Cnty. Council of Prince George's Cnty. v. Convenience & Dollar Mkt./Eagle Mgmt. Co.

Panel: Woodward, C.J., Kehoe, Leahy, JJ. Kehoe, J. ⁶¹⁷ In Prince George's County v. Zimmer Development , 444 Md. 490 , 584, 120 A.3d 677 (2015), the Court of Appeals held that the District Council exercises appellate jurisdiction when it reviews decisions of the Planning Board approving certain types of site plan applications, specifically, comprehensive and specific design plans submitted as part of the development review process for a property located in a comprehensive design zone. The Court further held that, because the Council exercises appellate jurisdiction, it can reverse a Planning Board decision "only if the Board's decision was not supported by substantial evidence, was arbitrary, capricious, or illegal otherwise[.]" Id. In this appeal from a judgment of the Circuit Court for Prince George's County, we must apply Zimmer's teachings as to the nature of the District Council's jurisdiction and the scope of its review to a decision by the Planning Board granting Convenience & Dollar Plus/Eagle Management Company's application to certify that the convenience store operating on its property is a nonconforming use.

We will hold that the District Council exercises appellate jurisdiction when it reviews such decisions by the Planning Board. Because the Planning Board's decision in the present case was supported by substantial evidence, and was neither flawed by a legal error nor otherwise arbitrary or capricious, the District Council erred when it reversed the Planning Board's decision. Background 1. An Abbreviated Statutory Overview The Regional District Act The primary source of Montgomery and Prince George's Counties' authority to engage in land use regulation is the ⁶¹⁸ Maryland-Washington Regional District Act (the "RDA"). 1 ²²⁸ Zimmer , 444 Md. at 524 -25 , 120 A.3d 677 ; County Council of Prince George's County v. Brandywine Enterprises, Inc. , 350 Md. 339 , 342, 711 A.2d 1346 (1998).

The RDA is now codified as Md. Code Ann. (2012), Division II of the Land Use Article ("LU"). The provisions of the RDA that are relevant to the issues raised in this appeal are implemented in Prince George's County through the Prince George's County Zoning Ordinance, which is codified as Title 27 of the Prince George's County Code (the "PGGC"). The RDA and the Zoning Ordinance are complicated statutes with many moving parts. Writing for the Court in Zimmer, the Honorable Glenn T. Harrell, Jr. examined portions of the RDA and Title 27 in the context of underlying principles of land use law to give context to the contentions raised in that case. 444 Md. at 501 -36 , 120 A.3d 677 .

Judge Harrell's cogent and thorough analysis is our starting point, and we will refer to it frequently in the ensuing pages. There are two broad categories of land use control: zoning and planning. Zimmer, 444 Md. at 505 , 120 A.3d 677 ⁶¹⁹ (citing, among other authorities, Appleton Regional Community Alliance v. County Comm'rs of Cecil County, 404 Md. 92 , 102, 945 A.2d 648 , (2008) ; and Mueller v. People's Counsel for Baltimore County, 177 Md. App. 43 , 68, 934 A.2d 974 (2007) ). "Zoning" is "the 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." Zimmer, 444 Md. at 505 , 120 A.3d 677 (quoting Maryland Overpak Corp. v. Mayor and City Council of Baltimore , 395 Md. 16 , 48, 909 A.2d 235 (2006) ).

Necessarily implicit in the power to establish use districts and zoning regulations is the authority to enforce their strictures. Accordingly, "parcels must be put to use in accordance with their zoning[.]" Id. There are exceptions to this rule; and one is the concept of a non-conforming use-that is, a use that either: (1) had existed either prior to original comprehensive zoning affecting the property; or (2) had been permitted by the zoning regulations in the past, but is no longer permitted because of an intervening change in the law-may continue, subject to amortization in certain circumstances. Zimmer, 444 Md. at 505 , 120 A.3d 677 .

This concept is codified in the RDA. See LU § 22-113. 2 The concept of "planning" is broader in scope. "Planning concerns 'the 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[.]' " Zimmer , 444 Md. at 505 , 120 A.3d 677 (quoting 1 E.C. YOKLEY, ZONING LAW AND PRACTICE § 1-2 ²²⁹ (4th ed. 1978) (other citation omitted) ). One aspect of planning is the formulation of "plans," which are documents (typically approved by the local legislature) that "contain elements concerning transportation and public facilities, ⁶²⁰ recommended zoning, and other land use recommendations and proposals." Mayor & Council of Rockville v. Rylyns Enterprises , 372 Md. 514 , 529, 814 A.2d 469 (2002).

