Grant v. Prince George's Cnty. ( 2019 )

Davona Grant, et al. v. County Council of Prince George’s County Sitting as the District
Council, et. al., No. 75, September Term, 2018. Opinion by Getty, J.
ZONING AND PLANNING—SOURCE AND SCOPE OF POWER
The Court of Appeals held that the County Council of Prince George’s County sitting as
the District Council (“District Council”) was authorized under the Regional District Act
(“RDA”) to delegate to its staff attorney the responsibility of preparing a proposed opinion
and order and written findings of fact.
MUNICIPAL CORPORATIONS—RULES OF PROCEDURE AND CONDUCT OF
BUSINESS OPEN MEETINGS ACT
The Court of Appeals held that Petitioner, Davona Grant, failed to present sufficient
evidence that the District Council violated the Open Meetings Act. The record is devoid
of any evidence that the District Council communicated amongst itself or through its staff
between its two hearings, and, therefore, Grant is unable to rebut the statutory presumption
that the District Council complied with the Act.
ZONING AND PLANNING—SOURCE AND SCOPE OF POWER
The Court of Appeals held that the District Council, through Prince George’s County Code
§ 27-132(f)(1), exercises original jurisdiction over special exception and variance
applications. The RDA bestows upon the District Council wide-ranging authority to
regulate zoning within its district. The RDA does not limit the District Council’s
jurisdiction over zoning cases and does not confer exclusive jurisdiction over such cases
on another entity.
Circuit Court for Prince George’s County
Case No. CAL16-30078
Argued: June 6, 2019
IN THE COURT OF APPEALS
OF MARYLAND
No. 75
September Term, 2018
DAVONA GRANT, et al.
v.
COUNTY COUNCIL OF PRINCE
GEORGE’S COUNTY SITTING AS THE
DISTRICT COUNCIL, et al.
Barbera, C.J.
*Greene,
McDonald,
Watts,
Hotten,
Getty,
Booth,
JJ.
Opinion by Getty, J.
Filed: August 20, 2019
*Greene, J., now retired, participated in the hearing
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
and conference of this case while an active member
2019-08-20
of this Court; after being recalled pursuant to the
14:20-04:00 Maryland Constitution, Article IV, Section 3A, he
also participated in the decision and adoption of this
opinion.
Suzanne C. Johnson, Clerk
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.
Judge Glenn T. Harrell, Jr.
Cty. Council of Prince George’s Cty. v. Zimmer
Dev. Co., 444 Md. 490, 502 (2015).1
In the instant appeal we write another chapter to the mysteries of the zoning powers,
special exceptions and variances authorized by state and local codes for the Prince
George’s County Council sitting as the District Council (“District Council”), so aptly
described in the past by Judge Glenn T. Harrell, Jr. First, we must determine whether the
District Council was authorized to delegate the preparation of its opinion and order to its
staff attorney. The second issue is whether the District Council engaged in an “evasive
device” intended to circumvent the requirements of the Maryland Open Meetings Act.
Third, we must determine whether the District Council exercises original or appellate
jurisdiction when it reviews decisions concerning special exceptions and variances from
the Zoning Hearing Examiner (“ZHE”).
We ultimately hold that the District Council is authorized to delegate to its staff
attorney the preparation of a draft decision and that the District Council rightfully exercises
original jurisdiction when hearing zoning cases from the ZHE. In addition, we conclude
1
For a detailed discussion on the history of land use regulation in Maryland, an exhaustive
review of the differences between zoning and planning, and generally “A Mind-Numbing
Primer” concerning land use regulation within Prince George’s County, see Zimmer Dev.
Co., 444 Md. at 502-534 (2015).
that the Petitioners failed to present sufficient evidence that the District Council violated
the Open Meetings Act.
BACKGROUND
In 2014, Wal-Mart Real Estate Business Trust (“Wal-Mart”) applied to the
Maryland-National Capital Park and Planning Commission (“MNCPPC”) for a special
exception, variance, and an alternative compliance regarding an existing store located in
the Woodyard Crossing Shopping Center in Clinton, Maryland.2 The store was originally
constructed in 2000 as a 134,241 square foot facility. The special exception and variance
applications were made in connection with Wal-Mart’s intended goal of expanding the
store to include an outdoor garden center and grocery store, and to eliminate the existing
automotive servicing facility. The planned expansion would increase the building’s square
footage by 37,393 square feet.
The impetus that drove Wal-Mart to apply for a special exception stems from the
type of commercial zoning in question. The property is located within an area designated
as a Commercial Shopping Center (“CSC”) Zone. See PGCC § 27-454 (describing the
nature of the CSC Zone). Although Wal-Mart’s current and intended future uses are
individually allowed in the CSC Zone, the expansion required a special exception to
combine all of these uses on a single parcel within a CSC Zone. See Prince George’s
County Code (“PGCC”) § 27-461(a)-(b) (outlining the permitted uses of land relative to its
zoning designation).
2
MNCPPC’s development review division reviewed Wal-Mart’s application for a special
exception and variance.
2
Separately, the requirement for Wal-Mart to apply for a variance was not triggered
by its plans to expand the existing store but instead was due to subsequent changes in the
zoning code. When the store was built in 2000, the relevant portions of the PGCC required
a fifty-foot set back from the surrounding properties.3 In 2002, the provision within the
PGCC, i.e. PGCC § 27-348.02(a)(5), was amended to require a 100-foot setback. This left
Wal-Mart in the awkward position where the existing store did not comply with the setback
requirements as amended. Accordingly, the variance application concerns Wal-Mart’s
existing facility and not its proposed expansion.
In addition, the MNCPPC Planning Director had previously approved multiple
alternative compliance applications concerning the Wal-Mart facility that needed to be
amended under the new application. For example, in 1999 the Planning Director approved
an alternative compliance application made by Wal-Mart that provided an alternative
buffering scheme between the Wal-Mart and residentially zoned properties located to its
west.4
In Maryland, traditional land use powers are generally delegated by the State to local
political subdivisions. Zimmer, 444 Md. at 504-05. For Prince George’s County, the State
3
A “setback” requirement, such as that found in PGCC § 27-348.02(a)(5), requires that
other buildings, structures, and off-street parking must be a certain distance from any
adjoining land in a residential zone.
4
The amendment of the 1999 alternative compliance application, requested by Wal-Mart
in the instant case, primarily concerned the store’s surrounding landscaping, parking, and
a perimeter fence. Nonetheless, the alternative compliance applications are ancillary
within the instant appeal and our review focuses on Wal-Mart’s special exception and
variance applications.
3
Regional District Act (“RDA”), authorizes the District Council to adopt, amend and
administer zoning laws within the county. 2012 Md. Code, Land Use (“LU”) § 22-104(a).
The definition of “District Council” however, varies depending on the geographical
delineations of the area concerned. In situations involving zoning actions entirely within
Prince George’s County, the County Council of Prince George’s County sits as the District
Council. LU § 22-101(b).
When acting in its zoning capacity, the District Council acts as an administrative
agency. Cty. Council of Prince George’s Cty. v. Brandywine Enter., Inc., 350 Md. 339,
342 (1998). The instant appeal concerns a challenge to the decision of the District Council
that reversed a decision of the ZHE as described below.
Proceedings Before the Zoning Hearing Examiner (ZHE)
In response to Wal-Mart’s application for a special exception and variance, the
MNCPPC development review division issued a report (“Staff Report”) which
recommended that Wal-Mart’s special exception and variance application be denied but its
alternative compliance request should be approved.5 The Prince George’s County
Planning Board declined to hear the case and instead adopted the Staff Report’s
5
In special exception cases, the MNCPPC’s development review division is required to
compile a report which recommends whether the special exception should be approved or
denied. PGCC §§ 27-311, 27-307. The MNCPPC development review division
determined that Wal-Mart’s variance request had failed to meet two of three criteria: (i)
extraordinary situations or conditions; and (ii) exceptional undue hardship. The Staff
Report indicates that the application for a variance was primarily denied based on the issue
concerning the 100-foot setback requirements. The Staff Report states, “[i]n this case, staff
is particularly concerned with the impact of the proposed use on the residential properties
to the west and the applicant’s request for a variance to the prescribed 100-foot setback.”
4
recommendation,6 as permitted under PGCC § 27-210, and assigned the case to a ZHE to
conduct an evidentiary hearing. The ZHE then held hearings wherein she heard testimony
and accepted evidence from those involved. On May 13, 2016, the ZHE issued its decision.
In its decision, the ZHE found the following: (1) that the existing store does not
comply with the 100-foot setback requirement; (2) that stormwater runoff from the
shopping center in which the Wal-Mart is located floods the neighboring residential
communities; (3) that the area is already subject to significant traffic congestion; and (4)
that the shopping center in which the Wal-Mart is located draws a greater amount of
individuals to the area which, in turn, contributes to an increase in crime throughout the
neighboring area. Therefore, the ZHE denied Wal-Mart’s application for a special
exception and variance. The ZHE’s decision was transmitted to the District Council and
hand-delivered to Rajesh Kumar, Principal Counsel to the District Council.7
Wal-Mart filed exceptions to the ZHE’s decision on June 13, 2016 and requested
that the District Council hear the case. That same day, the District Council elected, by
unanimous vote, to take up the matter and make the final decision concerning Wal-Mart’s
6
Under the RDA, county planning boards consist of appointed commissioners. LU § 20-
201; LU § 20-101(c); The Maryland-National Capital Park and Planning Commission,
Meet the Commissioners, available at: http://www.pgparks.com/826/Meet-the-
Commissioners (https://perma.cc/E23Z-SWNY) (last visited August 19, 2019). The
county planning boards are responsible for administering certain local functions within
their respective counties. See LU § 20-202. Under the PGCC, the Planning Board has the
discretion to decide whether it will hold a hearing. PGCC § 27-210(a). If the Planning
Board decides not to hear a case within fifteen days after publication of the Staff Report,
the Planning Board is deemed to adopt the Staff Report’s recommendation. LU § 27-210.
