# County Council v. Zimmer Development Co.

> Court of Appeals of Maryland · August 20, 2015 · 444 Md. 490

URL: https://www.frixlaw.com/law-library/cases/2828951

## Case

- **Full name:** COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY, Sitting as the District Council v. ZIMMER DEVELOPMENT COMPANY
- **Court:** Court of Appeals of Maryland
- **Decided:** August 20, 2015
- **Citations:** 444 Md. 490; 120 A.3d 677; 2015 Md. LEXIS 565
- **Precedential status:** Published
- **Opinion:** Opinion by Harrell
- **Judges:** Harrell
- **Cited by:** 60 later opinions in the Frix Law Library

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## Opinion text

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2828951. Public record. Not legal advice.