County Council v. Zimmer Development Co.

County Council of Prince George’s County v. Zimmer Development Company, No. 64,

September Term, 2014

ZONING AND LAND USE – REGIONAL DISTRICT ACT – DISTRICT

COUNCIL REVIEW OF PLANNING BOARD DECISION – SUBSTANTIAL

EVIDENCE

The County Council of Prince George’s County, sitting as the District Council as a

zoning body under the Regional District Act, exercises appellate jurisdiction when

reviewing the action of the county Planning Board to approve or deny a comprehensive

design plan or specific design plan of a property zoned previously to a comprehensive

design zone (a floating zone). The Council may only reverse the action of the Planning

Board if the Planning Board’s decision is not supported by substantial evidence, is

arbitrary and capricious, or is predicated on an error of law.

ZONING AND LAND USE – REGIONAL DISTRICT ACT – DISTRICT

COUNCIL REVIEW OF PLANNING BOARD DECISION – LIMITED TO

ISSUES ON REMAND

If the County Council of Prince George’s Council, sitting as District Council,

remands such a case to the Planning Board to consider or reconsider select issues,

pursuant to Prince George’s County Code § 27-523(a), and reviews after remand the

modified decision of the Planning Board, it may reverse the modified decision of the

Planning Board based only on the issues that were remanded for consideration or

reconsideration.

ADMINISTRATIVE LAW – JUDICIAL REVIEW OF DISTRICT

COUNCIL DECISION – REVERSAL OF AGENCY DECISION

A reviewing court may reverse the decision of an administrative agency, and need

not remand the case for further consideration by the agency, when there remains no

administrative discretion or function for the agency to exercise or perform properly and

the outcome is required by law.

Circuit Court for Prince George’s County

Case Nos. CAL 12-19612 & CAL 12-19613

Argued: 3 March 2015

IN THE COURT OF APPEALS OF

MARYLAND

No. 64

September Term, 2014

COUNTY COUNCIL OF PRINCE

GEORGE’S COUNTY, SITTING AS

THE DISTRICT COUNCIL

v.

ZIMMER DEVELOPMENT

COMPANY

Barbera, C.J.,

*Harrell,

Battaglia,

Greene,

Adkins,

McDonald,

Watts,

JJ.

Opinion by Harrell, J.

Filed: August 20, 2015

*Harrell, J., now retired, participated in

the hearing and conference of this case

while an active member of this Court; after

being recalled pursuant to the Constitution,

Article IV, Section 3A, he also

participated in the decision and adoption

of this opinion.

Given the battle of almost epic proportions waged by the respective angels in the

present litigation, it seems fitting to describe metaphorically with select readings from the

entirely fictional Book of Land Use the forced march this case has made:

Chapter MMIV (2004):

In the beginning, a landowner applied to reclassify to a

floating zone a certain property in Adelphi, in the county of

Prince George’s, in the State of Maryland. The District

Hegemon looked upon the application and saw that it was

good.

Chapters MMX – MMXII (2010-2012)

Time passed. The landowner sought at last approval to

complete that which had been initiated lo’ those many years

ago. Although the landowner’s latest initiatives were deemed

acceptable by the County planning satraps, the District

Hegemon, being displeased with these offerings, spurned

them as unworthy.

The landowner, feeling much afflicted, brought its

plight before a local Sanhedrin who, finding uncharitable the

District Hegemon’s most recent treatment of the landowner’s

offerings, decreed that the offerings were pleasing indeed

unto the eyes of the law.

Chapter MMXV (2015)

The displeased District Hegemon brings its case now

before the Great Sanhendrin, which, having heard the piteous

wailing and cries from all concerned, shall now pass final

judgment.

I. THE RELEVANT LAND USE REGIME IN PRINCE GEORGE’S COUNTY:

A MIND-NUMBING PRIMER

Most judges and lawyers, and many public officials and members of the general

public, are uninitiated (and perhaps even uninterested, unless their oxen are being gored)

in the mysteries of land use regulation. With apologies particularly to the uninterested,

the following introduction to the relevant zoning, planning, and land use regime in play

virtually throughout all of Prince George’s County (and the Regional District of which it

is a part) is useful, if not essential, in order to grasp the context of the facts of this case

and our decision to follow. Because the dispute is primarily about the source and terms of

the locality’s authority to regulate land use, we will explore first the well-spring of that

authority.

The modern authority to regulate land use in Maryland may be traced to the

colonial Maryland Charter of 1632. The Charter granted to the Lord Proprietor “free, full,

and absolute power . . . to ordain, make, enact, and . . . publish any laws

whatsoever . . . .”1, 2 Maryland Charter of 1632 (modified for modern spelling). Much of

1

The Charter required any legislative action to “be consonant to Reason, and be

not repugnant or contrary, but (so far as conveniently may be) agreeable to the Laws,

Statutes, Customs and Rights of this Our Kingdom of England.” The laws of England at

the time did not limit the regulation of private land for the public good. John F. Hart,

Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 Harv. L.

Rev. 1252, 1285-86 (1996); see Charles II, 1666: An Act for rebuilding the Citty of

London, reprinted in 5 Statutes of the Realm 1628-80, at 603-612 (John Raithby ed.,

1819), http://www.british-history.ac.uk/statutes-realm/vol5/pp603-612 (establishing a

building code to regulate construction of new dwellings in the aftermath of the Great Fire

of London).

In modern times, this broad authority is referred to as the State’s “police power.”

“In its broadest sense the police power is said to be the power of government inherent in

every sovereignty.” Tighe v. Osborne, 149 Md. 349, 356, 131 A. 801, 803 (1925); see

also Lawton v. Steele, 152 U.S. 133, (1894). Like the language of its primordial grant,

such power is not absolute. As we have noted,

[i]n this state the courts have uniformly held that the police

power is not unlimited, but that wherever it is invoked in aid

of any purpose or legislation, such purpose or legislation must

bear some definite and tangible relation to the health,

(Continued…)

2

this authority was wrested from the Proprietor by the legislative assembly prior to the

colony achieving independence from Great Britain. See generally Albert J. Martinez, Jr.,

The Palatinate Clause of the Maryland Charter, 1632-1776: From Independent

Jurisdiction to Independence, 50 Am. J. Legal Hist. 305 (2008-2010). The State of

Maryland retains this broad authority to regulate land use (and to delegate powers to the

political subdivisions), subject only to the Federal and State constitutions.

(…continued)

comfort, morals, welfare, or safety of the public, which must

define the farthest boundaries of its territory.

Goldman v. Crowther, 147 Md. 282, 293, 128 A. 50, 54 (1925).

2

The colonial administration exercised its land use power. Maryland’s mill act,

stating that most of the places fit for building watermills was owned by people who, on

account of being underage or “willfully obstinate,” would not sell their property to those

willing to construct mills, established a process by which an individual proposing to build

a mill could condemn another’s property. Hart, Colonial Land Use Law and Its

Significance for Modern Takings Doctrine, supra, at 1267 (1996) (quoting Act of May 8,

1669, 2 Archives of Maryland 211, 211-12 (William H. Browne ed., 1884)). One of the

apparent purposes of the statute was to diversify the agricultural output of the colony by

encouraging farmers to grow grains, rather than only tobacco. John F. Hart, The

Maryland Mill Act, 1669-1766: Economic Policy and the Confiscatory Redistribution of

Private Property, 39 Am. J. Legal Hist. 1, 7-11 (1995); see also Act of May 8, 1669, 2

Archives of Maryland 211 (William H. Browne ed., 1884) (stating in the preamble that

“husbandry in tilling the ground for and sowing of wheat and Barly is but coldly

prosecuted though the Advantages thereby in rayseing the stock of Neate Cattle be

great”). Other examples of exercise of land use power include a scheme aimed at

encouraging the construction of forges and foundries, Hart, Colonial Land Use Law and

Its Significance for Modern Takings Doctrine, supra at 1267 (citing Act of 1719, para. II,

33 Archives of Maryland 467, 467-68 (Clayton C. Hall ed., 1913)), and the prohibition of

the construction of dams that damaged fisheries or impeded navigation, Acts of June 15,

1768, Nos. 4 & 5, 61 Archives of Maryland 427 (J. Hall Pleasants ed., 1944).

3

A. Delegation of Land Use Powers to Local Governments.

Maryland, like its sister states, delegates to local political subdivisions significant

authority to regulate land use.3 1 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning

and Planning §§ 1:9, 36:2 (4th ed. 2015) [hereinafter Rathkopf’s The Law of Zoning and

Planning]; see also Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md.

514, 528, 814 A.2d 469, 476 (2002). Local governments possess no inherent power to

regulate land use, but rather are limited to the powers granted to them by the State. W.

Montgomery Cnty. Citizens Ass'n v. Maryland-Nat'l Capital Park & Planning Comm'n,

309 Md. 183, 186, 522 A.2d 1328, 1329 (1987) (citing Crozier v. Co. Comm. Pr.

George's Co., 202 Md. 501, 505-07, 97 A.2d 296 (1953); see also Reynolds v. Sims, 377

U.S. 533, 575 (1964) (“Political subdivisions of States—counties, cities, or whatever—

never were and never have been considered as sovereign entities. Rather, they have been

traditionally regarded as subordinate governmental instrumentalities created by the State

to assist in the carrying out of state governmental functions”). But cf. William J. Novak,

The People’s Welfare: Law and Regulation in Nineteenth Century America 171-189

(discussing the objections of Eighteenth Century jurists to state-wide regulation of liquor,

while the same jurists had upheld identical local liquor controls without serious scrutiny).

3

The State exercises concurrently limited planning authority. The State

Department of Planning and its Secretary prepare plans “to promote the general welfare

and prosperity of the people of the State” by considering “studies of governmental,

economic, physical, and social conditions and trends.” Maryland Code (2001, 2009 Repl.

Vol.), State Finance and Procurement Article, § 5-602 (“SFP”); see also SFP §§ 5-309, 5-

203.

4

Under Maryland’s constitutional scheme, a local government’s authority to regulate land

use may emanate only from enabling legislation of the General Assembly. See Maryland

Const. Art. XI; W. Montgomery Cnty. Citizens Ass'n, 309 Md. at 186, 522 A.2d at 1329

(citing Crozier, 202 Md. at 505-07, 97 A.2d 296). These powers are exercised, “in the

main, through the implementation of what is known as the planning and zoning process.”

Rylyns Enterprises, 372 Md. at 531-32, 814 A.2d at 479.

B. Zoning and Planning Distinguished

Although related concepts, it is well established in Maryland that zoning and

planning are separate functions. Appleton Reg'l Cmty. Alliance v. Cnty. Comm'rs of Cecil

Cnty., 404 Md. 92, 102, 945 A.2d 648, 653 (2008); Mueller v. People's Counsel for

Baltimore Cnty., 177 Md. App. 43, 68, 934 A.2d 974, 989 (2007) (citing Howard Co. v.

Dorsey, 292 Md. 351, 361, 438 A.2d 1339 (1982); Board of Cnty. Comm'rs of Carroll

County v. Stephans, 286 Md. 384, 389, 408 A.2d 1017 (1979)). Maryland courts have

parsed previously the distinction.

Zoning is the more finite term. Rylyns Enterprises, 372 Md. at 528-29, 814 A.2d at

476-77. Generally, “the term ‘zoning’ is ‘used to describe the process of setting aside

disconnected tracts of land varying in shape and dimensions, and dedicating them to

particular uses designed in some degree to serve the interests of the whole territory

affected by the plan.’” Maryland Overpak Corp. v. Mayor and City Council of Baltimore,

395 Md. 16, 48, 909 A.2d 235, 254 (2006) (quoting Stephans, 286 Md. at 388-89, 408

A.2d at 1019). The “territorial division of land within a jurisdiction” is “[t]he very

essence of zoning . . . .” Mueller, 177 Md. App. at 67-68, 934 A.2d at 988 (citing Heath

5

v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799 (1946)). Parcels

must be put to use in compliance with their zoning, excepting legal non-conforming

uses.4

Planning is the broader term. Bd. of Cnty. Comm'rs of Cecil Cnty. v. Gaster, 285

Md. 233, 246, 401 A.2d 666, 672 (1979); Mueller, 177 Md. App. at 69, 934 A.2d at 989;

see also Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477-78 (stating that zoning is

the more finite term). Planning concerns “the development of a community, not only with

respect to the uses of lands and buildings, but also with respect to streets, parks, civic

beauty, industrial and commercial undertakings, residential developments and such other

matters affecting the public convenience . . . .” Gaster, 285 Md. at 246, 401 A.2d at 672

(quoting 1 E. C. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978)). Unsurprisingly,

the making of “plans” falls clearly under the ambit of “planning.” See Rylyns Enterprises,

372 Md. at 529, 814 A.2d at 477.

Included in the zoning or planning powers is also the authority to enforce zoning

and planning actions and decisions. For example, Maryland courts recognize the

requirement and issuance of building and occupancy permits as part of the zoning power,

Joy v. Anne Arundel Cnty., 52 Md. App. 653, 657-68, 451 A.2d 1237, 1240 (1982), and

subdivision controls as an element of the exercise of the planning power, Richmarr Holly

Hills, Inc. v. Am. PCS, L.P., 117 Md. App. 607, 645-46, 701 A.2d 879, 898 (1997). Just

as the power to zone implies more than establishing classifications and placing them on

4

We describe non-conforming uses infra at note 16.

6

an official map, so too does the planning power encompass more than merely producing

plans and acting on subdivision applications. Because “planning and zoning complement

each other and serve certain common objectives,”5 People's Counsel for Baltimore Cnty.

v. Surina, 400 Md. 662, 689, 929 A.2d 899, 915 (2007); accord Richmarr, 117 Md. App.

at 650, 701 A.2d at 900 (quoting 4 R. Anderson, American Law of Zoning § 23.20 (2nd

ed. 1977)), some implementation and enforcement procedures may have both planning

and zoning aims.6

C. Zoning in General

Maryland’s first local zoning enabling statute was enacted by the General

Assembly in 1927 authorizing zoning in Baltimore City and other municipalities with

5

The zoning and planning, when implemented together, aim to guide growth

in a manner that allows for the expansion of economic

activities and opportunities in the area or region for the

benefit of its residents, while at the same time attempting to

maintain the quality of life of the region, all without unduly

disturbing the reasonable expectations of the citizenry as to

the permissible uses they may make of real property.

Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 532, 814 A.2d

469, 479 (2002); see also Maryland Code (2012), Land Use Article, §§ 4-202, 10-302

(“LU”) (requiring certain objectives for zoning regulations and, in Baltimore City,

requiring such zoning regulations to be “in accordance with the plan”).

6

For example, implementation of subdivision controls, an element of the planning

power, must comply as well with applicable zoning regulations. People's Counsel for

Baltimore Cnty. v. Surina, 400 Md. 662, 691-92, 929 A.2d 899, 916 (2007); see also,

e.g., Prince George’s County Code § 24-121(a) (“PGCC”) (“The Planning Board shall

require that proposed subdivisions . . . [are] platted in conformance with all of the

requirements of the Zoning Ordinance applicable to the subject property.”).

7

more than 10,000 inhabitants.7 See 1927 Md. Laws ch. 705. In reliance on this delegation,

Baltimore City enacted its first comprehensive zoning ordinance on 30 March 1931.8 See

Jack Lewis, Inc. v. Mayor & City Council of Baltimore, 164 Md. 146, 148, 164 A. 220,

221 (1933). Since then, counties (both charter and otherwise) have been delegated also

zoning powers. See Maryland Code (2012), Land Use Article §§ 4-102, 22-104 (“LU”).

