Coscan Washington, Inc. v. Maryland-National Capital Park & Planning Commission

ROSALYN B. BELL, Judge. This case arises from a decision of the Prince George’s County Planning Board (Planning Board) of the Maryland-National Capital Park and Planning Commission (Commission or M-NCPPC). The Planning Board approved, with conditions, a Specific Design Plan submitted by Coscan Washington, Inc. (Coscan), appellant, for a residential subdivision called King’s Grant. Coscan requested that the Planning Board reconsider a condition that requires a certain percentage of the homes to be constructed of brick, wood, stone, or stucco.

The Planning Board denied that request. Coscan appealed to the Circuit Court for Prince George’s County under the Maryland Administrative Procedure Act. The circuit court affirmed the decision of the Planning Board and Coscan has appealed. On appeal, Cos-can raises the following issues: —Whether the Planning Board has the authority to specify building materials? —Whether the Planning Board’s conditional approval of the Specific Design Plan was arbitrary and ⁶⁰⁷ capricious? 1 In order to address the issues in a coherent fashion, it is necessary to explain the statutory background and the procedural steps in Comprehensive Design Zoning.

COMPREHENSIVE DESIGN ZONING —Statutory Scheme— The General Assembly of Maryland authorized the Prince George’s County District Council (District Council) 2 to adopt a “General Plan” to regulate development in that portion of the County designated as the Maryland Washington Regional District. Md.Code Ann. Art. 28, § 7-108 (1957, 1990 Repl.Vol.). In March of 1982, the District Council approved a General Plan with the stated goal being to provide guidance for the long-range physical development of the County. The General Plan addresses growth and development in the County, including housing, transportation, agricultural and environmental needs.

It also encourages development favorable to the “image of the County as a good place to live and work.” Prince George’s County General Plan, 26 (1982). In accordance with Art. 28, § 7-108 and the General Plan, a new zoning approval scheme called the Comprehensive Design Zone (CDZ) process was adopted. See Prince George’s County Code §§ 27-476 to 27-532.1 (1987 ed.). The CDZ process is an alternative to conventional zoning approval.

The CDZ process is more flexible and yet more rigid than conventional zoning. “It is more flexible in the scope of permissible uses, residential densities and building intensities. It is more rigid in that commitments made by ⁶⁰⁸ the developer in his plan proposals will carry the force and effect of law.” Prince George’s County Planning Board, A Proposal for Comprehensive Design Regulations, 3 (September 1970). —Approval Process Under CDZ— The CDZ process has three stages requiring approval of (1) a Basic Plan, (2) a Comprehensive Design Plan and finally (3) a Specific Design Plan. Prince George’s County Code § 27-478. Each stage is more refined than the previous stage.

Thus, each stage gives a more detailed and explicit depiction of what the applicant intends to do with the land. Additionally, each stage must conform to the guidelines established in the previous stage. Prince George’s County Code §§ 27-518 & 27-528. The Basic Plan sets out the zoning and general parameters for the development of the subject property.

Prince George’s County Code § 27-179(e)(l)(D) (1987 ed.). The Basic Plan is approved by the Prince George’s County Council, sitting as the District Council. Prince George’s County Code § 27-195 (1987 ed.). Approval is based upon referrals and recommendations from the Commission staff and the Planning Board.

See Prince George’s County Code §§ 27-189, 27-191 & 27-192 (1987 ed.). The Comprehensive Design Plan specifies the design principles of buildings, landscapes and streetscapes. It also specifies the densities and locations of dwelling units and other improvements. Prince George’s County Code § 27-518.

The Comprehensive Design Plan is approved by the Planning Board. Prince George’s County Code § 27-522. An aggrieved party may appeal the Planning Board’s decision to the District Council. Prince George’s County Code § 27-523.