Subdivision control, i.e., the regulation of the process by which larger tracts of land are divided into smaller ones for the purpose of residential, commercial, and industrial development, is an inherent aspect of the local planning function. Zimmer , 444 Md. at 505 , 120 A.3d 677 (citing Richmarr Holly Hills, Inc. v. American PCS, L.P ., 117 Md. App. 607 , 645-46, 701 A.2d 879 (1997) ); see also County Commissioners of Cecil County v. Gaster , 285 Md. 233 , 249, 401 A.2d 666 (1979) (Without subdivision controls, "[p]lanning would be futile[.]") The two concepts overlap. "Because 'planning and zoning complement each other and serve certain common objectives,' some implementation and enforcement procedures may have both planning and zoning aims." Zimmer , 444 Md. at 506 , 120 A.3d 677 (quoting People's Counsel for Baltimore County v. Surina , 400 Md. 662 , 689, 929 A.2d 899 (2007) ). What we have said so far doesn't distinguish Prince George's and Montgomery Counties from any other of the local jurisdictions in Maryland that exercise land use control authority.

What sets these counties apart from the rest of the State is the way that planning and zoning authority is allocated among four agencies: the Maryland-National Park and Planning Commission (the "Commission"); the planning board of each county; the county councils, which are referred to "district councils" when they exercise powers granted to them in the RDA 3 ; and the county boards of appeal. 4 The RDA and, ⁶²¹ to some extent, the local laws of Prince George's and Montgomery counties, determine how specific land use control functions are allocated. When there is a conflict between the RDA and local law, the RDA prevails. See Zimmer , 444 Md. at 571 , 120 A.3d 677 . The RDA assigns regional planning functions to the Commission, which is a non-partisan State agency consisting of ten members, five chosen from Montgomery and five from Prince George's County.

LU § 15-102. 5 ²³⁰ The five members of the Commission from each county also serve as the planning board for that county. LU § 20-201. The Legislature set out the powers and duties of the planning boards in LU § 20-202 and § 20-207. Section 20-202 reads in pertinent part (emphasis added): (a)(1) Subject to paragraph (2) of this subsection, a county planning board: ⁶²² (i) is responsible for planning, subdivision, and zoning functions that are primarily local in scope ; and (ii) shall exercise, within the county planning board's jurisdiction, the following powers: 1. planning; 2. zoning; 3. subdivision; 4. assignment of street names and house numbers; and 5. any related matter. * * * (b)(1) A county planning board has exclusive jurisdiction over: (i) local functions, including: 1. the administration of subdivision regulations ; 2. the preparation and adoption of recommendations to the district council with respect to zoning map amendments; and 3. the assignment of street names and house numbers in the regional district[.] * * * In Zimmer , the Court construed LU § 20-202(b)(i) to mean that "the county planning boards have 'exclusive jurisdiction' over 'local functions,' but [it] does not detail each of the local functions within each jurisdiction." 444 Md. at 567 , 120 A.3d 677 (footnotes omitted).

As a general rule, "including" means "including by way of illustration and not by way of limitation." General Provisions Article § 1-110. See also Hackley v. State , 389 Md. 387 , 393, 885 A.2d 816 (2005) ("Legislative drafters are to 'use "means" if the definition is intended to be exhaustive' ... and to 'use "includes" if the definition is intended to be partial or illustrative[.]' " (quoting Department of Legislative Services, MARYLAND STYLE MANUAL FOR STATUTORY LAW 27 (1998) (some brackets omitted) ). For its part, LU § 20-207 6 provides that "functions not specifically allocated in this subtitle shall be assigned to the ⁶²³ Commission or to one or both of the county planning boards, as needed." Such assignments must be approved both by the Commission and the county council. Id.

Approval by the county council may be evidenced by a provision in a local land use ordinance. Zimmer , 444 Md. at 566 , 120 A.3d 677 . The Commission's approval can be inferred from its administrative practices. Id. at 566-67 , 120 A.3d 677 ("The MNCPPC appears ²³¹ to have accepted the assignment, as the Planning Board considers, in practice, CDPs and SDPs." (footnote omitted) ).

