Monday, August 31, 2015

Court Limits Prince George’s County Council’s Role in Development Review

Judges of the Maryland Court of Appeals
In a striking 100-page decision issued earlier this month, Maryland’s highest court ruled unanimously that the Prince George’s County Council lacks the legal authority to decide for itself whether individual development projects should be approved or disapproved.

Rather, the council must generally uphold the decisions of the Planning Board in development review matters unless those decisions are unsupported by substantial evidence or are otherwise arbitrary, capricious, or illegal.

To borrow a phrase famously uttered by Vice President Joe Biden in 2010, this case is “a big f***ing deal!

This landmark decision by the Maryland Court of Appeals strengthens the hand of the Maryland-National Capital Park and Planning Commission (MNCPPC), the state-created planning and zoning agency that operates in Prince George’s and Montgomery counties.

According to the high court, Maryland law gives the Prince George’s County Planning Board (one of two subcomponents of MNCPPC) broad legal authority to act in a variety of local land-use matters that affect Prince George’s County, including approval of subdivisions, assignment of street names and numbers, preparation of comprehensive plans, and review of development proposals.

The authority of the Prince George’s County Council (known as the “District Council” when it acts in a land use capacity) is more discretely defined under state law, but still quite significant, according to the court. For instance, in addition to appointing the members of the Planning Board, the council possesses the legislative authority to approve and amend the county’s zoning ordinance and zoning map, including any rezoning of land in the county. The council must also approve and amend the comprehensive plans that are initially drafted by the Planning Board.

Nevertheless, the council’s authority over individual development plans and projects has been significantly curtailed by this recent decision.

The Basic Holding: The County Council Cannot Second-Guess the Planning Board

The decision significantly reduces the amount of political influence that the Prince George’s County Council can exert over developers and individual development projects. Traditionally, the council has liberally used its discretionary authority to “call up” a case decided by the Planning Board for further review, even when the developer and opposing parties of record choose not to challenge the Planning Board’s decision.

In those discretionary “call-up” reviews, and in any appeals of Planning Board decisions initiated by the parties, the Prince George’s County Council always purported to exercise “original jurisdiction,” meaning that it could choose to ignore the Planning Board’s reasoning and come to a different decision based on the evidence developed during the Planning Board hearing.

The Court of Appeals, in upholding two lower court decisions, determined that the Prince George’s County Council had misinterpreted the scope of its authority in these types of second-tier administrative reviews.

The court said the council was not authorized to exercise original jurisdiction when reviewing Planning Board decisions, whether on an appeal initiated by the parties or in a discretionary “call-up” review. Rather, similar to the judiciary, the council could only exercise “appellate jurisdiction” in these matters—which means that it could overturn the Planning Board’s determinations only if they were not supported by evidence, or if they were legally erroneous.

In other words, the council could not substitute its own judgment for that of the Planning Board, even if the evidence would allow for both results.

Notably, unlike Prince George’s, the Montgomery County Council does not have a second-tier administrative review process for individual development review applications decided by the Montgomery Planning Board. Instead, all such disputes are resolved directly by the courts.

How We Got Here: An Epic Battle to Build a CVS

Photo by JeepersMedia on Flickr
This lawsuit arose out of a nearly 10-year effort to build a retail center with a CVS pharmacy on a 4-acre parcel of land known as the Edwards Property, located in Adelphi, Maryland. The Court of Appeals described the ensuing struggle as “a battle of almost epic proportions” waged by the various litigants.

In 2004, the property owner applied to the District Council for a rezoning of the Edwards Property from Rural-Residential (R-R) to Local Activity Center (LAC), a mixed-use floating zone that allowed for small-scale retail development. The owner included the required Basic Plan setting forth a general description of future land uses on the property. The council approved the rezoning request, subject to a list of conditions which were included in the ordinance approving the rezoning.

In 2011, Zimmer Development Company submitted simultaneous applications for a Comprehensive Design Plan (CDP) and a Specific Design Plan (SDP) to the Planning Board for review. These plans set forth in more concrete detail the developer’s plans for developing the Edwards Property. MNCPPC staff reviewed and recommended approval of Zimmer’s plans, and after a public evidentiary hearing, the Planning Board approved the plans with a list of conditions, finding that the applications met the requirements of the LAC zone approved by the council.

Although no one appealed the Planning Board’s decision, the council nevertheless “called up” the decision for review. After hearing oral arguments, the council remanded the decision to the Planning Board for reconsideration of three specific issues regarding whether Zimmer needed to provide additional mitigation to lessen the impact of the proposed retail center on the surrounding community. The Planning Board held another hearing in 2012 and essentially reapproved Zimmer’s application on similar conditions, making specific findings in response to the three areas of concern noted by the council.

As it did with the first Planning Board decision, the council “called up” the Planning Board’s post-remand decision, even though nobody had appealed it. This time, the council unanimously voted to disapprove Zimmer's application after the council member in whose district the Edwards Property lay spoke against it.

The council’s unanimous denial of the development project is an example of another well-known and much-derided practice called “council courtesy,” whereby council members effectively exercise unilateral veto power over development projects in their districts, regardless of the merits of the proposal.

The council's resolution listed 14 reasons for its denial of Zimmer's development application, including failure to comply with various conditions of the original LAC zone. None of those reasons related to the three issues the council first complained of in its original "call-up" review and remand. Zimmer's appeal of the council's denial in the courts ultimately resulted in the high court decision earlier this month.

The case is County Council of Prince George’s County v. Zimmer Development Co., No. 64, Sept. Term, 2014 (Md. Aug. 20, 2015).


  1. Follow the money. Sounds to me like somebody wanted more cash out of the developer, and didn't get it.

  2. so were is the community input?

    1. The community still has a right to present evidence at the Planning Board hearing, and they can still appeal to the county council. It's just that the basis for the appeal has to be tied to some legal defect in the development proposal.

    2. As an example, Walmart wants to put a superstore in the Duval Shopping center in Glendale. The planning board approved it, despite community opposition, went to the council, sent back to the planning board who approved it a second time stating that they base their decision only by whether the project fits the zoning criteria , which the say it does. It is currently back in the hands of the council, however this ruling makes it sound like its a done deal. So unless the planning board was not being " truthful" in its ruling, the community has very limited input,. It seems the council should have ultimate power to decide, which is why I agree the council needs to be restructured with at large members.

    3. Right; the PB's decision has to be based on whether the proposed project meets the applicable zoning criteria. It can't block a project simply because there's community opposition to it. IMO, the real solution, if the community opposes development there, is to persuade the council not to zone so many areas for high density development. The council still controls the zoning power. (I agree w/ you, BTW, on the need for at-large council members.)

  3. Interesting post. I Have Been wondering about this issue, so thanks for posting. Pretty cool post.It 's really very nice and Useful post.Thanks
    Michelle Carlotti MD