7
In accordance with the question before this Court, we occasionally refer to Mr. Kumar as
the District Council’s “staff attorney.”
5
special exception and variance applications. Two days later, on June 15, the Clerk of the
District Council sent notices to all parties involved that the District Council had scheduled
oral arguments on July 18. Therefore, all parties on record were provided notice well in
advance that the District Council would be hearing the case with oral arguments on July
18.
Prior to the hearing, as noted earlier, Wal-Mart filed written exceptions to the ZHE’s
decision. In response, Ms. Davona Grant and other citizen protestants (collectively referred
to in this opinion as “Grant”)8 filed a lengthy response in opposition to Wal-Mart’s
exceptions that included “Proposed Findings of Fact and Conclusions of Law” based upon
their position that the ZHE’s decision should be affirmed. According to statements made
by Mr. Kumar at oral argument, he reviewed the record, Wal-Mart’s exceptions, Grant’s
filings including their proposed findings and other materials submitted to the District
Council and began preparing a draft decision in advance of the July 18 hearing.
Proceedings Before the District Council
At the hearing before the District Council on July 18, 2016, testimony was received
from citizens and expert witnesses regarding the special exception and variance. Attorneys
for both sides discussed the proposed expansion and its impact on traffic, architecture,
8
The Petitioners in this case are: Davona Grant, Jackie Foster, Donald Hancock, Larry
Herschell, Frederick Holt, Willie L. Lee, George N. Leftwood, Jr., Wylie D. Powell, Jr.,
Marjorie M. Sproesser, and Jose L. Ventura. Before the ZHE, the record reflects that these
individuals participated in the hearing: Grant, Foster, Hancock, Holt, Lee, Leftwood, and
Sproesser.
6
crime, and other factors. At the end of the hearing, District Council Member Mel Franklin,9
motioned to have Mr. Kumar prepare a proposed opinion and order with written findings
of fact reversing the ZHE’s decision and in support of his motion stated in detail,
This is a challenging case. It is, one, challenging because this is an existing
shopping center. The Walmart in question is not in great condition aesthetically.
And Clinton, in general, is in—is a, you know, as a community, it has challenges
with the quality of its commercial opportunities or commercial options in Clinton.
So there is a big need for investment and redevelopment or reinvestment or
renovation and all of the like in Clinton in particular. And so and all of those things
are important.
Obviously this is the kind of case, because it’s before the District Council, like any
other District Council case, has to be decided on the law. And it is my belief that
this sort of boils down to an existing shopping center that essentially, because of the
dynamics of the existing shopping center, it is creating the legal problems with this
proposed expansion and reinvestment. And so the, in my view, the reasons for the
variance and whether variances, the variance request is reasonable is, in large part,
most of what’s been raised has to do with the difficulties with the existing site. It is
not related to the challenges or problems with the expansion.
I do appreciate what [People’s Zoning Counsel, Stan] Brown or what the opposition
have said about frontage. I do believe that legally we, there is a sound justification
on the frontage issue. And I do want to thank all of the residents who participated
in this process on both sides. Obviously, this is the largest anchor or will be the
largest anchor of what is essentially the largest shopping center in Clinton. So it
certainly has importance in the community. And this shopping center in particular
needs to thrive. It needs to thrive in large part because it is the most significant
commercial presence in Clinton. It is in need of reinvestment. It is in need of
redevelopment. And the hope is that the reinvestment or redevelopment will happen
in Clinton, happen at this shopping center.
With that, I’m going to move that to direct Staff to prepare an Order reversing the
decision of the Zoning Hearing Examiner and prescribing approval with conditions.
9
For clarity, it is important to note that at the time of these proceedings in 2016, Mr.
Franklin was the District Council member from District 9, the District in which the Wal-
Mart store is located. However, Mr. Franklin is currently an at-large member on the
District Council having been elected to the at-large seat in the 2018 General Election.
7
His motion to have the staff attorney prepare a draft order reversing the decision of the
ZHE received a unanimous vote by the District Council.
The following day, July 19, Mr. Kumar presented to the District Council a proposed
fifty-one page order. Initially, the approval was mistakenly titled as being an “Approval
with Conditions.” However, as Mr. Kumar explained to the District Council during the
open meeting, the order was not actually subject to conditions. Mr. Kumar commented,
[j]ust one correction, the Ordinance does not have conditions because the Order
itself addresses the concerns that were raised at Oral Argument and Technical Staff
including architectural renderings that were revised by the Applicant and submitted
into the record, and that can be found on your draft, Page 46. That’s the exhibit that
[Counsel for Grant] referred to during Oral Argument on Monday. This is the actual
renderings that will be done to the site. The entire Walmart is being redone.
In addition, there is not a condition regarding stormwater because [Wal-Mart]
obtained a revised Stormwater Conceptual Plan, which is basically on Page 29 of
the Order. It outlines all of the requirements that the Applicant must comply with
as part of the new development. Regarding buffering, the Applicant obtained
approval from the Planning Director for alternative compliance. There will be
buffering on the site. There is [sic] photographs in the record regarding the fence.
The fence is intact. It is a board-on-board fence with plantings on the residential
side as well as the commercial side.
The proposed order contained findings of fact distinct from those issued by the
ZHE.10 As directed by the District Council, the proposed order approved Wal-Mart’s
application for a special exception and variance. The District Council, continuing in the
open session, then moved to adopt the order which carried by a seven to two vote. There
10
The fact that the District Council engaged in its own factfinding has greater implications
in terms of the third issue before this Court. If the District Council exercises original
jurisdiction in such cases, it is not limited to the factual findings established by the ZHE.
However, if the District Council exercised merely appellate jurisdiction over such cases,
then it would not be permitted to engage in such factfinding and its review would be limited
to facts found by the ZHE.
8
is no evidence that any District Council members met or discussed the application or the
findings of fact during the intervening time period between the July 18 and July 19
hearings.
Judicial Review of the District Council’s Actions
As a result of the District Council’s action, Grant filed a petition for judicial review
on August 11, 2016. The appeal was heard by the Circuit Court for Prince George’s County
on April 20, 2017. The circuit court affirmed the District Council’s decision in an order
and opinion dated June 7, 2017.
In response, Grant filed a notice of appeal in the circuit court and appealed its
decision to the Court of Special Appeals. In addition to the arguments concerning Wal-
Mart’s special exception and variance applications, Grant averred that the District Council
violated the Open Meetings Act based on its conduct between its July 18 and 19 hearings.11
In an unreported decision dated December 3, 2018, the Court of Special Appeals
determined that the District Council applied the wrong legal standard and remanded the
case to the District Council. In addition, the court concluded Grant failed to prove a
violation of the Open Meetings Act occurred.
Thereafter, Grant petitioned this Court for writ of certiorari, which we granted on
March 5, 2019. On appeal, the parties are joined by Amicus Curiae, Barnabas Road
11
There, Grant argued that the District Council held a furtive meeting between its July 18
and 19 hearings in which it deliberated on Wal-Mart’s special exception, variance
application, and the District Council’s proposed order.
9
Associates, LLC, who write in support of Grant’s position. In her petition for a writ of
certiorari, Grant presents three issues:
1. Whether Maryland administrative law authorizes a zoning tribunal to vote to
approve a special exception without deliberating on the factual issues and then
delegate to its staff attorney the authority to make the required factual findings
without informing the staff attorney of the factual basis of the tribunal’s decision.
2. If, as the Court of Special Appeals postulated, the District Council’s staff
attorney prepared a draft opinion and showed it separately to individual members of
the District Council before the July 19 meeting, whether such a process is an
“evasive device” which violates the Open Meeting Act.
3. Whether the District Council erred by exercising original jurisdiction when
it reversed the Zoning Hearing Examiner’s decision.
STANDARD OF REVIEW
In reviewing an administrative agency’s decision regarding a special exception “we
look through the circuit court’s and intermediate appellate court’s decisions, although
applying the same standards of review, and evaluate[ ] the decision of the agency.”
People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 66 (2008) (internal
quotation marks omitted) (citing People’s Counsel for Balt. Cty. v. Surina, 400 Md. 662,
681 (2007)). In such situations, we review the evidence adduced in the courts below to
determine “whether the zoning body’s determination was supported by ‘such evidence as
a reasonable mind might accept as adequate to support a conclusion[.]’” Loyola Coll. in
Md., 406 Md. at 67.
However, we review legal questions or the agency’s conclusions of laws de novo.
Town of Oxford v. Koste, 431 Md. 14, 25 (2013). Because the parties dispute solely the
10
applicability of certain statutory provisions of the RDA, PGCC, and Open Meetings Act.
we review these legal questions de novo.
DISCUSSION
A. The District Council was Authorized to Delegate Preparation of its Proposed
Opinion to its Staff Attorney for its Subsequent Consideration and Adoption.
Grant argues that the procedure undertaken by the District Council in the instant
case stands in opposition to Maryland administrative law. Specifically, she argues that the
District Council failed to make required factual findings, delegated to its staff attorney the
authority to draft its decision and make factual findings, and failed to properly inform its
staff attorney of the relevant factual findings that would support its decision.
Her arguments are primarily based on the limited statutory language that defines the
role of Principal Counsel and technical staff within proceedings before the District Council.
To support her position that Principal Counsel lacks the authority to prepare a draft findings
of fact and decision, she directs the Court to various provisions of the Prince George’s
Charter,12 the RDA, the PGCC and the Zoning Ordinances, which describe the duties of
the Technical Staff, the Planning Board, the ZHE, People’s Zoning Counsel, and the
District Council in the administrative review and application for a special exception. By
contrast, Grant contends that the RDA, the Charter, and the PGCC, including the Zoning
Ordinances, do not establish the position of Principal Counsel.
12
Grant’s reliance on the Charter in this context is misplaced. In Prince George’s Cty. v.
