Wolf v. Planning Board of PG Co. ( 2023 )

Julie Wolf, et al. v. Planning Board of Prince George’s County, No. 2099, September
Term, 2022. Opinion by Getty, Joseph M., J.
HEADNOTES:
LAND USE – ZONING AND SUBDIVISION APPROVAL – APPROVAL ORDER
When a proposed development requires a Conceptual Site Plan or Detailed Site Plan under
the Prince George’s County Code, zoning and subdivision approvals must proceed in a
designated order. PGCC § 27-270. A developer may not move forward to the next step
until they receive the prior approval from the Prince George’s County Planning Board.
Once that approval is obtained, the developer may proceed to the next step unless stayed
by a court or the district council.
LAND USE – ZONING AND SUBDIVISION APPROVAL – EFFECT OF APPEAL
The Land Use Article of the Maryland Code (2012), § 22-407(a)(4), provides that the filing
of a petition for judicial review does not stay enforcement of a final decision of the district
council. A pending appeal for judicial review of a prior approval does not prevent a
developer from proceeding through the approval process in the absence of a stay ordered
by the court or issued by the district council.
LAND USE – CONSISTENCY BETWEEN PRIOR ZONING AND SUBDIVISION
APPROVALS
Provisions within the Prince George’s County Code require conformity between zoning
approvals and subdivision approvals. Section 27-285 requires Conceptual Site Plans and
Detailed Site Plans to be in general conformance with each other, and Section 24-119
requires that final plats be approved “in accordance with the approved preliminary plan.”
However, Section 27-270’s “Order of approvals” does not have a conformity requirement.
The zoning and subdivision processes are designed to be fluid, and strict consistency
requirements would hinder the development process.
LAND USE – ZONING COMPLIANCE IN SUBDIVISION APPLICATIONS
Zoning and planning are separate development considerations that assess different aspects
of a proposed development. Zoning is primarily concerned with what land is used for, and
planning considers the overall development of communities. As a part of the planning
process, subdivision regulations control how land can be divided. Because the subdivision
process is separate from that of zoning, subdivision applications are focused on the
subdivision regulations rather than zoning compliance.
Circuit Court for Prince George’s County
Case No. CAL20-14895
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 2099
September Term, 2022
______________________________________
JULIE WOLF, ET AL.
v.
PLANNING BOARD OF PRINCE
GEORGE’S COUNTY
______________________________________
Graeff,
Leahy,
Getty, Joseph M.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Getty, J.
______________________________________
Filed: December 21, 2023
This appeal concerns a decision by the Prince George’s County Planning Board
(“Planning Board” or “Board”) to approve a developer’s Preliminary Plan of Subdivision
(“PPS”). While Maryland’s appellate courts have considered many planning and zoning
issues throughout the State, and in Prince George’s County in particular, 1 this case presents
an opportunity to review issues concerning when a developer may proceed through the
zoning and subdivision process despite a pending appeal. It further asks us to consider
whether zoning approvals must conform with prior approvals, including whether approvals
must be consistent across the separate processes of zoning and planning.
On April 2, 2020, the Planning Board approved a PPS application for the Suffrage
Point project, a residential development proposed and developed by Werrlein WSSC, LLC
(“Werrlein”). Appellants, a group of residents living near the Suffrage Point site
(collectively, “Residents”), petitioned for judicial review in the Circuit Court for Prince
George’s County, which affirmed the Board’s approval.
This is not the first time the Suffrage Point project (previously known as Magruder
Pointe) has been appealed to this Court. In 2022, this Court issued a reported opinion
remanding an approval for the project to the Prince George’s County Council, sitting as
District Council. City of Hyattsville v. Prince George’s Cnty. Council, 254 Md. App. 1(2022). To be clear, this is not a reconsideration of our decision in Hyattsville; as will be
explained further, this case pertains to a subsequent step in the development approval
1
E.g., City of Hyattsville v. Prince George’s Cnty. Council, 254 Md. App. 1 (2022); Cnty.
