Colao v. County Council of Prince George's County

• Court: Maryland Supreme Court
• Writing for the Court: Argued before BELL; WILNER
• Citation: Colao v. County Council of Prince George's County, 697 A.2d 96, 346 Md. 342 (Md. 1996)
• Decision Date: 01 September 1996
• Docket Number: No. 82,82
• Parties: Charles F. COLAO, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Sitting as the District Council, et al. ,

Page 342

346 Md. 342

697 A.2d 96

Charles F. COLAO, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Sitting as the District Council, et al.

No. 82, Sept. Term, 1996.

Court of Appeals of Maryland.

July 25, 1997.

Thomas E. Dernoga (Gray & Dernoga, on brief), Highland, for Petitioners.

Ellis J. Koch, Rockville; Joyce B. Nichols, Principal Counsel to District Counsel, Prince George's County Council (William E. Knight, Upper Marlboro, all on brief), for Respondents.

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

WILNER, Judge.

This appeal arises from two zoning decisions made by the Prince George's County Council, sitting as a District Council pursuant to Maryland Code (1957, 1997 Repl.Vol.), § 8-101(a) of Article 28. Two procedural issues are before us: (1) whether the District Council was obliged to remand the two matters for a new hearing before the Zoning Hearing Examiner, rather than acting upon them, because a copy of the applicant's Basic Plan was not in the Examiner's file prior to the hearing that he had held on the matters, as required by § 27-187 of the Prince George's County Code, and (2) whether appellants filed a timely petition for judicial review with respect to one of the two matters. The Court of Special Appeals answered both questions in the negative (Colao v. Prince George's County, 109 Md.App. 431, 675 A.2d 148 (1996)), as shall we.

I. PROCEDURAL REQUIREMENTS AND HISTORY

A. The Applications

On October 26, 1993, Northpeak-Race Track Limited Partnership (Northpeak) filed with the District Council two applications for zoning map amendments. Both applications were in furtherance of Northpeak's desire to build a townhouse development and retail center on approximately 99 acres of land at the intersection of Route 197 and Race Track Road in the vicinity of Bowie, Maryland. A 30-acre tract, lying in the northwest quadrant of the intersection, was then zoned R-A (Rural Agricultural); the other 69 acres, lying in the southeast quadrant, were in R-R (Rural Residential) and R-A zones.

Application No. A-9900 concerned the townhouse development and sought R-S (Residential-Suburban) zoning for the 30-acre tract in the northwest quadrant and 65 of the 69 acres in the southeast quadrant. Northpeak proposed, initially, to build 235 single-family attached homes on the 65-acre parcel and to leave the 30-acre parcel undeveloped. Application No. A-9901 dealt with the proposed retail center; it sought to have a four-acre parcel located within the 69-acre tract rezoned from R-R to L-A-C (Local Activity Center). The initial proposal was to build 20 single-family attached homes and 25,000 square feet of retail commercial space in the L-A-C area. We were informed that a separate application was required for that parcel because a different zoning classification was requested (L-A-C as opposed to R-S). Throughout the review process, however, the two applications were considered together; to some extent, they were based on the same supporting documents.

B. Procedural Process and Requirements

Under §§ 27-494 and 27-511 of the Prince George's County Code, R-S and L-A-C zones are regarded as "comprehensive design zones." The application and review process with respect to such zones is governed by §§ 27-179 through 27-198 of the Code. Section 27-179 prescribes what must be included in and with an application. Among other things, the application must include a copy of a Basic Plan setting forth the physical characteristics of the property, the general types of land uses proposed, the range of dwelling unit densities and commercial and industrial intensities proposed, a general vehicular and pedestrian circulation pattern and the general location of major access points, areas not proposed to be developed with residential, commercial, or industrial uses, the relationship of proposed development on the property to existing and planned development on surrounding properties, a forest stand delineation, and, when appropriate, the general location of proposed moderately priced dwelling units. An application for L-A-C zoning must also include a construction schedule. § 27-179(c)(1)(D) & (E).