No single provision of the RDA sets out the land use control authority of the district councils. However, and among other things, the district councils have the legislative authority to adopt and amend zoning laws, LU § 22-104; to establish programs for the transfer of development rights, LU § 22-105; to establish procedures for the resolution of disputes as to building permits and other "zoning questions," LU § 20-503; and to enact historic preservation regulations. LU § 22-108. Additionally, the RDA specifically provides that the Prince George's County District Council may exercise quasi-judicial review authority over certain land use decisions by that County's Planning Board.

See LU § 25-210 (authorizing the District Council to review decisions of the Planning Board approving or disapproving detailed site plan applications). 7 Finally, LU § 22-111 authorizes the District Council to make provisions in the County Zoning Ordinance for the County Board of Appeals to decide questions concerning the ⁶²⁴ extension of legal nonconforming uses within or on buildings or lots, and the resumption of a nonconforming use after interruption "by fire or other calamity." 8 Section 22-111 is the centerpiece of one of the District Council's contentions on the merits of this case. We will discuss this statute in part 6 of this opinion. The RDA's statutory directives are implemented in Prince George's County through the Prince George's County Code. The local legislation that speaks to our concern in this case-nonconforming uses-is found in the County's Zoning Ordinance.

The Prince George's County Zoning Ordinance The local law governing nonconforming uses in Prince George's County is found in Part 3, Division 6 of the Zoning Ordinance. PGCC § 27-241 sets out the general rule: a "nonconforming building, structure, or use may be continued, repaired, or maintained." Whether a use that is not permitted by the current zoning regulations is allowed by law to continue depends upon a process that the Zoning Ordinance labels "certification." In order for a use to be "certified," the property owner must present evidence showing (1) when the use was lawfully commenced on the property; (2) that the use has not ceased for more than 180 consecutive days after the use became nonconforming (this requirement has some exceptions); and (3) that, other than not having a use and occupancy permit, there are no local Code violations outstanding against the property. 9 If the property owner ²³² satisfies these criteria, it will receive a use and occupancy permit from the County. ⁶²⁵ An applicant begins the process by filing a written application with the Planning Board. The application must be supported by documentation, which can include "tax records, business records, public utility installation or payment records, and sworn affidavits." PGCC § 27-244(b)(2)(A). The Board provides public notice of the pending request.

PGCC § 27-244(c). At this juncture, the statute sets out two alternative procedural paths: First, if there is no request for a public hearing before the Board, a Board staff member reviews the applicant's written submission. If the staff member concludes that the documentation supports certification, he or she makes a recommendation to the Board that the certification request be granted. A copy of the recommendation is sent to the District Council, the recommendation is posted on the Board's website, and notification is sent to interested parties.

PGCC § 27-244(d)(3). Second, if there is a request for a hearing, or if the Planning Board staffer concludes that the documentation submitted by the applicant is incomplete or not convincing, the Planning Board must conduct a public hearing and decide whether to grant the application. PGCC § 27-244(f)(1)(A)( 3). A copy of the Planning Board's decision is forwarded to the District Council.

Either way, the District Council can become involved. In the first scenario, the District Council may decide to review the Planning Board staff recommendation "on its own motion." ⁶²⁶ PGCC § 27-244(e)(1). (This procedure is locally referred to as "calling up." See Zimmer, 444 Md. at 535 , 120 A.3d 677 .) If the Planning Board staff recommendation is called up by the District Council, the matter is set for a hearing before a zoning hearing examiner, who makes a recommendation to the Council. The District Council then makes a decision based primarily on the record developed in the hearing before the zoning hearing examiner. 10 In the present appeal, however, we are concerned with the second scenario, that is, one in which the Planning Board itself decides to grant or deny a certification application.

In such instances, the District Council may call up the Planning Board's decision or a party may appeal the Board's decision to the District Council. PGCC § 27-244(f)(5)(A). In either event, the District Council will hold a public hearing and will: ²³³ decide to affirm, reverse, or modify the recommendation of the Planning Board. The decision of the Council shall be based on the record made before the Planning Board.

