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County Council of Prince George's County v. FCW Justice, Inc.

Court of Special Appeals of Maryland

September 5, 2018

COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, MD., SITTING AS THE DISTRICT COUNCIL
v.
FCW JUSTICE, INC.

          Graeff, Kehoe, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

          OPINION

          KEHOE, J.

         A site plan is "an illustrated proposal for the development or use of a particular piece of real property [depicting] how the property will appear if the proposal is accepted." Bryan A. Garner, Black's Law Dictionary 1599 (10th ed. 2014). Like most Maryland local government jurisdictions that exercise land use control, Prince George's County requires developers, in certain circumstances, to submit site plans for government review and approval as part of the development review process that occurs after zoning approval has been obtained. The amount of information to be shown on a site plan varies based upon a variety of factors, e.g., the proposed use, the location of the property, the uses of adjacent properties, and the specific review and approval process required for the proposed development. The initial reviewing and approving authority for all site plans is the Prince George's County Planning Board. The Planning Board's decisions may be subject to further review by the Prince George's County Council, sitting as the District Council.

         In Prince George's County v. Zimmer Development, 444 Md. 490, 584 (2015), the Court of Appeals held that the District Council exercises appellate jurisdiction when it reviews decisions of the Planning Board approving or denying two types of site plans that are required as part of the review process for projects located within one of the County's comprehensive design zoning districts: "comprehensive design plans," and "specific design plans." The Court further held that, because it exercises appellate jurisdiction, the District Council can reverse the Planning Board's decision "only if the Board's decision was not supported by substantial evidence, was arbitrary, capricious, or illegal otherwise[.]" Id.

         In this appeal from a judgment of the Circuit Court for Prince George's County, we must decide how Zimmer's teachings as to the nature of the District Council's jurisdiction and the scope of its review apply to the Council's review of a decision by the Planning Board approving a "detailed site plan" that was submitted by a property owner as part of a subdivision review and approval process.

         Zimmer suggests to us that the District Council exercises appellate jurisdiction in reviewing a decision by the Planning Board approving or denying a detailed site plan, at least when the plan is submitted to the Board as a condition of the Board's approval of a preliminary subdivision application in an Euclidean zoning district. Because the Planning Board's decision in the present case was supported by substantial evidence, and was neither flawed by a legal error nor otherwise arbitrary or capricious, the District Council erred when it reversed the Planning Board's decision. Therefore, we will affirm the judgment of the circuit court.

         Background

         1. An Abbreviated Statutory Overview

         A. The Regional District Act

         Prince George's County derives its authority to engage in land use regulation from the Maryland-Washington Regional District Act (the "RDA").[1] Zimmer, 444 Md. at 524-25; County Council of Prince George's County v. Brandywine Enterprises, Inc., 350 Md. 339, 342 (1998). The RDA is now codified as Md. Code Ann. (2012), Division II of the Land Use Article ("LU"). The provisions of the RDA relevant to the issues raised in this appeal are implemented in Prince George's County through Titles 24 (Subdivisions) and 27 (Zoning) of the Prince George's County Code ("PGCC"). In the present case, we are primarily concerned with Title 27-the Prince George's County Zoning Ordinance.

         The RDA and PGCC Title 27 are complicated statutes with many moving parts. Writing for the Court in Zimmer, the Honorable Glenn T. Harrell, Jr. examined portions of the RDA and Title 27 in the context of underlying principles of land use law to give context to the contentions raised in that case. 444 Md. at 501-36. Judge Harrell's cogent and thorough analysis is our starting point, and we will refer to it frequently in the ensuing pages.

         Land use control in the Regional District operates on the same conceptual bases as does land use regulation in the rest of the State. There are two broad categories of land use control: zoning and planning (which includes subdivision regulation).[2]Zimmer, 444 Md. at 505 (citing, among other authorities, Appleton Regional Community Alliance v. County Comm'rs of Cecil County, 404 Md. 92, 102 (2008); and Mueller v. People's Counsel for Baltimore County, 177 Md.App. 43, 68 (2007)).

