Grant v. Cnty. Council of Prince George's Cnty.

• Decision Date: 20 August 2019
• Docket Number: No. 75 Sept. Term, 2018,75 Sept. Term, 2018
• Parties: Davona GRANT, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY Sitting as the District Council, et al.
• Court: Court of Special Appeals of Maryland

465 Md. 496

214 A.3d 1098

Davona GRANT, et al.

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

No. 75 Sept. Term, 2018

Court of Appeals of Maryland.

August 20, 2019

Argued by G. Macy Nelson (Law Office of G. Macy Nelson, LLC, Towson, MD), on brief, for Petitioners.

Argued by Rajesh A. Kumar, Principal Counsel (Prince George's County Council, Upper Marlboro, MD) and Argued by M. Celeste Bruce (Michael S. Nagy, Rifkin, Weiner, Livingston, LLC, Bethesda, MD), on brief, for Respondents.

Amicus Curiae Brief for Barnabas Road Associates, LLC in Support of Petitioners: Andrew Jay Graham, Esquire, John A. Bourgeois, Esquire, Steven M. Klepper, Esquire, Kramon & Graham, P.A., One South Street, Suite 2600, Baltimore, MD 21202.

Argued before: Barbera, C.J. ^* Greene, McDonald, Watts, Hotten, Getty, Booth, JJ.

Getty

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.

Judge Glenn T. Harrell, Jr.

Cty. Council of Prince George's Cty. v. Zimmer Dev. Co. , 444 Md. 490, 502, 120 A.3d 677 (2015).¹

In the instant appeal we write another chapter to the mysteries of the zoning powers, special exceptions and variances authorized by state and local codes for the Prince George's County Council sitting as the District Council ("District Council"), so aptly described in the past by Judge Glenn T. Harrell, Jr. First, we must determine whether the District Council was authorized to delegate the preparation of its opinion and order to its staff attorney. The second issue is whether the District Council engaged in an "evasive device" intended to circumvent the requirements of the Maryland Open Meetings Act. Third, we must determine whether the District Council exercises original or appellate jurisdiction when it reviews decisions concerning special exceptions and variances from the Zoning Hearing Examiner ("ZHE").

We ultimately hold that the District Council is authorized to delegate to its staff attorney the preparation of a draft decision and that the District Council rightfully exercises original jurisdiction when hearing zoning cases from the ZHE. In addition, we conclude that the Petitioners failed to present sufficient evidence that the District Council violated the Open Meetings Act.

BACKGROUND

In 2014, Wal-Mart Real Estate Business Trust ("Wal-Mart") applied to the Maryland-National Capital Park and Planning Commission ("MNCPPC") for a special exception, variance, and an alternative compliance regarding an existing store located in the Woodyard Crossing Shopping Center in Clinton, Maryland.² The store was originally constructed in 2000 as a 134,241 square foot facility. The special exception and variance applications were made in connection with Wal-Mart's intended goal of expanding the store to include an outdoor garden center and grocery store, and to eliminate the existing automotive servicing facility. The planned expansion would increase the building's square footage by 37,393 square feet.

The impetus that drove Wal-Mart to apply for a special exception stems from the type of commercial zoning in question.

The property is located within an area designated as a Commercial Shopping Center ("CSC") Zone. See PGCC § 27-454 (describing the nature of the CSC Zone).

Although Wal-Mart's current and intended future uses are individually allowed in the CSC Zone, the expansion required a special exception to combine all of these uses on a single parcel within a CSC Zone. See Prince George's County Code ("PGCC") § 27-461(a)-(b) (outlining the permitted uses of land relative to its zoning designation).

Separately, the requirement for Wal-Mart to apply for a variance was not triggered by its plans to expand the existing store but instead was due to subsequent changes in the zoning code. When the store was built in 2000, the relevant portions of the PGCC required a fifty-foot set back from the surrounding properties.³ In 2002, the provision within the PGCC, i.e. PGCC § 27-348.02(a)(5), was amended to require a 100-foot setback. This left Wal-Mart in the awkward position where the existing store did not comply with the setback requirements as amended. Accordingly, the variance application concerns Wal-Mart's existing facility and not its proposed expansion.

