichever occurred most recently. The “mistake” option of
the rule requires a showing that the underlying assumptions or
premises relied upon by the legislative body during the
immediately preceding original or comprehensive rezoning
were incorrect. In other words, there must be a showing of a
mistake of fact. Mistake in this context does not refer to a
mistake in judgment. Additionally, even where evidence of a
change or mistake is adduced, there is no reciprocal right to a
change in zoning, nor is there a threshold evidentiary standard
which when met compels rezoning. Even with very strong
evidence of change or mistake, piecemeal zoning may be
granted, but is not required to be granted, except where a
failure to do so would deprive the owner of all economically
viable use of the property. In Maryland, the change-mistake
rule applies to all piecemeal zoning applications involving
Euclidian zones, including those involving conditional
zoning. The change-mistake rule does not apply, in any event,
to changes in zoning made in a comprehensive rezoning, or
the piecemeal grant of a floating zone.
372 Md. at 538-39, 814 A.2d at 483 (citations omitted) (footnotes omitted).
14
Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 71-72, 956 A.2d 166, 176 (2008); Rylyns
Enterprises, 372 Md. at 541, 814 A.2d at 485; 1 Rathkopf’s The Law of Zoning and
Planning § 1:4. Although certain land use tools that fall under the zoning umbrella, such
as non-conforming uses,16 special exceptions,17 and variances,18 give Euclidian zoning
16
We summarized Maryland’s non-conforming uses jurisprudence in Trip
Associates, Inc. v. Mayor & City Council of Baltimore, 392 Md. 563, 898 A.2d 455
(2006). A property owner establishes a non-conforming use if the property owner can
demonstrate to the relevant authority (often a local board of appeals) that the property
was being used in a then-lawful manner before, and at the time of, the adoption of a new
zoning ordinance which purports to prohibit the use on the property. Trip Associates, 392
Md. at 573, 898 A.2d at 455. Such a property owner has a vested constitutional right to
continue the prohibited use, subject to local ordinances that may prohibit “extension” of
the use and seek to reduce the use to conformance with the newer zoning through an
“amortization” or “abandonment” scheme. See Trip Associates, 392 Md. at 574-75, 580,
898 A.2d at 455-56, 459. Nevertheless, nonconforming uses are not favored by Maryland
law, and local ordinances regulating validly non-conforming uses will be construed to
effectuate their purpose. Trip Associates, 392 Md. at 573, 898 A.2d at 455-56 (quoting
Cnty. Council of Prince George's Cnty. v. E. L. Gardner, Inc., 293 Md. 259, 268, 443
A.2d 114, 119 (1982)).
17
A special exception, sometimes called a “conditional use,” is a zoning device
that provides a middle ground between permitted and prohibited uses. People's Counsel
for Baltimore Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 71, 71 n.19, 956 A.2d 166,
176, 176 n.19 (2008); cf. Maryland Overpak Corp. v. Mayor And City Council Of
Baltimore, 395 Md. 16, 29, 909 A.2d 235, 243 (2006) (citing Lucas v. People's Counsel
for Baltimore County, 147 Md. App. 209, 227 n.20, 807 A.2d 1176, 1186 n.20 (2002))
(noting that there may be a “highly-nuanced distinction” between conditional uses and
special exceptions, but describing them together). It allows the local legislature to set
some uses as prima facie compatible for a given zone, subject to a case-by-case
evaluation to determine whether the use would result in an adverse effect on the
neighborhood (other than any adverse effect inherent in that use within the zone), such
that would make the use actually incompatible. Loyola Coll., 406 Md. at 71-72, 106, 956
A.2d at 176, 197-98. Because special exceptions are created legislatively, they are
presumed to be correct and an appropriate exercise of the police power. Rylyns
Enterprises, 372 Md. at 543, 814 A.2d at 486 (citing Brandywine Enterprises, Inc. v.
Prince George's County Council, 117 Md. App. 525, 700 A.2d 1216 (1997)).
15
some flexibility, they were thought not to be enough.19 Rylyns Enterprises, 372 Md. at
537, 814 A.2d at 482 (quoting Stanley D. Abrams, Guide to Maryland Zoning Decisions,
§ 11.1 (3d ed., Michie 1992)).
(…continued)
18
“A variance refers to administrative relief which may be granted from the strict
application of a particular development limitation in the zoning ordinance (i.e., setback,
area and height limitations, etc.).” Rylyns Enterprises, 372 Md. at 537, 814 A.2d at 482
(quoting Stanley D. Abrams, Guide to Maryland Zoning Decisions, § 11.1 (3d ed.,
Michie 1992)). The Land Use Article defines “variance” as
a modification only of density, bulk, dimensional, or area
requirements in the zoning law that is not contrary to the
public interest, and where, owing to conditions peculiar to the
property and not because of any action taken by the applicant,
a literal enforcement of the zoning law would result in
unnecessary hardship or practical difficulty, as specified in
the zoning law.
LU § 1-101(s). Local zoning authorities (be it boards of appeal, zoning hearing examiner,
or local legislature, depending on how this authority is delegated and/or re-delegated)
determine somewhat the considerations by which variance requests are decided,
including whether the “unnecessary hardship” or “practical difficulties” standard applies.
See Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 266-67, 734 A.2d
227, 231-32 (1999) (holding that Anne Arundel County, through a County ordinance,
required property owners seeking a variance in the Chesapeake Critical Area to
demonstrate unwarranted hardship, a more exacting standard, as opposed to practical
difficulties, which was required previously); see also Belvoir Farms Homeowners Ass'n,
355 Md. 266 n.4, 734 A.2d 331 n.4 (noting a possible change by the ordinance to the
“traditional uniqueness standard” by which applicable unnecessary hardship or practical
difficulties must be caused). The property owner must prove generally that a variance is
warranted, Mueller v. People's Counsel for Baltimore Cnty., 177 Md. App. 43, 70, 934
A.2d 974, 989 (2007) (citing Easter v. Mayor and City Council of Baltimore, 195 Md.
395, 400, 73 A.2d 491 (1950)).
19
These land use tools may be employed also in so-called “floating” zones. See
Loyola Coll., 406 Md. at 72 n.20, 956 A.2d at 176 n.20. We discuss floating zones infra
at Part I.C.3.
16
3. Floating Zones
Floating zones (or planned unit development zones) are a local legislative
response to the relative rigidity of Euclidian zoning and occupy the opposite end of the
flexibility continuum of zoning categories from Euclidian zones.20 Rylyns Enterprises,
372 Md. at 539 n.15, 814 A.2d at 484 n.15. Rezoning a parcel to a floating zone
resembles in some aspects a special exception process, see id. (citing Richmarr, 117 Md.
App. at 640, 701 A.2d at 895 (1997)); 1 Rathkopf’s The Law of Zoning and Planning §
14:32, but, unlike a special exception, it culminates in a legislative act amending the
zoning on the official zoning map.
Floating zones are used often to allow the development of specialized or mixed
uses. 3 Rathkopf’s The Law of Zoning and Planning § 45:1; see Rylyns Enterprises, 372
Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Russell R. Reno, Non Euclidean Zoning:
the Use of the Floating Zone, 23 Md. L. Rev. 105, 107 (1963)). “In particular, floating
zones have been used to permit large commercial and industrial uses, mixed uses,
multifamily residences, and planned unit developments.” 3 Rathkopf’s The Law of Zoning
and Planning § 45:1.
Local zoning authorities implement, where appropriate, floating zones through a
two-step process. 1 Patricia E. Salkin, American Law of Zoning § 9:17 (5th ed. 2009)
[hereinafter Am. Law Zoning]. First, the local zoning authority establishes in its zoning
20
A “Planned Unit Development” is a synonym substantially for a floating zone.
Rylyns Enterprises, 372 Md. at 533 n.9, 814 A.2d at 480 n.9; see also Bell, 442 Md. at
557, 113 A.3d at 650.
17
ordinance a specific zoning classification for a specific purpose or a class of purposes,
but does not assign on the zoning map the classification to any property, awaiting instead
a property owner’s piecemeal application that is judged to meet the legislative criteria for
the zone sought. 1 Am. Law Zoning § 9:17. This zone is said thus to “float” above the
local jurisdiction to which the zone may be applied through the grant of a piecemeal
zoning map amendment (or possibly through the adoption of a comprehensive rezoning,
provided there was at least pending a piecemeal application at the time the
comprehensive rezoning is adopted). Bigenho v. Montgomery Cnty. Council, 248 Md.
386, 391, 237 A.2d 53, 57 (1968); see also Rylyns Enterprises, 372 Md. at 539 n.15, 814
A.2d at 484 n.15 (citing Reno, Non Euclidean Zoning: the Use of the Floating Zone,
supra, at 107); 1 Am. Law Zoning § 9:17. The second step is a property owner initiating a
piecemeal rezoning action to implement the zone on a particular parcel. Rylyns
Enterprises, 372 Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Reno, Non Euclidean
Zoning: the Use of the Floating Zone, supra, at 107); Bigenho, 248 Md. at 391, 237 A.2d
at 56; 1 Am. Law Zoning § 9:17.
Although the processing, review, and grant of a floating zone follows usually the
same quasi-judicial process as Euclidian piecemeal rezonings, the change-mistake rule
does not apply to the former.21 See Bell, 442 Md. at 555-56, 113 A.3d at 649 (citing
Rylyns Enterprises, 372 Md. at 539, 814 A.2d at 483–84); Aubinoe v. Lewis, 250 Md.
21
Floating zones, like special exceptions, partake of presumptive validity,
provided certain conditions are met, because the zoning authority included them in its
zoning ordinance. See Huff v. Bd. of Zoning Appeals of Baltimore Cnty., 214 Md. 48, 62,
133 A.2d 83, 91 (1957).
18
645, 653, 244 A.2d 879, 884 (1968)). To rezone a property to a floating zone, the zoning
authority must find generally that the legislative prerequisites for the zone are met and the
rezoning is compatible with the surrounding neighborhood (much as required to grant a
special exception). See Bell, 442 Md. at 555-56, 113 A.3d at 649 (citing Aubinoe, 250
Md. at 653, 244 A.2d at 884); Rylyns Enterprises, 372 Md. at 539 n.15, 814 A.2d at 484
n.15 (citing Richmarr, 117 Md. App. at 640, 701 A.2d at 895); Bigenho, 248 Md. at 391,
237 A.2d at 56-57. The burdens of production and persuasion to demonstrate that the
rezoning is appropriate fall on the applicant for a floating zone.22 Rockville Crushed
Stone, Inc. v. Montgomery Cnty., 78 Md. App. 176, 193, 552 A.2d 960, 968 (1989); 3
Rathkopf’s The Law of Zoning and Planning § 45:4; see also Aubinoe, 250 Md. at 653,
244 A.2d at 884 (“It is vitally important that the District Council make appropriate
express findings based on adequate evidence that the purposes set forth in the Ordinance
for the [floating] zone exist and that the project is compatible with the existing uses in the
general neighborhood.”).
Planning considerations are normally accorded greater weight in assessing
piecemeal rezoning applications for floating zones compared to those for Euclidian
22
Although we have characterized floating zones and special exceptions as being
analogous, e.g., Bigenho v. Montgomery Cnty. Council, 248 Md. 386, 391, 237 A.2d 53,
56 (1968), differences exist. It may be material whether the administrative action is left to
a legislative body, rather than an administrative or executive body. In Huff, in which we
acknowledged the validity of floating zones, we adopted much of the reasoning of the
landmark case regarding floating zones, Rodgers v. Vill. of Tarrytown, 302 N.Y. 115, 96
N.E.2d 731 (1951). We did not adopt, however, the New York court’s language that a
floating zone scheme that “call[s] for separate legislative authorization for each project
presents no obstacle or drawback[.]” Compare Rodgers, 302 N.Y. at 122, 96 N.E.2d at
733, with Huff, 214 Md. at 63, 133 A.2d at 92.
19
zones, the latter of which are linked to the change/mistake rule. See Richmarr, 117 Md.
App. at 637, 637 n.24, 701 A.2d at 894, 894 n.24. “Floating zones tend to be plan-
implementation mechanisms” by which zoning decision-makers may carry out planning
goals.23 Richmarr, 117 Md. App. at 637, 701 A.2d at 894.
4. Conditional Zoning
Another tool creating flexibility within the zoning process (whether Euclidian or
floating zones are under consideration) is conditional zoning. Conditional zoning,
available under the piecemeal rezoning process in Prince George’s County, LU § 22-
214(a), allows the placement in the grant of rezoning on the subject property of
conditions regulating the specific parcel in ways other than by standards or limitations
that are applicable to all land zoned similarly in the district. Bd. of Cnty. Comm'rs of
Washington Cnty. v. H. Manny Holtz, Inc., 65 Md. App. 574, 579, 501 A.2d 489, 491
(1985); 1 Am. Law Zoning § 9:20. With wise application, conditional zoning may
mitigate negative effects of a use on nearby property owners while allowing land to be
used as desired by its owner. 3 Rathkopf’s The Law of Zoning and Planning § 44:2. In
Maryland, local conditional zoning authority, at least for Euclidian zones,24 must be
23
That is not to say that Euclidian zoning may not be used also to implement
planning considerations. See Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292,
311, 933 A.2d 405, 416 (2007) aff'd, 405 Md. 43, 949 A.2d 639 (2008) (noting that
zoning generally “is one means by which planning is implemented”).
24
In Rylyns Enterprises, there is a hint that there may be some difference
regarding conditional zoning when applied to floating zones. See 372 Md. at 569, 814
A.2d at 502 (holding that the Maryland Code, as it stood then, did not authorize
conditional use rezoning generally “insofar as Euclidian Zones are concerned[,]” but not
(Continued…)
20
granted expressly by the relevant zoning enabling statute.25 See Rylyns Enterprises, 372
Md. at 567-68, 814 A.2d at 500-01; Baylis v. City of Baltimore, 219 Md. 164, 166-170,
148 A.2d 429, 431-433 (1959).
Conditional zoning, where authorized, may be applied to both Euclidian and
floating zones as part of the grant of a piecemeal rezoning.26 See Bell, 442 Md. at 555,
(…continued)
commenting on whether conditional rezoning was allowed for floating zones). The
previous zone and the zone to which the property at issue in Rylyns Enterprises had been
rezoned were both Euclidian zones, but we noted that floating zones “involve a different
set of analytical assumptions than do Euclidean zones.” Rylyns Enterprises, 372 Md. at
533 n.9, 814 A.2d at 480 n.9. Because there is no challenge in the present case to whether
conditional zoning is permitted with regard to the grant of a floating zone, we move on.
25
As indicated supra note 14, the uniformity requirement, at least with respect to
land uses, is mandated by statute. Anderson House, 402 Md. at 713, 939 A.2d at 130; see
also Rylyns Enterprises, 372 Md. at 568-571, 814 A.2d at 501-03 (holding that non-
uniform design requirements within a Euclidian zone, as opposed to use regulation, does
not violate the uniformity requirement).
26
Conditional rezoning seems a natural fit with floating zones. To rezone a
property to a floating zone, the zoning authority must find, among other things, that the
rezoning will be compatible with the surrounding neighborhood. Rylyns Enterprises, 372
Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Richmarr Holly Hills, Inc. v. Am. PCS,
L.P., 117 Md. App. 607, 640, 701 A.2d 879, 895 (1997)). The conditions imposed on the
rezoned property may be used to make compatible an otherwise incompatible rezoning.
Although the zoning authority may rezone a property into a Euclidian zone only
upon a threshold finding of a mistake of fact in the previous comprehensive rezoning or
original zoning or an unforeseen change in the neighborhood occurring since then, the
zoning authority is not required to rezone the property after making such a finding, unless
a failure to do so would deprive the property owner of all economically viable use of the
property. Rylyns Enterprises, 372 Md. at 539, 814 A.2d at 483. Conditional zoning may
provide assurances to the zoning authority and surrounding community in close cases, or
induce the zoning authority to grant the requested rezoning (where allowable but not
required), subject to conditions that will benefit the public.
21
113 A.3d at 649. Although conditional zoning introduces flexibility, rezoning a property
with conditions does not obviate the necessity for the zoning authority to make the
underlying legislative findings required for the grant of the Euclidian or floating
rezoning. Id.
When the restrictions imposed by conditions of rezoning regulate elements such as
design, layout, siting, appearance, and landscaping, conditional zoning is related closely
to planning. Cf. Gaster, 285 Md. at 246, 401 A.2d at 672 (stating that planning is
concerned with the “development of a community . . . with respect to streets, parks, civic
beauty, industrial and commercial undertakings, [and] residential developments . . .”)
(quoting 1 Yokley, supra § 1-2). In Rylyns Enterprises, we reasoned that the imposition
of design conditions, as opposed to use conditions, was similar to subdivision regulation.
Rylyns Enterprises, 372 Md. at 568, 814 A.2d at 501. Subdivision regulation is one of the
key methods by which planning is implemented. See Richmarr, 117 Md. App. at 645-46,
701 A.2d at 898.27
D. Planning in General
In its broadest sense, planning is older than recorded history. 1 Norman Williams,
Jr. & John M. Taylor, American Land Planning Law § 1:5 (3rd Ed. 2003) [hereinafter
Am. Land Planning] (stating that “maps of some prehistoric cities show at least a street
27
We do not suggest that conditional zoning is not zoning. The conditions are
imposed through piecemeal rezoning and, to the extent that they pertain to the uses of
land, are implementation of the zoning power. When a zoning authority imposes
conditions on a rezoning that are related to planning, it is implementing the planning
power through a zoning technique and procedure, thereby exercising both zoning and
planning powers.
22
system laid out on a coordinated basis, and some careful use of monumental sites”); cf.