Council of Prince George’s Cnty. v. Zimmer Dev. Co., 444 Md. 490 (2015); City of Bowie
v. Prince George’s Cnty., 384 Md. 413 (2004).
process. The Hyattsville decision nevertheless remains relevant because the remand
created a new issue on appeal in this case.
The parties ask us to address several questions, which we have condensed and
reworded as follows:
1. Does Section 27-270 of the Prince George’s County Zoning Ordinance prohibit the
Planning Board from approving a PPS while an appeal of the underlying Conceptual
Site Plan is pending?
2. Does Section 27-270 require conformity between a Conceptual Site Plan and a
subsequent PPS?
3. Is the Planning Board required to review a PPS for compliance with density and
other Zoning Ordinance provisions?
We answer all three questions in the negative and affirm the circuit court’s decision.
BACKGROUND
A. The Zoning Process in Prince George’s County
A basic overview of development procedures in Prince George’s County is key to
understanding this appeal. Development is governed by the Prince George’s County Code
(“PGCC”). Subtitle 27 of the PGCC contains the zoning provisions (“Zoning Ordinance”),
and Subtitle 24 regulates how parcels of land can be divided and consolidated
(“Subdivision Regulations”). 2 Under Section 27-270 of the Zoning Ordinance, approvals
2
A new zoning ordinance and subdivision regulations went into effect on April 1, 2022.
The new provisions do not apply retroactively, and the new code allowed pre-existing
approvals to proceed under the prior code. Because Werrlein began its approval process
before the new provisions went into effect, the prior zoning ordinance and subdivision
regulations apply to this appeal. All references to the Zoning Ordinance and Subdivision
Regulations in this opinion refer to the prior versions predating April 1, 2022, not the ones
currently in effect.
2
in projects requiring a Conceptual Site Plan (“CSP”) or Detailed Site Plan must proceed in
the following order: (1) zoning; (2) CSP; (3) preliminary plan of subdivision 3; (4) Detailed
Site Plan; (5) final plat of subdivision; and (6) grading, building, use and occupancy
permits. 4 The stage at issue here is the third stage, the approval of a PPS.
The Prince George’s County Planning Board of the Maryland-National Capital Park
and Planning Commission has the authority to approve CSPs, PPSs, Detailed Site Plans,
and final plats of subdivision. The Prince George’s County Council, sitting as District
Council, has the authority to approve zoning amendments and hears appeals of Planning
Board decisions for CSPs and other aspects of the Zoning Ordinance. PGCC §§ 27-228.01,
27-280. Conversely, Planning Board subdivision decisions are appealable to the circuit
court. Md. Code (2012), Land Use Article § 23-401.
B. The Subject Property
The property at issue here is located within the City of Hyattsville in Prince
George’s County. 5 There are two parcels separated by a city street. The Upper Parcel is
3
Section 27-270(a)(4) of the Zoning Ordinance reads: “Preliminary plat of subdivision.”
The Planning Board indicates that this is typo and should read “preliminary plan of
subdivision.” This is also supported by the current Zoning Ordinance, which says “plan”
and not “plat.”
4
Additional information about the Zoning Ordinance and Subdivision Regulations will be
provided as needed in this opinion’s analysis. A more thorough look at zoning and
planning in Prince George’s County can be found in County Council of Prince George’s
County v. Zimmer Development Co., 444 Md. 490 (2015).
5
The cover page of Werrlein’s PPS application, which uses the former project name of
“Magruder Pointe,” is included as Appendix A to this opinion, which contains diagrams of
the subject property.
3
approximately 3.6 acres in size, and the Lower Parcel is approximately 4.66 acres. There
is a public park adjacent to the Lower Parcel to its south and west. There are single-family
detached homes to the north of the property and multi-family apartment buildings south of
the Upper Parcel and east of the Lower Parcel. The project for development of both parcels
is known as the Suffrage Point project.
