# Prince George's Cty. v. Concerned Citizens

> Court of Appeals of Maryland · August 22, 2023 · 485 Md. 150

URL: https://www.frixlaw.com/law-library/cases/10515314

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** August 22, 2023
- **Citations:** 485 Md. 150
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Gould
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10515314

## Opinion text

Prince George’s County Council, et al. v. Concerned Citizens of Prince George’s County,
et al., No. 23, September Term, 2022. Opinion by Gould, J.

LAND USE – ZONING – STANDARD OF REVIEW

Maryland courts review amendments to the text of a zoning ordinance as legislative
actions. Md. Overpak Corp. v. Mayor of Balt., 395 Md. 16, 35 (2006); MBC Realty, LLC
v. Mayor of Balt., 192 Md. App. 218, 234 (2010). In Prince George’s County, amendments
to the zoning ordinance are considered “final decision[s]” of the Prince George’s County
Council, sitting as the District Council, and are reviewed by courts only for legality. See
Md. Code Ann., Land Use § 22-407(a)(1), (e) (2012, 2022 Supp.); Town of Upper
Marlboro v. Prince George’s Cnty. Council, 480 Md. 167, 180-81, 191 (2022); Cnty.
Council of Prince George’s Cnty. v. Chaney Enters. Ltd. P’ship, 454 Md. 514, 528-31
(2017).

LAND USE – ZONING – UNIFORMITY

In uniformity challenges to zoning regulations, Maryland courts evaluate whether the
regulation is “reasonable and based upon the public policy to be served.” Montgomery
County v. Woodward & Lothrop, Inc., 280 Md. 686, 720 (1977). The Supreme Court of
Maryland has held that “[t]he crux of the [uniformity] requirement is only that similarly
situated properties are treated the same under the zoning regulations,” observing that “the
kind of discrimination violative of the uniformity requirement occurs when a zoning
ordinance singles out a property or properties for different treatment than others similarly
situated.” Anderson House, LLC v. Mayor of Rockville, 402 Md. 689, 714-15 (2008).

LAND USE – ZONING – UNIFORMITY

The Supreme Court of Maryland upheld an amendment to a Prince George’s County zoning
ordinance that allowed qualifying properties in the Residential-Agricultural Zone to
develop higher-density housing. Even though the amendment’s text and history showed
that the Council knew that only one particular property would likely qualify, the
amendment was valid because it furthered a valid public purpose and did not discriminate
between similarly situated properties.
Circuit Court for Anne Arundel County
Case No. C-02-CV-20-001850
Argued: February 3, 2023

IN THE SUPREME COURT

OF MARYLAND*

No. 23

September Term, 2022
__________________________________

PRINCE GEORGE’S COUNTY
COUNCIL, et al.

v.

CONCERNED CITIZENS OF PRINCE
GEORGE’S COUNTY, et al.
__________________________________

Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Getty, Joseph M. (Senior Justice,
Specially Assigned)

JJ.
__________________________________

Opinion by Gould, J.
Pursuant to the Maryland Uniform Electronic Legal
Fader, C.J., Watts, and Booth, JJ., dissent.
Materials Act (§§ 10-1601 et seq. of the State __________________________________
Government Article) this document is authentic.

2024.04.26
Filed: August 22, 2023
11:30:09 -04'00'

Gregory Hilton, Clerk
*At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals to the Supreme
Court of Maryland. The name change took effect on December 14, 2022.
This zoning dispute involves the interplay between the public’s interest in the future

of a small, struggling private airport in Prince George’s County and the financial interests

of its owner.

The airport lies in an area that was once rural and is now largely suburban. Over

the past forty years or so, a few dozen small planes have crashed during takeoff or landing.

Some of those planes have crashed into nearby residences or the highway that runs next to

the airport, sometimes fatally. Since at least the 1990s, the county has identified the airport

as a public safety risk.

The airport has experienced financial difficulties in recent years. As a result, its

owners have said they will increase operations or, alternatively, redevelop the site for

non-airport use. The county’s zoning ordinance has historically limited development of

housing at the airport to low-density, single-family detached housing. To incentivize

redevelopment of the airport, the County Council, over the protests of some constituents,

amended the text of the zoning ordinance to allow the airport to develop higher-density

housing, including townhouses.

Those constituents challenged the legality of that ordinance in court, claiming that

it violated Maryland’s uniformity requirement, which requires zoning laws to “be uniform

for each class or kind of development throughout a district or zone.” Md. Code Ann., Land

Use (“LU”) § 22-201(b)(2)(i) (2012, 2022 Supp.).1 They argued that the ordinance, though

facially neutral, violates uniformity because it is tailored so narrowly as to afford favorable

1
The cited statute applies to Prince George’s County. Maryland’s uniformity law
applicable elsewhere in the State is functionally identical. See LU § 4-201(b)(2).
development opportunities, in effect, to only the airport property. The circuit court rejected

their challenge, but the Appellate Court of Maryland2 reversed, finding that the ordinance

violated the uniformity requirement.

We find that, notwithstanding the financial benefits the airport’s owners and

developers may enjoy, the ordinance was adopted to further a valid public purpose and

does not discriminate against similarly situated properties; therefore, it should have

survived the uniformity challenge. Accordingly, we reverse the judgment of the Appellate

Court.

BACKGROUND

In November 2019, the Prince George’s County Council, sitting as the District

Council (the “Council”),3 enacted Council Bill 17-2019 (“CB-17” or “Council Bill 17”), a

text amendment to the Prince George’s County Code, to encourage the decommissioning

of the Freeway airport by allowing higher-density housing. Under the county zoning

ordinance then in effect (the “Old Zoning Ordinance” or “PGCC § 27-”), the airport was

zoned as Residential-Agricultural (“R-A”). The R-A Zone prohibited single-family

attached residences (“townhouses”) and imposed a maximum development density of 0.5

dwelling units per acre. PGCC §§ 27-441(b), 27-442(h).

2
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
3
The Council is the ultimate local legislative authority over zoning laws and maps
within Prince George’s County. LU § 22-104.
2
Council Bill 17, however, exempts qualifying R-A Zone properties, namely the

Freeway airport, from those limitations, allowing townhouses and a development density

of up to 4.5 dwelling units per acre. PGCC § 27-441(b) n.136.4 Specifically, CB-17 allows

for higher-density housing5 if located on an assemblage of adjacent properties that: (1) is

100-150 acres or was formerly used as an airport; (2) is entirely within one mile of a

municipal boundary; (3) is entirely within 2,500 feet of land used for the generation,

transmission, or distribution of electricity; and (4) has frontage on a freeway. Id.

The Freeway Airport and Environs

The Freeway airport is a privately-owned general aviation airport on a 129-acre

property at 3900 Church Road in Bowie. The Rodenhauser family has owned and operated

the airport since it began as an airfield in the 1930s, when the area was rural. In 1947, the

airport opened for general aviation and has operated as an airport ever since. In 1968, the

property was included in the R-A Zone. Because the R-A Zone does not allow for airports,6

the property obtained legal nonconforming use status.7

4
The cited footnote appears throughout the record variously as Footnote 134 and
Footnote 135. The current version of the zoning ordinance codifies the text amendment as
Footnote 136. PRINCE GEORGE’S COUNTY, MD., MUN. CODE (2022 Supp., Update 3),
(codified through Bill No. CB-104-2022, effective Dec. 27, 2022).
5
We refer to the allowance of townhouse construction and a development density
of up to 4.5 dwelling units per acre collectively as “higher-density housing.”
6
The R-A Zone allows special exceptions for private airstrips, which are much
smaller and limited in their operations. PGCC §§ 27-441(b), 27-445.07.
7
Nonconforming uses are lawful uses that do not conform to zoning regulations,
typically because they predate the enactment of a new zoning ordinance. Trip Assocs., Inc.
v. Mayor of Balt., 392 Md. 563, 573 (2006). A nonconforming use may be permitted to
3
Today, the airport is largely surrounded by suburban residential communities,

developed mostly in the last two decades, containing hundreds, if not thousands, of homes.

Waterford Estates is directly west of the airport, containing hundreds of single-family

detached homes; Fairwood lies to the north and has approximately 1,700 residences,

including townhouses; Fairview Manor sits to the east; and Woodmore Highlands is to the

southeast. The Woodmore golf course community, directly west of Waterford Estates and

approximately one-half mile from the Freeway airport, contains 259 townhouses. That

community was developed under a 2008 amendment to the zoning ordinance allowing

townhouses on certain R-A Zone properties, up to a density of 0.5 dwelling units per acre.

PGCC § 27-444(b)(6).

Route 50, an interstate highway with four lanes in each direction, abuts the north

end of the airport’s only runway. Along the property’s western edge, high-voltage electric

transmission lines installed in the 1960s run approximately one thousand feet from, and

parallel to, the runway. The transmission lines, in addition to presenting aviation obstacles,

reduce the space available for emergency landings. The eastern boundary of the property

runs along Church Road, a county road with one lane in each direction.

In the mid-1990s, the Small Airports Advisory Committee—which included

Councilmember Derrick Leon Davis, the sponsor of CB-17—studied the various airports

in Prince George’s County in an effort to promote safe development near the Freeway

airport. The committee was especially concerned with the risk of, and damage from, planes

continue if a property owner can show the use was lawful at the time the new zoning
ordinance was enacted. LU § 22-114.
4
crashing during takeoff and landing. Subsequent development of the Fairwood

community, located just north of the airport, incorporated lessons from that study.

Specifically, the Council enacted regulations limiting development density in areas where

planes were more likely to crash.

Since 1983, 32 accidents have been documented at the Freeway airport, resulting in

10 fatalities. In some cases, planes have landed directly on or close to Route 50, colliding

with traffic in at least one instance. On September 12, 2019, while CB-17 was under

consideration by the Council, a plane from the airport crashed into Route 50, striking a car

and injuring multiple people. At least twice, planes have crashed into or very close to

homes, sometimes fatally.

The Enactment of CB-17-2019

Councilmember Davis introduced CB-17 on April 30, 2019, to amend the Table of

Uses under the Old Zoning Ordinance for the stated purpose “of permitting Townhouse

and One-family detached dwelling uses in the R-A (Residential Agricultural) Zones of

Prince George’s County, under certain circumstances.” CNTY. COUNCIL OF PRINCE

GEORGE’S CNTY., MD., SITTING AS THE DIST. COUNCIL, CB-17-2019, 2019 Leg. (2019).

The first draft of the bill would have permitted development of townhouses up to

6.0 dwelling units per acre and single-family detached homes up to 6.7 dwelling units per

acre in the R-A Zone if the assemblage of land: (1) was no more than 140 acres; (2) was

formerly used, entirely or in part, as an airport; (3) was located within one mile of a

municipal boundary; and (4) had frontage on a public right-of way classified as an arterial

5
or higher by the State. Despite the facially neutral language of the bill, CB-17 specifically

sought to incentivize the decommissioning of the Freeway airport.

Two days later, the Prince George’s County Planning Board (the “Planning Board”)

held a hearing on the bill. The Planning Board is a five-member body responsible for local

planning, subdivision, and zoning. LU § 20-202(a)(i). Proposed amendments to the zoning

ordinance must be sent to the Planning Board for comments and recommendations. PGCC

§ 27-217. At the hearing, when a board member asked Robert Antonetti, counsel for

Freeway Airport, LLC,8 why Freeway Airport did not instead apply to rezone the property,

Antonetti said he expected a text amendment would be a faster and more direct process.

The same day, the Planning Board issued a report to the Council opposing CB-17.

The Planning Board argued that townhouses were not appropriate for the R-A Zone, the

stated purposes of which are “to provide for large-lot one-family detached residential

subdivisions, while encouraging the retention of agriculture as a primary land use[,]” and

to “encourage the preservation of trees and open spaces[.]” PGCC § 27-426(a).

The Planning Board determined that, without the “former airport” requirement,

approximately 262 properties would meet the criteria of the bill. With the “former airport”

requirement, however, only the Freeway airport would qualify, as the three other

operational airports in the county were not zoned R-A. The Planning Board added that it

“believe[d] this bill was drafted for a specific property”—the Freeway airport. The Prince

8
Freeway Airport, LLC, a partnership between the Rodenhauser family and St. John
Properties, Inc., is the contract purchaser of the Freeway airport property. For clarity, we
refer to petitioner Freeway Airport, LLC, as “Freeway Airport” and the Freeway airport
property as “the Freeway airport” or “the airport.”
6
George’s County Office of Law (“Office of Law”) agreed, writing in a one-sentence

memorandum that “[t]he bill may be subject to challenge as it appears to be drafted for a

specific parcel.” Neither the Planning Board nor the Office of Law expressly raised the

prospect of a uniformity violation.