Maryland-National Capital Park and Planning Comm’n, 269 Md. 202 (1973), we held that
Article VII of the Charter has no force and effect within that portion of Prince George’s
County within the Regional District.
11
Grant argues that an administrative agency may only delegate authority to its staff
where the agency’s enabling statute specifically permits such a delegation. To support her
argument, she relies on Pub. Service Comm’n of Md. v. Wilson, 389 Md. 27, 52 (2005). In
Wilson, we were tasked with determining whether the Chairman (“the Chairman”) of the
Public Service Commission (“the Commission”) acted improperly by unilaterally
terminating an employee. Id. at 33-34. In that case, the Court held that the Chairman did
not have the unilateral authority to terminate an employee. Id. at 59.
Grant reads Wilson to endorse the proposition that administrative agencies may only
delegate authority to perform a certain function to its staff if that agency’s enabling statute
authorizes such delegation.13 As mentioned earlier, the District Council’s existence is
attributable to the RDA. Accordingly, the RDA is the enabling statute through which the
District Council draws its powers to establish local zoning law. See Zimmer, 444 Md. at
523-24. Therefore, she contends that based on Wilson, the District Council is only
permitted to delegate to its staff attorney the responsibility of preparing a draft decision if
the RDA authorizes such delegation. However, we find that her arguments misconstrue
our holding in Wilson.
In Wilson, we held only that the Chairman did not have the unilateral authority to
terminate employees because the relevant provisions of the Commission’s enabling statute
13
An enabling statute is a statute that empowers an administrative agency to engage in a
specific administrative function and establishes the outer limits of such an agency’s power.
Dep’t of Econ. and Employment Dev. v. Lilley, 106 Md. App. 744, 759 (1995)
(“administrative agencies derive their power from enabling statutes that govern them.”).
See also Zimmer Dev. Co., 444 Md. at 518 (detailing the role enabling statutes play in
reference to zoning).
12
bestowed that power upon the Commission as a whole. Wilson, 389 Md. at 58-59. This
becomes increasingly evident throughout the Court’s analysis:
Language appears throughout the statute authorizing the Commission to
“hire” or “appoint” all types of employees of the PSC. In contrast, there is
no mention in this statute, nor any other statute we could find, of language
that outlines the Chairman’s authority, independent of the Commission’s, to
“hire” or “appoint” employees of the PSC. Although § 2–108(d) [of the
Public Utilities Companies Article (“PU”)] does not discuss specifically the
authority of the Commission to terminate employees, [PU] § 2–108(d) states
that “all personnel of the Commission are subject to the provisions of the
State Personnel and Pensions Article.” That Article governs the termination
of PSC employees, specifically those employees in the executive and
management services, and those who are special appointments, all of which
“serve[ ] at the pleasure of the employee’s appointing authority” and “may
be terminated from employment for any reason, solely in the discretion of
the appointing authority.” § 11–305. Because [PU] § 2–108(d) constructs
a statutory scheme outlining both the Commission’s explicit authority to
hire and implicit authority to terminate employees of the PSC, we
conclude that the Commission as a whole is the “appointing authority.”
Wilson, 389 Md. 27, 52 (2005) (emphasis added).
Wilson addressed the Chairman’s authority to take final action—the termination of
an employee—where the statute required the Commission as a whole to make final
employment decisions. Clearly, the Wilson Court did not hold that “Maryland law only
authorizes an administrative agency to delegate certain authority to an employee of the
agency if the agency’s enabling statutes authorizes such a delegation” as Grant contends.
Pet. Br. at 10. Instead, the Court held that the head of an administrative body may not take
unilateral action that directly contravenes the express powers granted to that agency “as a
whole” through its enabling statute.
In this case, the District Council did not delegate the final decision-making authority
for granting or denying Wal-Mart’s special exception and variance to Principal Counsel—
13
rather, it delegated the preparation of a draft findings of fact and conclusions of law for the
District Council’s deliberation and consideration. On July 18, the District Council directed
Principal Counsel to prepare a draft for its consideration. On July 19, the District Council
subsequently met and voted to approve the findings of fact and conclusions as set forth in
the document. There was no impermissible delegation of its final decision-making
authority to staff. We find Grant’s reliance on Wilson unpersuasive.
As previously discussed, the RDA is the District Council’s enabling statute. The
RDA bestows upon the District Council the authority to regulate zoning and establish
procedures and provisions regarding zoning hearings. Under the RDA, any decision
concerning a special exception requires a written finding of material facts and conclusions.
LU § 25-204. Under the RDA, LU § 22-206 grants to the District Council the power to
regulate zoning:
(a) A district council may amend its zoning laws, including any maps:
(1) in accordance with procedures established in its zoning laws;
and
(2) after holding an advertised public hearing.
(b) The procedures and zoning laws may include:
(1) procedures limiting the times when amendments may be
adopted;
(2) provisions for hearings and preliminary determinations by an
examiner, a board, or any other unit;
(3) procedures for quorums, number of votes required to enact
amendments, and variations or increases based on factors such as master
plans, recommendations of the hearing examiner, county planning board,
municipal corporation, governed special taxing district, or other body, and
14
petitions of abutting property owners, and the evidentiary value that may be
accorded to any of these factors; and
(4) procedures for hearings, notice, costs, fees, amendment of
applications, recordings, reverter, lapse, and reconsideration de novo of
undeveloped zoning amendments.
LU § 22-206(a)--(b).
Another provision, LU § 22-301 details the District Council’s role within hearings
on special exceptions and variances:
(a)(1) A district council may adopt zoning laws that authorize the board of
appeals, the district council, or an administrative office or agency designated
by the district council to grant special exceptions and variances to the zoning
laws on conditions that are necessary to carry out the purposes of this
division.
(2) Any zoning law adopted under this subsection shall contain appropriate
standards and safeguards to ensure that any special exception or variance that
is granted is consistent with the general purposes and intent of the zoning
laws.
(b) Subject to § 22-309 of this subtitle, an appeal from a decision of an
administrative office or agency designated under this subtitle shall follow the
procedure determined by the district council.
(c) The district council may authorize the board of appeals to interpret zoning
maps or decide questions, such as the location of lot lines or district boundary
lines, as the questions arise in the administration of zoning laws.
LU § 22-301.
As evident, the RDA empowers the District Council to pass zoning laws and grants
broad authority to the District Council. The District Council sits as an administrative
agency when reviewing a zoning matter. Brandywine Enter., 350 Md. at 342 (“The
Regional District Act authorizes the County Council to sit as a district council in zoning
matters, and, when it does so, it is acting as an administrative agency.”). Under the RDA,
15
the District Council is required to make written findings of fact. Not only are the findings
and conclusions required to be in writing, but they must be meaningful, and may not simply
recite the statutory criteria or make boilerplate resolutions. See Bucktail v. Talbot Cty.,
352 Md. 530, 553 (1999). See also Critical Area Comm’n v. Moreland, 418 Md. 111, 134
(2011) (noting that when a Board of Appeals merely states conclusions of law without
pointing to the evidentiary base for those conclusions, such findings are not amenable to
meaningful judicial review and remand is warranted).
After considering the evidence, the District Council must reduce its findings of fact
and conclusions of law to writing. As part of this process, someone must take the initial
step of putting pen to paper and assembling the proposed findings and conclusions of law
for consideration by the District Council. In many instances, the public body charged with
making that decision—whether a legislative body or a board of appeals—requests that its
staff or attorney prepare the initial draft for the collective review and ultimate approval of
the public body as a whole. There is nothing in the RDA, the PGCC or administrative law
generally which prohibits this standard practice.
The RDA grants unto the District Council extensive authority to adopt zoning laws
and procedures concerning special exceptions and variances. LU §§ 22-206, 22-301.
Additionally, the RDA contains no language restricting the District Council from
delegating to its staff attorney the responsibility of preparing a proposed order and the
accompanying draft findings of fact. Moreover, Grant fails to identify any provisions
within the PGCC or the RDA that would prohibit the District Council from delegating to
16
its staff attorney the responsibility of drafting a proposed order for the District Council’s
consideration.
The power to delegate to its staff attorney the ability to draft a proposed order and
findings of fact falls under the umbrella of authority granted unto the District Council under
the RDA. In fact, through the grant of zoning authority under the RDA, the District Council
has established provisions of the PGCC which implicitly enable the District Council to
delegate to its staff attorney the responsibility of preparing a proposed order. In a section
titled “voting and attendance records” of the District Council’s hearing procedures under
the PGCC, the District Council must record a vote concerning “[a]ny District Council
instructions for the preparation of findings of fact and conclusions, or other relative
documents, necessary for use by the Council in taking action.” PGCC § 27-
132(a)(4)(A)(iv). Implicitly, the provision indicates that the District Council may delegate
the preparation of a proposed order, which includes findings of fact, to its staff attorney.
Therefore, under the PGCC, the District Council may permissibly delegate the preparation
of “findings of fact and conclusions, or other relative documents[] necessary” to its staff
attorney. Id.
Confirming our interpretation, the Rules of Procedure for the Prince George’s
County District Council provide that “[t]he final action shall clearly articulate the policy
or the basis in the record for the Council’s action.14 Upon final review of a zoning
14
The Rules of Procedure for the Prince George’s County District Council are distinct from
the District Council’s hearing procedures enacted through the PGCC. See PGCC § 27-
132; Rules of Procedure for the Prince George’s County District Council (2018) available
17
application or case, the District Council shall adopt a written document that embodies a
final decision.” Rule 7, Rules of Procedure for the Prince George’s County District
Council (2018). Accordingly, under the procedural rules governing the District Council’s
activities, the staff attorney’s proposed order and the accompanying findings of fact were
adopted by the District Council upon obtaining the requisite number of votes in an open
meeting. At that point, the proposed order itself and the included findings of facts became
that of the District Council and not of its staff attorney.
Grant argues that “[n]othing in the RDA, the County Code, or the Zoning Ordinance
suggests that the District Council has the authority to delegate to the Principal Counsel the
Authority to make his own factual findings in a special exception case.” Pet. Br. 11.