In addition, the MNCPPC Planning Director had previously approved multiple alternative compliance applications concerning the Wal-Mart facility that needed to be amended under the new application. For example, in 1999 the Planning Director approved an alternative compliance application made by Wal-Mart that provided an alternative buffering scheme between the Wal-Mart and residentially zoned properties located to its west.⁴

In Maryland, traditional land use powers are generally delegated by the State to local political subdivisions. Zimmer , 444 Md. at 504-05, 120 A.3d 677. For Prince George's County, the State Regional District Act ("RDA"), authorizes the District Council to adopt, amend and administer zoning laws within the county. 2012 Md. Code, Land Use ("LU") § 22-104(a). The definition of "District Council" however, varies depending on the geographical delineations of the area concerned. In situations involving zoning actions entirely within Prince George's County, the County Council of Prince George's County sits as the District Council. LU § 22-101(b).

When acting in its zoning capacity, the District Council acts as an administrative agency. Cty. Council of Prince George's Cty. v. Brandywine Enter., Inc. , 350 Md. 339, 342, 711 A.2d 1346 (1998). The instant appeal concerns a challenge to the decision of the District Council that reversed a decision of the ZHE as described below.

Proceedings Before the Zoning Hearing Examiner (ZHE)

In response to Wal-Mart's application for a special exception and variance, the MNCPPC development review division issued a report ("Staff Report") which recommended that Wal-Mart's special exception and variance application be denied but its alternative compliance request should be approved.⁵ The Prince George's County Planning Board declined to hear the case and instead adopted the Staff Report's recommendation, ⁶ as permitted under PGCC § 27-210, and assigned the case to a ZHE to conduct an evidentiary hearing. The ZHE then held hearings wherein she heard testimony and accepted evidence from those involved. On May 13, 2016, the ZHE issued its decision.

In its decision, the ZHE found the following: (1) that the existing store does not comply with the 100-foot setback requirement; (2) that stormwater runoff from the shopping center in which the Wal-Mart is located floods the neighboring residential communities; (3) that the area is already subject to significant traffic congestion; and (4) that the shopping center in which the Wal-Mart is located draws a greater amount of individuals to the area which, in turn, contributes to an increase in crime throughout the neighboring area. Therefore, the ZHE denied Wal-Mart's application for a special exception and variance. The ZHE's decision was transmitted to the District Council and hand-delivered to Rajesh Kumar, Principal Counsel to the District Council.⁷

Wal-Mart filed exceptions to the ZHE's decision on June 13, 2016 and requested that the District Council hear the case. That same day, the District Council elected, by unanimous vote, to take up the matter and make the final decision concerning Wal-Mart's special exception and variance applications. Two days later, on June 15, the Clerk of the District Council sent notices to all parties involved that the District Council had scheduled oral arguments on July 18. Therefore, all parties on record were provided notice well in advance that the District Council would be hearing the case with oral arguments on July 18.

Prior to the hearing, as noted earlier, Wal-Mart filed written exceptions to the ZHE's decision. In response, Ms. Davona Grant and other citizen protestants (collectively referred to in this opinion as "Grant")⁸ filed a lengthy response in opposition to Wal-Mart's exceptions that included "Proposed Findings of Fact and Conclusions of Law" based upon their position that the ZHE's decision should be affirmed. According to statements made by Mr. Kumar at oral argument, he reviewed the record, Wal-Mart's exceptions, Grant's filings including their proposed findings and other materials submitted to the District Council and began preparing a draft decision in advance of the July 18 hearing.

Proceedings Before the District Council

At the hearing before the District Council on July 18, 2016, testimony was received from citizens and expert witnesses regarding the special exception and variance. Attorneys for both sides discussed the proposed expansion and its impact on traffic, architecture, crime, and other factors. At the end of the hearing, District Council Member Mel Franklin,⁹ motioned to have Mr. Kumar prepare a proposed opinion and order with written findings of fact reversing the ZHE's decision and in support of his motion stated in detail,

This is a challenging case. It is, one, challenging because this is an existing shopping center. The Walmart in question is not in great condition aesthetically. And Clinton, in general, is in— is a, you know, as a community, it has challenges with the quality of its commercial opportunities or commercial options in Clinton. So there is a big need for investment and redevelopment or reinvestment or renovation and all of the like in Clinton in particular. And so and all of those things are important.

Obviously this is the kind of case, because it's before the District Council, like any other District Council case, has to be decided on the law. And it is my belief that this sort of boils down to an existing shopping center that essentially, because of the dynamics of the existing shopping center, it is creating the legal problems with

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