Before CB-17 was sent to the Council, the Planning, Housing, and Economic

Development Committee of the Prince George’s County Council (the “Planning

Committee”) considered CB-17 in a hearing on June 20. In advance, Councilmember

Davis had asked Karen Zavakos, Legislative Officer for the Planning Committee, to draft

amendments to the bill (“Draft 2”) “[i]n the interest of tempering the concerns raised by

[the] Planning Board[.]” In response to concerns that the “formerly used as an airport

language . . . may have been too specific,” Draft 2 made the bill “more facially neutral.”

As relevant here, Draft 2 eliminated the “former airport” language; increased the maximum

area from 140 to 150 acres; required the assemblage to be within 2,500 feet of land used

for electrical generation, transmission, or distribution; and changed the requirement of

proximity to an arterial right-of-way to proximity to a freeway.

Discussion at the Planning Committee hearing was dedicated to the Freeway airport.

“Council Member Davis, the bill sponsor, informed the Committee that CB-17-2019 is

intended to facilitate an idea for a development opportunity on property in his district where

growth in the surrounding area of a small airport has occurred.” CNTY. COUNCIL OF PRINCE

GEORGE’S CNTY., MD., PLANNING, HOUSING, AND ECONOMIC DEVELOPMENT COMMITTEE

REPORT, 2019 Leg., 1 (2019). Various constituents testified. Most opposed CB-17,

expressing concerns about traffic safety on Church Road, increased burdens on public

7
resources like infrastructure and schools, and changes to the character of the area. A few

residents, however, testified in support of CB-17, citing the unsuitability of the airport to

the area, the undesirability of expanded airport operations there, and opportunities for

economic development.

Kim Rodenhauser, whose family owns the Freeway airport, read a prepared

statement. She described the financial challenges of the business and said that CB-17

would allow her family to redevelop the property rather than expand airport operations,

which the Rodenhausers believed would otherwise be necessary to stay in business. She

was forthright about the family’s financial interest in CB-17, saying, “This legislation

would benefit our family . . . we have a vested interest in the future of the property[.]” The

statement also described when, in 1998, an airplane crashed into the Rodenhausers’ home,

killing one person. Antonetti testified about the history of aviation accidents at the airport

and the risk presented by the nearby transmission lines, adding that “this bill would

absolutely motivate the permanent closure of this airport.” He also argued that the site was

well-suited for townhouses because it was located near existing housing development, a

freeway, and electricity transmission, and had already been cleared.

Councilmember Thomas Dernoga suggested reducing the maximum distance from

electrical infrastructure from 2,500 feet to 2,000 feet to ensure that no properties other than

the Freeway airport would qualify. This suggestion, however, was ultimately not proposed

as an amendment. The Planning Committee adopted the amendments proposed by

Councilmember Davis, further revised the acreage requirement to include a minimum of

100 acres, and voted to advance Draft 2 to the Council.

8
The Council held a hearing on September 10. Public comment largely tracked the

testimony at the Planning Committee hearing, with most opposing CB-17. Councilmember

Colin Byrd of the Greenbelt City Council expressed concern that, even though the bill

targeted the Freeway airport, it “could allow other properties in the County to do similar

things.” One constituent alleged that the proposed developer, St. John Properties, Inc., had

misled residents into submitting letters supporting the closure of the airport.

Others testified in support. Members of the Prince George’s County Chamber of

Commerce called the use of the site as an airport “unsustainable” and contended that CB-17

would create jobs, expand the tax base, and encourage development of nearby retail and

entertainment. Tom Williams, a longtime employee and instructor at the Freeway airport,

described his unease flying so close to housing developments. Antonetti also introduced

maps into the record showing the 32 documented accidents since 1983.

Councilmember Davis described his participation in the County’s past efforts to

reduce public safety risks arising from the airport’s proximity to housing developments,

namely Fairwood. He also rejected accusations made by certain constituents that

councilmembers had been paid by private interests to support CB-17.

The Council considered further amendments (“Draft 3”) on October 8, 2019. The

principal amendment, proposed by Councilmember Davis, reintroduced the “formerly used

as an airport” language—no longer, however, as an absolute requirement but as an

alternative to the acreage requirement. The record does not reveal why the former airport

use language was reintroduced. When Councilmember Davis was asked if the language

was necessary, given that the Freeway airport already satisfied the acreage requirement, he

9
replied affirmatively but without explanation. Another amendment reduced the maximum

development density to 4.5 dwelling units per acre. The Council approved the amendments

without explanation.

Before the next public hearing, Planning Board staff provided the Planning Board

with a memorandum opposing CB-17, contending that townhouses were neither

appropriate for the R-A Zone nor the successor Agricultural-Residential Zone (“AR”)

under the New Zoning Ordinance (“2022 PGCC § 27-”),9 and that the bill appeared to have

been drafted for a specific property. Two days later, the Planning Board submitted another

report to the Council repeating its concerns and recommending that the property instead be

rezoned to permit townhouses. The report noted that staff could not identify all properties

meeting the criteria of Draft 3 because staff (1) lacked records of land “formerly used as

an airport” and (2) could not determine what was meant by “assemblages of properties,”

which could potentially describe an “infinite” number of properties. The Planning Board,

9
In October 2018, the District Council adopted a new zoning ordinance (the “New
Zoning Ordinance”). The New Zoning Ordinance was set to take effect when the Council
approved a countywide sectional map amendment, a process requiring the Council to apply
the appropriate zoning classification in the New Zoning Ordinance to each parcel of real
property in the County. CNTY. COUNCIL OF PRINCE GEORGE’S CNTY., MD., SITTING AS
THE DIST. COUNCIL, CB-13-2018, 2018 Leg. (2018). The New Zoning Ordinance—both
the zoning text and accompanying maps—ultimately took effect April 1, 2022. To
distinguish citations to the Old Zoning Ordinance (“PGCC § 27-”) from citations to the
New Zoning Ordinance, references to the New Zoning Ordinance are identified as “2022
PGCC § 27-.”

When the New Zoning Ordinance took effect, the Freeway airport was rezoned as
Agricultural-Residential (“AR”), the successor to the R-A Zone under the Old Zoning
Ordinance. The AR Zone, like its predecessor, prohibits townhouses as a principal use and
provides for a maximum density of 0.5 dwellings units per acre. 2022 PGCC
§§ 27-4201(d)(2), 27-5101(c).
10
however, noted that the Freeway airport would meet the criteria if its airport operations

ceased.

The Office of Law also reviewed Draft 3, writing on November 13 that the bill

“appear[ed] to be drafted for a specific parcel contained within an R-A zone” because only

one parcel met the eligibility criteria for townhouse development. The Office of Law stated

that “[i]f townhomes are permitted in the R-A zone, then the zoning regulations will not be

uniform because townhomes are not detached, single family, nor on large lots.” This

statement marked the first direct appearance in the record of a uniformity concern.

Notably, the Office of Law’s concern apparently arose not because only the Freeway

airport met the townhouse development requirements but because, as a general matter,

allowing townhouse development conflicted with the purposes of the R-A Zone.

The Council held a public hearing on Draft 3 on November 19. Constituents

presented similar arguments as those previously described. Antonetti contended that the

bill was “not merely for private gain,” citing the accident history at the Freeway airport

and “the public safety benefit to closing a general aviation airport surrounded by residential

development.” The President of the Woodmore Homeowner’s Association10 expressed

concern that a specific parcel in his community called “Hidden Pond” might qualify for

higher-density housing under CB-17. This prompted the Council to amend the bill in a

manner designed to exclude that parcel.

The Woodmore Homeowner’s Association represents homeowners from the
10

Woodmore golf course community, not to be confused with Woodmore Highlands.
11
When it came time for the Council to vote on CB-17, Councilmember Deni Taveras

explained her affirmative vote and encouraged other Councilmembers to do the same,

saying:

. . . I’ll mention my experience with airport safety issues. And the
irony is that the gentleman from St. John’s does highlight seven
crashes and nine, and ten fatal deaths that have occurred over the last
several years and you are included. I remember. And what it remind
—what that also reminds me of is that, on November 12, 2001, back
where I’m from in New York, we had 265 people die in a plane crash,
Flight 587, heading to Dominican Republic. I don’t know if anybody
remembers that, but it was shortly after 9/11. And I lost ten people,
ten family members, on that plane crash, ones, family and friends.
And, especially after 9/11, as a New Yorker, I was never the same,
and neither was my family, and neither was the neighborhood.
Especially if you live in [sic] an airport, none of that is ever the same.

. . . [T]he alternative [to developing the Freeway airport] is that they’re
going to rebrand and they’re going to reengage to have higher,
increasing traffic. This is the risk that you take. And everybody feels
that it’s not them. They’re never going to get hit. They’re never—
they’ll survive.

And so, the thing is, I just say there’s nothing wrong with the outline
of the development plan that’s provided. With the same way we have
Fairwood and some of these other higher-density, and Woodmore
Highlands, some of these higher densities, they would look at—
there’s no difference with what’s being proposed, which concerns me
that why this area and not Fairwood and not these other places. Why
is that okay? And I think that the lady says, if they were allowed, why
can’t this?

And so, with that, I just want to say that, and there’s already plans for
an ice rink. There’s already plans for a school site. There are already
plans in place for future development that compensates and that
accounts for the changes that are coming. So, with that, I just want to
say go ahead and vote in favorable [sic] for this proposal.

12
The Council then approved the final version of CB-17, and CB-17 took effect 45

days later on January 3, 2020. The enacted bill added Footnote 13611 to the Table of Uses,

permitting townhouses and single-family detached homes in the R-A Zone at up to 4.5

dwelling units per acre if:

(a) The use is located on an assemblage of adjacent properties
that:
(i) is no less than one hundred (100) acres and no more
than one hundred fifty (150) acres in size or was
formerly used as an airport;
(ii) is entirely within one (1) mile of a municipal
boundary;
(iii) is entirely within 2,500 feet of land owned by a
regulated public utility and used for purposes of
electrical generation, transmission, or distribution
in connection with providing public utility service
in the County by a regulated public utility; and
(iv) a portion of the boundary of the assemblage of
adjacent properties has frontage on a public
right--of--way classified as a freeway or higher in
the Master Plan of Transportation and is maintained
by the State Highway Administration.
PGCC § 27-441(b).
Procedural Background

Judicial Review in the Circuit Court

Concerned Citizens of Prince George’s County, et al. (“Concerned Citizens”)

petitioned for judicial review of CB-17 in the Circuit Court for Prince George’s County on

December 16, 2019. In its supporting memorandum, Concerned Citizens presented five

11
See text accompanying note 4, supra.
13
questions, including whether CB-17 violated the uniformity requirement.12 They argued,

without reference to case law, that CB-17 “[o]n its face” violated uniformity by allowing a

“very specific, very limited segment of the R-A zone”—the Freeway airport—to develop

higher-density housing, in conflict with the stated purposes of the R-A Zone.

Citing Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686 (1977),

Freeway Airport and the Council argued in a joint opposition memorandum that CB-17 did

not violate uniformity because: (1) the text of the ordinance applied “uniformly to all

qualifying properties using the same exact terminology of the regulation,” even if it

produced “vastly different results on different properties throughout the zone,” and

(2) CB-17 was “rooted in a sound public policy of protecting the citizens of Prince

George’s County” by encouraging the decommissioning of the Freeway airport.

Concerned Citizens’ reply memorandum focused on the alleged impropriety of using a text

amendment to effect a “site-specific land use process,” but did not elaborate upon the

uniformity issue.

12
Concerned Citizens presented the following questions before the circuit court:

(1) Was the District Council’s enactment of CB-17-2019 an unlawfully granted
zoning approval for the Freeway Airport property, when the statutory requirements
for site-specific zoning actions were not met?;
(2) Did the District Council’s enactment of CB-17-2019 constitute unlawful spot
zoning?;
(3) Did the District Council’s enactment of CB-17-2019 violate the uniformity
requirement of the Regional District Act?;
(4) Did the District Council’s enactment of CB-17-2019 violate the “special law”
prohibition of Maryland’s Constitution?; and
(5) Was CB-17-2019 enacted unlawfully in the absence of a required public
hearing?
14
The matter was subsequently transferred to the Circuit Court for Anne Arundel

County. At the hearing, Concerned Citizens’ uniformity argument was limited to showing

that CB-17 was narrowly drafted to target and benefit the Freeway airport. On May 7,

2021, the circuit court affirmed the Council’s decision without explanation.

Judicial Review in the Appellate Court

On appeal to the Appellate Court of Maryland, Concerned Citizens raised

substantially the same challenges as in the circuit court13 and largely repeated their

uniformity argument. In discussing Woodward & Lothrop for the first time, Concerned

Citizens distinguished that case on the grounds that the regulations there were relatively

broad and had an actual effect on numerous properties, in contrast to those in CB-17, which

“were painstakingly specific to the Freeway Airport property.” Concerned Citizens did not

argue, however, that any criteria of CB-17 were unreasonable or not based on a public

13
Those issues, as stated and numbered by the Appellate Court, were:

(1) Did the District Council’s enactment of CB-17-2019 violate the uniformity
requirement of Maryland Code, Land Use Article, Regional District Act?;
(2) Did the District Council's enactment of CB-17-2019 violate the “special law”
prohibition of the Maryland Constitution?;
(3) Did the District Council's enactment of CB-17-2019 constitute unlawful “spot”
zoning?;
(4) Was the District Council's enactment of CB-17-2019 an unlawful grant of relief
to Freeway Airport from the use and density restrictions of the R-A zone without
the required administrative, quasi-judicial procedure?; and
(5) May the District Council’s enactment of CB-17-2019 be affirmed on the basis
of “public interest” or “public benefit”?