Duodecim Tabularum, http://avalon.law.yale.edu/ancient/twelve_tables.asp (establishing
some site planning principles in ancient Rome, adopted in 449 B.C.E.) Attempts to
coordinate the interrelated aspects of physical, social, and economic development,
however, are a more recent phenomena. 1 Am. Land Planning Law § 1:5; 1 Rathkopf’s
The Law of Zoning and Planning § 1:41; cf. Julian Conrad Juergensmeyer & Thomas E.
Roberts, Land Use Planning and Development Regulation Law § 2:2 (3d ed. 2013)
[hereinafter Land Use Planning and Development Regulation Law] (describing planning
as it existed in colonial America). Statutes formalizing, directing, and empowering
broadly local planning were enacted after zoning enabling statutes generally. 1
Rathkopf’s The Law of Zoning and Planning § 1:41.
1. Plans
Plans are developed to guide the implementation of land use controls and zoning
in a rational way that is beneficial to the public. Land Use Planning and Development
Regulation Law § 2:9; see Maryland-Nat. Capital Park & Planning Comm'n v. Greater
Baden-Aquasco Citizens Ass'n, 412 Md. 73, 86, 985 A.2d 1160, 1167 (2009). “Plans are
long term and theoretical, and usually contain elements concerning transportation and
public facilities, recommended zoning, and other land use recommendations and
proposals.” Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477; see also Greater
Baden-Aquasco Citizens Ass'n, 412 Md. at 86, 985 A.2d at 1167 (quoting 1 Am. Law
Zoning § 5-2) (listing the general purposes of comprehensive plans).
23
Counties and municipal corporations are required generally to adopt, amend, and
execute a “comprehensive plan.” LU §§ 1-405, 3-101.28 In the abstract, a comprehensive
plan “is ‘more than a detailed zoning map and should apply to a substantial area, be the
product of long study, and control land use consistent with the public interest.” Greater
Baden-Aquasco Citizens Ass'n, 412 Md. at 85, 985 A.2d at 1167 (citing Yokley, supra §
5–2). This plan must be well thought out and consider the common needs of a particular
area. Greater Baden-Aquasco Citizens Ass'n, 412 Md. at 85, 985 A.2d at 1167 (citing
Yokley, supra § 5–2) The Land Use Article of the Maryland Code requires certain
elements to be contained in comprehensive plans. LU §§ 1-406, 3-102. The preparation
of a comprehensive plan is conducted by a planning commission and presented to the
local legislature for adoption. See LU §§ 1-406(a)(1), 1-415, 3-202.
28
We pause here (although we could have done so earlier) to note that the Land
Use Article of the Maryland Code was adopted in 2012. See 2012 Md. Laws ch. 468.
Prior to that, the Maryland-Washington Regional District Act (“RDA”) was contained in
Art. 28 of the Maryland Code. The recodification represented by the 2012 Land Use
Article was not intended to include substantive amendments to its predecessor statutes.
2012 Md. Laws ch. 468, see also Land Use Article Review Committee, Summary Report
on Chapter 426 of the Acts of 2012, at 1. To the extent that there may be differences that
are material between these enactments, as applicable to the present case, and where
consideration of the previous language may be helpful, we shall point them out as we
proceed from this point.
The actions of the District Council at issue in the present case occurred before the
recodification of the Regional District Act in the Land Use Article. See 2012 Md. Laws
ch. 468. The statutory provisions relevant to this case, however, were not changed
substantively during the 2012 recodification. For the purposes of providing an overview
of the land use procedures in the Regional District, we refer generally to the Land Use
Article. Because the determination of this dispute, however, depends on the Maryland
Code as it was at the time of the relevant actions, we will refer occasionally to key prior
sections of the Code when discussing the merits of the case. The changes to the RDA as
well were generally non-substantive. 2012 Md. Laws ch. 468.
24
The plan-creation process is different slightly within the Maryland-Washington
Regional District, which consists of most of Prince George’s and Montgomery counties,
than elsewhere in the State. Within the Regional District, two types plans are required:
(1) a “general plan” containing, at a minimum, recommendations for development in the
respective county and supporting analysis; and, (2) “area master plans” pertaining to local
planning areas into which each county is divided. These plans are prepared by the
Maryland-National Capital Park & Planning Commission (which is composed of separate
planning boards for each county; the two boards sit together on bi-county issues and
separately on matters that pertain purely to its respective county) and must be approved
by the local legislature of the respective county. See LU §§ 14-101(b), 14-101(f), 21-202,
21-208(a). Area master plans govern typically specific, smaller portions of a county and
are usually more detailed than general plans overlapping the same area. Greater Baden-
Aquasco Citizens Ass'n, 412 Md. at 89, 985 A.2d at 1169 (2009) (citing Garner v.
Archers Glen Partners, Inc., 405 Md. 43, 48 n.5, 949 A.2d 639, 642 n.5 (2008). Separate
functional master plans, addressing transportation routes and facilities, hospitals and
health centers, parks, police stations, fire stations, and significant sites and structures,
may also be adopted and approved. See LU §§ 21-106, 21-107.
Proposals for land use contained in a plan constitute a non-binding advisory
recommendation, unless a relevant ordinance or regulation, or specific zoning,
subdivision, or other land use approval, make compliance with the plan recommendations
mandatory. Greater Baden-Aquasco Citizens Ass'n, 412 Md. at 98-101, 985 A.2d at
1174-77; Rylyns Enterprises, 372 Md. at 530-31, 814 A.2d at 478-79; see also Gaster,
25
285 Md. at 250, 401 A.2d at 674 (holding that a local ordinance enacting subdivision
regulations required compliance with the plan). The advisory nature of plans makes direct
judicial review of their adoption and approval infrequent, at best. Cf. LU § 21-104(b)(4)
(withholding explicitly from judicial review plans created under the Regional District
Act).
2. Subdivision
Subdivision controls implement plans (assuming the plan recommendations are
deemed prudent and timely of fruition) and fall generally under the planning power
delegated to local governments. See Remes v. Montgomery Cnty., 387 Md. 52, 73, 874
A.2d 470, 482 (2005); Coffey v. Maryland-Nat'l Capital Park & Planning Comm'n, 293
Md. 24, 29, 441 A.2d 1041, 1043 (1982) (“Subdivision controls are imposed for the
purpose of implementing a comprehensive plan for community development.”); 1 Am.
Land Planning Law § 22:1; Land Use Planning and Development Regulation Law § 7:3.
Although “subdivision” refers to the division and consolidation of parcels of land, or the
land that has been divided or consolidated, LU §§ 1-101(r), 14-101(q), the regulations
controlling how, when, and under what circumstances subdivision may occur are used to
promote development that is beneficial to the community, see Surina, 400 Md. at 689,
929 A.2d at 915; Coffey, 293 Md. at 27-28, 441 A.2d at 1043.
Subdivision controls aim to ensure that developments will be able to support the
uses for which the land is zoned. Surina, 400 Md. at 689, 929 A.2d at 915. Among the
considerations addressed are the aesthetic planning of the neighborhood, safety and
convenience of streets and walkways, access by police and fire protection authorities,
26
adequacy of utilities and other infrastructure, and the off-site effect of the development. 1
James A. Kushner, Subdivision Law and Growth Mgmt. § 1:5 (2d ed. 2012). Subdivision
regulations attempt to respond to issues that are not so well-addressed through zoning, the
initial step in the development process.
E. The Maryland-Washington Regional District Act
The property at issue in the present case is within the Prince George’s County
portion of the Maryland-Washington Regional District (“Regional District”), as
recognized in the Maryland-Washington Regional District Act (“RDA”), codified
previously in Art. 28 of the Maryland Code, and codified now in Division II of the Land
Use Article of the Maryland Code.29 Therefore, the RDA and the Prince George’s County
Code (“PGCC”) govern the requirements and procedures at issue here.
29
The Maryland-Washington Regional District Act (“RDA”) may be traced to
1927. Chapter 448 of the Laws of Maryland of 1927 established the Maryland-National
Capital Park & Planning Commission and the Maryland-Washington Metropolitan
District (“Metropolitan District”). The Commission was comprised of six commissioners
appointed by the Governor. 1927 Md. Laws ch. 448, at § 6. Within the Metropolitan
District, encompassing roughly the area between the District of Columbia and what is
now the Capital Beltway, zoning and planning authority was divided between the
Commission and the county commissioners of Prince George’s and Montgomery
counties. Prince George's Cnty. v. Maryland-Nat'l Capital Park & Planning Comm'n,
269 Md. 202, 204-06, 306 A.2d 223, 226 (1973); see also 1927 Md. Laws ch. 448, at § 1
(describing the boundaries of the Metropolitan District). The counties were authorized to
zone, provided that the regulations and zoning maps mirrored the Commission’s plan for
the Metropolitan District or the Commission approved any deviation from such plan.
1927 Md. Laws ch. 448, at § 23.
In Chapter 714 of Laws of Maryland of 1939, the General Assembly created the
Maryland-Washington Regional District (“Regional District”), which was also under the
jurisdiction of the Maryland-National Capital Park & Planning Commission. 1939 Md.
Laws ch. 714; Prince George's Cnty. v. Maryland-Nat'l Capital Park & Planning
(Continued…)
27
The RDA is the essential source of the delegation by the State of zoning authority
to Prince George’s County for the areas of Prince George’s County within the Regional
District.30, 31 E.g., Prince George's Cnty. v. Ray's Used Cars, 398 Md. 632, 646, 922 A.2d
(…continued)
Comm'n, 269 Md. at 206, 306 A.2d at 226. “[T]he Commission's ‘park and planning
functions in the district were separated, and the Maryland-Washington Regional
District . . . was created as the planning and zoning district.’” Id. (quoting Prince
George's Co. v. Laurel, 262 Md. 171, 174, 277 A.2d 262, 264 (1971)).
The General Assembly, through Chapter 992 of the Laws of Maryland of 1943,
repealed and replaced the 1939 iteration with amendments as “a bi-county act applicable
to the Maryland-Washington Regional District in Montgomery and Prince George's
Counties and not as a public local law of either county . . . .” Prince George's Cnty. v.
Maryland-Nat'l Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226.
The act was to be referred to as “the Maryland-Washington Regional District Act.” 1943
Md. Laws ch. 992, at § 1. The Legislature clarified further in 1943 that the act was a
public general law, not a public local law or the law of either Prince George’s or
Montgomery County. 1943 Md. Laws ch. 1008; Prince George's Cnty. v. Maryland-Nat'l
Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226.
The RDA was re-cast in 1959 in substantially the structure prevailing today.
Chapter 780 of the Laws of Maryland of 1959 repealed and replaced all the former acts
pertaining to the Regional District and Metropolitan District, as well as certain sections of
the codes of Montgomery and Prince George’s counties. Prince George's Cnty. v.
Maryland-Nat'l Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226. The
1959 act expanded the Regional District, created a method by which additional land use
functions might be assigned, created the county planning boards as distinct entities from
the Commission, and designated the local legislative bodies of Prince George’s and
Montgomery counties as the primary zoning authorities. See 1959 Md. Laws ch. 780.
30
In supplementation of the RDA, the Express Powers Act, codified previously in
the Maryland Code as Article 25A, but now found in Title 10 of the Local Government
Article, confirms Prince George’s County’s zoning and planning authority as a charter
county delineated in Division I of the Land Use Article. Maryland Code (2013), Local
Government Article, § 10-324(a) (“LG”) states: “[a charter] county may enact local laws
relating to zoning and planning to protect and promote public safety, health, morals, and
welfare . . . .” LG § 10-324(c) makes clear, however, that the section does not “grant to [a
charter] county powers in any substantive area not otherwise granted to the county by
(Continued…)
28
495, 503 (2007); Cnty. Council of Prince George’s Cnty. v. Brandywine Enterprises, Inc.,
350 Md. 339, 342, 711 A.2d 1346, 1347 (1998). The RDA regulates planning and zoning
within the Regional District, which includes most of Prince George’s and Montgomery
Counties. To execute this delegation, the RDA divides broadly authority related to
zoning, planning, and other land use matters between the county (district) councils, the
Maryland-National Capital Park & Planning Commission, and the county planning
boards.32
(…continued)
other public general law or public local law . . . .” Further, LG § 10-206(b) prevents
charter counties from exercising their powers when such powers are preempted or in
conflict with a public general law. Thus, we concern ourselves in the present case with
the RDA and the County Code.
In Prince George's County v. Maryland-National Capital Park & Planning
Commission, supra, we considered the implications of the then recently adopted Prince
George’s County Charter on the distribution of functions under the RDA between the
County Council and the Commission. 269 Md. at 210-223, 306 A.2d 228-235. We held
that the Regional District Act is a public general law which may not be amended or
superseded by the Charter. Id., 269 Md. at 223, 306 A.2d at 235. “The fact that a public
general law permits or directs differences in matters of mere administrative detail suited
to the particular needs of the localities does not make it any less a public general law
. . . .” Id., 269 Md. at 225, 306 A.2d at 236 (quoting Norris v. Mayor and City Council of
Baltimore, 172 Md. 667, 681, 192 A. 531, 537 (1937)) (internal quotation marks
omitted). To the extent that the Charter, or the ordinances adopted thereunder, conflict
with the RDA, the Charter and ordinances are invalid and the RDA governs. See Id., 269
Md. at 225-34, 306 A.2d at 236-41 (holding that the RDA governed in the disagreements
between the Prince George’s County Charter and the RDA at issue in that case).
31
The Maryland-Washington Regional District encompasses “the entire area of
Prince George’s County, except for the City of Laurel as it existed on July 1, 2008.” LU §
§ 20-101(b).
32
Other administrative bodies, not figuring in the present case, are authorized also
to execute provisions of the RDA. The RDA provides for board of appeals, to which a
(Continued…)
29
The district councils for Prince George’s County and Montgomery County consist
of their respective county councils. LU §§ 22-101, 14-101. They have primary legislative
authority. The district councils are authorized to adopt and amend zoning ordinances and
the accompanying zoning maps for their counties, LU §§ 22-104, 22-201, and to develop
processes and procedures to ensure that development complies with zoning requirements,
see, e.g., LU §§ 20-503(a), 22-214(e). They have a role also in the creation of plans by
establishing procedures for the planning process, see LU § 21-208(a), and approving
master plans for their counties, see LU § 21-212. Moreover, the district councils may
delegate certain responsibilities and authority to other local governmental units or
tribunals, subject to limitations as may appear in the RDA.
The Maryland-National Capital Park & Planning Commission (“Commission” or
“MNCPPC”), as its name suggests, administers parks, public recreation, and, in
conjunction with the governments of Prince George’s and Montgomery counties, and
their respective Planning Boards (which are constituent parts of the Commission),
participates in the planning of development within the Regional District. See, e.g., LU §§
15-102, 17-101, 20-205, 21-101, 21-103. The MNCPPC consists of ten members, five of
whom are residents of Montgomery County, and five of whom are residents of Prince
George’s County (each group of five constitute the Planning Board for its respective
(…continued)
district council may direct determinations regarding, for example, variances. LU §§ 22-
301, 22-309, 22-310, 22-311. Also, a district council may delegate certain zoning actions,
such as special exceptions, to a hearing examiner, whose decision may be final unless
appealed to the district council or take for decision by the council on its initiative. LU §
22-206.
30
county). LU § 15-102(a)(2). The governments of Prince George’s and Montgomery
counties appoint the members from their respective jurisdictions. See LU § 15-102(a)(3).
Among other things, the RDA authorizes the MNCPPC to: (1) acquire property for parks,
forests, roads, and other public spaces, LU § 17-101; (2) rename streets and highways
and number and renumber houses within the district to fix mistakes, remove confusion,
and establish uniformity, LU § 17-212; (3) acquire, improve, and manage land for flood
control purposes, LU § 17-213; (4) establish road grades in Montgomery County, LU §
20-401; and, (5) recommend amendments to the zoning laws and subdivision regulations,
LU § 20-203. The Commission originates and produces also the proposed general and
master plans for the Regional District.33 See LU § 21-202, 21-203(a).
We perceive also that the RDA seeks to foster a degree of independence in and
immunize, to some extent, the Commission from undue grass roots and hierarchical
political influence. The RDA directs that commissioners must be individuals of “ability”
and “experience.”34 LU § 15-102(b). Of the five commissioners from each county, no
33
A plan is adopted by majority vote of the Commission. See LU § 21-203(a). At
least three commissioners from Prince George’s County and three commissioners from
Montgomery County (a majority from each delegation), however, must vote
affirmatively, unless the plan affects only one county. See LU § 21-203(a). An area
master plan or a functional master plan that lies entirely within one county may be
adopted by the affirmative votes of three commissioners from that county’s planning
board. LU § 21-203(a)(2).
34
The RDA does not describe for what specific markers of ability and experience
the county governments are to look during the selection process. Nevertheless, the
provision demonstrates the intent of the Legislature with regard to achieving the
relatively apolitical nature of the Commission.
31
more than three may be members of the same political party, LU § 15-102(c)(1), and if a
commissioner is appointed to fill an unexpired term, he or she must be a member of the
same political party as the vacating commissioner. LU § 15-102(d)(5). Finally, “[a]
commissioner may not be selected as representing or supporting any special interest.”35
LU § 15-102(c)(2).
The RDA evinces also an intent of the State Legislature to prevent corruption of or
the appearance of impropriety by the commissioners. LU § 15-120 prohibits
commissioners from: (1) participating in decisions as a commissioner in which the
commissioner or the commissioner’s immediate family has a financial interest; (2) taking
certain employment while a commissioner; (3) soliciting or accepting gifts, disclosing
confidential information, or using such information for private gain; or, (4) influencing
other county or State officials in the conduct of their duties. Commissioners are required
by the RDA to disclose publically any conflict with his or her official duties. LU § 15-
120(g).
