Prince George's Cnty. Council v. Concerned Citizens of Prince George's Cnty.
| Docket Number | 23-2022 |
| Decision Date | 22 August 2023 |
| Parties | PRINCE GEORGE'S COUNTY COUNCIL, et al. v. CONCERNED CITIZENS OF PRINCE GEORGE'S COUNTY, et al. |
| Court | Maryland Court of Appeals |
Argued: February 3, 2023
Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Getty, Joseph M. (Senior Justice, Specially Assigned) JJ.
This zoning dispute involves the interplay between the public's interest in the future of a small, struggling private airport in Prince George's County and the financial interests of its owner.
The airport lies in an area that was once rural and is now largely suburban. Over the past forty years or so, a few dozen small planes have crashed during takeoff or landing. Some of those planes have crashed into nearby residences or the highway that runs next to the airport, sometimes fatally. Since at least the 1990s, the county has identified the airport as a public safety risk.
The airport has experienced financial difficulties in recent years. As a result, its owners have said they will increase operations or, alternatively, redevelop the site for non-airport use. The county's zoning ordinance has historically limited development of housing at the airport to low-density, single-family detached housing. To incentivize redevelopment of the airport, the County Council, over the protests of some constituents, amended the text of the zoning ordinance to allow the airport to develop higher-density housing, including townhouses.
Those constituents challenged the legality of that ordinance in court, claiming that it violated Maryland's uniformity requirement, which requires zoning laws to "be uniform for each class or kind of development throughout a district or zone." Md. Code Ann., Land Use ("LU") § 22-201(b)(2)(i) (2012, 2022 Supp.).[1] They argued that the ordinance, though facially neutral, violates uniformity because it is tailored so narrowly as to afford favorable development opportunities, in effect, to only the airport property. The circuit court rejected their challenge, but the Appellate Court of Maryland[2] reversed, finding that the ordinance violated the uniformity requirement.
We find that, notwithstanding the financial benefits the airport's owners and developers may enjoy, the ordinance was adopted to further a valid public purpose and does not discriminate against similarly situated properties; therefore, it should have survived the uniformity challenge. Accordingly, we reverse the judgment of the Appellate Court.
In November 2019, the Prince George's County Council sitting as the District Council (the "Council"),[3] enacted Council Bill 17-2019 ("CB-17" or "Council Bill 17"), a text amendment to the Prince George's County Code, to encourage the decommissioning of the Freeway airport by allowing higher-density housing. Under the county zoning ordinance then in effect (the "Old Zoning Ordinance" or "PGCC § 27-"), the airport was zoned as Residential-Agricultural ("R-A"). The R-A Zone prohibited single-family attached residences ("townhouses") and imposed a maximum development density of 0.5 dwelling units per acre. PGCC §§ 27-441(b), 27-442(h).
Council Bill 17, however, exempts qualifying R-A Zone properties, namely the Freeway airport, from those limitations, allowing townhouses and a development density of up to 4.5 dwelling units per acre. PGCC § 27-441(b) n.136.[4] Specifically, CB-17 allows for higher-density housing[5] if located on an assemblage of adjacent properties that: (1) is 100-150 acres or was formerly used as an airport; (2) is entirely within one mile of a municipal boundary; (3) is entirely within 2,500 feet of land used for the generation, transmission, or distribution of electricity; and (4) has frontage on a freeway. Id.
The Freeway airport is a privately-owned general aviation airport on a 129-acre property at 3900 Church Road in Bowie. The Rodenhauser family has owned and operated the airport since it began as an airfield in the 1930s, when the area was rural. In 1947, the airport opened for general aviation and has operated as an airport ever since. In 1968, the property was included in the R-A Zone. Because the R-A Zone does not allow for airports,[6]the property obtained legal nonconforming use status.[7] Today, the airport is largely surrounded by suburban residential communities, developed mostly in the last two decades, containing hundreds, if not thousands, of homes. Waterford Estates is directly west of the airport, containing hundreds of single-family detached homes; Fairwood lies to the north and has approximately 1,700 residences, including townhouses; Fairview Manor sits to the east; and Woodmore Highlands is to the southeast. The Woodmore golf course community, directly west of Waterford Estates and approximately one-half mile from the Freeway airport, contains 259 townhouses. That community was developed under a 2008 amendment to the zoning ordinance allowing townhouses on certain R-A Zone properties, up to a density of 0.5 dwelling units per acre. PGCC § 27-444(b)(6).
