Colao v. County Council of Prince George's County

• Decision Date: 01 September 1995
• Docket Number: No. 1227,1227
• Parties: Charles F. COLAO, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council, et al. ,
• Court: Court of Special Appeals of Maryland

Page 431

109 Md.App. 431

675 A.2d 148

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

No. 1227, Sept. Term, 1995.

Court of Special Appeals of Maryland.

April 4, 1996.

Reconsideration Denied May 28, 1996.

Thomas E. Dernoga (Skullney, Gray & Dernoga on the brief), Laurel, for appellants

Joyce B. Nichols, Upper Marlboro, for appellee, District Council.

Ellis J. Koch, Potomac (William E. Knight, Upper Marlboro, on the brief), for appellee, Northpeak-Racetrack.

Argued before BISHOP, WENNER, and DAVIS, JJ.

DAVIS, Judge.

This is an appeal from an order of the Circuit Court for Prince George's County affirming decisions of the County Council for Prince George's County, sitting as the District Council (Council), that, in separately enacted ordinances, approved two rezoning applications--A-9900 and A-9901. Six questions are presented on this appeal, the first of which is a threshold jurisdictional question. We restate (and rearrange the order of) these questions as follows:

I. Did the circuit court err in entertaining the appeal of the Council's approval of rezoning application A-9900?

II. Did the circuit court err in determining that the Council sufficiently articulated its findings of fact and conclusions of law?

III. Did the circuit court err in determining that the Council's approvals of the rezoning applications were supported by substantial evidence?

IV. Did the circuit court err in denying appellants' motion to supplement the record with a transcript of the oral argument before the Council?

V. Did the circuit court err in determining that the Council was not required to remand the case for failure of the administrative file to contain certain documents?

VI. Did the circuit court err in determining that the Council was not required to remand the case upon the amendment of rezoning application A-9900?

FACTS

This case involves two separate rezoning applications, which the Council ultimately approved through enactment of separate zoning ordinances. In October 1993, appellee Northpeak-Racetrack-- Northpeak asserts that its rezoning requests are in conformity with the recommendations of the master plan. The applications recite that the master plan recommends that R-A zoning be retained for the northern parcel and that the southern parcel be rezoned to R-S zoning for development at a density of 1.6 to 2.6 dwelling units per acre. Northpeak desired to rezone the northern parcel to the R-S zone, and then--rather than develop the northern parcel--transfer the dwelling unit per-acre density from the northern parcel to the southern parcel, thereby increasing the maximum number of units in the southern parcel as set forth in the master plan. In exchange for this density transfer, Northpeak offered the undeveloped and newly rezoned R-S northern parcel for use as a park. According to Northpeak, this parkland dedication is consistent with the master plan's suggestion that a thirty-acre park be located in the vicinity of the northern parcel, and that the density transfer is consistent with the master plan's goal for increasing housing opportunities in the area.

"Racetrack Limited Partnership (Northpeak) filed two applications to rezone certain parcels of land situated northwest of Bowie, Maryland in Prince George's County, in furtherance of its plan to build a townhouse development and retail center in the area. By the first rezoning application (A-9900), Northpeak requested that two parcels of land be rezoned from R-R (Rural-Residential) and R-A (Rural-Agricultural) zoning to R-S (Residential-Suburban) zoning. These two parcels--the northern parcel and the southern parcel--are separated by Route 197 and total approximately 95.84 acres. By the second rezoning application (A-9901), appellee Northpeak requested that four acres of land located adjacent to the southern parcel be rezoned from R-R zoning to L-A-C (Local Activity Center) zoning for a retail center. The subject property is located within the approved Bowie-Collington-Mitchellville and Vicinity Master Plan (master plan). Appellants oppose each of Northpeak's rezoning applications. Appellants are Charles F. Colao, Alexander Senecal, Nancy Engelman, and the Berwyn Rod & Gun Club, Inc.

Northpeak also proposed a convenience center for the four-acre parcel that would span 15,000 to 25,000 square feet of gross floor area. This, according to Northpeak, is consistent with the recommendations of the master plan (which suggests that a developer could submit a rezoning application to construct a convenience center occupying a maximum of 15,000 square feet of gross floor area). Northpeak's market study purportedly justifies the floor area increase.

