County Council of Prince George's County v. Brandywine Enterprises, Inc.

• Citation: 711 A.2d 1346,350 Md. 339
• Decision Date: 01 September 1996
• Docket Number: No. 74,74
• Parties: COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council v. BRANDYWINE ENTERPRISES, INC. ,
• Court: Court of Appeals of Maryland

Page 339

350 Md. 339

711 A.2d 1346

COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting

as the District Council v. BRANDYWINE ENTERPRISES, INC.

No. 74, Sept. Term, 1996.

Court of Appeals of Maryland.

June 29, 1998.

Joyce B. Nichols, Principal Counsel, Upper Marlboro, for Petitioner.

Lawrence N. Taub (Michael S. Nagy, Krauser & Taub, on brief), Landover, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI ^*, RAKER and WILNER, JJ.

ELDRIDGE, Judge.

This case arises out of the denial of an application for a special exception for sand and gravel mining in Prince George's County. The zoning hearing examiner approved the application with supporting findings of fact and conclusions of law. On appeal, the County Council of Prince George's County, sitting as a district council, failed to take any action and rendered no findings of fact or conclusions of law. Under a local zoning regulation, as interpreted by the district council, this failure to act operated as a denial of the application. The question before us concerns the legality of the denial under the circumstances.

I.

The Regional District Act, Maryland Code (1957, 1997 Repl.Vol., 1997 Supp.), Art. 28, §§ 1-101 through 8-127, is the exclusive source of zoning authority in those areas of Prince George's County which it covers. Prince George's County v. Maryland-Nat'l Capital Park and Planning Comm'n, 269 Md. 202, 225-236, 306 A.2d 223, 226, cert. denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973). See also Montgomery County v. Revere, 341 Md. 366, 383-384, 671 A.2d 1, 9-10 (1996); Mossburg v. Montgomery County, 329 Md. 494, 502, 620 A.2d 886, 890 (1993). The Regional District Act authorizes the County Council to sit as a district council in zoning matters, and, when it does so, it is acting as an administrative agency, Montgomery County v. Revere, supra, 341 Md. at 384, 671 A.2d at 10. In Prince George's County, pursuant to § 8-110(a) of the Act, a zoning hearing examiner initially decides applications for special exceptions. Section 8-110(a)(3) goes on to provide that "in Prince George's County the district council shall provide for the appeal of decisions of the zoning hearing examiner in special exception and variance cases to the district council."

Turning to the facts of this case, on November 14, 1989, Brandywine Enterprises filed an application for a special exception to conduct a sand and gravel mining operation on 77.64 acres of land in Aquasco in Prince George's County. The land in question, consisting mostly of undeveloped woodlands, is zoned O-S (open space), and is surrounded by farms, undeveloped woodlands, and some single-family residences.

After two reports by the technical staff of the Maryland-National Capital Park and Planning Commission recommending approval, and a resolution by the Planning Board recommending that the application be denied, and after three hearings before the zoning hearing examiner, the hearing examiner granted the special exception subject to certain conditions. The zoning hearing examiner issued two extensive opinions making detailed findings of fact and conclusions of law. ¹ Specifically, the zoning hearing examiner made findings concerning (1) the neighborhood of the subject property, including other special exceptions for surface mining granted in the area, (2) the Master Plan for the area which stated an intent that sand and gravel mining be given priority over other land uses, (3) the effects of the proposed mining operation on traffic in the area, (4) the geology of the site, (5) the effects on air quality, (6) noise, (7) tree conservation, (8) historic sites in the area, and (9) opposition to the application. Based on ten single-spaced pages of factual findings, the zoning hearing examiner concluded as follows:

"The testimony in the instant case is similar to that testimony which is presented in most sand and gravel mining requests. The case is not unique. All such operations have trucks traveling the roads to and from the mining site and utilize excavation equipment on site. All sand and gravel operations use substantially the same amount and type of equipment and have dust and exhausts that become airborne. The applicant has shown that all potential pollutants are within accepted governmental standards--even for particularly sensitive individuals. The complaints made by the opposition show no adverse effect upon the neighborhood--the area has been consistently used for sand and gravel mining operations in the past; the existing traffic situation will not be overburdened by the operation; the hours of operation are limited to weekday business hours; the mining operation will operate within the state regulations for noise and state and national standards regarding dust pollutants; the mining will not affect ground water levels nor pollute the ground water. Any disturbance by this special exception will be routine for sand and gravel mining operations which are permitted by special exception in all residential zones. There is no special characteristic of this neighborhood.... There is nothing different or unique in this case."

