HARRELL, J.
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:
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
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...."
Maryland, like its sister states, delegates to local political subdivisions significant authority to regulate land use.
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 v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799 (1946)). Parcels
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, 657-58, 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 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,"
Maryland's first local zoning enabling statute was enacted by the General Assembly in 1927 authorizing zoning in Baltimore City and other municipalities with more than 10,000 inhabitants.
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 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.
The scope of review by Maryland courts of the legislative decisions embodied in original zonings and comprehensive rezonings is quite narrow.
Courts are somewhat less deferential in their review of quasi-judicial piecemeal rezoning.
Early zoning ordinances sought to separate incompatible land uses through a method that would become known as "Euclidean" zoning.
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,
A school of thought evolved that the stability and predictability of Euclidian zoning amounted sometimes to undesirable rigidity. See People's Counsel for Baltimore 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,
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.
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 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.
Planning considerations are normally accorded greater weight in assessing piecemeal rezoning applications for floating zones compared to those for Euclidian 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.
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,
Conditional zoning, where authorized, may be applied to both Euclidian and floating zones as part of the grant of a piecemeal rezoning.
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.
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 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,
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).
Counties and municipal corporations are required generally to adopt, amend, and execute a "comprehensive plan." LU §§ 1-405, 3-101.
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, 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).
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, adequacy of utilities and
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.
The RDA is the essential source of the delegation by the State of zoning
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
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 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.
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."
As noted earlier, the planning board for a county consists of the commissioners of the MNCPPC appointed from that county.
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:
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
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:
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.
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 a Specific Design Plan ("SDP").
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.
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.
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 Manual, or the applicable design guidelines and regulations; (2) demonstrate that the development will be served adequately by existing or programmed 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.
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.
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'
Time passed. On 14 March 2011, Zimmer filed concurrently with the Commission
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 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.
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.
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
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 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 Counsel
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 the 2004 zoning map amendment,
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 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
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 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. at 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:
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?
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.
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
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).
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.
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.
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.
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:
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
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 PGCC § 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 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.
In many ways, CDPs and SDPs are similar in the Prince George's County land development processes to Detailed Site Plans.
The approval process regarding Detailed Design Plans under LU § 25-210
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."
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 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.
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).
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.
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,"
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
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.
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 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.
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.
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.
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,
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 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.
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.
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.
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.
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.
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,
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.
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.
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.
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
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.
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.
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.
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
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 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."
As we held supra at Part VI, the District Council's reversal of a Planning
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 disapproval 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 decision of the Planning Board for an "error" that was not remanded for consideration.
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
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 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.").
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.
Our opinion, though voluminous, requires only a modest change in thinking
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.
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.
Although some amplification as to reasoning was thought desirable by us, we, the Court of Special Appeals, and the Circuit
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, 14 S.Ct. 499, 38 L.Ed. 385, (1894). Like the language of its primordial grant, such power is not absolute. As we have noted,
Goldman v. Crowther, 147 Md. 282, 293, 128 A. 50, 54 (1925).
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").
372 Md. at 535, 814 A.2d at 481.
372 Md. at 538-39, 814 A.2d at 483 (citations omitted) (footnotes omitted).
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. at 266 n. 4, 734 A.2d at 231 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)).
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.
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.
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 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.
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 at 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).
LU § 20-301; see also LU § 20-302(b) (requiring referrals from a county to be made to that county's planning board).
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."
285 Md. at 246, 401 A.2d at 672 (quoting 1 E.C. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978)).
PGCC § 27-494.
The Planning Board's approval of SDP-1001 was subject to the following additional conditions:
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.
LU § 22-208(a).
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").
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.
PGCC § 27-282(e).
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).
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.
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.
Functions are placed into a planning board's jurisdiction through express provisions of the RDA, or through assignment pursuant to LU § 20-207.
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.
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 authorizes District Council review of Detailed Site Plans. The act takes effect on 1 October 2015.