Grant v. County Council of Prince George’s County

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          Circuit Court for Prince George’s County, Case No. CAL16-30078, Herman C. Dawson, Judge.

         Argued by G. Macy Nelson (Law Office of G. Macy Nelson, LLC, Towson, MD), on brief, for Petitioners.

         Argued by Rajesh A. Kumar, Principal Counsel (Prince George’s County Council, Upper Marlboro, MD) and Argued by M. Celeste Bruce (Michael S. Nagy, Rifkin, Weiner, Livingston, LLC, Bethesda, MD), on brief, for Respondents.

         Amicus Curiae Brief for Barnabas Road Associates, LLC in Support of Petitioners: Andrew Jay Graham, Esquire, John A. Bourgeois, Esquire, Steven M. Klepper, Esquire, Kramon & Graham, P.A., One South Street, Suite 2600, Baltimore, MD 21202.

         Argued before: Barbera, C.J. ^[*] Greene, McDonald, Watts, Hotten, Getty, Booth, JJ.

         OPINION

         [465 Md. 500] Getty, J.

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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.

Judge Glenn T. Harrell, Jr.

          In the instant appeal we write another chapter to the mysteries of the zoning powers, special exceptions and variances authorized by state and local codes for the Prince [465 Md. 501] George’s County Council sitting as the District Council ("District Council"), so aptly described in the past by Judge Glenn T. Harrell, Jr. First, we must determine whether the District Council was authorized to delegate the preparation of its opinion and order to its staff attorney. The second issue is whether the District Council engaged in an "evasive device" intended to circumvent the requirements of the Maryland Open Meetings Act. Third, we must determine whether the District Council exercises original or appellate jurisdiction when it reviews decisions concerning special exceptions and variances from the Zoning Hearing Examiner ("ZHE").

          We ultimately hold that the District Council is authorized to delegate to its staff attorney the preparation of a draft decision and that the District Council rightfully exercises original jurisdiction when hearing zoning cases from the ZHE. In addition, we conclude that the Petitioners failed to present sufficient evidence that the District Council violated the Open Meetings Act.

          BACKGROUND

         In 2014, Wal-Mart Real Estate Business Trust ("Wal-Mart") applied to the Maryland-National Capital Park and Planning Commission ("MNCPPC") for a special exception, variance, and an alternative compliance regarding an existing store located in the Woodyard Crossing Shopping Center in Clinton, Maryland.^[2] The store was originally constructed in 2000 as a 134,241 square foot facility. The special exception and variance applications were made in connection with Wal-Mart’s intended goal of expanding the store to include an outdoor garden center and grocery store, and to eliminate the existing automotive servicing facility. The planned expansion would increase the building’s square footage by 37,393 square feet.

          The impetus that drove Wal-Mart to apply for a special exception stems from the type of commercial zoning in question. [465 Md. 502] The property is located within an area designated as a Commercial Shopping Center ("CSC") Zone. See PGCC § 27-454 (describing the nature of the CSC Zone).

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Although Wal-Mart’s current and intended future uses are individually allowed in the CSC Zone, the expansion required a special exception to combine all of these uses on a single parcel within a CSC Zone. See Prince George’s County Code ("PGCC") § 27-461(a)-(b) (outlining the permitted uses of land relative to its zoning designation).

         Separately, the requirement for Wal-Mart to apply for a variance was not triggered by its plans to expand the existing store but instead was due to subsequent changes in the zoning code. When the store was built in 2000, the relevant portions of the PGCC required a fifty-foot set back from the surrounding properties.^[3] In 2002, the provision within the PGCC, i.e. PGCC § 27-348.02(a)(5), was amended to require a 100-foot setback. This left Wal-Mart in the awkward position where the existing store did not comply with the setback requirements as amended. Accordingly, the variance application concerns Wal-Mart’s existing facility and not its proposed expansion.

         In addition, the MNCPPC Planning Director had previously approved multiple alternative compliance applications concerning the Wal-Mart facility that needed to be amended under the new application. For example, in 1999 the Planning Director approved an alternative compliance application made by Wal-Mart that provided an alternative buffering scheme between the Wal-Mart and residentially zoned properties located to its west.^[4]

         [465 Md. 503] In Maryland, traditional land use powers are generally delegated by the State to local political subdivisions. Zimmer, 444 Md. at 504-05, 120 A.3d 677. For Prince George’s County, the State Regional District Act ("RDA"), authorizes the District Council to adopt, amend and administer zoning laws within the county. 2012 Md. Code, Land Use ("LU") § 22-104(a). The definition of "District Council" however, varies depending on the geographical delineations of the area concerned. In situations involving zoning actions entirely within Prince George’s County, the County Council of Prince George’s County sits as the District Council. LU § 22-101(b).

         When acting in its zoning capacity, the District Council acts as an administrative agency. Cty. Council of Prince George’s Cty. v. Brandywine Enter., Inc., 350 Md. 339, 342, 711 A.2d 1346 (1998). The instant appeal concerns a challenge to the decision of the District Council that reversed a decision of the ZHE as described below.