1. Original and Comprehensive Zoning Versus Piecemeal Zoning

Local zoning authorities implement their delegated zoning authority through

“establishment of original zoning through adoption of a [an original] zoning map,

comprehensive rezoning of substantial areas of the jurisdiction through a legislative-type

process initiated by the local government, and piecemeal rezoning of individual

properties (by application of the owner or contract purchaser) through a quasi-judicial

7

That same year, the precursor to the Maryland-Washington Regional District Act

(more on this later) was enacted by the Legislature. See 1927 Md. Laws ch. 448; see also

infra note 29. At that time, however, primary zoning authority was not delegated to the

local governments in the Regional District, but rather rested with the Maryland-National

Capital Park & Planning Commission. 1927 Md. Laws ch. 448, § 23.

8

Baltimore City enacted previously a precursor ordinance that required a permit

from a “zoning commissioner” to erect any structure or change the use of land or

structures. Tighe, 149 Md. at 353, 131 A. at 802. The zoning commissioner was

authorized to refuse issuance of the permit for any non-residential construction or use if,

“in his judgment after investigation, the proposed buildings or structures, use, or changes

of use would create hazards from fire or disease, or would in any way menace the public

welfare, security, health or morals.” Tighe, 149 Md. at 353, 131 A. at 802. We held this

regulation invalid because allowing denial of a permit justified only by “public welfare”

considerations “delegate[d] to the zoning commissioner and the board of zoning appeals

of Baltimore city arbitrary, undefined, and unreasonable powers.” Tighe, 149 Md. at 368,

131 A. at 808. In a later dispute between the same parties, we held the revised ordinance,

which did not authorize denial of the permit based on “public welfare” considerations, to

be a valid delegation of the police power. Tighe v. Osborne, 150 Md. 452, 459-60 133 A.

465, 467-68 (1926).

8

process.” Anne Arundel Cnty. v. Bell, 442 Md. 539, 553, 113 A.3d 639, 647 (2015)

(citing Rylyns Enterprises, 372 Md. at 532, 814 A.2d at 479). Original zoning and, by

definition, comprehensive rezoning involve large geographic areas and emanate largely

from policy considerations, including future public needs, potential for orderly growth,

and the public health, safety, and general welfare to be advanced.9 Bell, 442 Md. at 553-

54, 113 A.3d at 647-48 (citing Montgomery County v. Woodward & Lothrop, Inc., 280

Md. 686, 713, 376 A.2d 483, 498 (1977)). Piecemeal rezonings, in contrast, concern an

individual property (or a relatively finite assemblage of properties) that is rezoned

through a deliberative fact-finding process, including “at least one evidentiary hearing

(generally), factual and opinion testimony, documentary evidence, cross-examination of

the witnesses, and objections to the weighing of evidence.” Bell, 442 Md. at 555, 113

A.3d at 649 (citing Anderson House, LLC v. Mayor of Rockville, 402 Md. 689, 708 n.17,

939 A.2d 116, 127 n.17 (2008)). The piecemeal rezoning “process results in a

particularized set of written findings of fact and conclusions of law as to the zoning

proposal for the parcel or assemblage in question.” Id. Both processes conclude with a

9

In Rylyns Enterprises, we stated that for a legislative act of zoning to qualify as a

“proper” comprehensive rezoning it must:

1) cover a substantial area; 2) be the product of careful study

and consideration; 3) control and direct the use of land and

development according to present and planned future

conditions, consistent with the public interest; and, 4) set

forth and regulate all permitted land uses in all or

substantially all of a given political subdivision, though it

need not zone or rezone all of the land in the jurisdiction.

372 Md. at 535, 814 A.2d at 481.

9

legislative act creating or altering the official zoning map for the jurisdiction. Anderson

House, 402 Md. at 707 n.17, 939 A.2d at 127 n.17.

The scope of review by Maryland courts of the legislative decisions embodied in

original zonings and comprehensive rezonings is quite narrow.10 These actions “‘are

limited only by the general boundaries of appropriate procedural and due process

considerations.’” Bell, 442 Md. at 554, 113 A.3d at 648 (quoting Rylyns Enterprises, 372

Md. at 533, 814 A.2d at 480.) Courts look to whether the local zoning authority: (1)

followed the appropriate procedure designated by the zoning enabling statute and its own

ordinances; (2) comported with the requirements of due process; (3) aimed to achieve a

valid public purpose; and, (4) did not otherwise exceed the police powers.11 See Rylyns

10

We described recently in Anne Arundel County v. Bell, 442 Md. 539, 113 A.3d

639 (2015), the standing requirements a plaintiff must meet to challenge a comprehensive

rezoning. See generally 442 Md. at 554-85, 113 A.3d at 649-67. A plaintiff must

demonstrate that he, she, or it is eligible under taxpayer standing by “alleg[ing] two

things: (1) that the complainant is a taxpayer and (2) that the suit is brought, either

expressly or implicitly, on behalf of all other taxpayers.” Bell, 442 Md. at 577, 113 A.3d

at 662 (quoting State Ctr., LLC v. Lexington Charles Ltd. P'ship, 438 Md. 451, 547, 92

A.3d 400, 457 (2014)). “Once a complainant establishes eligibility to bring a suit, he, she,

or it must allege, as noted above, both a governmental action that is illegal or ultra vires

and that the action may affect injuriously the taxpayer's property (meaning that it

reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes).” Bell,

442 Md. at 578, 113 A.3d at 662 (citing State Center, 438 Md. at 540, 92 A.3d at 453).

The harm alleged must be particularized and pecuniary, as opposed to harms to the

general public (e.g., changes to the neighborhood, increased traffic, or increased noise),

and caused potentially by the comprehensive rezoning. Bell, 442 Md. at 578-79, 585, 113

A.3d at 662-63, 667.

11

Original zonings and comprehensive rezonings are subject to judicial

invalidation when found to be arbitrary, discriminatory or illegal. See Anderson House,

LLC v. Mayor & City Council of Rockville, 402 Md. 689, 720, 939 A.2d 116, 134-34

(2008); Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 4, 246 A.2d 220, 221 (1968).

(Continued…)

10

Enterprises, 372 Md. at 533, 814 A.2d at 480 (quoting White v. Spring, 109 Md. App.

692, 696–97, 675 A.2d 1023, 1025 (1996)). Properly enacted original zoning and

comprehensive rezoning are presumed to be correct and may only be changed by the

local zoning authority through later comprehensive zoning or an application for

piecemeal rezoning. Bell, 442 Md. at 554, 554 n.6, 113 A.3d at 648, 648 n.6 (quoting

Rylyns Enterprises, 372 Md. at 535–36, 814 A.2d at 481).

Courts are somewhat less deferential in their review of quasi-judicial piecemeal

rezoning.12 Like other quasi-judicial decisions, piecemeal rezoning is reviewed most

frequently under the substantial evidence test. Cremins v. Cnty. Comm'rs of Washington

(…continued)

When an original zoning or comprehensive zoning is “the product of careful study and

consideration” and “control[s] and direct[s] the use of land and development according to

present and planned future conditions, consistent with the public interest[,]” however, its

legislative determinations will not be disturbed. See Bell, 442 Md. at 554, 113 A.3d at

648 (quoting Rylyns Enterprises, 372 Md. at 535, 814 A.2d at 481).

12

We summarized also in Bell the requirements for property owner standing that

applies typically to piecemeal rezonings and other administrative land use decisions or

executive actions. To establish property owner standing, a complainant must be

“specially aggrieved.” See Bell, 442 Md. at 558, 113 A.3d at 651. The most important

consideration in whether a property owner is specially aggrieved is the presumption

derived from the proximity of his/her/its property to the rezoned property. Bell, 442 Md.

at 558, 113 A.3d at 650 (citing Ray v. Mayor & City Council of Baltimore, 430 Md. 74,

82, 59 A.3d 545, 550 (2013)). Our cases demonstrate that a party will only be specially

aggrieved for purposes of property owner standing if the party is “an adjoining,

confronting, or nearby property owner” (prima facie aggrieved) or is “farther away than

an adjoining, confronting, or nearby property owner, but is still close enough to the site of

the rezoning action and offers ‘plus factors' supporting injury” (almost prima facie

aggrieved). Bell, 442 Md. at 559, 113 A.3d at 651 (quoting Ray, 430 Md. at 91, 59 A.3d

at 551-52). We have found almost prima facie aggrieved complainants whose property is

between 200 and 1000 feet away from the subject property. Id. (citing Ray, 430 Md. at

91, 59 A.3d at 555).

11

Cnty., 164 Md. App. 426, 438, 883 A.2d 966, 973 (2005). The determination of the

zoning authority should be upheld “if reasoning minds could reasonably reach the

conclusion from facts in the record.” Cremins, 164 Md. App. at 438, 883 A.2d at 973

(citing Stansbury v. Jones, 372 Md. 172, 182-83, 812 A.2d 312, 318 (2002)).

2. Euclidian Zones

Early zoning ordinances sought to separate incompatible land uses through a

method that would become known as “Euclidean” zoning.13 1 Rathkopf’s The Law of

Zoning and Planning § 1:4. Under a Euclidian zoning scheme, a zoning authority divides

geographically an area into use districts. Rylyns Enterprises, 372 Md. at 534, 814 A.2d at

480 (quoting Rouse–Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments for Prince

George's County, 138 Md. App. 589, 623, 773 A.2d 535, 555 (2001)). Certain permitted

uses are specified by local ordinance and allowed in particular geographic areas. Id.

(citing Rouse–Fairwood Dev., 138 Md. App. at 623, 773 A.2d at 555). These geographic

areas and the zoning assigned to them are then recorded on an official zoning map. Id.

(citing Rouse–Fairwood Dev., 138 Md. App. at 623, 773 A.2d at 555). The number of

classifications that are available to be applied within a district has increased exponentially

since the early schemes, but Euclidian zoning remains a basic framework for

implementation of land use controls at the local level. 1 Rathkopf’s The Law of Zoning

and Planning §§ 1:4, 1:5; see also, e.g, Prince George’s County Code § 27-109

13

Euclidian zoning owes its name to Village of Euclid, Ohio v. Ambler Realty Co.,

272 U.S. 365 (1926). In Euclid, the U.S. Supreme Court held that a zoning scheme that

excluded apartments and commercial uses from a single-family residential district was

constitutional. 272 U.S. at 396-97.

12

(“PGCC”) (listing the categories of zones that have been created in Prince George’s

County).

Euclidian zoning aimed to provide stability and predictability in land use planning

and zoning. Rylyns Enterprises, 372 Md. at 534, 814 A.2d at 481. The legislative

enactment of a Euclidian original zoning or comprehensive rezoning is self-executing,

id., and discretionary consideration of individual proposed uses is the exception rather

than the rule, 1 Rathkopf’s The Law of Zoning and Planning § 1:4. Euclidian zoning laws

in Maryland must “be uniform for each class or kind of development throughout a district

or zone[,]” LU §§ 4-201(b)(2)(i), 10-301(b)(2)(i); 22-201(b)(2)(i), to ensure that similarly

situated properties are subjected to similar regulation,14 see Anderson House, 402 Md. at

713-14, 939 A.2d at 131. The original or comprehensive zoning may be changed (unless

by a subsequent comprehensive zoning) only by a subsequent piecemeal zoning, which in

the case of a Euclidean zone may be granted only upon a showing of unforeseen changes

in the surrounding neighborhood occurring since the prior original zoning or

comprehensive rezoning or mistake of fact made by the zoning authority in the original

14

This requirement is referred to commonly as the “uniformity requirement” of

Euclidean zoning. Anderson House, 402 Md. at 713, 939 A.2d at 130. It originated from

the Standard State Zoning Enabling Act, which “was written during the 1920s by ‘the

distinguished original group of planning lawyers in this country[,]’ Edward Bassett,

Frank Williams, and Alfred Bettman with the advocacy of Herbert Hoover's Department

of Commerce.” Anderson House, 402 Md. at 713, 939 A.2d at 130 (alteration in original)

(quoting Norman Williams, Jr. & John M. Taylor, American Land Planning Law § 18.01,

at 461 (3rd ed. 2003)). Although the uniformity requirement arises from policy decisions

to prevent arbitrary zoning classifications, and may not be a legal necessity, it has been

adopted in the zoning enabling acts of nearly every state. Anderson House, 402 Md. at

713, 939 A.2d at 131.

13

zoning or previous comprehensive rezoning.15 Rylyns Enterprises, 372 Md. at 538, 814

A.2d at 483 (citing Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A.2d 244, 249

(1973); Richmarr, 117 Md. App. at 635-37, 701 A.2d at 893-94).

A school of thought evolved that the stability and predictability of Euclidian

zoning amounted sometimes to undesirable rigidity. See People's Counsel for Baltimore

15

This requirement is known as the “change-mistake rule.” Rylyns Enterprises,

372 Md. at 538, 814 A.2d at 483. As described in Rylyns Enterprises:

The “change-mistake” rule is a rule of the either /or type. The

“change” half of the “change-mistake” rule requires that, in

order for a piecemeal Euclidean zoning change to be

approved, there must be a satisfactory showing that there has

been significant and unanticipated change in a relatively well-

defined area (the “neighborhood”) surrounding the property

in question since its original or last comprehensive rezoning,

whichever occurred most recently. The “mistake” option of

the rule requires a showing that the underlying assumptions or

premises relied upon by the legislative body during the

immediately preceding original or comprehensive rezoning

were incorrect. In other words, there must be a showing of a

mistake of fact. Mistake in this context does not refer to a

mistake in judgment. Additionally, even where evidence of a

change or mistake is adduced, there is no reciprocal right to a

change in zoning, nor is there a threshold evidentiary standard

which when met compels rezoning. Even with very strong

evidence of change or mistake, piecemeal zoning may be

granted, but is not required to be granted, except where a

failure to do so would deprive the owner of all economically

viable use of the property. In Maryland, the change-mistake

rule applies to all piecemeal zoning applications involving

Euclidian zones, including those involving conditional

zoning. The change-mistake rule does not apply, in any event,

to changes in zoning made in a comprehensive rezoning, or

the piecemeal grant of a floating zone.

372 Md. at 538-39, 814 A.2d at 483 (citations omitted) (footnotes omitted).

14

Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 71-72, 956 A.2d 166, 176 (2008); Rylyns

Enterprises, 372 Md. at 541, 814 A.2d at 485; 1 Rathkopf’s The Law of Zoning and

Planning § 1:4. Although certain land use tools that fall under the zoning umbrella, such

as non-conforming uses,16 special exceptions,17 and variances,18 give Euclidian zoning

16

We summarized Maryland’s non-conforming uses jurisprudence in Trip

Associates, Inc. v. Mayor & City Council of Baltimore, 392 Md. 563, 898 A.2d 455

(2006). A property owner establishes a non-conforming use if the property owner can

demonstrate to the relevant authority (often a local board of appeals) that the property

was being used in a then-lawful manner before, and at the time of, the adoption of a new

zoning ordinance which purports to prohibit the use on the property. Trip Associates, 392

Md. at 573, 898 A.2d at 455. Such a property owner has a vested constitutional right to

continue the prohibited use, subject to local ordinances that may prohibit “extension” of

the use and seek to reduce the use to conformance with the newer zoning through an

“amortization” or “abandonment” scheme. See Trip Associates, 392 Md. at 574-75, 580,

898 A.2d at 455-56, 459. Nevertheless, nonconforming uses are not favored by Maryland

law, and local ordinances regulating validly non-conforming uses will be construed to

effectuate their purpose. Trip Associates, 392 Md. at 573, 898 A.2d at 455-56 (quoting

Cnty. Council of Prince George's Cnty. v. E. L. Gardner, Inc., 293 Md. 259, 268, 443

A.2d 114, 119 (1982)).