         "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." Zimmer, 444 Md. at 505 (quoting Maryland Overpak Corp. v. Mayor and City Council of Baltimore, 395 Md. 16, 48 (2006)). Necessarily implicit in the power to establish use districts and zoning regulations is the authority to enforce their strictures. Accordingly, "[a]s a general rule, parcels must be used in compliance with their zoning[.]" Id.[3]

         The Prince George's County Zoning Ordinance contains provisions for both "Euclidean" and "floating" zoning districts. As the Court explained in Zimmer:

Under a Euclidian zoning scheme, a zoning authority divides geographically an area into use districts. Certain permitted uses are specified by local ordinance and allowed in particular geographic areas. These geographic areas and the zoning assigned to them are then recorded on an official zoning map. 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.

444 Md. at 511 (citations and quotation marks omitted).

         Floating zones provide a means by which a local zoning authority can tailor regulations to foster higher quality development in "large commercial and industrial uses, mixed uses, multifamily residences, and planned unit developments." Id. at 515 (footnote, citations and quotation marks omitted).[4]

         The concept of "planning" is broader in scope. "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[.]'" Zimmer, 444 Md. at 505 (quoting 1 E.C. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978) (other citation omitted)). One aspect of planning is the formulation of "plans," i.e. documents (typically approved by the local legislature) that "contain elements concerning transportation and public facilities, recommended zoning, and other land use recommendations and proposals." Mayor & Council of Rockville v. Rylyns Enterprises, 372 Md. 514, 529 (2002). Subdivision control, i.e., the regulation of process by which larger tracts of land are divided into smaller ones, generally for the purpose of residential, commercial, and industrial development, is an inherent aspect of the planning function. Zimmer, 444 Md. at 505 (citing Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 645-46 (1997); see also County Commissioners of Cecil County v. Gaster, 285 Md. 233, 249 (1979) (Without subdivision controls, "[p]lanning would be futile[.]")

         The two concepts overlap. "Because 'planning and zoning complement each other and serve certain common objectives,' some implementation and enforcement procedures may have both planning and zoning aims." Zimmer, 444 Md. at 506 (quoting People's Counsel for Baltimore County v. Surina, 400 Md. 662, 689 (2007)).

         What we have said so far applies to every jurisdiction in Maryland that exercises land use control authority. What makes Montgomery and Prince George's Counties different is the way that planning and zoning authority within those counties is allocated among four agencies: the Maryland-National Park and Planning Commission (the "Commission"), the planning board of each county, the county councils (which are referred to "district councils" when they exercise powers granted to them in the RDA), and the county boards of appeal.[5] This allocation is largely, but not quite entirely, set out in the RDA. Where the statute speaks, it controls. See Zimmer, 444 Md. at 571.

         Regional planning functions are within the ambit of the Commission. See LU§ 20-203. The Commission is a non-partisan State agency consisting of ten members, five chosen from Montgomery County and five from Prince George's County. LU § 15-102.[6]

         The five members of the Commission from each county also serve as the planning board for that county. LU § 20-201. The planning boards have responsibilities that are distinct from the Commission. The Legislature set out the powers and duties of the planning boards in LU §§ 20-202 and 20-207.

