Robert J. Shannon wrote the following article. Robert was admitted to the Maryland Bar in June of 2014. He graduated cum laude from the University of Michigan Law School in December of 2013 and summa cum laude from Towson University in May of 2011.
As a result of the Maryland Court of Appeals’ decision in County Council of Prince George’s County v. Zimmer Development Company, the world is one step closer to having a CVS at the convergence of Adelphi Road, Rigs Road, and Edwards Way in Adelphi, Maryland. Issuing the final word on the ongoing strife between the company seeking to develop the property and the Prince George’s County Council, the Court corrected decades’ long practice and belief regarding land use authority within Prince George’s and Montgomery counties, while affirming (on more theoretical and expansive grounds) the decision of the Court of Special Appeals. This article summarizes the new order contemplated by the Court’s 30,000-word, 97-footnote opinion.
PRE-ZIMMER PRACTICE IN THE REGIONAL DISTRICT
Like the opinion in Zimmer, the first order of business of this article is to outline the legal backdrop against which the case unfolded. Fortunately, unlike the Court’s opinion, there is no need here to start all the way back at the Maryland Charter of 1632.
The General Division of Authority
The local authority to regulate land use in nearly all of Prince George’s County and Montgomery County derives from the Maryland-Washington Regional District Act, which is codified in Division II of the Land Use Article. Within the portions of the counties governed by the Regional District Act (the “Regional District”), the Act divides most land use authority between the Maryland-National Capital Park & Planning Commission, the planning boards for each county (made up of the members of the Commission appointed from the respective county), and the district councils for each county (as the county councils are called when exercising their land use authority under the Regional District Act).
The district councils and planning boards make most decisions that involve a single county. Matters involving the Regional District as a whole—e.g., the formulation of plans, interacting with the Federal Government, ensuring uniform system of street names—are typically within the Commission’s purview.
Prior to Zimmer, the district councils claimed primary authority to regulate land use, as they have since 1959 when the more-or-less current formulation of the Regional District Act was enacted. As such, they also claimed the authority to review de novo the decisions of the planning boards, with few exceptions. This practice was similar to the authority granted local legislatures acting under Division I of the Land Use Article.
Development within Comprehensive Design Zones in Prince George’s County
Section 27-176 of the Prince George’s County Code provides for “Comprehensive Design Zones.” Comprehensive Design Zones are floating zones, meaning they are contemplated in the text of the zoning ordinances but are only placed onto the official zoning map and applied to particular properties as a result of applications for piecemeal rezoning. Comprehensive Design Zones are purposed to “encourage the optional and imaginative utilization of land to develop property” and to implement the goals of the General Plan, Master Plans, and Sector Plans.
An aspiring developer of property in a Comprehensive Design Zone must submit and receive approval of a Comprehensive Design Plan (“CDP”) and a Specific Design Plan (“SDP”) before commencing physical development. The CDP must include preliminary drawings, details, and designs of the proposed development. For approval, the CDP must demonstrate, among other things, that the development would result in a “better environment than could be achieved under other regulations . . . .” The SDP must include greater detail of the proposed development.
The Prince George’s County Planning Board makes the initial decision to approve or deny a CDP or SDP. This decision becomes final after 30 days, unless an appeal is made to the District Council by a person of record before the Planning Board, or the District Council elects to review the Planning Board’s decision on its own initiative.
If an appeal is taken, or the District Council elects to review the Planning Board’s decision, the District Council may affirm, deny, or remand for further consideration the decision of the Planning Board. Like all land use decisions not otherwise expressly placed in the sole jurisdiction of another agency, the District Council claimed authority to review de novo the decisions of the Planning Board regarding CDPs and SDPs.
Factual and Procedural Background
Zimmer Development Company submitted to the Planning Board a CDP and SDP to develop a retail center on a 4 acre triangular lot zoned L-A-C (Local Activity Center) in Adelphi, an unincorporated town near the border of Prince George’s County and Montgomery County. The Planning Board approved the submissions, subject to an extensive list of conditions.
The District Council elected to review the Planning Board’s decision. After holding a public hearing, the District Council remanded the CDP and SDP to the Planning Board. The District Council pointed to three specific concerns regarding the submitted plans.
After reconsidering Zimmer Development Company’s application, the Planning Board amended the conditions of its approval, further explained its conclusions, and again approved the CDP and SDP.
The District Council elected to review the Planning Board’s approval of Zimmer Development Company’s CDP and SDP for a second time. At a public hearing, two community members expressed general concerns of environmental degradation from the development and increased traffic. The engineering studies prepared as part of the development process did not indicate that these would be problems.
At the close of the hearing, the District Council voted unanimously to deny the CDP and SDP. An order of denial was produced and adopted by the District Council, presenting 14 reasons justifying the denial.
Zimmer Development Company petitioned the Circuit Court for Prince George’s County for judicial review of the District Council’s reversal of the Planning Board’s decision. The trial court held, among other things, that: (1) the District Council’s review was limited to whether the Planning Board’s decision was arbitrary, capricious, or illegal; (2) the District Council’s review was limited further to the issues it had remanded to the Planning Board; and (3), because there was substantial evidence supporting the Planning Board’s approval of Zimmer Development Company’s CDP and SDP, the District Council improperly substituted its judgment for the judgment of the Planning Board. The Circuit Court reversed the decision of the District Council and remanded the case to the District Council, with an order to approve Zimmer Development Company’s CDP and SDP in accordance with the Planning Board decision.