There is no dispute, in this Court, that the two applications filed by Northpeak complied in every material respect with the requirements of § 27-179. In particular, they included a reproducible copy of the Basic Plan. ¹

Upon the filing of an application, the Zoning Hearing Examiner sets a date for a public hearing. § 27-185. Various notices are then given to interested persons and agencies. The property is posted at least 60 days prior to the scheduled hearing ( § 27-186(b)); the Zoning Hearing Examiner notifies the applicant, all persons of record, any municipality located within one mile of any part of the property, and the Planning Board of the hearing date ( § 27-186(a)(1)); within 30 days after an application is filed, the Planning Board sends, by certified mail, a letter "regarding the pending application," containing, among other things, advice on where to obtain additional information, to all adjoining property owners ( § 27-186(c));² and, within 10 days after the end of each month, the Planning Board makes available to the public a list of all map amendment applications filed during the month ( § 27-186(d)). There is no dispute in this Court that all of the notices required by § 27-186 were given in accordance with the ordinance.

In addition to receiving comments from outside persons and agencies, the Planning Board receives a report on each application from its Technical Staff. § 27-189. Prior to preparing its report, the Technical Staff sends a copy of the proposal to all public agencies and municipalities with operational or planning responsibility over the property. A copy of the Technical Staff Report, which may be written only after responses from the public agencies and municipalities have been received, is sent to all persons of record and all other persons who request a copy. It must contain, among other things, the Technical Staff's recommendation.

Before any decision by the Zoning Hearing Examiner, the Planning Board holds its own hearing on the application. ³ § 27-191. The hearing, which is open to the public, may not be held until at least 30 days after the Technical Staff Report is received, and all persons who made a written request for the Technical Staff Report are notified of the hearing date. Prior to the hearing, the applicant and any other person may submit written responses to the Technical Staff Report. At the conclusion of the hearing, the Planning Board, by resolution adopted at a public meeting, makes its recommendation on the application. § 27-192. A copy of the resolution is sent to the District Council and to all persons of record.

The Zoning Hearing Examiner conducts a hearing in accordance with the procedures set forth in §§ 27-127 and 27-129, following which he prepares, serves on all persons of record, and files with the District Council a written report and recommended disposition. Any person of record may file exceptions to the Examiner's decision and a request for oral argument before the District Council. § 27-131(a). If a request for oral argument is made, it must be granted. § 27-131(c). Although no new evidence may be presented at the District Council hearing, the Council may remand a case to the Zoning Hearing Examiner "for the purpose of reopening the record to receive and evaluate additional evidence." § 27-131(f). It may also remand a case "for clarification or for additional testimony" and may remand a zoning map amendment case for a de novo hearing "where there is good cause and the applicant does not object." § 27-133(a)(1). Hearing procedures for the Council are set forth in § 27-132.

If the application is for a comprehensive design zone, it may be approved only if it conforms in certain specific respects to the Master Plan. See §§ 27-195(b)(1)(A) and 27-132(c)(1)(C). Among other things and in relevant part, the applicant must satisfy the District Council that (1) the Basic Plan conforms to the specific recommendations of the General Plan map, the Area Master Plan map, or certain principles and guidelines of the plan text, (2) transportation facilities will be adequate to carry anticipated traffic and the proposed uses will not generate traffic that would lower the level of service anticipated by the land use and circulation systems shown on the approved General or Area Master Plans, and (3) environmental relationships reflect compatibility between the proposed general land use types and surrounding land uses. § 27-195(b)(1). In approving a zoning map amendment, the District Council may impose reasonable requirements and safeguards in the form of conditions. § 27-195(c).

C. Procedural History

One of the issues, with particular reference to Application No. A-9900, was whether the proposed rezoning was in conformance with the regional Master Plan. That plan recommended that R-A zoning be retained for the 30-acre parcel in the northwest quadrant but that the 69-acre southeast parcel be rezoned to R-S for development at a density of 1.6 to 2.6 dwelling units per acre. As we observed, Northpeak proposed to dedicate the 30-acre parcel as a park and leave it undeveloped but to transfer from it to the southeastern tract the higher dwelling density allowed by the R-S zone. That, it contended, would allow development of the southeastern tract to the allowable maximum of 2.6 units per acre and yet preserve the 30-acre parcel as parkland.

Because the Zoning Hearing Examiner is required to consider the recommendation of the Planning Board and of any municipalities having operational responsibilities with respect to the property, one might expect that, in the normal course, the hearing before the Examiner would await the conclusion of proceedings by those entities. In this case, due to a time constraint to which we shall...