17

A special exception, sometimes called a “conditional use,” is a zoning device

that provides a middle ground between permitted and prohibited uses. People's Counsel

for Baltimore Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 71, 71 n.19, 956 A.2d 166,

176, 176 n.19 (2008); cf. Maryland Overpak Corp. v. Mayor And City Council Of

Baltimore, 395 Md. 16, 29, 909 A.2d 235, 243 (2006) (citing Lucas v. People's Counsel

for Baltimore County, 147 Md. App. 209, 227 n.20, 807 A.2d 1176, 1186 n.20 (2002))

(noting that there may be a “highly-nuanced distinction” between conditional uses and

special exceptions, but describing them together). It allows the local legislature to set

some uses as prima facie compatible for a given zone, subject to a case-by-case

evaluation to determine whether the use would result in an adverse effect on the

neighborhood (other than any adverse effect inherent in that use within the zone), such

that would make the use actually incompatible. Loyola Coll., 406 Md. at 71-72, 106, 956

A.2d at 176, 197-98. Because special exceptions are created legislatively, they are

presumed to be correct and an appropriate exercise of the police power. Rylyns

Enterprises, 372 Md. at 543, 814 A.2d at 486 (citing Brandywine Enterprises, Inc. v.

Prince George's County Council, 117 Md. App. 525, 700 A.2d 1216 (1997)).

15

some flexibility, they were thought not to be enough.19 Rylyns Enterprises, 372 Md. at

537, 814 A.2d at 482 (quoting Stanley D. Abrams, Guide to Maryland Zoning Decisions,

§ 11.1 (3d ed., Michie 1992)).

(…continued)

18

“A variance refers to administrative relief which may be granted from the strict

application of a particular development limitation in the zoning ordinance (i.e., setback,

area and height limitations, etc.).” Rylyns Enterprises, 372 Md. at 537, 814 A.2d at 482

(quoting Stanley D. Abrams, Guide to Maryland Zoning Decisions, § 11.1 (3d ed.,

Michie 1992)). The Land Use Article defines “variance” as

a modification only of density, bulk, dimensional, or area

requirements in the zoning law that is not contrary to the

public interest, and where, owing to conditions peculiar to the

property and not because of any action taken by the applicant,

a literal enforcement of the zoning law would result in

unnecessary hardship or practical difficulty, as specified in

the zoning law.

LU § 1-101(s). Local zoning authorities (be it boards of appeal, zoning hearing examiner,

or local legislature, depending on how this authority is delegated and/or re-delegated)

determine somewhat the considerations by which variance requests are decided,

including whether the “unnecessary hardship” or “practical difficulties” standard applies.

See Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 266-67, 734 A.2d

227, 231-32 (1999) (holding that Anne Arundel County, through a County ordinance,

required property owners seeking a variance in the Chesapeake Critical Area to

demonstrate unwarranted hardship, a more exacting standard, as opposed to practical

difficulties, which was required previously); see also Belvoir Farms Homeowners Ass'n,

355 Md. 266 n.4, 734 A.2d 331 n.4 (noting a possible change by the ordinance to the

“traditional uniqueness standard” by which applicable unnecessary hardship or practical

difficulties must be caused). The property owner must prove generally that a variance is

warranted, Mueller v. People's Counsel for Baltimore Cnty., 177 Md. App. 43, 70, 934

A.2d 974, 989 (2007) (citing Easter v. Mayor and City Council of Baltimore, 195 Md.

395, 400, 73 A.2d 491 (1950)).

19

These land use tools may be employed also in so-called “floating” zones. See

Loyola Coll., 406 Md. at 72 n.20, 956 A.2d at 176 n.20. We discuss floating zones infra

at Part I.C.3.

16

3. Floating Zones

Floating zones (or planned unit development zones) are a local legislative

response to the relative rigidity of Euclidian zoning and occupy the opposite end of the

flexibility continuum of zoning categories from Euclidian zones.20 Rylyns Enterprises,

372 Md. at 539 n.15, 814 A.2d at 484 n.15. Rezoning a parcel to a floating zone

resembles in some aspects a special exception process, see id. (citing Richmarr, 117 Md.

App. at 640, 701 A.2d at 895 (1997)); 1 Rathkopf’s The Law of Zoning and Planning §

14:32, but, unlike a special exception, it culminates in a legislative act amending the

zoning on the official zoning map.

Floating zones are used often to allow the development of specialized or mixed

uses. 3 Rathkopf’s The Law of Zoning and Planning § 45:1; see Rylyns Enterprises, 372

Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Russell R. Reno, Non Euclidean Zoning:

the Use of the Floating Zone, 23 Md. L. Rev. 105, 107 (1963)). “In particular, floating

zones have been used to permit large commercial and industrial uses, mixed uses,

multifamily residences, and planned unit developments.” 3 Rathkopf’s The Law of Zoning

and Planning § 45:1.

Local zoning authorities implement, where appropriate, floating zones through a

two-step process. 1 Patricia E. Salkin, American Law of Zoning § 9:17 (5th ed. 2009)

[hereinafter Am. Law Zoning]. First, the local zoning authority establishes in its zoning

20

A “Planned Unit Development” is a synonym substantially for a floating zone.

Rylyns Enterprises, 372 Md. at 533 n.9, 814 A.2d at 480 n.9; see also Bell, 442 Md. at

557, 113 A.3d at 650.

17

ordinance a specific zoning classification for a specific purpose or a class of purposes,

but does not assign on the zoning map the classification to any property, awaiting instead

a property owner’s piecemeal application that is judged to meet the legislative criteria for

the zone sought. 1 Am. Law Zoning § 9:17. This zone is said thus to “float” above the

local jurisdiction to which the zone may be applied through the grant of a piecemeal

zoning map amendment (or possibly through the adoption of a comprehensive rezoning,

provided there was at least pending a piecemeal application at the time the

comprehensive rezoning is adopted). Bigenho v. Montgomery Cnty. Council, 248 Md.

386, 391, 237 A.2d 53, 57 (1968); see also Rylyns Enterprises, 372 Md. at 539 n.15, 814

A.2d at 484 n.15 (citing Reno, Non Euclidean Zoning: the Use of the Floating Zone,

supra, at 107); 1 Am. Law Zoning § 9:17. The second step is a property owner initiating a

piecemeal rezoning action to implement the zone on a particular parcel. Rylyns

Enterprises, 372 Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Reno, Non Euclidean

Zoning: the Use of the Floating Zone, supra, at 107); Bigenho, 248 Md. at 391, 237 A.2d

at 56; 1 Am. Law Zoning § 9:17.

Although the processing, review, and grant of a floating zone follows usually the

same quasi-judicial process as Euclidian piecemeal rezonings, the change-mistake rule

does not apply to the former.21 See Bell, 442 Md. at 555-56, 113 A.3d at 649 (citing

Rylyns Enterprises, 372 Md. at 539, 814 A.2d at 483–84); Aubinoe v. Lewis, 250 Md.

21

Floating zones, like special exceptions, partake of presumptive validity,

provided certain conditions are met, because the zoning authority included them in its

zoning ordinance. See Huff v. Bd. of Zoning Appeals of Baltimore Cnty., 214 Md. 48, 62,

133 A.2d 83, 91 (1957).

18

645, 653, 244 A.2d 879, 884 (1968)). To rezone a property to a floating zone, the zoning

authority must find generally that the legislative prerequisites for the zone are met and the

rezoning is compatible with the surrounding neighborhood (much as required to grant a

special exception). See Bell, 442 Md. at 555-56, 113 A.3d at 649 (citing Aubinoe, 250

Md. at 653, 244 A.2d at 884); Rylyns Enterprises, 372 Md. at 539 n.15, 814 A.2d at 484

n.15 (citing Richmarr, 117 Md. App. at 640, 701 A.2d at 895); Bigenho, 248 Md. at 391,

237 A.2d at 56-57. The burdens of production and persuasion to demonstrate that the

rezoning is appropriate fall on the applicant for a floating zone.22 Rockville Crushed

Stone, Inc. v. Montgomery Cnty., 78 Md. App. 176, 193, 552 A.2d 960, 968 (1989); 3

Rathkopf’s The Law of Zoning and Planning § 45:4; see also Aubinoe, 250 Md. at 653,

244 A.2d at 884 (“It is vitally important that the District Council make appropriate

express findings based on adequate evidence that the purposes set forth in the Ordinance

for the [floating] zone exist and that the project is compatible with the existing uses in the

general neighborhood.”).

Planning considerations are normally accorded greater weight in assessing

piecemeal rezoning applications for floating zones compared to those for Euclidian

22

Although we have characterized floating zones and special exceptions as being

analogous, e.g., Bigenho v. Montgomery Cnty. Council, 248 Md. 386, 391, 237 A.2d 53,

56 (1968), differences exist. It may be material whether the administrative action is left to

a legislative body, rather than an administrative or executive body. In Huff, in which we

acknowledged the validity of floating zones, we adopted much of the reasoning of the

landmark case regarding floating zones, Rodgers v. Vill. of Tarrytown, 302 N.Y. 115, 96

N.E.2d 731 (1951). We did not adopt, however, the New York court’s language that a

floating zone scheme that “call[s] for separate legislative authorization for each project

presents no obstacle or drawback[.]” Compare Rodgers, 302 N.Y. at 122, 96 N.E.2d at

733, with Huff, 214 Md. at 63, 133 A.2d at 92.

19

zones, the latter of which are linked to the change/mistake rule. See Richmarr, 117 Md.

App. at 637, 637 n.24, 701 A.2d at 894, 894 n.24. “Floating zones tend to be plan-

implementation mechanisms” by which zoning decision-makers may carry out planning

goals.23 Richmarr, 117 Md. App. at 637, 701 A.2d at 894.

4. Conditional Zoning

Another tool creating flexibility within the zoning process (whether Euclidian or

floating zones are under consideration) is conditional zoning. Conditional zoning,

available under the piecemeal rezoning process in Prince George’s County, LU § 22-

214(a), allows the placement in the grant of rezoning on the subject property of

conditions regulating the specific parcel in ways other than by standards or limitations

that are applicable to all land zoned similarly in the district. Bd. of Cnty. Comm'rs of

Washington Cnty. v. H. Manny Holtz, Inc., 65 Md. App. 574, 579, 501 A.2d 489, 491

(1985); 1 Am. Law Zoning § 9:20. With wise application, conditional zoning may

mitigate negative effects of a use on nearby property owners while allowing land to be

used as desired by its owner. 3 Rathkopf’s The Law of Zoning and Planning § 44:2. In

Maryland, local conditional zoning authority, at least for Euclidian zones,24 must be

23

That is not to say that Euclidian zoning may not be used also to implement

planning considerations. See Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292,

311, 933 A.2d 405, 416 (2007) aff'd, 405 Md. 43, 949 A.2d 639 (2008) (noting that

zoning generally “is one means by which planning is implemented”).

24

In Rylyns Enterprises, there is a hint that there may be some difference

regarding conditional zoning when applied to floating zones. See 372 Md. at 569, 814

A.2d at 502 (holding that the Maryland Code, as it stood then, did not authorize

conditional use rezoning generally “insofar as Euclidian Zones are concerned[,]” but not

(Continued…)

20

granted expressly by the relevant zoning enabling statute.25 See Rylyns Enterprises, 372

Md. at 567-68, 814 A.2d at 500-01; Baylis v. City of Baltimore, 219 Md. 164, 166-170,

148 A.2d 429, 431-433 (1959).

Conditional zoning, where authorized, may be applied to both Euclidian and

floating zones as part of the grant of a piecemeal rezoning.26 See Bell, 442 Md. at 555,

(…continued)

commenting on whether conditional rezoning was allowed for floating zones). The

previous zone and the zone to which the property at issue in Rylyns Enterprises had been

rezoned were both Euclidian zones, but we noted that floating zones “involve a different

set of analytical assumptions than do Euclidean zones.” Rylyns Enterprises, 372 Md. at

533 n.9, 814 A.2d at 480 n.9. Because there is no challenge in the present case to whether

conditional zoning is permitted with regard to the grant of a floating zone, we move on.

25

As indicated supra note 14, the uniformity requirement, at least with respect to

land uses, is mandated by statute. Anderson House, 402 Md. at 713, 939 A.2d at 130; see

also Rylyns Enterprises, 372 Md. at 568-571, 814 A.2d at 501-03 (holding that non-

uniform design requirements within a Euclidian zone, as opposed to use regulation, does

not violate the uniformity requirement).

26

Conditional rezoning seems a natural fit with floating zones. To rezone a

property to a floating zone, the zoning authority must find, among other things, that the

rezoning will be compatible with the surrounding neighborhood. Rylyns Enterprises, 372

Md. at 539 n.15, 814 A.2d at 484 n.15 (citing Richmarr Holly Hills, Inc. v. Am. PCS,

L.P., 117 Md. App. 607, 640, 701 A.2d 879, 895 (1997)). The conditions imposed on the

rezoned property may be used to make compatible an otherwise incompatible rezoning.

Although the zoning authority may rezone a property into a Euclidian zone only

upon a threshold finding of a mistake of fact in the previous comprehensive rezoning or

original zoning or an unforeseen change in the neighborhood occurring since then, the

zoning authority is not required to rezone the property after making such a finding, unless

a failure to do so would deprive the property owner of all economically viable use of the

property. Rylyns Enterprises, 372 Md. at 539, 814 A.2d at 483. Conditional zoning may

provide assurances to the zoning authority and surrounding community in close cases, or

induce the zoning authority to grant the requested rezoning (where allowable but not

required), subject to conditions that will benefit the public.

21

113 A.3d at 649. Although conditional zoning introduces flexibility, rezoning a property

with conditions does not obviate the necessity for the zoning authority to make the

underlying legislative findings required for the grant of the Euclidian or floating

rezoning. Id.

When the restrictions imposed by conditions of rezoning regulate elements such as

design, layout, siting, appearance, and landscaping, conditional zoning is related closely

to planning. Cf. Gaster, 285 Md. at 246, 401 A.2d at 672 (stating that planning is

concerned with the “development of a community . . . with respect to streets, parks, civic

beauty, industrial and commercial undertakings, [and] residential developments . . .”)

(quoting 1 Yokley, supra § 1-2). In Rylyns Enterprises, we reasoned that the imposition

of design conditions, as opposed to use conditions, was similar to subdivision regulation.

Rylyns Enterprises, 372 Md. at 568, 814 A.2d at 501. Subdivision regulation is one of the

key methods by which planning is implemented. See Richmarr, 117 Md. App. at 645-46,

701 A.2d at 898.27

D. Planning in General

In its broadest sense, planning is older than recorded history. 1 Norman Williams,

Jr. & John M. Taylor, American Land Planning Law § 1:5 (3rd Ed. 2003) [hereinafter

Am. Land Planning] (stating that “maps of some prehistoric cities show at least a street

27

We do not suggest that conditional zoning is not zoning. The conditions are

imposed through piecemeal rezoning and, to the extent that they pertain to the uses of

land, are implementation of the zoning power. When a zoning authority imposes

conditions on a rezoning that are related to planning, it is implementing the planning

power through a zoning technique and procedure, thereby exercising both zoning and

planning powers.

22

system laid out on a coordinated basis, and some careful use of monumental sites”); cf.

Duodecim Tabularum, http://avalon.law.yale.edu/ancient/twelve_tables.asp (establishing

some site planning principles in ancient Rome, adopted in 449 B.C.E.) Attempts to

coordinate the interrelated aspects of physical, social, and economic development,

however, are a more recent phenomena. 1 Am. Land Planning Law § 1:5; 1 Rathkopf’s

The Law of Zoning and Planning § 1:41; cf. Julian Conrad Juergensmeyer & Thomas E.

Roberts, Land Use Planning and Development Regulation Law § 2:2 (3d ed. 2013)

[hereinafter Land Use Planning and Development Regulation Law] (describing planning

as it existed in colonial America). Statutes formalizing, directing, and empowering

broadly local planning were enacted after zoning enabling statutes generally. 1

Rathkopf’s The Law of Zoning and Planning § 1:41.