         Section 20-202 states in pertinent part (emphasis added):

(a)(1) Subject to paragraph (2) of this subsection, a county planning board:
(i) is responsible for planning, subdivision, and zoning functions that are primarily local in scope; and
(ii) shall exercise, within the county planning board's jurisdiction, the following powers:
1. planning;
2. zoning;
3. subdivision;
4. assignment of street names and house numbers; and
5. any related matter.
* * *
(b)(1) 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; and
3. the assignment of street names and house numbers in the regional district
* * *

         As a general rule, "including" means "including by way of illustration and not by way of limitation." General Provisions Article § 1-110. See also Hackley v. State, 389 Md. 387, 393 (2005) ("Legislative drafters are to 'use "means" if the definition is intended to be exhaustive' . . . and to 'use "includes" if the definition is intended to be partial or illustrative[.]'" (quoting Department of Legislative Services, Maryland Style Manual For Statutory Law 27 (1998) (some brackets omitted)). Consistent with this principle, the Zimmer Court noted that "LU § 20-202(b)(i) provides that the county planning boards have 'exclusive jurisdiction' over 'local functions,' but does not detail each of the local functions within each jurisdiction." 444 Md. at 567 (footnotes omitted).

         Section 20-207[7] provides that "functions not specifically allocated in this subtitle shall be assigned to the Commission or to one or both of the county planning boards, as needed." Such assignments must be approved both by the Commission and the county council. Approval by the county council may be evidenced by a provision in a local land use ordinance. Zimmer, 444 Md. 566. The Commission's approval can be inferred from the Commission's administrative practices. Id. at 566-67 ("The MNCPPC appears to have accepted the assignment, as the Planning Board considers, in practice, CDPs and SDPs." (footnote omitted)).

         There is no single provision of the RDA that sets out the land use control authority of the district councils. However, and among other things, the district councils have the power to adopt and amend zoning laws, LU § 22-104; to establish programs for the transfer of development rights, LU § 22-105; to establish procedures for the resolution of disputes as to building permits and other "zoning questions," LU § 20-503; and to enact historic preservation regulations, LU § 22-108.

         In addition, and pertinent to this appeal, the Prince George's County District Council is authorized to "review a final decision of the county planning board to approve a detailed site plan." LU § 25-210.[8] The term "detailed site plan" is not defined in the RDA, but, as we will soon explain, the detailed site plan review and approval process is set out in detail in the PGCC.

         As LU §§ 20-202 and 25-210 suggest, the Prince George's County Planning Board has the authority to review and act on detailed site plan applications. Moreover, the RDA gives the District Council the authority to revoke the Planning Board's detailed site plan review authority under certain circumstances and to delegate that function to the governing bodies of municipalities located within the Prince George's County part of the Regional District. See LU §§ 25-210(e)[9] and 25-301.[10] (The authority to revoke and delegate is the centerpiece of one of the District Council's contentions in this appeal, which we will address later.)

         B. Detailed Site Plans

         Before certain kinds of development activities can occur in Prince George's County, the developer must submit a detailed site plan[11] to the Planning Board for its review and approval. PGCC §§ 27-282 and 27-285. The legislative premise of the detailed site plan review process is that "regulation of land development through fixed standards can result in monotonous design and lower quality development, [therefore] certain types of land development are best regulated by a combination of development standards and a discretionary review. . . ." PGCC § 27-281. Examples of the types of development that are appropriate for detailed site plan review include: development on environmentally sensitive land, development that "is potentially incompatible with land uses on surrounding properties," and "[b]uildings or land uses that are a part of particularly sensitive views as seen from adjacent properties or streets." PGCC § 27-281(a)(1)(H)-(J).

         Detailed site plans are required as a matter of course in some zoning districts. PGCC § 27-281.01(a)(1). Additionally, the Planning Board or the District Council may require detailed site plan review and approval "in a zoning or subdivision case, a sectional map amendment, or otherwise." PGCC § 27-281.01(a)(2). Ordinarily, a detailed site plan must address twenty-one separate criteria. See PGCC § 27-282(e).[12] However, "the authority requiring the review" may limit the information required. PGCC § 27-286(a).