Grant’s argument is based upon the faulty premise that the District Council delegated its
decision-making authority to its staff attorney and failed to deliberate. While the District
Council certainly could have undertaken more deliberation at its meetings on July 18 and
July 19, we do not find that the District Council abdicated its decision-making authority to
Principal Counsel. Based upon the record, we find that on July 18, the District Council
voted and gave tentative approval of the special exception and variance application and
asked Principal Counsel to prepare an appropriate order for Council’s review and
consideration. Principal Counsel prepared the draft findings of fact and conclusions of
law. The following day, the District Council met and voted to approve the findings of fact
at: https://pgccouncil.us/DocumentCenter/View/3890/District-Council-Rules-of-
Procedure (https://perma.cc/7J3W-9L8X) (last visited Aug. 19, 2019).
18
and conclusions of law. The record contains sufficient evidence of the District Council’s
deliberation for us to uphold its decision in this case.
Based upon the record in this case, although we do not find that the District Council
improperly delegated its decision-making authority to Principal Counsel, we caution that
more deliberation by the public body—rather than the very bare minimum—is always
encouraged. When a public body acting in a quasi-judicial capacity undertakes the most
minimal skeletal procedural acts when adopting the findings of fact and conclusions of law,
the public body should not be surprised by public skepticism or criticism, or a legal
challenge of its decision.
B. Grant Presents Insufficient Evidence that the District Council Violated the Open
Meetings Act.
Grant’s Contentions Related to the Open Meetings Act
Grant alleges that the District Council violated the Open Meetings Act during the
deliberation process in connection with its approval of Wal-Mart’s special exception and
variance application. Grant asks the Court to find a violation of the Open Meetings Act
based upon the following sequence of events:
On July 18, at an open meeting, the District Council gave tentative approval
for the special exception and variance and asked Principal Counsel to prepare
an appropriate order for the Council’s review and consideration; and
On July 19, again at an open meeting, the District Council voted to approve
a 51-page Findings of Fact and Conclusions of Law granting the special
exception and variance.
During her appeal to the Court of Special Appeals, Grant asked the intermediate
appellate court to “infer[] from the conduct of the two public meetings that a secret,
19
undisclosed third meeting occurred between the meeting of July 18 and the meeting of July
19.” Grant v. Cty. Council of Prince George’s Cty., No. 809, Sept. Term 2017, 2018 WL
6329825, at *4 (Md. Ct. Spec. App. Dec. 3, 2018). In rejecting Grant’s hypothesis, the
Court of Special Appeals stated that “[t]here is, however, no evidence in the record that
suggests that such a meeting occurred, and Grant did not introduce any testimony before
the circuit court to support her contentions.” Grant at *7. In theory, the Court of Special
Appeals presented an alternative hypothesis to Grant’s surreptitious meeting theory:
It could have happened as Grant suggests. More likely, however, the staff
prepared a draft opinion and showed it separately to individual members of
the District Council before the July 19 meeting. If that’s what happened, a
quorum never met, no public business was conducted, and the Open
Meetings Act was not triggered.
Grant, at *7-8. On appeal to this Court, Grant contends that the scenario described by the
Court of Special Appeals assumes that Mr. Kumar was able to write the fifty-one page draft
Findings of Fact and Conclusions of Law (“Findings of Fact”) and meet with each District
Council member during the night hours after the conclusion of the July 18 proceeding and
before the Council reconvened on July 19. Grant asserts that such a scenario is unrealistic.
Grant further contends that if such a scenario in fact occurred, it violated the Open Meetings
Act’s requirement that the public be allowed to observe the agency’s deliberation. Grant
posits that such conduct would constitute a “walking quorum”—a term sometimes used by
other states interpreting their state statutory open meetings act requirements—and asks this
Court to hold that where a staff attorney meets individually with one or more members, but
less than a quorum of the public body, such action violates the Open Meetings Act.
20
In response to Grant’s assertions, the District Council and Wal-Mart argue that
Grant has failed to present any evidence that a violation of the Open Meetings Act occurred.
The District Council and Wal-Mart argue that Grant is now advancing a new argument
based upon an alternative hypothetical posed by the Court of Special Appeals in its opinion
which they contend is dicta.
The Open Meetings Act
The first Maryland comprehensive legislation to require open meetings of public
bodies was enacted in 1977. Cmty. and Labor United for Balt. Charter Comm.
(“C.L.U.B.”) v. Balt. City Bd. of Elections, 377 Md. 183, 193 (2003). The Open Meetings
Act is codified at 2014 Md. Code General Provisions Article (“GP”) §§ 3-101 through 3-
501.15 The legislative purpose and policy of the Open Meetings Act is clearly stated in GP
§ 3-102(a), that:
15
Maryland’s first comprehensive Open Meetings Act was codified at sections 7 through
15 of Article 76A of the Maryland Code. During Code Revision, Article 76A was re-
codified as §§ 10-501 through 10-512 of the State Government Article (“SG”) by Chapter
284 of the Acts of 1984 without any substantive changes. See City of Balt. Dev. Corp. v.
Carmel Realty Assocs., 395 Md. 299, 321 (2006). The Act was again re-codified as §§ 3-
101 through 3-501 of the General Provisions Article (“GP”) by Chapter 94 of the Acts of
2014, without substantive changes. As we have commented in the past, “[c]ode revision
is a periodic process by which statutory law is re-organized and restated with the goal of
making it more accessible and understandable” and is “presumed to make clear the existing
meaning of the statutory law rather than to change its meaning.” Smith v. Wakefield, LP,
462 Md. 713, 726 (2019). Maryland Code Revision began in 1970 as a long-term project
to create a modern comprehensive code when Governor Marvin Mandel appointed the
Commission to Revise the Annotated Code. This formal revision of the statutory law for
the General Assembly was coordinated by the Department of Legislative Services. Code
Revision was completed in 2016 with the enactment by the General Assembly of the
Alcoholic Beverages Article.
21
[i]t is essential to the maintenance of a democratic society that, except in
special and appropriate circumstances:
(1) public business be conducted openly and publicly; and
(2) The public be allowed to observe:
(i) The performance of public officials; and
(ii) The deliberations and decisions that the making of
public policy involves.
Thus, the policy of the Open Meetings Act, which has remained unchanged since its initial
enactment in 1977, is that “citizens be allowed to observe . . . the deliberations and
decisions that the making of public policy involves.” C.L.U.B., 377 Md. at 193.
In New Carrollton v. Rogers, 287 Md. 56, 72 (1980), Chief Judge Robert C. Murphy
expanded upon this policy behind the Open Meetings Act as follows:
While the Act does not afford the public any right to participate in the
meetings, it does assure the public right to observe the deliberative process
and the making of decisions by the public body at open meetings. In this
regard, it is clear that the Act applies, not only to final decisions made by the
public body exercising legislative functions at public meeting, but as well to
all deliberations which precede the actual legislative act or decision. . . . . It
is, therefore the deliberative and decision-making process in its entirety
which must be conducted in meetings open to the public since every step of
the process, including the final decision itself, constitutes the consideration
or transaction of public business.
To implement the legislative purpose of the Open Meetings Act, the General
Assembly defined the public entities that are subject to the Act, identified the governmental
functions that are covered by the Act (as well as certain functions which are exempt), set
forth statutorily prescribed exemptions to the Act which permit the public body to convene
22
in closed session, outlined minimum standards for giving notice, and prescribed certain
minimum requirements for disclosing in the minutes the matters discussed and actions
taken in both open session and in closed session.
The Open Meetings Act states that “[e]xcept as otherwise expressly provided in this
subtitle, a public body shall meet in open session”16 which the public is invited to attend.
16
The Open Meetings Act broadly defines “public body” as an entity that:
(i) consists of at least two individuals; and
(ii) is created by:
1. The Maryland Constitution;
2. A State statute;
3. A county or municipal charter;
4. A memorandum of understanding or a master agreement to which a
majority of the county boards of education and the State Department of
Education are signatories;
5. an ordinance;
6. a rule, resolution or bylaw;
7. an executive order of the Governor; or
8. an executive order of the chief executive authority of a political
subdivision of the state.
GP § 3-101(h)(1). The Open Meetings Act provides that the following entities are also
subsumed within the definition:
(i) Any multimember board, commission or committee appointed by the
Governor or the chief executive authority of a political subdivision of
the State, or appointed by an official who is subject to the policy
direction of the Governor or chief executive authority of the political
subdivision, if the entity includes in its membership at least two
individuals not employed by the State or the political subdivision;
(ii) Any multimember board, commission or committee that:
1. is appointed by:
A. an entity in the Executive Branch of the State government, the
members of which are appointed by the Governor, and that
otherwise meets the definition of a public body under this
subsection; or
23
GP §§ 3-301, 3-303.17 The Act further defines the term “meet” to mean “to convene a
quorum of a public body to consider or to transact business.” GP § 3-101(g). “Quorum” is
defined under the Act as: “(1) a majority of the members of a public body; or (2) the number
of members that the law requires.” GP § 3-101(k).
The Open Meetings Act does not apply to all functions of a public body. It does not
apply to a public body carrying out an administrative function, a judicial function, or a
quasi-judicial function as those terms are defined by the Act. GP §§ 3-101, 3-103(a)(1).
The Act likewise does not apply to a “chance encounter, a social gathering, or any other
occasion that is not intended to circumvent this title.” GP § 3-103(a)(2).
Notwithstanding the exceptions described above, the Open Meetings Act applies “to
a public body when it is meeting to consider: (1) granting a license or permit; or (2) a
special exception, variance, conditional use, or zoning classification, the enforcement of
any zoning law or regulation, or any other zoning matter.” GP § 3-103(b). 18 In summary,
B. an official who is subject to the policy direction of an entity described
in item A of this item; and
2. includes in its membership at least two individuals who are not
members of the appointing entity or employed by the State; and
(iii) The Maryland School for the Blind.