35
Additional provisions specific to Prince George’s County or Montgomery
County exist. In Prince George’s County, appointments must “attempt to provide
reasonable geographic balance with respect to the commissioners’ places of residence”
and provide the resolution announcing the appointment of a commissioner must “describe
the resulting geographic distribution and provide that appropriate explanations.” LU § 15-
103(b)(4). In Montgomery County, applicants for appointment as a commissioner must
provide financial disclosures and the Montgomery County Council must hold interviews
regarding possible or potential conflicts of interest, which interviews become public if the
applicant is appointed. LU § 15-104.
32
As noted earlier, the planning board for a county consists of the commissioners of
the MNCPPC appointed from that county.36 LU § 20-201; see also LU §§ 15-102, 15-
103. The planning boards are “responsible for planning, subdivision, and zoning
functions that are primarily local in scope[,]” see LU § 20-202, and not otherwise placed
under another agency’s purview, see, e.g., LU § 22-104 (granting to the Montgomery
County and Prince George’s County district councils authority to adopt and amend
zoning law). The county planning boards have exclusive jurisdiction over local functions
within their purview and any mandatory referrals by the county government.37 LU § 20-
202(b).
36
In Prince George’s County, the County Executive appoints commissioners to the
Commission and the County Planning Board, subject to approval by the County Council.
LU § 15-103(b).
37
A county body or county official must refer to that county’s planning board for
consideration of the location, character, grade, and extent of the activity before the county
may consummate any of the following:
(1) acquiring or selling land;
(2) locating, constructing, or authorizing:
(i) a road;
(ii) a park;
(iii) any other public way or ground;
(iv) a public building or structure, including a federal
building or structure; or
(v) a publically owned or privately owned public utility; or
(3) changing the use of or widening, narrowing, extending,
relocating, vacating, or abandoning any facility listed [above].
LU § 20-301; see also LU § 20-302(b) (requiring referrals from a county to be made to
that county’s planning board).
33
The RDA does not itemize exhaustively the local functions that are within the
exclusive jurisdiction of the planning boards. LU § 20-202(b)(1) provides, however, in
relevant part:
A county planning board has exclusive jurisdiction over:
(i) local functions, including:
1. the administration of subdivision regulations;
2. the preparation and adoption of recommendations to the
district council with respect to zoning map amendments;[38]
and
3. the assignment of street names and house numbers in the
regional district . . . .
The Legislature’s use of “including” indicates that the local functions listed in LU § 20-
301 are not intended to be an exhaustive list, but rather examples of local functions.
The fundamental division of zoning, planning, and land use authority in the RDA
grants regional authority to the Commission, broad local authority to the county planning
boards, and specific local authority to the county district councils.39 Although the RDA
grants authority to the district councils through discrete provisions, unlike the broader
grant of authority provided the planning boards, such authority is not narrow. The district
councils have broad legislative authority. See, e.g., LU §§ 20-104 (granting authority to
38
When considering a zoning map amendment, the Planning Board provides
merely a recommendation to the District Council, LU §§ 22-208, 20-202(b)(1)(i). The
District Council decides whether to grant the amendment. LU § 22-206.
39
The RDA grants other internal operating authority to the Commission and the
planning boards that is not involved directly with the regulation of land use. The
Commission, for example, is empowered to appoint park police, LU § 17-301, establish
an adequate comprehensive insurance program, LU § 15-114, create publications
describing land use law within the Regional District, LU § 15-116, and hire employees,
see LU § 16-102. The planning boards have also administrative control over their
employees. LU § 20-204.
34
create and amend zoning law), 20-105 (granting authority to district councils to create a
program for the transfer of development rights), 20-503 (granting authority to the district
councils to create “a process to raise a zoning question before the preparation of all
structural specifications of a building or structure that may be required for a complete
building permit”), 22-104 (granting authority to the “governing body of Montgomery
County or Prince George’s County” to adopt and amend subdivision regulations).
F. Comprehensive Design (Floating) Zones in Prince George’s County
The District Council for Prince George’s County (“District Council”) classifies as
“comprehensive design zones” certain types of floating zones established pursuant to the
RDA. PGCC § 27-109. Explaining the reasons for creating comprehensive design zones,
PGCC § 27-476 states:
(1) It is within the ultimate objectives of the District Council's
authority (under Article 28 of the Annotated Code of
Maryland) to use recent planning and zoning innovations;
(2) The demands for housing, commercial and industrial
activities, and related public facilities and services are
undergoing substantial and rapid changes, requiring improved
methods of land use control; and
(3) There is a need to encourage the optional and imaginative
utilization of land contemplated by Comprehensive Design
Zones in order to:
(A) Improve the total environment;
(B) Lessen the public costs associated with land
development and use;
(C) Fulfill the purposes of each individual Comprehensive
Design Zone; and
(D) Fulfill the recommendations and purposes of the
General Plan, Master Plans, or Sector Plans in selected
areas.
35
Each type of comprehensive design zone has also its own goals, but all are aimed
generally at encouraging good development. See PGCC § 27-478(a).
To take advantage of the flexibility provided by the comprehensive design zones,
a developer must seek first to change the present zoning of a parcel by submitting an
application for zoning map amendment and accompanying Basic Plan.40 PGCC §§ 27-
187, 27-195(a)(1). The application and Basic Plan must demonstrate that the entire
proposed development will conform to the relevant criteria for the proposed zone. PGCC
§ 27-195(b). The Planning Board provides the District Council with an analysis and
recommendation regarding the application. PGCC § 27-192; see also LU §22-208. If the
District Council approves the zoning map amendment, it may specify particular permitted
land use types and planning and development guidelines that must be followed by the
applicant and subsequent owners in the subsequent approval processes. PGCC 27-
195(a)(1). The District Council may impose also conditions on the property along with
the new zoning classification. PGCC § 27-195(c); see also LU § 22-214(a).
If the District Council approves the application and Basic Plan, thereby rezoning
the property, the applicant must submit next a Comprehensive Design Plan (“CDP”) and
40
The Basic Plan shows at a minimum the “general land use types; range of
dwelling unit densities, including the base, minimum, and maximum densities; and
commercial/industrial intensities, general circulation pattern, general location of major
access points[,] and land use relationships . . . .” PGCC § 27-195(a)(1). It may also show
“specific land use types and their general locations within the development . . . .” PGCC
§ 27-195(a)(1).
36
a Specific Design Plan (“SDP”).41 PGCC § 27-487(a). The CDP is the second step in the
evolutionary detailing of what the applicant proposes to develop on the property. The
applicant must provide, among other things, preliminary drawings, details, and designs of
the actual proposed development. PGCC § 27-518(b).42 The third step, the SDP,43
41
A zoning map amendment with accompanying Basic Plan, CDP, and SDP may
be submitted and reviewed as a package, if the applicant wishes. PGCC § 27-532. It is
more often the case, however, that an applicant submits only the map amendment
application and Basic Plan initially, in order to determine if it will be approved, thus
justifying undertaking the additional expense and time to submit a CDP or SDP, whether
sequentially or as a package. Cf. PGCC § 27-531 (authorizing a combined application for
Comprehensive Design and Specific Design Plan approval).
42
PGCC § 27-518(b) requires CDPs to include:
(1) A reproducible drawing (with ten (10) prints) showing the
proposed development of the property. This drawing shall be
in conformance with the approved Basic Plan. The drawing
shall show the approximate location and proposed density of
dwelling units, nonresidential building intensity, and the
zoning of adjoining properties;
(2) A schedule and text, including the delineation of any
staged units to be developed at different times;
(3) A description of design principles proposed to govern the
project, including design guidelines set forth in Section 27-
274 of Part 3, Division 9, of this Subtitle for the M-A-C, L-A-
C, E-I-A, R-U, R-M, and R-S Zones, and in Section 27-
514.06 for the V-M and V-L Zones;
(4) The total number of acres in the proposed project and the
percentage thereof proposed for various uses;
(5) The number of dwelling units proposed (by type of
dwelling unit) for each staged unit;
(6) The estimated residential or employment population for
each staged unit;
(7) The location and extent of any proposed commercial area;
(8) The anticipated priority of development of each staged
unit;
(Continued…)
37
(…continued)
(9) The standards proposed to be used for height, open space,
building intensity, population density, and public
improvements;
(10) Engineering feasibility studies (including traffic
engineering studies), as necessary;
(11) An approved Natural Resource Inventory;
(12) A Type 1 Tree Conservation Plan prepared in
conformance with Division 2 of Subtitle 25 and The
Woodland and Wildlife Habitat Conservation Technical
Manual or Standard a Letter of Exemption;
(13) A statement of justification describing how the proposed
design preserves and/or restores the regulated environmental
features to the fullest extent possible; and
(14) Where a Comprehensive Design Plan proposes to
include an adaptive use of a Historic Site, the application
shall include:
(A) Text describing the nature of the proposed adaptive use,
including a description of how the use will be integrated into
the design and theme of the Historic Site;
(B) A preliminary evaluation of historic landscape features
through field investigation; and
(C) Preliminary architectural elevations within the
environmental setting of the Historic Site.
43
If the development of the comprehensive design zone includes subdividing the
property, the subdivision approval process may overlap somewhat with the CDP and SDP
approval process. A preliminary plan of subdivision may accompany a combined CDP
and SDP application. See PGCC § 24-119(b). The final plat approval occurs after the
approval of the CDP and SDP. PGCC § 24-119(f). The Planning Board requires the
proposed subdivision to conform to the CDP and SDP. See PGCC § 24-121(a) (“The
Planning Board shall require that proposed subdivisions . . . [are] platted in conformance
with all of the requirements of the Zoning Ordinance applicable to the subject
property.”). The subdivision process is within the exclusive jurisdiction of the Planning
Board, and the determinations of the Planning Board are not subject to the review,
appellate or otherwise, by the District Council. See LU § 23-102(a); County Council of
Prince George’s County v. Dutcher, 365 Md. 399, 425, 780 A.2d 1137, 1152 (2001)
(holding that the RDA, by its silence on the matter, did not authorize an appeal to the
District Council of a Planning Board decision regarding a non-cluster preliminary plan of
subdivision).
38
includes additional and greater development detail. See PGCC § 27-527(b).44
Development and use of the property must comply with the approved SDP, which binds
future owners as well as the applicant, unless a revision is sought and approved. PGCC
§§ 27-529, 27-530.
The Planning Board, after its technical planning staff reviews an applicant’s
submissions and makes a recommendation, holds a public evidentiary hearing.
Thereafter, it approves or denies a CDP or SDP (with or without conditions). PGCC §§
27-522, 27-528. To receive approval, the plans must meet certain requirements set out in
PGCC §§ 27-521 and 27-528.
44
PGCC § 27-527(b) requires SDPs to include (at least):
(1) A reproducible site plan showing buildings, functional use
areas, circulation, and relationships between them; and in the
V-M and V-L Zones, a three-dimensional model and a
modified grid plan, which may include only the Village
Proper, and any Hamlet, which incorporates plan concepts,
spatial and visual relationships, streetscape, and other
characteristics of traditional rural villages shall be provided
prior to Planning Board and District Council review;
(2) Reproducible preliminary architectural plans, including
floor plans and exterior elevations;
(3) A reproducible landscape plan prepared in accordance
with the provisions of the Landscape Manual;
(4) A Type 2 Tree Conservation Plan prepared in
conformance with Division 2 of Subtitle 25 and The
Woodland and Wildlife Habitat Conservation Technical
Manual or Standard Letter of Exemption;
(5) An approved Natural Resource Inventory; and
(6) A statement of justification describing how the proposed
design preserves or restores the regulated environmental
features to the fullest extent possible.
39
PGCC § 27-521 details several findings that the Planning Board must make in
order to approve a CDP. The first is that the CDP is in conformance with the approved
Basic Plan, and certain zoning requirements. See PGCC §§ 27-521(a)(1), 27-
223(b)(3)(B), 27-195.45, 46
The CDP must demonstrate more, however, than showing
simply that the proposed development would comply with the property’s zoning. Among
other things, the CDP must demonstrate: (1) that it “would result in a development with a
better environment than could be achieved under other regulations[,]” PGCC § 27-
45
PGGC §§ 27-521(a)(1) requires for approval of a CDP a finding that:
The plan is in conformance with the Basic Plan approved by
application per [PGCC §] 27-195; or when the property was
placed in a Comprehensive Design Zone through a Sectional
Map Amendment per [PGCC §] 27-223, was approved after
October 1, 2006, and for which a comprehensive land use
planning study was conducted by Technical Staff prior to
initiation, is in conformance with the design guidelines or
standards intended to implement the development concept
recommended by the Master Plan, Sector Plan, or Sectional
Map Amendment Zoning Change . . . .
PGCC § 27-223 indicates that “[t]he design guidelines or standards intended to
implement the development concept recommended by the Master Plan, Sector Plan, or
the Sectional Map Amendment Zoning Change may constitute the Basic Plan for
development on property where a Comprehensive Design Zone is established through a
Sectional Map Amendment.”
46
PGCC § 27-195(a) indicates that the requirements of the Basic Plan are
incorporated as part of the zoning of the parcel. LU § 22-214(a) authorizes the District
Council to “consider and adopt any reasonable requirements, safeguards, and conditions”
that may be necessary to prevent adverse effects on surrounding properties or would lead
to better development of the Regional District. In the present case (as we shall explain
later), the District Council termed the conditions on rezoning imposed in the 2004
rezoning “Basic Plan Conditions,” which is not inconsistent with the structure authorized
by LU § 22-214 and implemented by PGCC § 27-195.
40
521(a)(2) (emphasis added); (2) “the preservation and/or restoration of the regulated
environmental features in a natural state to the fullest extent possible[,]” PGCC § 27-
521(a)(11) (emphasis added); and, (3) that “[a]pproval is warranted by the way in which
the Comprehensive Design Plan includes design elements, facilities, and amenities, and
satisfies the needs of the residents, employees, or guests of the project[,]” PGCC § 27-
521(a)(3) (emphasis added). Although the County Code indicates the appropriate
considerations, the Planning Board (and its technical planning staff) must exercise
expertise and judgment to determine whether to approve a CDP, wielding necessarily
significant discretion in that endeavor. The considerations governing the decision are the
essence of planning.47
The Planning Board’s discretion to deny an SDP is cabined. See PGCC § 27-
528(c) (“The Planning Board may only deny the Specific Design Plan if it does not meet
the requirements of Section 27-528(a) and (b), above.”). The Planning Board must
approve an SDP unless the submission fails to: (1) conform to the CDP, the Landscape
47
As we stated in Bd. of Cnty. Comm'rs of Cecil Cnty. v. Gaster, 285 Md. 233,
401 A.2d 672 (1979):
[P]lanning . . . indicates the development of a community, not
only with respect to the uses of lands and buildings, but also
with respect to streets, parks, civic beauty, industrial and
commercial undertakings, residential developments and such
other matters affecting the public convenience and welfare as
may be properly embraced within the police power.
285 Md. at 246, 401 A.2d at 672 (quoting 1 E. C. Yokley, Zoning Law and Practice § 1-2
(4th ed. 1978)).
41
Manual, or the applicable design guidelines and regulations; (2) demonstrate that the
development will be served adequately by existing or programed public facilities within a
reasonable time; (3) demonstrate that surface water will be handled adequately; (4)
conform with an approved Type 2 Tree Conservation Plan; and, (5) demonstrate that
regulated environmental features are preserved and/or restored to the full extent
possible.48 PGCC § 27-528(a). Nonetheless, the Planning Board must still exercise
significant agency expertise and judgment in making these determinations.
The decision of the Planning Board as regards a CDP or an SDP is subject to
review by the District Council. PGCC §§ 27-523(a), 27-528.01. Any person of record
before the Planning Board may appeal the decision to the District Council (which did not
occur in the present case), or the District Council may elect on its initiative to review
(“call up”) the decision (which is what happened here). Cf. PGCC § 27-523(a). The
District Council may affirm, reverse, or modify the decision of the Planning Board, or
remand the case to the Planning Board for further consideration. PGCC § 27-523(a). In
the present case, we are asked to consider what is the proper role of the District Council
in reviewing decisions of the Planning Board and the standard(s) by which the District
Council may review the Planning Board’s decision.
48
In certain situations, the SDP must meet additional criterial. For example, “in
the L-A-C Zone, if any portion lies within one-half (1/2) mile of an existing or
Washington Metropolitan Area Transit Authority Metrorail station, the regulations set
forth in Section 27-480(d) and (e) [apply] . . . .” PGCC § 27-528(a)(1). If the SDP
concerns “Infrastructure,” the Planning Board must find additionally that the SDP
“prevents offsite property damage, and prevents environmental degradation to safeguard
the public’s health, safety, welfare, and economic well-being for grading, reforestation,
woodland conservation, drainage, erosion, and pollution discharge.” PGCC § 27-528(b).
42
II. FACTUAL AND PROCEDURAL BACKGROUND
Now we shall bring down to earth somewhat this opinion. The property at the
heart of this dispute (the “Edwards Property”) is a triangular 4.14 acre parcel in Adelphi,
Prince George’s County. The parcel is bounded by Adelphi Road, Edwards Way, and
Riggs Road. Zimmer Development Company (“Zimmer”), a national real estate
developer based in Wilmington, North Carolina, wishes to construct on the Edwards
Property a small retail center with a CVS store as the primary tenant.
The Edwards Property was zoned originally R-R (Rural Residential), a Euclidian
single-family, detached residential zone, which would not allow development of a retail
center on the Property. In 2004, after Edwards Commercial Properties’49 submission of
an application for a zoning map amendment of the parcel to L-A-C (Local Activity
Zone),50 a floating zone, together with a Basic Plan depicting how it would develop the
49
Nothing we could find in the record extract describes precisely the relationship
between Zimmer and Edwards Commercial Properties.
