You’re not planning board, P.G. council told

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The Prince George’s County Council has limited authority to overturn zoning decisions of the county planning board, a Maryland appeals court held this week — to the delight of a developer whose plan to build a shopping center in Adelphi won board approval but was rejected by the council.

In a 3-0 decision, the Court of Special Appeals said council members may not overturn a planning board decision because they disagree with it. The council may reject the board’s decision only if it was “arbitrary, capricious, discriminatory or illegal,” the intermediate court said, citing state and county law.

The court’s decision, unless appealed, clears the way for Wilmington, N.C.-based Zimmer Development Co. to begin building retail shops on a 4.14-acre property along Powder Mill Road near Riggs Road.

The council will meet next week to decide whether to seek review of the decision by Maryland’s top court, the Court of Appeals, said Rajesh A. Kumar, principal attorney for the District Council, the name given to the County Council when it sits to review planning board actions.

“The District Council will take this matter up promptly next week to discuss their appellate options because of the public policy implications of the Court of Special Appeals’ decision, including divesting the District Council of original jurisdiction in zoning matters,” Kumar said Thursday.

Zimmer Development’s attorney, Timothy F. Maloney, said the decision “fundamentally changes the way all zoning cases are held in Prince George’s County.”

The ruling “really protects the integrity of the planning board’s decisions and insulates them from political influence through the District Council,” added Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

The planning board consists of five members, including a chairperson, nominated by the county executive and confirmed by the council to four-year terms.

The Court of Special Appeals’ decision Wednesday addressed the scope of the Maryland Regional District Act, which created the county’s planning board, and of the Prince George’s County Code, which empowers the council to affirm, reverse or modify the board’s decisions.

The court said the act and code give the council the “appellate authority” to overturn the board’s decisions. The council has no authority to examine a developer’s plan anew, the court added in upholding a circuit court judge’s decision.

“Indeed, if the District Council were vested with de novo review, the planning board’s legal responsibility to engage in fact finding would be rendered meaningless,” Judge Stuart R. Berger wrote for the Court of Special Appeals. “The planning board’s thorough evidentiary processes could be simply discarded in favor of the review by the District Council, which neither conducts its own evidentiary hearing nor develops its own record.”

The Prince George’s County Planning Board initially approved Zimmer Development’s design plan in summer 2011, according to Berger’s opinion.

But that November, the council remanded the application to the board. The council told the board to consider if the plan’s lack of a community center could be mitigated through amenities benefiting the surrounding neighborhood, if more replacement trees would have to be grown and if access for nearby residents would need to be improved due to shopping-center traffic.

The board held a Feb. 9, 2012, hearing on the council’s concerns and approved Zimmer’s plan again the following month.

The council heard arguments for and against the plan on May 21, 2012, and rejected it in late June. The council stated 14 concerns, including insufficient rights-of-way and a failure to preserve existing woodland.

Zimmer appealed to Prince George’s County Circuit Court, where Judge C. Philip Nichols Jr. overturned the council’s rejection in March 2013. Nichols said the council lacked authority to overturn the planning board’s approval for any reason other than that the decision was arbitrary, capricious, discriminatory or illegal.

The council then appealed in vain to the Court of Special Appeals.

The court agreed with Nichols and said the council’s 14 concerns were not legally relevant because of its limited authority to overturn the board’s decision.

Judges Michele D. Hotten and Charles E. Moylan Jr. joined Berger’s reported opinion. Moylan, a retired judge, was specially assigned to hear the appeal.

BERGER

WHAT THE COURT HELD

Case:

County Council of Prince George’s County v. Zimmer Development Co., CSA Nos. 259 and 265, Sept. Term 2013. Reported. Opinion by Berger, J. Argued March 10, 2014. Filed May 28, 2014.

Issue:

Does the Prince George’s County Council, sitting as the District Council, have original jurisdiction when reviewing decisions of the Prince George’s County Planning Board?

Holding:

No; the council has appellate jurisdiction and can only overturn planning board decisions that are “arbitrary, capricious, discriminatory or illegal.”

Counsel:

Rajesh A. Kumar for appellant; Timothy F. Maloney for appellee.

RecordFax #14-0528-00 (24 pages)