Prince George's Co. v. Zimmer Development

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 259 and 265
September Term, 2013
COUNTY COUNCIL OF PRINCE GEORGE’S
COUNTY, MARYLAND, SITTING AS
DISTRICT COUNCIL
v.
ZIMMER DEVELOPMENT COMPANY
Hotten,
Berger,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Berger, J.
Filed: May 28, 2014
This case involves an administrative appeal from a zoning dispute. The Prince
George’s County Planning Board of the Maryland-National Capital Park and Planning
Commission (“Planning Board”) approved the Comprehensive Design Plan (“CDP”) and
Specific Design Plan (“SDP”) of appellee, Zimmer Development Company (“Zimmer”), to
construct a retail center. Thereafter, the County Council of Prince George’s County, sitting
as the District Council (the “District Council”),1 reversed the decision of the Planning Board.
Zimmer petitioned the Circuit Court for Prince George’s County for judicial review. The
circuit court reversed the decision of the District Council and reinstated the Planning Board’s
approval of Zimmer’s CDP and SDP.
On appeal, the District Council presents four questions for our review, which we
rephrase as follows:
1. Whether Zimmer had the requisite standing to maintain
a petition for judicial review in the Circuit Court for
Prince George’s County.
2. Whether the District Council is vested with appellate
jurisdiction or original jurisdiction over zoning issues.
3. Whether the District Council exceeded the scope of its
authority when it reviewed matters other than the issues
identified for remand.
4. Whether the District Council erred in expanding its
consideration of CDP-1001 and SDP-1001 beyond
1
Although the County Council and the District Council are comprised of the same
elected officials, each performs distinct functions. Specifically, the District Council is tasked
with making discrete land use decisions, while the County Council carries out the general
legislative functions of the Prince George’s County government. See Cnty. Council of Prince
George’s Cnty. v. Dutcher, 365 Md. 399, 403, n.1 (2001).
determining whether the Planning Board’s approval was
arbitrary, capricious, discriminatory, or illegal.
For the reasons that follow, we affirm the judgment of the Circuit Court for Prince
George’s County.
FACTUAL AND PROCEDURAL BACKGROUND
The disputed property (the “Edwards Property”) is a triangular 4.14 acre property that
is zoned for retail as a Local Activity Center Zone (L-A-C Zone).2 The Edwards Property
abuts Adelphi Road, Edwards Way, and Riggs Road in Prince George’s County along
Maryland Route 212 (Powder Mill Road).
Zimmer is a national real-estate developer with its headquarters located in
Wilmington, North Carolina. Zimmer proposes to construct a retail center located on the
Edwards Property, which will be anchored by a CVS.
Approval or denial of a proposed zoning plan begins with the Planning Board. The
Planning Board requires that an applicant obtain three approvals: 1) a Comprehensive Design
Plan (“CDP”);3 2) a Preliminary Plan of Subdivision (“PPS”);4 and 3) a Specific Design Plan
(“SDP”).5 On March 14, 2011, Zimmer filed Comprehensive Design Plan-1001 (“CDP-
2
Prior to 2004, the property was zoned R-R (Rural Residential).
3
The CDP details the overall design of the planned site. See Prince George’s County
Code (hereinafter “PGCC”) § 27-518.
4
The PPS is not at issue in this appeal.
5
The SDP details the specific plans for the planned site. See PGCC § 27-527.
2
1001”) and Specific Design Plan-1001 (“SDP-1001”) with the Planning Board as part of its
application to build the retail center. The Planning Board accepted CDP-1001 and SDP-1001
for joint review. The Planning Board formally reviewed the plans at a public hearing on July
28, 2011 and subsequently approved both CDP-1001 and SDP-1001.
Despite the Planning Board’s approval of Zimmer’s application, the District Council,
nevertheless, elected to exercise its discretion, pursuant to Prince George’s County Code
(hereinafter “PGCC”) § 27-523(a) and § 27-528.01(b), to “call-up” the case for review by
the District Council.6 On November 7, 2011, the District Council held a public hearing and
entertained oral argument regarding CDP-1001 and SDP-1001. One week after the hearing,
the District Council issued an order remanding the case to the Planning Board to reconsider
three issues (“the three remand issues”).
