Heard v. Cty. Cncl. of Prince George's
Date Filed2022-12-29
Docket1877/21
JudgeWells
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Bradley E. Heard v. County Council of Prince Georgeās, et al., No. 1877, Sept. Term 2021.
Opinion filed on December 29, 2022, by Wells, C.J.
ZONING ā ADMINISTRATIVE REVIEW ā JURISDICTION
When determining who may exercise authority over a decision involving local land use
development, we analyze the relevant local planning and zoning provisions. In a District
Overlay Zone, the Prince Georgeās County zoning ordinance provisions indicate that the
Planning Board exercises original jurisdiction over detailed site plan applications while the
District Council exercises appellate jurisdiction over such applications.
ZONING - STANDING ā AGGRIEVEMENT ā PROXIMITY
A protestant is specially aggrieved when the party is farther away than an adjoining,
confronting, or nearby property owner, but still close enough to the site to be considered
almost prima facie aggrieved, and offers āplus factorsā supporting injury. When standing
is at issue in a land use action, proximity is the most important factor to be considered.
While there is no bright line rule for exactly how close a property must be in order to show
special aggrievement, generally, protestants must demonstrate that they live no more than
1,000 feet from the subject property and offer āplus factorsā such as their lay opinion of
decreasing property values and increasing traffic. In this case, Mr. Heard presented land
records showing that he is the record owner of property that is 990 feet from the subject
property and his belief that the proposed development would diminish his property value,
increase traffic, and create unsafe conditions. Because Mr. Heard has demonstrated that he
is specially aggrieved by the proposed development, we hold that he has standing in this
land use matter.
ZONING ā GENERAL AND MASTER PLANS ā NON-BINDING ON
SUBSEQUENT AMENDMENTS
General plans and master plans are generally viewed as non-binding advisory
recommendations, unless a relevant ordinance or regulation makes compliance with the
plan recommendations mandatory. Although Prince Georgeās Countyās zoning ordinances
require a preliminary plan to conform to the countyās general plan and applicable master
plan, no such provision exists for a detailed site plan. Instead, the Prince Georgeās County
Planning Board may apply alternative development standards from the development
district standards so long as the alternative standards will benefit the development and will
not substantially impair the implementation of the area master plan or sector plan. The
County gives the Planning Board some discretion at this stage because the detailed site
plan process is a method of moderating design guidelines so as to allow for greater variety
of development, while still achieving the goals of the guidelines.
ZONING ā ADMINISTRATIVE REVIEW ā SUBSTANTIAL EVIDENCE
Our review is limited to determining if there is substantial evidence in the record as a
whole to support the agencyās findings and conclusions, and to determine if the
administrative decision is premised upon an erroneous conclusion of law. A conclusion
by the planning body satisfies the substantial evidence test if a reasonable mind might
accept as adequate the evidence supporting it. Here, the District Council did not err in
concluding that there was substantial evidence in the record to support the Planning
Boardās finding and approval of the DSP Amendment.
Circuit Court for Prince Georgeās County
Case No. CAL 20-18901
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1877
September Term, 2021
______________________________________
BRADLEY E. HEARD
v.
COUNTY COUNCIL OF PRINCE
GEORGEāS COUNTY, ET AL.
.
______________________________________
Wells, C.J.,
Nazarian,
Ripken,
JJ.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (Ā§Ā§ 10-1601 et seq. of the State Government Article) this Opinion by Wells, C.J.
document is authentic. ______________________________________
2022-12-29 12:54-05:00
Filed: December 29, 2022
Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
This appeal arises from a judgment of the Circuit Court for Prince Georgeās County,
affirming the decision of the Prince Georgeās County Council, sitting as the District
Council (āDistrict Councilā), which affirmed the Prince Georgeās County Planning
Boardās (āPlanning Boardā or āBoardā) approval of an Amended Detailed Site Plan (the
āDSP Amendmentā). The DSP Amendment is for a mixed-use residential and commercial
development on property located at 6301 Central Avenue, Capitol Heightsāacross from
the Addison Road Metro Station. The appellant, Bradley E. Heard (āMr. Heardā) lives
about 1,000 feet from the subject property and opposes the project. Appellees are the
District Council and 6301 Central Avenue, LLC (the āApplicantā)āthe developer and
applicant to the DSP.1 Mr. Heard and Appellees raise several issues, which we have
rephrased and consolidated:
1. Do Mr. Heard and the District Council have standing to participate in
this appeal?
2. Did the District Council err when it concluded that the Planning Board
was legally correct in treating the General Plan and applicable Master
Plan as advisory documents rather than binding regulations in
connection with the DSP Amendment?
1
As discussed more below, the Planning Board approved the original detailed site plan
(DSP-06001) for a mixed-use development on the property in 2006. The first amendment
to this plan (DSP-06001-01) was approved by the Planning Board and revised, in part, by
the District Council in 2006, 2007 and 2008. Mr. Heard unsuccessfully challenged the first
amendment in circuit court and subsequently in this Court in 2011. (CSA-REG-1306-
2011). Mr. Heard also unsuccessfully challenged the Planning Boardās recent approval of
the Applicantās Preliminary Plan of Subdivision (Subdivision No. 4-05068) in circuit court
(CAL20-14095) and subsequently in this Court (CSA-REG-1563-2021). The second
amendment was withdrawn and is not relevant to this appeal. The third amendment to the
original detailed site plan (DSP-06001-03) is the subject of this appeal.
3. Did the District Council err when it concluded that there was
substantial evidence in the record to support the Planning Boardās
findings and approval of the DSP Amendment?
4. Did the District Council err when it concluded that the Planning Board
was legally correct when it declined to condition approval of the DSP
Amendment on offsite and site-adjacent improvements relating to
bikeways, trails, and roadways?
5. Did the District Council err when it concluded that the Planning
Boardās findings of fact were supported by substantial evidence and
untainted by legal impropriety?
For the foregoing reasons, we affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Property and Proposed Development
Since 2006, the Applicant has been working towards building a mixed-use,
residential and commercial development in the southwest quadrant of the intersection of
MD 214 (Central Avenue) and Addison Road, with frontage on Zelma Avenue, directly
across from the Addison Road Metro Station. The 2.98-acre property has three distinct
parcels: Parcel A, Parcel 87 and Lot 5, Block B. Each of the prior DSP applications the
Planning Board considered for this development proposed a mixed-use building on Lot A,
parking on Parcel 87, and empty space on Lot 5 for future development. Mr. Heard lives
at 415 Zelma Avenue, roughly 1,000 feet from the site.
B. How Property is Developed in General and in Prince Georgeās County
āThere are two broad categories of land use control: zoning and planning (which
includes subdivision regulation).ā County Council of Prince Georgeās County v. FCW
Justice, Inc. (āFCW Justiceā), 238 Md. App. 641, 649 (2018) (citing County Council of
2
Prince Georgeās County v. Zimmer Development Co. (āZimmerā), 444 Md. 490, 505(2015)). Zoning is āthe process of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses designed in some degree to serve the interests of the whole territory affected by the plan.ā Maryland Overpak Corp. v. Mayor And City Council of Baltimore,395 Md. 16, 48
(2006). Typically, parcels must be used in compliance with their zoning. Zimmer,444 Md. at 505
.
Planning involves āthe development of a community, not only with respect to the
uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial
and commercial undertakings, residential developments and such other matters affecting
the public convenience[.]ā Id. at 505-06 (quoting 1 E.C. Yokley, Zoning Law and Practice
Ā§ 1-2 (4th ed. 1978)). āBecause planning and zoning complement each other and serve
certain common objectives, [] some implementation and enforcement procedures may have
both planning and zoning aims.ā Id. at 506 (internal quotation marks and citations omitted).
The property at issue in this case (the āsubject propertyā) is within the Prince
Georgeās County portion of the Maryland-Washington Regional District, as recognized in
the Maryland-Washington Regional District Act (the āRDAā), now codified in Division II
of the Land Use Article of the Maryland Code. Zimmer, 444 Md. 490, 523(2015). āThe RDA regulates planning and zoning within the Regional District, which includes most of Prince Georgeās and Montgomery Counties.āId. at 524
. However, the RDA delegates the Stateās zoning and planning authority for the areas of Prince Georgeās County within the Regional District to Prince Georgeās County.Id. at 524-25
. Thus, the RDA and the Prince
Georgeās County Code (āPGCCā) govern the regulation of the subject property.
3
Specifically, the RDA allocates planning and zoning authority in Prince Georgeās
County between four distinct authorities: the Maryland-National Park and Planning
Commission (the āCommissionā), the Prince Georgeās County Planning Board, the Prince
Georgeās County Council (referred to as the āDistrict Councilā when exercising its
authority under the RDA), and the Prince Georgeās County Board of Appeals. The
Commission deals with regional planning functions, while the Planning Boards in Prince
Georgeās and Montgomery counties focus on local zoning and planning functions. See Md.
Code Ann., Land Use (āLUā) Ā§ 20-202.
In Prince Georgeās County, before a developer builds on a site, there are regulations,
ordinances, and development standards that affect the property and that the Planning Board
must consider prior to approving any development plans. āPlans are developed to guide the
implementation of land use controls and zoning in a rational way that is beneficial to the
public.ā Zimmer, 444 Md. at 520. In the Maryland-Washington Regional District, two types of plans are required: a āgeneral planā and āarea master plans.āId. at 521
. A general plan is āāmore than a detailed zoning map and should apply to a substantial area, be the product of long study, and control land use consistent with the public interest. An important characteristic of a general plan is that it be well thought out and give consideration to the common needs of the particular area.āā Maryland-Nat. Capital Park and Planning Commān v. Greater Baden-Aquasco Citizens Assān.,412 Md. 73, 85
(2009) (quoting Yokley, supra
Ā§ 5-2). The current general plan for Prince Georgeās County is The Maryland-National
Capital Park and Planning Commission, PLAN PRINCE GEORGEās 2035 APPROVED
GENERAL PLAN (May 2014) (the āGeneral Planā).