         Before deciding to approve a detailed site plan, the Planning Board must find that "the plan represents a reasonable alternative for satisfying the site design guidelines, without requiring unreasonable costs and without detracting substantially from the utility of the proposed development for its intended use." PGCC § 27-285(b). As the Court explained in Zimmer, the detailed site plan process "is a method of moderating design guidelines so as to allow for greater variety of development, while still achieving the goals of the guidelines." 444 Md. at 562-63. Once approved, a detailed site plan is valid for three years. PGCC § 27-287.

         3. The District Council's Authority to Review Planning Board Detailed Site Plan Decisions

         The District Council is authorized to review certain categories of decisions by the Planning Board either through an appeal by a party of record in the proceeding or by the Council's own election to review the decision, a process known as "calling up." PGCC §§ 27-228.01[13] and 27-290(a).[14] The Zoning Ordinance also provides that, in such proceedings (whether by an appeal or by the District Council's decision to "call up" the Planning Board's decision), the District Council exercises "original jurisdiction." PGCC § 27-132(f).[15]

         As the Zimmer Court noted, however, the proper scope of PGCC § 27-132(f) is far less expansive than its language, considered in isolation, might suggest:

A provision of the county ordinance, such as PGCC § 27-132(f), that purports to give the District Council (or any other body) the authority to decide, de novo, a local function related to planning, zoning, subdivision, or the assignment of street names and house numbers, is invalid. The District Council may not arrogate to itself original jurisdiction where the RDA places that responsibility elsewhere. Only the General Assembly, through amendment of the RDA, may accomplish that objective.

444 Md. at 571.[16]

         4. The Property, the Project, and the Planning Board's Decision

         FCW Justice, Inc. ("FCW") is the owner of a 3.3 acre parcel located on Lottsford Vista Road in Lanham, Maryland. The property, at the time part of a larger tract, was zoned Light Industrial (I-1) in the 1960s and has retained that classification ever since. The I-1 zone is Euclidean, and detailed site plan approval is not ordinarily required before development occurs.

         In 2003, the then-owner of the property filed an application to subdivide a portion of the larger tract into two lots, identified as "Parcels B and C, Hanson-Palmer Industrial Park." We are concerned with Parcel C. The Planning Board granted preliminary subdivision approval, subject to many conditions, including one that required the owner to submit a limited detailed site plan[17] to the Board for its approval before a building permit is issued for Parcel C. The Board's resolution stated that the detailed site plan was to address three issues: building design, signage, and screening. The developer submitted a detailed site plan, which called for the construction of an 11, 598-square-foot auto body shop with 20 service bays. The Planning Board docketed the application as "DSP-03089," and approved it in 2004. The auto body shop was never constructed, and the detailed site plan approval expired three years later, pursuant to PGCC § 27-287. This brings us to the present controversy.

         FCW purchased the property in 2012. It proposes to build a 12, 755-square-foot building on the property, which would house three uses: a car wash, a laundromat, and a restaurant. The carwash would consist of 7, 900 square feet, with two drive-through lanes and a two-bay detail shop. The laundromat would occupy 3, 057 square feet. Finally, the restaurant would contain 36 seats, as well as a small outdoor seating area. All of these uses are permitted by right in the Light Industrial zoning district.

         In accordance with the condition imposed by the Planning Board when it granted preliminary subdivision approval in 2003, FCW submitted a detailed site plan for its proposed project. The Board's staff docketed the application as "DSP-03089/01."[18] In addition to the detailed site plan application itself, FCW also submitted a landscape plan, a photometric plan, a tree conservation plan, a conceptual stormwater management plan, drawings depicting all four sides of the proposed building, and a perspective drawing illustrating how the building would appear from Lottsford Vista Road. The proposed site plan and its accompanying information was reviewed by the Commission's staff, a process that also involved forwarding the detailed site plan to various state and local technical departments and agencies for review and comment.

         On May 22, 2013, the Commission staff issued its report, which recommended that the Planning Board approve the detailed site plan application. Initially, the staff noted that each of the proposed uses was permitted as a matter of right in the I-1 zoning district, and that the project complied with the setback and green space requirements for that district.