In re Concerned Citizens of PG Cnty. Dist. 4, 255 Md. App. 106, 109-10 (2022).
15
purpose. Those issues arose only when the Appellate Court questioned Freeway Airport

during oral argument, which led to a cursory and unrevealing discussion. Concerned

Citizens did not contend that any other properties were unreasonably excluded from the

development opportunities under CB-17.

The Appellate Court held that CB-17 violated Maryland’s uniformity requirement.

In re Concerned Citizens of PG Cnty. Dist. 4, 255 Md. App. 106 (2022). The Court

reasoned that CB-17 was “tailor-made for Freeway Airport” and that the record did not

show “any public purpose for creation of this special high-density area within an R-A

zone[.]” Id. at 124. In effect, the Court deemed CB-17 a “mere favor” to Freeway Airport.

Id. at 125-27. As evidence, the Court pointed to the provisions in CB-17 relating to former

airport use and proximity to electrical infrastructure, finding that they lacked any

discernible public purpose.14 The Court did not reach the other issues on appeal.

Petition for Certiorari and the Motion to Dismiss

Freeway Airport and the Council each petitioned for writ of certiorari, asking this

Court to reverse the Appellate Court and affirm the validity of CB-17. To complicate

matters, after we granted writ of certiorari, Prince George’s Cnty. Council v. Concerned

Citizens of Prince George’s Cnty., 482 Md. 31 (2022), a newly elected Council enacted

Council Bill 17-2023 (“CB-17-2023”), which took aim at CB-17 and the broader practice

of enacting footnote exceptions to the Table of Uses in the Old Zoning Ordinance. CNTY.

14
The Court did not take issue with the provisions requiring proximity to a
municipality and a freeway. Concerned Citizens, 255 Md. App. at 125-26 & n.16.
Concerned Citizens has not argued that those provisions are not reasonable and based upon
public policy, except to the extent they target the Freeway airport.
16
COUNCIL OF PRINCE GEORGE’S CNTY., MD., SITTING AS THE DIST. COUNCIL, CB-17-2023,

2023 Leg. (2023).15 The Council subsequently filed a notice of dismissal, thereby

withdrawing as a party and leaving Freeway Airport as the sole petitioner. See Md. Rule

8-601(a).

Concerned Citizens moved to dismiss the case on the grounds that CB-17-2023 had

repealed CB-17 and thus rendered the uniformity question moot. See Md. Rule

8-602(c)(8). “Generally, a case is moot if no controversy exists between the parties[.]”

D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 351 (2019). In land use and zoning

cases, we generally presume that, absent contrary legislative intent, a substantive change

in law occurring during litigation and before any substantive rights have vested is applied

retroactively. McHale v. DCW Dutchship Island, LLC, 415 Md. 145, 170 (2010). Thus, if

CB-17-2023 were to indeed preclude Freeway Airport from developing under CB-17, this

controversy would be moot.

Freeway Airport, in opposing the motion to dismiss, contends that development of

the airport can proceed under CB-17 despite the passage of CB-17-2023. Freeway Airport

argues that: (1) the New Zoning Ordinance allows, in certain cases, for development under

the Old Zoning Ordinance, see Concerned Citizens, 255 Md. App. at 109 n.2; (2)

CB-17-2023 prohibits development only under 2022 PGCC § 27-1903; and (3)

CB-17-2023 does not prohibit Freeway Airport from developing the property under other

15
Council Bill 17-2023 declared as its purposes: “limiting the authority in the
Zoning Ordinance for development of Townhouse and One-family attached dwelling uses
under the prior Ordinance in the R-A [] Zone” and “eliminat[ing] uses permitted in the
prior Ordinance by way of Footnoted exceptions[.]”
17
sections, namely 2022 PGCC § 27-1704, which allows for development of certain

“grandfathered” projects.

From the information in this record, we are unable to definitively determine that the

case is moot. We shall, therefore, address the merits. The effect of our decision on the

parties will be an issue for another day.

ZONING AND THE STANDARD OF REVIEW

Zoning authorities in Maryland implement land use plans and determinations of

zoning categories primarily through three processes: original zoning, comprehensive

rezoning, and piecemeal rezoning. Mayor of Rockville v. Rylyns Enters., Inc., 372 Md.

514, 532 (2002). Original zoning is the initial designation through legislative action,

ordinarily by a local government, of large areas according to their permissible or prohibited

uses and conditions. Id. at 532, 535. Comprehensive rezoning, as its name suggests, refers

to the same process applied to areas previously zoned. Id. In contrast, piecemeal rezoning

is a quasi-judicial action, culminating in a legislative act, relating to an individual parcel,

lot, or assemblage, and is typically requested by a property owner. Id. at 532; Anderson

House, LLC v. Mayor of Rockville, 402 Md. 689, 708 n.17 (2008).

The Council derives its zoning authority from the Maryland-Washington Regional

District Act (the “RDA”). Prince George’s County v. Zimmer, 444 Md. 490, 525-26, 523

n.29 (2015) (providing a history of the RDA); LU, Titles 14 to 27 (codifying the RDA).

The RDA establishes the Maryland-Washington Regional District, which consists of nearly

all of Montgomery and Prince George’s counties, LU § 20-101, and grants primary zoning

authority to the County Councils sitting as the District Councils, LU § 22-101.

18
The Council’s zoning powers include “divid[ing] the portion of the regional district

located within its county into districts and zones of any number, shape, or area it may

determine.”16 LU § 22-201. The Council has authority to “adopt and amend the text of the

zoning laws” and their accompanying maps to regulate, among other things: “the location,

height, bulk, and size of each building or other structure”; “the density and distribution of

population”; “the location and uses of buildings and structures”; and “the uses of land[.]”

LU § 22-104; see also LU § 22-201(b)(1). Importantly, a text amendment is not a

piecemeal rezoning, as it does not change the assigned zone of any parcel. MBC Realty,

LLC v. Mayor of Balt., 192 Md. App. 218, 238 (2010). Instead, it amends the regulations

that apply to a particular zone. Id.

We review the Council’s action in zoning matters as administrative agency action.

Cnty. Council for Prince George’s Cnty. v. Carl M. Freeman Assocs., Inc., 281 Md. 70, 74

(1977); Md. Rule 7-201(b). We look through the decisions of the trial court and evaluate

agency action directly. Comptroller of Md. v. FC-GEN Operations Invs. LLC, 482 Md.

343, 359 (2022).

For Prince George’s County, Section 22-407 of the Land Use Article provides the

standards of judicial review for the Council’s “final decision[s]” in zoning matters. LU

§ 22-407(a)(1), (e); see also Town of Upper Marlboro v. Prince George’s Cnty. Council,

480 Md. 167, 181, 191 (2022); Cnty. Council of Prince George’s Cnty. v. Chaney Enters.

Ltd. P’ship, 454 Md. 514, 528-31 (2017). Both legislative and quasi-judicial acts by the

16
Here, we use the terms “district” and “zone” interchangeably.
19
Council constitute reviewable “decisions.” Chaney Enters., 454 Md. at 531 n.12

(clarifying that zoning “decision[s]” under LU § 22-407(a)(1) include legislative acts, in

contrast to other statutes that limit review to zoning “actions”); see also Town of Upper

Marlboro, 480 Md. at 180-81, 191 (reviewing legislative acts of Prince George’s County

Council under LU § 22-407).

Section 22-407(e) identifies the circumstances under which we may reverse or

modify a zoning decision by the Council. The decision must be: “(i) unconstitutional;

(ii) in excess of the statutory authority or jurisdiction of the district council; (iii) made on

unlawful procedure; (iv) affected by other error of law; (v) unsupported by competent,

material, and substantial evidence in view of the entire record as submitted; or (vi) arbitrary

or capricious.” LU § 22-407(e).

Quasi-judicial decisions may be reversed or modified under any of the above

circumstances. Town of Upper Marlboro, 480 Md. at 180-81, 191. In contrast, we review

legislative decisions only for legality, which implicates only provisions (i) to (iv) of the list

above. Id. Review for legality “is an even more limited standard than the already narrow

review for arbitrary and capricious action, or for action unsupported by substantial

evidence.” Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 393 (2010).

Here, the Council’s enactment of CB-17 was “in the nature of” a legislative action.

MBC Realty, 192 Md. App. at 234 (holding that a text amendment is “in the nature of a

legislative action”); see Md. Overpak Corp. v. Mayor of Balt., 395 Md. 16, 35 (2006).17

17
Community members and at least one councilmember protested the Council’s
decision to use a text amendment here, arguing that Freeway Airport should have applied
20
Legislative action enjoys a strong presumption of validity; we do not substitute our policy

judgments for those of the legislature, and we assume as the action’s basis any reasonably

conceived state of facts that would sustain it. See Rylyns, 372 Md. at 535, 542-43

(“Because special exceptions [and conditional uses] are legislatively-created[,] . . . they

enjoy the presumption of correctness[.]”); Anderson House, 402 Md. at 723-24 (discussing

the presumption in the context of original zoning and comprehensive rezoning). The

challenger to the law or regulation “carries the heavy burden of establishing, by clear and

affirmative evidence” the invalidity of the action. Anderson House, 402 Md. at 724.

for a piecemeal rezoning—a quasi-judicial action. Those critics saw CB-17 and text
amendments broadly as ways to circumvent the more rigorous requirements of
quasi-judicial action.

In that vein, Concerned Citizens argued before the circuit court and Appellate Court
that CB-17 unlawfully bypassed what they contended were the required quasi-judicial
procedures for “site-specific zoning action.” The Appellate Court did not reach this issue,
instead invalidating CB-17 on uniformity grounds.

In MBC Realty, opponents of a text amendment which, in effect, allowed only a
single arena to install new billboards, argued that the amendment was piecemeal zoning.
192 Md. App. at 238. The Appellate Court rejected that argument, reasoning that the
amendment did not change the assigned zone of the arena. The same reasoning applies
here.

Additionally, neither the Land Use Article nor the Prince George’s County Code
require that “site-specific” zoning decisions be subject to quasi-judicial proceedings,
despite providing for rules in other specific situations. See LU § 22-206 (providing for text
amendment procedures); LU § 22-301 (providing authority to grant special exceptions and
variances); PGCC §§ 27-143 to 27-157 (providing rules for map amendments); PGCC
§§ 27-214 to 27-219 (providing rules for text amendments); PGCC §§ 27-296 to 27-418
(providing rules for special exceptions). Though applying for piecemeal rezoning may
have been available to Freeway Airport, the Council was permitted to act legislatively.
21
DISCUSSION

Concerned Citizens challenges the legality of CB-17 on the grounds that the

ordinance violates the uniformity requirement, which requires zoning laws to “be uniform

for each class or kind of development throughout a district or zone.” LU § 22-201(b)(2)(i).

Concerned Citizens argues, and the Appellate Court agreed, that CB-17 violates uniformity

because the Council narrowly tailored it to single out18 the Freeway airport as the only

qualifying property.

Maryland’s uniformity statutes, the likes of which nearly all other states have

adopted, Anderson House, 402 Md. at 713 & n.20, reassure property owners that they will

not be subject to “arbitrary” or “invidious” discrimination, id. at 717-20, or government

favoritism or coercion, id. at 716 (quoting Rylyns, 372 Md. at 536).19 Modern courts,

including this one, understand uniformity as a state law counterpart to “the constitutional

equal protection prohibition against purely arbitrary zoning classifications and

restrictions,” and generally apply similar principles of review. 1 Rathkopf’s The Law of

18
The term “singling out” in Maryland uniformity cases first appears, to our
knowledge, in Anderson House, 402 Md. at 714, 715 n.21, 717, 720, though the concept
appeared long before then in spot zoning cases, see, e.g., Rylyns, 372 Md. at 546.
19
Maryland’s uniformity statutes adopt, nearly verbatim, the language of the
Standard State Zoning Enabling Act, a model act promulgated by the U.S. Department of
Commerce. The model act provides: “All such regulations shall be uniform for each class
or kind of buildings throughout each district.” A STANDARD STATE ZONING ENABLING
ACT § 2 (U.S. DEP’T OF COMMERCE 1926).

Courts have also described improper discrimination as “unfair,” Anderson House,
402 Md. at 720, “unequal,” id., “ad hoc,” id. at 714, and “unreasonable,” Rylyns, 372 Md.
at 546 (describing illegal spot zoning).
22
Zoning and Planning § 4:8 (4th ed. rev. 2023) (“Rathkopf”) (citing Woodward & Lothrop,

280 Md. 686); see also Anderson House, 402 Md. at 719 n.23 (comparing the Equal

Protection clause analysis to uniformity analysis). Spot zoning cases, which typically

involve uniformity or uniformity-like challenges to piecemeal rezonings, are also

instructive.20 See, e.g., Cassel v. Mayor of Balt., 195 Md. 348 (1950); Hewitt v. Cnty.

