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County Council of Prince George's County v. Chaney Enterprises Ltd. Partnership

Court of Appeals of Maryland

July 28, 2017


          Argued: March 30, 2017

         Circuit Court for Prince George's County Case No.: CAL 13-24863

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          ADKINS, J.

         Land use decisions are often contentious and frequently challenged-both administratively and in court. Petitioner County Council of Prince George's County sitting as District Council amended an area master plan to prohibit surface mining in certain mineral-rich areas of the county. Today we consider whether Respondents-two mining companies and a mining trade organization-can seek judicial review of the master plan. We also determine whether the master plan amendments are preempted by state law.


         The Maryland-Washington Regional District Act ("RDA") governs zoning, planning, and other land use matters in most of Prince George's and Montgomery Counties. Md. Code (1957, 2012 Repl. Vol.), § 20-101 of the Land Use Article ("LU"); see also Cty. Council of Prince George's Cty. v. Zimmer Dev. Co., 444 Md. 490, 521 (2015).[1] Through the RDA, and subject to its provisions, the State granted these counties the authority to regulate land use in those parts of the Maryland-Washington Regional District ("Regional District") located within their respective borders. LU §§ 20-202, 22-104. Under the RDA, the District Council has the authority to adopt and amend zoning laws and maps, LU § 22-104(a)(1), (2), and must periodically consider whether to amend the master plans for the areas located in the Regional District, LU § 21-105(c)(1). The District Councils for Prince George's County and Montgomery County consist of their respective county councils. LU §§ 22-101, 14-101(f)(1). The RDA divides the counties' planning and zoning authorities into separate titles-Title 21 governs planning and Title 22 governs zoning.

         Maryland has long recognized a distinction between zoning and planning. Appleton Reg'l Cmty. Alliance v. Cty. Comm'rs of Cecil Cty., 404 Md. 92, 102 (2008). Although they "complement each other and serve certain common objectives, " they achieve those objectives through different means. Zimmer, 444 Md. at 505-06 (citation omitted). Zoning is "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." Id. at 505 (citation omitted). The primary goal of zoning is "the immediate regulation of property use through the use of [zoning] classifications." Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 530 (2002) (citations omitted). A property owner may receive a special exception, which permits a use not automatically allowed by the zoning classification. See Stanley D. Abrams, Guide To Maryland Zoning Decisions § 11.01 (5th ed. 2012). Special exceptions must be authorized by an administrative body pursuant to existing zoning laws and are subject to standards and conditions. Id.

         Plans, on the other hand, serve as a guide for long-term land use and development goals and propose zoning changes to implement these aims. Rylyns, 372 Md. at 529 (footnote omitted); Pattey v. Bd. of Cty. Comm'rs for Worcester Cty., 271 Md. 352, 360 (1974) (citations omitted). Because plans do not regulate property use, zoning tools such as sectional map amendments, which alter zoning for large portions of land, are used to implement their recommendations. 1 Sara C. Bronin & Dwight H. Merriam, Rathkopf's The Law of Zoning and Planning § 1:41 (2017); see Cty. Council for Montgomery Cty. v. Dist. Land Corp., 274 Md. 691, 696 (1975) (quoting from a District Council resolution explaining that a sectional map amendment was adopted to bring an area into conformance with a master plan).


         For zoning and planning purposes, Prince George's County is divided into seven subregions, each with its own master plan. Subregion 5, the focus of this appeal, covers nearly 74 square miles of land located in the southwest corner of Prince George's County, just south of Washington, D.C. Subregion 5 is a major source of sand and gravel for construction projects in the surrounding area. Respondents Chaney Enterprises Limited Partnership ("Chaney") and Southstar Limited Partnership ("Southstar") own and operate sand and gravel mines in Prince George's County.[2] Respondent Maryland Transportation Builders and Materials Association ("MTBMA") is a trade organization that represents the mining industry and has members with mining operations located in the county (collectively, "Mining Entities").

         In 2002, Prince George's County approved a new general plan that set forth the long-term vision for land use and development in the county. As part of its vision, the 2002 Prince George's County Approved General Plan ("2002 General Plan") divided the county into three land use areas called the Developed, Developing, and Rural Tiers. Approximately three-quarters of Subregion 5 was placed into the Developing Tier, with the remainder in the Rural Tier.

         Several years later, the Preliminary 2009 Subregion 5 Master Plan ("2009 Master Plan") revised the subregion's master plan to reflect the goals and policies of the 2002 General Plan. The 2009 proposed plan recognized that "[s]and and gravel [are] essential element[s] of new construction in the Washington, D.C. [ ] region" and sought to "capitalize[ ] on the extraction of sand and gravel resources prior to the land being pre-empted by other land uses." It also set a goal of providing "commercially viable access to sand and gravel resources." Petitioner Prince George's County Council sitting as District Council ("District Council") adopted the 2009 Master Plan in September 2009.

         In 2012, the Circuit Court for Prince George's County invalidated the 2009 Master Plan due to the District Council's failure to follow State-mandated procedures. In April 2013, the District Council held a joint public hearing with the Prince George's County Planning Board ("Planning Board") on a new plan, the 2013 Subregion 5 Master Plan ("2013 Master Plan"), which contained the same goals and policies for surface mining as the 2009 Master Plan. At the hearing and in written comments, several participants expressed concern about the effects of mining operations in Subregion 5 on the surrounding communities. The Mining Entities did not appear at the hearing or submit written comments on the 2013 Master Plan. After considering the oral and written testimony, the Planning Board added more detailed special exception guidelines, but it did not propose any changes to the 2013 Master Plan's sand and gravel policies.