4
Master plans āgovern a specific, smaller portion of the County and are often more
detailed in their recommendations than the countywide General Plan as to that same area.ā
Greater Baden-Aquasco Citizens Assān, 412 Md. at 89(quoting Garner v. Archers Glen Partners,405 Md. 43
, 48 n.5 (2008) (brackets omitted)). āProposals for land use contained in a plan constitute a non-binding advisory recommendation, unless a relevant ordinance or regulation, or specific zoning, subdivision, or other land use approval, make compliance with the plan recommendations mandatory.ā Zimmer,444 Md. at 522
. The applicable
master plan for the subject property is the 2010 Approved Subregion 4 Master Plan
(āMaster Planā or āapplicable Master Planā).
The subject property is also in a Development District Overlay (āD-D-Oā) zoning
district, which is intended to ensure that development in a designated district meets the
goals established in a Master Plan, Master Plan Amendment or Sector Plan. PGCC Ā§ 27-
548.19. D-D-O zoning districts may be designated for town centers, Metro areas,
commercial corridors, employment centers, revitalization areas, historic areas and other
special areas as identified in approved plans. PGCC Ā§ 27-548.19. Importantly, D-D-O
zoning districts set development standards for the properties they affect. PGCC Ā§ 27-
548.20.
If a site must be subdivided from a larger property, the developer must file a
Preliminary Plan of Subdivision. PGCC Ā§ 24-105.2 In Prince Georgeās County, preliminary
2
Prince Georgeās County, MD., Mun. Code Ā§ 24-105, the version of the code in
effect at the time of the public hearing when the Planning Board considered Applicantās
DSP Amendment. See Layton v. Howard Cnty. Bd. Of Appeals, 399 Md. 36,922 A.2d 576
,
5
plans are necessary to determine the adequacy of public facilities serving a proposed
subdivision, and to establish conformance with the Countyās Subdivision Ordinance.
PGCC Ā§ 24-122.01. Preliminary plans often propose a general scheme of developmentā
demonstrating the location of the property, existing topography, and the proposed layout
of roads, structures, utilities, open spaces, and storm water management. Transportation,
recreational facilities, and other public facilities serving the proposed subdivision are
evaluated for adequacy during the Preliminary Plan stage. Before the Planning Board may
approve a Preliminary Plan, it must determine that the Preliminary Plan conforms to the
Master Plan. PGCC Ā§ 24-104.
Once the Planning Board has approved a Preliminary Plan, a developer must provide
a Detailed Site Plan (āDSPā) to the Planning Board in order to obtain a building permit.
PGCC Ā§ 27-285(a). The Planning Board evaluates a DSP to establish compliance with the
Countyās Zoning Ordinance. Urban design elements, organization and location of proposed
uses, and landscaping issues are assessed at this stage. PGCC Ā§ 27-283. In a District
Overlay zone, DSPs are reviewed for compliance with Development District Standards by
the District Council, in a Sectional Map Amendment, or in a later amendment of adopted
standards. PGCC Ā§ 27-548.19.
The Planning Board can choose to approve modified or alternative Development
Standards during a DSP evaluation. PGCC Ā§ 27-281. The Planning Board may only
approve a DSP with alternate Development Standards after a finding that the proposed
593 (2007) (āIn land use and zoning cases, the law shall be applied as it is in effect at the
time of argument.ā).
6
standard would benefit the development of the Development Overlay District and will not
substantially impair implementation of the Master Plan, Master Plan Amendment, or Sector
Plan. PGCC Ā§ 27-548.25(c). If the Planning Board approves a modification, it must state
in its findings that the modification or departure conforms to all applicable Development
Standards. PGCC Ā§ 27-548.25(e).
Before approving a DSP, the Planning Board must find that āthe plan represents a
reasonable alternative for satisfying the site design guidelines, without requiring
unreasonable costs and without detracting substantially from the utility of the proposed
development for its intended use.ā PGCC Ā§ 27-285(b). See FCW Justice, Inc., 238 Md.
App. at 658(āAs the Court explained in Zimmer, the detailed site plan process āis a method of moderating design guidelines so as to allow for greater variety of development, while still achieving the goals of the guidelines.ā444 Md. at 562-63
[.]ā). Every DSP
applicationāamendment or otherwiseāis considered on its own individual merits by the
Planning Board and an approved plan will supersede all previous DSP approvals. PGCC Ā§
27-289(b).
C. The History of Development on the Property
The Master Plan for the subject property recommends mixed-use commercial and
medium-high density residential land use. The subject property is located within the R-55
(One-Family Detached Residential) (Lot 5) and C-S-C (Commercial Shopping Center)
(Parcel A and Parcel 87) zones. It is subject to the Addison Road Metro Town Center
Development District Overlay Zone (āDistrict Overlayā), which has Development
Standards (or āStandardsā) that must be applied when planning a development. The
7
property is also subject to the 2000 Addison Road Metro Town Center and Vicinity Sector
Plan (āARM Sector Planā), 2014 Approved General Plan (Plan 2035) (āGeneral Planā),
and the 2010 Approved Subregion 4 Master Plan.
On February 9, 2006, the Planning Board approved a Preliminary Plan of
Subdivision (PGCPB Resolution No. 06-37) for Parcel A, where the Applicant proposed
to build a mixed-use building. On September 21, 2006, the Planning Board approved DSP-
06001 (PGCPB Resolution No. 06-217) for a mixed-use development on Parcel A
consisting of 170 multifamily units and 22,696 square feet of commercial uses in an eight-
story building. On May 15, 2007, the District Council elected to review the Boardās
approval of DSP-06001, and affirmed the Planning Boardās decision, subject to certain
conditions. On June 2, 2008, the District Council approved a revised condition in DSP-
06001 requiring the undergrounding of all on-site utilities.
On September 25, 2008, the Planning Board approved Preliminary Plan 4-08019
(PGCPB Resolution No. 08-124) for Parcel 87, where the Applicant proposed building a
parking garage.
On April 8, 2010, the Applicant submitted DSP-06001-01, which the Planning
Board approved (PGCPB Resolution No. 10-50). DSP-06001-01 proposed a mixed-use
development, including 171 multifamily units, 37,170 square feet of office space, a 32,820
square foot public library, 15,890 square feet of retail space, all on Parcel A, and a four-
story parking garage on Lot 87.
8
On December 18, 2019, Applicant requested the Planning Board reconsider
Condition 17.b3 of Preliminary Plan of Subdivision No. 4-05068.4 The Board granted
Applicantās request for reconsideration. Mr. Heard filed a petition for judicial review in
circuit court, which affirmed the Planning Boardās decision. Mr. Heard appealed that
judgment to this Court, which also affirmed.
On March 26, 2020, the Technical Staff5 (āStaffā) of the Planning Board reviewed
the proposed third amendment to the DSP (the subject of this appeal) for its compliance
with the requirements contained in the ARM Sector Plan, zoning ordinances, Preliminary
Plans, previously approved DSPs, Development District Overlay, and other applicable
ordinances. Staff issued a 32-page report6 recommending approval of the DSP
Amendment, subject to certain conditions. In its report, Staff recommended that the
Planning Board approve some of the Applicantās requests for modifications from the
requirements including increasing the setback from MD 214 and Addison Road, as well as
decreasing the number of residential parking space requirements. Staff stated that the
proposed building-mounted, pole-mounted, and other accent lighting, such as bollards,
sconces, and other architectural lighting throughout the site met zoning requirements but
3
Prohibited any left-hand turns into and from Parcel A.
4
Approved by the Planning Board on February 9, 2006 (PGCPB Resolution No.
06-37) for Parcel A, on which the mixed-use building is proposed, subject to 18 conditions.
5
āTechnical Staffā refers to the Planning Board Staff.
6
Following an application for a detailed site plan, the Planning Board Staff reviews
the detailed site plan for the subject property and submits a report with recommendations
to the Planning Board for its review.
9
noted that the details of the proposed lighting should be included, along with their location,
in the DSP. Staff also recommended that the Planning Board approve Applicantās request
for an approximately 50 percent reduction (140 parking spaces) in required residential
parking spaces, noting that the layout of proposed on-site parking is broken into multiple
locations. Additionally, Staff recommended raised crosswalks at all drive aisle
intersections and all pedestrian crossings within the site, revised architectural elevations to
remove the below-grade parking, a surface parking lot on Lot 5 of Parcel B, a 12-foot-wide
sidewalk along the MD 214 frontage of the property, and five-foot-wide sidewalks along
Zelma Avenue. Regarding the referral comments on the trails, the Staff noted that these
improvements cannot be conditioned in the DSP Amendment because the trail is located
within the right-of-way of MD 214 and is under the jurisdiction of the Maryland State
Highway Administration.
On April 9, 2020, the Planning Board held a public hearing (the āPlanning Board
Hearingā or the āHearingā), where it reviewed exhibits and heard testimony from Mr.
Heard, Planning Board Staff, and counsel for Applicant. Specifically, parties discussed the
buildingās setback, the surface parking lot on Parcel 87, undergrounding of utilities, safe
pedestrian crossings, roadway improvements around the property, and the applicable
regulations for the Planning Boardās approval, among other things.