Comm’rs of Baltimore Cnty., 220 Md. 48 (1959).

We may consider direct and circumstantial evidence, including “the historical

background of the decision under [legislative] challenge, the specific series of events

leading to the enactment or official policy in question, and the legislative or administrative

history, including contemporaneous statements made by the members of the

decisionmaking body.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 540 (1993) (describing the standard of review in an equal protection challenge).

Regulations that draw classifications between properties within a zone are, as a

general matter, permissible. The leading cases in Maryland’s limited uniformity case law

provide that such regulations do not violate uniformity when “reasonable and based upon

the public policy to be served,” Woodward & Lothrop, 280 Md. at 720, and when “similarly

situated properties are treated the same[,]” Anderson House, 402 Md. at 715.

20
“Spot zoning occurs when a small area in a District is placed in a different zoning
classification than the surrounding property[.]” Rylyns, 372 Md. at 546 (quoting Tennison
v. Shomette, 38 Md. App. 1, 8 (1977)).
23
Public Purpose

Two of our leading uniformity cases present examples of regulations based upon

valid public purposes, that is, “the public policy to be served.” Woodward & Lothrop, 280

Md. at 720. In Woodward & Lothrop, we upheld regulations discriminating between

properties in the same zone based on size and the year that the use began, when those

regulations furthered “the legislative purpose of encouraging land assembly to permit

cohesive development and to assure open spaces and other amenities[.]” Id. at 721. And

in Anderson House, we found that regulations tailored to existing property conditions—

which, in effect, created classifications—helped “avoid[] the need for a race to obtain

variances lest existing developed properties become nonconforming,” 402 Md. at 719,

“minimiz[ed] the impact of businesses on adjacent residential properties,” id. at 725 n.26,

and “preserv[ed] the residential character of the existing structures and lots,” id.

In contrast, zoning regulations have been held invalid when they lack a public

purpose. In Cassel v. Mayor of Baltimore, we invalidated the rezoning of a single property

in a larger residential zone because the sole purpose of the rezoning was to allow the

property owner to operate a funeral home, not to satisfy any apparent public need. 195

Md. at 358 (finding little local demand for funeral homes, three existing funeral homes

within a close distance, and proximity to a commercial district where the funeral home

could have operated instead). Similarly, in Hewitt v. County Commissioner of Baltimore

County, we struck down a zoning map amendment reclassifying two properties in a large

residential area to business zoning when the only evidence of a public benefit was a vague,

speculative notion of serving travelers from a nearby expressway. 220 Md. at 62-63.

24
The requirement that there be a valid public purpose promotes uniformity by

protecting against mere favoritism toward particular parties. For example, in Board of

County Commissioners of Washington County v. H. Manny Holtz, Inc., the Appellate Court

invalidated the piecemeal rezoning of a property because the Washington County Board of

County Commissioners (the “Board”) had, merely to appease certain neighbors, restricted

the allowable uses of the property as a condition of approval. 65 Md. App. 574, 576-77

(1985); see also Benner v. Tribbit, 190 Md. 6, 20 (1948) (describing invalid zoning

regulations, broadly, as “arbitrary permission to A and prohibition to B to use their own

property, at the pleasure of neighbors or at the whim of legislative or administrative

agencies”); Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 130 (1972)

(discussing an invalidated ordinance where “the sole basis for [different treatment] was a

‘plebescite [sic] of neighbors’ without any supporting evidence that related to the public

health, comfort, safety or welfare []”).

Here, CB-17 furthers a public purpose by incentivizing the redevelopment of land

currently used for a nonconforming and dangerous airport. Eliminating the risk of plane

crashes, particularly in a residential area, without question furthers an interest in public

safety, and Concerned Citizens has not argued otherwise. Moreover, some constituents

and at least one local association supported CB-17 because they expected townhouse

development would benefit the local economy.

The Council was presented with the following arguments and information, which

together make up a “state of facts reasonably [] conceived that would sustain” the Council’s

25
enactment of CB-17. See Anderson House, 402 Md. at 724 (quoting Edgewood Nursing

Home v. Maxwell, 282 Md. 422, 427 (1978)).

1. A history of crashes and fatalities relating to aircraft taking off or landing at the
Freeway airport. This record included detailed maps in the record showing crash
events—some fatal—and testimony from the owners of the airport.
2. Testimony from an employee of the Freeway airport describing the risks
presented by nearby transmission lines and residences.
3. A history of the County’s past efforts to mitigate crashes involving aircraft from
the Freeway airport (and other airports), the harms from which were exacerbated
by the growth of nearby housing developments. The County’s efforts included
studies and implementation of safety regulations.
4. Support from some residents and members of the Chamber of Commerce on the
grounds that development of townhouses would provide economic benefits and
that continued use of the property as an airport would be inappropriate.

Additionally, the elimination or mitigation of nonconforming uses is, as a general

matter, a valid public purpose.21 Trip Assocs., 392 Md. at 573. That is because

nonconforming uses are, by definition, incompatible with the zone in which they are

located and thus reduce uniformity. Cnty. Council of Prince George’s Cnty. v. E. L.

Gardner, Inc., 293 Md. 259, 267 (1982) (“[N]onconforming uses pose a formidable threat

to the success of zoning” because they “limit the effectiveness of land use controls, . . .

imperil the success of the community plan, and injure property values.”). For instance, we

have upheld as a proper exercise of the police power a regulation that phased out all

21
Concerned Citizens did not argue before the circuit court or Appellate Court that
discontinuing a nonconforming use, either as a general matter or as applied here, is not a
valid public purpose. The question did not even arise until the Appellate Court held that
CB-17’s effort to eliminate a nonconforming use did not overcome the uniformity
challenge. Concerned Citizens, 255 Md. App. at 126-27.
26
nonconforming junk yards within two years. Shifflett v. Baltimore County, 247 Md. 151,

154 (1967). Here, the Freeway airport has been a legal nonconforming use since 1968,

when the mostly rural area was first zoned as R-A. Moreover, the airport has become, over

time, even less practically suited to the increasingly suburban area.

The circumstances here contrast with those in Cassel, 195 Md. 348, and H. Manny

Holtz, 65 Md. App. 574, where we invalidated regulations that reduced uniformity. In

Cassel, we invalidated the rezoning of a property located in an established residential

neighborhood that had previously been used as a residence. 195 Md. at 357-58. The

property had been rezoned to commercial use to allow the owner to run a funeral home. Id.

That is not a use most people would call “in harmony with” a residential area. Id. at 355.

In H. Manny Holtz, a property owner sought a rezoning of his property from

residential to business to operate a convenience store. 65 Md. App. 574. There, the Board,

in its legislative capacity, had already established the appropriate uses for the business

zone, which included a convenience store use. Id. at 577 n.1, 583 n.3. Subsequently, the

Board, in its quasi-judicial capacity, restricted the uses of only the applicant’s property to

prohibit convenience store use. Id. at 577.22 Thus, the Board’s action not only deviated

from the zoning ordinance, but reduced uniformity. Moreover, the Board stripped the

property owner of a use to which he was otherwise entitled. In contrast, the Council here,

in its legislative capacity, passed a text amendment that determined in the first instance the

22
The Appellate Court also said that because the Board had already legislatively
designated the permitted uses in the zone, “the exclusion of any one or more uses by the
County Commissioners in its quasi-judicial capacity [was] a usurpation of the legislative
function.” H. Manny Holtz, 65 Md. App. at 583 n.3.
27
possible uses in the R-A Zone and could be seen as increasing uniformity by encouraging

an out-of-place airport to redevelop as housing in a largely residential area.23

Concerned Citizens, having failed to argue that decommissioning the Freeway

airport, or any other similar airport, has no valid public purpose, instead has presented

evidence of public opposition to CB-17. Indeed, dozens of community members and other

public officials opposed higher-density housing development at the Freeway airport. But

Concerned Citizens conflates public sentiment with public purpose. Our duty is not to

weigh public opinion or debate public policy, but to determine only whether specific

legislation reasonably serves a public purpose.

Concerned Citizens argues that any of the ostensible public purposes for CB-17,

even if valid on their face, are mere pretext for favoritism toward Freeway Airport. In

doing so, counsel for Concerned Citizens acknowledged to the circuit court that the

Council, in enacting CB-17, expressed a concern for public safety:

I mean, come on. How can the District Council. . . not understand and accept
all of this nonsense about how dangerous the airport is[?] Yes, maybe the
airport is dangerous. Maybe when it started in the ‘40s, it was in the middle
of nowhere.

23
Nor does this case present the same risk of “emasculat[ing] the uniformity
requirement,” see H. Manny Holtz, 65 Md. App. at 584, as in Cassel and H. Manny Holtz.
In those cases, the courts feared that upholding the challenged regulations could be “an
opening wedge for other enterprises,” Cassel, 195 Md. at 358, and encourage the
“piecemeal proliferations [sic] of [] mini-districts [,]” H. Manny Holtz, 65 Md. App. at 584.

We see little risk that CB-17 will push Prince George’s County down a slippery
slope into zoning chaos. If anything, CB-17 is just another ordinance in a long line of
exceptions, carveouts, and workarounds to Prince George’s County’s antiquated zoning
ordinance (the Old Zoning Ordinance). Indeed, the enactment of the New Zoning
Ordinance was largely motivated by a desire to streamline zoning and do away with such
exceptions.
28
Concerned Citizens claims, however, that the Council’s concern was either disingenuous

or induced by Freeway Airport through improper means, and that the real driver of CB-17

was “development, money.”

Concerned Citizens has repeatedly alleged the existence of an illegal or unethical

relationship between the Council and Freeway Airport. The Appellate Court appeared to

share this view, expressing concern with what it perceived as a “worrisome dynamic

between public and private interests.” Concerned Citizens, 255 Md. App. at 126.

According to the Court, the Council appeared to have bestowed a “mere favor” upon

Freeway Airport, id. at 125-26, enacting CB-17 “merely to accommodate private interests

detrimental to the welfare of other property owners in the same district[,]” id. at 126

(quoting Page v. City of Portland, 165 P.2d 280, 283 (Or. 1946)). In this vein, the

Appellate Court questioned the credibility of the public safety interest in closing the

Freeway airport, citing the airport’s “[i]ncongruous[]” plan to intensify operations if unable

to develop higher-density housing. Id. at 122.

Concerned Citizens has not, however, identified evidence of favoritism toward

Freeway Airport, instead merely insinuating that developers have contributed to the

election campaigns of councilmembers. The record provides no reason to think the Council

would not have passed CB-17 if some other party owned or intended to develop the airport.

The only specific example of impropriety we have discerned in the record is the allegation

by nearby residents that the developer used misleading tactics to solicit support for the

proposed development. Concerned Citizens has not shown, however, how the developer’s

29
actions implicate the motives of the Council in enacting CB-17.24 And, that Freeway

Airport’s plans under one scenario might conflict with the public safety interest does not

undermine the public safety interest in closing the airport. If anything, Freeway Airport’s

alternative plan to intensify flight operations could reasonably heighten that interest.25

Nor are we moved that Freeway Airport pushed the Council to adopt CB-17 by

raising the undesirable prospect of increased airport operations. See Concerned Citizens,

255 Md. App. at 126 (remarking that the airport owners leveraged their “allegedly

dangerous” airport to “bull[y]” the Council into enacting favorable legislation). Whether

24
In any event, the Council was made aware of these allegations at public hearings.
25
The Appellate Court also contended that the Council lacks authority to make land
use policy relating to airport safety, reasoning that regulation of airport safety is the domain
of the State. Concerned Citizens, 255 Md. App. at 122-23. We disagree. The Council did
not purport to enact an airport safety policy. This was merely a text amendment to
encourage the decommissioning of an airport, which was squarely within the Council’s
domain.

Moreover, though the State is indeed responsible for many aspects of airport
regulation, that authority does not preclude political subdivisions from establishing airports
and enacting certain regulatory measures to promote their safety. State law explicitly
allows political subdivisions to establish airports, Md. Code. Ann., Transp. (“TR”) § 5-416
(1977, 2020 Repl. Vol.), encourages them to adopt zoning regulations to eliminate airport
hazards, TR § 5-602, and affords them authority to “adopt, under its police power, airport
zoning regulations to protect the aerial approaches of [a]ny airport not owned by this State,”
TR § 5-604(a). See also Rathkopf § 85:3 (“State courts generally have rejected implied
state preemption claims based on state licensing or regulation of pilots or aircraft, or control
of other aspects of airport development and operation.”) (footnote omitted).