The final stage in the CDZ process is the Specific Design Plan. At this stage, the plan for development is refined further and must demonstrate that adequate attention has been given to building and landscape design and engineering factors. Prince George’s County Code § 27-527. The ⁶⁰⁹ Specific Design Plan is approved by the Planning Board.

Prince George’s County Code § 27-528. Appellant states that an aggrieved party may only appeal to the circuit court under Maryland’s Administrative Procedure Act, and appellees do not controvert this statement. 3 ⁶¹⁰ FACTS Appellant, Coscan, owns approximately 196 acres of land located just outside the town of Upper Marlboro in Prince George’s County. This land is zoned R-S (Residential-Suburban). The R-S classification is one of the Comprehensive Design Zones established by Prince George’s County Code § 27-511 (1987 ed.). 4 An 81.78-acre parcel of Coscan’s land is the subject of this litigation and is known as the King’s Grant Subdivision (King’s Grant).

Kings’ Grant is located between Brown Station Road and Ritchie-Marlboro Road. It is bordered on the north by Brooke Lane, a two-lane rural road, and on the west by Ritchie-Marlboro Road. (See Appendix A.) Six of the King’s Grant units will abut an historic property known as Oakland. The Oakland property is improved by a former plantation manor house which was constructed in the 1820s.

Oakland, which is an historic resource, is constructed of wood and sits on approximately nine acres of land. It is privately owned. Coscan proposes to develop the entire 196-acre parcel by constructing 357 attached townhouses on approximately 114 acres fronting Brown Station Road and 119 detached single-family houses on approximately 81.78 acres fronting Ritchie-Marlboro Road. This appeal concerns only the 119 detached single-family houses. ⁶¹¹ In November of 1981, a Basic Plan for the entire 196-acre parcel was approved by the District Council.

On December 17, 1987, Coscan filed its Comprehensive Design Plan (CDP) for a 81.78-acre parcel with the Maryland-National Capital Park and Planning Commission (M-NCPPC). Section 27-518(b) of the Prince George’s County Code (1987 ed., 1989 supp.), requires a CDP proposal to include a “description of design principles” of the units to be constructed. Thus, Coscan’s CDP proposal included a section titled “Architecture” which provided in pertinent part: “ — Material selection will provide for development that is distinctive and reflects high-quality design. “ — Materials which should be encouraged are the following: wood, stone, brick, stucco and other comparable selections.” On September 15, 1988, the Planning Board approved Coscan’s CDP. The approval provided that the Design Guidelines be revised to include: “The choice and mix of materials on the facades of buildings will provide an attractive living environment.

Materials which will be encouraged include wood, stone, brick, and stucco. Aluminum and vinyl siding will be discouraged.” On September 13, 1989, Coscan submitted its Specific Design Plan (SDP) for the 81.78-acre parcel of land. Section 27-527(b) of the Prince George’s County Code (1987 ed., 1989 supp.), requires that SDP proposals include, among other things, “preliminary architectural plans, including floor plans and exterior elevations.” Coscan’s SDP proposal offered vinyl siding as the standard exterior finish on all sides of the units. On December 14, 1989, the Urban Design Section of the M-NCPPC issued a memorandum, stating that Coscan’s SDP proposal did not conform to the CDP provision that aluminum and vinyl siding would be discouraged.

On December 21, 1989, a hearing on Coscan’s SDP proposal was held before the Planning Board. A member of the Urban ⁶¹² Design Section suggested during testimony that approval of the SDP be conditioned upon 60 percent of the units being constructed of brick, wood, stone, or stucco. The Planning Board unanimously approved the inclusion of this condition and instructed the Urban Design Section to draft a resolution for signature. On January 8,1990, the Planning Board issued Resolution No. 89-660 which approved Coscan’s SDP proposal with certain conditions.