At the end of the hearing, the Planning Board voted to approve the DSP
Amendment, 3:2. As approved, the DSP Amendment proposed a mixed-use building,
consisting of 193 multifamily dwelling units and 11,000 square feet of commercial retail
space on Parcel A and a surface parking lot on Lot 87. It modified the prior DSP by
10
eliminating a three-bedroom unit and thirty-one two-bedroom units and replacing them
with an additional forty-four one-bedroom units and ten studio apartments. It also replaced
the previously approved parking garage on Lot 87 with a surface parking lot divided by
landed medians and proposed fewer resident parking spaces than required by PGCC at the
time. Finally, the DSP Amendment proposed modifications to the Development Standards
set out in the Development District Overlay, including an increased set-back from the right
of way line and permission to only provide crosswalk markings at intersections.
On April 30, 2020, the Planning Board issued a 33-page Resolution (PGCPB No.
2020-59) (the āBoardās decisionā), considering the requirements of the ARM Sector Plan,
zoning ordinances, Preliminary Plans, previously approved DSPs for the property,
Development District Standards, and other ordinances, as well as the Staffās Report, and
the arguments presented at the Planning Board Hearing. The Planning Boardās decision,
containing findings of fact and conclusions of law, ultimately approved the DSP
Amendment, subject to certain conditions including the undergrounding of on-site utilities,
specifications for site lighting, raised crosswalks at intersections and pedestrian crossings
within the site, the construction of sidewalks on MD 214 and Zelma Avenue frontage of
the property, and other items.
11
On June 2, 2020, Mr. Heard appealed the Planning Boardās decision to the District
Council, pursuant to LU Ā§ 25-210(a)(2)7 and PGCC Ā§ 27-290(a).8 On October 26, 2020,
District Council issued its final decision affirming the Planning Boardās decision to
approve the DSP Amendment. In its decision, District Council explained its standard of
review:
When reviewing an appeal of a decision from Planning Board to approve a
DSP application, Council may disapprove the Boardās decision if the
decision was not supported by substantial evidence of record, is arbitrary or
capricious, or otherwise illegal. Cnty. Council of Prince Georgeās Cnty. v.
Zimmer Dev. Co., 444 Md. 490,120 A.3d 677
(2015).9
7
LU Ā§ 25-210. Site plan reviewāDistrict council
Authorized; appeal
(a)(1) Subject to subsection (b) of this section, the district council may review a
final decision of the county planning board to approve or disapprove a detailed site
plan.
(2) A party of record may appeal to the district council a final decision by the county
planning board to approve or disapprove a site plan.
8
PGCC Sec. 27-290. - Appeal of Planning Boardās decision.
(a)The Planning Boardās decision on a Detailed Site Plan may be appealed to the
District Council upon petition by any person of record. The petition shall specify
the error which is claimed to have been committed by the Planning Board and shall
also specify those portions of the record relied upon to support the error alleged.
The petition shall be filed with the Clerk of the Council within thirty (30) days after
the date of the notice of the Planning Boardās decision. The District Council may
vote to review the Planning Boardās decision on its own motion within thirty (30)
days after the date of the notice. A copy of the petition shall be sent by the submitter
to all persons of record (by regular mail), and a certificate of service shall
accompany the submission to the Clerk.
9
Alternatively, Council may affirm, reverse, modify or remand the application to
the Planning Board. If the Council fails to act within the specified time, the Planning
Boardās decision is automatically affirmed. PGCC Ā§ 27-290(d).
12
District Council then addressed all fifteen issues raised by Mr. Heard on appeal of the
Planning Boardās decision including many of the questions presented in this appeal. After
a thorough review of the record, District Council found that the Planning Boardās approval
of the DSP Amendment was supported by substantial evidence in the record, and was not
arbitrary, capricious, or otherwise illegal, and affirmed the Planning Boardās decision.
On November 23, 2020, pursuant to LU Ā§ 22-407,10 and Md. Code Ann., State
Govāt (āSGā), Ā§ 10-222(a),11 Mr. Heard filed a petition in the Circuit Court for Prince
10
(a)(1) Judicial review of any final decision of the district council, including an
individual map amendment or a sectional map amendment, may be requested by
any person or entity that is aggrieved by the decision of the district council and is:
(i) a municipal corporation, governed special taxing district, or person in the
county;
(ii) a civic or homeowners association representing property owners affected
by the final decision;
(iii) the owner of the property that is the subject of the decision; or
(iv) the applicant.
(f)(1) A final judgment of the circuit court may be appealed to the [Appellate Court
of Maryland] by:
(i) the district council;
(ii) the applicant; or
(iii) any aggrieved party to the circuit court proceedings.
(2) Each member of the district council is entitled to vote on whether the district
council shall appeal to the [Appellate Court of Maryland], regardless of whether the
member participated in the hearing on the matter or in the decision.
11
(a)(1) Except as provided in subsection (b) of this section, a party who is aggrieved
by the final decision in a contested case is entitled to judicial review of the decision
as provided in this section.
(2) An agency, including an agency that has delegated a contested case to the Office,
is entitled to judicial review of a decision as provided in this section if the agency
was a party before the agency or the Office.
13
Georgeās County for judicial review of District Councilās decision affirming the Planning
Boardās decision approving the DSP Amendment. On December 23, 2020, District Council
filed a response to Mr. Heardās Petition (āResponseā) stating its intent to participate in Mr.
Heardās petition for judicial review.12
On February 3, 2021, Appellees filed a joint motion to dismiss Mr. Heardās petition
on the basis that he lacked standing to challenge the District Councilās decision
(āAppelleesā Joint Motion to Dismissā). On February 22, 2021, Mr. Heard filed a
memorandum in opposition to Appelleesā Joint Motion to Dismiss, as well as his own
motion to strike District Councilās Response to his Petition (āAppellantās Motion to
Strikeā) pursuant to Md. Rule 7-204(a).13 Although the circuit court considered these
motions, it did not rule explicitly on them.14
District Councilās Response did not state under what authority it was responding.
12
However, Md. Rule 7-204, titled āResponse to Petitionā provides:
(a) Who May File; Contents. Any person, including the agency, who is entitled by
law to be a party and who wishes to participate as a party shall file a response to
the petition. The response shall state the intent to participate in the action for
judicial review. No other allegations are necessary.
(c) Time for Filing Response; Service. A response shall be filed within 30 days after
the date the agency mails notice of the filing of the petition unless the court shortens
or extends the time. The response need be served only on the petitioner, and shall
be served in the manner prescribed by Rule 1-321.
(Emphasis added).
13
See footnote 12.
14
The parties agree that this Court should deem the motions to have been denied.
See Mathis v. Hargrove, 166 Md. App. 286, 302 (2005) (āWe begin by accepting
appellantsā premise that the circuit courtās reservation of its ruling on the motion for
summary judgment effectively operated to deny the motion.ā).
14
The circuit court did, however, conduct a hearing on the merits of Mr. Heardās
petition for judicial review and entered an order on January 5, 2022 (āOrderā or
āJudgmentā) affirming District Councilās decision affirming the Planning Boardās decision
to approve the DSP Amendment, and denying Mr. Heardās petition. Specifically, the circuit
court ruled that the Planning Board: applied the correct development standards and
received substantial evidence to approve the DSP Amendment; did not err in refusing to
condition approval of the DSP Amendment on offsite bikeway, trail, and roadway
improvements; and made the requisite findings regarding the DSP Amendment. Mr. Heard
filed his timely notice of appeal from this Order on January 26, 2022, and Applicant filed
its timely cross-appeal on January 31, 2022.
STANDARD OF REVIEW
āWhen we review the final decision of an administrative agency, [ . . . ] we look
through the circuit courtās [ . . . ] decisions, although applying the same standards of review,
and evaluate the decision of the agency.ā Peopleās Counsel for Balt. Cnty. v. Loyola
College, 406 Md. 54, 66-67 (2008). The issue here is whether the Planning Board or the
District Council made the āfinal decision.ā Mr. Heard argues that the final decision is the
Planning Boardās decision because it has original jurisdiction over the approval of detailed
site plans, while District Council only has appellate jurisdiction. Appellee, however,
contends that District Council ultimately has original jurisdiction over such approvals.
This Courtās reasoning in City of Hyattsville v. Prince Georgeās Cnty. Council is
instructive on this issue. 254 Md. App. 1 (2022). That case involved a District Council
decision to approve an application to rezone part of the parcel and change the list of allowed
15
uses to permit townhouses for a property, as is the case here, in a development district
overlay zone. Id. at 35, 38. In deciding that changing permitted uses in a D-D-O zone implicated the District Councilās original jurisdiction, Judge Arthur analyzed the pertinent provisions of Prince Georgeās zoning ordinance to determine whether āthese provisions treat the District Council as the primary and final decision-maker on a request to change the underlying zone or allowed uses for a property in the development district.āId. at 36
. We answered that question in the affirmative.Id.
In the present case, the relevant County zoning ordinance provisions include:
PGCC Ā§ 27-548.22(a), which states that
The uses allowed on property in a Development District Overlay Zone shall
be the same as those allowed in the underlying zone in which the property is
classified, except as modified by Development District Standards approved
by the District Council.
PGCC Ā§ 27-548.23(b), which provides that
Development District Standards may modify density regulations only to meet
the goals of the Development District and the purposes of the D-D-O Zone.
Development District Standards may not permit density in excess of the
maximum permitted in the underlying zone.