1. Plans

Plans are developed to guide the implementation of land use controls and zoning

in a rational way that is beneficial to the public. Land Use Planning and Development

Regulation Law § 2:9; see Maryland-Nat. Capital Park & Planning Comm'n v. Greater

Baden-Aquasco Citizens Ass'n, 412 Md. 73, 86, 985 A.2d 1160, 1167 (2009). “Plans are

long term and theoretical, and usually contain elements concerning transportation and

public facilities, recommended zoning, and other land use recommendations and

proposals.” Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477; see also Greater

Baden-Aquasco Citizens Ass'n, 412 Md. at 86, 985 A.2d at 1167 (quoting 1 Am. Law

Zoning § 5-2) (listing the general purposes of comprehensive plans).

23

Counties and municipal corporations are required generally to adopt, amend, and

execute a “comprehensive plan.” LU §§ 1-405, 3-101.28 In the abstract, a comprehensive

plan “is ‘more than a detailed zoning map and should apply to a substantial area, be the

product of long study, and control land use consistent with the public interest.” Greater

Baden-Aquasco Citizens Ass'n, 412 Md. at 85, 985 A.2d at 1167 (citing Yokley, supra §

5–2). This plan must be well thought out and consider the common needs of a particular

area. Greater Baden-Aquasco Citizens Ass'n, 412 Md. at 85, 985 A.2d at 1167 (citing

Yokley, supra § 5–2) The Land Use Article of the Maryland Code requires certain

elements to be contained in comprehensive plans. LU §§ 1-406, 3-102. The preparation

of a comprehensive plan is conducted by a planning commission and presented to the

local legislature for adoption. See LU §§ 1-406(a)(1), 1-415, 3-202.

28

We pause here (although we could have done so earlier) to note that the Land

Use Article of the Maryland Code was adopted in 2012. See 2012 Md. Laws ch. 468.

Prior to that, the Maryland-Washington Regional District Act (“RDA”) was contained in

Art. 28 of the Maryland Code. The recodification represented by the 2012 Land Use

Article was not intended to include substantive amendments to its predecessor statutes.

2012 Md. Laws ch. 468, see also Land Use Article Review Committee, Summary Report

on Chapter 426 of the Acts of 2012, at 1. To the extent that there may be differences that

are material between these enactments, as applicable to the present case, and where

consideration of the previous language may be helpful, we shall point them out as we

proceed from this point.

The actions of the District Council at issue in the present case occurred before the

recodification of the Regional District Act in the Land Use Article. See 2012 Md. Laws

ch. 468. The statutory provisions relevant to this case, however, were not changed

substantively during the 2012 recodification. For the purposes of providing an overview

of the land use procedures in the Regional District, we refer generally to the Land Use

Article. Because the determination of this dispute, however, depends on the Maryland

Code as it was at the time of the relevant actions, we will refer occasionally to key prior

sections of the Code when discussing the merits of the case. The changes to the RDA as

well were generally non-substantive. 2012 Md. Laws ch. 468.

24

The plan-creation process is different slightly within the Maryland-Washington

Regional District, which consists of most of Prince George’s and Montgomery counties,

than elsewhere in the State. Within the Regional District, two types 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. These 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. See LU §§ 14-101(b), 14-101(f), 21-202,

21-208(a). Area master plans govern typically specific, smaller portions of a county and

are usually more detailed than general plans overlapping the same area. Greater Baden-

Aquasco Citizens Ass'n, 412 Md. at 89, 985 A.2d at 1169 (2009) (citing Garner v.

Archers Glen Partners, Inc., 405 Md. 43, 48 n.5, 949 A.2d 639, 642 n.5 (2008). Separate

functional master plans, addressing transportation routes and facilities, hospitals and

health centers, parks, police stations, fire stations, and significant sites and structures,

may also be adopted and approved. See LU §§ 21-106, 21-107.

Proposals for land use contained in a plan constitute a non-binding advisory

recommendation, unless a relevant ordinance or regulation, or specific zoning,

subdivision, or other land use approval, make compliance with the plan recommendations

mandatory. Greater Baden-Aquasco Citizens Ass'n, 412 Md. at 98-101, 985 A.2d at

1174-77; Rylyns Enterprises, 372 Md. at 530-31, 814 A.2d at 478-79; see also Gaster,

25

285 Md. at 250, 401 A.2d at 674 (holding that a local ordinance enacting subdivision

regulations required compliance with the plan). The advisory nature of plans makes direct

judicial review of their adoption and approval infrequent, at best. Cf. LU § 21-104(b)(4)

(withholding explicitly from judicial review plans created under the Regional District

Act).

2. Subdivision

Subdivision controls implement plans (assuming the plan recommendations are

deemed prudent and timely of fruition) and fall generally under the planning power

delegated to local governments. See Remes v. Montgomery Cnty., 387 Md. 52, 73, 874

A.2d 470, 482 (2005); Coffey v. Maryland-Nat'l Capital Park & Planning Comm'n, 293

Md. 24, 29, 441 A.2d 1041, 1043 (1982) (“Subdivision controls are imposed for the

purpose of implementing a comprehensive plan for community development.”); 1 Am.

Land Planning Law § 22:1; Land Use Planning and Development Regulation Law § 7:3.

Although “subdivision” refers to the division and consolidation of parcels of land, or the

land that has been divided or consolidated, LU §§ 1-101(r), 14-101(q), the regulations

controlling how, when, and under what circumstances subdivision may occur are used to

promote development that is beneficial to the community, see Surina, 400 Md. at 689,

929 A.2d at 915; Coffey, 293 Md. at 27-28, 441 A.2d at 1043.

Subdivision controls aim to ensure that developments will be able to support the

uses for which the land is zoned. Surina, 400 Md. at 689, 929 A.2d at 915. Among the

considerations addressed are the aesthetic planning of the neighborhood, safety and

convenience of streets and walkways, access by police and fire protection authorities,

26

adequacy of utilities and other infrastructure, and the off-site effect of the development. 1

James A. Kushner, Subdivision Law and Growth Mgmt. § 1:5 (2d ed. 2012). Subdivision

regulations attempt to respond to issues that are not so well-addressed through zoning, the

initial step in the development process.

E. The Maryland-Washington Regional District Act

The property at issue in the present case is within the Prince George’s County

portion of the Maryland-Washington Regional District (“Regional District”), as

recognized in the Maryland-Washington Regional District Act (“RDA”), codified

previously in Art. 28 of the Maryland Code, and codified now in Division II of the Land

Use Article of the Maryland Code.29 Therefore, the RDA and the Prince George’s County

Code (“PGCC”) govern the requirements and procedures at issue here.

29

The Maryland-Washington Regional District Act (“RDA”) may be traced to

1927. Chapter 448 of the Laws of Maryland of 1927 established the Maryland-National

Capital Park & Planning Commission and the Maryland-Washington Metropolitan

District (“Metropolitan District”). The Commission was comprised of six commissioners

appointed by the Governor. 1927 Md. Laws ch. 448, at § 6. Within the Metropolitan

District, encompassing roughly the area between the District of Columbia and what is

now the Capital Beltway, zoning and planning authority was divided between the

Commission and the county commissioners of Prince George’s and Montgomery

counties. Prince George's Cnty. v. Maryland-Nat'l Capital Park & Planning Comm'n,

269 Md. 202, 204-06, 306 A.2d 223, 226 (1973); see also 1927 Md. Laws ch. 448, at § 1

(describing the boundaries of the Metropolitan District). The counties were authorized to

zone, provided that the regulations and zoning maps mirrored the Commission’s plan for

the Metropolitan District or the Commission approved any deviation from such plan.

1927 Md. Laws ch. 448, at § 23.

In Chapter 714 of Laws of Maryland of 1939, the General Assembly created the

Maryland-Washington Regional District (“Regional District”), which was also under the

jurisdiction of the Maryland-National Capital Park & Planning Commission. 1939 Md.

Laws ch. 714; Prince George's Cnty. v. Maryland-Nat'l Capital Park & Planning

(Continued…)

27

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.30, 31 E.g., Prince George's Cnty. v. Ray's Used Cars, 398 Md. 632, 646, 922 A.2d

(…continued)

Comm'n, 269 Md. at 206, 306 A.2d at 226. “[T]he Commission's ‘park and planning

functions in the district were separated, and the Maryland-Washington Regional

District . . . was created as the planning and zoning district.’” Id. (quoting Prince

George's Co. v. Laurel, 262 Md. 171, 174, 277 A.2d 262, 264 (1971)).

The General Assembly, through Chapter 992 of the Laws of Maryland of 1943,

repealed and replaced the 1939 iteration with amendments as “a bi-county act applicable

to the Maryland-Washington Regional District in Montgomery and Prince George's

Counties and not as a public local law of either county . . . .” Prince George's Cnty. v.

Maryland-Nat'l Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226.

The act was to be referred to as “the Maryland-Washington Regional District Act.” 1943

Md. Laws ch. 992, at § 1. The Legislature clarified further in 1943 that the act was a

public general law, not a public local law or the law of either Prince George’s or

Montgomery County. 1943 Md. Laws ch. 1008; Prince George's Cnty. v. Maryland-Nat'l

Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226.

The RDA was re-cast in 1959 in substantially the structure prevailing today.

Chapter 780 of the Laws of Maryland of 1959 repealed and replaced all the former acts

pertaining to the Regional District and Metropolitan District, as well as certain sections of

the codes of Montgomery and Prince George’s counties. Prince George's Cnty. v.

Maryland-Nat'l Capital Park & Planning Comm'n, 269 Md. at 206, 306 A.2d at 226. The

1959 act expanded the Regional District, created a method by which additional land use

functions might be assigned, created the county planning boards as distinct entities from

the Commission, and designated the local legislative bodies of Prince George’s and

Montgomery counties as the primary zoning authorities. See 1959 Md. Laws ch. 780.

30

In supplementation of the RDA, the Express Powers Act, codified previously in

the Maryland Code as Article 25A, but now found in Title 10 of the Local Government

Article, confirms Prince George’s County’s zoning and planning authority as a charter

county delineated in Division I of the Land Use Article. Maryland Code (2013), Local

Government Article, § 10-324(a) (“LG”) states: “[a charter] county may enact local laws

relating to zoning and planning to protect and promote public safety, health, morals, and

welfare . . . .” LG § 10-324(c) makes clear, however, that the section does not “grant to [a

charter] county powers in any substantive area not otherwise granted to the county by

(Continued…)

28

495, 503 (2007); Cnty. Council of Prince George’s Cnty. v. Brandywine Enterprises, Inc.,

350 Md. 339, 342, 711 A.2d 1346, 1347 (1998). The RDA regulates planning and zoning

within the Regional District, which includes most of Prince George’s and Montgomery

Counties. To execute this delegation, the 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.32

(…continued)

other public general law or public local law . . . .” Further, LG § 10-206(b) prevents

charter counties from exercising their powers when such powers are preempted or in

conflict with a public general law. Thus, we concern ourselves in the present case with

the RDA and the County Code.

In Prince George's County v. Maryland-National Capital Park & Planning

Commission, supra, we considered the implications of the then recently adopted Prince

George’s County Charter on the distribution of functions under the RDA between the

County Council and the Commission. 269 Md. at 210-223, 306 A.2d 228-235. We held

that the Regional District Act is a public general law which may not be amended or

superseded by the Charter. Id., 269 Md. at 223, 306 A.2d at 235. “The fact that a public

general law permits or directs differences in matters of mere administrative detail suited

to the particular needs of the localities does not make it any less a public general law

. . . .” Id., 269 Md. at 225, 306 A.2d at 236 (quoting Norris v. Mayor and City Council of

Baltimore, 172 Md. 667, 681, 192 A. 531, 537 (1937)) (internal quotation marks

omitted). To the extent that the Charter, or the ordinances adopted thereunder, conflict

with the RDA, the Charter and ordinances are invalid and the RDA governs. See Id., 269

Md. at 225-34, 306 A.2d at 236-41 (holding that the RDA governed in the disagreements

between the Prince George’s County Charter and the RDA at issue in that case).

31

The Maryland-Washington Regional District encompasses “the entire area of

Prince George’s County, except for the City of Laurel as it existed on July 1, 2008.” LU §

§ 20-101(b).

32

Other administrative bodies, not figuring in the present case, are authorized also

to execute provisions of the RDA. The RDA provides for board of appeals, to which a

(Continued…)

29

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 authority to other local governmental units or

tribunals, subject to limitations as may appear in the RDA.

The Maryland-National Capital Park & Planning Commission (“Commission” or

“MNCPPC”), as its name suggests, administers parks, public recreation, and, in

conjunction with the governments of Prince George’s and Montgomery counties, and

their respective Planning Boards (which are constituent parts of the Commission),

participates in the planning of development within the Regional District. See, e.g., LU §§

15-102, 17-101, 20-205, 21-101, 21-103. The MNCPPC consists of ten members, five of

whom are residents of Montgomery County, and five of whom are residents of Prince

George’s County (each group of five constitute the Planning Board for its respective

(…continued)

district council may direct determinations regarding, for example, variances. LU §§ 22-

301, 22-309, 22-310, 22-311. Also, a district council may delegate certain zoning actions,

such as special exceptions, to a hearing examiner, whose decision may be final unless

appealed to the district council or take for decision by the council on its initiative. LU §

22-206.

30

county). LU § 15-102(a)(2). The governments of Prince George’s and Montgomery

counties appoint the members from their respective jurisdictions. See LU § 15-102(a)(3).

Among other things, the RDA authorizes the MNCPPC to: (1) acquire property for parks,

forests, roads, and other public spaces, LU § 17-101; (2) rename streets and highways

and number and renumber houses within the district to fix mistakes, remove confusion,

and establish uniformity, LU § 17-212; (3) acquire, improve, and manage land for flood

control purposes, LU § 17-213; (4) establish road grades in Montgomery County, LU §

20-401; and, (5) recommend amendments to the zoning laws and subdivision regulations,

LU § 20-203. The Commission originates and produces also the proposed general and

master plans for the Regional District.33 See LU § 21-202, 21-203(a).

We perceive also that the RDA seeks to foster a degree of independence in and

immunize, to some extent, the Commission from undue grass roots and hierarchical

political influence. The RDA directs that commissioners must be individuals of “ability”

and “experience.”34 LU § 15-102(b). Of the five commissioners from each county, no

33

A plan is adopted by majority vote of the Commission. See LU § 21-203(a). At

least three commissioners from Prince George’s County and three commissioners from

Montgomery County (a majority from each delegation), however, must vote

affirmatively, unless the plan affects only one county. See LU § 21-203(a). An area

master plan or a functional master plan that lies entirely within one county may be

adopted by the affirmative votes of three commissioners from that county’s planning

board. LU § 21-203(a)(2).

34

The RDA does not describe for what specific markers of ability and experience

the county governments are to look during the selection process. Nevertheless, the

provision demonstrates the intent of the Legislature with regard to achieving the

relatively apolitical nature of the Commission.

31

more than three may be members of the same political party, LU § 15-102(c)(1), and if a

commissioner is appointed to fill an unexpired term, he or she must be a member of the

same political party as the vacating commissioner. LU § 15-102(d)(5). Finally, “[a]

commissioner may not be selected as representing or supporting any special interest.”35

LU § 15-102(c)(2).

The RDA evinces also an intent of the State Legislature to prevent corruption of or

the appearance of impropriety by the commissioners. LU § 15-120 prohibits

commissioners from: (1) participating in decisions as a commissioner in which the

commissioner or the commissioner’s immediate family has a financial interest; (2) taking

certain employment while a commissioner; (3) soliciting or accepting gifts, disclosing

confidential information, or using such information for private gain; or, (4) influencing

other county or State officials in the conduct of their duties. Commissioners are required

by the RDA to disclose publically any conflict with his or her official duties. LU § 15-

120(g).