GP § 3-3010(h)(2).
17
Section 3-305 sets forth the statutory exceptions where a public body is permitted to
meet in closed session or adjourn an open session to a closed session.
18
The language set forth in Section 3-103(b) (formerly SG § 10-503(b)) was added during
the 1991 Legislative Session to clarify that licensing, permitting and zoning matters were
expressly subject to the Act, regardless of the what “function” the public body is
performing. The language was added in response to concerns that public bodies were
broadly construing the “quasi-judicial function” exemption to apply when the body
24
the Open Meetings Act will apply when the entity meets the definition of a “public body”,
the members of the public body are “meeting” as defined by the Act, and the public body
is performing one of the functions subject to the Act.
When the Open Meetings Act applies to a meeting of a public body, the Act requires
that the public has notice and an opportunity to observe the meeting. Specifically, before
a public body meets either in an open session or closed meeting, it must provide the public
with “reasonable advance notice of the session.” GP § 3-302(a). The Act also prescribes
basic parameters for the notice, as well as the manner in which such notice may be given.
GP § 3-302(b), (c). In addition to the public notice requirements, any public body that
intends to meet in an open session must make available to the public an agenda which
details the items to be discussed within the session and indicates whether “the public body
expects to close any portion of the meeting[.]” GP § 3-302.1(a). After such a meeting, the
public body is required to prepare and publish minutes detailing items considered, actions
taken, and votes recorded by the public body.19
undertook deliberations on matters related to licenses, permits and other zoning matters.
For a comprehensive discussion of the attempts to revise this language during the 1990 and
1991 legislative sessions to ensure that consideration of zoning matters would be conducted
in open session, see Wesley Chapel v. Balt., 347 Md. 125, 137-147 (1997) (holding that the
Act applied to hearings held by the county board of appeals on a development plan).
19
A public body is not required to prepare minutes if the public body met in an open session
that was audio or visually recorded and such multimedia is accessible to the public. GP §
3-306(b)(2)(i). In addition, the Act does not require public bodies to create and publicize
minutes in situations where “the public body votes on legislation and the individual votes
taken by each member of the public body who participates in the voting are posted
promptly on the Internet.” GP § 3-306(b)(2)(ii).
25
Section 3-401 of the Act, entitled “Enforcement,” authorizes an aggrieved party to
file a petition in the circuit court alleging Open Meetings Act violations related to the public
body’s failure to comply with five provisions of the Act: 20 (1) § 3-301 (which requires
generally that a public body meet in open session unless the Act expressly permits
otherwise); (2) § 3-302 (which requires public bodies to give notice of their meeting); (3)
§ 3-303 (which states the public’s right to attend open meetings); (4) § 3-305 (which
regulates closed sessions); and (5) § 3-306(c) (which prescribes the minimum requirements
for minutes). See GP § 3-401(b).
In any action brought under the enforcement provisions of the Act: “(1) it is
presumed that the public body did not violate any provision of . . . [the Act]; and (2) the
complainant has the burden of proving the violation.” GP § 3-401(c). In an action asserting
20
In addition to providing a statutory process for judicial enforcement in the circuit court,
the Act also establishes the Open Meetings Compliance Board (“Compliance Board,”)
consisting of a three-member volunteer board appointed by the Governor, the duties of
which include, inter alia, issuing advisory opinions in response to complaints that a public
body has violated the Act. See GP §§ 3-201, et seq. The statute describes the informal
complaint process by which: (1) a complainant submits a complaint to the Compliance
Board; (2) the Compliance Board forwards the complaint to the public body; (3) the public
body provides a written response within 30 days after receipt of the complaint; and (4) after
reviewing the matter, the Compliance Board issues a written opinion. GP §§ 3-205 – 207.
If the Compliance Board determines that a violation has occurred, the Act requires that the
public body announce the violation at its next open meeting, orally summarize the opinion,
and that a majority of the members of the public body must sign the opinion and return a
signed copy to the Compliance Board. GP § 3-211. The opinions of the Compliance Board
are advisory, and a complainant is not required to file a complaint with the Compliance
Board prior to filing an enforcement action in the circuit court. GP §§ 3-209, 3-401(e).
The Office of the Attorney General provides the Compliance Board with administrative
staff and counsel. GP §§ 3-203, 3-204(d). Office of the Attorney General, Open Meetings
Act Manual (9th ed., rev. June 2017), 7-10 (“Open Meetings Act Manual”).
26
a violation of the specific provisions identified above, the aggrieved party may request the
circuit court to determine whether those provisions apply to the circumstances, and to
require the public body to comply with them, or, subject to certain conditions set forth in
GP § 3-401(d)(4), to “void the action of the public body.”
Proceedings Below
In this matter, Grant filed a petition for judicial review in the circuit court, requesting
it to review the District Council’s Findings of Fact dated July 19, 2016. Rather than filing
an enforcement action under GP § 3-401(b) of the Open Meetings Act, 21 Grant argued as
21
The procedure Grant chose to pursue her Open Meetings Act contention cannot escape
our comment. First, we recognize that the enforcement procedures for alleging an Open
Meetings Act violation outlined in GP § 3-401(b) are not exclusive. See GP § 3-401(a)(3)
(stating that “[t]his section does not affect or prevent the use of any other available
remedies.”); see also, Handley v. Ocean Downs, LLC, 151 Md. App. 615, 636-637 (2003)
(holding that the “other available remedies” language in the Act “evidences the
legislature’s intent that a petition under [GP § 3-401] is not the exclusive remedy for an
Open Meetings Act violation and that alleged violations may be raised in the course of a
petition for judicial review of an agency’s decision.”). However, we should caution that
attempting to establish an Open Meetings Act violation solely through an administrative
appeal pursuant to Maryland Rule 7-201 et seq. is potentially fraught with procedural
difficulties for the petitioner given that: (1) the public body is presumed to have complied
with the Act and that the burden is on the petitioner to prove the violation; and (2) an
administrative appeal of a zoning action is an appeal on the record in which no new
evidence is typically permitted. See Maryland Rule 7-208(c) (“[a]dditional evidence in
support of or against the agency’s decision is not allowed unless permitted by law”).
Although the Administrative Procedure Act (“APA”) authorizes a “party to offer testimony
on alleged irregularities in procedure before the [agency] that do not appear on the record”
(see SG § 10-222(g)(2)), the APA does not apply to judicial review of zoning decisions
such as the actions of the District Council in this case. See SG § 10-202. If a petitioner
files both a petition for judicial review and an enforcement action under GP § 3-401(d), the
Act gives the circuit court the express authority to consolidate those proceedings into one
action which would provide the statutory basis for accepting testimony and evidence on
the Open Meetings Act component of the claim. See GP § 3-401(d). It is also worth noting
that under the enforcement provisions of the Open Meetings Act, the court has the statutory
authority to assess reasonable counsel fees and other litigation expenses to the prevailing
27
part of her administrative appeal that the District Council violated the Open Meetings Act
because the council members failed to deliberate in public. Grant presented no evidence
to support her allegation of an Open Meetings Act violation and instead simply presented
arguments of counsel.
In its written opinion upholding the decision of the District Council, the circuit court
held that there was no evidence in the record that the District Council had violated the Open
Meetings Act, stating as follows:
There is nothing in the records that suggests that the meetings of the District
Council were closed off to the public. The public was given proper notice in
regard [] to when the meetings and deliberation would occur. There are no
findings in the record that illustrate that the District Council willfully failed
to comply with the Open Meetings Act.
(emphasis in original).
On appeal, in affirming the decision of the circuit court, the Court of Special
Appeals stated the following with respect to Grant’s challenge under the Open Meetings
Act:
Grant’s challenge under the Open Meetings Act fails because she did not
produce any evidence that a violation occurred. Instead, Grant’s theory relies
exclusively on inferences derived from two facts:
On July 18, at an open meeting, the District Council gave
tentative approval for the special exception and variance and
asked staff to prepare an appropriate order; and
On July 19, again at an open meeting, the District Council
voted to approve a 51-page order granting the special exception
and variance.
party, and to assess a fine for willful violations. See GP §§ 3-401(d)(5), 3-402. No such
remedies are available under the administrative rules applicable to appeals of an
administrative agency’s zoning decision.
28
Grant doesn’t object to either of those two open meetings, nor could she.
Rather, she infers from the conduct of the two public meetings that a secret,
undisclosed third meeting occurred between the meeting of July 18 and the
meeting of July 19th. There is, however, no evidence in the record that
suggests that such a meeting occurred, and Grant did not introduce any
testimony before the circuit court to support her contentions. . . .
It could have happened as Grant suggests. More likely, however, the staff
prepared a draft opinion and showed it separately to individual members of
the District Council before the July 19 meeting. If that’s what happened, a
quorum never met, no public business was conducted, and the Open
Meetings Act was not triggered. But even if this were not so, we would not,
in the absence any evidence to the contrary, presume noncompliance by the
District Council. Instead, Maryland law presumes that public officials act in
compliance with the law. Anne Arundel v. Halle Dev., Inc., 408 Md. 539.
565 (2009). We hold therefore, that Grant has failed to prove any violation
of the Open Meetings Act.
Grant at * 7.
Analysis of Grant’s Open Meetings Act Claims
Grant is not alleging that the District Council violated the Open Meetings Act at
either the July 18 or July 19 meetings—rather, she alleges that the District Council violated
the Open Meetings Act during the intervening time span between the District Council’s
July 18 and July 19 meetings. As noted supra, under the Open Meetings Act, the public
body is presumed to have acted in accordance with the Act, and the burden is on Grant to
prove a violation. GP § 3-401(c).
Grant has not produced any evidence to support her position that the District Council
violated the Open Meetings Act. Rather, she asks the Court to infer a violation of the Open
Meetings Act given the short time span between the District Council’s consideration of the
oral arguments on July 18, and the Council’s vote to approve a fifty-one page decision the
29
following day. Grant contends that the Court of Special Appeals’ hypothesis assumes that
Mr. Kumar was able to write the fifty-one page District Council decision and meet with
each District Council member during the night hours after the conclusion of the July 18
hearing and before the Council reconvened on July 19, which Grant contends is unrealistic.