PGCC Ā§ 27-548.23(e), which states:
The Master Plan, Master Plan Amendment, or Sector Plan[15] may specify the
location and size of proposed roads and transit facilities.
15
Although master plans must be approved by the Planning Board, they become
effective only when approved by the District Council. See LU Ā§ 21-216; PGGC Ā§ 27-
646(c). Sector plans are ādetailed plans for the development of a portion of one or more
master planning areas.ā PGCC Ā§ 27-107(a)(206.2). Sector plans are widely used in both
Montgomery and Prince Georgeās Counties and are approved by the relevant District
Council. See Pringle v. Montgomery Cnty. Planning Board, 212 Md. App. 478, 480ā81
(2013).
16
PGCC Ā§ 27-548.25, which states in relevant part:
(a) Prior to issuance of any grading permit for undeveloped property or
any building permit in a Development District, a Detailed Site Plan for
individual development shall be approved by the Planning Board . . . .
(b) In approving the Detailed Site Plan, the Planning Board shall find
that the site plan meets applicable Development District Standards.
(c) If the applicant so requests, the Planning Board may apply
development standards which differ from the Development District Standards,
most recently approved or amended by the District Council, unless the
Sectional Map Amendment text specifically provides otherwise. . . .
(Emphasis added).
In enacting PGCC Ā§ 27-548.22 and Ā§ 27-548.23, the District Council drew a clear
distinction between changes to uses permitted in a D-D-O district, maximum density in the
district, and the location of and size of road and transit facilities in a D-D-O district. Section
27-548.23 is explicit that as to all of these matters, the āDistrict Council [is] the primary
and final decision-maker on a requestā to amend permitted uses, maximum permitted
density, and the relocation of streets and transit facilities. City of Hyattsville, 254 Md. App.
at 36. In contrast, when the District Council enacted Ā§ 27-548.25, it made it clear that it is
the role of the Planning Board to review and approve detailed site plans.
None of the parties assert that the text of Sectional Map Amendment restricted the
Planning Boardās authority under Ā§ 27-548.25(c). Thus, these provisions indicate that the
Planning Board exercises original jurisdiction over detailed site plan applications and that
the District Councilās review of such decisions is appellate in nature.
17
Exercising appellate jurisdiction, āthe District Council may reverse a decision by
the Board only if that decision is ānot authorized by law, is not supported by substantial
evidence of record, or is arbitrary or capricious.āā FCW Justice, 238 Md. App. at 674-75 (quoting Zimmer,444 Md. at 573
). As the Supreme Court of Maryland (at the time called
the Court of Appeals of Maryland)16 explained in Zimmer, the appropriate standard of
review of an administrative agencyās action is analogous to that used by courts in judicial
review:
Judicial review of administrative agency action based on factual findings,
and the application of law to those factual findings, is limited to determining
if there is substantial evidence in the record as a whole to support the
agencyās findings and conclusions, and to determine if the administrative
decision is based on an erroneous conclusion of law. The reviewing court
may not substitute its judgment for that of the administrative agency. Rather,
the court must affirm the agency decision if there is sufficient evidence such
that a reasoning mind reasonably could have reached the factual conclusion
the agency reached.
Zimmer, 444 Md. at 573 (quotation marks and citations omitted).
Further, because the Planning Board has discretion to approve or disapprove
detailed site plans, see PGCC Ā§Ā§ 27-281(a)(1) and 27-285(b), its decisions regarding
detailed site plan applications receive even more deference. FCW Justice, 238 Md. App. at
675.
16
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022. See,
also, Md. Rule 1-101.1(a) (āFrom and after December 14, 2022, any reference in these
Rules or, in any proceedings before any court of the Maryland Judiciary, any reference in
any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of
Maryland shall be deemed to refer to the Supreme Court of Marylandā¦.ā).
18
Agency decisions receive an even more deferential review regarding matters
that are committed to the agencyās discretion and expertise. In such
situations, courts may only reverse an agency decision if it is arbitrary and
capricious. Logically, the courts owe a higher level of deference to functions
specifically committed to the agencyās discretion than they do to an agencyās
legal conclusions or factual findings.
Zimmer, 444 Md. at 573-74 (quotation marks and citations omitted).
DISCUSSION
I. Mr. Heard Has Standing to Participate in This Appeal.
A. Partiesā Contentions
Before we address the merits of this appeal, we must first address whether Mr. Heard
and District Council have standing. Appellees argue that this case should have been
dismissed by the circuit court because Mr. Heard does not have standing. Appellees
contend that Mr. Heard is not prima facie, specially, or directly aggrieved by the District
Councilās final decision essentially because he lives more than 1,000 feet from the
proposed development. Mr. Heard responds that the circuit court was correct in
determining that he had standing because he in fact does live within 1,000 feet of the
subject property and has sufficiently alleged special aggrievements arising out of the
proposed development.
Further, Mr. Heard argues that the circuit court erred in failing to dismiss the District
Council as an interested party. Specifically, Mr. Heard asserts that because the District
Council reviewed the Planning Boardās decision in its quasi-judicial capacity, it therefore
āhad no cognizable legal interest or stake in the outcome of Applicantās proposed
development.ā In response, District Council contends that it was acting as an administrative
19
agency and, under LU Ā§ 22-407, District Council is legally entitled to seek a further right
of appeal from a circuit courtās final judgment so long as the Council participated in the
proceedings below. Moreover, District Council argues that Mr. Heard relies on the
McKinney-Peco doctrine, which is inapplicable here, and, has since been abrogated.17
B. Analysis
Land Use Ā§ 22-407(a) authorizes the judicial review of land use decisions by the
District Council. When the circuit court entered its judgment, Ā§ 22-407(a) read in pertinent
part:
(a)(1) Judicial review of any final decision of the district council, including
an individual map amendment or a sectional map amendment, may be
requested by any person or entity that is aggrieved by the decision of the
district council and is:
(i) a municipal corporation, governed special taxing district, or person
in the county;
(ii) a civic or homeowners association representing property owners
affected by the final decision;
(iii) the owner of the property that is the subject of the decision; or
17
The view that cases like Zoning Appeals Bd. v. McKinney, 174 Md. 551(1938) and Md. Bd. of Pharmacy v. Peco, Inc.,234 Md. 200
(1964) stood for the proposition that an agency may not seek appellate review of a circuit court decision when the circuit court overruled the agencyās final administrative decision upon judicial review. See Maryland- National Capital Park & Planning Commān v. Anderson,395 Md. 172, 202
(Harrell, J., dissenting). Although this doctrine has not been expressly overruled, more recent case law indicates that āwhen the agencyās decision does or can have significance in terms of the agencyās broader responsibilities, the limitations of McKinney are not applicable. In such a case, the agency must be free to intervene in judicial review actions and contest in the appellate courts judgments that may hamper it from effectively implementing the policies ordained by the Legislature.ā Calvert Cnty. Planning Commān v. Howlin Realty Mgmt., Inc.,364 Md. 301, 319
(2001).
20
(iv) the applicant.
Mr. Heard is a resident of Prince Georgeās County and owns property there.
Regarding standing in land use cases in Maryland, two conditions must be met: ā(1)
[the person or entity] must have been a party to the proceeding before the Board, and (2)
[the person or entity] must be aggrieved by the decision of the Board.ā Bryniarski v.
Montgomery Cnty. Bd. of Appeals, 247 Md. 137, 143(1967), partially abrogated by statute, Md. Code (1982, 2013 Repl. Vol.), Ā§ 5-204(f) of the Environment Article, as stated in Patuxent Riverkeeper v. Md. Depāt of Envāt,422 Md. 294, 298
(2011). There is no
dispute that Mr. Heard was a party to the proceeding before the Planning Board, so we turn
to whether he is āaggrieved.ā
Generally, a party is deemed aggrieved if the party can demonstrate that the decision
will adversely affect the partyās interest in a personal and specific manner, not shared by
the general public. See Ray v. Mayor & City Council of Balt., 430 Md. 74, 81(2013); Bryniarski,247 Md. at 144
. There are three ways a party may prove standing: (1) proximity; (2) special aggrievement; or (3) direct and specific harm. See Ray,430 Md. at 85-86
. āA protestant is prima facie aggrieved when his proximity makes him an adjoining, confronting, or nearby property owner.āId. at 85
. A protestant is specially aggrieved when the party is farther away than an adjoining, confronting, or nearby property owner, but āstill close enough to the siteā to be considered āalmost prima facie aggrieved, and offers āplus factorsā supporting injury.āId.
Finally, a protestant who is far removed from the subject property may still have standing if the party can show āhis personal or property rights are specially and adversely affected by the boardās action.āId. at 85-86
.
21
Where standing is at issue in a land use action, āproximity is the most important
factor to be considered.ā Id. at 82-83. While there is āno bright-line rule for exactly how close a property must be in order to show special aggrievement[,]ā generally, a protestant must demonstrate that they live no more than 1,000 feet from the subject property and offer āplus factorsā such as āan ownerās lay opinion of decreasing property values and increasing traffic[.]āId. at 83-85, 91-92
. As explained by the Court in Ray:
Although there is no bright-line rule for who qualifies as āalmostā
prima facie aggrieved, we have found no cases, in which a person living over
2000 feet away, has been considered specially aggrieved. Rather, [. . .] this
category has been found applicable only with respect to protestants who lived
200 to 1000 feet away from the subject property. See Habliston, 258 Md. at
352, 354-55, 265 A.2d at 885-87 (protestants held specially aggrieved when
200 to 500 feet from site; owner testified regarding decrease in value);
Chatham, 252 Md. at 579-80, 584, 251 A.2d at 2, 4 (protestants with
proximity of 1000 feet, within the same subdivision who could see site of
zoning change were specially aggrieved).