50
The L-A-C zone is purposed to:
(1) Establish (in the public interest) a plan implementation
Zone, in which (among other things):
(A) Permissible residential density and building intensity
are dependent on providing public benefit features and
related density/intensity increment factors; and
(B) The location of the zone must be in accordance with
the adopted and approved General Plan, Master Plan,
Sector Plan, public urban renewal plan, or Sectional Map
Amendment Zoning Change;
(2) Establish regulations through which adopted and approved
public plans and policies (such as the General Plan, Master
Plans, Sector Plans, public urban renewal plans, and Sectional
(Continued…)
43
property generally, the County Council for Prince George’s County, sitting as the District
Council, adopted Zoning Ordinance 10-2004 granting the requested rezoning to the L-A-
C zone, subject to several conditions. Zoning Ordinance 10-2004 required as conditions
the following:
1. The Basic Plan shall be revised to show the following
rights-of-way along the frontages of the subject property: MD
212 – 40 feet from center line (toward the ultimate right-of-
way of 80 feet); Adelphi Road – 50 feet from center line
(toward the ultimate right of way of 100 feet); Edwards Way
– 35 feet from center line (in accordance with Zoning
Ordinance requirements adjacent to commercial zone).
2. The Applicant will provide a double left-turn lane along
southbound/westbound MD 212 at the approach of Adelphi
Road. Timing of this improvement will be determined at the
preliminary plan of subdivision.
(…continued)
Map Amendment Zoning Changes for Community, Village,
and Neighborhood Centers) can serve as the criteria for
judging individual physical development proposals;
(3) Assure the compatibility of proposed land uses with
existing and proposed surrounding land uses, and existing and
proposed public facilities and services, so as to promote the
health, safety and welfare of the present and future
inhabitants of the Regional District;
(4) Encourage and stimulate balanced land development;
(5) Group uses serving public, quasi-public, and commercial
needs together for the convenience of the populations they
serve; and
(6) Encourage dwellings integrated with activity centers in a
manner which retains the amenities of the residential
environment and provides the convenience of proximity to an
activity center.
PGCC § 27-494.
44
3. Prior to the approval of the Specific Design Plan for the
subject property, the applicant shall submit an acceptable
traffic signal warrant study to the County Department of
Public Works and Transportation (DPW&T) for the
intersection of Adelphi Road and Edwards Way. The
Applicant shall use a new 12-hour count and shall analyze
signal warrants under total future traffic as well as existing
traffic.
4. During the review of Preliminary Plan of Subdivision, the
Applicant shall provide more detailed operational analyses at
the intersections of MD 212/Edwards Way and MD212/site
entrance. The scope of these analyses will be determined after
approval of the proposed Basic Plan and in consideration of
the permitted access to the site.
5. Total commercial development of the subject 4.14 acre site
shall be limited to a maximum of 40,000 square feet.
6. During the Comprehensive Design Plan and subdivision
review, the Applicant shall address the addition of public
streets to accomplish access from Adelphi Road or obtain a
variance from Section 24-121 of the Subdivision Regulations.
7. Development of the subject property shall have a woodland
conservation threshold of 20 percent. If off-site mitigation is
proposed, the first priority for mitigation sites shall be within
the Anacostia Watershed.
8. During the Comprehensive Design Plan and Specific
Design Plan review, the Applicant shall address the following
issues:
A. Architectural design shall be distinctive in order to
create an image of quality and permanence.
B. A build-to line shall be considered in order to create an
inviting streetscape.
C. The streetscape shall create a pedestrian-friendly
environment with consideration of the following elements:
(1) Street furniture including pedestrian lighting
45
(2) Trash receptacles
(3) Bike racks
(4) Pedestrian crosswalks should be a contrasting paving
materials
(5) Need for bus stop[.]
D. Massive surface parking facilities adjacent to either
Riggs or Adelphi Road shall be prohibited.
E. An architectural focal point and/or sculpture located
within a green area shall be provided at the intersection of
Adelphi and Riggs Road.
F. No loading and/or dumpster areas shall be visible from
adjacent roadways.
G. The design plans shall address the entire property, so
that the final development of the individual lots creates a
visually cohesive development, compatible in regard to
architectural treatment and site layout.
9. Additional conditions of approval:
A. The leadership of the Buck Lodge Citizen’s
Association, White Oak Manor Civic Association, and
Hampton’s Association will each nominate two
representatives and one alternate to participate with the
developer of the subject property in regular meetings,
scheduled by the developer, during each of the phases of
development (including but not limited to the Preliminary
Plan of Subdivision, Comprehensive Design Plan, and
Specific Design Plan) of the property.
B. At the time of Preliminary Plan Application, the
developer of the subject property shall include the
intersection of Metzerott Road and Riggs Road in its traffic
study, to demonstrate the adequacy of transportation
facilities in the surrounding area.
46
C. Any required widening and improvements to the public
rights-of-way for Riggs Road, Adelphi Road, and Edwards
Way shall include five-foot sidewalks, in accordance with
applicable State and County Standards.
D. The developer of the subject property shall work with
the Maryland State Highway Administration on the
improvements to Riggs Road, Maryland Route 212, to
provide a center turn lane to allow northbound traffic to
make left turn turns into the subject property without
impeding through traffic.
E. The developer of the subject property shall be
responsible for payments for all road and intersection
improvements necessary to mitigate any failing traffic
conditions caused by the on-site development. Such
improvements will be determined at the time of
Preliminary Plan Review.
F. The developer of the subject property shall work with
the various transit authorities and agencies to maintain the
locations of the existing bus stops along Riggs Road and
Adelphi Road. The developer shall construct a bus pull-off
area to allow the loading and unloading of passengers out
of the travel lanes of the roadways, within the public
rights-of-way.
G. The developer of the subject property shall work with
the Prince George’s Department of the Environment, to
utilize low impact stormwater management techniques to
the degree practicable.
H. The developer of the subject property shall take all
reasonable actions to alleviate and reduce the possibility of
crime occurring on or adjacent to the property.
J.[51] The developer shall keep clean all areas of the subject
property, during and after development.
51
Sub-part “I” of Condition 9 was skipped in Zoning Ordinance 10-2004, for no
apparent reason.
47
K. The developer shall incorporate trees, shrubs, open
areas, flowers, walkways, and lighting into the site plan.
The property shall be cleared of poorly lit or secluded
areas, and adequate safety lighting shall be installed to
improve visibility into the site and deter illegal activity.
10. The developer shall make its best efforts to include a
restaurant as an ancillary tenant on the subject property.
Time passed. On 14 March 2011, Zimmer filed concurrently with the Commission
a proposed Comprehensive Design Plan–1001 (“CDP–1001”) and Specific Design Plan–
1001 (“SDP–1001”) for the development of the Edwards Property. On 28 July 2011, the
Planning Board held a public hearing on the applications. The technical staff of the
Planning Board, having reviewed the submissions, recommended their approval with
conditions. CDP-1001 and SDP-1001 were found by the Planning Board to comply with
the approved Basic Plan and the planning standards applicable to CDPs and SDPs for the
L-A-C zone and, consequently, were approved subject to conditions substantially similar
to those recommended by the technical staff.52
52
The Planning Board’s approval of CDP-1001 was subject to the following
conditions:
1. Prior to signature approval of the plans, the applicant shall
revise the plans as follows or provide the additional specified
documentation:
a. Provide a double left-turn lane along southbound/
westbound Riggs Road (MD 212) at the approach to
Adelphi Road or such other modification approved by
DPW&T and SHA.
b. The following shall be added as a note in the general
notes of the comprehensive design plan:
“Total development within the subject property shall be
limited to uses which generate no more than 23 AM and 268
(Continued…)
48
(…continued)
MP peak-hour vehicle trips. Any development generating an
impact greater than this amount shall require an amended
comprehensive design plan with a new determination of the
adequacy of transportation facilities.”
c. The plans shall clearly indicate that access to the site shall
be limited to a right-in/right-out access on Adelphi Road and
to a full movement intersection on Riggs Road (MD 212)
opposite Metzerott Plaza and revised to replace the grey
arrows with blue, indicating only pedestrian access to
Edwards Way.
d. Indicate clearly on the comprehensive design plan a
dedication of 35 feet from the centerline of Riggs Road (MD
212), and 50 feet from the centerline of Adelphi Road as
required by Basic Plan A-9964-C.
e. Procure from DPW&T a written statement that the subject
project is in conformance with the requirements of the
approved stormwater management concept or its revisions,
should the applicant be required by DPW&T to revise the
concept. Such statement shall be submitted to the Urban
Design Section as designee of the Planning Board.
f. Additional trash receptacles shall be added to the site and
provided interior to the site and along all street frontages.
Final design of this additional pedestrian streetscape element
shall be approved by the Urban Design Section as designee
of the Planning Board.
g. A note shall be added to the plans stating that the trash
receptacles and the dumpster shall be emptied as needed;
that the site and its landscaping shall be regularly
maintained; and that all dust free surfaces shall be washed
and swept as needed.
h. Perennial and annual flowering plants shall augment the
offerings of the landscape plan. Final design of such
additional landscaping shall be approved by the Urban
Design Section as designee of the Planning Board.
2. Prior to the issuance of the first building permit within the
subject property, the following transportation improvements
shall (a) have full financial assurances, (b) have been
permitted for construction through the operating agency’s
access permit process, and (c) have an agreed on time table
for construction with the appropriate operating agency.
(Continued…)
49
(…continued)
a. Complete a traffic queuing analysis for SHA at the
proposed site access point on Riggs Road (MD 212) and any
improvements required by the Maryland State Highway
Administration (SHA), at this location.
b. Double left-turn lanes on the southbound/westbound
approach of Riggs Road (MD 212) at Adelphi Road,
together with any associated pavement markings, signage,
traffic signal modifications, or similar items necessary at
this location, as determined by the Maryland State Highway
Administration (SHA).
c. An acceptable traffic signal warrant study to the Maryland
State Highway Administration (SHA) for signalization at the
intersection of Riggs Road (MD 212) and Edwards Way and
any signal or other traffic control improvements that are
deemed warranted at that time. The applicant shall utilize a
new 12-hour count, and shall analyze signal warrants under
total future traffic as well as existing traffic at the direction
of the responsible operating agency.
3. Prior to approval of the first specific design plan for the
subject property, the applicant shall:
a. Submit an acceptable traffic signal warrant study to the
Department of Public Works and Transportation (DPW&T)
for signalization at the intersection of Adelphi Road and
Edwards Way. The applicant shall utilize a new 12-hour
count, and shall analyze signal warrants under total future
traffic as well as existing traffic at the direction of the
responsible operating agency. If any signal or other traffic
control improvements is/are deeded warranted by the signal
traffic warrant for signalization at the intersection of
Adelphi Road and Edwards Way, the applicant shall bond
the signal with the appropriate agency prior to the release of
any building permits within the subject property, and install
it at the time when directed by the agency.
b. Proffer detailed dimensional color drawings to scale,
including all materials describing the exact construction of
all street scape and focal point amenities, including but not
limited to the “Welcome to Adelphi” sign, all types of walls
to be utilized around the periphery of the site and in the
focal point, benches, trash receptacles, bike racks, and
(Continued…)
50
(…continued)
decorative light fixtures. The location of all such details and
amenities shall be indicated on the specific design plan.
c. Provide a detailed landscape plan including trees, shrubs
and annual and perennial flowers creating a diversity of
seasonal interest and a vegetative buffer along Edwards
Way.
d. Provide through analysis of all specimen trees whose [sic]
removal have been approved by the companion variance to
CDP-1001 to determine if preservation of any of the
specimen trees can be achieved through adjustment of
grading, use of retaining walls or other measures.
4. At the time of approval of the preliminary plan for the
project:
a. The applicant shall show a dedication of 35 feet from the
centerline of Edwards Way.
b. Timing of the required installation of a double left-turn
lane along southbound/westbound Riggs Road (MD 212) at
the approach to Adelphi Road.
The Planning Board’s approval of SDP-1001 was subject to the following additional
conditions:
1. Prior to the signature approval of the plans, the applicant
shall make the following revisions and provide the indicated
additional documentation:
a. The sign detail shall be revised for the proposed tenants,
exclusive of CVS, to include sign dimensions, materials, and
up to four colors. The signage colors and logos of regional
or national tenant shall be allowed as a substitute for the
detail provided in the revisions.
b. The parking schedule shall be revised to clarify the
number of spaces provided in the parking breakdown and
the number of spaces.
c. The relevant comprehensive design plan and the
preliminary plan of subdivision shall be certified in
accordance with the requirements of the respective
approvals.
d. A note shall be placed on the plans stating that: “Trash
receptacles and the dumpster shall be emptied as needed and
(Continued…)
51
(…continued)
the site and its landscaping shall be regularly maintained.
All dust free surfaces shall be washed and swept as needed.”
e. Perennial and annual flowering plants shall be added to
the landscaping plan. Final design of such additional
landscaping shall be approved by the Urban Design Section
as designee of the Planning Board.
f. The applicant shall provide a written statement from the
Department of Public Works and Transportation (DPW&T)
stating that they found the traffic signal warrant evaluation
for the intersection of Adelphi Road and Edwards Way
submitted by the applicant’s traffic engineer to be
acceptable.
g. Items required by Condition 1 of CDP-1001, prior to
signature approval, shall be adequately reflected on the
SDP. The access to Adelphi Road shall be clearly labeled as
right-in/right-out access. Final conformance to these
requirements on the SDP shall be approved by the Urban
Design Section as designee of the Planning Board.
h. The applicant shall include dimensional color drawings to
scale of all streetscape and focal point amenities, including
but not limited to the “Welcome to Adelphi” sign, all types
of walls to be utilized to be utilized around the periphery of
the site and in the focal point, benches, trash receptacles,
bike racks, and decorative light fixtures. Streetscape
treatments shall be as follows:
“Streetscape A” shall include three benches within the
area of the focal point “Welcome to Adelphi” feature, a
decorative two-foot knee wall including masonry piers
(three feet high, spaced about 17 feet apart, and a linear
hedge with perennial plantings and other shrubs, ornamental
grasses and ground cover. This design shall be provided on
both sides of the community focal feature at the intersection
of Riggs and Adelphi Roads (MD 212) to the vehicular
entrance to the project, and along Adelphi Road for
approximately the same distance.
“Streetscape B” shall include a decorative fence with
masonry piers (four feet high), approximately 17 feet apart,
linear hedge and perennial plantings. It shall be utilized
along the portion of the Adelphi Road frontage staring
where Streetscape A ends, then along Adelphi Road
(Continued…)
52
(…continued)
extending to the intersection at Edwards Way; and along
Riggs Road form the western side of its vehicular entrance
to its intersection with Edwards Way
“Streetscape C” shall include a vegetated buffer
including deciduous and evergreen trees to create diversity
of seasonal interest and annual and perennial flowers as
required by Condition 3c of the CDP approval. Streetscape
C shall be utilized along the project’s Edwards Way
frontage and on the adjacent Adelphi Road frontage, in a
southern direction, to the vehicular entranceway from
Adelphi Road.
Streetscape design shall include, in addition to any required
DPW&T street lights, twelve decorative pedestrian-scale
light fixtures (four along Adelphi Road, four along the
Edwards Way frontage, and four along the Riggs Road
frontage), a total of five benches (three at the corner of
Adelphi and Riggs Roads as part of the focal feature area,
and one at each of the two bus stops (one on the Riggs Road
frontage and one on the Adelphi Road frontage).
Final design of all streetscape treatments shall be consistent
with Applicant’s Exhibit B and approved by the Urban
Design Section as designee of the Planning Board.
i. The applicant shall provide striped crosswalks across
Edwards Way at both the intersection of Riggs and Adelphi
Roads unless otherwise modified by DPW&T and SHA.
j. A copy of the stormwater management concept shall be
submitted for inclusion in the case file, and the approved
Stormwater Management Concept Plan (2925-2002-02)
shall be correctly reflected on the specific design plan and
Type 2 tree conservation plan.
k. The applicant shall revise the specific design plan to
clearly indicate with notes and labels that the connection
between the two buildings is a false façade that runs from
the ground to the roof on both the Edwards Way and
Adelphi Road frontages.
l. The Type 2 tree conservation plan shall be revised as
follows:
(1) Show a threshold calculation of 20 percent on the
worksheet, in conformance with the approved Type 1 tree
conservation plan.
(Continued…)
53
No party to the Planning Board proceedings appealed. The District Council
elected, however, to review the Planning Board’s approval of the CDP and SDP, pursuant
to PGCC § 27-523(a) and § 27-528.01(b). On 7 November 2011, the District Council
held a public hearing and entertained oral arguments.53 Seven days later, the District
Council remanded CDP-1001 and SDP-1001 to the Planning Board to consider three
specific areas of concern: (1) whether the lack of a community center and the destruction
of the natural tree canopy could be mitigated through amenities benefiting the
surrounding community; (2) whether the deforestation mitigation plans were adequate;
and, (3) whether access for the nearby residents of Edwards Way could be improved to
compensate for the increase in traffic resulting from the proposed development.
On 9 February 2012, and after its technical staff pondered the District Council’s
three areas of apparent concern, the Planning Board held a hearing to consider the
(…continued)
(2) Add the following note: “The first priority for any
approved off-site woodland conservation shall be within
the Anacostia Watershed.”
m. The tree canopy coverage worksheet demonstrating how
the tree canopy coverage will be met shall be shown on the
landscape plan.
We are not able to append to this opinion legible copies of the graphic development plans
for CDP-1001 or SDP-1001, which would aid a reader in appreciating better some of the
references in these conditions. For that, as well as the length of this opinion, we are sorry.
53
The documents in the record before us do not contain a transcript of this
hearing. Nevertheless, the District Council describes in its Order of Remand that at the
hearing “opposition parties raised considerable objection, much of it well founded, as to
the applicant’s desire to completely clear the tree canopy . . . from the subject property.”