          Proceedings Before the Zoning Hearing Examiner (ZHE)

         In response to Wal-Mart’s application for a special exception and variance, the MNCPPC development review division issued a report ("Staff Report") which recommended that Wal-Mart’s special exception and variance application be denied but its alternative compliance request should be approved.^[5] The Prince George’s County

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Planning Board declined to hear the case and instead adopted the Staff Report’s recommendation, [465 Md. 504] ^[6] as permitted under PGCC § 27-210, and assigned the case to a ZHE to conduct an evidentiary hearing. The ZHE then held hearings wherein she heard testimony and accepted evidence from those involved. On May 13, 2016, the ZHE issued its decision.

         In its decision, the ZHE found the following: (1) that the existing store does not comply with the 100-foot setback requirement; (2) that stormwater runoff from the shopping center in which the Wal-Mart is located floods the neighboring residential communities; (3) that the area is already subject to significant traffic congestion; and (4) that the shopping center in which the Wal-Mart is located draws a greater amount of individuals to the area which, in turn, contributes to an increase in crime throughout the neighboring area. Therefore, the ZHE denied Wal-Mart’s application for a special exception and variance. The ZHE’s decision was transmitted to the District Council and hand-delivered to Rajesh Kumar, Principal Counsel to the District Council.^[7]

          Wal-Mart filed exceptions to the ZHE’s decision on June 13, 2016 and requested that the District Council hear the case. That same day, the District Council elected, by unanimous vote, to take up the matter and make the final decision concerning Wal-Mart’s special exception and variance applications. Two days later, on June 15, the Clerk of the District Council sent notices to all parties involved that the District [465 Md. 505] Council had scheduled oral arguments on July 18. Therefore, all parties on record were provided notice well in advance that the District Council would be hearing the case with oral arguments on July 18.

         Prior to the hearing, as noted earlier, Wal-Mart filed written exceptions to the ZHE’s decision. In response, Ms. Davona Grant and other citizen protestants (collectively referred to in this opinion as "Grant")^[8] filed a lengthy response in opposition to Wal-Mart’s exceptions that included "Proposed Findings of Fact and Conclusions of Law" based upon their position that the ZHE’s decision should be affirmed. According to statements made by

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Mr. Kumar at oral argument, he reviewed the record, Wal-Mart’s exceptions, Grant’s filings including their proposed findings and other materials submitted to the District Council and began preparing a draft decision in advance of the July 18 hearing.

          Proceedings Before the District Council

         At the hearing before the District Council on July 18, 2016, testimony was received from citizens and expert witnesses regarding the special exception and variance. Attorneys for both sides discussed the proposed expansion and its impact on traffic, architecture, crime, and other factors. At the end of the hearing, District Council Member Mel Franklin,^[9] motioned to have Mr. Kumar prepare a proposed opinion and order with written findings of fact reversing the ZHE’s decision and in support of his motion stated in detail,

[465 Md. 506] This is a challenging case. It is, one, challenging because this is an existing shopping center. The Walmart in question is not in great condition aesthetically. And Clinton, in general, is in— is a, you know, as a community, it has challenges with the quality of its commercial opportunities or commercial options in Clinton. So there is a big need for investment and redevelopment or reinvestment or renovation and all of the like in Clinton in particular. And so and all of those things are important.

Obviously this is the kind of case, because it’s before the District Council, like any other District Council case, has to be decided on the law. And it is my belief that this sort of boils down to an existing shopping center that essentially, because of the dynamics of the existing shopping center, it is creating the legal problems with this proposed expansion and reinvestment. And so the, in my view, the reasons for the variance and whether variances, the variance request is reasonable is, in large part, most of what’s been raised has to do with the difficulties with the existing site. It is not related to the challenges or problems with the expansion.

I do appreciate what [People’s Zoning Counsel, Stan] Brown or what the opposition have said about frontage. I do believe that legally we, there is a sound justification on the frontage issue. And I do want to thank all of the residents who participated in this process on both sides. Obviously, this is the largest anchor or will be the largest anchor of what is essentially the largest shopping center in Clinton. So it certainly has importance in the community. And this shopping center in particular needs to thrive. It needs to thrive in large part because it is the most significant commercial presence in Clinton. It is in need of reinvestment. It is in need of redevelopment. And the hope is that the reinvestment or redevelopment will happen in Clinton, happen at this shopping center.

With that, I’m going to move that to direct Staff to prepare an Order reversing the decision of the Zoning Hearing Examiner and prescribing approval with conditions.

         [465 Md. 507] His motion to have the staff attorney prepare a draft order reversing the decision of the ZHE received a unanimous vote by the District Council.