C. Procedural History
We will forgo a detailed recitation of the full procedural history of the Suffrage
Point project and adopt the facts set forth in City of Hyattsville v. Prince George’s County
Council as supplemented below. 6 254 Md. App. 1 (2022). To summarize, in March 2018,
Werrlein submitted an application to the Planning Board, proposing to develop the Upper
and Lower Parcels for residential use, with 31 dwelling units on the Upper Parcel and 41
dwelling units on the Lower Parcel. After a series of amended applications, the District
Council approved Werrlein’s CSP application and changed the zoning of the area to allow
for Werrlein’s proposed uses. The City of Hyattsville and a group of nearby residents
petitioned for judicial review of the Council’s decision to change the zoning and to approve
Werrlein’s CSP. Ultimately, this Court upheld the Council’s changes to the zoning but
remanded the CSP approval to the District Council because the approval expressed density
as number of dwelling units per acre of gross lot area, not net acre of lot area as required
by the Zoning Ordinance. On remand, the Council corrected the density and again granted
6
We again emphasize that although the facts overlap, this appeal is distinct from the one
in Hyattsville: Hyattsville addressed the second stage of the development process, the CSP,
while this appeal addresses the third, the PPS.
4
its approval of the CSP. Residents once again filed for judicial review of the District
Council’s decision in the Circuit Court for Prince George’s County. As of the time of this
appeal, a hearing in the Circuit Court has not been held.
In late 2019, while the first appeal of the CSP was pending in the Circuit Court,
Werrlein submitted a PPS for the Upper Parcel. 7 Werrlein proposed either 30 or 31
residential lots on the Upper Parcel, depending on whether the Planning Board would
approve smaller lot sizes at a later stage. The Planning Board issued a staff report for the
PPS on March 2, 2020, recommending approval of the PPS subject to 13 conditions. The
staff report includes the following language about density:
The exhibit [a concept plan map supplied by Werrlein] indicates that, when
combining the dwelling unit types on Parcel 1, the density would result in
approximately 8.6 dwelling units per acre on Parcel 1 and approximately 8.8
dwelling units on Parcel 2, based on the gross acreages. The PPS is
consistent with the CSP approval and will be further evaluated at the time of
[Detailed Site Plan] for bulk standards, in accordance with Condition 3 of
[the project’s CSP]. The applicant should provide the proposed density on
the PPS, in accordance with the approved CSP.
On March 12, 2020, the Planning Board held a hearing on the Upper Parcel PPS.
The chair of the Planning Board noted at the outset of the hearing that several interested
parties, including some residents and the City of Hyattsville, had requested that the Board
not take action on the PPS until the CSP appeal was completed. The chair stated that the
7
Werrlein’s PPS for the Upper Parcel labeled the Lower Parcel as an outparcel for
infrastructure. Werrlein subsequently filed a separate PPS for the Lower Parcel.
5
Board was required by statute to act on the PPS application within 70 days of its filing or
the application would be approved automatically as submitted. 8
In addition, the Board said it could not delay its consideration of Werrlein’s
application without losing the ability to impose conditions because the parties had not
requested and the court had not issued a stay in the appeal. At the hearing, the Planning
Board heard from its staff, Werrlein, the City of Hyattsville, and several residents of the
area around the property. At the close of the hearing, the Planning Board voted to approve
the PPS with the conditions recommended in the staff report.
On April 2, 2020, the Planning Board adopted a formal resolution approving the
PPS. The resolution contained the following condition about density: “Prior to signature
approval of the preliminary plan of subdivision, the plan shall be revised to provide density
information in the general notes, in accordance with the approved Conceptual Site Plan . .
. .” 9 The resolution also found that the PPS “conform[ed] to the approved CSP.”
