New Law Obliterates Use Restrictions in Prince George’s Overlay Zones

Council Chair Mel Franklin

The Prince George’s County Council snuck through a major zoning amendment late last year that will essentially nullify otherwise applicable use restrictions in transit and development district overlay zones. This move, which may well violate state law, will allow developers almost free reign to build anything they want on their properties, with only the barest of notice to the public.

The bill, CB-101-2013, was sponsored by District 9 Councilmember Mel Franklin, former chair of the Planning, Zoning, and Economic Development (PZED) Committee and current Council chair. Council members Derrick Leon Davis (District 6), Karen Toles (District 7), and Ingrid Turner (District 4) co-sponsored the bill.

Franklin hurriedly pushed his bill through council: Repeating a trick that he unsuccessfully tried at the end of the 2012 session, Franklin fast-tracked this bill so it could avoid the ordinary scrutiny that other zoning bills receive. He “introduced” CB-101-2013 on October 22, one week after the last day for introducing regular zoning bills. “Introduction” is normally the second step of a three-step legislative process. By skipping the first step of “presenting” the bill, Franklin was able to bypass the usual referral to and hearing before the PZED Committee that he chaired at that time. Then, after a faster-than-usual public notice period, the full council voted on the motion on November 19.

No one—including the sponsors—spoke for or against the bill during the November 19 meeting and “public hearing” that preceded the vote. According to the video footage from the meeting, District 3 councilmember Eric Olson seemed genuinely confused as to what bill he was even voting on. He tried to get some clarity from his fellow council members, but wasn’t successful. Council Vice-Chair Obie Patterson (District 8) literally chuckled as he asked the Council Clerk whether there were any persons signed up to speak on the bill. The bill passed unanimously on a 7-0 vote, with Council chair Andrea Harrison (District 5) and Councilmember Mary Lehman (District 1) not present.

What the law does: CB-101-2013 changes the way that use restrictions operate in Transit District Overlay Zones (TDOZs) and Development District Overlay Zones (DDOZs). It allows planners to include uses that are otherwise prohibited in an underlying zone in the applicable Transit District Development Plan or in the applicable Development District Standards. If the planners do not include the additional uses at the time the plan is adopted, the property owner can apply to have them included as part of the detailed site plan application for his or her individual property.

Thus, for example, an automobile repair shop, pawnshop, check cashing establishment, liquor store, or fast food restaurant that otherwise would not be allowed in a residentially-zoned area might be permissible if that residential area is in a TDOZ or a DDOZ.

Why the law is probably illegal: CB-101-2013 appears to play fast and loose with Maryland law in at least two ways. First, state law recognizes a distinction between planning and zoning. Planning is what happens when Transit District Development Plans or Development District Standards are developed. In Prince George’s County, planning functions are carried out through the Maryland-National Capital Park and Planning Commission (M-NCPPC) and then approved by a resolution of the District Council (a.k.a. County Council).

Zoning, on the other hand, is the responsibility of the District Council and is accomplished through passing of legislation after public notice and hearings. The use restrictions applicable to particular zones are provided in the Zoning Ordinance, which cannot be amended by a planning document. This law allows new uses to be added to a zone simply by including those new uses in a planning document.

Second, Maryland law generally forbids the practice of “spot zoning,” whereby the rules for particular pieces of property are changed primarily for the benefit of the property’s owner. Spot zoning differs from other types of permissible targeted zoning, where a particular piece of property is rezoned to accomplish particular purposes in a comprehensive plan (e.g., allowing a mixed-use building in a single-family residential area to accommodate a corner store, restaurant, or other neighborhood amenity).

Third, this zoning bill was never presented to the County Executive for his approval or veto, in accordance with Section 704 of the County Charter. Like any other county legislation, zoning bills must be approved by the County Executive, and they are subject to being vetoed, or being petitioned for a public referendum. The District Council has, for decades, routinely violated these provisions of the County Charter whenever it passes zoning legislation.

Why the law is bad politics: Even if CB-101-2013 is completely legal, it still reflects horrible politics. Why was the law necessary? Why would the Council rush this law though under cover of darkness, at the last minute? Why would the sponsors not even speak up for this bill at the hearing? What controls are in place to ensure that developer and public official corruption, which has historically been so rampant in this county, doesn’t overtake this process?

Chairman Franklin and the other sponsors of CB-101-2013 should answer these questions, since they sat silent at last year’s hearing. And Prince George’s citizens should take note of the way their elected leaders handle the public’s business.