Is Prince George’s going rogue with zoning bills?

Image by Shelly

For many decades, the Prince George’s County Council has deliberately not followed the same procedures when passing zoning legislation as it does when passing other legislation. Nothing in state or county law authorizes the Council to treat zoning bills differently than other bills. Nevertheless, because it has been doing so for so long, virtually no one seems to notice or complain. Perhaps that should change.

The Council’s short-circuited zoning procedures allow it to rush through often hugely consequential or controversial bills relating to land use and development in Maryland’s second-largest county without giving the public fair notice of bill amendments. Those procedures also deprive the County Executive of the right to review and approve or disapprove of zoning legislation. Additionally, by allowing most zoning laws to become effective immediately, rather than waiting 45 days as with other legislation, the Council thwarts the ability of citizens to petition zoning laws to referendum.

In this Trumpian era, where quaint notions like adherence to the rule of law, separation of powers, and checks and balances are being tested almost daily in our federal government, we should also remember to examine how those principles can become frayed at the local level. After all, local laws often impact our daily lives much more than federal laws and policies.

Council's passage of the new zoning code was one recent example

Last year, for example, the Council enacted a comprehensive rewrite of the county’s 70-year-old zoning ordinance. To be sure, the rewrite effort was a massive and worthwhile undertaking, with an unprecedented level of public engagement over many years. Yet, between the formal introduction of the bill on September 25, 2018, and the public hearing when the Council enacted the bill on October 23, 2018 (the last session of the year), there were literally hundreds of pages of substantive amendments to the bill.

Several citizens urged the Council to hold off on final passage of the bill and to hold future hearings once the Council reconvened in 2019, so that the public could gain greater clarity regarding important changes in the bill. Even the bill’s sponsors acknowledged the breakneck speed with which the Council was moving to enact the zoning rewrite.

Following its decades-old custom, the Council did not send the enacted zoning bill to the County Executive for approval. Fortunately, the Council wisely included a delayed effective date provision, which will allow it an opportunity to cure any substantive or procedural defects before implementing the new zoning code.

The county charter governs how local bills become laws

Prince George’s County is a “charter county” under Maryland law, which means its governing authority derives from a specific organizing document adopted by the people of the county. According to Prince George’s Charter, the County Council must hold a public hearing not earlier than 14 days after a councilmember formally introduces a bill. However, if councilmembers substantively amend the bill during that hearing, they must re-notice the bill for another public hearing in the same manner as the originally introduced legislation.

Additionally, the Charter provides for a separately elected County Executive. When the Council passes legislation, it must send the enacted bill to the Executive, who has 10 days to decide whether to sign the bill into law or veto it. If the Executive vetoes the bill, the Council can override the veto by a two-thirds vote.

Ordinarily, a non-emergency bill becomes effective 45 days after the County Executive signs it into law or the Council overrides the Executive’s veto. However, if at least 10,000 voters sign a petition within 45 days of the law’s approval, the law’s effective date is suspended, and the people can vote directly on whether to approve or disapprove of a local law. The referendum election occurs at the next occurring general election, which are in November of every even-numbered year.

The Regional District Act grants Prince George’s authority to enact local zoning laws

The Maryland General Assembly grants counties (and most municipalities) the authority to enact local planning and zoning laws. In Prince George’s and Montgomery counties, a state law known as the Regional District Act (“RDA”) vests planning and zoning power in a bi-county agency known as the Maryland-National Capital Park and Planning Commission. The Commission is composed of five appointees from each county, and each group of five commissioners is known as the “Planning Board” for their respective county. Similarly, the RDA designates each county’s County Council as the “District Council” for their respective county.

The RDA provides that each District Council may “by local law adopt and amend the text of the zoning law for that county,” as well as any accompanying zoning map. It defines “local law” as “an enactment of the legislative body of a local jurisdiction, whether by ordinance, resolution, or otherwise,” and states that the District Council’s lawmaking authority “is not intended to alter in any way the form or legislative mechanism that the applicable enabling authority requires for the local jurisdiction to enact the local law….”

In Prince George's County, enacted bills do not "become law" until the County Executive approves them or the County Council overrides the Executive's veto.

Any zoning law enacted in violation of the charter can be invalidated

So it seems clear that any zoning law that Prince George’s enacts must follow the same procedures as any other local law—right? Well, apparently not.

The Council has previously claimed that a 1973 ruling from Maryland’s high court means that it does not have to follow the same procedures when passing zoning laws. That case held that no provision of a local charter could override the Regional District Act. However, that case does not apply here, because the Charter is not seeking to override the RDA. Rather, the Charter simply defines how to enact local laws in Prince George’s County.

Generally, if a legislative body does something that it is not authorized to do, the action is void from the outset and, therefore, of no legal effect. However, the timelines for challenging any particular legislative enactment may be short. Typically, an aggrieved party must file a judicial review action in the Circuit Court within 30 days of the Council’s final action. There may be ways to challenge the invalid law later, but the Council may try to assert that the legal challenge is too late.

Ultimately, though, the Prince George’s County Council should not wait for a legal challenge to modify its procedures. Instead, it should just follow the requirements of the County Charter when it passes zoning legislation.