On the contrary, protestants who lived more than 1000 feet from the
rezoning site have repeatedly been denied standing. See Shore Acres, 251
Md. at 312, 317-18, 247 A.2d at 403, 406 (not specially aggrieved when 3760
feet and out of sight of subject property); White, 251 Md. at 64, 246 A.2d at
250-51 (not specially aggrieved when 0.5 miles from site, even though
asserting an increase in traffic, increase in use of water system, and
overcrowded schools); DuBay, 240 Md. at 182-84, 185-86, 213 A.2d at 488-
90 (three protestantsā1500 feet, 0.4 miles, and 0.9 milesāwho were
separated by beltway or could not see site, not specially aggrieved); Marcus,
235 Md. at 537-38, 541, 201 A.2d at 778-79, 781 (protestant living 0.75 miles
away who could not see subject property denied standing); 25th Street, 137
Md. App. at 86, 89, 767 A.2d at 920, 922 (protestant two blocks west and
three blocks north, without sight of, or sound from, subject property, denied
standing).
Id. at 91-92.
In this case, Mr. Heard is the record owner of the property at 415 Zelma Avenue, a
60-feet-wide lot, described in the deed as āLot numbered Thirty-four (34) and adjoining or
22
South 20 feet by full depth of Lot numbered Thirty-three (33)[.]ā See Plat Book RNR 2,
Plat 34; Deed Book 30028, pp. 173-76. The subject property owned by Applicant includes
the property at 212 Zelma Avenue, more particularly described as Lot 5, Block B, of Kingās
Seat Pleasant Section 2 subdivision. See Plat Book WWW 16, Plat 61. The eastern
boundary of Kingās Seat Pleasant Section 2 subdivision is 1,327.74 feet long. The southern
boundary of Lot 5, Block B, of Kingās Seat Pleasant Section 2 subdivision is 277.74 feet
from the northeastern limit of that subdivision. The northern boundary of Mr. Heardās
propertyāthe midway point of Lot 33āis 60 feet from the southern boundary of Kingās
Seat Pleasant subdivision. Based on land records, the distance between Mr. Heardās
property and the subject property is 990 feet (1,327.74 ā 277.74 ā 60 = 990 feet).
Additionally, Mr. Heard has alleged āplus factors,ā specifically his lay opinion that
Applicantās proposed development of the subject property will likely diminish his property
values, increase traffic, and create unsafe conditions.
As for Mr. Heardās potential standing here, the Courtās decision in Chatham Corp.
v. Beltram, 252 Md. 578(1969) is instructive. In Chatham, two homeowners opposed the Board of Howard Countyās approval of a decision reclassifying a residential zoning district to permit apartments.Id. at 579-80
. Both homeowners testified that their property was approximately 1,000 feet from the subject property and that they believed the rezoning would depreciate the value of their property.Id. at 580
. In light of this testimony, the Court held that the homeowners were specially aggrieved.Id.
Because Mr. Heard has presented sufficient evidence supporting the fact that he
owns property within 1,000 feet of the subject property and has alleged āplus factors,ā he
23
has demonstrated special aggrievement and therefore has standing to seek judicial review
in this matter.
As for Mr. Heardās argument that the circuit court erred in failing to dismiss the
District Council as an interested party, we decline his and District Councilās invitation to
address the issue of District Councilās standing because the property owner is also a party
in the judicial review action. See, e.g., State Ctr. LLC v. Lexington Charles Ltd. Pāship,
438 Md. 451, 550(2014); Fraternal Ord. of Police Lodge 35 v. Montgomery County,436 Md. 1
, 13 n.13 (2013); Garner v. Archers Glen Partners, Inc.,405 Md. 43, 54-55
(2008)
(declining to address whether the Prince Georgeās County Planning Board may participate
as a party in a judicial review of its decision approving a Preliminary Plan for a residential
development where issue was not preserved and it was conceded that the developer had
standing to appeal). In Garner, the Court explained:
It āis a settled principle of Maryland law that, āwhere there exists a
party having standing to bring an action ... we shall not ordinarily inquire as
to whether another party on the same side also has standing.āā Sugarloaf
Citizensā Assān v. Depāt of Envāt, 344 Md. 271, 297,686 A.2d 605, 618
(1996) (quoting Peopleās Counsel v. Crown Dev. Corp., 328 Md. 303, 317,
614 A.2d 553, 559ā60 (1992)); Dorsey, 375 Md. at 67 n. 1, 825 A.2d at 392ā
93 n. 1; Md. Assān of Health Maint. Orgs. v. Health Servs. Cost Review
Commān, 356 Md. 581, 589ā90,741 A.2d 483, 487
(1999); Coalition for
Open Doors v. Annapolis Lodge No. 622, Benevolent & Protective Order of
Elks, 333 Md. 359, 371,635 A.2d 412, 417
(1994); County Council v. Md.
Reclamation, 328 Md. 229, 232 n. 1,614 A.2d 78
, 80 n. 1 (1992); Bd. of
Supervisors of Elections of Anne Arundel County v. Smallwood, 327 Md.
220, 233 n. 7,608 A.2d 1222
, 1228 n. 7 (1992); Bd. of License Commārs for
Montgomery County v. Haberlin, 320 Md. 399, 404,578 A.2d 215, 217
(1990); Montgomery County v. Bd. of Supervisors of Elections for
Montgomery County, 311 Md. 512, 517 n. 3,536 A.2d 641
, 643 n. 3
(1988); Stateās Attorney of Balt. v. City of Balt., 274 Md. 597, 602,337 A.2d 92, 96
(1975). Our traditional reluctance to address issues of standing not
necessary to the outcome of a case is highlighted in Sugarloaf Citizens Assān
24
v. Northeast Maryland Waste Disposal Authority, 323 Md. 641, 650 n. 6,594 A.2d 1115
, 1119 n. 6 (1991). There we declined to address a possible
standing issue because it was unnecessary, noting ā[i]n light of our decision
on the merits, we need not and do not reach any issue of standing.ā
* * *
[W]e ordinarily do not decide issues of standing where it is undisputed that
one party on each side of the litigation has standing. Thus, we decline
Petitionerās invitation to address the issue of standing where unnecessary to
do so in order to decide the outcome of the case.
Id.
In this case, it is undisputed that Applicant, the current subject property owner and
developer, and applicant of the DSP Amendment, who participated in the judicial review
below, has standing in this appeal. Therefore, because addressing the issue of District
Councilās standing is unnecessary to deciding the outcome of this case, we decline to
address the issue.
II. District Council Did Not Err When It Concluded that the Planning
Board Was Legally Correct in Treating the General Plan and Applicable
Master Plan as Advisory Documents Rather than Binding Regulations
in Connection with the DSP Amendment.
A. Partiesā Contentions
Mr. Heard asserts that the Planning Board erred as a matter of law by failing to
consider the recommendations of the General Plan or Subregion 4 Master Plan, or by
viewing these plans as merely advisory and not binding on the DSP Amendment. District
Council and Applicant counter that approval of a DSP does not require conformance to the
applicable Master Plan or the General Plan.
B. Analysis
25
We review the administrative agencyās legal conclusions with less deference than
its factual findings, āand may reverse those decisions where the legal conclusions reached
by that body are based on erroneous interpretation or application of zoning statutes,
regulations, and ordinances relevant and applicable to the property that is the subject of the
dispute.ā Greater Baden-Aquasco Citizens Assān, 412 Md. at 84. However, even with respect to certain legal issues, āan administrative agencyās interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected.ā Motor Vehicle Admin. v. Shea,415 Md. 1, 14-15
(2010) (quoting Motor Vehicle Admin. v. Delawater,403 Md. 243, 256-57
(2008) (quoting Aviation Admin. v. Noland,386 Md. 556, 571-72
(2005))).
As discussed in Zimmer, general plans contain āat a minimum, recommendations
for development in the respective county and supporting analysis[.]ā 444 Md. at 521. ā[A]rea master plansā apply to certain local areas and typically govern āspecific, smaller portions of a county and are usually more detailed than general plans overlapping the same area.āId. at 521-22
. A āsector planā is a detailed plan for the development of a portion of
a master planning area. It is defined as:
A comprehensive plan for the physical development of a portion of
one or more planning areas, showing in detail such planning features as type,
density and intensity of land uses, pedestrian traffic features, public facilities
(parking structures, public open space, rapid transit station, community
service provisions, and the like), and relationship of the various uses to
transportation, services, and amenities within the area of the sector plan and,
where appropriate, to other areas. The sector plan may include maps,
graphics, and text and is designated as the sector plan for the area which it
encompasses.
26
PGCC Ā§ 27-107(a)(206.2).
Review of this application is subject to three plans: (1) the Addison Road Metro
Town Center and Vicinity Sector Plan (ARM Sector Plan); (2) the 2010 Approved
Subregion 4 Master Plan (Master Plan); and (3) the 2014 Approved General Plan (Plan
2035) (General Plan). ā[C]omprehensive plans [like the General Plan here] which are the
result of work done by planning commissions and adopted by ultimate zoning bodies, are
advisory in nature and have no force of law absent statutes or local ordinances linking
planning and zoning.ā Friends of Frederick County v. Town of New Market, 224 Md. App.