35

Additional provisions specific to Prince George’s County or Montgomery

County exist. In Prince George’s County, appointments must “attempt to provide

reasonable geographic balance with respect to the commissioners’ places of residence”

and provide the resolution announcing the appointment of a commissioner must “describe

the resulting geographic distribution and provide that appropriate explanations.” LU § 15-

103(b)(4). In Montgomery County, applicants for appointment as a commissioner must

provide financial disclosures and the Montgomery County Council must hold interviews

regarding possible or potential conflicts of interest, which interviews become public if the

applicant is appointed. LU § 15-104.

32

As noted earlier, the planning board for a county consists of the commissioners of

the MNCPPC appointed from that county.36 LU § 20-201; see also LU §§ 15-102, 15-

103. The planning boards are “responsible for planning, subdivision, and zoning

functions that are primarily local in scope[,]” see LU § 20-202, and not otherwise placed

under another agency’s purview, see, e.g., LU § 22-104 (granting to the Montgomery

County and Prince George’s County district councils authority to adopt and amend

zoning law). The county planning boards have exclusive jurisdiction over local functions

within their purview and any mandatory referrals by the county government.37 LU § 20-

202(b).

36

In Prince George’s County, the County Executive appoints commissioners to the

Commission and the County Planning Board, subject to approval by the County Council.

LU § 15-103(b).

37

A county body or county official must refer to that county’s planning board for

consideration of the location, character, grade, and extent of the activity before the county

may consummate any of the following:

(1) acquiring or selling land;

(2) locating, constructing, or authorizing:

(i) a road;

(ii) a park;

(iii) any other public way or ground;

(iv) a public building or structure, including a federal

building or structure; or

(v) a publically owned or privately owned public utility; or

(3) changing the use of or widening, narrowing, extending,

relocating, vacating, or abandoning any facility listed [above].

LU § 20-301; see also LU § 20-302(b) (requiring referrals from a county to be made to

that county’s planning board).

33

The RDA does not itemize exhaustively the local functions that are within the

exclusive jurisdiction of the planning boards. LU § 20-202(b)(1) provides, however, in

relevant part:

A county planning board has exclusive jurisdiction over:

(i) local functions, including:

1. the administration of subdivision regulations;

2. the preparation and adoption of recommendations to the

district council with respect to zoning map amendments;[38]

and

3. the assignment of street names and house numbers in the

regional district . . . .

The Legislature’s use of “including” indicates that the local functions listed in LU § 20-

301 are not intended to be an exhaustive list, but rather examples of local functions.

The fundamental division of zoning, planning, and land use authority in the RDA

grants regional authority to the Commission, broad local authority to the county planning

boards, and specific local authority to the county district councils.39 Although the RDA

grants authority to the district councils through discrete provisions, unlike the broader

grant of authority provided the planning boards, such authority is not narrow. The district

councils have broad legislative authority. See, e.g., LU §§ 20-104 (granting authority to

38

When considering a zoning map amendment, the Planning Board provides

merely a recommendation to the District Council, LU §§ 22-208, 20-202(b)(1)(i). The

District Council decides whether to grant the amendment. LU § 22-206.

39

The RDA grants other internal operating authority to the Commission and the

planning boards that is not involved directly with the regulation of land use. The

Commission, for example, is empowered to appoint park police, LU § 17-301, establish

an adequate comprehensive insurance program, LU § 15-114, create publications

describing land use law within the Regional District, LU § 15-116, and hire employees,

see LU § 16-102. The planning boards have also administrative control over their

employees. LU § 20-204.

34

create and amend zoning law), 20-105 (granting authority to district councils to create a

program for the transfer of development rights), 20-503 (granting authority to the district

councils to create “a process to raise a zoning question before the preparation of all

structural specifications of a building or structure that may be required for a complete

building permit”), 22-104 (granting authority to the “governing body of Montgomery

County or Prince George’s County” to adopt and amend subdivision regulations).

F. Comprehensive Design (Floating) Zones in Prince George’s County

The District Council for Prince George’s County (“District Council”) classifies as

“comprehensive design zones” certain types of floating zones established pursuant to the

RDA. PGCC § 27-109. Explaining the reasons for creating comprehensive design zones,

PGCC § 27-476 states:

(1) It is within the ultimate objectives of the District Council's

authority (under Article 28 of the Annotated Code of

Maryland) to use recent planning and zoning innovations;

(2) The demands for housing, commercial and industrial

activities, and related public facilities and services are

undergoing substantial and rapid changes, requiring improved

methods of land use control; and

(3) There is a need to encourage the optional and imaginative

utilization of land contemplated by Comprehensive Design

Zones in order to:

(A) Improve the total environment;

(B) Lessen the public costs associated with land

development and use;

(C) Fulfill the purposes of each individual Comprehensive

Design Zone; and

(D) Fulfill the recommendations and purposes of the

General Plan, Master Plans, or Sector Plans in selected

areas.

35

Each type of comprehensive design zone has also its own goals, but all are aimed

generally at encouraging good development. See PGCC § 27-478(a).

To take advantage of the flexibility provided by the comprehensive design zones,

a developer must seek first to change the present zoning of a parcel by submitting an

application for zoning map amendment and accompanying Basic Plan.40 PGCC §§ 27-

187, 27-195(a)(1). The application and Basic Plan must demonstrate that the entire

proposed development will conform to the relevant criteria for the proposed zone. PGCC

§ 27-195(b). The Planning Board provides the District Council with an analysis and

recommendation regarding the application. PGCC § 27-192; see also LU §22-208. If the

District Council approves the zoning map amendment, it may specify particular permitted

land use types and planning and development guidelines that must be followed by the

applicant and subsequent owners in the subsequent approval processes. PGCC 27-

195(a)(1). The District Council may impose also conditions on the property along with

the new zoning classification. PGCC § 27-195(c); see also LU § 22-214(a).

If the District Council approves the application and Basic Plan, thereby rezoning

the property, the applicant must submit next a Comprehensive Design Plan (“CDP”) and

40

The Basic Plan shows at a minimum the “general land use types; range of

dwelling unit densities, including the base, minimum, and maximum densities; and

commercial/industrial intensities, general circulation pattern, general location of major

access points[,] and land use relationships . . . .” PGCC § 27-195(a)(1). It may also show

“specific land use types and their general locations within the development . . . .” PGCC

§ 27-195(a)(1).

36

a Specific Design Plan (“SDP”).41 PGCC § 27-487(a). The CDP is the second step in the

evolutionary detailing of what the applicant proposes to develop on the property. The

applicant must provide, among other things, preliminary drawings, details, and designs of

the actual proposed development. PGCC § 27-518(b).42 The third step, the SDP,43

41

A zoning map amendment with accompanying Basic Plan, CDP, and SDP may

be submitted and reviewed as a package, if the applicant wishes. PGCC § 27-532. It is

more often the case, however, that an applicant submits only the map amendment

application and Basic Plan initially, in order to determine if it will be approved, thus

justifying undertaking the additional expense and time to submit a CDP or SDP, whether

sequentially or as a package. Cf. PGCC § 27-531 (authorizing a combined application for

Comprehensive Design and Specific Design Plan approval).

42

PGCC § 27-518(b) requires CDPs to include:

(1) A reproducible drawing (with ten (10) prints) showing the

proposed development of the property. This drawing shall be

in conformance with the approved Basic Plan. The drawing

shall show the approximate location and proposed density of

dwelling units, nonresidential building intensity, and the

zoning of adjoining properties;

(2) A schedule and text, including the delineation of any

staged units to be developed at different times;

(3) A description of design principles proposed to govern the

project, including design guidelines set forth in Section 27-

274 of Part 3, Division 9, of this Subtitle for the M-A-C, L-A-

C, E-I-A, R-U, R-M, and R-S Zones, and in Section 27-

514.06 for the V-M and V-L Zones;

(4) The total number of acres in the proposed project and the

percentage thereof proposed for various uses;

(5) The number of dwelling units proposed (by type of

dwelling unit) for each staged unit;

(6) The estimated residential or employment population for

each staged unit;

(7) The location and extent of any proposed commercial area;

(8) The anticipated priority of development of each staged

unit;

(Continued…)

37

(…continued)

(9) The standards proposed to be used for height, open space,

building intensity, population density, and public

improvements;

(10) Engineering feasibility studies (including traffic

engineering studies), as necessary;

(11) An approved Natural Resource Inventory;

(12) A Type 1 Tree Conservation Plan prepared in

conformance with Division 2 of Subtitle 25 and The

Woodland and Wildlife Habitat Conservation Technical

Manual or Standard a Letter of Exemption;

(13) A statement of justification describing how the proposed

design preserves and/or restores the regulated environmental

features to the fullest extent possible; and

(14) Where a Comprehensive Design Plan proposes to

include an adaptive use of a Historic Site, the application

shall include:

(A) Text describing the nature of the proposed adaptive use,

including a description of how the use will be integrated into

the design and theme of the Historic Site;

(B) A preliminary evaluation of historic landscape features

through field investigation; and

(C) Preliminary architectural elevations within the

environmental setting of the Historic Site.

43

If the development of the comprehensive design zone includes subdividing the

property, the subdivision approval process may overlap somewhat with the CDP and SDP

approval process. A preliminary plan of subdivision may accompany a combined CDP

and SDP application. See PGCC § 24-119(b). The final plat approval occurs after the

approval of the CDP and SDP. PGCC § 24-119(f). The Planning Board requires the

proposed subdivision to conform to the CDP and SDP. See PGCC § 24-121(a) (“The

Planning Board shall require that proposed subdivisions . . . [are] platted in conformance

with all of the requirements of the Zoning Ordinance applicable to the subject

property.”). The subdivision process is within the exclusive jurisdiction of the Planning

Board, and the determinations of the Planning Board are not subject to the review,

appellate or otherwise, by the District Council. See LU § 23-102(a); County Council of

Prince George’s County v. Dutcher, 365 Md. 399, 425, 780 A.2d 1137, 1152 (2001)

(holding that the RDA, by its silence on the matter, did not authorize an appeal to the

District Council of a Planning Board decision regarding a non-cluster preliminary plan of

subdivision).

38

includes additional and greater development detail. See PGCC § 27-527(b).44

Development and use of the property must comply with the approved SDP, which binds

future owners as well as the applicant, unless a revision is sought and approved. PGCC

§§ 27-529, 27-530.

The Planning Board, after its technical planning staff reviews an applicant’s

submissions and makes a recommendation, holds a public evidentiary hearing.

Thereafter, it approves or denies a CDP or SDP (with or without conditions). PGCC §§

27-522, 27-528. To receive approval, the plans must meet certain requirements set out in

PGCC §§ 27-521 and 27-528.

44

PGCC § 27-527(b) requires SDPs to include (at least):

(1) A reproducible site plan showing buildings, functional use

areas, circulation, and relationships between them; and in the

V-M and V-L Zones, a three-dimensional model and a

modified grid plan, which may include only the Village

Proper, and any Hamlet, which incorporates plan concepts,

spatial and visual relationships, streetscape, and other

characteristics of traditional rural villages shall be provided

prior to Planning Board and District Council review;

(2) Reproducible preliminary architectural plans, including

floor plans and exterior elevations;

(3) A reproducible landscape plan prepared in accordance

with the provisions of the Landscape Manual;

(4) A Type 2 Tree Conservation Plan prepared in

conformance with Division 2 of Subtitle 25 and The

Woodland and Wildlife Habitat Conservation Technical

Manual or Standard Letter of Exemption;

(5) An approved Natural Resource Inventory; and

(6) A statement of justification describing how the proposed

design preserves or restores the regulated environmental

features to the fullest extent possible.

39

PGCC § 27-521 details several findings that the Planning Board must make in

order to approve a CDP. The first is that the CDP is in conformance with the approved

Basic Plan, and certain zoning requirements. See PGCC §§ 27-521(a)(1), 27-

223(b)(3)(B), 27-195.45, 46

The CDP must demonstrate more, however, than showing

simply that the proposed development would comply with the property’s zoning. Among

other things, the CDP must demonstrate: (1) that it “would result in a development with a

better environment than could be achieved under other regulations[,]” PGCC § 27-

45

PGGC §§ 27-521(a)(1) requires for approval of a CDP a finding that:

The plan is in conformance with the Basic Plan approved by

application per [PGCC §] 27-195; or when the property was

placed in a Comprehensive Design Zone through a Sectional

Map Amendment per [PGCC §] 27-223, was approved after

October 1, 2006, and for which a comprehensive land use

planning study was conducted by Technical Staff prior to

initiation, is in conformance with the design guidelines or

standards intended to implement the development concept

recommended by the Master Plan, Sector Plan, or Sectional

Map Amendment Zoning Change . . . .

PGCC § 27-223 indicates that “[t]he design guidelines or standards intended to

implement the development concept recommended by the Master Plan, Sector Plan, or

the Sectional Map Amendment Zoning Change may constitute the Basic Plan for

development on property where a Comprehensive Design Zone is established through a

Sectional Map Amendment.”

46

PGCC § 27-195(a) indicates that the requirements of the Basic Plan are

incorporated as part of the zoning of the parcel. LU § 22-214(a) authorizes the District

Council to “consider and adopt any reasonable requirements, safeguards, and conditions”

that may be necessary to prevent adverse effects on surrounding properties or would lead

to better development of the Regional District. In the present case (as we shall explain

later), the District Council termed the conditions on rezoning imposed in the 2004

rezoning “Basic Plan Conditions,” which is not inconsistent with the structure authorized

by LU § 22-214 and implemented by PGCC § 27-195.

40

521(a)(2) (emphasis added); (2) “the preservation and/or restoration of the regulated

environmental features in a natural state to the fullest extent possible[,]” PGCC § 27-

521(a)(11) (emphasis added); and, (3) that “[a]pproval is warranted by the way in which

the Comprehensive Design Plan includes design elements, facilities, and amenities, and

satisfies the needs of the residents, employees, or guests of the project[,]” PGCC § 27-

521(a)(3) (emphasis added). Although the County Code indicates the appropriate

considerations, the Planning Board (and its technical planning staff) must exercise

expertise and judgment to determine whether to approve a CDP, wielding necessarily

significant discretion in that endeavor. The considerations governing the decision are the

essence of planning.47

The Planning Board’s discretion to deny an SDP is cabined. See PGCC § 27-

528(c) (“The Planning Board may only deny the Specific Design Plan if it does not meet

the requirements of Section 27-528(a) and (b), above.”). The Planning Board must

approve an SDP unless the submission fails to: (1) conform to the CDP, the Landscape

47

As we stated in Bd. of Cnty. Comm'rs of Cecil Cnty. v. Gaster, 285 Md. 233,

401 A.2d 672 (1979):

[P]lanning . . . indicates the development of a community, not

only with respect to the uses of lands and buildings, but also

with respect to streets, parks, civic beauty, industrial and

commercial undertakings, residential developments and such

other matters affecting the public convenience and welfare as

may be properly embraced within the police power.

285 Md. at 246, 401 A.2d at 672 (quoting 1 E. C. Yokley, Zoning Law and Practice § 1-2

(4th ed. 1978)).

41

Manual, or the applicable design guidelines and regulations; (2) demonstrate that the

development will be served adequately by existing or programed public facilities within a

reasonable time; (3) demonstrate that surface water will be handled adequately; (4)

conform with an approved Type 2 Tree Conservation Plan; and, (5) demonstrate that

regulated environmental features are preserved and/or restored to the full extent

possible.48 PGCC § 27-528(a). Nonetheless, the Planning Board must still exercise

significant agency expertise and judgment in making these determinations.