Specifically, the Planning Board was directed to “reconsider its decision in light of
the [following] reasons,” namely: 1) whether the lack of a community center on the Edwards
Property could be “mitigated through amenities benefitting the surrounding community”;
6
Typically, appeals from the Planning Board’s decisions are effectuated by an
interested party filing an appeal to the District Council. See PGCC § 27-523(a) and PGCC
§ 27-528.01(a). In some cases, however, the District Council may elect to “call-up” (as it is
colloquially known) a case for review by the District Council. The District Council’s
authority to “call-up” a case is embodied in PGCC § 27-523(a) and § 27-528.01(b). See
PGCC § 27-523(a) (“The District Council may vote to review the Planning Board’s decision
[regarding a CDP] on its own motion within (30) days after the date of the notice.”); PGCC
§ 27-528.01(b) (“The District Council may vote to review the Planning Board’s decision on
a [SDP] on its own motion within thirty (30) days after the date of the notice of the Planning
Board’s decision.”).
3
2) whether the proposed location of replacement trees to mitigate “the loss of the existing
tree canopy” was sufficient; and 3) “whether access for Edwards Way residents can be
improved, to compensate for the increases in traffic to and from the [Edwards] Property.”
On February 9, 2012, the Planning Board held a hearing for the express purpose of
considering the three remand issues. Approximately four weeks after the hearing, the
Planning Board issued an amended resolution. Satisfied with Zimmer’s proposed solutions
to the three remand issues, the Planning Board again approved Zimmer’s application.7
After the Planning Board’s second approval of Zimmer’s application, the District
Council exercised its authority to “call up” the case for a second time. On May 21, 2012, the
District Council heard oral argument. Approximately thirty days later, the District Council
issued a written opinion reversing the decision of the Planning Board and again denying
Zimmer’s applications for both CDP-1001 and SDP-1001. In support of its decision, the
District Council set forth fourteen specific grounds for denying Zimmer’s application.
As a result of the denial of its application, Zimmer filed a petition for judicial review
in the Circuit Court for Prince George’s County.8 The circuit court held a hearing on
January 11, 2013.
7
The Planning Board adopted amended resolutions re-approving CDP-1001 and SDP-
1001 on March 8, 2012.
8
Zimmer appealed the denial of CDP-1001 and SDP-1001 separately. The cases were
subsequently consolidated.
4
On March 15, 2013, the circuit court, through a comprehensive written opinion,
reversed the District Council.9 In its memorandum opinion, the circuit judge first concluded
that Zimmer had the requisite standing to seek judicial review. Specifically, the circuit court
concluded that Zimmer is not “doing business” in Maryland and, therefore, is not subject to
Maryland’s laws governing unregistered foreign companies.10
Next, the circuit court concluded that the District Council exercised appellate
jurisdiction from the Planning Board and not original, de novo, jurisdiction. The circuit court
found that “the [District] Council’s authority is limited to appellate review of the Planning
Board’s decisions” and that its “authority is limited to determining whether the Planning
Board’s decision was arbitrary, capricious, discriminatory, or illegal.” As such, the circuit
court judge found that the District Council is prohibited from “second guessing” the Planning
Board’s judgment, absent a showing that the Planning Board’s decision was arbitrary,
capricious, discriminatory, or illegal.
The circuit court further found that the District Council was limited in its review to
the three remand issues. As a result, the circuit court held that the District Council
improperly exceeded the scope of its review. Specifically, the circuit court noted that “it was
improper for the [District] Council to expand its review in the second ‘call-up’ to consider
9
Although we “look[] through the circuit court’s . . . decision and evaluate[] the
decision of the agency,” People’s Counsel v. Surina, 400 Md. 662, 681 (2007), we,
nevertheless, set forth the circuit court’s detailed analysis and conclusions.
10
This requirement is embodied in Maryland Code (1975, 2007 Repl. Vol.)
§ 4A-1002(a) of the Corporations and Associations (“C.A.”) Article.
5
new issues outside the scope of remand and that were never even discussed at oral
argument.”