No new evidence shall be entered into the record of the case unless it is remanded to the Planning Board and a rehearing is ordered. PGCC § 27-244(f)(5)(D). 2. Convenience & Dollar's Certification Application and the Board's Hearing Convenience & Dollar has owned a small commercial property located on Southern Avenue near Capitol Heights since 2005. The property is improved by an 800-square-foot building and a parking area.

The property has been used for retail purposes since the 1980s and is located in the County's Subregion 4 Planning District. 11 ⁶²⁷ In 2005, the property was zoned as Commercial Shopping Center ("C-S-C"). Retail stores are a permitted use in C-S-C districts. On June 1, 2010, the District Council approved a new master plan for Subregion 4, and enacted a sectional map amendment, which changed the zoning classifications of certain properties within the subregion. One of the affected parcels was the property owned by Convenience & Dollar; it was reclassified from C-S-C to Residential-Townhouse ("R-T").

Retail stores are not permitted uses in the R-T district. Therefore, in order to continue to use its property for retail purposes, Convenience & Dollar Plus needed to obtain a nonconforming use certification. In December 2012, and without the assistance of legal counsel, Convenience & Dollar filed an application for certification. In March 2013, the Planning Board staff reviewed the application.

The staff found the documentary information submitted with the application to be scanty and inconsistent. Public records indicated that there had been a braid shop 12 ⁶²⁸ operating on the property for a time, and it wasn't clear to staff whether the braid shop was the exclusive use or whether the shop shared the space with a convenience store. The staff report to the Board stated that the business records submitted in support of the application did not clearly indicate that the retail use had been open without an interruption of 180 days or more since the rezoning occurred, and that the affidavits submitted "were contradictory." The report concluded: ²³⁴ Perhaps additional evidence from the applicant to the Planning Board will be more persuasive. However, based on the evidence submitted, staff believes that the subject application should be recommended for DENIAL.

The Planning Board held a hearing on the application in March 2013. Convenience & Dollar, now represented by counsel, presented the testimony of Kevin White, the senior pastor of the New Life Christian Center, a church located about four blocks from the Convenience & Dollar property. Pastor White testified that he had been affiliated with the church for thirteen years, that the longest vacation that he took doing that period was for three days, that the Convenience & Dollar property had been used as a convenience store throughout that period, and that he frequently shopped there. In response to questions from Convenience & Dollar's counsel, Pastor White stated that there had also been a braid or beauty salon located on the premises between 2007 and 2009.

JoAnne Brown testified that she had been the manager of a restaurant located a few feet from the Convenience & Dollar property "for over 20 years." Like Reverend White, she testified that the Convenience & Dollar property had been continuously used as a convenience store and she had often shopped there. She also testified that there had been a beauty or braid shop sharing the premises with the convenience store in the period from 2007 to 2009. Malik Waleed, Convenience & Dollar's owner, also testified. He told the Board that the property has been used as a convenience store since he purchased it in 2005 and that, for a time from 2007 to 2009, he attempted to lease part of the ⁶²⁹ space to a beauty/braid shop but this arrangement was never satisfactory.

He testified that, throughout this period, the convenience store "never shut [its] doors," and the property has been a "full blown convenience store" since 2010. Counsel asked for, and obtained, a continuance to supplement the record with additional financial and tax records. The hearing resumed in June 2013. Ivy Thompson, a member of the Board's staff, addressed the Board and informed it that staff had reviewed the additional financial records and other documentation submitted by Convenience & Dollar's counsel.

She stated that: Staff has come to the conclusion that the combination of [the original and supplemental] supporting evidence [and] the testimony from the previous Planning Board hearing has closed the 180 day gap noted in the original Staff Report, and therefore staff is recommending approval[.]" Commissioners Washington and Geraldo expressed reservations about the probative weight of the documentary evidence. For example, they noted the absence of sales and use tax returns for the latter half of 2010. Convenience & Dollar's counsel acknowledged that the returns had not been filed but represented that Mr. Waleed's accountant was in the process of preparing them. After further discussion, the Board members voted unanimously to approve the application.