The decision of the Planning Board as regards a CDP or an SDP is subject to

review by the District Council. PGCC §§ 27-523(a), 27-528.01. Any person of record

before the Planning Board may appeal the decision to the District Council (which did not

occur in the present case), or the District Council may elect on its initiative to review

(“call up”) the decision (which is what happened here). Cf. PGCC § 27-523(a). The

District Council may affirm, reverse, or modify the decision of the Planning Board, or

remand the case to the Planning Board for further consideration. PGCC § 27-523(a). In

the present case, we are asked to consider what is the proper role of the District Council

in reviewing decisions of the Planning Board and the standard(s) by which the District

Council may review the Planning Board’s decision.

48

In certain situations, the SDP must meet additional criterial. For example, “in

the L-A-C Zone, if any portion lies within one-half (1/2) mile of an existing or

Washington Metropolitan Area Transit Authority Metrorail station, the regulations set

forth in Section 27-480(d) and (e) [apply] . . . .” PGCC § 27-528(a)(1). If the SDP

concerns “Infrastructure,” the Planning Board must find additionally that the SDP

“prevents offsite property damage, and prevents environmental degradation to safeguard

the public’s health, safety, welfare, and economic well-being for grading, reforestation,

woodland conservation, drainage, erosion, and pollution discharge.” PGCC § 27-528(b).

42

II. FACTUAL AND PROCEDURAL BACKGROUND

Now we shall bring down to earth somewhat this opinion. The property at the

heart of this dispute (the “Edwards Property”) is a triangular 4.14 acre parcel in Adelphi,

Prince George’s County. The parcel is bounded by Adelphi Road, Edwards Way, and

Riggs Road. Zimmer Development Company (“Zimmer”), a national real estate

developer based in Wilmington, North Carolina, wishes to construct on the Edwards

Property a small retail center with a CVS store as the primary tenant.

The Edwards Property was zoned originally R-R (Rural Residential), a Euclidian

single-family, detached residential zone, which would not allow development of a retail

center on the Property. In 2004, after Edwards Commercial Properties’49 submission of

an application for a zoning map amendment of the parcel to L-A-C (Local Activity

Zone),50 a floating zone, together with a Basic Plan depicting how it would develop the

49

Nothing we could find in the record extract describes precisely the relationship

between Zimmer and Edwards Commercial Properties.

50

The L-A-C zone is purposed to:

(1) Establish (in the public interest) a plan implementation

Zone, in which (among other things):

(A) Permissible residential density and building intensity

are dependent on providing public benefit features and

related density/intensity increment factors; and

(B) The location of the zone must be in accordance with

the adopted and approved General Plan, Master Plan,

Sector Plan, public urban renewal plan, or Sectional Map

Amendment Zoning Change;

(2) Establish regulations through which adopted and approved

public plans and policies (such as the General Plan, Master

Plans, Sector Plans, public urban renewal plans, and Sectional

(Continued…)

43

property generally, the County Council for Prince George’s County, sitting as the District

Council, adopted Zoning Ordinance 10-2004 granting the requested rezoning to the L-A-

C zone, subject to several conditions. Zoning Ordinance 10-2004 required as conditions

the following:

1. The Basic Plan shall be revised to show the following

rights-of-way along the frontages of the subject property: MD

212 – 40 feet from center line (toward the ultimate right-of-

way of 80 feet); Adelphi Road – 50 feet from center line

(toward the ultimate right of way of 100 feet); Edwards Way

– 35 feet from center line (in accordance with Zoning

Ordinance requirements adjacent to commercial zone).

2. The Applicant will provide a double left-turn lane along

southbound/westbound MD 212 at the approach of Adelphi

Road. Timing of this improvement will be determined at the

preliminary plan of subdivision.

(…continued)

Map Amendment Zoning Changes for Community, Village,

and Neighborhood Centers) can serve as the criteria for

judging individual physical development proposals;

(3) Assure the compatibility of proposed land uses with

existing and proposed surrounding land uses, and existing and

proposed public facilities and services, so as to promote the

health, safety and welfare of the present and future

inhabitants of the Regional District;

(4) Encourage and stimulate balanced land development;

(5) Group uses serving public, quasi-public, and commercial

needs together for the convenience of the populations they

serve; and

(6) Encourage dwellings integrated with activity centers in a

manner which retains the amenities of the residential

environment and provides the convenience of proximity to an

activity center.

PGCC § 27-494.

44

3. Prior to the approval of the Specific Design Plan for the

subject property, the applicant shall submit an acceptable

traffic signal warrant study to the County Department of

Public Works and Transportation (DPW&T) for the

intersection of Adelphi Road and Edwards Way. The

Applicant shall use a new 12-hour count and shall analyze

signal warrants under total future traffic as well as existing

traffic.

4. During the review of Preliminary Plan of Subdivision, the

Applicant shall provide more detailed operational analyses at

the intersections of MD 212/Edwards Way and MD212/site

entrance. The scope of these analyses will be determined after

approval of the proposed Basic Plan and in consideration of

the permitted access to the site.

5. Total commercial development of the subject 4.14 acre site

shall be limited to a maximum of 40,000 square feet.

6. During the Comprehensive Design Plan and subdivision

review, the Applicant shall address the addition of public

streets to accomplish access from Adelphi Road or obtain a

variance from Section 24-121 of the Subdivision Regulations.

7. Development of the subject property shall have a woodland

conservation threshold of 20 percent. If off-site mitigation is

proposed, the first priority for mitigation sites shall be within

the Anacostia Watershed.

8. During the Comprehensive Design Plan and Specific

Design Plan review, the Applicant shall address the following

issues:

A. Architectural design shall be distinctive in order to

create an image of quality and permanence.

B. A build-to line shall be considered in order to create an

inviting streetscape.

C. The streetscape shall create a pedestrian-friendly

environment with consideration of the following elements:

(1) Street furniture including pedestrian lighting

45

(2) Trash receptacles

(3) Bike racks

(4) Pedestrian crosswalks should be a contrasting paving

materials

(5) Need for bus stop[.]

D. Massive surface parking facilities adjacent to either

Riggs or Adelphi Road shall be prohibited.

E. An architectural focal point and/or sculpture located

within a green area shall be provided at the intersection of

Adelphi and Riggs Road.

F. No loading and/or dumpster areas shall be visible from

adjacent roadways.

G. The design plans shall address the entire property, so

that the final development of the individual lots creates a

visually cohesive development, compatible in regard to

architectural treatment and site layout.

9. Additional conditions of approval:

A. The leadership of the Buck Lodge Citizen’s

Association, White Oak Manor Civic Association, and

Hampton’s Association will each nominate two

representatives and one alternate to participate with the

developer of the subject property in regular meetings,

scheduled by the developer, during each of the phases of

development (including but not limited to the Preliminary

Plan of Subdivision, Comprehensive Design Plan, and

Specific Design Plan) of the property.

B. At the time of Preliminary Plan Application, the

developer of the subject property shall include the

intersection of Metzerott Road and Riggs Road in its traffic

study, to demonstrate the adequacy of transportation

facilities in the surrounding area.

46

C. Any required widening and improvements to the public

rights-of-way for Riggs Road, Adelphi Road, and Edwards

Way shall include five-foot sidewalks, in accordance with

applicable State and County Standards.

D. The developer of the subject property shall work with

the Maryland State Highway Administration on the

improvements to Riggs Road, Maryland Route 212, to

provide a center turn lane to allow northbound traffic to

make left turn turns into the subject property without

impeding through traffic.

E. The developer of the subject property shall be

responsible for payments for all road and intersection

improvements necessary to mitigate any failing traffic

conditions caused by the on-site development. Such

improvements will be determined at the time of

Preliminary Plan Review.

F. The developer of the subject property shall work with

the various transit authorities and agencies to maintain the

locations of the existing bus stops along Riggs Road and

Adelphi Road. The developer shall construct a bus pull-off

area to allow the loading and unloading of passengers out

of the travel lanes of the roadways, within the public

rights-of-way.

G. The developer of the subject property shall work with

the Prince George’s Department of the Environment, to

utilize low impact stormwater management techniques to

the degree practicable.

H. The developer of the subject property shall take all

reasonable actions to alleviate and reduce the possibility of

crime occurring on or adjacent to the property.

J.[51] The developer shall keep clean all areas of the subject

property, during and after development.

51

Sub-part “I” of Condition 9 was skipped in Zoning Ordinance 10-2004, for no

apparent reason.

47

K. The developer shall incorporate trees, shrubs, open

areas, flowers, walkways, and lighting into the site plan.

The property shall be cleared of poorly lit or secluded

areas, and adequate safety lighting shall be installed to

improve visibility into the site and deter illegal activity.

10. The developer shall make its best efforts to include a

restaurant as an ancillary tenant on the subject property.

Time passed. On 14 March 2011, Zimmer filed concurrently with the Commission

a proposed Comprehensive Design Plan–1001 (“CDP–1001”) and Specific Design Plan–

1001 (“SDP–1001”) for the development of the Edwards Property. On 28 July 2011, the

Planning Board held a public hearing on the applications. The technical staff of the

Planning Board, having reviewed the submissions, recommended their approval with

conditions. CDP-1001 and SDP-1001 were found by the Planning Board to comply with

the approved Basic Plan and the planning standards applicable to CDPs and SDPs for the

L-A-C zone and, consequently, were approved subject to conditions substantially similar

to those recommended by the technical staff.52

52

The Planning Board’s approval of CDP-1001 was subject to the following

conditions:

1. Prior to signature approval of the plans, the applicant shall

revise the plans as follows or provide the additional specified

documentation:

a. Provide a double left-turn lane along southbound/

westbound Riggs Road (MD 212) at the approach to

Adelphi Road or such other modification approved by

DPW&T and SHA.

b. The following shall be added as a note in the general

notes of the comprehensive design plan:

“Total development within the subject property shall be

limited to uses which generate no more than 23 AM and 268

(Continued…)

48

(…continued)

MP peak-hour vehicle trips. Any development generating an

impact greater than this amount shall require an amended

comprehensive design plan with a new determination of the

adequacy of transportation facilities.”

c. The plans shall clearly indicate that access to the site shall

be limited to a right-in/right-out access on Adelphi Road and

to a full movement intersection on Riggs Road (MD 212)

opposite Metzerott Plaza and revised to replace the grey

arrows with blue, indicating only pedestrian access to

Edwards Way.

d. Indicate clearly on the comprehensive design plan a

dedication of 35 feet from the centerline of Riggs Road (MD

212), and 50 feet from the centerline of Adelphi Road as

required by Basic Plan A-9964-C.

e. Procure from DPW&T a written statement that the subject

project is in conformance with the requirements of the

approved stormwater management concept or its revisions,

should the applicant be required by DPW&T to revise the

concept. Such statement shall be submitted to the Urban

Design Section as designee of the Planning Board.

f. Additional trash receptacles shall be added to the site and

provided interior to the site and along all street frontages.

Final design of this additional pedestrian streetscape element

shall be approved by the Urban Design Section as designee

of the Planning Board.

g. A note shall be added to the plans stating that the trash

receptacles and the dumpster shall be emptied as needed;

that the site and its landscaping shall be regularly

maintained; and that all dust free surfaces shall be washed

and swept as needed.

h. Perennial and annual flowering plants shall augment the

offerings of the landscape plan. Final design of such

additional landscaping shall be approved by the Urban

Design Section as designee of the Planning Board.

2. Prior to the issuance of the first building permit within the

subject property, the following transportation improvements

shall (a) have full financial assurances, (b) have been

permitted for construction through the operating agency’s

access permit process, and (c) have an agreed on time table

for construction with the appropriate operating agency.

(Continued…)

49

(…continued)

a. Complete a traffic queuing analysis for SHA at the

proposed site access point on Riggs Road (MD 212) and any

improvements required by the Maryland State Highway

Administration (SHA), at this location.

b. Double left-turn lanes on the southbound/westbound

approach of Riggs Road (MD 212) at Adelphi Road,

together with any associated pavement markings, signage,

traffic signal modifications, or similar items necessary at

this location, as determined by the Maryland State Highway

Administration (SHA).

c. An acceptable traffic signal warrant study to the Maryland

State Highway Administration (SHA) for signalization at the

intersection of Riggs Road (MD 212) and Edwards Way and

any signal or other traffic control improvements that are

deemed warranted at that time. The applicant shall utilize a

new 12-hour count, and shall analyze signal warrants under

total future traffic as well as existing traffic at the direction

of the responsible operating agency.

3. Prior to approval of the first specific design plan for the

subject property, the applicant shall:

a. Submit an acceptable traffic signal warrant study to the

Department of Public Works and Transportation (DPW&T)

for signalization at the intersection of Adelphi Road and

Edwards Way. The applicant shall utilize a new 12-hour

count, and shall analyze signal warrants under total future

traffic as well as existing traffic at the direction of the

responsible operating agency. If any signal or other traffic

control improvements is/are deeded warranted by the signal

traffic warrant for signalization at the intersection of

Adelphi Road and Edwards Way, the applicant shall bond

the signal with the appropriate agency prior to the release of

any building permits within the subject property, and install

it at the time when directed by the agency.

b. Proffer detailed dimensional color drawings to scale,

including all materials describing the exact construction of

all street scape and focal point amenities, including but not

limited to the “Welcome to Adelphi” sign, all types of walls

to be utilized around the periphery of the site and in the

focal point, benches, trash receptacles, bike racks, and

(Continued…)

50

(…continued)

decorative light fixtures. The location of all such details and

amenities shall be indicated on the specific design plan.

c. Provide a detailed landscape plan including trees, shrubs

and annual and perennial flowers creating a diversity of

seasonal interest and a vegetative buffer along Edwards

Way.

d. Provide through analysis of all specimen trees whose [sic]

removal have been approved by the companion variance to

CDP-1001 to determine if preservation of any of the

specimen trees can be achieved through adjustment of

grading, use of retaining walls or other measures.

4. At the time of approval of the preliminary plan for the

project:

a. The applicant shall show a dedication of 35 feet from the

centerline of Edwards Way.

b. Timing of the required installation of a double left-turn

lane along southbound/westbound Riggs Road (MD 212) at

the approach to Adelphi Road.

The Planning Board’s approval of SDP-1001 was subject to the following additional

conditions:

1. Prior to the signature approval of the plans, the applicant

shall make the following revisions and provide the indicated

additional documentation:

a. The sign detail shall be revised for the proposed tenants,

exclusive of CVS, to include sign dimensions, materials, and

up to four colors. The signage colors and logos of regional

or national tenant shall be allowed as a substitute for the

detail provided in the revisions.

b. The parking schedule shall be revised to clarify the

number of spaces provided in the parking breakdown and

the number of spaces.

c. The relevant comprehensive design plan and the

preliminary plan of subdivision shall be certified in

accordance with the requirements of the respective

approvals.

d. A note shall be placed on the plans stating that: “Trash

receptacles and the dumpster shall be emptied as needed and

(Continued…)

51

(…continued)

the site and its landscaping shall be regularly maintained.

All dust free surfaces shall be washed and swept as needed.”

e. Perennial and annual flowering plants shall be added to

the landscaping plan. Final design of such additional

landscaping shall be approved by the Urban Design Section

as designee of the Planning Board.

f. The applicant shall provide a written statement from the

Department of Public Works and Transportation (DPW&T)

stating that they found the traffic signal warrant evaluation

for the intersection of Adelphi Road and Edwards Way

submitted by the applicant’s traffic engineer to be

acceptable.

g. Items required by Condition 1 of CDP-1001, prior to

signature approval, shall be adequately reflected on the

SDP. The access to Adelphi Road shall be clearly labeled as

right-in/right-out access. Final conformance to these

requirements on the SDP shall be approved by the Urban

Design Section as designee of the Planning Board.

h. The applicant shall include dimensional color drawings to

scale of all streetscape and focal point amenities, including

but not limited to the “Welcome to Adelphi” sign, all types

of walls to be utilized to be utilized around the periphery of

the site and in the focal point, benches, trash receptacles,

bike racks, and decorative light fixtures. Streetscape

treatments shall be as follows:

 “Streetscape A” shall include three benches within the

area of the focal point “Welcome to Adelphi” feature, a

decorative two-foot knee wall including masonry piers

(three feet high, spaced about 17 feet apart, and a linear

hedge with perennial plantings and other shrubs, ornamental

grasses and ground cover. This design shall be provided on

both sides of the community focal feature at the intersection

of Riggs and Adelphi Roads (MD 212) to the vehicular

entrance to the project, and along Adelphi Road for

approximately the same distance.