In fact, Prince George’s County has already used zoning regulations to promote
airport safety. The County established Aviation Policy Areas “to establish a standard of
safety and compatibility for the occupants of land in the immediate vicinity of airports[.]”
PGCC § 27-548.32; see also PGCC § 27, Part 10B. These areas are subject to detailed
regulations, covering everything from development density to the proliferation of birds that
might interfere with flight paths. PGCC § 27-548.38.
30
the operative word is “bullied,” “pressured,” “persuaded,” “influenced,” or “encouraged,”

the result is the same. That Freeway Airport, a private company, presented the Council

with two options—including one at odds with the public interest—does not evidence

corruption, but a business decision. Even if the Council conceded more than what was

necessary to incentivize redevelopment of the property, such miscalculation does not

sustain a uniformity challenge. Accountability for any such error in judgment must come

from the voters, not the courts.

Facial Neutrality

Concerned Citizens asks us to infer, as the Appellate Court appears to have done,

that the Council improperly favored Freeway Airport simply because CB-17 is

“site-specific,”26 “tailored” in an “excruciatingly detailed” manner to “single out” the

Freeway airport without mentioning it by name. Concerned Citizens thus asks us to look

beyond the facial neutrality of CB-17 to the reality of its practical application.

Freeway Airport, on the other hand, argues that facial neutrality is the only

requirement to survive a uniformity challenge, understanding Anderson House to require

only that the same terminology apply to all properties in a zone. Freeway Airport finds

support in our statements there that “uniformly applicable regulations that produce

disparate results in application do not violate the uniformity requirement,” Anderson

26
In this context, we understand the term “site-specific” to mean affecting one or
just a few properties. Though the term is used broadly in the zoning context, see Rathkopf
§ 60, the term does not appear to have any basis in Maryland uniformity law, as it is absent
from our key uniformity cases. See, e.g., Anderson House, 402 Md. 689; Woodward &
Lothrop, 280 Md. 686; H. Manny Holtz, 65 Md. App. 574; Rylyns, 372 Md. 514.
31
House, 402 Md. at 717; that “zoning regulations need to be equally applicable,” id. at 719

n.23; and that we focus “upon the terminology of the ordinance, rather than upon its

application,” id. at 718 (quoting Woodward & Lothrop, 280 Md. at 720). If Freeway

Airport is correct, CB-17 is valid because, regardless of the results, it is facially neutral.

Facial neutrality, though relevant to our analysis, is not, on its own, a sure defense

to a uniformity challenge. See Church of the Lukumi Babalu Aye, 508 U.S. at 534 (holding,

in an equal protection context, that facial neutrality is not determinative when evaluating

claims of improper discrimination). Rather, regulatory classifications must “be founded in

real and not feigned differences having to do with the purpose for which the classes are

formed.” Rumson Ests., Inc. v. Mayor of Fair Haven, 828 A.2d 317, 330 (2003) (emphasis

added) (quoting Roselle v. Wright, 122 A.2d 506, 511 (N.J. 1956)). Otherwise, legislators

could circumvent the uniformity requirement with clever drafting. Indeed, facial neutrality

in Woodward and Anderson House was not enough to survive a uniformity challenge—we

also required a showing of a reasonable relationship to a public purpose and equal treatment

of similarly situated properties.

Moreover, courts in the out-of-state cases that we reviewed in Anderson House

required the same showing. 402 Md. at 714-15 (citing Rumson Ests., 828 A.2d 317 and

Harris v. Zoning Comm’n of New Milford, 788 A.2d 1239 (Conn. 2002)). We distinguished

the regulations in those cases from ones that did not further the public welfare, which were

consequently invalidated. Anderson House, 402 Md. at 725 n.26 (citing Hamer v. Town of

Ross, 382 P.2d 375 (Cal. 1963) and C & M Devs., Inc. v. Bedminster, 820 A.2d 143 (Pa.

2002) and Nat’l Land and Inv. Co. v. Kohn, 215 A.2d 597 (Pa. 1965)).

32
“Site-Specific”

Concerned Citizens argues that CB-17 is invalid because it is too site-specific.

Concerned Citizens highlights not only the narrowly drafted qualifying criteria, but also

what the Dissent calls the “very limited shelf life” of CB-17. Dissenting op. at 9, 45, 71.

Concerned Citizens and the Dissent contend that the Council, aware that the previously

enacted New Zoning Ordinance would soon take effect, not only understood the Freeway

airport to be the sole qualifying property at that time, but likely for all time. Dissenting

op. at 9 (“[CB-17] did not have any prospective application beyond the Freeway

Property.”); id. at 65.

The record is not clear, however, that other properties—including non-airport

properties qualifying under the property size criterion—could not have developed under

CB-17 between its effective date of January 4, 2020, and the effective date of the New

Zoning Ordinance, April 1, 2022. When the Council considered CB-17, the effective date

of the New Zoning Ordinance was unknown, as it was contingent upon the Council’s

adoption of the countywide sectional map amendment—an outcome which, at the time,

was not itself guaranteed. Indeed, the sectional map amendment was not enacted until

April 1, 2022. See note 9, supra. In other words, CB-17 was in effect for more than two

years, during which time other property owners could have sought to develop under the

ordinance. Nonetheless, for purposes of our analysis, we proceed as if the Council, in

enacting CB-17, intended to reach only the Freeway airport and believed it would be the

only property to ever qualify under, and take advantage of, CB-17.

33
We do not think that a regulation’s “site-specific” intent or effect alone sustains a

uniformity violation. That a regulation affects only one or a few properties, though relevant

to our uniformity analysis, is not dispositive. See Rylyns, 372 Md. at 543-44 (quoting

Collard v. Village of Flower Hill, 421 N.E.2d 818, 821 (N.Y. 1981) (“[Z]oning is not

invalid per se merely because only a single parcel is involved or benefitted[.]”)); id. at 546

(explaining that spot zoning is not per se invalid). For example, the piecemeal rezoning in

Cassel was invalidated not because it affected one property—which is the definition of

piecemeal rezoning—but because it discriminated between similarly situated properties

without good reason. 195 Md. at 357-58.

This proposition holds not only when regulations inadvertently affect only one or a

few properties, but even when a zoning authority deliberately targets a particular property

or properties. See Rockville Fuel & Feed, 266 Md. at 130 (upholding a text amendment

challenged on equal protection grounds even though it was enacted for the sole purpose of

thwarting the construction of a specific concrete mixing plant). That a legislature may

contemplate a specific property does not prove the absence of a public purpose, or arbitrary

or invidious discrimination; we do not require legislatures to conceive of legislation “as an

abstraction” without any actual properties in mind. MBC Realty, 192 Md. App. at 236.

And though Concerned Citizens portrays the Council’s “site-specific” efforts as alarming,

such amendments are not unusual and are often initiated by private interests.27

27
See O’Donnell v. Basslers, Inc., 56 Md. App. 507 (1983) (owner of a private
airfield seeking to develop a commercial airport and who successfully petitioned the zoning
board for a text amendment allowing commercial airports in certain zones); MBC Realty,
192 Md. App. at 223-26 (noting that “every conditional use that has been added to the
34
For example, in MBC Realty, LLC v. Mayor of Baltimore, the City Council of

Baltimore enacted a text amendment, at the express request of a development company,

allowing new billboards in the “B-5” zone only on publicly owned stadiums and arenas,

knowing that only the First Mariner Arena would be eligible. 192 Md. App. at 226 & n.5,

235-36. Immediately after, the City Council granted the conditional use to that arena. Id.

Though the text amendment was not challenged on uniformity grounds, the Appellate

Court rejected the challengers’ argument that the circumstances proved favoritism and a

lack of public purpose, holding that we “[do] not impose a [] knowledge limitation upon

the legislative act.” Id. at 236.

Thus, the Appellate Court upheld a text amendment solicited by a private interest

and targeting one property both in intent and effect. Moreover, as with CB-17, only one

property would ever likely qualify under the text amendment, given that the text

Baltimore City Zoning Code since 1971 has been effectuated by means of a text
amendment”).

Other times, opponents of development or certain uses seek “site-specific” text
amendments to restrict uses by others. See Rockville Fuel & Feed, 266 Md. at 119-23 (text
amendment prohibiting concrete manufacturing that the City of Gaithersburg enacted as an
emergency measure just one day before the plaintiff property owner sought final approval
for a special exception to construct and operate a concrete manufacturing plant); Free State
Recycling Sys. Corp. v. Bd. of Cnty. Comm’rs for Frederick Cnty., Md., 885 F. Supp. 798
(D. Md. 1994) (zoning board that sought to close a recycling facility with a text amendment
that would impose impossibly burdensome regulations on the facility). For example,
citizens thwarted Costco’s plans to install a large gas station at the Westfield Wheaton Mall
by persuading the Montgomery County Council, on two separate occasions, to pass text
amendments requiring greater distance between large gas stations and nearby communities.
Bill Turque, Wheaton Costco Gas Station Nixed by Montgomery Planning Board, WASH.
POST, Mar. 1, 2013; Bill Turque, Costco Loses Latest Round in Fight to Open Big Gas
Station at Wheaton Mall, WASH. POST, Dec. 21, 2015; MONTGOMERY COUNTY, MD.,
ZONING ORDINANCE § 59-3.5.13.C (2023).
35
amendment applied only to publicly-owned stadiums and arenas. Yet those circumstances

did not give rise to a finding of improper favoritism. Id.; see also Eutaw Enters., Inc. v.

City of Baltimore, 241 Md. 686, 696 (1966) (upholding ordinances that the City Council

knew would only affect one commercial check casher because the ordinances were general

in application and applied equally to similarly situated properties).

Finally, we note that the “painstakingly specific” tailoring to which Concerned

Citizens points as evidence of favoritism toward Freeway Airport was prompted in part by

opposition to higher-density housing on other properties. For instance, at the request of

the President of the Woodmore Homeowner’s Association, the Council passed a narrowing

amendment to ensure that the Hidden Pond parcel in Woodmore would not qualify for

higher-density housing. Similarly, the provision requiring a minimum acreage of 100 acres

was proposed not by Freeway Airport but by an outspoken critic of CB-17, Councilmember

Dernoga, to “further limit the number of [qualifying] properties.” Councilmember

Dernoga had also proposed, unsuccessfully, to reduce the proximity to electrical

infrastructure requirement from 2,500 feet to 2,000 feet—again, to limit the number of

qualifying properties. Thus, at least some of the “painstakingly specific” tailoring of which

Concerned Citizens complains arose not out of demands by Freeway Airport but,

ironically, out of concerns by others that non-Freeway airport properties might qualify for

higher-density development.

36
Similarly Situated Properties

A finding that a regulation furthers a public purpose does not mark the end of our

uniformity analysis. We also examine how the regulation operates, specifically whether it

discriminates between properties in a reasonable manner. Woodward & Lothrop, 280 Md.

at 720 (“reasonable and based upon the public policy to be served” (emphasis added)).

It is worth repeating that discrimination between properties within a zone, i.e.,

regulatory classification, is not per se prohibited. We held in Anderson House that “[t]he

crux of the [uniformity] requirement is only that similarly situated properties are treated

the same under the zoning regulations,” 402 Md. at 715 (emphasis added), observing that

“[m]any jurisdictions agree that the kind of discrimination violative of the uniformity

requirement occurs when a zoning ordinance singles out a property or properties for

different treatment than others similarly situated,” id. at 714 (emphasis added). A

regulation that discriminates between similarly situated properties is invalid.

What it means for properties to be “similarly situated” is central to understanding

the apparent disconnect between the parties’ arguments, and between ours and the

Dissent’s. Concerned Citizens assumes that all properties in the R-A Zone are, by

definition, similarly situated and that site-specific classification within the zone thus

violates uniformity. Just because properties are within the same zone, however, does not

make them similarly situated; zoning categories are not determinative. Rylyns, 372 Md. at

593 (Cathell, J., dissenting) (quoting Sweetman v. Town of Cumberland, 364 A.2d 1277,

1288 (R.I. 1976)) (establishing, in a conditional use challenge, that “[o]wners of property

in the same land-use category are not necessarily ‘similarly situated’ so that they must be

37
treated identically under the equal protection clause. . . . [T]wo parcels may have been

classified at different times when the needs of the municipality differed. Different pieces

of property [in the same zone] may also have physical characteristics which differ enough

to require some minor differences in use restriction[.]”).28

Properties are similarly situated when there is no reasonable basis to treat them

differently; regulations thus violate uniformity when they discriminate between properties

unreasonably. See Anderson House, 402 Md. at 714 (discussing N.T. Hegeman Co. v.

Mayor of River Edge, 69 A.2d 767 (N.J. 1949), where the setback requirement that was

invalidated applied to only one block of a business district without any apparent reason for

disparate treatment); id. at 715 (discussing Veseskis v. Bristol Zoning Comm’n, 362 A.2d

538 (Conn. 1975), where the invalidated ordinance applied only in one specific instance,

but not in other instances presenting the same circumstances); see also Village of

Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (invoking the concept of “similarly

situated” in an equal protection claim). For example, as we cited in Anderson House, 402

Md. at 715 n.21, a Wisconsin court struck down, on uniformity grounds, an ordinance

exempting one of four parcels in the same zone from obtaining a permit for a rendering

plant because the exemption was “not based upon substantial distinctions which make the

operation of a rendering plant and packing plant in one area of the industrial district

different from any other areas in the industrial district,” Boerschinger v. Elkay Enters.,

Inc., 145 N.W.2d 108, 110-11 (Wis. 1966).