Route 50, an interstate highway with four lanes in each direction, abuts the north end of the airport's only runway. Along the property's western edge, high-voltage electric transmission lines installed in the 1960s run approximately one thousand feet from, and parallel to, the runway. The transmission lines, in addition to presenting aviation obstacles, reduce the space available for emergency landings. The eastern boundary of the property runs along Church Road, a county road with one lane in each direction.
In the mid-1990s, the Small Airports Advisory Committee-which included Councilmember Derrick Leon Davis, the sponsor of CB-17-studied the various airports in Prince George's County in an effort to promote safe development near the Freeway airport. The committee was especially concerned with the risk of, and damage from, planes crashing during takeoff and landing. Subsequent development of the Fairwood community, located just north of the airport, incorporated lessons from that study. Specifically, the Council enacted regulations limiting development density in areas where planes were more likely to crash.
Since 1983, 32 accidents have been documented at the Freeway airport, resulting in 10 fatalities. In some cases, planes have landed directly on or close to Route 50, colliding with traffic in at least one instance. On September 12, 2019, while CB-17 was under consideration by the Council, a plane from the airport crashed into Route 50, striking a car and injuring multiple people. At least twice, planes have crashed into or very close to homes, sometimes fatally.
Councilmember Davis introduced CB-17 on April 30, 2019, to amend the Table of Uses under the Old Zoning Ordinance for the stated purpose "of permitting Townhouse and One-family detached dwelling uses in the R-A (Residential Agricultural) Zones of Prince George's County, under certain circumstances." CNTY. COUNCIL OF PRINCE GEORGE'S CNTY., MD., SITTING AS THE DIST. COUNCIL, CB-17-2019, 2019 Leg. (2019).
The first draft of the bill would have permitted development of townhouses up to 6.0 dwelling units per acre and single-family detached homes up to 6.7 dwelling units per acre in the R-A Zone if the assemblage of land: (1) was no more than 140 acres; (2) was formerly used, entirely or in part, as an airport; (3) was located within one mile of a municipal boundary; and (4) had frontage on a public right-of way classified as an arterial or higher by the State. Despite the facially neutral language of the bill, CB-17 specifically sought to incentivize the decommissioning of the Freeway airport.
Two days later, the Prince George's County Planning Board (the "Planning Board") held a hearing on the bill. The Planning Board is a five-member body responsible for local planning, subdivision, and zoning. LU § 20-202(a)(i). Proposed amendments to the zoning ordinance must be sent to the Planning Board for comments and recommendations. PGCC § 27-217. At the hearing, when a board member asked Robert Antonetti, counsel for Freeway Airport, LLC,[8] why Freeway Airport did not instead apply to rezone the property, Antonetti said he expected a text amendment would be a faster and more direct process.
The same day, the Planning Board issued a report to the Council opposing CB-17. The Planning Board argued that townhouses were not appropriate for the R-A Zone, the stated purposes of which are "to provide for large-lot one-family detached residential subdivisions, while encouraging the retention of agriculture as a primary land use[,]" and to "encourage the preservation of trees and open spaces[.]" PGCC § 27-426(a).
The Planning Board determined that, without the "former airport" requirement, approximately 262 properties would meet the criteria of the bill. With the "former airport" requirement, however, only the Freeway airport would qualify, as the three other operational airports in the county were not zoned R-A. The Planning Board added that it "believe[d] this bill was drafted for a specific property"-the Freeway airport. The Prince George's County Office of Law ("Office of Law") agreed, writing in a one-sentence memorandum that "[t]he bill may be subject to challenge as it appears to be drafted for a specific parcel." Neither the Planning Board nor the Office of Law expressly raised the prospect of a uniformity violation.
Before CB-17 was sent to the Council, the Planning, Housing, and Economic Development Committee of the Prince George's County Council (the "Planning Committee") considered CB-17 in a hearing on June 20. In advance Councilmember...
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