 “Streetscape B” shall include a decorative fence with

masonry piers (four feet high), approximately 17 feet apart,

linear hedge and perennial plantings. It shall be utilized

along the portion of the Adelphi Road frontage staring

where Streetscape A ends, then along Adelphi Road

(Continued…)

52

(…continued)

extending to the intersection at Edwards Way; and along

Riggs Road form the western side of its vehicular entrance

to its intersection with Edwards Way

 “Streetscape C” shall include a vegetated buffer

including deciduous and evergreen trees to create diversity

of seasonal interest and annual and perennial flowers as

required by Condition 3c of the CDP approval. Streetscape

C shall be utilized along the project’s Edwards Way

frontage and on the adjacent Adelphi Road frontage, in a

southern direction, to the vehicular entranceway from

Adelphi Road.

Streetscape design shall include, in addition to any required

DPW&T street lights, twelve decorative pedestrian-scale

light fixtures (four along Adelphi Road, four along the

Edwards Way frontage, and four along the Riggs Road

frontage), a total of five benches (three at the corner of

Adelphi and Riggs Roads as part of the focal feature area,

and one at each of the two bus stops (one on the Riggs Road

frontage and one on the Adelphi Road frontage).

Final design of all streetscape treatments shall be consistent

with Applicant’s Exhibit B and approved by the Urban

Design Section as designee of the Planning Board.

i. The applicant shall provide striped crosswalks across

Edwards Way at both the intersection of Riggs and Adelphi

Roads unless otherwise modified by DPW&T and SHA.

j. A copy of the stormwater management concept shall be

submitted for inclusion in the case file, and the approved

Stormwater Management Concept Plan (2925-2002-02)

shall be correctly reflected on the specific design plan and

Type 2 tree conservation plan.

k. The applicant shall revise the specific design plan to

clearly indicate with notes and labels that the connection

between the two buildings is a false façade that runs from

the ground to the roof on both the Edwards Way and

Adelphi Road frontages.

l. The Type 2 tree conservation plan shall be revised as

follows:

(1) Show a threshold calculation of 20 percent on the

worksheet, in conformance with the approved Type 1 tree

conservation plan.

(Continued…)

53

No party to the Planning Board proceedings appealed. The District Council

elected, however, to review the Planning Board’s approval of the CDP and SDP, pursuant

to PGCC § 27-523(a) and § 27-528.01(b). On 7 November 2011, the District Council

held a public hearing and entertained oral arguments.53 Seven days later, the District

Council remanded CDP-1001 and SDP-1001 to the Planning Board to consider three

specific areas of concern: (1) whether the lack of a community center and the destruction

of the natural tree canopy could be mitigated through amenities benefiting the

surrounding community; (2) whether the deforestation mitigation plans were adequate;

and, (3) whether access for the nearby residents of Edwards Way could be improved to

compensate for the increase in traffic resulting from the proposed development.

On 9 February 2012, and after its technical staff pondered the District Council’s

three areas of apparent concern, the Planning Board held a hearing to consider the

(…continued)

(2) Add the following note: “The first priority for any

approved off-site woodland conservation shall be within

the Anacostia Watershed.”

m. The tree canopy coverage worksheet demonstrating how

the tree canopy coverage will be met shall be shown on the

landscape plan.

We are not able to append to this opinion legible copies of the graphic development plans

for CDP-1001 or SDP-1001, which would aid a reader in appreciating better some of the

references in these conditions. For that, as well as the length of this opinion, we are sorry.

53

The documents in the record before us do not contain a transcript of this

hearing. Nevertheless, the District Council describes in its Order of Remand that at the

hearing “opposition parties raised considerable objection, much of it well founded, as to

the applicant’s desire to completely clear the tree canopy . . . from the subject property.”

54

specific issues identified in the District Council’s remand. Four weeks after that hearing,

the Planning Board issued amended resolutions, delineating additional findings and again

approving CDP-1001 and SDP-1001, subject to substantially the same conditions.54

The Planning Board addressed each of the issues for which the District Council

remanded the application. With respect to the lack of a community center, the Planning

Board noted that the Edwards Property was of insufficient size for the construction of a

community center. The Planning Board noted that, in the L-A-C zone, a “community

center” is not justified unless the tract comprises twenty adjoining acres, and a “village

center” requires ten adjoining acres.55 The Planning Board did require additionally

Zimmer to provide a sculpture to the previously planned mini-park on the site and to

include in its landscape plan flowering plants that were drought-resistant. With respect to

the environmental concerns, the Planning Board explained how it arrived at its

determination that none of the trees on the rather small lot could be retained and why the

proposed mitigation for their loss was adequate. Finally, the Planning Board described its

re-analysis of the traffic impacts on Edwards Way vis-à-vis the proposed development

and the neighborhood, concluding that “[t]he installation of a [traffic] signal at Adelphi

Road and Edwards Way will greatly reduce delay for traffic using Edwards Way, and

should reduce any queuing that currently occurs” and that “[n]o changes to the previously

54

In its amended resolution, the Planning Board amended the conditions on its

approval of SDP-1001, requiring that the perennial and annual flowering plants to be

added to the landscape plan be drought-resistant and that the focal point feature “be

further enhanced by a sculpture expressive of civic pride . . . .”

55

These requirements for the L-A-C zone are found in PGCC § 27-496.

55

approved transportation-related conditions associated with the plan approval [were]

warranted.”

No party took an appeal, but the District Council elected again to review the

Board’s revised decisions regarding CDP-1001 and SDP-1001. On 21 May 2012, the

District Council entertained oral arguments. A member of the Planning Board staff

presented an overview of the proposed development and addressed the issues for which

the District Council remanded the case to the Planning Board. The Planning Board staff

member recommended approval of the CDP and SDP. The District Council had no

questions for the staff member.

The attorney representing Zimmer was allowed thirty minutes to address the

Council. On behalf of Zimmer, he concurred succinctly56 with the Planning Board’s

assessment and stated that the conditions imposed by the Planning Board addressed the

considerations remanded to the Planning Board. Although the attorney reserved the lion’s

share of his allowed time for questions from the District Council, none were forthcoming.

The opposition (although none had appealed to the District Council) were given

thirty minutes to speak. Two persons took the podium. A member of the Adelphi

community and also of an ad hoc civic group “People United for Fairness” spoke. He

argued that CDP-1001 should be denied because: (1) the property could be better used as

a community meeting place (or potentially as a park); (2) the clearing of the woodlands

would be damaging ecologically; (3) the runoff from the property and the general effect

56

Counsel spoke one-hundred and sixteen words in his direct remarks.

56

on the water table would damage nearby properties; (4) the development would endanger

pedestrians; and, (5) response times for emergency vehicles would be compromised as a

result of increased traffic. He questioned also the level of community involvement in the

planning of the development.

The President of the Board of the Racquet Club Condominium, a property directly

across Edwards Way from the proposed development, spoke in opposition as well. Her

concern was primarily that the truck traffic accessing the finished development and the

placement of the traffic signal at the intersection of Adelphi Road and Edwards Way

would disrupt existing traffic patterns. According to her remarks, driveways serving

approximately 530 housing units with ingress and egress on Edwards Way, which road

suffered already from congestion, would be affected adversely. She complained also that

there was no outreach by Zimmer or its affiliates to the Racquet Club Condominium

community in the planning of the development.

In rebuttal, Zimmer’s attorney highlighted the ways in which the community had

been involved (or invited to be involved) in the planning process, including his direct

contact with the President of the Board of the Racquet Club Condominium.

The People’s Zoning Counsel57 spoke last. He stated that the case had “been

reviewed exhaustedly by the community” and concurred with the Planning Board actions.

57

This position was created in 1970 by Article VII (“Planning and Zoning”),

Section 712 (“People’s Zoning Counsel” or “People’s Counsel”), of the Prince George’s

County Charter, which provides that the County Executive shall appoint one or more

Maryland attorneys to “appear at all hearings on zoning cases, whether before the

Council or a hearing examiner, for the purposes of protecting the public interest and

(Continued…)

57

At the close of the hearing, the Council member, in whose district the subject

property lay, remarked: “I think that this zone on this property, L-A-C, one of the main

features of an L-A-C zone is supposed to be some tangible community benefit. And other

than really a welcome sign, there isn’t anything significant, you know, for this

community.” That Council member moved then for an Order of Denial, which motion

was seconded. There being little discussion, the District Council Chair called for a vote.

The vote was 9-0 to deny the CDP and SDP and to have its staff prepare an order of

denial.

The staff of the District Council generated the Order of Denial, with an attached

memorandum explaining its conception of reasons for the proposed denial. The

memorandum marshalled fourteen reasons. According to the memorandum, CDP-1001

and SDP-1001, as approved by the Planning Board, failed to meet several conditions of

(…continued)

insuring the compilation of a full and complete record.” See PGCC § 27-136 (“An

independent People’s [Zoning] Counsel can protect the public interest and promote a full

and fair representation of relevant issues in administrative proceedings in order to achieve

balanced records upon which sound land use decisions can be made. In addition, a

People’s [Zoning] Counsel who provides technical assistance to citizens and citizen

organizations will encourage effective participation in, and increase public understanding

of and confidence in, the County land use process.”); see also PGCC § 27-137

(discussing the appointment of the People’s Zoning Counsel). Section 712 of the Charter

provides that People’s Zoning Counsel may summon, examine, and cross-examine

witnesses, introduce documentary evidence into the record, file exceptions, and make any

argument to the hearing examiner or Council as the law and evidence in the case may

warrant. In certain limited circumstances, the People’s Zoning Counsel may also petition

for judicial review of certain land use actions on behalf of a bona fide citizens

association. See LU § 25-206. In practice, appearance of People’s Counsel before the

District Council has not been limited necessarily to just rezoning cases, but rather more

broadly also to land use cases generally, e.g., special exceptions, CDPs, and SDPs.

58

the 2004 zoning map amendment,58 fell below the minimum floor area ratio (FAR) for

retail commercial development in a parcel zoned L-A-C,59 and did not justify adequately

the failure to include a community center in its development.60 The District Council, on

21 June 2012, adopted as its own the Order of Denial and attached memorandum.

On 3 July 2012, Zimmer sought judicial review by the Circuit Court for Prince

George’s County of the District Council’s denial of SDP-1001 and CDP-1001. In a

58

According to the memorandum, CDP-1001 and SDP-1001 failed to satisfy: (a)

Condition 1, requiring revision of the development’s Basic Plan to show certain public

rights-of-way; (b) Condition 2, requiring provision of a double-left turn lane along MD-

212, with the timing of the improvement to be determined at the Preliminary Plan of

Subdivision; (c) Condition 3, requiring submission to the County Department of Public

Works and Transportation an acceptable traffic signal warrant study, prepared utilizing

certain procedures; (d) Condition 4, requiring submission of a more detailed operational

analysis of nearby intersections during the review of the Preliminary Plan of Subdivision;

(e) Condition 7, requiring a woodland conservation threshold of twenty percent, with first

priority for any proposed off-site mitigation being within the Anacostia Watershed; (f)

Condition 8(A), requiring a distinctive architecture design for the development; (g)

Condition 8(B), requiring consideration of a build-to line; (h) Condition 8(D), prohibiting

massive surface facilities adjacent to Riggs Road and Adelphi Road; (i) Condition 8(E),

requiring a green area at the intersection of Adelphi Road and Riggs Road, and the

provision of an architectural focal point or sculpture therein; (j) Condition 8(F), requiring

that no loading or dumpster areas be visible from adjacent roadways; (k) Condition 9(F),

requiring the developer to work with transit authorities to maintain bus stops and to

construct an additional bus pull-off area; and (l), Condition 10, requiring the developer to

make its best efforts to include a restaurant as an ancillary tenant.

59

The L-A-C zone establishes a “maximum” and a “base” level of commercial

intensity to which any property so zoned may be used. PGCC § 27-496(a). The maximum

commercial density of an L-A-C zoned property between four and ten acres is 0.31 FAR.

PGCC § 27-496(a). The base commercial intensity for such a property is 0.16 FAR.

PGCC § 27-496(a). Zimmer’s proposed development depicted an FAR of 0.13.

60

There was no express provision in the conditions of the 2004 rezoning, or in the

PGCC applicable to L-A-C zones, obligating consideration of a community center on the

Edwards Property.

59

written opinion, the Circuit Court held, among other things, that: (1) the District Council

had appellate jurisdiction, not original jurisdiction, to review the determinations of the

Planning Board and, hence, was limited to determining whether the Planning Board’s

decision was arbitrary, capricious, discriminatory, or illegal; (2) the District Council’s

review, under the circumstances, was limited further to the specific issues for which it

remanded the case to the Planning Board; and, (3) the District Council substituted

improperly its judgment for the judgment of the Planning Board, as there was substantial

evidence supporting the Planning Board’s determination on each of the remanded

issues.61 The Circuit Court reversed the decision of the District Council and remanded the

case to the District Council, with directions to approve CDP-1001 and SDP-1001, as

approved by the Planning Board.

The District Council appealed the judgment of the Circuit Court to the Court of

Special Appeals (“CSA”). The intermediate appellate court affirmed. Cnty. Council of

Prince George's Cnty. v. Zimmer Dev. Co., 217 Md. App. 310, 331, 92 A.3d 601, 614

(2014). That court held, inter alia, that: (1) the District Council was authorized to

exercise only appellate jurisdiction to review the decisions of the Planning Board

regarding SDP-1001 and CDP-1001, and, hence, was restricted to determining whether

61

The Circuit Court concluded that each of the fourteen reasons the District

Council presented for denial were either beyond the scope of the remand, were

contradicted by substantial evidence presented to the Planning Board, or estopped by the

District Council’s 2014 approval of the Basic Plan. Only with respect to one of the

reasons for denial (failure to meet the base commercial intensity in the L-A-C zone) did

the Circuit Court not find substantial evidence in support of the Planning Board’s

decision. As to that issue, the Circuit Court based its holding reversing the District

Council solely on the District Council not remanding that issue to the Planning Board.

60

the Planning Board decision was arbitrary, capricious, discriminatory, or illegal; (2)

PGCC § 27–523(c) allowed for District Council review on the second call-up only of the

remand issues; and, (3) the District Council’s argument that each of its fourteen reasons

for denying the applications was supported by substantial evidence was inapposite

because only the remand issues were appropriate to consider and the District Council was

authorized to reverse only arbitrary, capricious, discriminatory, or illegal decisions by the

Planning Board. Zimmer Dev., 217 Md. App. 318-31, 92 A.3d at 606-14.

The District Council sought our review of the case. We granted a writ of certiorari,

Prince George's Cnty. v. Zimmer Dev. Corp., 440 Md. 114, 99 A.3d 778 (2014), to

consider the following questions:

1) Did the CSA err in its statutory construction of the

“Regional District Act” (“RDA”) by holding that the District

Council is vested with appellate rather than original

jurisdiction over Planning Board preliminary determinations

with respect to regional and legislative zoning matters?

2) Did the CSA err by applying County Council of Prince

George’s County v. Curtis Regency, 121 Md. App. 123, [126,

708 A.2d 1058, 1059 (1998)], even though it involved a

preliminary planning matter rather than a legislative, regional

zoning matter which conflicts with this Court’s holding in

County Council of Prince George’s County v. Dutcher, Prince

George’s County v. Dutcher, [365 Md. 399, 425, 780 A.2d

1137, 1152 (2001)]?