         The staff report also addressed whether the proposed detailed site plan conformed to the specific requirements of the 2003 Board resolution granting the subdivision application. As we have noted, the conditions relevant to the current appeal related to building design, signage, and screening. The staff report concluded that the detailed site plan satisfied the first of these three matters, and recommended minor changes to the other two.

         First, the 2003 resolution provided that buildings should: (i) "include brick and/or other appropriate materials;" (ii) use "muted" exterior colors; and (iii) "be designed to appear more like an office building rather than a garage or warehouse, as example." The detailed site plan proposed one building constructed of red brick. Staff concluded that the building was "designed to appear like an office building with large glass windows and doors on the most visible northern and eastern facades."

         Second, the 2003 resolution stated:

Signs: A low, ground-mounted sign is preferred. Freestanding pole signs should not be permitted. Building-attached signs should not be permitted.

         The detailed site plan proposed one ground-mounted sign that was nine feet high, and three four-foot-high signs mounted on the building to direct visitors to each business. Staff recommended that the proposed free-standing sign be reduced in height from nine to six feet. (The I-1 regulations allow free-standing signs of up to 25 feet in height.) The Staff also recommended that the Board condition approval on FCW's providing the dimensions of all proposed signs in a tabular format.

         Third, the 2003 resolution stated that parking lots, service bays, and vehicle loading areas should be screened "through the use of landscaping, decorative walls or fences, and/or by the layout of the building, which could function as screening."

         In its proposed detailed site plan, FCW proposed building a nine-foot-high brick wall, starting at the southeastern corner of the building, which would extend along the road frontage to the southern driveway entrance. FCW asserted that such a wall would effectively screen the car wash from the Lottsford Vista Road, and that the wall and existing woodlands areas would screen the proposed uses from the adjacent office sites. FCW also proposed to locate all service areas behind the building, out of sight from the street and adjacent office buildings. Staff concluded that the proposed screening was appropriate, although it recommended that pilasters be incorporated into the brick wall as an architectural embellishment and that the wall be reduced from nine to six feet in height.

         The staff concluded that the detailed site plan met the statutory criteria and recommended that the Board approve the application subject to the modifications noted in the report.

         The Planning Board held a public hearing on the application on June 6, 2013. Prior to the hearing, neighbors and nearby residents sent letters and e-mails to the Board objecting to the application. Many of these communications focused on the suitability of the proposed laundromat and car wash uses in the context of the surrounding neighborhoods. At the opening of the hearing, Elizabeth M. Hewlett, Esquire, the Board chair, addressed these issues. Ms. Hewlett informed the audience that the Board was aware of the concerns over the proposed carwash and laundromat. She noted that all three uses were permitted by right in the I-1 district and that the Planning Board did not have the authority to deny the detailed site plan because of the proposed uses. After informing the audience that the Board "cannot make decisions based on plebiscite or popularity," Ms. Hewlett explained that the Board's ultimate decision would be based on whether the detailed site plan "meets the requirements of the Zoning Ordinance [and] the Subdivision Ordinance."

         After the conclusion of the hearing, the Planning Board approved the detailed site plan application and documented its decision in Resolution No. 13-67. In the resolution, the Board summarized FCW's development proposal, and described the surrounding uses:

The subject property is bounded to the north by a self-storage facility in the I-1 Zone; to the west and south by commercial/industrial office buildings in the I-1 Zone, which are part of the Hanson Palmer Business Park; and to the east by the public right-of-way of Lottsford Vista Road and beyond it by single-family homes in the R-T Zone. The recently developed Vista Gardens Marketplace Shopping Center in the C-S-C Zone is across Lottsford Vista Road to the northeast.