An appeal of the zoning hearing examiner's decision to the district council was taken by Raymond Richards, a local resident who had opposed the special exception application before the zoning hearing examiner. After oral argument, the district council was unable to reach a decision on whether the special exception should be granted or denied. The district council then issued a form entitled "Notice of Denial" which stated as follows:

"Pursuant to the provisions of Sec. 27-132(d)(2) of the Zoning Ordinance, a zoning matter shall be considered to have been denied if the district council fails to render a final decision in accordance with the time limit and voting requirements.

"The above-referenced application/appeal appeared on the district council's agenda for final action on May 24, 1994; however, the council was unable to render a final decision.

"You are hereby notified that as of July 1, 1994, said application/appeal is denied by operation of the aforementioned provisions."

This decision contained no findings of fact or conclusions of law supporting the denial.

Brandywine then sought judicial review in the Circuit Court for Prince George's County. Brandywine argued, inter alia, that the inability of the district council to reach a decision did not result in a denial of its special exception application under the local zoning regulation, § 27-132(d)(2) of the Prince George's County Code, but resulted in a denial of the appeal from the zoning hearing examiner's decision. Therefore, Brandywine argued, the application should be deemed approved as decided by the zoning hearing examiner. Brandywine argued alternatively that if the failure of the district council to act resulted in a denial of the application under the local zoning regulation, then that denial was unlawful, arbitrary, capricious and unsupported by substantial evidence, especially in light of the zoning hearing examiner's findings and conclusions supporting approval. The circuit court reversed the district council's decision by order dated May 18, 1995, because of "insufficient evidence in the record to render the council's decision fairly debatable." The circuit court remanded the case to the district council with instructions to approve the application.

The district council then appealed to the Court of Special Appeals which affirmed. Prince George's County v. Brandywine, 109 Md.App. 599, 675 A.2d 585 (1996). The intermediate appellate court determined that the inaction by the district council resulted in a denial of the appeal from the zoning hearing examiner's decision, and not a denial of the special exception application. Thus, the intermediate appellate court concluded, the zoning hearing examiner's decision was sustained by the district council's inaction, resulting in approval of the special exception application. The court reached this result based on its analysis of the Prince George's County zoning regulations as well as the Regional District Act.

The district council then filed a petition for a writ of certiorari which this Court granted. County Council of Prince George's County v. Brandywine, 343 Md. 566, 683 A.2d 178 (1996).

The district council argues in this Court that the Court of Special Appeals incorrectly interpreted § 27-132(d)(2) of the Prince George's County Code and the Regional District Act, in concluding that the inaction by the council resulted in a denial of the special exception appeal and not the special exception application. The local zoning regulation, § 27-132(d)(2), states that

"[i]f the district council fails to render a final decision in accordance with the time limit and voting requirements of this Section, the zoning matter shall be considered to have been denied, unless otherwise specified ... This shall not be applicable to the adoption of text amendments."

The district council maintains that the words "zoning matter" in § 27-132(d)(2) refer to the application for a special exception and not the appeal from the zoning hearing examiner's decision. The district council also argues that such result is mandated by a recent amendment to § 27-132, passed by the district council while this case was pending on appeal, which explicitly states that "the application shall be considered to have been denied." The district council claims that this result is consistent with the Regional District Act and with this Court's decisions under that Act. Consequently, the district council reasons, "[t]he only inquiry ... [is] whether, given the statutory denial, the record makes the statutory denial unreasonable, arbitrary or capricious." According to the district council, a reviewing court must search the record for any evidence which could support a denial. It argues that if this Court locates even a "scintilla of [such] evidence" then ...