Davona GRANT, et al.
COUNTY COUNCIL OF PRINCE GEORGES COUNTY Sitting as the District Council, et al.
[Copyrighted Material Omitted]
Circuit Court for Prince Georges County, Case No.
CAL16-30078, Herman C. Dawson, Judge.
by G. Macy Nelson (Law Office of G. Macy Nelson, LLC, Towson,
MD), on brief, for Petitioners.
by Rajesh A. Kumar, Principal Counsel (Prince Georges County
Council, Upper Marlboro, MD) and Argued by M. Celeste Bruce
(Michael S. Nagy, Rifkin, Weiner, Livingston, LLC, Bethesda,
MD), on brief, for Respondents.
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.
before: Barbera, C.J. [*] Greene, McDonald, Watts, Hotten,
Getty, Booth, JJ.
Md. 500] Getty, J.
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.
Cty. Council of Prince Georges Cty. v. Zimmer
444 Md. 490
120 A.3d 677
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] Georges 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-Marts 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
buildings 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. [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
Although Wal-Marts 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 Georges County
Code ("PGCC") § 27-461(a)-(b) (outlining the
permitted uses of land relative to its zoning designation).
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-Marts existing facility and not its
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.
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 Georges 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 Georges County, the County Council of Prince
Georges County sits as the District Council. LU § 22-101(b).
acting in its zoning capacity, the District Council acts as
an administrative agency. Cty. Council of Prince Georges
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)
response to Wal-Marts application for a special exception
and variance, the MNCPPC development review division issued a
report ("Staff Report") which recommended that
Wal-Marts special exception and variance application be
denied but its alternative compliance request should be
approved. The Prince Georges County
Planning Board declined to hear the case and instead adopted
the Staff Reports recommendation, [465 Md. 504]
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, 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-Marts application for a
special exception and variance. The ZHEs decision was
transmitted to the District Council and hand-delivered to
Rajesh Kumar, Principal Counsel to the District
Wal-Mart filed exceptions to the ZHEs 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-Marts 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.
to the hearing, as noted earlier, Wal-Mart filed written
exceptions to the ZHEs 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-Marts exceptions that included
"Proposed Findings of Fact and Conclusions of Law"
based upon their position that the ZHEs decision should be
affirmed. According to statements made by
Mr. Kumar at oral argument, he reviewed the record,
Wal-Marts exceptions, Grants 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
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 ZHEs 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
Obviously this is the kind of case, because its 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 whats 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 [Peoples 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, Im going to move that to direct Staff to prepare
an Order reversing the decision of the Zoning Hearing
Examiner and prescribing approval with conditions.
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.
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. Thats 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,
[465 Md. 508] the proposed order approved Wal-Marts
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
Judicial Review of the District Councils Actions
result of the District Councils action, Grant filed a
petition for judicial review on August 11, 2016. The appeal
was heard by the Circuit Court for Prince Georges County on
April 20, 2017. The circuit court affirmed the District
Councils 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-Marts 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
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
Associates, LLC, who write in support of Grants position. In
her petition for a writ of certiorari, Grant presents three
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 tribunals decision.
2. If, as the Court of Special Appeals postulated, the
District Councils 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 Examiners
STANDARD OF REVIEW
reviewing an administrative agencys decision regarding a
special exception "we look through the circuit courts
and intermediate appellate courts decisions, although
applying the same standards of review, and evaluate[ ] the
decision of the agency." Peoples Counsel for Balt.
Cty. v. Loyola Coll. in Md., 406 Md. 54, 66, 956 A.2d
166 (2008) (internal quotation marks omitted) (citing
Peoples 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 bodys 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.
we review legal questions or the agencys 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
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.
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 Georges Charter, the RDA, the PGCC and the Zoning
Ordinances, which describe the duties of the Technical Staff,
the Planning Board, the ZHE, Peoples Zoning Counsel, and the
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,