Whether a public body violates the Open Meetings Act case depends upon the
specific facts presented. For the reasons set forth herein, we decline to find a violation of
the Open Meetings Act where Grant presented no direct and culpable facts to support such
a claim, particularly given her burden to prove a violation, and in the face of the statutory
presumption that the District Council complied with the Act.
Contrary to Grant’s speculation that the District Council must have violated the
Open Meetings Act given the short time span between the District Council’s tentative vote
and its final approval of its decision, there are several indicators that nothing ran afoul of
the Open Meetings Act.
The written decision of the ZHE was transmitted to the District Council and was
hand-delivered to Mr. Kumar on May 13, 2016—over two months before the District
Council hearing. On June 13, the District Council, sua sponte by unanimous vote elected
to make the final decision in the special exception and variance matter. On June 15, the
Clerk of the District Council sent notices to all persons of record that oral argument would
be held on July 18. Over one month prior to the hearing, all of the District Council
members, the parties and their counsel had knowledge that the matter would be decided by
the District Council and the date of the oral arguments.
30
On July 6, Grant’s counsel filed a forty-seven page response in opposition to Wal-
Mart’s exceptions, which included a thirty-one page document titled “Proposed Findings
of Fact and Conclusions of Law” (“Grant’s Findings of Fact”). Grant’s Findings of Fact
were also served on Mr. Kumar. Just as counsel for Grant undertook preparation for the
July 18 hearing several weeks in advance of the hearing—including preparing and
submitting Grant’s Findings of Fact, Mr. Kumar also commenced his preparation, which
also included drafting proposed Findings of Fact for his client to consider.22
The record is also clear that over a month prior to the July 18 hearing, the District
Council met and voted to proceed on the voluminous record presented to the ZHE and
make the final decision in this case after the parties’ arguments. Based upon the questions
posed by members of the District Council at the July 18 hearing, it is clear that the
individual District Council members had familiarized themselves with the contents of the
record prior to the hearing. To summarize, the members already had the entire record of
the proceeding before the ZHE as well as the detailed written positions of both Wal-Mart
and the opposition.
22
At oral argument, Mr. Kumar confirmed that he had prepared a draft Findings of Fact in
advance of the July 18 hearing. He noted that there are occasions in contested matters
where he may prepare alternative draft Findings of Fact because of uncertainty as to how
his client will vote until the actual meeting. As set forth infra, while there may be
circumstances where members of a public body might trigger the Open Meetings Act by
transacting business by email or other means of simultaneous exchanges of communication
thereby creating a quorum, the record in this case is devoid of any such conduct here. Our
holding in this case is based upon the lack of any evidence in the record of any meetings
or discussions during the time period between July 18 and 19 and should not be construed
as endorsing or upholding any practice by a public body in which there is an intent to
circumvent the Open Meetings Act by some evasive technique.
31
At the July 18 hearing, eight members of the District Council were present.23 After
the hearing was convened and called to order, the Chairman of the District Council gave
an overview of Wal-Mart’s special exception and variance application to expand its
existing store. The Chairman described the current site and details such as the existing
square footage of the store, and the proposed square footage of the proposed expansion.
He described the procedural history of the application and noted that the District Council
was present to consider oral arguments on the application.
After concluding his opening remarks, Derrick Leon Davis, the Chairman of the
District Council (“the Chairman”) turned the hearing over to staff to present an overview
of the application.24 After the staff presentation, the District Council members heard
extensive arguments from counsel for Wal-Mart and counsel for Grant, including a
summary of the evidence to support their respective positions. The District Council also
entertained public comment from one member of the public who spoke in favor of the Wal-
Mart application. Both counsel for Wal-Mart as well as counsel for Grant referred to
specific exhibits in the voluminous record. The transcript of the meeting reflects that
23
Although the title page of the July 18 transcript reflects that nine District Council
members were present, including Councilmember Lehman, the record reflects that only
eight members were present and voted eight to zero to reverse the ZHE and have staff
prepare a document of approval with conditions. At the July 19 meeting, Ms. Lehman
confirmed that she had not been in attendance on July 18.
24
Jimi Jones of MNCPPC’s Development Review Division provided the District Council
and other participants with an overview of the special exception application. In addition,
Stan Brown, People’s Zoning Counsel, gave a brief overview and “spoke to the legalities
of the argument presented.”
32
members of the District Council asked questions and were engaged. There were several
discussions between District Council members concerning exhibits and evidence from the
ZHE’s hearing which were displayed on a projector. District Council members asked
questions pertaining to setbacks, buffers and fencing, truck patterns, stormwater, road
frontage, building orientation, the size of the site, and the proposed architecture. The
record reflects discussion and participation by counsel for Wal-Mart and Grant, as well as
planning staff.
At the conclusion of the hearing, District Member Franklin summarized his position
on the application and made a motion “to direct Staff to prepare an Order reversing the
decision of the ZHE and prescribing approval with conditions.” The motion was seconded
and the clerk called the roll. Each of the eight District Council members in attendance
voted affirmatively.
Based upon the record, it is highly plausible that Mr. Kumar polished and finalized
a draft of the proposed Findings of Fact which had been prepared in anticipation of his
client’s vote. There is no evidence in the record that Mr. Kumar met with the District
Council in a meeting with a quorum present during the intervening period between the two
public meetings, nor can we or will we speculate that any such meeting occurred in the
absence of any such evidence.
Grant also asks us to embrace that the hypothesis in the opinion of the Court of
Special Appeals that Mr. Kumar may have shown his draft Findings of Fact separately to
individual members of the District Council during the time period between the two public
meetings and that this violates the Open Meetings Act. Specifically, Grant urges us to
33
follow some decisions from a few other states finding violations of their respective open
meetings laws under a “walking quorum” theory.25
Relevant to the establishment of a “walking quorum,” the issue of email communications,
separately held telephone calls, or other modes of communication between members of a
public body outside of a physical meeting of a quorum of the members has been the subject
of both Attorney General Opinions and Compliance Board Opinions. While Attorney
General Opinions are entitled to consideration, they are not binding on this Court. 26 City
of Balt. Dev. Corp. v. Carmel Realty Assoc., 395 Md. 299, 327 (2006).
The Attorney General’s Office provides advice to public bodies about open
meetings compliance and has prepared the Open Meetings Act Manual which offers
practical guidance on the Act. The Attorney General’s Office has summarized the
difficulty of analyzing these issues of communication between members as follows:
25
Some states have used the term “walking quorum” to describe a public body’s use of the
quorum requirement to avoid deliberating in public. See eg. Asgeirsson v. Abbott, 773 F.
Supp. 2d 684, 706 (W.D. Tex. 2011), aff’d, 696 F.3d 454 (5th Cir. 2012) (walking quorums
“occur when members of a governmental body gather in numbers that do not physically
constitute a quorum at any one time but who, through successive gatherings, secretly
discuss a public matter with a quorum of that body” (citations and some internal
punctuation omitted)); Mabry v. Union Parish Sch. Bd., 974 So. 2d 787, 789 (La. App. 2
Cir. 2008) (a “walking quorum” is “a meeting of the public body where different members
leave the meeting and different members enter the meeting so that while an actual quorum
is never physically present an actual quorum during the course of the meeting participates
in the discussion.”). Each state has its own unique Open Meetings Act statute. For
example, the Texas Open Meetings Act (Tx. Gov’t § 551.143) contains a provision titled
“Conspiracy to Circumvent Chapter”, which makes it a misdemeanor for a “member or
group of members knowingly to conspire to circumvent [the Texas Open Meetings Act] by
meeting in numbers less than a quorum for the public of secret deliberations in violation of
this chapter.” The Maryland statute has no similar provision. Again, whether a public
body has violated the Open Meetings Act is a fact-specific inquiry. Here, there are no facts
in the record to support such a determination.
26
In addition, Compliance Board Opinions are advisory and have no binding authority on
this Court.
34
The presence of a quorum for purposes of the Act gets murky when the
members are not simultaneously in one place or on one conference call but
nonetheless seem able to discuss public business as a group. The Compliance
Board has often addressed complaints that a public body reached a decision
through emails, separately-held phone calls, or other modes of
communication outside of a meeting of a quorum of the members. Usually,
the Act’s definition of a “meeting” to require the presence of a quorum has
meant that the Act does not apply to sequential or written communications
among the members. . . .
The Compliance Board has also cautioned that courts might look beyond the
quorum requirement to determine whether, as a practical matter, a quorum
of the public body was in on the discussion. In 8 OMCB Opinions 56 (2012),
a county board heard a land use appeal in an open session, announced that it
would take the matter under advisement, and then, at a subsequent open
meeting, adopted without discussion a written statement of its findings and
conclusions. The board’s counsel explained that, as was the custom, he had
not discussed the document as a group. On those facts, the Compliance
Board stated that ‘no meeting’ had occurred—but it also advised the public
body of the risks of such practices:
We are reluctant . . . to give the impression that the quorum
requirement provides public bodies with an absolute defense to
an alleged Open Meetings Act violation. In fact, a public body
risks violating the Act by manipulating a quorum to avoid the
Act’s mandates. The Court of Appeals addressed such a
violation in [C.L.U.B. v. Balt. City Bd. of Elections, 377 Md.
183 (2003)]. There, the City Council President closed a
meeting without a vote after she ascertained that a quorum of
the councilmembers was not present. Id. at 190-91. The Court
held that the Council had violated the Act, and, further, that it
had done so willfully. Id. at 196-97. The C.L.U.B. Court thus
concluded that a public body, acting willfully to evade the Act,
may be subject to the Act even in the absence of an actual
quorum. Id. at 59.
Open Meetings Act Manual, 1-8-1-9.