Under the Prince George's County Code, the R-S zone and the L-A-C zone are "Comprehensive Design Zones." See PRINCE GEORGE'S COUNTY CODE §§ 27-179 to 27-198 (1991). Accordingly, Northpeak's rezoning applications are considered comprehensive design zone applications. As a result, many different public offices in Prince George's County held hearings, reviewed each rezoning application, and issued recommendations thereon. ¹ The Bowie City Council, after a series of public hearings, issued a letter dated March 1, 1994 to John W. Rhoads, the chairman of the Prince George's County Planning Board, reflecting the Bowie City Council's recommendations. ² The letter stated that the Bowie City Council voted to recommend that A-9900 be denied because the northern parcel was included in the R-S rezoning request.

According to the letter, however, the Bowie City Council voted to approve A-9900 for R-S rezoning of the southern tract at a density of 1.6 to 2.6 units per acre, subject to five conditions, provided that the northern parcel was excluded from the R-S rezoning request. With respect to A-9901, the Bowie City Council recommended that the L-A-C rezoning be granted subject to a 15,000 square foot limitation, with residential density permitted as set forth in the master plan.

The Technical Staff of the Maryland-National Capital Park and Planning Commission (MNCPPC) issued a report dated February 1, 1994 to the Prince George's County Planning Board of the MNCPPC and to the Council, recommending approval of the rezoning and of the dwelling unit density transfer from the northern to the southern parcel for a maximum 200 dwelling units. The Technical Staff's approval of A-9900 was subject to eleven conditions dealing with such matters as traffic and environmental issues. The Technical Staff also recommended approval of A-9901 for 15,000 square feet of retail use on two acres and residential use on the remaining two acres with a maximum of twenty dwelling units. In addition, the Prince George's County Planning Board of the MNCPPC conducted a hearing on March 10, 1994 and issued two resolutions (one for A-9900 and one for A-9901) four days later, recommending to the Council approval of the applications based on the Technical Staff's analysis.

The Zoning Hearing Examiner (ZHE) of Prince George's County conducted hearings on March 2, 17, and 21, 1994. On March 29, 1994, the ZHE issued a written decision regarding applications A-9900 and A-9901. Therein, with respect to A-9900, the ZHE recommended to the Council denial of the northern parcel rezoning request and approval of R-S rezoning for the southern parcel (with a dwelling unit density of 1.6 to 2.6 per acre), without a dwelling unit density transfer. With respect to A-9901, the ZHE recommended approval of L-A-C rezoning for the four-acre parcel with 15,000 square feet of commercial floor space and with sixteen to twenty-four units of residential use. Other facts pertaining to the ZHE hearing and decision will be explained more fully below.

The Council conducted oral argument on May 18, 1994. On June 22, 1994, the Council issued notices that it had enacted a series of zoning ordinances disposing of Northpeak's rezoning applications. In the ordinances pertaining to A-9900, the Council adopted the recommendations of the ZHE, subject to various conditions and considerations regarding issues of traffic, environment, and topography. Similarly, in separately enacted ordinances pertaining to A-9901, the Council adopted the ZHE's recommendations, subject to certain conditions concerning, among other things, safety and transportation.

In response to the Council's approvals, appellants filed a Petition for Review on July 22, 1994 with the circuit court. Below the caption, in the text of the petition, the petition requests judicial review of the Council's approval of application A-9901. Appellants' petition, however, does not state that appellants are also appealing from the Council's rezoning approval of A-9900, nor does it refer to that rezoning approval. Appellants assert that they intended to appeal from the approval of A-9901 and A-9900 but, because of a clerical error, they inadvertently failed to refer to A-9900.

On August 1, 1994, in response to appellants' petition for judicial review, the Council issued a "Notice of Filing of Petition for Judicial Review" to all parties to the proceeding pursuant to MARYLAND RULE 7-202(d). This notice announced that appellants had filed a petition for judicial review of the Council's approval of application A-9901, and that any party wishing to oppose the petition must file a response within thirty days after the date of the mailing of the notice. No mention is made of A-9900.

On October 18, 1994, nearly ninety days after the filing of the petition for judicial review, appellants filed with the circuit court a "Motion to Correct Petition and Record" (motion to correct) to amend the petition to reflect that appellants were also appealing from the approval of A-9900. Therein, appellants argued that the failure to refer to A-9900 was a clerical error, that they fully intended to appeal from the approval of Also on October 18, 1994, appellants filed a "Motion to Include...