          The following day, July 19, Mr. Kumar presented to the District Council a proposed fifty-one page order. Initially, the approval was mistakenly titled as being an "Approval with Conditions." However, as

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Mr. Kumar explained to the District Council during the open meeting, the order was not actually subject to conditions. Mr. Kumar commented,

[j]ust one correction, the Ordinance does not have conditions because the Order itself addresses the concerns that were raised at Oral Argument and Technical Staff including architectural renderings that were revised by the Applicant and submitted into the record, and that can be found on your draft, Page 46. That’s the exhibit that [Counsel for Grant] referred to during Oral Argument on Monday. This is the actual renderings that will be done to the site. The entire Walmart is being redone.

In addition, there is not a condition regarding stormwater because [Wal-Mart] obtained a revised Stormwater Conceptual Plan, which is basically on Page 29 of the Order. It outlines all of the requirements that the Applicant must comply with as part of the new development. Regarding buffering, the Applicant obtained approval from the Planning Director for alternative compliance. There will be buffering on the site. There is [sic] photographs in the record regarding the fence. The fence is intact. It is a board-on-board fence with plantings on the residential side as well as the commercial side.

         The proposed order contained findings of fact distinct from those issued by the ZHE.^[10] As directed by the District Council, [465 Md. 508] the proposed order approved Wal-Mart’s application for a special exception and variance. The District Council, continuing in the open session, then moved to adopt the order which carried by a seven to two vote. There is no evidence that any District Council members met or discussed the application or the findings of fact during the intervening time period between the July 18 and July 19 hearings.

          Judicial Review of the District Council’s Actions

          As a result of the District Council’s action, Grant filed a petition for judicial review on August 11, 2016. The appeal was heard by the Circuit Court for Prince George’s County on April 20, 2017. The circuit court affirmed the District Council’s decision in an order and opinion dated June 7, 2017.

         In response, Grant filed a notice of appeal in the circuit court and appealed its decision to the Court of Special Appeals. In addition to the arguments concerning Wal-Mart’s special exception and variance applications, Grant averred that the District Council violated the Open Meetings Act based on its conduct between its July 18 and 19 hearings.^[11] In an unreported decision dated December 3, 2018, the Court of Special Appeals determined that the District Council applied the wrong legal standard and remanded the case to the District Council. In addition, the court concluded Grant failed to prove a violation of the Open Meetings Act occurred.

          Thereafter, Grant petitioned this Court for writ of certiorari, which we granted on March 5, 2019. On appeal, the parties are joined by Amicus Curiae, Barnabas Road

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Associates, LLC, who write in support of Grant’s position. In her petition for a writ of certiorari, Grant presents three issues:

1. Whether Maryland administrative law authorizes a zoning tribunal to vote to approve a special exception without [465 Md. 509] deliberating on the factual issues and then delegate to its staff attorney the authority to make the required factual findings without informing the staff attorney of the factual basis of the tribunal’s decision.

2. If, as the Court of Special Appeals postulated, the District Council’s staff attorney prepared a draft opinion and showed it separately to individual members of the District Council before the July 19 meeting, whether such a process is an "evasive device" which violates the Open Meeting Act.

3. Whether the District Council erred by exercising original jurisdiction when it reversed the Zoning Hearing Examiner’s decision.

          STANDARD OF REVIEW

          In reviewing an administrative agency’s decision regarding a special exception "we look through the circuit court’s and intermediate appellate court’s decisions, although applying the same standards of review, and evaluate[ ] the decision of the agency." People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 66, 956 A.2d 166 (2008) (internal quotation marks omitted) (citing People’s Counsel for Balt. Cty. v. Surina, 400 Md. 662, 681, 929 A.2d 899 (2007)). In such situations, we review the evidence adduced in the courts below to determine "whether the zoning body’s determination was supported by ‘such evidence as a reasonable mind might accept as adequate to support a conclusion[.]’ " Loyola Coll. in Md., 406 Md. at 67, 956 A.2d 166.

         However, we review legal questions or the agency’s conclusions of laws de novo. Koste v. Town of Oxford, 431 Md. 14, 25, 63 A.3d 582 (2013). Because the parties dispute solely the applicability of certain statutory provisions of the RDA, PGCC, and Open Meetings Act, we review these legal questions de novo.

         [465 Md. 510] DISCUSSION

          A. The District Council was Authorized to Delegate Preparation of its Proposed Opinion to its Staff Attorney for its Subsequent Consideration and Adoption.

          Grant argues that the procedure undertaken by the District Council in the instant case stands in opposition to Maryland administrative law. Specifically, she argues that the District Council failed to make required factual findings, delegated to its staff attorney the authority to draft its decision and make factual findings, and failed to properly inform its staff attorney of the relevant factual findings that would support its decision.

         Her arguments are primarily based on the limited statutory language that defines the role of Principal Counsel and technical staff within proceedings before the District Council. To support her position that Principal Counsel lacks the authority to prepare a draft findings of fact and decision, she directs the Court to various provisions of the Prince George’s Charter,^[12] the RDA, the PGCC and the Zoning Ordinances, which describe the duties of the Technical Staff, the Planning Board, the ZHE, People’s Zoning Counsel, and the District

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Council in the administrative review and application for a special exception. By contrast, Grant contends that the RDA, the Charter, and the PGCC, including the Zoning Ordinances, do ...