28
Conversely, just because properties are zoned differently does not permit
invidious discrimination between properties. Rathkopf § 4:8.
38
In Anderson House, we upheld zoning regulations that discriminated between

properties based on size and produced different—and even unique—results. 402 Md. at

720. In doing so, we, by implication, held that properties of different sizes were not

similarly situated and could thus be treated differently under the regulations. Similarly, in

Woodward & Lothrop, we upheld density regulations based on property size, thus

recognizing properties 22,000 square feet or larger as not similarly situated to smaller

properties. 280 Md. at 721. We did the same for the compliance requirements there, which

differed according to whether the use of the property began before or after January 1, 1959.

Id. at 722-23.29

29
The Dissent distinguishes CB-17 from the valid regulations in Anderson House,
Woodward & Lothrop, and MBC Realty, on the grounds that those cases involved original
and comprehensive zoning or text amendments having “general application” in a zone.
Dissenting op. at 7-8, 35 & n.15. By “generally applicable,” we understand the Dissent to
be describing regulations affecting many properties broadly, even if they produce different
or unique results among properties in the zone. See Dissenting op. at 31, 34-36; see also
Anderson House, 402 Md. at 715. The Dissent distinguishes between “generally
applicable” regulations and those which target a property or properties. Dissenting op. at
7-8, 34-36. Council Bill 17, the Dissent contends, is invalid because, as applied, it affects
only one property, even if the entire body of regulations applying to the R-A Zone are
facially neutral and apply uniformly. Dissenting op. at 7-10, 34-36, 41.

As an initial matter, in our view, the Dissent misconstrues the text amendment held
valid in MBC Realty, 192 Md. App. 218, as having “general prospective application[.]”
Dissenting op. at 35 n.15. There, the City Council of Baltimore enacted Ordinance 03-514,
at the explicit request of a development company, to “amend[] the text of the Zoning Code
to create for the B-5 district a conditional use for new billboards on publicly owned stadia
and arenas[.]” MBC Realty, 192 Md. App at 226 & n.5. The City Council knew that only
the First Mariner Arena would be eligible for the conditional use. Id. at 226, 235-36. That
does not strike us as a text amendment having “general application.”

Instead, Council Bill 17 stands out for how transparently the Council targeted the
Freeway airport, as manifested by the legislative history. That seems to be, at heart, what
the Dissent takes issue with. Dissenting op. at 9-10 (“[T]he legislative record in this case
39
Perhaps hypotheticals will help. Imagine two identical, adjacent single-family

houses. A regulation, with narrowly drafted and facially neutral terms, allows House A to

install a backyard swimming pool, but not House B. The owner of House B could argue

that the regulation violates uniformity because his property is similarly situated to his

neighbor’s and, yet, his property is treated differently.

Or, under the circumstances here, imagine a property in an R-A Zone that was

formerly used as an airport, has freeway frontage, and is within one mile of a municipality,

but fails to qualify for higher-density development under CB-17 because it is 3,000 feet

from the nearest electrical infrastructure rather than entirely within 2,500 feet, as CB-17

requires. The owner of that property could argue that the regulation violates uniformity

because the property is similarly situated to the Freeway airport and yet is excluded because

of the 2,500-foot requirement. At that point, the Council would have to explain why the

500-foot difference between 3,000 feet and 2,500 feet is reasonable and based in public

contains a robust discussion among the decisionmakers that reflects a clear and
unmistakable intent to draft criteria that would apply only to the Freeway Property.”).
Transparency, however, should not count as a demerit in a uniformity analysis.

Indeed, transparency seems to be the antidote to the Dissent’s concern that our
holding will encourage landowners to secure favorable text amendments through ex parte
communications with local elected officials. Dissenting op at 68. But enacting a text
amendment requires much more than obtaining the sponsorship of a single elected official.
In Prince George’s County, enacting a text amendment requires a public hearing with
adequate notice to the public. PGCC § 27-216. The proposed amendment must be referred
to the Planning Board for comments and a recommendation. PGCC § 27-217. Moreover,
an amendment generally requires multiple readings and consideration by the appropriate
standing committee. See THE CNTY. COUNCIL RULES OF PROC. (CNTY. COUNCIL FOR
PRINCE GEORGE’S CNTY., MD. JULY 2020). A text amendment requires a majority vote of
the full Council, PGCC § 27-218.
40
policy. If the Council lacks a credible explanation, then that regulation would evince the

sort of arbitrariness or favoritism characteristic of a uniformity violation.

Here, CB-17 discriminates between properties, but Concerned Citizens has not

shown that CB-17 discriminates between similarly situated properties. Concerned Citizens

has not identified any actual, or even hypothetical, properties similarly situated to the

Freeway airport that the qualifying criteria of CB-17 excluded from higher-density

development opportunities.30

This comes as little surprise, as there are presumably few, if any, properties in the

R-A Zone that reasonably resemble the Freeway airport. Instead, Concerned Citizens

assumes that all R-A Zone properties are, by definition, similarly situated. Not only is that

assumption legally erroneous, see Rylyns, 372 Md. at 593 (Cathell, J., dissenting), but it is

practically flawed, for many other existing properties in the R-A Zone are very different

from the airport. For instance, the properties featuring single-family detached residences

in nearby Waterford Estates are wholly different, practically speaking, from the 129-acre

airport property, and treating them differently does not offend our sense of fairness.

Concerned Citizens has not argued that any of the qualifying criteria of CB-17 are

unreasonable, i.e., that they discriminate between similarly situated properties or are not

“based upon the public policy to be served.” Woodward & Lothrop, 280 Md. at 720. As

30
Nor does the Dissent. Instead, the Dissent appears to incorrectly shift the burden
to Freeway Airport, pointing out that Freeway Airport failed to identify any other
properties qualifying under CB-17 that would have showed that CB-17 had “general
application.” Dissenting op. at 7 (“Although the Majority alludes to ‘similarly situated
properties,’ neither the Majority, nor Freeway identify any.”); id. at 63-64 n.30.
41
previously noted, that topic arose only when the Appellate Court questioned Freeway

Airport during oral argument. The Court then took it upon itself to evaluate the

reasonableness of those criteria, finding that the requirements of proximity to a municipal

boundary and freeway frontage could reasonably relate to a public interest, but that the

requirement of proximity to electrical infrastructure and the provision making eligible

former airport property do not. Concerned Citizens, 255 Md. App. at 125-26 & n.16.

We disagree with how the Appellate Court analyzed the qualifying criteria. The

Court evaluated each criterion of CB-17 in a vacuum, focusing on the “site-specific” nature

of each rather than the broader purpose of encouraging the closure of the Freeway airport

and any other nonconforming airport presenting similar public safety risks, to the extent

one exists. When viewed in this light, the qualifying criteria are “reasonable and based

upon the public policy to be served.” Woodward & Lothrop, 280 Md. at 720. Nearby

highways, population centers, and transmission lines are the safety hazards at the Freeway

airport. That these features are not uniquely hazardous at Freeway Airport, but other

airports too, bolsters that finding. Moreover, the Council could have reasonably concluded

that higher-density housing, though generally inappropriate in the R-A Zone, is appropriate

near existing highway transportation, electrical infrastructure, and population centers.

The Appellate Court also seized upon the clause making eligible properties formerly

used as airports, finding that it lacked a public purpose and was included only to select the

Freeway airport, while finding the qualifying criterion of property size reasonably based

upon public policy. Concerned Citizens, 255 Md. App. at 126. But identifying airport

42
property, and the Freeway airport specifically, is the public purpose here, and, if anything,

the qualifying criterion based on property size is the peculiar provision.

Concerned Citizens speculates that the property size criterion was drafted to make

CB-17 look less “site-specific”31 and that the former airport provision was subsequently

reintroduced either to (1) bolster CB-17’s ostensible public purpose of decommissioning

unsafe airports or (2) allow Freeway Airport to develop fewer than one hundred acres. The

first possibility is irrelevant, as CB-17 indeed furthers a public policy of retiring a

hazardous, nonconforming airport. The second possibility, even if true, would remain

consistent with the aim of encouraging the redevelopment of the Freeway airport by

allowing the developer greater flexibility.

Again, we assume any reasonably conceived state of facts that would sustain CB-17.

See Anderson House, 402 Md. at 724. We can reasonably suppose—and, in the absence

of contrary evidence, conclude—that the Council sought both to encourage the

decommissioning of the Freeway airport and to provide for general housing needs on large

properties near existing population centers and infrastructure. For these reasons, we cannot

say that the disjunctive requirement of property size or former airport use is so

unreasonable as to violate uniformity.

31
That the Council drafted CB-17 to appear less “site-specific” by including other
assemblages of properties, in addition to airports, does not change the fact that CB-17 was
designed, as its critics contend, to target the Freeway airport. The Council’s effort to make
CB-17 more legally defensible by broadening its potential application is not, however, a
sufficient basis to invalidate CB-17.
43
CONCLUSION

The Council, in enacting CB-17, exercised its authority under the RDA to amend

the text of the Prince George’s County zoning ordinance. LU § 22-104. We afford

legislative action a strong presumption of validity, and Concerned Citizens has the “heavy

burden of establishing, by clear and affirmative evidence[,]” that CB-17 is invalid.

Anderson House, 402 Md. at 723-24. Consistent with that standard of review and burden

of proof, we neither invalidate CB-17 on speculation that the Council acted with improper

motives nor transfer the primary burden of proof to Freeway Airport.

Though Concerned Citizens has accurately observed that CB-17 targets the Freeway

airport using narrow, site-specific language, Concerned Citizens has not shown that CB-17

lacks a public purpose or discriminates between similarly situated properties. Concerned

Citizens has not established that CB-17 discriminates arbitrarily, either by providing

examples of similarly situated properties that CB-17 treats differently or by establishing

that its qualifying criteria are not reasonably based upon the public policy to be served. See

Woodward & Lothrop, 280 Md. at 720; Anderson House at 402 Md. at 714-15. On these

grounds, Concerned Citizens’ uniformity challenge falls short.

For these reasons, we reverse the judgment of the Appellate Court and affirm the

decision of the District Council. With respect to the issues that Concerned Citizens raised

but were not reached by the Appellate Court, our analysis here substantially answers those

questions and renders a remand unnecessary. See Md. Rule 8-604(d)(1).

JUDGMENT OF THE APPELLATE
COURT OF MARYLAND REVERSED.
COSTS TO BE PAID BY RESPONDENTS.

44
Circuit Court for Anne Arundel County
Case No.: C-02-CV-20-001850
Argued: February 3, 2023

IN THE SUPREME COURT
OF MARYLAND*

No. 23

September Term, 2022

PRINCE GEORGE’S COUNTY COUNCIL, et al.

v.

CONCERNED CITIZENS OF PRINCE
GEORGE’S COUNTY, et al.

Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Getty, Joseph M., (Senior Justice,
Specially Assigned),

JJ.

Dissenting Opinion by Booth, J., which Fader,
C.J. and Watts, J., join.

Filed: August 22, 2023

* At the November 8, 2022 general election, the
voters of Maryland ratified a constitutional
amendment changing the name of the Court of
Appeals of Maryland to the Supreme Court of
Maryland. The name change took effect on
December 14, 2022.
Respectfully, I dissent.

In this case, we must determine whether the Prince George’s County Council, sitting

as the District Council (“District Council”), was acting within its legal boundaries when it

enacted CB 17-2019—a legislative zoning text amendment that permitted townhouse uses

in certain limited circumstances in the Residential-Agricultural (“R-A”) Zone, a Euclidean

zone in the Prince George’s County zoning ordinance that was in effect in 2019. See Town

of Upper Marlboro v. Prince George’s County Council, 480 Md. 167, 180–81 (2022)

(explaining the standard of review for agency actions that are deemed to be legislative is

limited to assessing whether the agency was acting within its legal boundaries); Maryland

Code (2012, 2022 Supp.), Land Use (“LU”) § 22-407(e).1 “Under this ‘legal boundaries’

1
In this case, it is undisputed that the Prince George’s County Council, sitting as
the District Council (“District Council”), was undertaking a legislative act (as opposed to
a quasi-judicial act) when it enacted CB 17-2019. The General Assembly has provided for
judicial review of a District Council’s decision pursuant to Maryland Code (2012, 2022
Supp.), Land Use (“LU”) § 22-407(e), authorizing courts to:

(1) affirm the decision of the district council;
(2) remand the case for further proceedings; or
(3) reverse or modify the decision if substantial rights of the petitioner have been
prejudiced because the district council’s action is:
(i) unconstitutional;
(ii) in excess of the statutory authority or jurisdiction of the district
council;
(iii) made on unlawful procedure;
(iv) affected by other error of law;
(v) unsupported by competent, material, and substantial evidence in
view of the entire record as submitted; or
(vi) arbitrary or capricious.