Coscan has challenged Condition 2, which provides: “Sixty percent of the total number of units shall consist of a single facade material including brick, stone, wood or stucco as an exterior finish material. A minimum of 20 percent of units of the 60 percent stated above, shall be all brick. None of the units with an exterior finish material of aluminum or horizontal siding shall be located directly adjacent to the Historic Oaklands [sic] property. The various styles and materials used in the construction of units shall be distributed throughout the development to provide visual variety and interest.

Units directly adjacent to the historic resource shall be [of] a variety of materials and a style of architecture compatible with the historic resource.” Coscan requested that the Planning Board reconsider Condition 2. The Planning Board denied that request, but ordered the issuance of a corrected resolution to resolve certain ambiguities in Condition 2. The revised Condition 2 provides: “Sixty percent (60%) of the total number of units shall have exterior elevations of one hundred percent (100%) (except foundations or chimneys) of either brick, stone, wood or stucco. Of this sixty percent (60%), at least one-third shall have exterior elevations of one hundred percent (100%) brick.

Units directly adjacent to the historic site shall be all brick. The various styles and materials used in the construction of units shall be distributed throughout the development to provide visual variety and interest.” ⁶¹³ Coscan appealed to the Circuit Court for Prince George’s County. The circuit court affirmed the decision of the Planning Board and Coscan has appealed. The appellees in this case are the Commission and Robert Clagett Sanders. 5 Additionally, the Prince George’s County Historical and Cultural Trust filed a brief as an amicus curiae.

The position of the Trust is essentially the same as appellee Sanders. We shall affirm the judgment of the circuit court. We explain. AUTHORITY TO PRESCRIBE BUILDING MATERIALS Appellant argues that the Planning Board does not have the authority to prescribe the type of building materials to be used in the construction of homes.

Appellant attacks the Planning Board’s authority to impose Condition 2 on three grounds. First, appellant argues that there is no authority under the Prince George’s County Code to impose Condition 2. Second, appellant argues that there is no authority under the General Plan to impose Condition 2. Third, appellant contends that the imposition of Condition 2 is an impermissible exercise of the police power under Maryland case law.

We disagree. —The County Code— Section 27-527 of the Prince George’s County Code dictates the factors the Planning Board shall consider in reviewing an application for a Specific Design Plan. That Section provides: “(a) The applicant shall demonstrate to the Planning Board that, in the preparation of the Specific Design Plan, he has devoted adequate attention to building and landscape design, and engineering factors. The signatures of a qualified design team (including an architect, a landscape architect, and a professional engineer) on the ⁶¹⁴ Specific Design Plan shall be prima facie evidence that the respective factors within the scope of the signer’s profession have been considered. “(b) The Specific Design Plan shall include (at least) the following: “(1) A reproducible site plan showing buildings, functional use areas, circulation, and relationships between them; “(2) Reproducible preliminary architectural plans, including floor plans and exterior elevations; and “(3) A reproducible landscape plan prepared in accordance with the provisions of the Landscape Manual.” The architectural community has recognized that building design “includes the element of physical imagery, which entails form, space, light, color, texture, and pattern.” F. Ching, Building Construction Illustrated, 2.5 (1975). As stated previously, the Planning Board is authorized to review building design before approving a SDP.

The term “building design” is broad enough to include the type of building materials because these materials affect the form, texture and pattern of the building. Moreover, § 27-528 of the Prince George’s County Code provides that the SDP must conform to the CDP. The CDP in the instant case provided that wood, stone, brick and stucco would be encouraged and that vinyl and aluminum siding would be discouraged. In direct contravention to this design guideline, appellant proposed in its application for a SDP that the standard exterior finish for all sides, of the buildings would be aluminum siding.

The Planning Board’s imposition of Condition 2 was a reasonable step to insure that the SDP conforms to the guidelines set forth in the CDP. —The General Plan— Appellant also argues that the Planning Board did not have the authority to impose Condition 2 under the General Plan. As previously noted, the General Assembly has au ⁶¹⁵ thorized the District Council to adopt a General Plan for development in the County. Md.Code Ann. Art. 28, § 7-108 (1957, 1990 Repl.Vol.). In formulating the General Plan, the District Council has been directed to consider many factors.