185, 199(2015) (internal quotation marks omitted); Zimmer,444 Md. at 522
(āProposals for land use contained in a plan constitute a non-binding advisory recommendation, unless a relevant ordinance or regulation, or specific zoning, subdivision, or other land use approval, make compliance with the plan recommendations mandatory.ā); Greater Baden- Aquasco Citizens Assān,412 Md. at 98
(noting that Master Plans are generally viewed āas
non-binding advisory recommendations, unless a governing statute or ordinance clearly
elevates them to the status of a regulatory device.ā)
Thus, we turn to the PGCC to see if it makes conformity with the Master Plan, ARM
Sector Plan, and General Plan mandatory for DSP approval. PGCC Ā§ 27-281(b)(1)(A)
states that one of the general purposes of detailed site plans is to provide for development
āin accordance with the principles for the orderly, planned, efficient and economical
development contained in the General Plan, Master Plan, or other approved plan[.]ā.
However, under the Planning Board procedures, ā[r]equired findings,ā ā[t]he Planning
27
Board may approve a Detailed Site Plan if it finds that the plan represents a reasonable
alternative for satisfying the site design guidelines, without requiring unreasonable costs
and without detracting substantially from the utility of the proposed development for its
intended use.ā PGCC Ā§ 27-285(b)(1)(A).
Mr. Heard argues that PGCC Ā§ 27-281(b)(1)(A) transforms the Master Plan into a
binding regulation on the DSP Amendment. For this proposition, Mr. Heard relies on
Greater Baden-Aquasco Citizens Assān, in which the Supreme Court of Maryland
considered āwhether the [Prince Georgeās County] Planning Board, at the least, must
consider the General Planās numeric growth objective when determining whether to
approve or reject a preliminary subdivision plan.ā 412 Md. at 97. The Court held that the Planning Board should have considered the General Planās numeric residential growth objective.Id. at 110
. As the Court noted, the Master Plan stated that it was intended to be āin accordanceā with the General Plan.Id. at 107
. Thus, the Court reasoned that:
[t]he Planning Board, in determining whether a preliminary subdivision plan
conforms to the Master Plan, either must offer some analysis of how the
preliminary subdivision plan under consideration may impact the long-term
growth objective established in the General Plan or explain why such an
analysis or conclusion is not required[] . . . What the Board cannot do,
however, is ignore entirely a patently relevant element of the Plan.
Id.
Although a court typically accords deference to the administrative bodyās
interpretation of regulations routinely before it, the Court found that the Planning Board
did not even consider a relevant and applicable provision of the Master Plan, as required
by County regulations. Greater Baden-Aquasco Citizens Assān, 412 Md. at 109. Instead,
28
the Board simply determined āthat the application was ānot inconsistent withāā the General
Planās policies. Id.The Court considered this āa broad conclusory statement[,]ā unsupported by the facts in the record and therefore, ānot entitled to deferential review.āId.
However, Appellees respond that Mr. Heardās reliance on Greater Baden-Aquasco
Citizens Assān is misguided because that case involved the approval of a preliminary
subdivision plan, not a detailed site plan. See id. at 97. Recently, this Court considered whether the District Council or the Planning Board exercises original jurisdiction over a detailed site plan approval required by the Board as a condition of preliminary site plan approval. FCW Justice,238 Md. App. at 668
. In FCW Justice, we explained the detailed
site plan review process and requirements:
The legislative premise of the detailed site plan review process is that
āregulation of land development through fixed standards can result in
monotonous design and lower quality development, [therefore] certain types
of land development are best regulated by a combination of development
standards and a discretionary reviewā¦.ā PGCC Ā§ 27-281.
***
Before deciding to approve a detailed site plan, the Planning Board
must find that āthe plan represents a reasonable alternative for satisfying the
site design guidelines, without requiring unreasonable costs and without
detracting substantially from the utility of the proposed development for its
intended use.ā PGCC Ā§ 27-285(b). As the Court explained in Zimmer, the
detailed site plan process āis a method of moderating design guidelines so
as to allow for greater variety of development, while still achieving the goals
of the guidelines.ā 444 Md. at 562-63[.]
29
Id. at 656-58 (emphasis added). Thus, Appellees conclude, although a preliminary plan
must conform to the applicable Master Plan and General Plan, PGCC Ā§ 24-121,18 the
County Council, when adopting the County Code, determined that conformity to the
General Plan and applicable Master Plan would not be re-tested at the DSP stage.
Relatedly, Mr. Heard argues that under PGCC Ā§ 27-548.25(c),19 although the
Planning Board is allowed to consider alternative development standards from the ARM
Sector Plan when requested by the Applicant, such proposals cannot āsubstantially impair
implementation of the Master Plan, Master Plan Amendment, or Sector Plan.ā But, as
discussed above, Appellees counter that under PGCC Ā§ 27-285(b) and this Courtās
18
ā(a) The Planning Board shall require that proposed subdivisions conform to the
following:
(5) The preliminary plan and final plat shall conform to the area master plan,
including maps and text, unless the Planning Board finds that events have
occurred to render the relevant recommendations within the comprehensive
plan no longer appropriate, is no longer applicable, or the District Council
has not imposed the recommended zoning. Notwithstanding any other
requirement of this Section, a proposed preliminary plan or final plat of
subdivision may be designed to conform with the land use policy
recommendations for centers, as approved within current County general
plan. In such cases, the Planning Board may approve a preliminary plan
application as may be designed to conform with the land use policy
recommendations for centers, as duly approved within the current General
Plan.ā
19
āIf the applicant so requests, the Planning Board may apply development
standards which differ from the Development District Standards, most recently approved
or amended by the District Council, unless the Sectional Map Amendment text specifically
provides otherwise. The Planning Board shall find that the alternate Development District
Standards will benefit the development and the Development District and will not
substantially impair implementation of the Master Plan, Master Plan Amendment, or Sector
Plan.ā
30
discussion in FCW Justice, conformity to the General Plan and Master Plan is not required
for DSP approval.
Furthermore, the Planning Boardās decision reviewed the DSP Amendment for
compliance with the Preliminary Plans for Parcel A and Parcel 87. 20 Since preliminary
plans must conform to the General and applicable Master Plan, it stands to reason that
inherent in the evaluation of a detailed site planās compliance with its preliminary plan
requirements, is the consideration of the General and applicable Master Plan. In other
words, since conformity with the General and applicable Master Plan is tested at the
Preliminary Planning stage, it does not need to be tested for such conformity again at the
DSP stage.
This planning procedure was clarified at the Planning Board Hearing by District
Councilās Principal Counsel, David Warner:
MADAM CHAIR: Are you, let me make sure Iām clear on that. I want to
make sure Iām clear on that, Mr. Wright [sic]. Are you saying theyāre not
controlling, for instance, Plan 2035 is the General Plan, we all know the
General Plan is a policy document. It serves as a guide for future
development. It does not, they do have value and it does not mean that we
can just willy-nilly ignore it up to the extent, but each plan thatās approved
thereafter, the Sector Plans, the Master Plans, the Sector Plans and then these
other individual applications are refinements.
20
At the Planning Board Hearing, Ms. Conner, with the Subdivision and Zoning
section of the Commission, explained that there was no preliminary plan of subdivision for
Lot 5, Block B because there was no development proposed on the lot at that time. Further,
Ms. Conner explained that under the previous DSP, the Applicant had agreed to re-record
the plats for the three parcels pursuant to PGCC Ā§ 24-108(a)(3) (āA final plat may be filed
with the Planning Director and treated as a minor final plat for which no preliminary plan
is required in the following instances: . . . The sale or exchange of land between adjoining
property owners to adjust common boundary lines or consolidate lots, provided that in no
case shall additional lots be created and that all properties are the subject of a record plat.ā).
31
MR. WARNER: Yes, so, yes absolutely. They are incredibly valuable
documents and they guide planning, absolutely. However, and we refer to
them in the Staff Report to help us inform or to help staff inform their
decision making as you know any other kind of outside document we refer
to whether itās new urbanism or some other kind of, you know, I donāt know
that weāve adopted any new urbanism specifically. But we do rely on other
documents that the county and the Planning Board have adopted to inform
our review.
[MR. WARNER]: But as far as determining whether a Detailed Site Plan
can be approved, we look to what the Zoning Ordinance provides and
requires. And the Zoning Ordinance does not require compliance with
General Plan 2035 or the Subregion 4 Plan in order to approve this DSP.
(emphasis added). Each plan approved after the General Plan is a ārefinementā of the prior
plan. From that, it follows that a development proposal which complies with the applicable
sector plan also complies with the relevant master plan. The District Councilās arguments
are persuasive. The District Council did not err when it concluded that the Planning Board
was legally correct in treating the General and Master Plan as advisory rather than binding
documents at the DSP stage.
III. The District Council Did Not Err When It Concluded that there Was
Substantial Evidence in the Record to Support the Planning Boardās
Findings and Approval of the DSP Amendment.
A. Partiesā Contentions
Mr. Heard contends that the Planning Board abused its discretion, and acted
arbitrarily and capriciously, despite the evidence adduced in the record and the
requirements of the applicable plans, by approving the DSP Amendment. Specifically, Mr.
Heard argues that the Planning Board abused its discretion by approving a large surface
parking lot on Parcel 87, approving an alternative standard that would allow Applicant to
increase the building setback from the street, failing to require Applicant to provide safe
32
pedestrian crossings, permitting Applicant to delay construction of sidewalks, failing to
require Applicant to provide sufficient streetlighting, and failing to require Applicant to
provide for the undergrounding of utilities.
Appellees counter that the Planning Boardās decision to grant the requested
modifications to the Development Standards is supported by substantial evidence in the
record.
