Cnty. Council of Prince George's Cnty. v. Zimmer Dev. Co., 64, Sept. Term, 2014.

• Court: Court of Special Appeals of Maryland
• Writing for the Court: HARRELL, J.
• 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.
• Docket Number: No. 64, Sept. Term, 2014.,64, Sept. Term, 2014.
• Decision Date: 20 August 2015

444 Md. 490
120 A.3d 677

COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, sitting as the District Council
v.
ZIMMER DEVELOPMENT COMPANY.

No. 64, Sept. Term, 2014.

Court of Appeals of Maryland.

Filed Aug. 20, 2015.

120 A.3d 683

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.

Opinion

HARRELL, J.

444 Md. 501

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:

Chapter MMIV (2004):

In the beginning, a landowner applied to reclassify to a floating zone a certain property in Adelphi, in the county of Prince George's, in the State of Maryland. The District Hegemon looked upon the application and saw that it was good.

Chapters MMX—MMXII (2010–2012)

Time passed. The landowner sought at last approval to complete that which had been initiated lo' those many years ago. Although the landowner's latest initiatives were deemed acceptable by the County planning satraps, the District Hegemon, being displeased with these offerings, spurned them as unworthy.

The landowner, feeling much afflicted, brought its plight before a local Sanhedrin who, finding uncharitable the District Hegemon's most recent treatment of the landowner's offerings, decreed that the offerings were pleasing indeed unto the eyes of the law.

Chapter MMXV (2015)

The displeased District Hegemon brings its case now before the Great Sanhedrin, which, having heard the piteous wailing and cries from all concerned, shall now pass final judgment.

444 Md. 502

I. The Relevant Land Use Regime in Prince George's County: A Mind–Numbing Primer RR

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

120 A.3d 684

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

444 Md. 503

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.

120 A.3d 685

A. Delegation of Land Use Powers to Local Governments.

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

444 Md. 504

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) (“Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions”). 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.

444 Md. 505

B. Zoning and Planning Distinguished

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

120 A.3d 686

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 (stating that zoning is the more finite term). 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....”

444 Md. 506

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,...