Art. 28, § 7-108(a)(3). Among other things, the District Council may consider: “Existing and forecasted needs and demand for housing, and the amount, type, quality, and general location of housing; * a?: * $ Sites, structures, areas, or settings of archeological, historical, architectural, cultural, or scenic value or signifi cance____” Art. 28, § 7-108(a)(3)(vi) and (ix) (emphasis added). Pursuant to this legislative authority, the District Council adopted a General Plan. The stated objectives of the General Plan include: “4 To improve the quality of development and the image of the County as a good place to live and work ...

(a) by ensuring high standards of construction in all forms of housing, as well as high quality environments for all residential areas; * * * * * * “5 To play a role in regional development which is increasingly advantageous to Prince George’s County ... * ^ * * s{: sfr (i) by continually improving the quality of neighborhoods and housing so as to make the County a more attractive place for quality economic development projects; * * * * * * “8 To assure sound economic development and the expansion of the tax base ... ⁶¹⁶ (f) by encouraging the development of upper-income housing; ****** “12 To provide decent, safe, and sanitary housing for all County residents ... ****** (d) by making attractive provision within the County for upward mobility in housing choices as an alternative to out-migration____” Prince George’s County General Plan, 26, 28, 31 (March 1982). The quoted portions of both Art. 28, § 7-108 and the General Plan would be meaningless if the Planning Board had no authority to regulate the architecture, quality, style and materials of new housing beyond the minimum building code requirements. Appellant argues, however, that neither the language nor the purpose of the General Plan supports the conclusion that the Planning Board is authorized to prescribe the type of building materials to be used in the construction of homes. It contends that because the General Plan is a guide and not a mandate it cannot be used to support the Planning Board’s actions in this case.

We disagree. The introductory language of the General Plan provides: “1 The General Plan is a guide — not a mandate. It neither encourages nor discourages growth, but says what should happen if and when development occurs. “2 The General Plan is a policies plan. It deals with countywide issues and their interrelationships.

The Plan defines basic policy areas. It does not prescribe specific land uses or zoning recommendations for individual parcels of land.” Prince George’s County General Plan, 13 (March 1982). We agree that provisions of the General Plan are not a specific mandate. That does not mean, however, that the guidelines and policies described within it cannot support the Planning Board’s actions here.

Many laws authorize a course of ⁶¹⁷ conduct without mandating that conduct. Moreover, a statement by the District Council of guidelines and policies is superfluous if that statement does not authorize the Planning Board to implement those guidelines and policies. —The Case Law— Appellant also argues that the Planning Board is prohibited from prescribing the type of materials to be used in the construction of homes by Maryland case law. It contends that Condition 2 was imposed solely for aesthetic reasons. Therefore, appellant concludes, the imposition of Condition 2 was an inappropriate exercise of governmental authority.

Appellant cites the case of City of Baltimore v. Mano Swartz, 268 Md. 79 , 299 A.2d 828 (1973), to support its arguments. In Mano Swartz , the City of Baltimore sought to prohibit certain commercial signs within the City’s downtown area. Mano Swartz, 268 Md. at 81-84 , 299 A.2d 828 . The Court noted that the language of the ordinance made it clear that its sole purpose was aesthetic.