Residents filed a petition for judicial review of the Planning Board’s resolution
approving Werrlein’s PPS in the Circuit Court for Prince George’s County. Residents
argued inter alia that the PPS application was invalid because the underlying CSP was
pending judicial review and that the approved densities exceeded what was allowed by the
8
Section 24-119(d)(4) of the Subdivision Regulations requires that the Planning Board
take final action on a preliminary plan application within 70 calendar days of acceptance
unless the applicant consents to a 70-day extension. If the Board does not take such final
action, “the preliminary plan of subdivision shall be deemed to have been approved.” Id.9
Werrlein did file a revised PPS providing the density information as required by this
condition.
6
Zoning Ordinance. The circuit court disagreed, concluding that the pendency of the CSP
appeal did not invalidate the PPS and that, should the CSP densities be deemed erroneous,
the PPS could be corrected as needed. Residents timely appealed to this Court.
STANDARD OF REVIEW
Our review relies on two standards of review. Administrative bodies such as the
Planning Board receive a high level of deference in their fact-finding. Trinity Assembly of
God of Balt. City, Inc. v. People’s Couns. for Balt. Cnty., 407 Md. 53, 78 (2008). An
appellate court must affirm the administrative body’s decision on the facts if it is supported
by substantial evidence, such that “a reasonable mind might accept as adequate” the
evidence supporting the decision. Id. (quoting People’s Couns. for Balt. Cnty. v. Loyola
Coll. in Md., 406 Md. 54, 66–67 (2008)).
When reviewing legal conclusions of a zoning body, however, we are less
deferential. An appellate court may reverse an administrative body’s legal conclusions if
they are based on erroneous interpretation or application of the statutes, ordinances, and
regulations applicable to the subject property. Id. The zoning body does receive a measure
of deference regarding the statutes, ordinances, and regulations that it implements, and we
take the zoning body’s relevant expertise into consideration when reviewing its conclusions
of law. Id.DISCUSSION
A. Section 27-270’s Order of Approvals
Residents first argue that Section 27-270 of the Zoning Ordinance requires all prior
applications to be final before an applicant can move on to the next step of the development
7
process. Within this argument, Residents assert that this implicit finality requirement
means that a developer cannot move to the next stage while an appeal of a prior approval
is pending. To support this, Residents point to Section 27-268(a)(3) of the Zoning
Ordinance, which states that one of the purposes of the site plan process is “[t]o provide
simple, efficient procedures for the review and approval of site plans.” According to
Residents, approval of a PPS before a CSP appeal is complete is not efficient and can create
errors throughout the site plan process. Because the appeal of Werrlein’s CSP is still
pending, Residents contend that the Planning Board could not approve Werrlein’s PPS.
The Planning Board and Werrlein both disagree with Residents that there is an
implicit requirement in Section 27-270 that pending appeals prohibit the Board from acting
on an application. The Board and Werrlein argue that the CSP appeal did not invalidate
the Board’s approval of the CSP and point out that no stay was issued in the CSP appeal.
Both the Planning Board and Werrlein rely on the Maryland Supreme Court’s decision in
City of Bowie v. Prince George’s County, where the Court upheld approval of a final plat
while an appeal of the underlying preliminary approval was pending, as support for their
argument that appeals do not inherently invalidate a prior approval. 384 Md. 413 (2004).
Section 27-270, under Division 9 (“Site Plans”) of the Zoning Ordinance, provides
in full:
Sec. 27-270. - Order of approvals.
(a) When a Conceptual Site Plan or Detailed Site Plan is required unless
otherwise provided for in this Subtitle, the following order of approvals shall
be observed:
(1) Zoning;
(2) Conceptual Site Plan;
(3) Preliminary Pla[n] of Subdivision;
8
(4) Detailed Site Plan;
(5) Final Plat of Subdivision (a final plat of subdivision may be
approved prior to a detailed site plan, if the technical staff
determines that the site plan approval will not affect final plat
approval);
(6) Grading, building, use and occupancy permits.
Further, Section 27-276(a)(1) requires that “[p]rior to approval of any preliminary
plan of subdivision or Detailed Site Plan . . . for the development or use of any land for
which a Conceptual Site Plan is required, the applicant shall obtain approval of a
Conceptual Site Plan from the Planning Board.”