B. Analysis
The Planning Board may approve a DSP as long as it finds that the plan represents
a reasonable alternative for satisfying the site design guidelines (as outlined in PGCC Ā§ 27-
274), without requiring unreasonable costs or substantially detracting from the utility of
the proposed development. PGCC Ā§ 27-285(b)(1). In order to approve the DSP, the
Planning Board must find that the site plan satisfies applicable Development District
Standards. PGCC Ā§ 27-548.25(b). If the applicant requests development standards that
differ from those in the Development District Overlay, the Planning Board may apply the
alternate development standards so long as the Planning Board finds that the alternate
standards will benefit the development and not substantially impair implementation of the
Master Plan, Master Plan Amendment, or Sector Plan. PGCC Ā§ 27-548.25(c).
āOur review is ālimited to determining if there is substantial evidence in the record
as a whole to support the agencyās findings and conclusions, and to determine if the
administrative decision is premised upon an erroneous conclusion of law.āā Greater
Baden-Aquasco Citizens Assān, 412 Md. at 84(quoting United Parcel Serv., Inc. v. Peopleās Counsel for Balt. Cnty.,336 Md. 569, 576
(1994)). āA conclusion by [the
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planning body] satisfies the substantial evidence test āif a reasonable mind might accept as
adequateā the evidence supporting it.ā Id.
1. Surface Parking Lot on Parcel 87
Mr. Heard argues that the Planning Board erred or abused its discretion by
approving a 0.9-acre surface area parking lot on Parcel 87. Development District Standard
S2 provides: ā[s]ingle, large surface parking lots are not permitted. Instead, parking shall
be provided in smaller defined areas separated by planted medians.ā But, Mr. Heard
ignores the fact that the proposed surface parking lot features several land planted medians,
as shown on the plans and demonstrated at the Planning Board Hearing. It would be
reasonable for the Planning Board to conclude that these medians break up the parking lot
into āsmaller defined areas separated by land planted medians.ā Additionally, with respect
to Mr. Heardās argument that Applicant should have negotiated for shared parking with the
Metro parking garage across the street from the site, Applicant explained at the Hearing
before the Board that County Code requires Applicant to have those spaces āin perpetuity
if theyāre provided offsite[,]ā and āWMATA wouldnāt necessarily give us a long term lease
or anything that would satisfy that legal obligation.ā Thus, there is substantial evidence in
the record to support the Planning Boardās finding that the DSP Amendment regarding
parking complies with Development Standard S2.
2. Increased Setback and Teaser Parking
Next, Mr. Heard argues that the Planning Board abused its discretion when it
approved Applicantās proposal for an increased setback from MD 214 and Addison Road,
as well as ten surface parking spaces between the eastern building faƧade and Addison
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Road South. Specifically, Mr. Heard argues that the increased setback breaks from the
Development District Standards. Development District Standard S3(C) states: ā[a] front
build-to line between 10 and 15 feet from the right-of-way line shall be established for
office, retail/commercial and institutional buildings which front onto MD 214 and Addison
Road.ā Additionally, Mr. Heard argues that the particular development breaks from the
new urbanist principles, such as continuous building edges and consistent setbacks, as
reflected in the Development District Standardsā goal for the building site and setback
standards: ā[t]o provide a consistent setback close to the right-of-way line or street edge
without an attached row or block of commercial buildings. Setbacks should maintain a
continuous building edge to define the public zone of the street.ā Finally, Mr. Heard
contends that Applicantās āpurported justificationā for āteaser parking,ā which he
concludes is āsolely for the use and benefit of automobile drivers,ā is inconsistent with the
Sector Planās transit and pedestrian-oriented goals.
Yet, the Planning Board received substantial evidence justifying its approval of the
modification to the setback requirement. On December 18, 2019, prior to Mr. Bishopās
Staff Report, Mr. Omar A. Karim, President of Banneker Ventures (Applicant/Developer
of the subject development), responded to Mr. Bishopās comment about the setback
standards. Mr. Karim explained that a larger setback would be appropriate, in part, to avoid
the WMATA underground metro tunnel zone of influence. āConstructing a building closer
or over the WMATA zone of influence will greatly increase the construction of the project,
which will increase the financial risks to the project making it less likely for the developer
to be able to secure the type of funding needed to construct the project.ā At the Hearing,
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Mr. Karim explained to the Planning Board that in Prince Georgeās County, retail rent will
average $1.50 to $2.50 per square foot, but that would increase to $3.50 to $5.00 a square
foot for retail built in the zone of influence, which is cost-prohibitive. Mr. Karim testified
that building in the zone of influence could add at least $5 million in costs to the Project.
Additionally, the Chair of the Planning Board, Ms. Hewlett, commented that ānew
urbanism doesnāt necessarily mean that [a 10-15 foot setback] is the only way to have the
setback, that itās got to be uniform.ā
The Planning Board also heard testimony from Ms. Stephanie Farrell, an architect
with Torti Gallas Partners (an architecture and planning firm), who clarified that ā[i]t is not
that you cannot create a new urbanist active pedestrian mixed-use environment and have
surface parking.ā She explained that teaser parking would āmake it easy or clear to
vehicular patrons that there is parking[,]ā which āhelps make the retail successful and does
not, I think, detract from the ability to make it an urban mixed-use building.ā Ultimately,
the Planning Board found that given the site constraints combined with the possibility of
future development on Parcel 87, that the setback amendment would benefit the proposed
development without substantially impairing implementation of the ARM Sector plan.
Thus, the Planning Boardās approval of the amendment to the setback standards was based
on substantial evidence in the record.
3. Sidewalks
Next, Mr. Heard argues that the Planning Board erred or abused its discretion by
allowing Applicant to delay the construction of eight-foot-wide sidewalks and five-foot-
wide planting strips along the adjacent Addison Road South rights-of-way and 12-foot-
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wide hiker/biker trail along MD 214. On the DSP Amendment, Applicant noted that it
proposed to delay construction of these sidewalks until the completion of improvements to
MD 214 by another developer. Mr. Heard argues that without these sidewalks, the Central
Avenue frontage of the subject property is not pedestrian-friendly and unsafe.
ARM Development District Standard P2(C) provides that ā[s]idewalks shall be set
back from the curb on MD 214 and Addison Road to provide a safe and comfortable
walking environment. Sidewalks should be made of concrete paving or better, be a
minimum of five-feet in width, and should provide a five-foot-wide grass strip for the
planting of shade treesā¦ā. While these Standards require the implementation of the eight-
foot-wide sidewalks and five-foot-wide planting strips and the hiker/biker trail, they do not
specify a time for implementation. Applicant indicated it will implement the sidewalk
improvements after another developer makes improvements at the intersection of MD 214
and Addison Road. Applicant argues that the nature and scope of these improvements are
such that any sidewalk or planning strip implemented prior to these improvements would
be affected. Further, the Planning Board determined that it made more sense for Applicant
to construct the sidewalks after the road is improved because the road improvements are
āsubject to the jurisdiction of other agenciesā and therefore, requiring Applicant to
construct the sidewalks before the MD 214 and Addison Road improvements would be
inefficient and wasteful. For example, if Applicantās sidewalks were constructed before
nearby road improvements were made, those sidewalks would be damaged or destroyed by
subsequent improvements. Thus, we conclude that there was substantial evidence in the
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record to support the Planning Boardās finding that the delayed construction of the
sidewalks was a reasonable alternative from the Development Standards.
4. Lighting
Next, Mr. Heard argues that the Planning Board erred or abused its discretion by
approving the DSP Amendment without ornamental pole-mounted streetlights along the
adjacent MD 214, Addison Road South, and Zelma Avenue rights-of-way.
Development District Standard P5, which concerns lighting in the subject area,
requires that ā[a]t the time of the first site plan in Metro West or Addison South, a
consistent type of ornamental pole and luminaire shall be selected in consultation with
DPW&T.ā (emphasis in original). However, there are no development standards requiring
an applicant to implement a specific type of ornamental pole-mounted streetlight along off-
site, adjacent rights-of-way at the subject site. As discussed more later on in this opinion,
the Planning Board does not have the authority to condition approval for the DSP
Amendment on off-site improvements by Applicant. The Planning Board addressed this
issue at the Hearing, explaining that many of the improvements Mr. Heard seeks, including
the lighting, ā[are] outside of the property that they are subject to the jurisdiction of other
agencies.ā
However, the Planning Board did have the authority to condition approval of the
DSP Amendment on Applicant providing more information about its proposed on-site
lighting, which it did. At the hearing, Ms. Farrell testified that ā[t]here is a combination of
bollards at the plazas and the residential entrance that are created off of Central and then []
in the parking lot it would be larger pole lighting . . . and building mounted lighting as
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well.ā She added that this lighting would be decorative, and that Applicant would add
lighting to āany additional walkways that are created inside the right of way.ā Thus, there
is substantial evidence in the record to support the Planning Boardās finding that Applicant
complied with Standard P5.
5. Underground Utilities
Finally, Mr. Heard contends that the Planning Board erred or abused its discretion
by approving the DSP Amendment, which failed to show the placement underground of all
existing and proposed utilities along the adjacent MD 214, Addison Road South, and Zelma
Avenue rights-of-way.
Development District Standard P6 requires āfuture development in the town center
shall place all utilities underground.ā Although the DSP Amendment does not show the
undergrounding of utilities along the adjacent rights-of-way, Condition 1.c of the
Resolution requires Applicant to: ā[r]evise the site plan to show all on-site utility lines and
facilities, for utilities that serve the subject property and the proposed project, as being
placed underground.ā Accordingly, the Planning Board has already required what Mr.