         On July 8, 2013, the District Council met to consider several zoning matters, including the 2013 Master Plan. The meeting notice did not indicate that the District Council would be considering matters related to surface mining.[3] At the meeting the District Council considered the testimony and exhibits related to the 2013 Master Plan, and then directed its staff "to prepare a resolution of approval with revisions."

         On July 24, 2013, the District Council adopted, by resolution ("Resolution"), the 2013 Master Plan with amendments added since its July 8, 2013 meeting ("the Amendments"). The purpose of the 2013 Master Plan was to "establish[ ] policies and strategies to carry out a land use, preservation, and development vision for [ ] Subregion 5" consistent with the 2002 General Plan. The Amendments "restrict[ed] sand and gravel mining to the [R]ural [T]ier." It altered the plan's goal from "capitaliz[ing]" on sand and gravel resources to "balanc[ing] the need for" them against "the potential negative impact and nuisance to nearby properties and the environment" and removed language that prioritized the extraction of sand and gravel resources over other land uses. The District Council inserted language to "[e]ncourage" mining companies to "provide specific evidence" of a mine's economic benefit. The plan was also amended to require mining companies to "mitigate on[-] and off-site transportation impacts" and potentially limit the hours and duration of mining activities. Finally, the Amendments required mining companies "to achieve post[-]mining reclamation that meets environmental needs."[4]

         The District Council did not send the Amendments back to the Planning Board for comment or a public hearing prior to their approval. On August 15, 2013, the District Council published a public notice announcing its approval of the 2013 Master Plan with the Amendments.

         On August 2013, the Mining Entities filed a petition for judicial review of the 2013 Master Plan in the Circuit Court for Prince George's County pursuant to LU § 22-407(a)(1). The Mining Entities argued that the Amendments were invalid because the District Council failed to follow procedural requirements for their adoption. They also argued that the Amendments were preempted by Maryland's Surface Mining Act ("SMA").[5] In its opposition to the Mining Entities' petition, the District Council raised four jurisdictional arguments for dismissal. Specifically, it argued that the petition was not properly before the court because: (1) none of the Mining Entities participated in the 2013 Master Plan proceedings; (2) the Mining Entities failed to exhaust administrative remedies by applying for a special exception; (3) the 2013 Master Plan is not subject to judicial review; and (4) the case was not ripe for review.

         The Circuit Court affirmed the District Council's adoption of the Amendments, and found that LU § 22-407 only authorized judicial review of "sectional map amendments and zoning ordinances, and not [ ] master plans." The court also concluded that the Amendments were not preempted by the SMA. The Mining Entities appealed to the Court of Special Appeals, which reversed in an unreported per curiam opinion. Chaney Enters. Ltd. P'ship v. Cty. Council of Prince George's Cty., 2016 WL 4698144, at *1 (Md. Ct. Spec. App. Sept. 7, 2016). The intermediate appellate court rejected the District Council's jurisdictional challenges to the Mining Entities' suit. It held that the 2013 Master Plan was invalid because the District Council failed to send the Amendments back to the Planning Board for written comment. Id. at *10. On the preemption question, the court held that the SMA did not preempt the Amendments.[6] Id. at *14. The District Council filed a petition for writ of certiorari, and the Mining Entities filed a cross-petition.

         We granted certiorari on both petitions. The District Council presented the following questions for our review:[7]

1. Can Respondents seek judicial review of the 2013 Master Plan under LU § 22-407?
2. Did the trial court correctly uphold the District Council's adoption of the 2013 Master Plan Amendments as procedurally proper?

         The Mining Entities presented one question for our review:[8]

Are the District Council's Amendments to the 2013 Master Plan preempted by the SMA?

         Because we answer the District Council's first question in the affirmative and the remaining questions in the negative, we shall affirm the judgment of the Court of Special Appeals. We will, however, conclude that the Amendments are severable and that the remaining portions of the 2013 Master Plan still stand.


         Judicial review of an administrative agency action is typically "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Marzullo v. Kahl, 366 Md. 158, 171 (2001) (citation omitted). But the three questions we are tasked with answering-(1) whether LU § 22-407 authorizes judicial review of an area master plan; (2) whether the adoption of the Amendments was procedurally proper; (3) and whether the Amendments are preempted by the State's surface mining laws-are questions of law, which we review without deference. See Zimmer, 444 Md. at 553 (citation omitted).


         The District Council has presented a barrage of interwoven jurisdictional and procedural arguments which we will attempt to untangle. Its primary contention is that LU § 22-407(a)(1) does not authorize judicial review of area master plans. As its fallback position, the District Council asserts that even if LU § 22-407(a)(1) permits judicial review in this case, the Mining Entities must meet certain threshold requirements before proceeding in court. Finally, the District Council contends that it complied with the procedural requirements for adopting the Amendments. The Mining Entities, of course, disagree.

         On the preemption question, the Mining Entities argue that the Amendments are preempted by the SMA, which grants the Maryland Department of the Environment ("MDE") authority to issue surface mining permits. In response, the District Council asserts that the General Assembly did not intend for the permitting process to supplant local land use authority, and therefore the Amendments are not preempted.

         Judicial Review Under LU § 22-407(a)(1)

         The District Council contends that the 2013 Master Plan merely sets land use policies-unlike zoning, it is not binding-and therefore is not subject to judicial review. In support of its argument, the District Council notes that the 2013 Master Plan was adopted pursuant to its planning authority under Title 21, not its zoning authority under Title 22. Because LU § 22-407(a)(1) appears in ...

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