Cnty. Council of Prince George's Cnty. v. Zimmer Dev. Co.
Decision Date | 20 August 2015 |
Docket Number | No. 64, Sept. Term, 2014.,64, Sept. Term, 2014. |
Citation | 444 Md. 490,120 A.3d 677 |
Parties | COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, sitting as the District Council v. ZIMMER DEVELOPMENT COMPANY. |
Court | Court of Special Appeals of Maryland |
Rajesh A. Kumar, Principal Counsel (Karen T. Zavakos, Legislative Officer Prince George's County Council, Upper Marlboro, MD; Daniel Karp, Victoria M. Shearer, Karpinski, Colaresi & Karp, P.A., Baltimore, MD), on brief, for Petitioner.
Timothy F. Maloney (Joseph M. Creed, Hina Z. Hussain, Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Respondent.
Argued before: BARBERA, C.J., HARRELL* , BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.
Given the battle of almost epic proportions waged by the respective angels in the present litigation, it seems fitting to describe metaphorically with select readings from the entirely fictional Book of Land Use the forced march this case has made:
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. With apologies particularly to the uninterested, the following introduction to the relevant zoning, planning, and land use regime in play virtually throughout all of Prince George's County (and the Regional District of which it is a part) is useful, if not essential, in order to grasp the context of the facts of this case and our decision to follow. Because the dispute is primarily about the source and terms of the locality's authority to regulate land use, we will explore first the well-spring of that authority.
The modern authority to regulate land use in Maryland may be traced to the colonial Maryland Charter of 1632. The Charter granted to the Lord Proprietor “free, full, and absolute power ... to ordain, make, enact, and ... publish any laws whatsoever....”1 , 2 Maryland Charter of 1632 (modified for modern spelling). Much of this authority was wrested from the Proprietor by the legislative assembly prior to the colony achieving independence from Great Britain. See generally Albert J. Martinez, Jr., The Palatinate Clause of the Maryland Charter, 1632–1776: From Independent Jurisdiction to Independence, 50 Am. J. Legal Hist. 305 (2008–2010). The State of Maryland retains this broad authority to regulate land use (and to delegate powers to the political subdivisions), subject only to the Federal and State constitutions.
Maryland, like its sister states, delegates to local political subdivisions significant authority to regulate land use.3 1 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning
§§ 1:9, 36:2 (4th ed. 2015) [hereinafter Rathkopf's The Law of Zoning and Planning ]; see also Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 528, 814 A.2d 469, 476 (2002). Local governments possess no inherent power to regulate land use, but rather are limited to the powers granted to them by the State. W. Montgomery Cnty. Citizens Ass'n v. Maryland–Nat'l Capital Park & Planning Comm'n, 309 Md. 183, 186, 522 A.2d 1328, 1329 (1987) (citing Crozier v. Co. Comm. of Pr. George's Co., 202 Md. 501, 505–07, 97 A.2d 296 (1953) ); see also Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) () . But cf. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America 171–189 (discussing the objections of Eighteenth Century jurists to state-wide regulation of liquor, while the same jurists had upheld identical local liquor controls without serious scrutiny). Under Maryland's constitutional scheme, a local government's authority to regulate land use may emanate only from enabling legislation of the General Assembly. See Maryland Const. Art. XI; W. Montgomery Cnty. Citizens Ass'n, 309 Md. at 186, 522 A.2d at 1329 (citing Crozier, 202 Md. at 505–07, 97 A.2d 296 ). These powers are exercised, “in the main, through the implementation of what is known as the planning and zoning process.” Rylyns Enterprises, 372 Md. at 531–32, 814 A.2d at 479.
Although related concepts, it is well established in Maryland that zoning and planning are separate functions. Appleton Reg'l Cmty. Alliance v. Cnty. Comm'rs of Cecil Cnty., 404 Md. 92, 102, 945 A.2d 648, 653 (2008) ; Mueller v. People's Counsel for Baltimore Cnty., 177 Md.App. 43, 68, 934 A.2d 974, 989 (2007) (citing Howard Co. v. Dorsey, 292 Md. 351, 361, 438 A.2d 1339 (1982) ; Board of Cnty. Comm'rs of Carroll County v. Stephans, 286 Md. 384, 389, 408 A.2d 1017 (1979) ). Maryland courts have parsed previously the distinction.
Zoning is the more finite term. Rylyns Enterprises, 372 Md. at 528–29, 814 A.2d at 476–77. Generally, “the term ‘zoning’ is ‘used to describe the process of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses designed in some degree to serve the interests of the whole territory affected by the plan.’ ” Maryland Overpak Corp. v. Mayor And City Council Of Baltimore, 395 Md. 16, 48, 909 A.2d 235, 254 (2006) (quoting Stephans, 286 Md. at 388–89, 408 A.2d at 1019 ). The “territorial division of land within a jurisdiction” is “[t]he very essence of zoning....” Mueller, 177 Md.App. at 67–68, 934 A.2d at 988 (citing Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799 (1946) ). Parcels must be put to use in compliance with their zoning, excepting legal non-conforming uses.4
Planning is the broader term. Bd. of Cnty. Comm'rs of Cecil Cnty. v. Gaster, 285 Md. 233, 246, 401 A.2d 666, 672 (1979) ; Mueller, 177 Md.App. at 69, 934 A.2d at 989 ; see also Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477–78 ( ). Planning concerns “the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience....”