Finally, the circuit court considered the District Council’s fourteen reasons for
denying Zimmer’s application. The circuit court observed that only two of the fourteen
stated reasons for denial were raised in the District Council’s initial order of remand. After
reviewing each of the fourteen grounds for denying Zimmer’s application, the circuit court
further observed that none of the District Council’s grounds for denial were supported by
substantial evidence. As such, the circuit court reversed the decision of the District Council
and reinstated the Planning Board’s approval of CDP-1001 and SDP-1001.11
This timely appeal followed. We shall recite the relevant standard of review in the
applicable section of our “Discussion,” infra.
DISCUSSION
I.
The District Council first contends that the circuit court lacked subject matter
jurisdiction over the action. Specifically, the District Council argues that, because Zimmer
does not own property or operate a business in Prince George’s County, it is not a “person”
under Maryland law whose interests are subject to judicial review. As such, the District
11
The District Council’s appeal from the circuit court’s order reinstating the Planning
Board’s approval of SDP-1001 is identified as case no. 265 in the Court of Special Appeals.
The District Council’s appeal from the circuit court’s order reinstating the Planning Board’s
approval of CDP-1001 is identified as case no. 259.
6
Council asks us to remand this case with an order instructing the circuit court to dismiss the
action for lack of subject matter jurisdiction.
Zimmer maintains that the District Council failed to raise this issue before the circuit
court and, therefore, the issue is not preserved for our review. Zimmer claims that the
District Council’s subject matter jurisdiction argument “is a thinly veiled [] attempt to pursue
a standing challenge that it failed to preserve below.” Indeed, Zimmer contends that the only
standing argument advanced by the District Council was entirely unrelated to the argument
it presents on appeal. Zimmer further argues that, assuming arguendo, this issue is somehow
preserved for our review, Zimmer has the requisite standing to challenge the District
Council’s decision. We agree with Zimmer that this issue concerns one of standing and
further agree that it is not preserved for our review.
Maryland Rule 8-131(a) expressly provides that we normally will not decide an issue
“unless it plainly appears by the record to have been raised in or decided by the trial court.”
Maryland Rule 8-131(a). The Court of Appeals has regularly held that “the primary purpose
of Rule 8–131(a) is to ensure fairness for all parties in a case and to promote the orderly
administration of law.” Elliott v. State, 417 Md. 413, 434 (2010) (quoting State v. Bell, 334
Md. 178, 189 (1994)).
“Lack of subject matter jurisdiction may be raised at any time, including initially on
appeal” and “the issue of subject matter jurisdiction need not be raised by a party, but may
be raised by a court sua sponte.” Dutcher, supra, 365 Md. at 405. The preservation rule,
7
however, clearly applies to standing issues and “[w]e ordinarily do not decide issues of
standing not raised in the trial court.” Garner v. Archers Glen Partners, Inc., 405 Md. 43,
55 (2008); see also Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 71 (2003) (“[A]ny dispute
concerning [a party’s] standing should have been raised and litigated in the [c]ircuit [c]ourt,
not the Court of Special Appeals.”).
At the outset, we agree with Zimmer that the issue advanced before us by the District
Council is one of standing, not subject matter jurisdiction. The District Council admits as
much in its brief as it repeatedly refers to the issue as one of standing, including arguing that
“Zimmer had no standing to seek a petition for judicial review.” Moreover, Maryland Code
(2012) § 22-407 of the Land Use Article (“L.U.”), which governs judicial review of decisions
of the District Council, clearly contemplates standing, not subject matter jurisdiction.
Turning to the substantive merits of the District Council’s argument, the record before
us clearly reflects that the District Council failed to raise the issue of Zimmer’s standing
under L.U. § 22-407 in the circuit court. Although the District Council argued that Zimmer
lacked standing in the circuit court, the District Council’s standing argument was expressly
premised under Maryland Code (1975, 2007 Repl. Vol.) § 4A of the Corporations and
Associations (“C.A.”) Article, not L.U. § 22-407. Specifically, the District Council argued
that Zimmer was in violation of C.A. § 4A-1002(a), which requires that, before doing
business in Maryland, “a foreign limited liability company shall register with the [Maryland
8
State Department of Assessment and Taxation].” See C.A. § 4A-1002(a). Indeed, the record
is devoid of any argument before the circuit court related to L.U. § 22-407.