54
specific issues identified in the District Council’s remand. Four weeks after that hearing,
the Planning Board issued amended resolutions, delineating additional findings and again
approving CDP-1001 and SDP-1001, subject to substantially the same conditions.54
The Planning Board addressed each of the issues for which the District Council
remanded the application. With respect to the lack of a community center, the Planning
Board noted that the Edwards Property was of insufficient size for the construction of a
community center. The Planning Board noted that, in the L-A-C zone, a “community
center” is not justified unless the tract comprises twenty adjoining acres, and a “village
center” requires ten adjoining acres.55 The Planning Board did require additionally
Zimmer to provide a sculpture to the previously planned mini-park on the site and to
include in its landscape plan flowering plants that were drought-resistant. With respect to
the environmental concerns, the Planning Board explained how it arrived at its
determination that none of the trees on the rather small lot could be retained and why the
proposed mitigation for their loss was adequate. Finally, the Planning Board described its
re-analysis of the traffic impacts on Edwards Way vis-à-vis the proposed development
and the neighborhood, concluding that “[t]he installation of a [traffic] signal at Adelphi
Road and Edwards Way will greatly reduce delay for traffic using Edwards Way, and
should reduce any queuing that currently occurs” and that “[n]o changes to the previously
54
In its amended resolution, the Planning Board amended the conditions on its
approval of SDP-1001, requiring that the perennial and annual flowering plants to be
added to the landscape plan be drought-resistant and that the focal point feature “be
further enhanced by a sculpture expressive of civic pride . . . .”
55
These requirements for the L-A-C zone are found in PGCC § 27-496.
55
approved transportation-related conditions associated with the plan approval [were]
warranted.”
No party took an appeal, but the District Council elected again to review the
Board’s revised decisions regarding CDP-1001 and SDP-1001. On 21 May 2012, the
District Council entertained oral arguments. A member of the Planning Board staff
presented an overview of the proposed development and addressed the issues for which
the District Council remanded the case to the Planning Board. The Planning Board staff
member recommended approval of the CDP and SDP. The District Council had no
questions for the staff member.
The attorney representing Zimmer was allowed thirty minutes to address the
Council. On behalf of Zimmer, he concurred succinctly56 with the Planning Board’s
assessment and stated that the conditions imposed by the Planning Board addressed the
considerations remanded to the Planning Board. Although the attorney reserved the lion’s
share of his allowed time for questions from the District Council, none were forthcoming.
The opposition (although none had appealed to the District Council) were given
thirty minutes to speak. Two persons took the podium. A member of the Adelphi
community and also of an ad hoc civic group “People United for Fairness” spoke. He
argued that CDP-1001 should be denied because: (1) the property could be better used as
a community meeting place (or potentially as a park); (2) the clearing of the woodlands
would be damaging ecologically; (3) the runoff from the property and the general effect
56
Counsel spoke one-hundred and sixteen words in his direct remarks.
56
on the water table would damage nearby properties; (4) the development would endanger
pedestrians; and, (5) response times for emergency vehicles would be compromised as a
result of increased traffic. He questioned also the level of community involvement in the
planning of the development.
The President of the Board of the Racquet Club Condominium, a property directly
across Edwards Way from the proposed development, spoke in opposition as well. Her
concern was primarily that the truck traffic accessing the finished development and the
placement of the traffic signal at the intersection of Adelphi Road and Edwards Way
would disrupt existing traffic patterns. According to her remarks, driveways serving
approximately 530 housing units with ingress and egress on Edwards Way, which road
suffered already from congestion, would be affected adversely. She complained also that
there was no outreach by Zimmer or its affiliates to the Racquet Club Condominium
community in the planning of the development.
In rebuttal, Zimmer’s attorney highlighted the ways in which the community had
been involved (or invited to be involved) in the planning process, including his direct
contact with the President of the Board of the Racquet Club Condominium.
The People’s Zoning Counsel57 spoke last. He stated that the case had “been
reviewed exhaustedly by the community” and concurred with the Planning Board actions.
57
This position was created in 1970 by Article VII (“Planning and Zoning”),
Section 712 (“People’s Zoning Counsel” or “People’s Counsel”), of the Prince George’s
County Charter, which provides that the County Executive shall appoint one or more
Maryland attorneys to “appear at all hearings on zoning cases, whether before the
Council or a hearing examiner, for the purposes of protecting the public interest and
(Continued…)
57
At the close of the hearing, the Council member, in whose district the subject
property lay, remarked: “I think that this zone on this property, L-A-C, one of the main
features of an L-A-C zone is supposed to be some tangible community benefit. And other
than really a welcome sign, there isn’t anything significant, you know, for this
community.” That Council member moved then for an Order of Denial, which motion
was seconded. There being little discussion, the District Council Chair called for a vote.
The vote was 9-0 to deny the CDP and SDP and to have its staff prepare an order of
denial.
The staff of the District Council generated the Order of Denial, with an attached
memorandum explaining its conception of reasons for the proposed denial. The
memorandum marshalled fourteen reasons. According to the memorandum, CDP-1001
and SDP-1001, as approved by the Planning Board, failed to meet several conditions of
(…continued)
insuring the compilation of a full and complete record.” See PGCC § 27-136 (“An
independent People’s [Zoning] Counsel can protect the public interest and promote a full
and fair representation of relevant issues in administrative proceedings in order to achieve
balanced records upon which sound land use decisions can be made. In addition, a
People’s [Zoning] Counsel who provides technical assistance to citizens and citizen
organizations will encourage effective participation in, and increase public understanding
of and confidence in, the County land use process.”); see also PGCC § 27-137
(discussing the appointment of the People’s Zoning Counsel). Section 712 of the Charter
provides that People’s Zoning Counsel may summon, examine, and cross-examine
witnesses, introduce documentary evidence into the record, file exceptions, and make any
argument to the hearing examiner or Council as the law and evidence in the case may
warrant. In certain limited circumstances, the People’s Zoning Counsel may also petition
for judicial review of certain land use actions on behalf of a bona fide citizens
association. See LU § 25-206. In practice, appearance of People’s Counsel before the
District Council has not been limited necessarily to just rezoning cases, but rather more
broadly also to land use cases generally, e.g., special exceptions, CDPs, and SDPs.
58
the 2004 zoning map amendment,58 fell below the minimum floor area ratio (FAR) for
retail commercial development in a parcel zoned L-A-C,59 and did not justify adequately
the failure to include a community center in its development.60 The District Council, on
21 June 2012, adopted as its own the Order of Denial and attached memorandum.
On 3 July 2012, Zimmer sought judicial review by the Circuit Court for Prince
George’s County of the District Council’s denial of SDP-1001 and CDP-1001. In a
58
According to the memorandum, CDP-1001 and SDP-1001 failed to satisfy: (a)
Condition 1, requiring revision of the development’s Basic Plan to show certain public
rights-of-way; (b) Condition 2, requiring provision of a double-left turn lane along MD-
212, with the timing of the improvement to be determined at the Preliminary Plan of
Subdivision; (c) Condition 3, requiring submission to the County Department of Public
Works and Transportation an acceptable traffic signal warrant study, prepared utilizing
certain procedures; (d) Condition 4, requiring submission of a more detailed operational
analysis of nearby intersections during the review of the Preliminary Plan of Subdivision;
(e) Condition 7, requiring a woodland conservation threshold of twenty percent, with first
priority for any proposed off-site mitigation being within the Anacostia Watershed; (f)
Condition 8(A), requiring a distinctive architecture design for the development; (g)
Condition 8(B), requiring consideration of a build-to line; (h) Condition 8(D), prohibiting
massive surface facilities adjacent to Riggs Road and Adelphi Road; (i) Condition 8(E),
requiring a green area at the intersection of Adelphi Road and Riggs Road, and the
provision of an architectural focal point or sculpture therein; (j) Condition 8(F), requiring
that no loading or dumpster areas be visible from adjacent roadways; (k) Condition 9(F),
requiring the developer to work with transit authorities to maintain bus stops and to
construct an additional bus pull-off area; and (l), Condition 10, requiring the developer to
make its best efforts to include a restaurant as an ancillary tenant.
59
The L-A-C zone establishes a “maximum” and a “base” level of commercial
intensity to which any property so zoned may be used. PGCC § 27-496(a). The maximum
commercial density of an L-A-C zoned property between four and ten acres is 0.31 FAR.
PGCC § 27-496(a). The base commercial intensity for such a property is 0.16 FAR.
PGCC § 27-496(a). Zimmer’s proposed development depicted an FAR of 0.13.
60
There was no express provision in the conditions of the 2004 rezoning, or in the
PGCC applicable to L-A-C zones, obligating consideration of a community center on the
Edwards Property.
59
written opinion, the Circuit Court held, among other things, that: (1) the District Council
had appellate jurisdiction, not original jurisdiction, to review the determinations of the
Planning Board and, hence, was limited to determining whether the Planning Board’s
decision was arbitrary, capricious, discriminatory, or illegal; (2) the District Council’s
review, under the circumstances, was limited further to the specific issues for which it
remanded the case to the Planning Board; and, (3) the District Council substituted
improperly its judgment for the judgment of the Planning Board, as there was substantial
evidence supporting the Planning Board’s determination on each of the remanded
issues.61 The Circuit Court reversed the decision of the District Council and remanded the
case to the District Council, with directions to approve CDP-1001 and SDP-1001, as
approved by the Planning Board.
The District Council appealed the judgment of the Circuit Court to the Court of
Special Appeals (“CSA”). The intermediate appellate court affirmed. Cnty. Council of
Prince George's Cnty. v. Zimmer Dev. Co., 217 Md. App. 310, 331, 92 A.3d 601, 614
(2014). That court held, inter alia, that: (1) the District Council was authorized to
exercise only appellate jurisdiction to review the decisions of the Planning Board
regarding SDP-1001 and CDP-1001, and, hence, was restricted to determining whether
61
The Circuit Court concluded that each of the fourteen reasons the District
Council presented for denial were either beyond the scope of the remand, were
contradicted by substantial evidence presented to the Planning Board, or estopped by the
District Council’s 2014 approval of the Basic Plan. Only with respect to one of the
reasons for denial (failure to meet the base commercial intensity in the L-A-C zone) did
the Circuit Court not find substantial evidence in support of the Planning Board’s
decision. As to that issue, the Circuit Court based its holding reversing the District
Council solely on the District Council not remanding that issue to the Planning Board.
60
the Planning Board decision was arbitrary, capricious, discriminatory, or illegal; (2)
PGCC § 27–523(c) allowed for District Council review on the second call-up only of the
remand issues; and, (3) the District Council’s argument that each of its fourteen reasons
for denying the applications was supported by substantial evidence was inapposite
because only the remand issues were appropriate to consider and the District Council was
authorized to reverse only arbitrary, capricious, discriminatory, or illegal decisions by the
Planning Board. Zimmer Dev., 217 Md. App. 318-31, 92 A.3d at 606-14.
The District Council sought our review of the case. We granted a writ of certiorari,
Prince George's Cnty. v. Zimmer Dev. Corp., 440 Md. 114, 99 A.3d 778 (2014), to
consider the following questions:
1) Did the CSA err in its statutory construction of the
“Regional District Act” (“RDA”) by holding that the District
Council is vested with appellate rather than original
jurisdiction over Planning Board preliminary determinations
with respect to regional and legislative zoning matters?
2) Did the CSA err by applying County Council of Prince
George’s County v. Curtis Regency, 121 Md. App. 123, [126,
708 A.2d 1058, 1059 (1998)], even though it involved a
preliminary planning matter rather than a legislative, regional
zoning matter which conflicts with this Court’s holding in
County Council of Prince George’s County v. Dutcher, Prince
George’s County v. Dutcher, [365 Md. 399, 425, 780 A.2d
1137, 1152 (2001)]?
3) Whether the County Council’s 1996 enactment of the
County Code (“PGCC”) § 27-132(f), providing that the
District Council “shall exercise original jurisdiction” in its
“review [of] a decision made by … the Planning Board,” is
consistent with the provisions of the RDA?
4) Whether the CSA’s holding improperly transfers the
legislative, regional zoning authority expressly provided to
61
the District Council by the RDA to the Planning Board, a
subordinate agency?
5) Whether the CSA’s holding violates the separation of
powers doctrine because the judiciary has divested the
legislative body of its legislative authority over regional
zoning, including the applications related to zoning map
amendments sought here, specifically designated by State
law?
6) Whether the CSA nullified the District Council’s statutory
right to “remand” a case to the Planning Board for further
information, and the District Council’s obligation to issue a
“final” decision prior to judicial review, by holding that the
District Council is limited after remand to only those issues
that were remanded?
7) Assuming, arguendo, that the CSA correctly held that the
District Council’s standard of review of the Planning Board’s
actions is the “arbitrary, capricious, discriminatory or illegal”
standard, then whether the CSA erred by reinstating the
Planning Board’s recommendations as to Zimmer’s
applications, instead of remanding for the District Council to
apply the correct standard of review?
III. JUDICIAL STANDARD OF REVIEW
The questions posed in the District Council’s petition for writ of certiorari may be
condensed into three: (1) did the District Council have broad, original jurisdiction when
considering the Planning Board’s approvals of CDP-1001 and SDP-1001, or did it have
only a more limited, appellate-like jurisdiction; (2) was the District Council’s ultimate
consideration of the Planning Board’s approvals limited to the issues remanded to the
Planning Board; and, (3) assuming the District Council reviewed the Planning Board’s
decision using an improper standard, should the case have been remanded to the District
Council to apply the correct standard?
62
Each of these are legal questions, which we decide without deference to the
judgments of the intermediate appellate court or Circuit Court. Talbot Cnty. v. Miles
Point Prop., LLC, 415 Md. 372, 384, 2 A.3d 344, 351 (2010). “Accordingly, 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.” Elms v. Renewal
by Andersen, 439 Md. 381, 391, 96 A.3d 175, 181 (2014) (quoting Surina, 400 Md. at
681, 929 A.2d at 910). We consider often the expertise of an administrative agency
tasked with implementing statutes when determining whether its decision was premised
on an erroneous conclusion of law. Surina, 400 Md. at 683, 929 A.2d at 911 (quoting
Marzullo v. Kahl, 366 Md. 158, 173, 783 A.2d 169, 178 (2001)). When a case before us
presents solely conclusions of law respecting jurisdiction, however, we do not afford
deference to the legal conclusions of the agency. Miles Point Prop., 415 Md. at 384, 2
A.3d at 351.
IV. THE CDP AND SDP APPROVAL PROCESS IN THE RDA
As noted previously, Prince George’s County’s authority to regulate land use
within the Regional District is delegated by the RDA. E.g., Ray's Used Cars, 398 Md. at
646, 922 A.2d at 503; Brandywine Enterprises, 350 Md. at 342, 711 A.2d at 1347; see
also supra note 30. The respective roles of the District Council and Planning Board in the
CDP and SDP approval process depend on the provisions of the RDA regarding that
process, both express and reasonably implied.
The requirement that a CDP and a SDP must be approved before physical
development may begin in comprehensive design zones is a process by which planning
63
goals may be implemented. The RDA provides expressly for some methods to
accomplish this task, but provides also a method by which additional functions not
mentioned in the RDA may implement planning responsibilities. We look first to the
methods provided for expressly.
A. Zoning Map Amendments
The District Council asserts that CDP-1001 and SDP-1001 partake of the nature of
zoning map amendments because they purport to carry out the approved Basic Plan. With
respect to acting on zoning map amendments, the Planning Board provides only
recommendations to the District Council. See LU §§ 22-208, 20-202(b).62 The conclusion
of the District Council’s syllogism is, therefore, that the Planning Board’s approval of
CDP-1001 and SDP-1001 was merely a recommendation. The argument continues that,
because the Planning Board’s approval was a recommendation, and such a
recommendation in the instance of a zoning process has no inherent legal weight, the
District Council had original authority to decide differently the action to be taken
regarding CDP-1001 and SDP-1001, without any deference owed or presumptive
62
LU § 22-208(a) makes clear that referral to the Planning Board by the District
Council of a pending piecemeal zoning map amendment is to receive advisory input only.
It provides:
Before a map amendment is approved, it shall by submitted to
the appropriate county planning board and to the governing
body of the municipal corporation or governed special taxing
district where the land is located for a recommendation as to
approval, disapproval, or approval with conditions.
LU § 22-208(a).
64
correctness accorded the Planning Board’s determination. The form of the District
Council’s logic tracks, to a point—Planning Board decisions in Prince George’s County
regarding zoning map amendments are mere recommendations to the District Council—
but falters with its first major premise.
CDP-1001 and SDP-1001 were not zoning map amendments, nor do they partake
of the character of such. The act of rezoning the Edwards Property was completed in
2004 when the District Council approved the L-A-C zone and the Basic Plan for the
proposed development by virtue of Zoning Ordinance 10-2004.63 This ordinance was the
legislative act establishing the rezoning. After the legislative act, the property was zoned
L-A-C, subject to the conditions enumerated in Zoning Ordinance 10-2004.64 The
subsequent CDP and SDP steps required were to ensure that the development proposed
for the Edwards Property addressed the planning implementation goals required for the
63
According to Section 3 of Zoning Ordinance 10-2004, the Ordinance was
effective on the date of its enactment and the request for rezoning was “approved.” The
rezoning did not become effective, however, until the conditions were accepted in
writing. Although we could not find in the record before us when the conditions were
accepted, the only reasonable inference is that they were accepted because all documents
relating to CDP-1001 and SDP-1001 state that the Edwards Property was zoned L-A-C
and the conditions of Zoning Ordinance 10-2004 were applicable to the property.
Furthermore, the District Council does not maintain to the contrary.
64
LU § 22-214 authorizes conditional rezoning by the District Council. LU § 22-
214(c) allows the applicant for rezoning “90 days from the date of approval to accept or
reject the land use classification conditionally approved. If the applicant expressly rejects
the amendment as conditionally approved within the 90-day period, the zoning
classification shall revert to its prior status.” The plain language of the statute indicates
that the rezoning is complete upon the initial rezoning, but may revert potentially to the
prior classification upon untimely action by the applicant to accept or rejection of the
conditions.