         The Board then noted that: each of FCW's proposed uses (a laundromat, a restaurant, and a car wash) were uses permitted by right in the County's Light Industrial District; the proposed building layout, setbacks, and green spaces complied with the requirements of the Zoning Ordinance; and the proposed signage appeared to comply with the requirements of the Zoning Ordinance. Additionally, and as required by PGCC § 27-285(b)(1), [19] the Planning Board concluded that each of the specific items required to be addressed by the Subdivision Resolution had been addressed so FCW's detailed site plan represented a reasonable alternative for satisfying the site design guidelines without requiring unreasonable cost and without detracting substantially from the utility of the proposed development for its intended use. The Board approved the detailed site plan.[20]

         5. The Proceedings before the District Council

         No appeal of the decision of the Planning Board was filed by any party of record. However, the District Council exercised its authority to review the decision on its own motion, and held a public hearing on September 23, 2013. Counsel for FCW presented argument in favor of the proposal. Four individuals addressed the District Council in opposition. They raised concerns about traffic, the market viability of the laundromat, healthy food options, loitering, and other issues that were not specifically related to the matters before the Planning Board. At the conclusion of the hearing, the case was taken under advisement. On November 19, 2013, the District Council adopted an order reversing and denying the decision of the Planning Board, based upon an accompanying sixty-three page explanation of its reasoning. The District Council perceived several flaws in the Planning Board's decision.

         The District Council found that the Planning Board failed to consider whether FCW's detailed site plan conformed to the land use recommendations of the current master plan for the planning area within which the property is located-the 2010 Glen Dale-Seabrook- Lanham and Vicinity Master Plan.[21]

         From this premise, the District Council conducted its own review of the pertinent provisions of the 2010 Master Plan. The Council concluded that FCW's detailed site plan was flawed in terms of the architectural design of the building, the location of the building on the property, the location of the proposed parking areas, the amount of screening from Lottsford Vista Road, provisions for exterior nighttime lighting, and possible construction within a utilities easement.

         The District Council also noted that the property was located within the watershed of Folly Branch (a tributary of the Patuxent River) and acknowledged that there was no evidence in the record that FCW's project would adversely affect the water quality in Folly Branch. Nonetheless, the District Council declared that it was "simply not persuaded by the lack of evidence" that there would be no adverse effect to Folly Branch.

         The District Council "reject[ed]" the analysis of the County's planning staff that the proposed uses would not have a substantial impact on traffic. After conducting its own independent review of the transcript of the Planning Board hearing, as well as staff reports, the District Council was "persuaded by the substantial evidence in the record that the proposed [development] adjacent to another high-impact self-storage facility and its proximity [to a nearby shopping center] will generate more traffic to existing traffic congestion, hazards and accidents" on Lottsford Vista Road.

         6. The Circuit Court Proceedings and the Appeal

         FCW filed a petition for judicial review. On February 2, 2015, the Circuit Court for Prince George's County issued a well-reasoned opinion and order reversing the decision of the District Council and ordering the District Council to affirm the decision of the Planning Board in its entirety.

         The District Council noted a timely appeal and raises three issues, which we have reworded somewhat.

1. Does the District Council exercise appellate or de novo review when it reviews a final decision of the Planning Board to approve or disapprove a detailed site plan?
2. Was the District Council's review of the Planning Board's decision limited to the three matters to be addressed by FCW's detailed site plan, viz., building materials and architecture, signs, and screening?
3. Was the District Council's decision supported by substantial evidence?

         We hold that the District Council exercises appellate jurisdiction when it reviews a decision by the Planning Board approving or denying a detailed site plan that is submitted to the Board pursuant to a requirement imposed by the Board's approval of a preliminary subdivision application for a property located in a Euclidean zoning district. Additionally, when the District Council reviews a decision of the Planning Board granting or denying a detailed site plan application, the Council's review is limited to the specific issues addressed by the Planning Board. The third issue raised by the District Council is immaterial-in light of the limited scope of the District Council's review, the pertinent inquiry is whether the Planning Board's decision was supported by substantial evidence.

         7. The ...


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