Ultimately, the District Council failed to raise the issue of Zimmer’s standing based
on L.U. § 22-407 before the circuit court. The District Council failed to challenge Zimmer’s
standing based on L.U. §22-407, and because the District Council now bases its standing
argument on L.U. § 22-407, the issue is not preserved for our review. As such, inasmuch as
the question is one of standing -- and not of subject matter jurisdiction -- and because the
issue was not raised before the circuit court, the District Council’s standing argument is not
preserved for our review on appeal.
II.
The District Council next contends that the circuit court improperly determined that
the District Council’s review of the Planning Board is limited to that of appellate jurisdiction
and not original, de novo, jurisdiction. The District Council maintains that the circuit court
erred in applying the reasoning of Cnty. Council of Prince George’s Cnty. v. Curtis Regency,
121 Md. App. 123 (1998), to this case. Specifically, the District Council argues that Curtis
Regency is inapplicable to the case at bar because the holding of Curtis Regency is limited
to that of subdivisions, not zoning issues. As shall be discussed, we hold that the District
Council is vested with appellate jurisdiction and not original, de novo, jurisdiction. We
further hold that the circuit court did not err in applying the reasoning of Curtis Regency to
this case.
9
A. Standard of Review
In reviewing the decision of an agency, we “look[] through the circuit court’s . . .
decision[], although applying the same standards of review, and evaluate[] the decision of
the agency.” People’s Counsel v. Surina, 400 Md. 662, 681 (2007). We are “limited to
determining if there is substantial evidence in the record as a whole to support the agency’s
findings and conclusions, and to determine if the administrative decision is premised upon
an erroneous conclusion of law.” Hamza Halici v. City of Gaithersburg, 180 Md. App. 238,
248 (2008) (internal quotation marks and citations omitted).
When applying the “substantial evidence” test, a reviewing court must decide“whether
a reasoning mind reasonably could have reached the factual conclusion the agency reached.”
Layton v. Howard Cnty. Bd. of Appeals, 399 Md. 36, 48-49 (2007) (internal quotation
omitted). “In applying the substantial evidence test . . . [we] must review the agency’s
decision in the light most favorable to the agency, since decisions of administrative agencies
are prima facie correct and carry with them the presumption of validity.” Pollock v. Patuxent
Inst. Bd. of Review, 374 Md. 463, 476-77 (2003). “Furthermore, not only is the province of
the agency to resolve conflicting evidence, but where inconsistent inferences from the same
evidence can be drawn, it is for the agency to draw the inferences.” Id. at 477 (citations and
internal quotations omitted).
“We are less deferential in our review, however, of the legal conclusions of the
administrative body and may reverse those decisions where the legal conclusions reached by
10
that body are based on an erroneous interpretation or application of the [applicable] statutes,
regulations, and ordinances . . . . ” Surina, supra, 400 Md. at 682 (internal quotations
omitted). “When determining the validity of those legal conclusions reached by the
[administrative] body, however, ‘a degree of deference should often be accorded the position
of the administrative agency’ whose task it is to interpret the ordinances and regulations the
agency itself promulgated.” Id. (internal citations omitted). Thus, “[e]ven though the
decision of the Board of Appeals was based on the law, its expertise should be taken into
consideration and its decision should be afforded appropriate deference in our analysis of
whether it was ‘premised upon an erroneous conclusion of law.’” Id. at 682-83 (internal
citations omitted). Finally, in an administrative appeal, the appellant bears the burden of
establishing an error of law or that the agency’s final decision was not supported by
substantial evidence. Taylor v. Harford Cnty. Dep’t of Soc. Servs., 384 Md. 213, 222-23
(2004).
B. Jurisdiction of the District Council
The District Council argues that it is vested with original jurisdiction and that it is not
limited in the scope of its review to the standard of review for appellate jurisdiction. The
District Council further maintains that the circuit court improperly relied upon Curtis
Regency in rendering its decision. Specifically, the District Council contends that the
application of Curtis Regency is limited to that involving subdivisions and does not extend
to zoning matters, such as the case before us.