Gaster, 285 Md. at 246, 401 A.2d at 672 (quoting 1 E.C. Yokley, Zoning Law and Practice § 1–2 (4th ed. 1978)). Unsurprisingly, the making of “plans” falls clearly under the ambit of “planning.” See Rylyns Enterprises, 372 Md. at 529, 814 A.2d at 477.
Included in the zoning or planning powers is also the authority to enforce zoning and planning actions and decisions. For example, Maryland courts recognize the requirement and issuance of building and occupancy permits as part of the zoning power, Joy v. Anne Arundel Cnty., 52 Md.App. 653, 657–58, 451 A.2d 1237, 1240 (1982), and subdivision controls as an element of the exercise of the planning power, Richmarr Holly Hills, Inc. v. Am. PCS, L.P., 117 Md.App. 607, 645–46, 701 A.2d 879, 898 (1997). Just as the power to zone implies more than establishing classifications and placing them on an official map, so too does the planning power encompass more than merely producing plans and acting on subdivision applications. Because “planning and zoning complement each other and serve certain common objectives,”5 People's Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 689, 929 A.2d 899, 915 (2007) ; accord Richmarr, 117 Md.App. at 650, 701 A.2d at 900 (quoting 4 R. Anderson, American Law of Zoning § 23.20 (2nd ed. 1977)), some implementation and enforcement procedures may have both planning and zoning aims.6
Maryland's first local zoning enabling statute was enacted by the General Assembly in 1927 authorizing zoning in Baltimore City and other municipalities with more than 10,000 inhabitants.7 See 1927 Md. Laws ch. 705. In reliance on this delegation, Baltimore City enacted its first comprehensive zoning ordinance on 30 March 1931.8 See Jack Lewis, Inc. v. Mayor & City Council of Baltimore, 164 Md. 146, 148, 164 A. 220, 221 (1933). Since then, counties (both charter and otherwise) have been delegated also zoning powers. See Maryland Code (2012), Land Use Article §§ 4–102, 22–104 (“LU”).
Local zoning authorities implement their delegated zoning authority through “establishment of original zoning through adoption of a [an original] zoning map, comprehensive rezoning of substantial areas of the jurisdiction through a legislative-type process initiated by the local government, and piecemeal rezoning of individual properties (by application of the owner or contract...
To continue reading
Request your trial-
Md. Reclamation Assocs., Inc. v. Harford Cnty.
...and setback requirements.16 For a thorough description of "Euclidean" zoning, see County Council of Prince George's County v. Zimmer Development Co. , 444 Md. 490, 511, 120 A.3d 677 (2015) (Harrell, J.) and Mayor & Council of Rockville v. Rylyns Enterprises, Inc. , 372 Md. 514, at 534–35, 8......
-
Cnty. Council of Prince George's Cnty. v. Chaney Enters. Ltd., 66, Sept. Term, 2016
...Counties. Md. Code (1957, 2012 Repl. Vol.), § 20–101 of the Land Use Article ("LU"); see also Cty. Council of Prince George's Cty. v. Zimmer Dev. Co. , 444 Md. 490, 521, 120 A.3d 677 (2015).1 Through the RDA, and subject to its provisions, the State granted these counties the authority to r......
-
75-80 Props., L.L.C. v. Rale, Inc.
...made an error of law, or whether the decision is based upon substantial evidence. See, e.g. , Cty. Council of Prince George's Cty. v. Zimmer Dev. Co. , 444 Md. 490, 573–74, 120 A.3d 677 (2015) (citations omitted).The Developers’ argument is not only inconsistent with the plain language of t......
-
Cnty. Council of Prince George's Cnty. v. Palmer Rd. Landfill, Inc.
...a higher level of deference to functions specifically committed to the agency's discretion[.]" Cty. Council of Prince George's Cty. v. Zimmer Dev. Co. , 444 Md. 490, 574, 120 A.3d 677 (2015) (citation omitted). The "arbitrary and capricious" standard is "highly contextual, but generally the......
-
Practicable Alternatives for Wetlands Development Under the Clean Water Act
...whether it is appropriate for the dis-trict in which it plans to locate. County Council of Prince George’s County v. Zimmer Dev. Co., 120 A.3d 677, 691 n.17 (Md. 2015) (“zoning device that provides a middle ground between permitted and prohibited uses”); People’s Counsel for Balt. County v.......