Heard is seeking. Therefore, we conclude that the District Council did not err when it
concluded that there was substantial evidence in the record to support the Planning Boardās
findings and approval of the DSP Amendment.
IV. The District Council Did Not Err When It Concluded that the Planning
Board Was Legally Correct in Declining to Condition Approval of the
DSP Amendment on Offsite and Site-Adjacent Improvements Relating
to Bikeways, Trails, and Roadways.
A. Partiesā Contentions
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Mr. Heard argues that the Planning Board erred as a matter of law because it refused
to condition approval of the DSP Amendment on offsite and site-adjacent improvements
relating to bikeways, trails, and roadways, such as connecting Zelma Avenue with MD 214
and adding pedestrian crossing at Addison Road and Zelma Avenue.
Appellees respond that the Planning Board is only empowered to condition approval
of the DSP Amendment on roadway improvements at the time of subdivision pursuant to
Md. Code Ann., Land Use, Ā§Ā§ 23-104(c), 23-103(a). Additionally, Appellees contend that
the proposed trails and bike paths cannot be a condition of the DSP Amendment because
the right-of-way is under the jurisdiction of the Maryland State Highway Administration.
B. Analysis
Mr. Heard contends that the Planning Board failed to make necessary improvements
to the rights-of-way adjacent to its property to connect Zelma Avenue to MD 214, and to
provide safe crossings across MD 214, MD 332, and Addison Road South. To support his
argument, Mr. Heard relies on Development Standard P1, which provides in relevant part:
F. Intersections should employ āsafe-crosses.ā This treatment enhances pedestrian
safety by expanding the sidewalk area in the unused portion of the on-street
parking lane adjacent to the intersection. []
G. Zelma Avenue shall remain and connect into the road network.
H. Old Central Avenue shall be removed from Rollins Avenue eastward. Rollins
Avenue shall be extended north to East Capitol Street to facilitate traffic
movement to MD 214 both east and westbound. New development shall
accommodate the proposed closing of Old Central Avenue and not become an
obstacle to future planned roads.
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However, the Planning Board rejected this argument because it is only empowered
to make the exactions Mr. Heard seeks at the subdivisionānot DSPāstage. Land Use
Article Ā§ 23-104(b) provides in relevant part:
(c)(1) [. . .], the subdivision regulations may include provisions for:
(ii) the coordination of roads within the subdivision with:
1. existing planned or platted roads;
2. features of the regional district;
3. that countyās general plan; or
4. a transportation plan adopted by the Commission as part of that countyās
general plan.
Further, under LU Ā§ 23-103(a), land dedication for roads occurs at the time of the
āsubdivision plat,ā i.e., a Preliminary Plan.
(a) [ā¦] [I]n connection with the approval of a subdivision plat, the
appropriate county planning board may require a dedication of land for:
(1) an interior subdivision road;
(2) a road that abuts the subdivision for the purpose of creating a new road
as part of the plan of subdivision to provide for traffic access to another
subdivision road; and
(3) the widening of an existing or public road that abuts the subdivision for
the purpose of providing additional right-of-way adequate to serve additional
traffic that will be generated by the subdivision.
Moreover, the authority to regulate roadway and other off-site improvements is not
included in the purposes for which the local law may regulate. See LU Ā§ 22-104.
At the hearing, the Planning Board considered Mr. Heardās request for off-site
improvements. Initially, the Board asked its Principal Counsel, Mr. Warner, whether Mr.
Heardās requested conditions could be included in the DSP Amendment, but the Board
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ultimately determined Mr. Heardās requests were not within the purview of the DSP
approval.
MADAM CHAIR: Well one of the things that might be the adjacent
roadways that need to be made into full intersections. Because I donāt know
that we have the ability to do that.
MR. WARNER: [T]he improvements to roadways are something that is
analyzed at the time of Preliminary Plan of Subdivision and what is required
in terms of those improvements is decided at that time. The issues that youāre
looking at now are more design related when they come to things like parking
and lighting and those kinds of issues.
MADAM CHAIR: But even to make the roadways full intersections that
would come from the Public Works and Transportation or State Highway
Administration.
MR. WARNER: Well many of the design improvements that [Appellant]
addressed such as when are the sidewalks going to be built, why isnāt the
lighting being put in. Yes, a lot of those are subject, theyāre outside of the
property that they are subject to the jurisdiction of other agencies.
As Mr. Warner explained, while the Planning Board may have had the authority to
condition approval of the Preliminary Plan application on these off-site roadway
improvements, it did not have such authority at the time of DSP.
Regarding Mr. Heardās proposed trails and bike paths, in its decision, the Planning
Board adopted a memorandum, in which the Transportation Planning Section reviewed the
DSP Amendment for conformance with the 2009 Approved Countywide Master Plan of
Transportation and the conditions of prior approvals. That memorandum acknowledged
that the planned bike lanes will be constructed along Addison Road and MD 214, but that
these improvements cannot be conditioned with the DSP Amendment because āthe trail is
located within the right-of-way of MD 214 and is under the jurisdiction of the Maryland
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State Highway Administration (SHA) [ā¦].ā The Boardās Decision also adopted a
memorandum, in which SHA indicated that this application was not required to construct
the improvements on MD 214.
We conclude that the District Council did not err when it determined that the
Planning Board was legally correct when it declined to condition approval of the DSP
Amendment on Mr. Heardās suggested offsite and site-adjacent improvements relating to
bikeways, trails, and roadways.
V. The District Council Did Not Err When It Concluded that the Planning
Boardās Findings of Fact Were Supported by Substantial Evidence and
Untainted by Legal Impropriety.
A. Partiesā Contentions
Mr. Heard argues that the Planning Board erred by not specifically addressing or
ruling on any of his proposed findings of fact, but instead, simply adopting the Planning
Staffās Report. Additionally, Mr. Heard contends the Board erred by relying on the District
Councilās āultra viresā modifications of DSP 06001-01.
Appellees respond that the Planning Board was not required to address Mr. Heardās
proposed findings or rule on each fact that he proposed, the Board simply could adopt the
findings of the Planning Staff Report. Additionally, Appellees argue that the Board did not
improperly rely on any findings made by the District Councilās review of DSP 06001-01
when it approved the DSP Amendment.
B. Analysis
We begin with the observation that āthere is no requirement that the Board must set
out in its findings of fact a discussion of all of the evidence.ā Ocean Hideaway Condo.
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Assān v. Boardwalk Plaza Venture, 68 Md. App. 650, 661(1986) (involving an appeal of a zoning decision made by the Ocean City Board of Zoning Appeals to permit construction of a seventeen-story building). Furthermore, a Planning Board may rely on a Staff Report as long as it āis thorough, well conceived, and contains adequate findings of fact.ā Greater Baden-Aquasco Citizens Assān,412 Md. 73, 110
(2009) (noting that a Planning Boardās
ārote repetitionā of the Technical Staff Report does not necessarily indicate a lack of
meaningful fact-finding).
Here, the record includes a thorough Staff Report, which reviewed the DSP
Amendment for compliance with the ARM Sector Plan, zoning ordinances, Preliminary
Plans, prior DSPs, and Development District Standards. Based on its findings, the Report
recommended that the Planning Board approve the DSP Amendment subject to certain
conditions, and also recommended that the Board approve some of the Applicantās
modification requests, such as an increased setback and decreased residential parking space
requirements, among other items discussed above. The record also includes a long
transcript from the Planning Board Hearing, where Mr. Heard was able to present his
arguments to the Board and examine Planning Board staff and Applicant witnesses
regarding his proposed findings of fact. In its over-thirty-page Decision, the Planning
Board addressed all of the relevant criteria: compliance with the Development Standards
and requests to make modifications, zoning ordinances, Preliminary Plans, previously
approved DSPs, and other requirements. The Boardās decision also addressed the Hearing,
discussing the evidence and specific issues presented. Considering all this information, the
Planning Board made its Decision:
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After considering the entire record including presentations of M-NCPPC
staff, the Technical Staff Report, the case presented by the applicant, all
testimony and submitted documentation, and applicable law, the Planning
Board determines the application meets the requirements of law and
approves the DSP application pursuant to the findings contained in this
Resolution embodying the Boardās final decision.
Finally, Mr. Heard contends that the Planning Board improperly relied on
previously approved DSPs for this site. When considering approval of an amendment to a
DSP, the Board must make the same findings as it would when considering approval of the
original DSP. PGCC Ā§ 27-289(b). That, in fact, is what the Planning Board did here, as
discussed above. The fact that the Board noted that the previously approved DSPs were
relevant because they addressed many of the same factors at issue in this DSP Amendment,
does not mean the Board did not consider this DSP Amendment anew. Notwithstanding
this argument, as Appellees point out, Mr. Heard appealed the District Councilās review of
DSP 06001-01 and did not prevail in the circuit court or in his prior appeal to this Court.
See Heard v. Prince Georgeās Cnty. Council, et al., No. 1306, September Term 2011
(Decided: April 16, 2014). Because Mr. Heard failed to raise this issue during that appeal,
he is barred from doing so now. Loveday v. State, 296 Md. 226, 229(1983) (āOnce this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the ālaw of the caseā and is binding on the litigants and courts alike[.]ā) (quoting Fid.-Balt. Nat. Bank & Tr. Co. v. John Hancock Mut. Life Ins. Co.,217 Md. 367, 372
(1958)). Accordingly, we conclude that the
45
District Council did not err when it determined that the Planning Boardās findings of fact
were supported by substantial evidence and were untainted by legal impropriety.
JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGEāS COUNTY
AFFIRMED. APPELLANT TO PAY THE
COSTS.
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