11
The Maryland Regional District Act (the “RDA”) was enacted by the General
Assembly to empower Prince George’s County to create zoning enabling legislation. Cnty.
Council of Prince George’s Cnty. Council v. Billings, 420 Md. 84, 96 (2011) (quoting Prince
George’s Cnty. v. Ray’s Used Cars, 398 Md. 632, 635–36 (2007)). The RDA specifically
provides for the creation of a county Planning Board. L.U. § 20-202(a)(1). The RDA further
provides that the Planning Board:
(i) “is responsible for planning, subdivision, and zoning
functions that are primarily local in scope; and
(ii) shall exercise, within the county planning board’s
jurisdiction, the following powers:
1. Planning;
2. Zoning;
3. Subdivision;
4. Assignment of street names and house
numbers; and
5. Any related matter.
L.U. § 20-202(a)(1). (Emphasis added).
12
The District Council, pursuant to PGCC § 27-523,12 is only authorized to affirm,
reverse, or modify the decision of the Planning Board, or to return the case to the Planning
Board to take further testimony.13 Indeed, the District Council is expressly limited in its
consideration to “the facts and information contained within the record made at the hearing
before the Planning Board.” PGCC § 27-523(c). In our view, based on the testimony,
documents, and evidence presented at the hearing before the Planning Board, the District
Council is limited to determining whether the Planning Board’s decision was “arbitrary,
capricious, discriminatory, or illegal.” See Curtis Regency, supra, 121 Md. App. at 137-38.
Indeed, if the District Council were vested with de novo review, the Planning Board’s
legal responsibility to engage in fact finding would be rendered meaningless.14 The Planning
Board’s thorough evidentiary process could be simply discarded in favor of the review by the
District Council, which neither conducts its own evidentiary hearing nor develops its own
12
We note that PGCC § 27-523 governs CDPs and not SDPs. PGCC § 27-528.01,
which governs the review of SDPs, provides that: “[i]n reviewing the [SDP], the District
Council shall follow the procedures as set forth for the review of [CDPs] in Section 27-523
as modified in this Section and findings as set forth in Section 27-528.” Therefore, the
procedures used by the District Council to review SDPs are the same as the procedures used
by the District Council to review CDPs.
13
PGCC § 27-523(d) provides that “[w]ithin sixty (60) days after the close of the
[District] Council’s hearing, the [District] Council shall affirm, reverse, or modify the
decision of the Planning Board, or return the Plan to the Planning Board to take further
testimony or reconsider its decision.” (Emphasis added).
14
PGCC § 27-522(a) expressly provides that: “[t]he Planning Board may approve,
approve with modification, or disapprove the [CDP].” Similarly, PGCC § 27-528 grants the
Planning Board the power to consider preliminary approvals of SDPs.
13
record. Further, the Planning Board’s decision is final if no appeal is taken from the decision
of the Planning Board. See PGCC § 27-523(d) (“If the [District] Council fails to act within
the specified time, the Planning Board’s decision is automatically affirmed.”).
The District Council argues that the circuit court erred in extending our reasoning in
Curtis Regency to include zoning issues. In Curtis Regency, the Planning Board
preliminarily approved a subdivision plat proposed by Curtis Regency Service Corporation
and Rose Valley Limited Partnership (“Curtis Regency”). Id. at 126. A local citizens’ group
appealed the Planning Board’s decision to the District Council, which reversed the approval
by the Planning Board. Id. Curtis Regency subsequently sought judicial review of the
District Council’s decision. Id. The circuit court reversed the decision of the District
Council and reinstated the Planning Board’s approval of the subdivision plat submitted by
Curtis Regency. Id.