65
specific comprehensive design zone involved. The CDP and SDP steps are designed as an
increasingly more rigorous path to flesh-out the details and specifics of the proposed
development. See PGCC §§ 27-518, 27-521, 27-527, 27-528.
Neither party here supplies an alternative theory explaining the source of authority
within the RDA for the establishment of the requirements of the CDP and SDP processes.
In an abundance of caution, we will consider other possible options in aid of our task to
discover Legislative intent.
B. Are They Processes to Raise Zoning Questions?
One possibility is that CDPs and SDPs operate as a process to raise zoning
questions. LU § 20-503(a) states that “[b]y zoning law, a district council may provide for:
(1) the issuance of use and occupancy permits; and (2) a process to raise a zoning
question before the preparation of all structural specifications of a building or structure
that may be required for a complete building permit.” Although CDPs and SDPs are not
“use and occupancy” permits, which are treated separately in the PGCC, see PGCC § 27-
253, “a process to raise a zoning question” is broad and could encompass conceivably
actions like CDP and SDP approval.65
65
The pre-2012 codification of the RDA, in Md. Code, Art. 28, § 8-119(b), stated
that “a district council may provide in its zoning regulations for the issuance of use and
occupancy permits and for certificates by means of which zoning questions may be raised
prior to the preparation of all structural specifications of a building as may be required for
a complete building permit.” (emphasis added).
66
LU § 20-503 does not describe expressly the authority of the District Council to
review de novo Planning Board actions on CDPs and SDPs as part of a scheme to raise
and resolve zoning questions. With regard to building permits, the statute provides:
(a) In general. — By zoning law, a district council may
provide for:
(1) the issuance of use and occupancy permits; and
(2) a process[66] to raise a zoning question before the
preparation of all structural specifications of a building or
structure that may be required for a complete building
permit.
(b) Montgomery County. — In Montgomery County, all
building permit applications shall be referred to the
Commission for review and recommendation as to zoning
requirements.
(c) Prince George’s County. — In Prince George's County,
the County Council, by local law, may provide for the referral
of some or all building permit applications to the Commission
for review and recommendation as to zoning requirements.
LU § 20-503.
Despite excluding the Planning Board from making final determinations as to the
issuance of building permits, the RDA does not specify which agency has original
jurisdiction over building permits or other elements of a process to raise zoning
questions. LU § 20-513 grants to the District Council broad authority to impose and
implement building codes, in part through permitting. The District Council is not limited
expressly in its delegation or retention of the original jurisdiction to make these
66
CDPs and SDPs are better described as a process rather than as a “certificate.”
Approval requires significant investigation and consideration, and if a related basic plan,
CDP, and SDP are submitted separately, the result is an iterative series of actions to
achieve the planning goals indicated by PGCC §§ 27-521, 27-528.
67
decisions.67 See LU § 20-513(g) (“A building code adopted under this section shall be
enforced by the officers designated in the county charter or county code.”). 68
Although categorizing CDPs and SDPs as a process contemplated by LU § 20-503
would provide a simple resolution to the present case, that is not a good fit with the
permits and certificates contemplated by the section. The deciding agency wields
narrower discretion regarding the issuance of building permits and use and occupancy
permits. “[T]he issuance of building permits in respect to applications that fully comply
with applicable ordinances and regulations of a particular subdivision is a ministerial
act.” Evans v. Burruss, 401 Md. 586, 605, 933 A.2d 872, 883 (2007). Use and occupancy
permits are concerned primarily with discrete standards as well. See PGGC § 27-257
(stating that the issuance of a use and occupancy permit certifies that the building,
structure, and use meet the requirements of Prince George’s County’s zoning
ordinances); Cowles v. Montgomery Cnty., 123 Md. App. 426, 439, 718 A.2d 678, 685
(1998) (describing the considerations of the Board of Appeals of Montgomery County
regarding a use and occupancy permit). The review of a CDP and SDP, on the other
hand, requires planning expertise and the exercise of a broad range of discretion. See
67
LU § 22-311 requires that appeals from “the grant or refusal of a building permit
or the grant or withholding of an occupancy or use permit or any other administrative
decision based or claimed to be based in whole or in part upon any zoning regulation or
map enacted by the district council of that county” be heard by the board of appeals.
68
The Prince George’s County Charter Article XII, section 17, designates as
responsible for administration and enforcement of building permits the Director of the
Department of Permitting, Inspections, and Enforcement. The Department of Permitting,
Inspections, and Enforcement also issues use and occupancy permits. See, e.g., PGCC §§
4-349, 4-118, 11-202. This Department is an executive-branch agency in the County.
68
supra at Part I.F. In addition, applications for (and issuance of) building permits and use
& occupancy certificates would follow approval of a CDP and SDP in the development
process.
More to the heart of the matter, zoning compliance is not at the heart of the CDP
and SDP approval process. Although compliance with zoning is one element the agency
making the decision must find to approve a CDP or SDP, it must decide also many more
quintessential planning matters. See supra at Part I.F. The focus of the CDP and SDP
process is the development of a community, including the civic beauty, local
infrastructure, and environmental concerns. See §§ PGCC 27-521, 27-27-528. The
purpose of the process is to “result in a development with a better environment than could
be achieved under other regulations[,]” PGCC § 27-521(a)(2), not a development that
complies only with zoning and other land use regulation. Thus, LU § 20-503(a) may be
eliminated as a “magic bullet” for the resolution of the present controversy.
C. Is There an Apt Analogy to be Made to the Detailed Site Plan Process?
In many ways, CDPs and SDPs are similar in the Prince George’s County land
development processes to Detailed Site Plans.69 Detailed Site Plans are required for
69
Actually, CDPs are closer in the level of detail required to be submitted to
Conceptual Site Plans. A SDP is a closer cousin to a Detailed Site Plan. A Conceptual
Site Plan must include:
(1) Location map, north arrow, and scale;
(2) Boundaries of the property, using bearings and distances
(in feet) around the periphery;
(3) Zoning categories of the subject property and all adjacent
properties;
(Continued…)
69
(…continued)
(4) General locations and types of major improvements that
are within fifty (50) feet of the subject property, and a general
description of all land uses on adjacent properties;
(5) Existing topography, at not more than two (2) foot contour
intervals;
(6) An approved Natural Resource Inventory (NRI);
(7) Street names, right-of-way and pavement widths of
existing streets and interchanges within and adjacent to the
site; and
(8) Existing rights-of-way and easements (such as railroad,
utility, water, sewer, access, and storm drainage);
(9) Existing site and environmental features as shown on the
approved NRI;
(10) A Type 1 Tree Conservation Plan prepared in
conformance with Division 2 of Subtitle 25 and the
Woodland and Wildlife Habitat Conservation Technical
Manual or a Standard Letter of Exemption;
(11) Proposed system of internal streets, including right-of-
way widths;
(12) Proposed lot lines and the land use proposed for each lot;
(13) General locations of areas of the site where buildings and
parking lots are proposed to be located, and the general
orientation of buildings on individual lots; and
(14) A stormwater concept plan approved or submitted for
review pursuant to Section 4-322 of this Code;
(15) A statement of justification describing how the proposed
design preserves and restores the regulated environmental
features to the fullest extent possible.
PGCC § 27-273(e). A Conceptual Site Plan includes more detail than a Basic Plan in a
floating zone, compare PGCC § 27-273(e), with PGCC § 27-195 (quoted supra note 40),
and its contents overlap significantly with those of CDPs, compare PGCC § 27-273(e),
with PGCC § 27-518(b) (quoted supra note 42). Conceptual Site Plans, however, are not
mentioned expressly in the RDA. Senate Bill 901 of 2011, the act authorizing expressly
and delineating authority to review Detailed Site Plans, was amended to limit its coverage
to only “detailed” site plans (not all site plans generically) the application of the statute.
2011 Md. Laws ch. 90 (indicating that Senate Bill 901 was amended to refer to “detailed
site plans” instead of “site plans”).
(Continued…)
70
“certain types of land development [that] are best regulated by a combination of
development standards and a discretionary review . . . .” PGCC § 27-281. Where
required, Detailed Site Plans generally must be approved before a final plat of
subdivision70 or grading, building, or use of occupancy permits may be approved or
issued. PGCC § 27-270 (specifying order of approvals); see also PGCC § 27-281.01
(stating generally the circumstances under which a Detailed Site Plan must be approved
before permits are issued). The general purposes of Detailed Site Plans are:
(A) To provide for development in accordance with the
principles for the orderly, planned, efficient and economical
development contained in the General Plan, Master Plan, or
other approved plan;
(B) To help fulfill the purposes of the zone in which the land
is located;
(C) To provide for development in accordance with the site
design guidelines established in this Division; and
(D) To provide approval procedures that are easy to
understand and consistent for all types of Detailed Site Plans.
PGCC § 27-281(b)(2). These are planning considerations, like those underlying the
process for the approval of CDPs and SDPs. The required content of a Detailed Site Plan
is most similar to that of an SDP. Compare PGCC § 27-282 (indicating the content
(…continued)
The CDP and SDP are steps in a unitary process. The present case does not require
us to determine whether Conceptual Site Plans, as provided for in the PGCC, are part of
the Detailed Site Plan review process, when both are required in a specific instance.
70
The final plat of subdivision may be approved before a Detailed Site Plan, if the
Planning Board’s technical staff determines that the site plan approval will not affect
final plat approval. See PGCC § 27-270.
71
required in a Detailed Site Plan),71 with PGCC § 27-527 (quoted supra note 44)
(indicating the content required in an SDP). In a generic sense, CDPs and SDPs are
glorified site plans.72
71
Except where modified specifically, see PGCC §§ 27-281(f), 27-286(a), a
Detailed Site Plan must include:
(1) Location map, north arrow, and scale;
(2) Boundaries of the property, using bearings and distances
(in feet); and either the subdivision lot and block, or liber and
folio numbers;
(3) Zoning categories of the subject property and all adjacent
properties;
(4) Locations and types of major improvements that are
within fifty (50) feet of the subject property and all land uses
on adjacent properties;
(5) An approved Natural Resource Inventory;
(6) Street names, right-of-way and pavement widths of
existing streets and interchanges within and adjacent to the
site;
(7) Existing rights-of-way and easements (such as railroad,
utility, water, sewer, access, and storm drainage);
(8) Existing site and environmental features as shown on an
approved NRI;
(9) A Type 2 Tree Conservation Plan prepared in
conformance with Division 2 of Subtitle 25 and The
Woodland and Wildlife Habitat Conservation Technical
Manual or a Standard Letter of Exemption;
(10) A statement of justification describing how the proposed
design preserves and restores the regulated environmental
features to the fullest extent possible;
(11) An approved stormwater management concept plan;
(12) Proposed system of internal streets including right-of-
way widths;
(13) Proposed lot lines and the dimensions (including
bearings and distances, in feet) and the area of each lot;
(14) Exact location and size of all buildings, structures,
sidewalks, paved areas, parking lots (including striping) and
(Continued…)
72
(…continued)
designation of waste collection storage areas and the use of
all buildings, structures, and land;
(15) Proposed grading, using one (1) or two (2) foot contour
intervals, and any spot elevations that are necessary to
describe high and low points, steps, retaining wall heights,
and swales;
(16) A landscape plan prepared in accordance with the
provisions of the Landscape Manual showing the exact
location and description of all plants and other landscaping
materials, including size (at time of planting), spacing,
botanical and common names (including description of any
plants that are not typical of the species), and planting
method;
(17) Exact location, size, type, and layout of all recreation
facilities;
(18) Exact location and type of such accessory facilities as
paths, walks, walls, fences (including widths or height, as
appropriate), entrance features, and gateway signs (in
accordance with Section 27-626 of this Subtitle);
(19) A detailed statement indicating the manner in which any
land intended for public use, but not proposed to be in public
ownership, will be held, owned, and maintained for the
indicated purpose (including any proposed covenants or other
documents);
(20) Description of the physical appearance of proposed
buildings (where specifically required), through the use of
architectural elevations of facades (seen from public areas), or
through other illustrative drawings, photographs, or
renderings deemed appropriate by the Planning Board; and
(21) Any other pertinent information.
PGCC § 27-282(e).
72
An SDP must include “[a] reproducible site plan showing buildings, functional
use areas, circulation, and relationships between them . . . .” PGCC § 27-527(b)(1).
73
The approval process regarding Detailed Design Plans under LU § 25-21073 is
similar to the process the District Council argues applies here to CDPs and SDPs. The
District Council is authorized expressly to “review a final decision of the county planning
board to approve or disapprove a detailed site plan.” LU § 25-210(a). Parties of record
before the District Council may appeal to the District Council a decision of the Planning
Board, or the District Council may review the decisions on its initiative. LU § 25-210(a).
The District Council’s determination after review is “a final decision.” LU § 25-210(d).
LU § 25-210 does not prescribe, however, the standard of review by which the
District Council considers decisions of the Planning Board (nor did Art. 28, § 8-129)
regarding Detailed Site Plans. The District Council’s review results in a “final decision,”
according to LU § 25-210(d), but LU § 25-210(a) labels also the decision of the Planning
Board as “a final decision.”74
Despite their similarities, key differences exist between the CDP and SDP process
and the Detailed Site Plan process. A Detailed Site Plan is required to demonstrate that its
design “represents a reasonable alternative for satisfying the site design guidelines,
without requiring unreasonable costs and without detracting substantially from the utility
of the proposed development for its intended use.” PGCC § 27-285(a)(1). It is a method
of moderating design guidelines so as to allow for greater variety of development, while
73
LU § 25-210 applies only to Prince George’s County, as did its prior
codification, Art. 28, § 8-129.
74
It is noteworthy that, unlike with respect to zoning map amendments, the RDA
does not refer (either as contained in the Land Use Article or Article 28) to Planning
Board determinations regarding Detailed Site Plans as “recommendations.”
74
still achieving the goals of the guidelines. The CDP and SDP process, in contrast, is a
broader implementation of planning considerations, aimed at producing “a better
environment than could be achieved under other regulations . . . .” PGCC § 27-521(a)(2).
In the final analysis, CDPs and SDPs are not Detailed Site Plans by another name.
The PGCC’s treatment is determinative because the CDP and SDP process and the
Detailed Site Plan process were in existence when the Legislature enacted Senate Bill
901 of 2011, which was codified as Art. 28, § 8-129 and re-codified in LU § 25-210.75
The intent of the Legislature was to regulate Detailed Site Plans as that term was used in
Prince George’s County in 2011. If the Legislature intended CDPs and SDPs to be
regulated similarly and under the same statute, we must assume that it would have done
so expressly.
D. Enforcement of Conditional Zoning
As noted earlier, the RDA has authorized since 1968 Prince George’s County to
engage in conditional rezoning. See Art. 28., § 8-104(e)(1) (re-codified as LU § 22-
214).76 The RDA provides also for the District Council to “adopt local laws necessary to
75
Senate Bill 901 was introduced and enacted in 2011. 2011 Md. Laws ch. 90. In
1990, the earliest year for which relevant Prince George’s County legislative history
materials are available readily, County Bill 84 of that year amended portions of the
PGCC relating to Detailed Site Plans and CDPs and SDPs as distinct processes.
76
LU § 22-214(a) provides:
In general.—In approving any zoning map amendment, the
district council may consider and adopt any reasonable
requirements, safeguards, and conditions that:
(Continued…)
75
provide adequate notice, public hearings, and enforcement procedures for the
implementation [of such authority.]” LU § 22-214. Although the RDA provides expressly
for the District Council to adopt the local laws to implement conditional zoning, it is
silent regarding the District Council’s authority to review the actions of an agency to
which is delegated execution of the enforcement procedures the Council creates. See LU
§ 22-214.
Conditional zoning, when used to impose requirements related to design, layout,
siting, appearance, and landscaping (as opposed to the uses of the land) is related closely
to planning.77 See supra at Part I.C.4. The majority of the conditions applied to the
approval of the L-A-C zone and the Basic Plan for the Edwards Property involved
planning considerations. Eleven of the conditions on the property were related to traffic
impact alleviation, accommodation of mass transit, and the procurement of such. Eight
concerned design, architecture, or landscaping. Others required certain streetscape
infrastructure, efforts at crime reduction, woodland conservation, storm-water
management, and the inclusion of civic groups in the design process. Only two conditions
involved solely the commercial land uses to be developed on the property, which limited
(…continued)
(1) may be necessary to protect the surrounding properties
from adverse effects that might accrue from the zoning
map amendment; or
(2) would further enhance the coordinated, harmonious,
and systematic development of the regional district.
77
LU § 22-214(a)(2) allows for the conditions applied to the rezoning to include
planning considerations such as encouraging “the coordinated, harmonious, and
systematic development . . . .”
76
commercial development to 40,000 square feet and required the developer to make its
“best efforts” to include a restaurant as an ancillary tenant on the property.
The CDP and SDP processes may be used as a tool to realize the planning goals of
conditional zoning and to guide the design of the proposed development, especially when
the conditions refer to matters that must be addressed coincidentally through the
legislative requirements of the CDP and SDP processes. It appears that CDP-1001 and
SDP-1001 were used as such with regard to the Edwards Property. Most of the
justifications offered by the District Council for denying CDP-1001 and SDP-1001
involved perceived failures to address adequately conditions imposed on the Edwards
Property during the rezoning. See supra note 58.
Were it used only to consider and implement the conditions imposed on the
piecemeal rezoning, perhaps the CDP and SDP review and approval processes could be
seen as extensions of the District Council’s “enforcement procedures for the
implementation of” its conditional zoning, as provided for by LU § 22-214(e). Guiding
development to comply with conditional zoning requirements could be termed
“enforcement,”78 and the CDP and SDP approval processes could be termed a
78
At the time of the re-codification of Art. 28, § 8-104(e) as LU § 22-214, Black’s
Law Dictionary defined “enforcement” as “[t]he act or process of compelling compliance
with a law, mandate, command, decree, or agreement.” Enforcement, Black’s Law
Dictionary (9th ed. 2009); see also Enforce, Black’s Law Dictionary (9th ed. 2009)
(defining “enforce” as “[t]o give force or effect to (a law, etc.)”).