Concerning the issue of electronic communications, the Office of the Attorney
General has summarized the issue as follows:
35
Questions arise as to whether the exchange of electronic communications
among a quorum means that a quorum is present. This Office opined in 1996
that sequential e-mail communications, which it then analogized to the
exchange of information through regular mail, are not subject to the Act. See
81 Op. Att’y Gen. 140, 142 (1996). That conclusion, reached before the
development of most forms of social media and easy texting, should not be
construed to apply automatically to all forms of electronic communication or
even to all email communications. In fact, the opinion states that the ‘result
would be different’ if the members were able to ‘use email for ‘real time’
simultaneous interchange.’ Id. at 143-44. Under the functional approach
taken by the Court in C.L.U.B., an online discussion in which a quorum of
the public body participates on a near-simultaneous basis might well be
deemed to meet this element of the ‘meeting’ test.
Open Meetings Act Manual, 1-10.
We do not condone the use of a “walking quorum” or other device if used to evade
the requirements of the Open Meetings Act and shield the actual deliberations of a public
body from public view. However, as noted supra, whether a public body violated the Open
Meetings Act is a fact-specific inquiry which depends upon, among other things, whether
a quorum of the public body met in some fashion. There may be instances where the Court
may find a violation of the Open Meetings Act in the absence of a physical meeting
consisting of a quorum of a public body. See C.L.U.B., 377 Md. 183. We decline to make
such a holding here where the record lacks evidence of any actual meeting or any exchange
of emails or other communications between members of the District Council which might
rise to the level of a “meeting” or any evasive device purposefully designed to avoid the
requirements of the Act.
There is no evidence in the record upon which we can evaluate the communications,
if any, between Mr. Kumar and members of the District Council, or among the District
Council members, in order to make a determination that the District Council violated the
36
provisions of the Open Meetings Act. Accordingly, we hold that Grant has failed to prove
that the District Council violated the Open Meetings Act in this case.
C. The District Council Exercises Original Jurisdiction in Reviewing Special
Exceptions and Variances Heard Before the ZHE.
We now consider the type of jurisdiction the District Council possesses when it
considers special exception and variances heard by the ZHE. Grant contends that the
District Council’s jurisdiction is merely appellate. In contrast, the District Council and
Wal-Mart argue that the District Council exercises original jurisdiction. The importance
of this distinction lies in the District Council’s ability to engage in independent fact finding.
If the District Council only has appellate jurisdiction, then it is unable to make its own
findings of fact and would be limited to those found by the ZHE. On the other hand, if the
District Council maintains original jurisdiction over special exception and variance cases,
then the District Council is permitted to engage in its own fact-finding.
Relevant Provisions of the RDA and PGCC
Under the RDA, the District Council is granted extensive authority to establish
zoning laws and procedures under which special exception and variance cases are held.
LU § 22-301(a)(1) (“A district council may adopt zoning laws that authorize the board of
appeals, the district council, or an administrative office or agency designated by the district
council to grant special exceptions and variances to the zoning laws on conditions that are
necessary to carry out the purposes of this division.”). The RDA also empowers the District
Council to establish procedures for “appeal[s] from an administrative agency” created
under Subtitle 27 of the RDA. LU § 22-301(a)(1).
37
Based on these grants of authority under the RDA, the District Council has enacted
several provisions of the PGCC that support the District Council’s position that when it
reviews special exception and variance applications it exercises original jurisdiction. First,
the District Council created the ZHE in 1971. Prince George’s County Council, Bill No.
1-1971. Second, under PGCC § 27-132(f)(1), the District Council exercises original
jurisdiction over special exception and variance cases originating before the ZHE (“[i]n
deciding an appeal to the District Council, or Council election to review a decision made
by the Zoning Hearing Examiner or the Planning Board, the Council shall exercise original
jurisdiction.”).
Third, the PGCC empowers the District Council to grant special exceptions and
variances. PGCC § 27-316. See also PGCC § 27-314 (empowering the District Council
to approve special exceptions). In addition, the District Council possesses the ability to
remand a special exception case to the ZHE for a de novo proceeding where good cause is
demonstrated. PGCC § 27-133(a)(1). Under the framework established by the District
Council, a decision by the ZHE becomes final thirty days after filing unless a party elects
to have the decision reviewed by the District Council or the District Council, sua sponte
by majority vote, elects to make the final decision. PGCC § 27-312(a)(2)(C). We now
turn in our analysis to precedent about the District Council’s jurisdiction.
Zimmer, Billings, and Their Applicability
The parties extensively debate the applicability of several decisions by this Court to
support their respective arguments. First, we held in Cty. Council of Prince George’s Cty.
v. Billings, that the District Council was not permitted to “withdraw” its election to review
38
a special exception under PGCC. 420 Md. 84, 107 (2011). The District Council and Wal-
Mart characterize Billings as an affirmance that, under the PGCC, the District Council
exercises original jurisdiction: “After electing to review a decision by the ZHE, the ZHE’s
decision is no longer final. Instead, the Council’s decision becomes the final decision.”
420 Md. at 106 n. 14.27 In contrast, Grant contends that any references to the nature of the
jurisdiction the District Council maintains over such proceedings is dicta because the Court
was not deciding whether the District Council had appellate or original jurisdiction. In that
case, we summarized the District Council’s contentions concerning its ability to withdraw
a special exception after electing to review it and concluded that the District Council was
not empowered under the PGCC to withdraw its election. Id. at 84. We commented,
The Council argues, instead, that it can, without any written findings or
conclusions, withdraw its election to review, making the prior agency
decision the “final” decision. This withdrawal is conspicuously absent from
the statutory options available to the Council. The statute allows the Council,
after electing to review an agency decision, to (1) approve it, (2) approve it
with conditions, (3) remand it, or (4) deny it. See Section 27–132(f). The
Council does not have a fifth option to “decide not to review it, making the
agency decision final.” Instead, the Council’s “withdrawal of an election to
review” is, in effect, an approval of the lower agency decisions in full,
without any written findings of fact or conclusions that the law requires. This
is not an option given to the Council under the statute.
Billings, 420 Md. at 106–07. Although Grant is correct to some extent that the nature of
the District Council’s jurisdiction was not before the Billings Court, the Court’s discussion
concerning the District Council’s original jurisdiction and the requirement that the District
27
The debate concerning the applicability of our holding in Billings in terms of the
jurisdictional issue is primarily fueled by the Court of Special Appeals’ reliance on that
decision.
39
Council make the “final decision” in cases involving special exceptions and variances all
rely on portions of the PGCC. See Billings, 420 Md. at 106 (citing PGCC §§ 27-132, 27-
141). Moreover, these comments represent this Court’s recognition that the District
Council exercises original jurisdiction over special exception and variance applications
pursuant to certain provisions of the PGCC.
After Billings, we considered the nature of and limits to the District Council’s
jurisdiction in cases originating from the Planning Board as opposed to the ZHE. See
Zimmer, 444 Md. at 567-68. In that case, we were asked to determine whether the District
Council improperly reversed a decision of the Planning Board and to ascertain whether any
limitations apply to the District Council’s ability to review certain decisions by the
Planning Board. Zimmer, 444 Md. at 572.
In Zimmer, we held that the District Council could not bestow upon itself original
jurisdiction over comprehensive design plans (“CDPs”) or specific design plans (“SDPs”)
because the RDA granted to the Planning Board exclusive jurisdiction over such matters.
Zimmer, 444 Md. at 570-71. Grant argues that Zimmer stands for the proposition that
PGCC § 27-132(f)(1) is alone insufficient to answer the question of whether the District
Council has original jurisdiction. See PGCC § 27-132(f)(1) (“[i]n deciding an appeal to
the District Council, or Council election to review a decision made by the [ZHE] or the
Planning Board, the Council shall exercise original jurisdiction.”). Instead, she contends
that we must look to the RDA to ascertain whether the act permits the District Council’s
exercise of original jurisdiction in such cases.
40
The Zimmer Court invalidated the portion of PGCC § 27-132(f)(1) that attempted
to provide the District Council with the authority to engage in de novo review of CDP and
SDP decisions made by the Planning Board. Zimmer, 444 Md. at 578-580. The Court
illustrated how the RDA grants some powers within certain spheres to the Planning Board
and not to the District Council thus cabining the scope of the PGCC § 27-132(f)(1). We
explained that, of the powers granted to the Planning Board by the RDA, “LU § 20-
202(b)(i) provides that the county planning boards have ‘exclusive jurisdiction’ over ‘local
functions,’ but does not detail each of these local functions within each jurisdiction.” Id.
at 567. As such,
[t]he 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.”]
Id. at 569.
The Court then outlined the limits of the District Council’s review, with respect to
planning functions:
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, subject to appellate review by the District Council.
41
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.
Id. at 569-70 (emphasis added). In other words, the RDA grants to the Planning Board
exclusive jurisdiction over planning functions, notwithstanding any areas in which the
legislature has crafted an exception.28 Id. at 567. This Court has previously recognized
that “it is well established in Maryland that zoning and planning are separate functions.”
Zimmer, 444 Md. at 505 (citing Appleton Reg’l Cmty. Alliance v. Cty. Comm’rs of Cecil
Cty., 404 Md. 92, 102 (2008)).29 Accordingly, Grant argues based on Zimmer that the grant
28
In addition to the limitations on the District Council’s jurisdiction in its review of the
Planning Board’s decision in CDPs and SDPs, the Court of Special Appeals has also held
that the District Council exercises appellate jurisdiction over Planning Board decisions
concerning nonconforming use applications based on the same provision of the RDA. See
Cty. Council of Prince George’s Cty. v. Convenience & Dollar Market/Eagle Mgmt. Co.,
238 Md. App. 613, 636-39 (2018).
29
The Zimmer Court explained the differences between zoning and planning: “Zoning is
the more finite term. . . . 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.” Zimmer,
444 Md. at 505 (citations and internal quotation marks omitted). Whereas, “[p]lanning is
the broader term. . . . concern[ing] 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[.]” Id. (citations and internal quotation marks omitted).