It is clear from these provisions—and no party disagrees—that a CSP must be
approved before the Planning Board can approve a PPS for a project. The issue here is the
impact a pending CSP appeal has on the Board’s authority to approve a subsequent PPS.
For the following reasons, we agree with the Planning Board and Werrlein that the pending
appeal of the Upper Parcel CSP did not prohibit the Board from approving the Upper Parcel
PPS.
We see no finality requirement in the plain language of Section 27-270 stating that
an appeal automatically rescinds an approval of a prior stage. See Taylor v. NationsBank,
N.A., 365 Md. 166, 181 (2001) (“We neither add nor delete words to a clear and
unambiguous statute to give it a meaning not reflected by the words the Legislature used
or engage in forced or subtle interpretation in an attempt to extend or limit that statute’s
meaning.”). The Planning Board approved the CSP underlying the PPS on June 10, 2019,
six months before Werrlein filed its PPS application on December 20, 2019.
9
Residents’ argument that the pending appeals of the CSP prevented the Board from
approving the PPS is unavailing. There was no stay issued in any of the CSP court
proceedings that would have paused the approval process. Section 22-407(a)(4) of the
Land Use Article of the Maryland Code (2012) states that a filing of a petition for judicial
review “does not stay enforcement of the final decision of the district council, but the
district council may stay enforcement of its final decision or the reviewing court may order
a stay on terms it considers proper.” Here, the District Council did not stay the enforcement
of the CSP approval, nor did the circuit court order a stay. As such, although an appeal
was pending that could require its revision, the CSP remained enforceable and approved.
We are also persuaded by the Planning Board and Werrlein’s arguments relying on
the Maryland Supreme Court’s decision in City of Bowie. 384 Md. 413 (2004). There, the
City of Bowie challenged a hotel developer’s submission of a final plat of subdivision
while appeals of its underlying preliminary plat and Transportation Facilities Mitigation
Plan were pending. Id. at 422. The Planning Board approved the final plat, and the City
appealed on the basis that the pending “action for judicial review of the preliminary plat
precluded the Board from exercising jurisdiction to approve [the final plat].” 10 Id. at 423–
24. Our Supreme Court disagreed, holding that based on the plain language, “the Board
was not required to withhold its consideration [of the final plat] until such time as all legal
challenges to the preliminary plat’s approval were exhausted.” Id. at 430. The Court also
noted that a developer who moves forward despite a pending appeal “risks exposure to
10
As in this case, no stay was issued to prevent the hotel developer from proceeding in its
development process. Id. at 423.
10
suits and the enforcement of regulations” should the underlying approval be invalidated,
but the “Court cannot presume to dictate the business risks in which a developer may
choose to engage.” Id.
Residents attempt to distinguish City of Bowie because of minor differences in the
statutory language. Section 24-119(e) of the Subdivision Regulations, at issue in City of
Bowie, states that “[u]pon approval of the preliminary plan of subdivision, the subdivider
may proceed to prepare the final plat(s).” Residents place great emphasis on the use of the
word “prepare” in Section 24-119(e) and contrast it with the order of approvals required
by Section 27-270 of the Zoning Ordinance. We find this distinction unpersuasive.
Regardless of the precise language used in Sections 24-119(e) and 27-270, the basic
reasoning in City of Bowie applies here. The Supreme Court refused to add a finality
requirement to Section 24-119(e) when it was not supported by the language of the
provision. We similarly refuse to do so here. 11
The Planning Board is entitled to a level of deference in its interpretation of the
Zoning Ordinance as the administrative body implementing it, subject to reversal for clear
error. Because we agree with the Board that Section 27-270 does not require all appeals to
be completed before a developer can proceed to the next step, there is no clear error here
that demands reversal.