The Court of Special Appeals affirmed the judgment of the Circuit Court, relying heavily on that court’s previous decision County Council of Prince George’s County v. Curtis Regency.
Questions Before the Court of Appeals
The Court of Appeals granted a writ of certiorari, pursuant to the petition of the District Council. Seven questions were presented in the petition for certiorari, which the Court condensed to three:
1. Did the District Council have broad, original jurisdiction when considering the Planning Board’s approvals of CDP-1001 and SDP-1001, or did it have only a more limited, appellate-like jurisdiction?
2. Was the District Council’s ultimate consideration of the Planning Board’s approvals limited to the issues previously remanded to the Planning Board?
3. Assuming the District Council reviewed the Planning Board’s decision using an improper standard, should the case have been remanded to the District Council to apply the correct standard?
Importantly, whether there was substantial evidence supporting the Planning Board’s decision or, assuming the District Council was limited to the issues remanded, whether the Circuit Court applied properly this limitation was not before the Court.
The Court of Appeals’ Holdings
In response to the questions for which the certiorari writ was granted, the Court of Appeals answered:
1. The District Council possessed only appellate jurisdiction to review the Planning Board’s decisions regarding Zimmer Development Company’s CDP and SDP, and was authorized to reverse the decision of the Planning Board only if the Board’s decision was not supported by substantial evidence, was arbitrary, capricious, or illegal otherwise.
2. The District Council was not authorized, after electing to review on its own initiative the Planning Board’s decisions regarding Zimmer Development Company’s CDP and SDP for a second time, to consider issues other than those previously remanded to the Planning Board.
3. The Circuit Court’s order reversing the decision of the District Council denying Zimmer Development Company’s CDP and SDP and ordering the District Council to affirm the decision of the Planning Board was appropriate.
ZIMMER’S NEW ORDER
The Court of Appeals’ opinion in Zimmer reorders land use power within the Maryland-Washington Regional District. The Prince George’s County District Council may no longer set aside Planning Board decisions on CDPs and SDPs and decide the matter anew. That alone is a significant consequence, but the reasoning and included holdings by which the Court arrived at that ultimate conclusion indicate a more fundamental change. Zimmer makes clear that the planning boards are not subordinate to the district councils. Rather, both the planning boards and the district councils have exclusive powers upon which the other may not encroach.
Applying the distinction between planning and zoning and the text of the Prince George’s County Code to the Regional District Act, the Court found that CDPs and SDPs were functions not assigned by the Regional District Act. Section 20-207 of the Land Use Article provides the method by which such undelegated functions may be brought into the zoning- and planning-authorizing ambit of the Regional District Act. Local functions may be assigned to the planning boards—and only the planning boards—provided the Maryland-National Capital Park & Planning Commission and the relevant district council both authorize the assignment.
Functions assigned pursuant to § 20-207 are among the functions within the exclusive jurisdiction of the planning boards contemplated by § 20-202 of the Land Use Article. Although the Court arrived at this determination after determining CDPs and SDPs were actions implementing the planning power, such actions need not be strictly implementations of planning. Zimmer notes that according to §§ 20-202(a) and 20-202(b), the functions within the exclusive jurisdiction of the planning board “may include any local matter related to planning, zoning, subdivision, or assignment of street names and house numbers.” Zimmer notes in dicta that enforcement of the Prince George’s County District Council’s conditional zoning authority, at least when assigned to the Planning Board, is within the Planning Board’s exclusive jurisdiction.
The District Council’s possible authority to review decisions of the Planning Board regarding CDPs and SDPs derives from the district councils’ authority to establish procedure and the standard by which courts review the considerations of administrative agencies (which may also speak to the authority of administrative agencies). Several provisions of the Regional District Act allow the district councils to establish procedures, even where they have no authority to make the underlying decision. Such procedural control may also be inherent in the assignment of functions—at a minimum, an assigning district council must indicate what it is the planning board is supposed to decide or do.
According the Court, by-and-large, the Regional District Act grants the district councils legislative authority within the Regional District. In addition to establishing procedure, the district councils establish the substantive standards and rules by which the decisions are made. And, of course, the district councils are legislatures (i.e., deliberative bodies of elected persons who are empowered to make, change, or repeal laws), even though some quasi-judicial functions, such as deciding zoning map amendments, are within their purview.
The net result of Zimmer’s interpretation of the Regional District Act is that instead of all-powerful district councils and subordinate planning boards, both agencies have limited, complementary authority. The planning boards may conceivably perform a wide range of land use functions, but only if the functions are delegated by the Regional District Act or assigned by one of the district councils. The district councils may dream up all manner of exotic land use controls not expressly mentioned in the Regional District Act, but may only implement and enforce them through assignment to the planning boards. The district councils have a legislative role in the implementation of unassigned functions; the planning boards have an administrative role.