77
“procedure.”79 Under the PGCC, however, the CDP and SDP processes do much more
than implement conditional zoning. It implements planning considerations to achieve a
better development than would otherwise be achievable. See PGCC § 27-521(a).
The CDP and SDP processes would be necessary even if the District Council,
upon approving a piecemeal rezoning, attached no conditions on a rezoning. The
developer would need still to satisfy the legislative findings set out in PGGC § 27-521 for
the CDP and PGCC § 27-528 for the SDP.
CDP-1001 and SDP-1001 provide useful illustration of how the CDP and SDP
processes extend more proportionately to matters outside the potential reach of
conditional zoning. The District Council justified its denial of CDP-1001 and SDP-1001,
in part, on the failure to consider adequately a community center. None of the conditions
or express requirements of the PGCC require a community center in every development
of L-A-C zoned property, but the District Council recognized correctly that the CDP and
SDP processes involve more than implementing static zoning requirements and the
conditions imposed on the property’s rezoning, or achieving uniformity throughout the
district. It implements the planning purposes of the comprehensive design zone at issue.
E. Assignment of Other Functions
LU § 20-207 provides a method by which functions that are not assigned
otherwise in the RDA may be implemented in the Regional District and by which local
79
At the time of the re-codification of Art. 28, § 8-104(e) as LU § 22-214, Black’s
Law Dictionary defined “procedure” as “[a] specific method or course of action.”
Procedure, Black’s Law Dictionary (9th ed. 2009).
78
governmental body. According to the statute, “functions not specifically allocated in this
subtitle shall be assigned to the Commission or to one or both of the county planning
boards, as needed.” LU § 20-207(a). Because no provision of the RDA deals expressly
with CDPs or SDPs, and the similar or related land use actions that are detailed expressly
by the RDA do not perform identical or sufficiently similar functions as the CDP and
SDP approval processes, LU § 20-207 is a source of authority in the RDA by which a
role in the CDP and SDP approval processes may be seen as delegated to the Planning
Board.80, 81
LU § 20-207 imposes two requirements on the allocation of “additional
functions.” First, the assignments must be approved by the District Council and by the
MNCPPC. LU § 22-207(b)(1). The District Council has provided its approval, as
demonstrated by PGCC §§ 27-522 and 27-528, which authorize initial consideration by
the Planning Board.82 The MNCPPC appears to have accepted the assignment, as the
80
LU § 20-207 provides authority also for the assignment to the Planning Board of
any function, other than those provided for expressly by the RDA (e.g., recommendations
regarding zoning map amendments according to LU § 22-208).
81
The RDA authorizes implicitly the creation of processes like the CDP and SDP
approval processes in LU § 22-104, which allows for the creation of zones, including
presumably zones that, like comprehensive design zones in Prince George’s County,
allow for implementation of planning in a direct way. The structure of the RDA suggests
further that original jurisdiction to implement such a scheme lies with the Planning
Board. But cf. infra at Part V.
82
In County Bill 76 of 1996, the District Council amended PGCC § 27-132(f)(1)
purporting to give itself original jurisdiction over appeals from the Zoning Hearing
Examiner and the Planning Board, according to the language of the ordinance. The
District Council had assigned previously the initial consideration of CDPs and SDPs to
(Continued…)
79
Planning Board considers, in practice, CDPs and SDPs.83 Assignment to the Planning
Board of additional functions must also “carry out the policy that local or intracounty
planning functions should be performed by the county planning boards.” LU § 20-
207(b)(2). Performance by the Planning Board of a plan implementation process carries
out undoubtedly that policy.
V. ORIGINAL AUTHORITY TO APPROVE OR DENY CDPS AND SDPS
As we described supra at Part I.E, the RDA grants to the Planning Board and to
the District Council certain powers. LU § 20-202(b)(i) provides that the county planning
boards have “exclusive jurisdiction” over “local functions,” but does not detail each of
the local functions within each jurisdiction.84, 85
These functions may include any local
(…continued)
the Planning Board. The purpose of CB-76-1996, however, was not to revoke its
delegation of initial consideration to the Planning Board, but rather to “clarify[] that all
appeals to the District Council are an exercise of original jurisdiction.” The District
Council’s intention was to set its jurisdiction vis-à-vis that of the Planning Board. We
shall comment more on this later.
83
Neither party argues that the Planning Board is not authorized to consider the
approval of CDPs and SDPs in some manner.
84
In full, LU § 20-202(b) provides:
Exclusive jurisdiction. — (1) A county planning board has
exclusive jurisdiction over:
(i) Local functions, including:
1. the administration of subdivision regulations;
2. the preparation and adoption of recommendations to the
district council with respect to zoning map amendments;
and
3. the assignment of street names and house numbers in the
regional district; and
(Continued…)
80
(…continued)
(ii) mandatory referrals made in accordance with Subtitle 3,
Part I of this title by the County Board of Education, a
municipal corporation or special taxing district, or a
publically owned or privately owned public utility.
The provision of “including” makes clear that the list was not exhaustive. The prior
codification, Art. 28, § 7-111(a), stated that “[t]he local functions exclusively within the
jurisdiction of the respective planning boards include, but are not limited to,” the same
functions. (emphasis added).
85
The language granting the planning boards’ exclusive jurisdiction over local
functions was enacted by Chapter 780 of the Laws of Maryland of 1959. The context of
the Act indicates that the jurisdiction of the planning boards was to be exclusive of the
jurisdiction of the district councils, as well as exclusive of the Commission as a bi-county
body.
Chapter 780 altered significantly the relationship between the Commission and the
district councils. Before Chapter 780, the Commission was the primary land use actor
within the Regional District. See 1943 Md. Laws ch. 992. The Commission created the
plans, was authorized to acquire land and issue bonds, had final approval power over
zoning, collaborated with its federal counterpart for the Washington, D.C., metropolitan
area, and enacted and administered subdivision regulations. See 1943 Md. Laws ch. 992.
The district councils enacted the zoning ordinances in their respective counties (subject to
approval of the Commission) and were empowered to issue building permits and other
building regulations. 1943 Md. Laws ch. 992.
Chapter 780 expanded the authority to regulate land use within the Regional
District and delegated locally that authority. In particular, the act created the planning
boards as distinct entities and gave primary zoning authority to the district councils. Prior
to the 1959 act, the district councils could only enact a zoning regulation or make a
change to the official zoning map if such regulation or change was consistent with the
Commission’s plan or if the Commission approved the change. See 1943 Md. Laws 992.
According to § 78 of Chapter 780, the Commission provided merely a recommendation
regarding a district council’s changes to its zoning laws or zoning map. The planning
boards were entirely new. Along with the creation of the planning boards, Chapter 780
enacted the language which is now codified in LU § 20-207, allowing for assignment to
the planning boards of additional local functions that were not otherwise provided for by
the RDA. 1959 Md. Laws ch. 780, at § 66.
(Continued…)
81
matter related to planning, zoning, subdivision, or assignment of street names and house
numbers. See LU § 20-202(a).86 The functions delegated to the county planning boards
pursuant to LU § 20-207 are among the unlisted local functions over which the planning
boards have exclusive jurisdiction. The Legislature did not itemize expressly or
exhaustively each such intended function, for apparent good reason.
(…continued)
The structure of the local delegation of land use authority effected by Chapter 780
is the same as is currently codified in the Land Use Article. Primary zoning authority was
delegated to the District Council. Some express local functions were delegated to the
planning boards, as was a method for assigning additional local functions as the desire
arose. Because the functions delegated under the act were not (and additional assigned
functions would not be presumably) zoning qua zoning, the Legislature’s intention was
likely that exclusive original jurisdiction over these functions would also rest with the
planning boards and not the district councils. We are not aware of any surviving
indication of legislative intent contrary to the general structure of Chapter 780.
86
LU § 20-202(a) provides:
In general. — (1) Subject to paragraph (2) of this subsection,
a county planning board:
(i) is responsible for planning, subdivision, and zoning
functions that are primarily local in scope; and
(ii) shall exercise, within the county planning boards
jurisdiction, the following powers:
1. planning
2. zoning
3. subdivision
4. assignment of street names and house numbers; and
5. any related matter.
(2) The functions under paragraph (1) of this subsection do
not include the regional planning functions of the
Commission relating to or affecting the regional district as a
planning unit.
Functions are placed into a planning board’s jurisdiction through express provisions of
the RDA, or through assignment pursuant to LU § 20-207.
82
The RDA makes particular provision for the local functions that the Legislature
did not intend to be within the planning boards’ exclusive jurisdiction. LU § 20-503(c)
authorizes the District Council to refer for advice only some or all building permits to the
Maryland-National Capital Park & Planning Commission for review and
recommendation as to zoning compliance. LU § 22-208 requires referral to the county
planning boards of applications for zoning map amendments for a “recommendation.”
Although unclear on its face as to the standard of review, LU § 25-210 authorizes, in
Prince George’s County, the District Council to “review” the “final decision” of the
Planning Board, and issue a “final decision.”
CDP and SDP approvals were not among the local functions that the Legislature
excepted from the planning boards’ exclusive jurisdiction. Because no alternative
provision was made, the RDA indicates to us that, like other unspecified local planning
functions, the Planning Board is invested with exclusive original jurisdiction over the
determination of CDPs and SDPs,87 subject to appellate review by the District Council.
For the authority of the Planning Board to be “exclusive” or “original” with
respect to the CDP and SDP approval processes, the Planning Board must be the de novo
decision-maker regarding the merits of a CDP or an SDP. The District Council, if
87
Some evidence of this may be inferred also from the handling of Senate Bill 564
in the 2015 legislative session. Senate Bill 564, as introduced originally, proposed to
provide the District Council with original jurisdiction in its review of the decisions of the
Planning Board. The language that would have granted the District Council original
jurisdiction, however, was removed by amendment before passage. The Bill was signed
by the Governor on 12 May 2015, without the language giving the District Council
authority to review de novo the decisions of the Planning Board. 2015 Md. Laws ch. 365.
83
allowed to decide de novo whether a CDP or an SDP should be approved, violates the
division of authority established by the RDA. A provision of the county ordinance, such
as PGCC § 27-132(f), that purports to give the District Council (or any other body) the
authority to decide, de novo, a local function related to planning, zoning, subdivision, or
the assignment of street names and house numbers, is invalid. The District Council may
not arrogate to itself original jurisdiction where the RDA places that responsibility
elsewhere. Only the General Assembly, through amendment of the RDA, may
accomplish that objective.
The PGCC purports to direct the District Council to engage in this prohibited de
novo review. PGCC § 27-528(d), which governs the review by the District Council of
Planning Board decisions regarding a CDP, requires the District Council to “make the
same findings which are required to be made by the Planning Board” before approving
the CDP. PGCC § 27-528.01 governs the District Council’s review of SDP decisions,
requiring the same procedures that are required in reviewing a CDP, including
presumably that the District Council must make the same findings that were required to
be made by the Planning Board. PGCC § 27-132(f) eliminates any doubt as to whether
the District Council’s range of discretion was desired to be substantively the same as that
of the Planning Board, when considering the same issues. According to PGCC § 27-
84
132(f), “[i]n deciding an appeal to the District Council, or Council election to review a
decision, the Council shall exercise original jurisdiction.”88
To the extent that the provisions of the PGCC purport to give the District Council
the ability to consider de novo the merits of Planning Board decisions regarding CDPs
and SDPs, such provisions are invalid. Because, according to PGCC § 27-106, the
provisions are severable, they are still enforceable to the extent that they do not conflict
with the original jurisdiction of the Planning Board under the RDA.89
VI. STANDARD BY WHICH THE DISTRICT COUNCIL MAY
REVIEW PLANNING BOARD DECISIONS
The parties agree that the District Council has authority to exercise some level of
review of the Planning Board’s decisions regarding approval of CDPs and SDPs. 90 That
88
The District Council does not claim that PGCC § 27-132(f) would supersede the
RDA to the extent they conflict. Rather, according to the Bill Summary of Council Bill
(“CB”) 76-1996, which enacted the section in question, this provision was to “clarify
what has always been assumed and has historically been the [District] Council’s practice
regarding jurisdiction of the [District] Council when hearing appeals.” CB-76-1996, 1996
Leg. Sess. (Prince George’s County Council 1996). We interpret the RDA otherwise. The
custom of the District Council cannot trump the text and purpose of a statute. See
Dutcher, 365 Md. at 427, 780 A.2d at 1154 (citing Smith v. Higinbothom, 187 Md. 115,
132–33, 48 A.2d 754, 763 (1946)).
89
We have no doubt that, if the General Assembly disagrees with our reasoning as
to the interpretation of the RDA, it will consider what it may have intended otherwise in
the course of the next or a following legislative session.
90
Our decision in County Council of Prince George’s County v. Dutcher, supra,
injects some question as to the ability of the District Council to review decisions of the
Planning Board where not authorized explicitly by the RDA. In Dutcher, we held that the
RDA, by its silence on the matter, did not authorize an appeal to the District Council of a
Planning Board decision regarding a non-cluster preliminary plan of subdivision. 365
Md. at 425, 780 A.2d at 1152. The RDA provided for only appeals to the Circuit Court of
(Continued…)
85
authority would derive implicitly from the legislative powers granted to the District
Council in the RDA.
Pursuant to the RDA, the district councils are authorized sometimes to establish
procedures by which decisions are made, even though the review of content of the
decision is outside their purview.91 The MNCPPC, along with the constituent planning
boards, are responsible for developing plans, but, under the RDA, the district councils
establish the procedures through which the plans are developed, adopted, and applied.
See LU § 21-201(a) (“This subtitle is intended to vest control over planning procedures in
the district councils of Montgomery County and Prince George’s County, to the extent
that control is not inconsistent with this division.”). Although delegation to the Planning
Board of enforcement procedures to implement the District Council’s conditional zoning
authority would fall also under LU § 20-207, and hence be exclusively within the original
jurisdiction of the Planning Board, the RDA provides specifically for the District Council
to establish procedures in that regard. LU § 22-214(e).
(…continued)
final actions. We decline to expand the scope of our review here, however, and will
assume, arguendo, that the District Council is authorized to consider appeals from the
Planning Board’s action.
91
The district councils are given also authority to establish procedures where they
have authority to make the underlying decision. For example, the district councils may
determine the procedure for: (1) the issuance of building permits, LU § 20-503; (2) the
consideration and execution of development rights and responsibilities agreements; (3) an
agricultural easement plan, LU § 25-605; and, (4) the Planning Board recommendation
on a zoning map amendment, LU § 22-208.
86
It does not violate the RDA for the District Council to establish procedures and
processes by which the Planning Board approves or denies CDPs and SDPs. Establishing
procedures to guide the consideration of administrative action is a legislative function,
which the RDA grants to the district councils in most instances. Further, the ability to
create and modify procedures may be inherent in the assignment of additional functions
to the Planning Board.
Through its ability to establish procedure, the District Council may carve-out for
itself a role in the CDP and SDP approval process by requiring that, upon appeal to the
District Council or upon its election to hear a matter, the case be considered by the
District Council before a decision may become final. If the District Council agrees with
the Planning Board or remands for further consideration the CDP or SDP, it does not
interfere with the original jurisdiction afforded to the Planning Board. The effect of those
actions, although not inconsequential necessarily, is only procedural.
When the District Council reverses the Planning Board’s determination regarding
the approval of a CDP or SDP, however, the District Council risks interfering with the
jurisdiction committed to the Planning Board. A Planning Board decision is vulnerable if
it is not authorized by law, is not supported by substantial evidence of record, or is
arbitrary or capricious. When the standard of administrative appellate review used by the
District Council mimics the standard of review that would be employed by the courts for
the review of the same agency action, it is not interfering with the jurisdiction of the
Planning Board. Employing a less deferential standard of review, however, would
impinge on the original jurisdiction granted to the Planning Board by the RDA.
87
Judicial review of administrative agency action based on factual findings, and the
application of law to those factual findings, is “limited to determining if 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 based on an erroneous
conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel for Baltimore Cnty.,
336 Md. 569, 577, 650 A.2d 226, 230 (1994). The reviewing court may not substitute its
judgment for that of the administrative agency. United Parcel Serv., 336 Md. at 576-77,
650 A.2d at 230. Rather, the court must affirm the agency decision if there is sufficient
evidence such that “a reasoning mind reasonably could have reached the factual
conclusion the agency reached.” Consumer Prot. Div. v. Morgan, 387 Md. 125, 160, 874
A.2d 919, 939 (2005) (quoting Christopher v. Dept. of Health, 381 Md. 188, 199, 849
A.2d 46, 52 (2004)) (internal quotation marks omitted).
Agency decisions receive an even more deferential review regarding matters that
are committed to the agency’s discretion and expertise. In such situations, courts may
only reverse an agency decision if it is “arbitrary and capricious.” Spencer v. Maryland
State Bd. of Pharmacy, 380 Md. 515, 529-30, 846 A.2d 341, 349 (2004). “Logically, the
courts owe a higher level of deference to functions specifically committed to the agency's
discretion than they do to an agency's legal conclusions or factual findings.” Spencer, 380
Md. at 529, 846 A.2d at 349.
88
The District Council, by applying properly these same standards to its review of
Planning Board actions on CDPs and SDPs, would not encroach on the Planning Board’s
original and exclusive jurisdiction afforded by the RDA.92
Courts’ limited review of the decisions of administrative agencies is grounded
largely on Article 8 of the Declaration of Rights of the Constitution of Maryland, which
mandates the separation of powers.93 As a result, courts are “without authority to interfere
with any (proper) exercise of the legislative prerogative or with the lawful exercise of
administrative authority or discretion.” Dep't of Natural Res. v. Linchester Sand &
Gravel Corp., 274 Md. 211, 225, 334 A.2d 514, 524 (1975). Courts may not engage in an
“independent original estimate of or decision on the evidence.” Linchester Sand &
Gravel, 274 Md. at 225, 334 A.2d at 523. Applied properly, reviewing the decision of an
administrative agency under the standards described supra, a court does not encroach
upon the powers of the Legislature as implemented by an administrative agency.