On appeal, we concluded that the District Council possessed appellate jurisdiction,
not original jurisdiction, over subdivision matters. Id. at 135. The District Council,
therefore, “acted contrary to its statutorily defined power” and should have “given deference
to the Planning Board’s decision, except as to matters of law.” Id. at 137. We expressly held
that “the District Council should have used its power to determine whether the action of the
[Planning Board] was ‘arbitrary, capricious, discriminatory or illegal.’” Id. at 137-38 (citing
People’s Council for Baltimore Cnty. v. Beachwood Ltd. P’ship, 107 Md. App. 627, 648-49
(1995)) (internal quotation marks omitted). Moreover, we reasoned that “[s]ince the District
14
Council does not have the power to create the cause, but, instead, hears the cause to correct
and revise proceedings already instituted, it does not exercise original jurisdiction.” Id. at
134. Rather, the District Council is “confined to exercise its appellate jurisdiction.” Id.
Indeed, in concluding that the District Council is vested with appellate jurisdiction, we
observed that the District Council
may not substitute its judgment for that of the [Planning Board],
even if it, had it been so empowered, might have made a
diametrically different decision. The circumstances under which
it may overturn or countermand a decision of the [Planning
Board] are narrowly constrained. It may never simply second
guess.
Id. at 137 (quoting Beachwood I, supra, 107 Md. App. at 638).
In the instant case, the District Council fails to provide any legal support for its
contention that Curtis Regency applies only to subdivision issues, not zoning issues. Instead,
the District Council baldly sets forth the applicable standard of review that courts use to
evaluate agency decisions and argues that its determinations are entitled to deference. We
are unpersuaded. Indeed, nowhere in Curtis Regency do we suggest that the case be limited
to subdivision matters. In fact, we broadly framed the issue in that case as “whether, as an
appellate forum, the [District] Council owed deference to the fact finding and conclusions
flowing therefrom of the Planning Board.” Id. at 133-34. We did not then -- nor do we
now -- expressly limit our holding in Curtis Regency to cases involving subdivisions.
15
The District Council subsequently amended the PGCC in an effort to grant itself
original jurisdiction.15 Specifically, PGCC § 27-132(f) provides:
(f) Jurisdiction.
(1) In deciding an appeal to the District
Council, . . . the [District] Council shall
exercise original jurisdiction.
(2) For any appeal or review of a decision
made by . . . the Planning Board, the
[District] Council may, based on the
record, approve, approve with conditions,
remand, or deny the application.
PGCC § 27-132(f) (emphasis added).
In Curtis Regency, however, we expressly observed that, if the District Council were
to adopt an ordinance such as PGCC § 27-132(f), “we would strongly question its validity,
since it would appear to contradict the exclusive jurisdiction given to the Planning Board by
public general law.” Curtis Regency, supra, 121 Md. App. at 135, n. 4 (citing Prince
George’s Cnty. v. Maryland-Nat’l Capital Park and Planning Comm’n, 262 Md. 202
(1973)). “The RDA, being a public general law, circumscribes what implementing local
15
It is noteworthy that the District Council only references PGCC § 27-132(f) in
passing in its brief. In both instances, the District Council references PGCC § 27-132(f) for
the proposition that the District Council is only authorized to approve, approve with
conditions, remand, or deny CDP-1001 and SDP-1001 based on the record established before
the Planning Board. Inexplicably, however, the District Council fails to reference PGCC §
27-132(f) as grounds in support of its argument that it possesses original jurisdiction over
zoning disputes. The District Council further failed to raise the applicability of PGCC
§ 27-132(f) in the hearing before the circuit court.
16
legislation the [District] Council may enact.” Dutcher, supra, 365 Md. at 424. Indeed, “[t]he
[District] Council is not empowered to augment the administrative appeal process beyond
that provided for in [Maryland Code (1957, 1997 Repl.Vol.), Art. 28,] § 7–117.” 16 Id. at 425.
Moreover, the RDA “is the exclusive source of zoning authority in those areas of Prince
George’s County which it covers.” Cnty. Council of Prince George’s Cnty. v. Brandywine
Enterprises, Inc., 350 Md. 339, 342 (1998) (emphasis added).
A plain reading of the RDA reflects the unassailable conclusion that the General
Assembly expressly empowers the Planning Board with the authority to administer “zoning
functions that are primarily local in scope.” L.U. § 20-202(a)(1)(I). The RDA further
provides that zoning issues are subject to the Planning Board’s jurisdiction. L.U. § 20-
202(a)(1)(ii). Zimmer, therefore, suggests that PGCC § 27-132(f) is invalid because it is an
attempt to use a local ordinance to contravene the state enabling act, the RDA. We agree.