The Board's resolution stated in pertinent part: The submission of the additional documentation [at the June hearing] [ 13 ] combined ²³⁵ with the testimony heard during the [hearing] supports the applicant's claim that 4119 Southern Avenue has been in continuous use as a variety/retail store since the zoning changed from C-S-C to R-T on June 1, ⁶³⁰ 2010.... While it remains unclear as to how much of the property was occupied by the convenience store, there is nothing in the Zoning Ordinance that indicates that a use must occupy 100 percent of the property. This supplemental information closes the 180-day gap. The District Council elected to review the Planning Board's decision pursuant to PGCC § 27-244(e). 3.

The Proceedings Before the District Council and the Circuit Court The District Council conducted a hearing on the certification application on October 21, 2013. Consistent with the District Council's established practice, no new evidence was introduced. Although there is no transcript of the District Council's hearing in the extract, the speaker's list identifies Convenience & Dollar's counsel as the only person who addressed the Council. On January 14, 2014, the Council voted to deny the application.

It issued a written decision on the same day. The District Council's decision stated in relevant part: We have reviewed the record supporting the application, including applicant's evidence in support of its application for certification, as well as the transcripts of hearing testimony offered at the March 21, 2013, and June 6, 2013, hearings before the Planning Board, in context with oral arguments from the parties on October 21, 2013. Based on our review of that record, we are not persuaded by the evidence because, in our view, the Applicant has not met its burden to show that the use has not ceased to operate for more than one hundred eighty (180) consecutive calendar days between the time the use became nonconforming, and the date when the application [was] submitted[.] Absent from the record is documentary evidence, such as tax records, business records, public utility installation or payment records, and sworn affidavits, showing the commencing date and continuous existence of the nonconforming use . In fact, the District Council finds persuasive the record testimony of Commissioner Washington questioning ⁶³¹ the evidence supporting the application.

We are not persuaded that purchase records for goods typically offered for sale at a convenience store are credible to show that these items were actually sold, especially without wholesale invoices to demonstrate those sales. Moreover, the District Council assigns considerable probative value to the testimony from the hearing by Commissioner Geraldo [ 14 ] highlighting gaps in the business and tax records submitted by Applicant, particularly the fact that there are no tax records for the six-month period of June 1, 2010 to January l, 2011 to adequately demonstrate the continuous operation of the use. (Emphasis in original; citations to record omitted.) Convenience & Dollar filed a petition for judicial review. The circuit court reversed ²³⁶ the decision of the District Council.

The court concluded, as do we, that the District Council exercised appellate jurisdiction over the Planning Board's decision. The court remanded the case to the District Council for it to "review the Planning Board's decision regarding Petitioner's request for certification of a nonconforming use to determine whether the Planning Board's decision ... was arbitrary, capricious, discriminatory, or illegal." The District Council has appealed the judgment and presents one issue, which we have reworded: Does the Prince George's County District Council exercise original, as opposed to appellate, jurisdiction when it reviews a decision of the Planning Board to grant or deny an application to certify a nonconforming use? 4. The Standard of Review Our standard of review in cases of this nature is well-established: ⁶³² When we review the final decision of an administrative agency, such as the Board of Appeals, we look through the circuit court's and intermediate appellate court's decisions, although applying the same standards of review, and evaluate the decision of the agency. ... The court's task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.

In our review, we inquire whether the zoning body's determination was supported by such evidence as a reasonable mind might accept as adequate to support a conclusion. * * * Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law. People's Counsel for Baltimore County v. Loyola College , 406 Md. 54 , 66-67, 956 A.2d 166 (2008) (quotations marks, citations, ellipses, and bracketing deleted). 5. The Proper Scope of the District Council's Review The dispositive issue on appeal is whether the District Council exercises original jurisdiction when it reviews a decision of the Planning Board in a nonconforming use certification proceeding. The agency that has such jurisdiction is authorized to make de novo fact finding with regard to the merits of a detailed site plan application.

Zimmer , 444 Md. at 570 , 120 A.3d 677 . In Zimmer , the Court of Appeals held that the Planning Board has original jurisdiction to review and approve comprehensive design plans ("CDPs") and specific design plans ("SDPs"), and that the District Council review was limited to deciding whether the Planning Board's decision "is not authorized by law, is not supported by substantial evidence of record, or is arbitrary or capricious." Id. at 573 , 120 A.3d 677 . The Court's analysis was primarily one of statutory interpretation. The Court began with LU § 20-202(b)(i), 15 which ⁶³³ "provides that the county