Linchester Sand & Gravel, 274 Md. at 225, 334 A.2d at 523-24.
92
Absent one of the specified events triggering District Council review, a Planning
Board decision would be the final action regarding the approval of a CDP and/or SDP
and thereby become reviewable only by the Circuit Court. See Montgomery Pres., Inc. v.
Montgomery Cnty. Planning Bd. of Maryland-Nat'l Capital Park & Planning Comm'n,
424 Md. 367, 377, 36 A.3d 419, 424 (2012) (“We have recognized that in some contexts,
a Planning Board's decision can be regarded as final.”). If such were the case, an
aggrieved party could turn to the Circuit Court to challenge the Planning Board’s
decision.
93
Article 8 of the Declaration of Rights requires “[t]hat the Legislative, Executive
and Judicial powers of Government ought to be forever separate and distinct from each
other; and no person exercising the functions of one of said Departments shall assume or
discharge the duties of any other.”
89
Although separation of powers principles do not apply to the relationship between
the District Council and the Planning Board, the same format seems appropriate to
explain the treatment explained in this opinion. The courts and the Legislature derive
their authority largely from the Constitution of Maryland, which divides the powers
granted thereunder among them and the Executive Branch. The District Council and
Planning Board derive their land use authority within the Regional District from the
RDA, which divides the powers granted thereunder between them and other local
agencies. As the courts are prohibited by the Declaration of Rights from usurping the
legislative prerogative implemented through administrative agencies, the District Council
is prohibited by the RDA from usurping the exclusive and original authority of the
Planning Board. The Courts are not able to reach a different conclusion on the evidence
when reviewing the decisions of an administrative agency. The District Council may not
do so with regard to Planning Board decisions on CDPs and SDPs. If the standards of
review applied by courts reviewing administrative agencies do not interfere with the
substance of the Legislature’s authority implemented by such administrative agencies, the
District Council applying properly the same standards would not interfere with the
substance of the Planning Board’s authority.
The difference between the District Council’s review of the Planning Board
decisions here and the courts’ review of administrative agency decisions is that the courts
are granted explicitly the judicial power. Md. Const. Art. IV. The District Council is not
given explicitly authority by the RDA to review decisions generally within the original
jurisdiction of the Planning Board.
90
VII. THE DISTRICT COUNCIL’S AUTHORITY TO CONSIDER IN ITS
REVIEW ISSUES OTHER THAN THOSE REMANDED
The District Council argues that, during its ultimate review of and action in this
case, it was not limited to considering only the issues remanded on 7 November 2011 to
the Planning Board. According to the District Council, nothing in the RDA or the County
Code limits the District Council to considering on election a Planning Board decision on
remand only the remand issues. Further, the District Council claims that such a limitation
would: (1) make the ability to remand nugatory; and, (2) requiring the District Council to
make a final determination regarding any non-remand issues before it gathered all the
information would be an absurd result. We disagree.
A. Plain Language of PGCC § 27-523
The District Council is correct that the RDA does not limit explicitly the review of
the District Council to issues the Council may remand to the Planning Board. As
explained supra at Part VI, the RDA provides generally for the District Council to
establish procedures, which would include remanding a CDP and SDP to the Planning
Board.
In our view, the PGCC limits the District Council’s review to the remand issues.
PGCC § 27-523 governs review of CDPs and SDPs before the District Council. 94 The
ordinance states:
94
PGCC § 27-523 sets out the procedures applicable to District Council review of
CDPs. PGCC § 27-528.01(c) states that, in regard to District Council review of SDPs, the
District Council “shall render a final decision in accordance with [PGCC §] 27-523
within thirty (30) days after the close of the hearing.”
91
The District Council shall schedule a public hearing on the
appeal or review. Testimony at the hearing shall be limited to
the facts and information contained within the record made at
the hearing before the Planning Board. In addition, the
Council may take judicial notice of any evidence contained in
the record of any earlier phase of the approval process
relating to all or a portion of the same property, including the
approval of a preliminary plat of subdivision.
PGCC § 27-523(c).
The Court of Special Appeals held that “the hearing before the Planning Board”
indicated by PGCC § 27-523(c) included only the hearing on remand, at which the
Planning Board’s consideration was limited by the District Council to the issues
remanded to the Board. Zimmer Dev., 217 Md. App. at 330, 92 A.3d at 613. According to
the appellate panel, the District Council’s scope of review was constrained to the facts
and information presented at the Planning Board’s hearing immediately prior to the
District Council’s final review. Id. We agree with this construction.
The plain language of the second sentence of PGCC § 27-523(c) informs the
conclusion. The word “before” may be used generally as a preposition, conjunction, or
adverb, but in any context it indicates either that something occurred “in front of” or
“during the period of time preceding” some other event or action. The only reasonable
understanding of “before” in PGCC § 27-523(c) is as a preposition. The use of “before”
indicates that the “hearing” to which the provision refers is the hearing that was “in front
of” the Planning Board. This hearing is referred to using the definite article (i.e., “the”),
indicating that this “hearing” is a particular one, and is identifiable. Where a remand
occurs, there is necessarily more than one hearing, the initial one and one on remand. For
92
the “hearing” in question to be identifiable, it must be the ultimate or final Planning
Board hearing and action which the District Council elected to review. If the District
Council remanded previously the case to the Planning Board, “the facts and information
contained within the record made at the hearing,” to which the “testimony” at the District
Council hearing is limited, would be related only to the remand issues.
The third sentence of PGCC § 27-523(c) indicates that, although the “testimony”
at the District Council hearing is limited to addressing the evidence of the hearing
immediately preceding, additional evidence may be considered. The District Council may
take “judicial notice” of “any evidence” of record from “any earlier phase of the approval
process” relating to the same property. PGCC § 27-523. This provision does not provide,
however, the District Council with the authority to reconsider evidence from the pre-
remand hearing before the Planning Board.
The Planning Board’s decision to approve or deny an SDP or CDP prior to a
remand by the District Council is not an “earlier phase of the approval process” for
purposes of PGCC § 27-523(c). The definition of “phase” most apposite to the ordinance
is “a distinguishable part in a course, development, or cycle.” 95 See Phase, Merriam
95
The other ways in which “phase” may be understood in particular contexts
include: (1) “a particular appearance or state in a regularly recurring cycle of changes”;
(2) “an aspect or part (as of a problem) under consideration”; (3) “the point or stage in a
period of uniform circular motion, harmonic motion, or the periodic changes of any
magnitude varying according to a simple harmonic law to which the rotation, oscillation,
or variation has advanced from its standard position or assumed instant of starting”; (4)
“a homogeneous, physically distinct, and mechanically separable portion of matter
present in a nonhomogeneous physicochemical system”; and, (5) “an individual or
(Continued…)
93
Webster’s Collegiate Dictionary (10th ed. 1993). The ordinance provides “the approval
of a preliminary plat of subdivision” as an example of the “earlier phases” from which
the District Council may take judicial notice of record evidence. The other “earlier
phase[s]” would be the prior distinct steps for the approval of a development on the
property, such as the record created during the zoning map amendment process. The
Planning Board hearing occurring before a District Council remand for further
consideration would be within the same “phase,” and therefore, not accessible for
consideration by the District Council after remand.
As we held supra at Part VI, the District Council’s reversal of a Planning Board
decision may be sustained by the courts, if at all, only when the Planning Board’s
decision is not supported by substantial evidence or is arbitrary, capricious, or illegal. The
District Council’s ability to “deny” CDP and SDP applications, such as it is, does not
stem from its inherent authority to review de novo Planning Board decisions on the
merits, but rather is cobbled together from the District Council’s authority under the RDA
to establish procedures and a corresponding appellate standard of review of courts. The
District Council has the inherent authority to require that a CDP or SDP approval or dis-
approval come before the District Council for the Council to perform a limited appellate
review. It has authority to remand CDP and SDP applications to the Planning Board for
(…continued)
subgroup distinguishably different in appearance or behavior from the norm of the group
to which it belongs[.]” Phase, Merriam Webster’s Collegiate Dictionary (10th ed. 1993).
94
additional consideration. It has no inherent authority, however, to decide de novo CDP or
SDP applications on the merits.
The ability to remand and shape the contours of reconsideration by the Planning
Board is precisely the kind of authority that the RDA contemplated for the District
Council. The RDA contemplates that the district councils will exercise legislative powers
and administrative authority where granted. Establishing processes and directing the
consideration of administrative agencies are legislative tasks. By remanding the approval
or dis-approval of a CDP or an SDP to the Planning Board, the District Council alerts the
Planning Board to considerations that it may have overlooked or evaluated incompletely
or incorrectly earlier.
Even were we to conclude that the District Council has implicit inherent authority
under the RDA to decide de novo the legal sufficiency of Planning Board decisions
regarding SDPs and CDPs, it has limited itself through the plain language of PGCC § 27-
523(c). The ordinance requires the District Council, upon deciding to remand a case to
the Planning Board, to remand any concerns for which the District Council might later
deny the application. This prevents the District Council from withholding from remand
potential issues which could have been addressed satisfactorily on remand. It would
border on arbitrariness and capriciousness for the District Council, if it believed in its
initial review that the Planning Board may have been in error on multiple scores, to
remand some, but not all, of the potential problematic issues, only later to reverse the
95
decision of the Planning Board for an “error” that was not remanded for consideration.96
PGCC § 27-523(c) prevents that sort of action.
B. Judicial Review of the District Council’s Consideration of Non-Remand Issues
The District Council asks us to determine whether the Court of Special Appeals
“nullified the District Council’s statutory right to ‘remand’ a case to the Planning Board
for further information, and the District Council’s obligation to issue a ‘final’ decision
prior to judicial review, by holding that the District Council is limited after remand to
only those issues that were remanded.” Zimmer Dev., 440 Md. 114, 99 A.3d 778. The
question is limited to an interpretation of PGCC § 27-523(c). We have rendered an
interpretation of that County Code provision earlier. Enough said.
VIII. THE CIRCUIT COURT’S REVERSAL OF THE DISTRICT COUNCIL’S DECISION.
The District Council argues that the Circuit Court erred by reversing the District
Council’s decision to deny CDP-1001 and SDP-1001 and ordering reinstatement of the
Planning Boards decision(s). By the same token, the Court of Special Appeals erred in
96
We do not suggest that in the present case the District Council remanded only
certain of the potential problems to the Planning Board arbitrarily, capriciously, or with
the intent to “game” the process. The District Council has maintained consistently that it
believed that it had original jurisdiction to approve or deny CDP-1001 and SDP-1001. If
such were the case, remanding only certain issues to the Planning Board would likely be
appropriate, even if there existed in the record other issues supporting denial. The District
Council was mistaken, however, regarding its legal authority to review de novo the
decision of the Planning Council.
Of course, if the District Council, on initial consideration and applying the
appellate standards of review, believes that the Planning Board’s action lacks substantial
evidence to support the fact-findings, or is arbitrary, capricious, or otherwise illegal, it
need not remand a case at all, but may deny the application and take its chances on
subsequent judicial review, if sought by an aggrieved party.
96
affirming that action. According to the District Council, when an administrative agency
applies the incorrect standard of review, the appropriate remedy is to remand the matter
to the agency so that it may apply the correct standard.
That is the general rule. When an administrative function remains to be exercised
at the end of the day, we hold generally that a court must remand the case to the
administrative agency. See, e.g., Maryland Bd. of Pub. Works v. K. Hovnanian’s Four
Seasons at Kent Island, LLC, 425 Md. 482, 522, 42 A.3d 40, 63 (2012) (“The error
committed by the Board was one of law—applying the wrong standard in formulating its
decision. The appropriate remedy in such a situation is to vacate the decision and remand
for further proceedings designed to correct the error.”); Bereano v. State Ethics Comm’n,
403 Md. 716, 756, 944 A.2d 538, 561 (2008) (“As it is not properly our role to determine
whether the agency's decision, absent this unavailable justification, otherwise would have
been the same, reversal shall be the result and a remand for further proceedings before the
Commission.”). The court need not remand, however, if the remand would be futile.
O'Donnell v. Bassler, 289 Md. 501, 510, 425 A.2d 1003, 1008 (1981); see also Green v.
Church of Jesus Christ of Latter-Day Saints, 430 Md. 119, 143, 59 A.3d 1001, 1015
(2013) (ordering the case be remanded to the Tax Court, but directing the Tax Court’s
decision on remand); Anne Arundel Cnty. v. Halle Dev., Inc., 408 Md. 539, 557, 971
A.2d 214, 225 (2009) (“The County's appeal to Frankel [v. Bd. of Regents of Univ. of
Maryland Sys., 361 Md. 298, 301, 761 A.2d 324, 325 (2000)] and general administrative
law principles in arguing for a remand presumes, erroneously, that there is an
administrative procedure and function that remains to be performed in this case.”).
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In the present case, both of the reviewing courts before us found that the Planning
Board’s decision was supported by substantial evidence. The District Council does not
dispute that conclusion. For the reasons stated supra, because the District Council had no
original jurisdiction to reverse the Planning Board’s approval of CDP-1001 and SDP-
1001, and such a reversal may only be affirmed by the courts if the Planning Board’s
decision was illegal, lacked substantial evidence, or was arbitrary or capricious, the
District Council was required, applying the correct standard of review articulated by each
court reviewing this case, to approve the decision of the Planning Board on this record.
Therefore, there remains no administrative function to be performed. Remanding the case
to the District Council would be futile because there was only one action the District
Council could take.
IX. CONCLUSIONS
A. CDP and SDP Processes Going Forward
Our opinion, though voluminous, requires only a modest change in thinking by the
District Council in the CDP and SDP processes in comprehensive design zones in Prince
George’s County. The submission and consideration of a CDP and SDP by the Planning
Board is unchanged. The required contents of CDP and SDP submissions remains the
same. To approve a CDP or SDP, the Planning Board must make the findings required
for approval codified in PGCC § 27-521 (for a CDP) and in PGCC § 27-528 (for an
SDP). The District Council, through conditional zoning, may guide the consideration of
the Planning Board in these regards and require consideration of matters and resultant
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findings necessary to protect surrounding properties or enhance coordinated, harmonious,
and systematic development. LU § 22-214.
Our opinion recasts how the District Council must treat the authority of the
Planning Board. The Planning Board has original jurisdiction to decide whether to
approve or deny CDPs and SDPs. Pursuant to the division of the authority within the
RDA, local matters that are related to planning, zoning, subdivision, or assignment of
street names and house numbers are, unless otherwise specified, among the additional
local functions over which the county planning boards have original jurisdiction. See LU
§ 20-202(a). Among the additional local functions over which the county planning boards
have original jurisdiction are those delegated to them pursuant to LU § 20-207.
Once the Planning Board makes a decision regarding a CDP and SDP, such
decision may be appealed to or called up by the District Council for appellate review.97
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Senate Bill 564 of 2015 was enacted, in part, “[for] the purpose of . . . providing
that, in Prince George’s County, a person may make a request to the district council for
the review of a certain decision of a zoning hearing examiner or the planning board only
under certain circumstances.” 2015 Md. Laws ch. 365. The Bill added Section 25-212 to
the Land Use article, which provides:
In Prince George’s County, a person may make a request to
the district council for the review of a decision of the zoning
hearing examiner or the planning board only if:
(1) the person is an aggrieved person that appeared at the
hearing before the zoning hearing examiner or planning
board in person, by an attorney, or in writing; and
(2) the review is expressly authorized under this division.
2015 Md. Laws ch. 365. The only other provision of the RDA providing expressly for
review of a Planning Board decision by the District Council is LU § 25-210, which
(Continued…)
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The District Council may remand the case for further consideration by the Planning
Board, may affirm the Planning Board’s decision, or may reverse the Planning Board’s
decision. If the District Council remands the Planning Board’s approval or denial of the
CDP or SDP and reviews it again subsequently, it may only reverse the Planning Board’s
decision on remand as to the issues that were remanded to the Planning Board for
consideration or reconsideration. PGCC § 27-523(c).
The District Council may reverse an approval by the Planning Board only if the
decision was one the Planning Board was not legally authorized to make, is not supported
by substantial evidence of record, is arbitrary or capricious, or otherwise illegal. By
reviewing the Planning Board’s decision using the same standards that a court uses when
reviewing an administrative agency action, the District Council will not interfere with the
Planning Board’s original jurisdiction over the CDP and SDP decision-making processes.
B. Our Holdings
Although some amplification as to reasoning was thought desirable by us, we, the
Court of Special Appeals, and the Circuit Court arrive at the same judgment in this case.
We hold that: (1) the District Council possessed only appellate jurisdiction to review the
Planning Board’s decisions regarding CDP-1001 and SDP-1001, and was authorized to
reverse the decision of the Planning Board only if the Board’s decision was not supported
by substantial evidence, was arbitrary, capricious, or illegal otherwise; (2) the District
(…continued)
authorizes District Council review of Detailed Site Plans. The act takes effect on 1
October 2015.
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Council was not authorized, after electing to review on its own initiative the Planning
Board’s decisions regarding CDP-1001 and SDP-1001 for a second time, to consider
issues other than those remanded to the Planning Board on 7 November 2011; and (3) the
Circuit Court’s order reversing the decision of the District Council denying CDP-1001
and SDP-1001 and ordering the District Council to affirm the decision of the Planning
Board was appropriate. Therefore, we affirm the judgment of the Court of Special
Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
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Prince George's Co. v. Zimmer Dev.
Combined Opinion