The Bill Summary of the 1996 amendment provides that the District Council’s
purpose in enacting the amendment was to grant itself original jurisdiction based on its own
independent understanding of its responsibility in examining zoning issues. The Bill
Summary provides, in relevant part:
[Section 27-132(f)] clarif[ies] what has always been assumed
and has historically been the [District] Council’s practice
regarding jurisdiction of the [District] Council when hearing
appeals. The bill states that when hearing an appeal from the
16
The RDA was previously embodied at Maryland Code (1957, 1997 Repl.Vol.), Art.
28, §§ 1-101 through 8-127.
17
Planning Board . . . the [District] Council is exercising original
jurisdiction. This means that in deciding an appeal, [the District
Council] may make the decision based on their own judgement
[sic] rather than simply determining whether the [Planning
Board] made an error of law or had before it substantial
evidence to support its decision.
CB-76-1996, 1996 Leg. Sess. (Prince George’s County Council 1996) (emphasis added).
The Bill Summary goes on to note that the District Council shall not accept new
evidence:
Tom Haller, representing the Chamber of Commerce, . . .asked
for clarification regarding the ability of the [District] Council to
accept new evidence under the provisions of this bill. Joyce
Nichols, Principal Counsel to the District Counsel [sic], pointed
out that the language [amended PGC Code § 27-132(f)] states
that the decision of the [District] Council shall be based on the
record.
The Bill Summary, therefore, explains that PGC Code Section 27-132(f) permits the District
Council to substitute its judgment and decide the case differently from the Planning Board,
but it must do so based on the record presented to the Planning Board.
Nevertheless, the District Council argues that it has “original jurisdiction” over
appeals from Planning Board decisions. Critically, the District Council cannot grant itself
original jurisdiction when the General Assembly has expressly entrusted the Planning Board
with the authority to decide preliminary zoning issues. In enacting subsection (f) of PGCC
§ 27-132, the District Council assumed that it possessed original jurisdiction. In so doing,
however, the District Council failed to consider the applicability of the RDA. Indeed, “no
custom, however long and generally it has been followed by officials of the State, can nullify
18
the plain meaning and purpose of a statute.” Smith v. Higinbothom, 187 Md. 115, 132
(1946) (emphasis added). Although the District Council has long assumed that it possesses
original jurisdiction, a plain reading of the RDA reflects that the Planning Board, not the
District Council, is vested with original jurisdiction over zoning matters. The District
Council simply cannot insert the magic words “original jurisdiction” and assume that such
an amendment authorizes itself with original jurisdiction, especially in light of the
provision’s conflict with the RDA.
Moreover, the express provisions of the PGCC provide that: 1) the decision of the
Planning Board is final if there is no appeal to the District Council; 2) the District Council
is limited in its review to the facts and information established at the hearing before the
Planning Board; and 3) the District Council is only authorized to affirm, reverse, or modify
the decision of the Planning Board based on the record. Indeed, “the District Council does
not have the power to create the cause, but, instead, hears the cause to correct and revise
proceedings already instituted . . . .” before the Planning Board. Curtis Regency, supra, 121
Md. App. at 134.
Similarly, the Court of Appeals has acknowledged the internal inconsistency of Prince
George’s County’s attempt to confer original jurisdiction on the District Council through the
District Council’s enactment of PGCC § 27-132(f). Specifically, Judge Harrell, writing for
the majority in Dutcher, cogently observed as follows:
PGCC § 27-132(f) . . . is not a subdivision regulation under
PGCC subtitle 24, but rather a zoning regulation under PGCC
19
subtitle 27. As such, we do not review PGCC § 27-132(f) here,
but do note that it is confusing and internally inconsistent as
regards the nature of the jurisdiction the District Council
purports to exercise in matters addressed by [PGCC
§ 27-132(f)].
Dutcher, supra, 365 Md. at 411, n. 13. The Court, in Dutcher, highlighted that the District
Council grants itself “original jurisdiction” under PGCC § 27-132(f)(1), but, nevertheless,
confines itself to examining the Planning Board’s decision “based on the record . . . .” PGCC
§ 27-132(f)(2). Indeed, it is inherently inconsistent for the District Council to grant itself
“original jurisdiction” when it is limited to reviewing the record established before the
Planning Board.