Under the statute, a court may reverse or modify the decision of the District Council if the
court determines that the district council exceeded its statutory authority. LU § 22-

1
standard, government legislative action will be permitted to stand as long as it was

‘consistent with relevant law.’” Talbot County v. Miles Point Prop., LLC, 415 Md. 372,

393 (2010) (quoting Judy v. Schaefer, 331 Md. 239, 264–66 (1993)).

I.

Overview

In determining whether the District Council exceeded its legal boundaries in

enacting CB 17-2019, we start our analysis with the State enabling statute that confers

authority upon the District Council to enact text amendments within Euclidean zones. We

begin our discussion with the enabling statute because, “[u]nder Maryland’s constitutional

scheme, a local government’s authority to regulate land use may emanate only from the

enabling legislation of the General Assembly.” County Council of Prince George’s County

v. Zimmer Dev. Co., 444 Md. 490, 504 (2015) (citations omitted). Indeed, where a local

government adopts zoning legislation that is inconsistent with its enabling authority, this

Court has not hesitated to hold that it is invalid.2

407(e)(3)(ii). This standard of review is consistent with our case law that describes the
scope of our review of legislative actions as assessing whether the legislative body was
acting within its legal boundaries. Town of Upper Marlboro v. Prince George’s County
Council, 480 Md. 167, 180–81 (2022); Talbot County v. Miles Point Prop., LLC, 415 Md.
372, 393 (2010).
2
See, e.g., Mossburg v. Montgomery County, 329 Md. 494, 496, 508 (1993)
(holding that a provision of the Montgomery County zoning ordinance that required special
exceptions to be granted by a “supermajority” vote was not “expressly authorized by the
General Assembly in the zoning enabling statute” and was therefore invalid); Richmark
Realty Co. v. Whittlif, 226 Md. 273, 276, 285–86 (1961) (invalidating an ordinance that
purported to waive a zoning provision prohibiting the construction of a filling station within
300 feet of a park because it was arbitrary and discriminatory).
2
A. The Enabling Statute and the Uniformity Requirement

It is undisputed that the R-A Zone is a Euclidean zone. The applicable State

enabling statute requires that zoning laws enacted by the District Council for traditional

Euclidean zones “shall be uniform for each class or kind of development throughout a

district or zone.” LU § 22-201(b)(2)(i) (emphasis added). If the zoning text amendment

violates the “uniformity” requirement of the enabling statute, it is invalid. Although there

is not a lot of case law on the uniformity requirement, courts consistently find the

requirement violated in at least one scenario. That scenario “occurs when a zoning

ordinance singles out a property or properties for different treatment than others similarly

situated.” Anderson House, LLC v. Mayor & City Council of Rockville, 402 Md. 689, 714

(2008) (emphasis added). In Anderson House, this Court explained that “the uniformity

requirement demonstrates that . . . discrimination in favor of, or against, particular

properties . . . will not be tolerated.” Id. at 717. In this case, we must determine whether

the text amendment enacted by CB 17-2019 violates the uniformity requirement. By way

of brief background, it is helpful to review CB 17-2019’s provisions and the facts about

the property at the center of this case, the Freeway Property.

B. CB 17-2019

Prior to the enactment of CB 17-2019, townhouses were not permitted in the R-A

Zone. The text amendment enacted by CB 17-2019 permitted townhouses to be

constructed at a density of up to 4.5 dwelling units per acre in “certain circumstances.”

Those circumstances are that the townhouses could be constructed “on an assemblage of

adjacent properties” that: (1)(a) is no less than 100 acres and no more than 150 acres in

3
size, or (b) “was formerly used as an airport”; (2) is located entirely within one mile of a

municipal boundary; (3) is located “entirely within 2,500 feet of land owned by a regulated

public utility and used for purposes of electrical generation, transmission, or distribution

in connection with providing public utility service in the County by a regulated public

utility”; and (4) “has frontage on a public right-of-way classified as a freeway or higher in

the Master Plan of Transportation and is maintained by the State Highway Administration.”

C. The Freeway Property

The Freeway Property, also known as Freeway Airport, is owned by the

Rodenhauser family and is under contract to be purchased by Petitioner Freeway Realty,

LLC (“Freeway”), a partnership between St. John Properties, Inc. and the Rodenhauser

family. The Freeway Property is located at 3900 Church Road, Bowie, Maryland.

Although its mailing address is Bowie, it is located outside Bowie’s corporate limits, but

within one mile of the municipal boundary. The Freeway Property consists of multiple

separate parcels totaling 129 acres. It has been used as a general aviation airport since

1947, and its airport use has been a certified nonconforming use3 under the Prince George’s

3
A nonconforming use is a use that predates the adoption of a new zoning ordinance
and is inconsistent with it. If a property owner can demonstrate that a use was valid and
lawful at the time of the adoption of a new zoning ordinance, the use may be permitted to
continue. Trip Assocs., Inc. v. Mayor & City Council of Balt., 392 Md. 563, 573 (2006).
The Regional District Act (“RDA”) expressly authorizes Prince George’s County and
Montgomery County to recognize the continuation of “lawful nonconforming use[s] that
existed on the effective date of a zoning law enacted” within the Regional District. LU
§ 22-114. Although the continuation of nonconforming uses is not favored (and local
ordinances are strictly construed in order to effectuate the purpose of eliminating
nonconforming uses), such uses are nevertheless “‘a vested right entitled to constitutional
protection.’” Trip Assocs., Inc., 392 Md. at 573–74 (quoting Amereihn v. Kotras, 194 Md.
591, 601 (1950)).
4
County Zoning Ordinance since 1968. In the 1960’s, a power company that owns an

adjacent property installed high-tension lines along the entire western boundary of the

Freeway Property. The Freeway Property’s northern boundary runs along U.S. Route 50,

and its eastern boundary runs along Church Road, which is a county road.

Before April 1, 2022, the Freeway Property was classified in the R-A Zone under

what I refer to as the Old Zoning Ordinance. As part of the enactment of a New Zoning

Ordinance and a comprehensive rezoning, the Freeway Property was rezoned to the

Agricultural-Residential (“AR”) Zone effective April 1, 2022. Under both the former R-A

Zone and the successor AR Zone, the Freeway Property can be developed as a matter of

right for single-family residences on two-acre lots.

It is undisputed that the Freeway Property fit the criteria contained within CB 17-

2019, and therefore could be developed with townhouses at a maximum density of 4.5

dwelling units per acre—a use and density that were not permitted in the R-A Zone prior

to the enactment of CB 17-2019, and which are not permitted in the successor AR Zone.

D. The Parties’ Contentions

Respondent Concerned Citizens of Prince George’s County (“Concerned Citizens”)

argues that the text amendment violates the uniformity requirement because it is “site-

specific” and applies only to the Freeway Property. Concerned Citizens contends that the

criteria are “painstakingly specific” to the Freeway Property. In determining whether the

text amendment violates the uniformity requirement, Concerned Citizens urges the Court

to look not simply at the text of the criteria, but to consider the text within the broader

context of the legislative record in this case, including contemporaneous statements by the

5
Bill sponsor, the Bill’s drafter, and a member of the District Council who opposed the Bill,

and the various iterations of the Bill that were proposed over the course of seven months.

Concerned Citizens contends that the legislative record in this case confirms that the

criteria of the text amendment were drafted in a manner to ensure that only the Freeway

Property would be eligible for townhouse uses. Concerned Citizens asserts that the text

amendment was discriminatory and site-specific to the Freeway Property, giving it

favorable treatment over other similarly situated properties.

Freeway argues that the text amendment does not violate the uniformity requirement

because “identical terminology . . . applies to all present and future properties in the R-A

Zone, including all other properties that potentially qualify under the criteria set forth” in

the text amendment. Or, stated another way, Freeway asserts that the text amendment

applies “to any eligible R-A zoned property within Prince George’s County.” Freeway

points out that, under the uniformity case law, the question is whether the zoning

classification “uniformly applies to all qualifying properties using the same exact

terminology or whether a property is singled out for discriminatory treatment.”

E. Summary of Conclusions

The Majority assumes that the Council “intended to reach only the Freeway airport

and believed it would be the only property to ever qualify under, and take advantage of,”

CB 17-2019. Maj. Op. at 33. Under the Majority’s theory, the District Council’s action in

deliberately targeting the Freeway Property for favorable treatment satisfies the uniformity

requirement under state law because the Majority believes that the text amendment did not

discriminate between similarly situated properties. Id. at 41 (“Here, CB [17-2019]

6
discriminates between properties, but Concerned Citizens has not shown that CB [17-2019]

discriminates between similarly situated properties.”). Although the Majority alludes to

“similarly situated properties,” neither the Majority, nor Freeway identify any. Moreover,

an independent review of the record reflects that there are no similarly situated properties. 4

For the reasons set forth more fully herein, I agree with Concerned Citizens that

CB 17-2019 violated the uniformity requirement because “by the terms of the

legislation[,]” it singles out the Freeway Property “for disparate treatment[.]” Anderson

House, 402 Md. at 720. This is a rare case where zoning text that uses ostensibly facially

neutral language was not, in fact, generally applicable because its criteria were pretextual.

Together, the criteria serve no purpose other than to identify an individual property. In

short, the text was drafted in a manner to ensure that it would apply only to Freeway

Property, thereby singling it out. As I will detail below, the Majority embraces the clear

and unmistakable effort on the part of the Bill sponsor to draft a text amendment that

purported to have general application, but in fact, singled out a specific property for

favorable treatment.

Under our case law, as well as the case law from other states, when faced with a

uniformity challenge, courts generally interpret the ordinance in question utilizing the same

4
The Majority contends that I am incorrectly shifting the burden to the District
Council and, by extension, to Freeway. Maj. Op. at 41 n.30. I am not. My review of the
legislative record in this case confirms Concerned Citizens’ contention that no one—
including the Prince George’s County Planning Board—could identify any other property
that satisfied the criteria, aside from the Hidden Pond parcel, which was excluded by final
legislative amendments after the public hearing closed. Freeway argued to this Court that
the amendment applies to other similarly situated properties. That argument is not borne
out by the record.
7
principles employed when analyzing equal protection claims. In the context of equal

protection claims, facial neutrality is not dispositive. I would consider the ordinance’s text

and also its context in the broader legislative rezoning process that was ongoing in Prince

George’s County when the text amendment was being considered, as well as the legislative

record, including contemporary statements by the Bill sponsor as he proposed various

iterations of the Bill.

Starting with the text, the criteria are tailor-made to describe the unique

characteristics of the Freeway Property. The Freeway Property falls within CB 17-2019’s

size and location criteria. Other criteria identify the uses being made of the adjacent

properties. Although the text amendment uses facially neutral language, its unique set of

combined criteria do not in fact apply to “similarly situated properties,” and single out the

Freeway Property for disparate treatment. In other words, the legislation was drafted in a

manner to ensure that only one property could satisfy the criteria despite the general

language utilized by the District Council, in violation of the uniformity requirement.

This is confirmed by the broader legislative rezoning. As discussed in more detail

herein, six months prior to the District Council’s consideration of CB 17-2019, it adopted

a new zoning ordinance which does not permit townhouse uses in the AR Zone that

succeeded the R-A Zone. The new zoning ordinance was expected to become effective

upon the completion of a district-wide comprehensive rezoning, which was ongoing when

CB 17-2019 came before the District Council. At the time, the Council was aware that the

text amendment permitting townhouse uses would have a very limited shelf life. In other

words, the District Council knew the text amendment would not have prospective

8
application to “similarly situated properties” beyond the period necessary to complete the

ongoing comprehensive rezoning. Although the Majority acknowledges that the Old

Zoning Ordinance was being phased out, it makes no attempt to explain how a text

amendment to an old zoning ordinance—that was enacted after the adoption of a new and

inconsistent zoning ordinance—could possibly apply to any property other than the

Freeway Property. In other words, it did not have any prospective application beyond the

Freeway Property.

Additionally, the legislative record in this case—including the contemporaneous

statements of the Bill sponsor, Bill drafter and a District Councilmember who opposed the

legislation, as well as the various iterations of the Bill itself—clearly demonstrate that the

criteria were drafted in a pretextual manner to suggest that the text might have general

application, but in fact, when read in their aggregate, would apply only to one property—

the Freeway Property. Although the Majority purports to review the legislative record, and

pays lip service to the notion that, without such a review, “legislators could circumvent the

uniformity requirement with clever drafting[,]” Maj. Op. at 32, that is precisely what

occurred here. The Majority condones the conduct that it purports to disavow by refusing

to grapple with the pretextual nature of CB 17-2019. As I set forth in more detail below,

the legislative record in this case contains a robust discussion among the decisionmakers

that reflects a clear and unmistakable intent to draft criteria that would apply only to the

Freeway Property.