3) Whether the County Council’s 1996 enactment of the

County Code (“PGCC”) § 27-132(f), providing that the

District Council “shall exercise original jurisdiction” in its

“review [of] a decision made by … the Planning Board,” is

consistent with the provisions of the RDA?

4) Whether the CSA’s holding improperly transfers the

legislative, regional zoning authority expressly provided to

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the District Council by the RDA to the Planning Board, a

subordinate agency?

5) Whether the CSA’s holding violates the separation of

powers doctrine because the judiciary has divested the

legislative body of its legislative authority over regional

zoning, including the applications related to zoning map

amendments sought here, specifically designated by State

law?

6) Whether the CSA nullified the District Council’s statutory

right to “remand” a case to the Planning Board for further

information, and the District Council’s obligation to issue a

“final” decision prior to judicial review, by holding that the

District Council is limited after remand to only those issues

that were remanded?

7) Assuming, arguendo, that the CSA correctly held that the

District Council’s standard of review of the Planning Board’s

actions is the “arbitrary, capricious, discriminatory or illegal”

standard, then whether the CSA erred by reinstating the

Planning Board’s recommendations as to Zimmer’s

applications, instead of remanding for the District Council to

apply the correct standard of review?

III. JUDICIAL STANDARD OF REVIEW

The questions posed in the District Council’s petition for writ of certiorari may be

condensed into three: (1) did the District Council have broad, original jurisdiction when

considering the Planning Board’s approvals of CDP-1001 and SDP-1001, or did it have

only a more limited, appellate-like jurisdiction; (2) was the District Council’s ultimate

consideration of the Planning Board’s approvals limited to the issues remanded to the

Planning Board; and, (3) assuming the District Council reviewed the Planning Board’s

decision using an improper standard, should the case have been remanded to the District

Council to apply the correct standard?

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Each of these are legal questions, which we decide without deference to the

judgments of the intermediate appellate court or Circuit Court. Talbot Cnty. v. Miles

Point Prop., LLC, 415 Md. 372, 384, 2 A.3d 344, 351 (2010). “Accordingly, we ‘look

through the circuit court's and intermediate appellate court's decisions, although applying

the same standards of review, and evaluate the decision of the agency.” Elms v. Renewal

by Andersen, 439 Md. 381, 391, 96 A.3d 175, 181 (2014) (quoting Surina, 400 Md. at

681, 929 A.2d at 910). We consider often the expertise of an administrative agency

tasked with implementing statutes when determining whether its decision was premised

on an erroneous conclusion of law. Surina, 400 Md. at 683, 929 A.2d at 911 (quoting

Marzullo v. Kahl, 366 Md. 158, 173, 783 A.2d 169, 178 (2001)). When a case before us

presents solely conclusions of law respecting jurisdiction, however, we do not afford

deference to the legal conclusions of the agency. Miles Point Prop., 415 Md. at 384, 2

A.3d at 351.

IV. THE CDP AND SDP APPROVAL PROCESS IN THE RDA

As noted previously, Prince George’s County’s authority to regulate land use

within the Regional District is delegated by the RDA. E.g., Ray's Used Cars, 398 Md. at

646, 922 A.2d at 503; Brandywine Enterprises, 350 Md. at 342, 711 A.2d at 1347; see

also supra note 30. The respective roles of the District Council and Planning Board in the

CDP and SDP approval process depend on the provisions of the RDA regarding that

process, both express and reasonably implied.

The requirement that a CDP and a SDP must be approved before physical

development may begin in comprehensive design zones is a process by which planning

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goals may be implemented. The RDA provides expressly for some methods to

accomplish this task, but provides also a method by which additional functions not

mentioned in the RDA may implement planning responsibilities. We look first to the

methods provided for expressly.

A. Zoning Map Amendments

The District Council asserts that CDP-1001 and SDP-1001 partake of the nature of

zoning map amendments because they purport to carry out the approved Basic Plan. With

respect to acting on zoning map amendments, the Planning Board provides only

recommendations to the District Council. See LU §§ 22-208, 20-202(b).62 The conclusion

of the District Council’s syllogism is, therefore, that the Planning Board’s approval of

CDP-1001 and SDP-1001 was merely a recommendation. The argument continues that,

because the Planning Board’s approval was a recommendation, and such a

recommendation in the instance of a zoning process has no inherent legal weight, the

District Council had original authority to decide differently the action to be taken

regarding CDP-1001 and SDP-1001, without any deference owed or presumptive

62

LU § 22-208(a) makes clear that referral to the Planning Board by the District

Council of a pending piecemeal zoning map amendment is to receive advisory input only.

It provides:

Before a map amendment is approved, it shall by submitted to

the appropriate county planning board and to the governing

body of the municipal corporation or governed special taxing

district where the land is located for a recommendation as to

approval, disapproval, or approval with conditions.

LU § 22-208(a).

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correctness accorded the Planning Board’s determination. The form of the District

Council’s logic tracks, to a point—Planning Board decisions in Prince George’s County

regarding zoning map amendments are mere recommendations to the District Council—

but falters with its first major premise.

CDP-1001 and SDP-1001 were not zoning map amendments, nor do they partake

of the character of such. The act of rezoning the Edwards Property was completed in

2004 when the District Council approved the L-A-C zone and the Basic Plan for the

proposed development by virtue of Zoning Ordinance 10-2004.63 This ordinance was the

legislative act establishing the rezoning. After the legislative act, the property was zoned

L-A-C, subject to the conditions enumerated in Zoning Ordinance 10-2004.64 The

subsequent CDP and SDP steps required were to ensure that the development proposed

for the Edwards Property addressed the planning implementation goals required for the

63

According to Section 3 of Zoning Ordinance 10-2004, the Ordinance was

effective on the date of its enactment and the request for rezoning was “approved.” The

rezoning did not become effective, however, until the conditions were accepted in

writing. Although we could not find in the record before us when the conditions were

accepted, the only reasonable inference is that they were accepted because all documents

relating to CDP-1001 and SDP-1001 state that the Edwards Property was zoned L-A-C

and the conditions of Zoning Ordinance 10-2004 were applicable to the property.

Furthermore, the District Council does not maintain to the contrary.

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LU § 22-214 authorizes conditional rezoning by the District Council. LU § 22-

214(c) allows the applicant for rezoning “90 days from the date of approval to accept or

reject the land use classification conditionally approved. If the applicant expressly rejects

the amendment as conditionally approved within the 90-day period, the zoning

classification shall revert to its prior status.” The plain language of the statute indicates

that the rezoning is complete upon the initial rezoning, but may revert potentially to the

prior classification upon untimely action by the applicant to accept or rejection of the

conditions.

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specific comprehensive design zone involved. The CDP and SDP steps are designed as an

increasingly more rigorous path to flesh-out the details and specifics of the proposed

development. See PGCC §§ 27-518, 27-521, 27-527, 27-528.

Neither party here supplies an alternative theory explaining the source of authority

within the RDA for the establishment of the requirements of the CDP and SDP processes.

In an abundance of caution, we will consider other possible options in aid of our task to

discover Legislative intent.

B. Are They Processes to Raise Zoning Questions?

One possibility is that CDPs and SDPs operate as a process to raise zoning

questions. LU § 20-503(a) states that “[b]y zoning law, a district council may provide for:

(1) the issuance of use and occupancy permits; and (2) a process to raise a zoning

question before the preparation of all structural specifications of a building or structure

that may be required for a complete building permit.” Although CDPs and SDPs are not

“use and occupancy” permits, which are treated separately in the PGCC, see PGCC § 27-

253, “a process to raise a zoning question” is broad and could encompass conceivably

actions like CDP and SDP approval.65

65

The pre-2012 codification of the RDA, in Md. Code, Art. 28, § 8-119(b), stated

that “a district council may provide in its zoning regulations for the issuance of use and

occupancy permits and for certificates by means of which zoning questions may be raised

prior to the preparation of all structural specifications of a building as may be required for

a complete building permit.” (emphasis added).

66

LU § 20-503 does not describe expressly the authority of the District Council to

review de novo Planning Board actions on CDPs and SDPs as part of a scheme to raise

and resolve zoning questions. With regard to building permits, the statute provides:

(a) In general. — By zoning law, a district council may

provide for:

(1) the issuance of use and occupancy permits; and

(2) a process[66] to raise a zoning question before the

preparation of all structural specifications of a building or

structure that may be required for a complete building

permit.

(b) Montgomery County. — In Montgomery County, all

building permit applications shall be referred to the

Commission for review and recommendation as to zoning

requirements.

(c) Prince George’s County. — In Prince George's County,

the County Council, by local law, may provide for the referral

of some or all building permit applications to the Commission

for review and recommendation as to zoning requirements.

LU § 20-503.

Despite excluding the Planning Board from making final determinations as to the

issuance of building permits, the RDA does not specify which agency has original

jurisdiction over building permits or other elements of a process to raise zoning

questions. LU § 20-513 grants to the District Council broad authority to impose and

implement building codes, in part through permitting. The District Council is not limited

expressly in its delegation or retention of the original jurisdiction to make these

66

CDPs and SDPs are better described as a process rather than as a “certificate.”

Approval requires significant investigation and consideration, and if a related basic plan,

CDP, and SDP are submitted separately, the result is an iterative series of actions to

achieve the planning goals indicated by PGCC §§ 27-521, 27-528.

67

decisions.67 See LU § 20-513(g) (“A building code adopted under this section shall be

enforced by the officers designated in the county charter or county code.”). 68

Although categorizing CDPs and SDPs as a process contemplated by LU § 20-503

would provide a simple resolution to the present case, that is not a good fit with the

permits and certificates contemplated by the section. The deciding agency wields

narrower discretion regarding the issuance of building permits and use and occupancy

permits. “[T]he issuance of building permits in respect to applications that fully comply

with applicable ordinances and regulations of a particular subdivision is a ministerial

act.” Evans v. Burruss, 401 Md. 586, 605, 933 A.2d 872, 883 (2007). Use and occupancy

permits are concerned primarily with discrete standards as well. See PGGC § 27-257

(stating that the issuance of a use and occupancy permit certifies that the building,

structure, and use meet the requirements of Prince George’s County’s zoning

ordinances); Cowles v. Montgomery Cnty., 123 Md. App. 426, 439, 718 A.2d 678, 685

(1998) (describing the considerations of the Board of Appeals of Montgomery County

regarding a use and occupancy permit). The review of a CDP and SDP, on the other

hand, requires planning expertise and the exercise of a broad range of discretion. See

67

LU § 22-311 requires that appeals from “the grant or refusal of a building permit

or the grant or withholding of an occupancy or use permit or any other administrative

decision based or claimed to be based in whole or in part upon any zoning regulation or

map enacted by the district council of that county” be heard by the board of appeals.

68

The Prince George’s County Charter Article XII, section 17, designates as

responsible for administration and enforcement of building permits the Director of the

Department of Permitting, Inspections, and Enforcement. The Department of Permitting,

Inspections, and Enforcement also issues use and occupancy permits. See, e.g., PGCC §§

4-349, 4-118, 11-202. This Department is an executive-branch agency in the County.

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supra at Part I.F. In addition, applications for (and issuance of) building permits and use

& occupancy certificates would follow approval of a CDP and SDP in the development

process.

More to the heart of the matter, zoning compliance is not at the heart of the CDP

and SDP approval process. Although compliance with zoning is one element the agency

making the decision must find to approve a CDP or SDP, it must decide also many more

quintessential planning matters. See supra at Part I.F. The focus of the CDP and SDP

process is the development of a community, including the civic beauty, local

infrastructure, and environmental concerns. See §§ PGCC 27-521, 27-27-528. The

purpose of the process is to “result in a development with a better environment than could

be achieved under other regulations[,]” PGCC § 27-521(a)(2), not a development that

complies only with zoning and other land use regulation. Thus, LU § 20-503(a) may be

eliminated as a “magic bullet” for the resolution of the present controversy.

C. Is There an Apt Analogy to be Made to the Detailed Site Plan Process?

In many ways, CDPs and SDPs are similar in the Prince George’s County land

development processes to Detailed Site Plans.69 Detailed Site Plans are required for

69

Actually, CDPs are closer in the level of detail required to be submitted to

Conceptual Site Plans. A SDP is a closer cousin to a Detailed Site Plan. A Conceptual

Site Plan must include:

(1) Location map, north arrow, and scale;

(2) Boundaries of the property, using bearings and distances

(in feet) around the periphery;

(3) Zoning categories of the subject property and all adjacent

properties;

(Continued…)

69

(…continued)

(4) General locations and types of major improvements that

are within fifty (50) feet of the subject property, and a general

description of all land uses on adjacent properties;

(5) Existing topography, at not more than two (2) foot contour

intervals;

(6) An approved Natural Resource Inventory (NRI);

(7) Street names, right-of-way and pavement widths of

existing streets and interchanges within and adjacent to the

site; and

(8) Existing rights-of-way and easements (such as railroad,

utility, water, sewer, access, and storm drainage);

(9) Existing site and environmental features as shown on the

approved NRI;

(10) A Type 1 Tree Conservation Plan prepared in

conformance with Division 2 of Subtitle 25 and the

Woodland and Wildlife Habitat Conservation Technical

Manual or a Standard Letter of Exemption;

(11) Proposed system of internal streets, including right-of-

way widths;

(12) Proposed lot lines and the land use proposed for each lot;

(13) General locations of areas of the site where buildings and

parking lots are proposed to be located, and the general

orientation of buildings on individual lots; and

(14) A stormwater concept plan approved or submitted for

review pursuant to Section 4-322 of this Code;

(15) A statement of justification describing how the proposed

design preserves and restores the regulated environmental

features to the fullest extent possible.

PGCC § 27-273(e). A Conceptual Site Plan includes more detail than a Basic Plan in a

floating zone, compare PGCC § 27-273(e), with PGCC § 27-195 (quoted supra note 40),

and its contents overlap significantly with those of CDPs, compare PGCC § 27-273(e),

with PGCC § 27-518(b) (quoted supra note 42). Conceptual Site Plans, however, are not

mentioned expressly in the RDA. Senate Bill 901 of 2011, the act authorizing expressly

and delineating authority to review Detailed Site Plans, was amended to limit its coverage

to only “detailed” site plans (not all site plans generically) the application of the statute.

2011 Md. Laws ch. 90 (indicating that Senate Bill 901 was amended to refer to “detailed

site plans” instead of “site plans”).

(Continued…)

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“certain types of land development [that] are best regulated by a combination of

development standards and a discretionary review . . . .” PGCC § 27-281. Where

required, Detailed Site Plans generally must be approved before a final plat of

subdivision70 or grading, building, or use of occupancy permits may be approved or

issued. PGCC § 27-270 (specifying order of approvals); see also PGCC § 27-281.01

(stating generally the circumstances under which a Detailed Site Plan must be approved

before permits are issued). The general purposes of Detailed Site Plans are:

(A) To provide for development in accordance with the

principles for the orderly, planned, efficient and economical

development contained in the General Plan, Master Plan, or

other approved plan;

(B) To help fulfill the purposes of the zone in which the land

is located;

(C) To provide for development in accordance with the site

design guidelines established in this Division; and

(D) To provide approval procedures that are easy to

understand and consistent for all types of Detailed Site Plans.

PGCC § 27-281(b)(2). These are planning considerations, like those underlying the

process for the approval of CDPs and SDPs. The required content of a Detailed Site Plan

is most similar to that of an SDP. Compare PGCC § 27-282 (indicating the content

(…continued)

The CDP and SDP are steps in a unitary process. The present case does not require

us to determine whether Conceptual Site Plans, as provided for in the PGCC, are part of

the Detailed Site Plan review process, when both are required in a sp

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