DAVONA GRANT, et al.
COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY SITTING AS THE DISTRICT COUNCIL, et al.
Argued: June 6, 2019
Circuit Court for Prince George's County Case No.
Barbera, C.J. Greene, [*] McDonald, Watts, Hotten, Getty,
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.
T. Harrell, Jr. Judge. Cty. Council of Prince
George's Cty. v. Zimmer Dev. Co., 444 Md. 490, 502
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
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").
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.
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. 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.
impetus that drove Wal-Mart to apply for a special exception
stems from the type of commercial zoning in question. 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).
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
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. 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.
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.
Maryland, traditional land use powers are generally delegated
by the State to local political subdivisions.
Zimmer, 444 Md. at 504-05. 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 §
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 (1998). The instant appeal concerns a challenge to
the decision of the District Council that reversed a decision
of the ZHE as described below.
Before the Zoning Hearing Examiner (ZHE)
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. The Prince George's County
Planning Board declined to hear the case and instead adopted
the Staff Report's recommendation,  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.
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
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
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.
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") 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 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.
Before the District Council
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,
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,
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
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.
motion to have the staff attorney prepare a draft order
reversing the decision of the ZHE received a unanimous vote
by the District Council.
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 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
proposed order contained findings of fact distinct from those
issued by the ZHE. As directed by the District Council, 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.
Review of the District Council's Actions
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,
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.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
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 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
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
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
(2008) (internal quotation marks omitted) (citing
People's Counsel for Balt. Cty. v. Surina, 400
Md. 662, 681 (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.
we review legal questions or the agency's conclusions of
laws de novo. Town of Oxford v. Koste, 431 Md. 14,
25 (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
The District Council was Authorized to Delegate Preparation
of its Proposed Opinion to its Staff Attorney for its
Subsequent Consideration and Adoption.
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.
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,  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 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 not establish the
position of Principal Counsel.
argues that an administrative agency may only delegate
authority to its staff where the agency's enabling
statute specifically permits such a delegation. To support
her argument, she relies on Pub. Service Comm'n of
Md. v. Wilson, 389 Md. 27, 52 (2005). In
Wilson, we were tasked with determining whether the
Chairman ("the Chairman") of the Public Service
Commission ("the Commission") acted improperly by
unilaterally terminating an employee. Id. at 33-34.
In that case, the Court held that the Chairman did not have
the unilateral authority to terminate an employee.
Id. at 59.
reads Wilson to endorse the proposition that
administrative agencies may only delegate authority to
perform a certain function to its staff if that agency's
enabling statute authorizes such delegation. As mentioned
earlier, the District Council's existence is attributable
to the RDA. Accordingly, the RDA is the enabling statute
through which the District Council draws its powers to
establish local zoning law. See Zimmer, 444 Md. at
523-24. Therefore, she contends that based on
Wilson, the District Council is only permitted to
delegate to its staff attorney the responsibility of
preparing a draft decision if the RDA authorizes such
delegation. However, we find that her arguments misconstrue
our holding in Wilson.
Wilson, we held only that the Chairman did not have
the unilateral authority to terminate employees because the
relevant provisions of the Commission's enabling statute
bestowed that power upon the Commission as a whole.
Wilson, 389 Md. at 58-59. This becomes increasingly
evident throughout the Court's analysis:
Language appears throughout the statute authorizing the
Commission to "hire" or "appoint" all
types of employees of the PSC. In contrast, there is no
mention in this statute, nor any other statute we could find,
of language that outlines the Chairman's authority,
independent of the Commission's, to "hire" or
"appoint" employees of the PSC. Although §
2-108(d) [of the Public Utilities Companies Article
("PU")] does not discuss specifically the authority
of the Commission to terminate employees, [PU] §
2-108(d) states that "all personnel of the Commission
are subject to the provisions of the State Personnel and
Pensions Article." That Article governs the termination
of PSC employees, specifically those employees in the
executive and management services, and those who are special
appointments, all of which "serve[ ] at the pleasure of
the employee's appointing authority" and "may
be terminated from employment for any reason, solely in the
discretion of the appointing authority." § 11-305.
Because [PU] § 2-108(d) constructs a statutory
scheme outlining both the Commission's explicit authority
to hire and implicit authority to terminate employees of the
PSC, we conclude that the Commission as a whole is the
Wilson, 389 Md. 27, 52 (2005) (emphasis added).
addressed the Chairman's authority to take final
action-the termination of an employee-where the statute
required the Commission as a whole to make final employment
decisions. Clearly, the Wilson Court did not hold
that "Maryland law only authorizes an administrative
agency to delegate certain authority to an employee of the
agency if the agency's enabling statutes authorizes such
a delegation" as Grant contends. Pet. Br. at 10.
Instead, the Court held that the head of an administrative
body may not take unilateral action that directly contravenes
the express powers granted to that agency "as a
whole" through its enabling statute.
case, the District Council did not delegate the final
decision-making authority for granting or denying
Wal-Mart's special exception and variance to Principal
Counsel- rather, it delegated the preparation of a draft
findings of fact and conclusions of law for the District
Council's deliberation and consideration. On July 18, the
District Council directed Principal Counsel to prepare a
draft for its consideration. On July 19, the District Council
subsequently met and voted to approve the findings of fact
and conclusions as set forth in the document. There was no
impermissible delegation of its final decision-making
authority to staff. We find Grant's reliance on
previously discussed, the RDA is the District Council's
enabling statute. The RDA bestows upon the District Council
the authority to regulate zoning and establish procedures and
provisions regarding zoning hearings. Under the RDA, any
decision concerning a special exception requires a written
finding of material facts and conclusions. LU § 25-204.
Under the RDA, LU § 22-206 grants to the District
Council the power to regulate zoning:
(a) A district council may amend its zoning laws, including
(1) in accordance with procedures established in its zoning
(2) after holding an advertised public hearing.
(b) The procedures and zoning laws may include: (1)
procedures limiting the times when amendments may be adopted;
(2) provisions for hearings and preliminary determinations by
an examiner, a board, or any other unit;
(3) procedures for quorums, number of votes required to enact
amendments, and variations or increases based on factors such
as master plans, recommendations of the hearing examiner,
county planning board, municipal corporation, governed
special taxing district, or other body, and petitions of
abutting property owners, and the evidentiary value that may
be accorded to any of these factors; and
(4) procedures for hearings, notice, costs, fees, amendment
of applications, recordings, reverter, lapse, and
reconsideration de novo of undeveloped zoning amendments.
LU § 22-206(a)--(b).
provision, LU § 22-301 details the District
Council's role within hearings on special exceptions and
(a)(1) A district council may adopt zoning laws that
authorize the board of appeals, the district council, or an
administrative office or agency designated by the district
council to grant special exceptions and variances to the
zoning laws on conditions that are necessary to carry out the
purposes of this division.
(2) Any zoning law adopted under this subsection shall
contain appropriate standards and safeguards to ensure that
any special exception or variance that is granted is
consistent with the general purposes and intent of the zoning
(b) Subject to § 22-309 of this subtitle, an appeal from
a decision of an administrative office or agency designated
under this subtitle shall follow the procedure determined by
the district council.
(C) The district council may authorize the board of appeals
to interpret zoning maps or decide questions, such as the
location of lot lines or district boundary lines, as the