11
It is true that Werrlein’s CSP might be invalidated by the circuit court, requiring it to
revise its project. As envisioned in City of Bowie, this is a risk that Werrlein chose to
subject itself to, not something prohibited by the Zoning Ordinance.
11
B. Consistency Between Conceptual Site Plan and Preliminary Plan of Subdivision
Residents next contend that, implicit in Section 27-270’s Order of Approvals, each
subsequent application must be consistent with the approved plans underlying it. Based
upon this alleged requirement, Residents argue that the PPS was inconsistent with the
underlying CSP because of differences in the number of overall lots and the PPS’s labeling
of the Lower Parcel as an outparcel for infrastructure only.
Werrlein counters that Section 27-270 does not require that “a PPS be a mirror
image of a CSP.” In rationalizing the differences between the CSP and the PPS, Werrlein
points to the fact that the CSP covered both the Upper and Lower Parcels and the
subsequent PPS for each parcel together conformed to the approved CSP. The Planning
Board asserts that any implicit conformity requirement in Section 27-270 would be
“superfluous” with requirements elsewhere in the Zoning Ordinance and Subdivision
Regulations that explicitly require Detailed Site Plans and Final Plats of Subdivision to
conform and accord with prior approvals.
We find Residents’ argument unpersuasive. Nothing in Section 27-270 requires that
each plan must conform with prior approvals. As the Board indicates, other provisions of
the Zoning Ordinance and Subdivision Regulations do require conformity: Section 27-
285(b)(2) of the Zoning Ordinance requires that the Planning Board “find that the Detailed
Site Plan is in general conformance with the approved Conceptual Site Plan” and Section
24-119(e) of the Subdivision Regulations requires that a developer must prepare final plats
“in accordance with the approved preliminary plan and shall include any modifications
made by the Planning Board.” These provisions highlight that consistency is required
12
within different steps in the Zoning Ordinance and within different steps in the Subdivision
Regulations. Nowhere is consistency required across the Zoning Ordinance (e.g., CSP)
and the Subdivision Regulations (e.g., PPS). Given that no such conformity requirement
is present in Section 27-270 and that conformity is explicitly considered at later stages in
the process, we do not find that the Planning Board erred in approving the PPS despite
there being some differences between the CSP and the PPS.
Further, the processes in place to review and approve development proposals are
fluid. Cf. Mayor and Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 536–37
(2002) (“In response to the imperfect nature of planning and zoning and the need for greater
flexibility in responding to the impacts of these imperfections, various mechanisms have
been designed and incorporated into the plan[n]ing and zoning process to allow for changes
in the uses allowed within a given zone while at the same time retaining the safeguards of
the requirement of uniformity within zones.”). As a practical matter, developers need to
be able to respond to issues as development progresses. The evolving nature of
development precludes strict rigidity in conformity with prior approvals. Residents’ own
argument appears to highlight this fact because they fail to propose where the line for
conformity and nonconformity could or should be drawn, relying instead on a broad
assertion that Werrlein’s PPS is wholly inconsistent with the CSP. While some consistency
between applications and approvals may be beneficial, we decline to read a conformity
requirement into Section 27-270, particularly absent workable guidelines for what level of
13
conformity would be necessary and given the deference due to the Planning Board in
interpreting provisions it implements. 12
C. The PPS’s Density and Zoning Ordinance Compliance
Residents’ final argument is that the density contained within the approved PPS
violated the Zoning Ordinance. In support, Residents point to the use of gross acreage as
the basis for the calculation although the Zoning Ordinance requires the use of net acre of
lot area. PGCC § 27-107.01(a)(66). Residents further aver that the use of gross acreage
instead of net lot area results in a density exceeding what is permissible under the Zoning
Ordinance. In their opening brief, Residents presented a math calculation showing that the
Upper Parcel could not support the proposed number of dwellings and still comply with
the Zoning Ordinance once public ways were excluded from the available acreage.