The Court invalidated the ordinance: “The Ordinance had as its sole purpose the achievement of an aesthetically pleasing result, and we have held this not to be a permissible use of the police power. “While aesthetic goals may legitimately serve as an additional legislative purpose, if health, morals or safety or other ends generally associated with the concept of public welfare are being served, they cannot be the only purpose of regulation.” Mano Swartz, 268 Md. at 86-87 , 299 A.2d 828 (citations omitted). Appellant argues that “[i]f the distinction between primary and secondary objective is to bear any weight at all, one can not assume that because the government acts generally to protect the health, safety and welfare that any regulation which has aesthetic result must be presumed to be valid.” (Emphasis in original.) Appellant contends that in the instant case there is no evidence that any benefit ⁶¹⁸ accrues to the public’s general welfare by insisting on all brick construction. Thus, because the general welfare is not served by Condition 2, appellant concludes it should not be required to expend additional funds to achieve an aesthetic result. 6 The Commission argues that the Planning Board has the authority to regulate for the purpose of aesthetics because it has the express authority to regulate development to protect and promote the general welfare. Md.Code Ann. Art. 28, § 7-110 (1957, 1990 Repl.Vol.).

Essentially, the Commission argues that aesthetic considerations are always a matter of protecting and promoting the general welfare. We reject such an argument. To accept this argument would, in effect, validate all governmental attempts to regulate aesthetics as legitimate regulations for the general welfare. This would overrule Mano Swartz, supra, and a long line of cases.

The Commission also attempts to distinguish the instant case from Mano Swartz on several grounds. The first three grounds are based on the fact that the Planning Board’s action in the instant case is authorized by State and County legislation. The next ground is that the Planning Board did not completely prohibit aluminum or vinyl siding while the City of Baltimore attempted to prohibit all signs. Finally, the Commission argues that this case is distinguishable because the Comprehensive Design Zoning process is not mandatory, but a development alternative.

The Commission, however, seems to have missed the point. Whether regulations for the sole purpose of aesthetics are a valid exercise of the police power is, at heart, a matter of constitutional law. If the act of a governmental ⁶¹⁹ body is an improper use of the police power, no legislative enactment from any source will validate that act. Thus, the fact that the State Legislature and the Prince George’s County Council have authorized the Planning Board to consider aesthetics does not empower the Planning Board to make decisions solely on the basis of aesthetic reasons.

Additionally, simply because the Planning Board did not completely prohibit vinyl and aluminum siding would not validate a decision if it was based solely on aesthetic reasons. A decision based solely on aesthetic reasons is invalid whether it completely prohibits or only partially prohibits certain acts. Moreover, simply because the zoning process used in this case is an alternative rather than a mandatory process cannot validate an otherwise invalid act. The freedom of an applicant to choose between alternative processes does not give the government the power to do that which the government cannot otherwise do.

Whether the Planning Board may regulate the type of material used in constructing homes depends on whether there were legitimate reasons for regulating building materials other than aesthetics. Clearly, aesthetics were a consideration in this case. Even so, the Planning Board’s decision will stand if aesthetics were not the sole consideration. The Court of Appeals stated in Mano Swartz, 268 Md. at 91 , 299 A.2d 828 : “We do not wish to be understood as saying that aesthetic considerations cannot play a proper role in the zoning process, because they do.

It has long been recognized that the police power may rightly be exercised to preserve an area which is generally regarded by the public to be pleasing to the eye or historically or architecturally significant.” Appellees advance a number of legitimate reasons for the imposition of Condition 2. Those reasons are: (1) conformance to the CDP; (2) improving the quality of housing in Prince George’s County; (3) protecting a scenic area; and ⁶²⁰ (4) preserving an historie site. We shall address each of these reasons separately. Appellant chose to pursue the CDZ approval process instead of conventional zoning.

As noted previously, the CDZ process involves certain trade-offs. The applicant receives more liberal zoning classifications in exchange for the applicant’s agreement to certain conditions. One such condition is that the SDP will conform to the CDP. Prince George’s County Code § 27-528(a).

Appellant, at the CDP stage, agreed that brick, stone, wood and stucco should be encouraged. 7 While aesthetics may have been a partial basis for this guideline, appellant agreed to it. As we stated earlier, Condition 2 was a reasonable method of ensuring that the SDP conformed to the CDP. Moreover, when the motion to impose Condition 2 was introduced, a commissioner prefaced the motion as follows: “In