CB 17-2019 singled out the Freeway Property for favorable treatment in violation

of the uniformity requirement. The effect of the text amendment was to permit townhouse

9
uses on only one property within the R-A Zone, which is now the AR Zone under the New

Zoning Ordinance. The text amendment was the functional equivalent of an illegal spot

zoning of a particular property—the creation of a “mini-district” comprised of the Freeway

Property in the R-A Zone—enabling that lone property to be developed for townhouses.

Accordingly, I would hold that CB 17-2019 violated the uniformity requirement of the

enabling statute and is therefore ultra vires and invalid.

II.

Planning and Zoning Laws—Some Background

Before turning to the uniformity analysis, it is useful to provide an overview of the

planning and zoning tools that the General Assembly has provided to the District Council.

If our case law teaches us anything in the area of zoning law, it is that zoning and planning

concepts are nuanced and difficult to discuss in a vacuum. Zoning opinions tend to be

lengthy for a reason—it is necessary to understand the interrelationship between different

zoning tools and the reasons behind them—to consider their correct application.

Unfortunately for the reader, this dissenting opinion is no exception

A. The Maryland-Washington Regional District Act

In November 1970, the citizens of Prince George’s County adopted a charter form

of government pursuant to Article XI-A of the Constitution of Maryland. Prince George’s

County v. Thurston, 479 Md. 575, 579 (2022). The legislative branch of the County

government—the Prince George’s County Council—is comprised of eleven members, nine

of whom are elected from geographic districts and two of whom serve as at-large members.

Prince George’s County Charter, Art. III §§ 301, 304.

10
Like all charter counties in Maryland, Prince George’s County has been given

planning and zoning authority by the General Assembly. Prince George’s County’s zoning

authority primarily emanates from the Maryland-Washington Regional District Act

(“RDA”), which is currently codified in Division II of the Land Use Article of the Maryland

Code. Zimmer, 444 Md. at 523–24. “The RDA is the essential source of the delegation by

the State of zoning authority to Prince George’s County for the areas of Prince George’s

County within the Regional District.” Id. at 524–25 (footnote omitted).

The RDA “regulates planning and zoning” within the Maryland-Washington

Regional District (“Regional District”), which includes most of Prince George’s County

and Montgomery County.5 In Zimmer, we described the statutory delegation of planning

and zoning authority within the Regional District as follows:

[T]he RDA divides broadly authority related to zoning, planning, and other
land use matters between the county (district) councils, the Maryland-
National Capital Park & Planning Commission, and the county planning
boards.

The district councils for Prince George’s County and Montgomery County
consist of their respective county councils. LU §§ 22-101, 14-101. They
have primary legislative authority. The district councils are authorized to
adopt and amend zoning ordinances and the accompanying zoning maps for
their counties, LU §§ 22-104, 22-201, and to develop processes and
procedures to ensure that development complies with zoning requirements,
see, e.g., LU §§ 20-503(a), 22-214(e). They have a role also in the creation
of plans by establishing procedures for the planning process, see LU
§ 21-208(a), and approving master plans for their counties, see LU § 21-212.
Moreover, the district councils may delegate certain responsibilities and

5
The Regional District encompasses “the entire area of Prince George’s County,
except for the City of Laurel as it existed on July 1, 2013.” LU § 20-101(b).
11
authority to other local governmental units or tribunals, subject to limitations
as may appear in the RDA.

444 Md. at 525–26 (footnote omitted).

The Maryland-National Capital Park and Planning Commission is an agency of the

State that is comprised of a total of ten members—five of whom are residents of

Montgomery County and five of whom are residents of Prince George’s County. LU

§§ 15-101–15-102. The commission members from each county are designated as “the

Montgomery County Planning Board or the Prince George’s County Planning Board,

respectively.” LU § 20-201; see also LU § 14-101(b)–(c). The county planning board “is

responsible for the planning, subdivision, and zoning functions that are primarily local in

scope[.]” LU § 20-202(a)(1)(i). It has “exclusive jurisdiction over: (i) local functions,

including: 1. the administration of subdivision regulations; [and] 2. the preparation and

adoption of recommendations to the district council with respect to zoning map

amendments[.]” LU § 20-202(b)(1)(i).

The district council for each jurisdiction has legislative authority to adopt and

amend zoning laws and zoning maps for the portion of the Regional District located within

their respective counties. LU § 22-104(a). The RDA also establishes procedures for the

amendment of zoning laws and zoning maps, which I discuss in more detail infra. The

land use tools and procedures established in the RDA are not unique to the counties

comprising the Regional District. To the contrary, the zoning tools established in the RDA

have been around since the establishment of the first zoning laws in this country, and have

universal application, not only in Maryland, but in our sister states.

12
B. Local Land Use Tools—Planning, Zoning, and Subdivision

Generally speaking, there are three integral parts of land use management:

(1) planning; (2) zoning; and (3) subdivision regulation.6 In Wesley Chapel Bluemount

Association v. Baltimore County, this Court described these distinct, but complementary

components, as follows:

Governmental control over land development is effected principally in three
ways—through the adoption of (1) master plans delineating the desired uses
for all land within the planning area, both for development and for roads,
parks, schools, and other public purposes, (2) zoning regulations designed to
implement the master plans by placing legal restrictions on the use of land
by non-governmental persons and entities, and (3) subdivision and other
development regulations designed to ensure that private development of the
land is consistent with the applicable master plan and zoning regulations.
Although each of these devices has an independent purpose and may be
subjected to a separate development and approval procedure, their functions,
to some extent, coalesce, in that they are all designed to assure that land
development occurs in a manner that is consistent with overall legislative
policy and community welfare.

347 Md. 125, 129 (1997) (citing generally Bd. of County Comm’rs v. Gaster, 285 Md. 233

(1979)). The General Assembly has adopted various enabling statutes that authorize local

governments to enact local legislation to carry out each of these functions.

1. Planning Authority

The enabling statutes that govern the planning functions for most counties are found

primarily in LU §§ 1-401–1-418 and §§ 3-101–3-304, et. seq. Under these statutes,

counties and municipal corporations having planning and zoning authority are required to

adopt a “comprehensive plan.” LU §§ 1-405, 3-101. “Plans are developed to guide the

6
I mention subdivision regulations simply to identify the three components of land
use planning. Because subdivision is not involved in this case, I do not discuss it further.
13
implementation of land use controls and zoning in a rational way that is beneficial to the

public.” Zimmer, 444 Md. at 520 (citations omitted). A comprehensive plan generally

applies to a substantial area and is the product of years of study and public input. Id.

at 520–21. The preparation of a comprehensive plan is undertaken by the planning

commission of the local jurisdiction and presented to the local legislature for adoption. See

LU §§ 1-406(a), 1-415(b), 3-102(a), 3-202(a). The legislative body is required to adopt a

comprehensive plan by legislative act. See LU §§ 1-415(b), 3-202(a). The county is

charged with ensuring the implementation of the comprehensive plan through zoning,

subdivision, and other land use regulations. See LU §§ 1-415(b), 3-303(b).

The process for creating a plan within the Regional District is slightly different than

elsewhere in the State. Zimmer, 444 Md. at 521. Specifically, under the RDA, “two types

of plans are required: (1) a ‘general plan’ containing, at a minimum, recommendations for

development in the respective county and supporting analysis; and, (2) ‘area master plans’

pertaining to local planning areas into which each county is divided.” Id. at 521–22. “The[]

plans are prepared by the Maryland-National Capital Park & Planning Commission (which

is composed of separate planning boards for each county; the two boards sit together on bi-

county issues and separately on matters that pertain purely to its respective county) and

must be approved by the local legislature of the respective county.” Id. at 522 (citing LU

§§ 14-101(b), 14-101(f), 21-202, 21-208(a)).

The purpose of the general plan is to:

(1) guide and accomplish a coordinated, comprehensive, adjusted, and
systematic development of the regional district; (2) coordinate and adjust
the development of the regional district with the public and private

14
development of other parts of the State and of the District of Columbia;
and (3) protect and promote the public health, safety, and welfare.

LU § 21-101(b). “Master plans differ from General Plans in that master plans govern a

specific, smaller portion of the County and are often more detailed in their

recommendations than the countywide General Plan as to that same area.” Maryland-Nat’l

Capital Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73,

89 (2009) (cleaned up).

2. Euclidean Zoning Principles Generally

Whereas planning concepts are more abstract, zoning concepts are concrete.

Euclidean zoning has its roots in the Standard State Zoning Enabling Act, which was

written in the 1920’s. See Zimmer, 444 Md. at 512 n.14; 1 Arden H. Rathkopf, et al.,

Rathkopf’s The Law of Zoning and Planning § 1:3 (4th ed. rev. 2023) (hereinafter

Rathkopf’s). Its name is derived from the Supreme Court case, Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926), that upheld a basic zoning ordinance. Zimmer, 444 Md.

at 511 n.13. “Euclidean zoning is a fairly static and rigid form of zoning[.]” Mayor &

Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 534 (2002). The General

Assembly enacted Maryland’s first local zoning enabling statute in 1927. Zimmer, 444

Md. at 507 (citing Ch. 705, 1927 Md. Laws).7

7
The statute authorized Baltimore City and other municipalities with more than
10,000 inhabitants to enact zoning regulations. County Council of Prince George’s County
v. Zimmer Dev. Co., 444 Md. 490, 507 (2015) (citing Ch. 705, 1927 Md. Laws). Since
then, the General Assembly has delegated zoning powers to charter and non-charter
counties and municipalities. Id. (citing LU §§ 4-102, 22-104).
15
Euclidean zoning has been described as “a legislative method or device for

controlling land use by establishing zoning districts with set boundaries and providing for

specific regulations as to type or nature of permitted and prohibited land uses, height of

structures, lot sizes and restrictions, building coverage limitations and similar regulations.”

Stanley D. Abrams, Guide to Maryland Zoning Decisions § 1.01 n.1 (5th ed. LexisNexis

2012 & 2022 Cum. Supp.). Euclidean zoning regulations are legislatively established in

the text of the zoning ordinance, with a corresponding zoning map that identifies the

particular areas to which the zoning laws apply. Id.

3. Enabling Statutes Governing the Text of Zoning Laws

Maryland counties and municipalities with planning and zoning authority have the

authority to adopt zoning laws within their territorial boundaries. See LU §§ 4-102, 22-

104. For that portion of Prince George’s County that is located within the Regional

District, the General Assembly has given the District Council the authority to “adopt and

amend the text of the zoning law[s]” by local law. LU § 22-104(a)(1). The local zoning

laws may regulate, among other things, the location, height, bulk, and size of buildings and

structures on property, the size of lots, and the density and distribution of population. LU

§ 22-104(b). The District Council’s authority to enact Euclidean zoning laws within

separate zoning districts is set forth in LU § 22-201, which states as follows:

(a) In general. — A district council may divide the portion of the regional district
located within its county into districts and zones of any number, shape, or
area it may determine.

(b) Zoning laws. — (1) Within the districts and zones, the district council may
regulate the construction, alteration, and uses of buildings and structures and
the uses of land, including surface, subsurface, and air rights.

16
(2) (i) Zoning laws shall be uniform for each class or kind of development
throughout a district or zone.

(ii) The zoning laws in one district or zone may differ from those in other
districts or zones.

(Emphasis added). The language described above is “commonly referred to as the

‘uniformity requirement’ of Euclidean zoning” and “has its roots in the Standard State

Zoning Enabling Act, which states, at § 2, that applicable zoning ‘regulations shall be

uniform for each class or kind of buildings throughout each district, but the regulations in

one district may differ from those in other districts.’” Anderson House, 402 Md. at 713

(footnote omitted) (quoting 1 Robert M. Anderson, American Law of Zoning 3d § 5.25

at 417 (1986)). “This or a similar limitation appears in the state zoning enabling acts of

nearly every state.” Id. (citation omitted). I will return to a discussion of the uniformity

requirement, as well as our case law discussing this principle, in part III.A.

4. Applying Euclidean Zoning to Properties in Maryland

The above-described enabling statute describes the authority of the local

jurisdiction—in this case, Prince George’s County—to adopt zoning laws. In Maryland,

Euclidean zoning laws are applied to properties located in zoning districts through three

primary legislative zoning processes: “(1) original zoning; (2) comprehensive rezoning;

and (3) piecemeal rezoning.” Rylyns, 372 Md. at 532. The fundamental distinction

between these zoning processes “is that the first two are purely legislative processes, while

piecemeal rezoning is achieved, usually at the request of the property owner[s], through a

quasi-judicial process leading to a legislative act.” Id. (citations omitted).

17
a. Original and Comprehensive Rezoning

As noted above, “the act of zoning either may be original or comprehensive

(covering a large area and ordinarily initiated by local government) or piecemeal (covering

individual parcels, lots, or assemblages, and ordinarily initiated by the property owner).”

Rylyns, 372 Md. at 535. For a zoning action to qualify as

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10515314. Public record. Not legal advice.