The Planning Board asserts that, at the PPS stage, it is not required to determine
whether a proposal wholly complies with the Zoning Ordinance. In support, the Board
indicates that the Subdivision Regulations only require review of applicable provisions of
the Zoning Ordinance for PPSs. The Board further highlights that a PPS does not show
where buildings will be constructed and that density and other zoning issues are reviewed
at the site plan and building permit stages. For its part, Werrlein agrees with the Board that
density is calculated at the Detailed Site Plan stage, exemplified by the condition in the
PPS and CSP that requires final density calculations prior to a Detailed Site Plan approval.
12
The parties also presented arguments about whether the CSP and PPS were consistent
with one another. Because we decide that conformity is not required, we do not address
these arguments.
14
We find the Planning Board and Werrlein’s arguments convincing. As noted by the
Board, the CSP and PPS are separate processes that serve different functions: a CSP is part
of the zoning process, while a PPS is part of the planning process. In County Council of
Prince George’s County v. Zimmer Development Co., Judge Glenn T. Harrell, Jr.,
systematically explained the regimes of zoning and planning, noting that “[a]lthough
related concepts, it is well established in Maryland that zoning and planning are separate
functions.” 444 Md. 490, 505 (2015). Specifically, zoning “is used to describe the process
of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating
them to particular uses designed in some degree to serve the interests of the whole territory
affected by the plan.” Id. at 505 (internal quotations omitted). Conversely, planning
pertains to “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. (quoting Bd. of Cnty. Comm’rs of Cecil Cnty. v. Gaster, 285 Md.
233, 246 (1979)). The subdivision process falls under the umbrella of planning, referring
to “the division and consolidation of parcels of land,” and subdivision regulations
“controlling how, when, and under what circumstances subdivision may occur are used to
promote development that is beneficial to the community.” Id. at 523. Pertinently, Judge
Harrell described subdivision regulations as “attempt[ing] to respond to issues that are not
so well-addressed through zoning, the initial step in the development process.” Id.
Density is undoubtedly a zoning consideration rather than a planning consideration.
It is controlled by regulations within the Zoning Ordinance, which dictate the maximum
15
permitted density in each underlying zone. See PGCC § 27-109 (“Classes of zones”);
PGCC Part 10A (providing density requirements for each overlay zone). Further, only the
Zoning Ordinance, not the Subdivision Regulations, contains a definition for density.
PGCC § 27-107.01(66). Thus, the fact that a PPS, which is a planning step in the
development process, does not thoroughly review or finalize density, which is a zoning
consideration, makes sense.
We are also persuaded by the Planning Board’s argument that the locations of
buildings are not included in a PPS and thus density cannot be finalized at the PPS stage.
See PGCC § 24-120 (“Documents required for major subdivisions”). This fact further
distinguishes the PPS as a part of the planning process, which is primarily concerned with
the division of land, rather than the zoning process, which is primarily concerned with the
use of land. Although density was included in Werrlein’s PPS, it appears that it was present
more for thoroughness and consistency rather than as a controlling consideration in the
PPS. Throughout the application process and in its arguments, the Planning Board was
clear that density would be fully considered at a later stage as part of its zoning review.
We therefore decline to disturb the PPS based on the density calculation.
CONCLUSION
The Planning Board did not err in approving Werrlein’s PPS. The pending appeal
of the underlying CSP did not prevent Werrlein from moving forward with its development
applications. To the extent the CSP and PPS were inconsistent, there is no implicit
conformity requirement in Section 27-270 of the Zoning Ordinance that calls for us to
reverse the PPS approval for such inconsistency. Finally, the Planning Board was clear
16
that density is a zoning consideration not subject to detailed review at the PPS stage, so
Residents’ argument asserting an improper density calculation is misplaced. For the above
reasons, we affirm the circuit court’s decision to uphold the Planning Board’s approval of
Werrlein’s Upper Parcel PPS.
JUDGMENT OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY AFFIRMED. COSTS TO BE
PAID BY APPELLANTS.
17
APPENDIX A
18