42
of original jurisdiction in PGCC § 27-132(f)(1) to the District Council is unlawful unless
the RDA specifically authorizes it. However, our precedent reveals that this grant of
original jurisdiction over special exception and variance applications stands as permissible
unless the RDA vests exclusive jurisdiction over such cases to another entity.
Although the RDA reserved exclusive jurisdiction to the Planning Board in the
certain respects mentioned above, the same cannot be said regarding the District Council’s
jurisdiction over proceedings concerning zoning and specifically special exception and
variance applications. The RDA empowers the District Council to perform certain actions
including: “adopt[ing] and amend[ing] the text of the zoning law for that county; and . . .
adopt[ing] and amend[ing] any map accompanying the text of the zoning law for that
county.” LU § 22-104(a). No RDA provision comparable to that mentioned in Zimmer
exists with respect to the ZHE which would limit the District Council’s jurisdiction in
zoning cases. Unlike the Planning Board in cases involving SDPs and CDPs, the ZHE
does not maintain exclusive jurisdiction in zoning cases, a sphere that would encompass
special exception and variance applications. Therefore, neither Billings nor Zimmer held
or indicate that the District Council does not have original jurisdiction over special
exception and variance cases. To the contrary, the RDA granted wide-ranging authority to
the District Council to regulate zoning within the County. Based on this grant of authority,
the District Council has adopted provisions within the PGCC that specify its original
jurisdiction over special exception and variance applications and establish the
accompanying procedure.
Procedural Features
43
Lastly, Grant argues that some features of special exception and variance
proceedings, mainly originating from the PGCC, are inconsistent with the position that the
District Council exercises original jurisdiction. For example, Grant contends that certain
provisions suggest that the ZHE has original jurisdiction and the District Council’s
jurisdiction is only appellate because the underlying procedure demonstrates the hallmarks
of an appellate system. In response, the District Council maintains that despite these
provisions the District Council clearly exercises original jurisdiction under the PGCC.
Therefore, we must examine the provisions concerning the District Council’s review of
special exception and variance cases to ascertain the form of jurisdiction it exercises over
such cases.
As mentioned above, a special exception or variance decision by the ZHE becomes
final thirty days after its filing, unless a party files exceptions to have the District Council
review its decision or the District Council, sua sponte by majority vote, elects to make the
final decision. PGCC § 27-312(a)(2). Grant substantially relies on a section of the above
provision which seemingly characterizes the District Council’s review of a ZHE decision
as an appeal. See PGCC § 27-312 (permitting the parties to “timely appeal” a decision of
the ZHE to the District Council). Under the RDA the District Council is required to
“provide for the appeal of decisions of the zoning hearing examiner in special exception
cases to the district council.” LU § 22-310.
Within the procedural realm, the ZHE makes findings of fact and conclusions of
law. PGCC § 27-127(c). In cases where the District Council reviews a decision of the
ZHE, “the [ZHE] shall transmit specific findings of fact, conclusions of law, and a
44
recommended disposition of the case to the District Council for final decision[.]” PGCC
§ 27-312(a)(2)(B). The PGCC also grants the ZHE the power to issue subpoenas and swear
witnesses. PGCC § 27-127(b). The District Council generally conducts oral argument
based on a record established in the proceedings below. Convenience & Dollar
Market/Eagle Mgmt. Co., 238 Md. App. at 626. Indeed, the record considered by the
District Council is limited. See PGCC § 27-131(f)(1) (indicating that “[p]ersons of record
may not introduce evidence not already in the record.”). In addition, the District Council
is permitted to “remand” decisions of the ZHE to “receive and evaluate additional
evidence[.]” PGCC § 27-131(f)(1). In a proceeding before the District Council, parties
are each limited to thirty minutes of oral argument. PGCC § 27-131(e)(1).
We ultimately find Grant’s arguments on this point unpersuasive. First, the RDA
bestows upon the District Council wide-ranging authority to establish zoning laws, the
creation of administrative offices to hear such cases, and to make laws codifying the
accompanying procedure. We reiterate that, based on this grant of authority, the District
Council has established that it exercises original jurisdiction over special exception and
variance cases. PGCC § 27-132. This situation is dissimilar from Zimmer because, in this
case, no provision within the RDA grants exclusive jurisdiction to the ZHE within the
sphere of zoning.30 Considering that the District Council created the ZHE in 1971 pursuant
to the grant of authority under the RDA to establish administrative offices to administer
30
As mentioned above, the Zimmer Court held that the District Council did not hold
original jurisdiction over cases from the Planning Board, i.e. CDPs and SDPs decisions,
because the RDA specifically vested original jurisdiction over these types of cases to the
Planning Board. Zimmer, 444 Md. at 582-83.
45
zoning laws, this fact supports our ultimate conclusion that the District Council exercises
original jurisdiction over special exception and variance cases. See Prince George’s
County Council, Bill No. 1-1971. See also LU § 22-104(a). Although a provision under
the RDA and certain provisions of the PGCC use the generic term “appeal” to denote the
District Council’s review of decisions by the ZHE, we find these mentions insufficient to
constrain the District Council’s jurisdiction to appellate. Put simply, the use of the term
“appeal” within the relevant provisions only denotes a secondary level of review by the
District Council. Despite the semantic choice, the RDA clearly empowers the District
Council to enact provisions to establish the type of jurisdiction it exercises over special
exception and variance applications.
We also do not find persuasive Grant’s contentions that the District Council
exercises only appellate jurisdiction over special exception and variance applications
simply because the underlying procedure resembles an appellate system. There are
numerous instances in which Maryland courts exercise original jurisdiction, yet their
decisions are based on preliminary fact-finding and recommendations of lower courts or
entities. First, as identified by the Court of Special Appeals, circuit courts often delegate
matters to magistrates to conduct fact-finding and to make recommendations. Md. Rule 9-
208. Despite this, a circuit court still maintains original jurisdiction over the matter and
this does not provide the magistrate with original jurisdiction. See Harryman v. State, 359
Md. 492, 505 (2000) (“a master’s status as an ‘office of the court’ does not confer judicial
powers upon the master . . . . a master is a ministerial office who advises and assists a
judge.” (citations omitted)). See also O’Brien v. O’Brien, 367 Md. 547, 554-555 (2002)
46
(explaining that a master or magistrate’s report is merely advisory and their conclusions
are “merely recommendatory and must be reviewed by the court with an independent
exercise of judgment.” (internal quotation marks omitted)).
Second, as also recognized by the Court of Special Appeals, this Court has original
jurisdiction in legislative redistricting cases. See Md. Const. art III, § 5; In re Legislative
Districting, 436 Md. 121 (2012); In re Legislative Districting of State, 370 Md. 312, 326
(2002). In such cases, however, we appoint a “Special Master,”31 responsible for
conducting hearings, receiving evidence, hearing oral argument, establishing findings of
fact, and making conclusions of law. See In re Legislative Districting, 436 Md. 121, 129
(2013); In re Legislative Districting of State, 370 Md. 312, 326 (2002); Legislative
Redistricting Cases, 331 Md. 574, 584 (1993); Matter of Legislative Districting of State,
299 Md. 658, 668 (1984).
Legislative districting cases are not the only example of situations in which this
Court exercises original jurisdiction, yet requires hearings, fact-finding, and legal
conclusions to be prepared by a judge below. We have repeatedly stated that “[t]his [C]ourt
has original and complete jurisdiction over attorney disciplinary proceedings.” Attorney
Grievance Comm’n v Tayback, 378 Md. 578, 585 (2003). See also Committee Note, Md.
Rule 19-725 (indicating that attorney discipline proceedings “are conducted pursuant to the
31
The Special Master appointed in legislative districting cases is most commonly a retired
member of this Court or, less frequently, a retired member of our intermediate appellate
court. See In re Legislative Districting of State, 370 Md. at 337; Legislative Redistricting
Cases, 331 Md. at 584; Matter of Legislative Districting of State, 299 Md. at 668(appointing a retired judge of the Court of Special Appeals as special master).
47
original jurisdiction of the Court of Appeals”). Similar to the posture of legislative
redistricting cases, this Court designates a judge responsible for holding a hearing,
receiving evidence, hearing oral argument, and making findings of fact and conclusions of
law. See Md. Rule 19-722(a). See generally Md. Rule 19-727. Despite this procedure,
this Court still retains original jurisdiction over attorney discipline proceedings and makes
the final decision on factual findings, conclusions of law, and sanctions, if any, in such
cases.
As demonstrated, simply because a lower court, master, or administrative agency is
assigned to hold hearings, receive evidence, hear oral argument, and make findings of fact
and conclusions of law, it does not follow that the lower court, master, or administrative
entity maintains original jurisdiction over such proceedings. Accordingly, we find Grant’s
arguments on this point unavailing.
Therefore, the RDA provides the District Council with wide-ranging authority to
establish and amend zoning laws within the county in which it operates. Through this grant
of authority, the District Council established the ZHE, the procedures associated with its
review, and that it has original jurisdiction over special exception and variance cases
arising from the ZHE.
CONCLUSION
In conclusion, we first hold that the District Council’s delegation to its staff attorney
to prepare a proposed opinion, order, and findings of fact for Council’s subsequent
consideration and approval was permitted under the PGCC and not prohibited under the
RDA. Second, we conclude that the District Council did not violate the Open Meetings
48
Act. Grant failed to present sufficient evidence that any violation of the Open Meetings
Act occurred and was unable to overcome the statutory presumption that the District
Council complied with the Act. Third, we hold that the District Council exercises original
jurisdiction when it reviews special exception and variance applications from the ZHE. In
short, the RDA grants unto the District Council extensive authority to regulate and establish
zoning laws and procedure, which specifically includes special exception and variance
application. Based on this authority, the District Council may exercise original jurisdiction
under PGCC § 27-132(f)(1). Accordingly, we affirm the judgment of the Court of Special
Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
49