Taken together, the pertinent provisions of the PGCC, read in conjunction with the
RDA, leads us to conclude that the District Council is vested with appellate jurisdiction, not
original jurisdiction, over zoning matters. As such, the District Council is limited to deciding
whether the Planning Board’s decision was “arbitrary, capricious, discriminatory, or illegal.”
Curtis Regency, supra, 121 Md. App. at 137-38.
III.
The District Council next contends that the circuit court erred in finding that the
District Council was limited to reviewing the three remand issues when it “called-up” the
case for a second time. Moreover, the District Council asserts that it was proper for the
District Council to expand its review beyond the three issues that were initially remanded to
the Planning Board. We disagree.
20
As mentioned, supra, PGCC § 27-523(c) expressly provides:
The District Council shall schedule a public hearing on the
appeal or review. Testimony at the hearing shall be limited to
the facts and information contained within the record made at
the hearing before the Planning Board.
PGCC § 27-523(c) (emphasis added). Thus, a simple reading of PGCC § 27-523(c) leads
to the unassailable conclusion that the District Council must constrain its review of decisions
of the Planning Board “to the facts and information contained within the record made at the
hearing before the Planning Board.” PGCC § 27-523(c).
In the instant case, the Planning Board approved CDP-1001 and SDP-1001 on
September 15, 2011. Subsequently, the District Council “called-up” the case and, upon
review of Zimmer’s application, remanded the case to the Planning Board to expressly
consider the three remand issues.17 Satisfied with Zimmer’s proposed solutions to the three
remand issues, the Planning Board issued an amended resolution that specifically addressed
each issue upon remand and again approved CDP-1001 and SDP-1001. As such, when the
District Council exercised its discretion to “call-up” the case for a second time, it was limited
to the three remand issues expressly considered by the Planning Board.
Clearly, therefore, when the District Council set forth its fourteen grounds for denying
CDP-1001 and SDP-1001, it was acting outside its statutorily defined powers. Indeed, the
17
As discussed supra, the Planning Board was instructed to expressly consider:
1) mitigating the removal of trees through other amenities; 2) the location of potential
replacement trees; and 3) whether access to Edwards Road could be improved.
21
express terms of § 27-523(c) could not be any clearer. The District Council’s scope of
review is narrowly constrained to the facts and information presented at the hearing before
the Planning Board. More fundamentally, however, the District Council was not authorized
to set forth any grounds for denial other than the grounds specifically advanced before the
Planning Board, namely, the three remand issues. Rather, the District Council was
authorized to determine whether the Planning Board’s approval of Zimmer’s application was
“arbitrary, capricious, discriminatory, or illegal.” Curtis Regency, supra, 121 Md. at 137-38.
Accordingly, the District Council erred, as a matter of law, in expanding its consideration of
CDP-1001 and SDP-1001 beyond the scope of the three remand issues.
IV.
The District Council next argues that each of its fourteen grounds in support of its
decision to deny Zimmer’s application is supported by substantial evidence. In light of our
holding in Part III of our “Discussion,” this issue is moot. Critically, as addressed
previously, the District Council -- as an appellate forum -- is limited to determining whether
the decision of the Planning Board was “arbitrary, capricious, discriminatory, or illegal.” See
Curtis Regency, supra, 121 Md. at 137-38.
Accordingly, when the District Council exercised its discretion to “call-up” CDP-1001
and SDP-1001 for a second time, it was limited to determining whether the Planning Board’s
approval of CDP-1001 and SDP-1001 was “arbitrary, capricious, discriminatory, or illegal.”
Id. Clearly, therefore, when the District Council set forth additional grounds for reversing
22
the Planning Board, it was acting outside its statutorily defined power by substituting its
judgment for that of the Planning Board. As such, the District Council erred -- as a matter
of law -- in reversing the Planning Board and denying Zimmer’s application.
JUDGMENT OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY AFFIRMED.
APPELLANT TO PAY THE COSTS.
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