County Council of Prince George's County v. Brandywine Enterprises, Inc.

ELDRIDGE, Judge. This case arises out of the denial of an application for a special exception for sand and gravel mining in Prince George’s County. The zoning hearing examiner approved the application with supporting findings of fact and conclusions of law. On appeal, the County Council of Prince George’s County, sitting as a district council, failed to take any action and rendered no findings of fact or conclusions of law.

Under a local zoning regulation, as interpreted by the district council, this failure to act operated as a denial of the application. The question before us concerns the legality of the denial under the circumstances. ³⁴² I. The Regional District Act, Maryland Code (1957, 1997 Repl.Vol., 1997 Supp.), Art. 28, §§ 1-101 through 8-127, is the exclusive source of zoning authority in those areas of Prince George’s County which it covers. Prince George’s County v. Maryland-Nat’l Capital Park and Planning Comm’n, 269 Md. 202, 225-286 , 306 A.2d 223, 226 , cert. denied, 414 U.S. 1068 , 94 S.Ct. 577 , 38 L.Ed.2d 473 (1973). See also Montgomery County v. Revere, 341 Md. 366, 383-384 , 671 A.2d 1, 9-10 (1996); Mossburg v. Montgomery County, 329 Md. 494, 502 , 620 A.2d 886, 890 (1993).

The Regional District Act authorizes the County Council to sit as a district council in zoning matters, and, when it does so, it is acting as an administrative agency, Montgomery County v. Revere, supra, 341 Md. at 384 , 671 A.2d at 10 . In Prince George’s County, pursuant to § 8-110(a) of the Act, a zoning hearing examiner initially decides applications for special exceptions. Section 8-110(a)(3) goes on to provide that “in Prince George’s County the district council shall provide for the appeal of decisions of the zoning hearing examiner in special exception and variance cases to the district council.” Turning to the facts of this case, on November 14, 1989, Brandywine Enterprises filed an application for a special exception to conduct a sand and gravel mining operation on 77.64 acres of land in Aquasco in Prince George’s County. The land in question, consisting mostly of undeveloped woodlands, is zoned O-S (open space), and is surrounded by farms, undeveloped woodlands, and some single-family residences.

After two reports by the technical staff of the Maryland-National Capital Park and Planning Commission recommending approval, and a resolution by the Planning Board recommending that the application be denied, and after three hearings before the zoning hearing examiner, the hearing examiner granted the special exception subject to certain conditions. The zoning hearing examiner issued two extensive opinions making detailed findings of fact and conclusions of law. 1 Specifically, the zoning hearing examiner made find ³⁴³ ings concerning (1) the neighborhood of the subject property, including other special exceptions for surface mining granted in the area, (2) the Master Plan for the area which stated an intent that sand and gravel mining be given priority over other land uses, (3) the effects of the proposed mining operation on traffic in the area, (4) the geology of the site, (5) the effects on air quality, (6) noise, (7) tree conservation, (8) historic sites in the area, and (9) opposition to the application. Based on ten single-spaced pages of factual findings, the zoning hearing examiner concluded as follows: “The testimony in the instant case is similar to that testimony which is presented in most sand and gravel mining requests. The case is not unique.

All such operations have trucks traveling the roads to and from the mining site and utilize excavation equipment on site. All sand and gravel operations use substantially the same amount and type of equipment and have dust and exhausts that become airborne. The applicant has shown that all potential pollutants are within accepted governmental standards—even for particularly sensitive individuals. The complaints made by the opposition show no adverse effect upon the neighborhood— the area has been consistently used for sand and gravel mining operations in the past; the existing traffic situation will not be overburdened by the operation; the hours of operation are limited to weekday business hours; the mining operation will operate within the state regulations for noise and state and national standards regarding dust pollutants; the mining will not affect ground water levels nor pollute the ground water.

Any disturbance by this special exception will be routine for sand and gravel mining operations which are permitted by special exception in all residential zones. There is no special characteristic of this ³⁴⁴ neighborhood.... There is nothing different or unique in this case.” An appeal of the zoning hearing examiner’s decision to the district council was taken by Raymond Richards, a local resident who had opposed the special exception application before the zoning hearing examiner. After oral argument, the district council was unable to reach a decision on whether the special exception should be granted or denied.

The district council then issued a form entitled “Notice of Denial” which stated as follows: “Pursuant to the provisions of Sec. 27-132(d)(2) of the Zoning Ordinance, a zoning matter shall be considered to have been denied if the district council fails to render a final decision in accordance with the time limit and voting requirements. “The above-referenced application/appeal appeared on the district council’s agenda for final action on May 24, 1994; however, the council was unable to render a final decision. “You are hereby notified that as of July 1, 1994, said application/appeal is denied by operation of the aforementioned provisions.” This decision contained no findings of fact or conclusions of law supporting the denial. Brandywine then sought judicial review in the Circuit Court for Prince George’s County. Brandywine argued, inter alia, that the inability of the district council to reach a decision did not result in a denial of its special exception application under the local zoning regulation, § 27-132(d)(2) of the Prince George’s County Code, but resulted in a denial of the appeal from the zoning hearing examiner’s decision. Therefore, Brandywine argued, the application should be deemed approved as decided by the zoning hearing examiner.

Brandy-wine argued alternatively that if the failure of the district council to act resulted in a denial of the application under the local zoning regulation, then that denial was unlawful, arbitrary, capricious and unsupported by substantial evidence, especially in light of the zoning hearing examiner’s findings ³⁴⁵ and conclusions supporting approval. The circuit court reversed the district council’s decision by order dated May 18, 1995, because of “insufficient evidence in the record to render the council’s decision fairly debatable.” The circuit court remanded the case to the district council with instructions to approve the application. The district council then appealed to the Court of Special Appeals which affirmed. Prince George’s County v. Brandywine, 109 Md.App. 599 , 675 A.2d 585 (1996).

The intermediate appellate court determined that the inaction by the district council resulted in a denial of the appeal from the zoning hearing examiner’s decision, and not a denial of the special exception application. Thus, the intermediate appellate court concluded, the zoning hearing examiner’s decision was sustained by the district council’s inaction, resulting in approval of the special exception application. The court reached this result based on its analysis of the Prince George’s County zoning regulations as well as the Regional District Act. The district council then filed a petition for a writ of certiorari which this Court granted.

County Council of Prince George’s County v. Brandywine, 343 Md. 566 , 683 A.2d 178 (1996). The district council argues in this Court that the Court of Special Appeals incorrectly interpreted § 27-132(d)(2) of the Prince George’s County Code and the Regional District Act, in concluding that the inaction by the council resulted in a denial of the special exception appeal and not the special exception application. The local zoning regulation, § 27-132(d)(2), states that “[i]f the district council fails to render a final decision in accordance with the time limit and voting requirements of this Section, the zoning matter shall be considered to have been denied, unless otherwise specified ... This shall not be applicable to the adoption of text amendments.” The district council maintains that the words “zoning matter” in § 27-132(d)(2) refer to the application for a special exception and not the appeal from the zoning hearing examiner’s ³⁴⁶ decision.

The district council also argues that such result is mandated by a recent amendment to § 27-132, passed by the district council while this case was pending on appeal, which explicitly states that “the application shall be considered to have been denied.” The district council claims that this result is consistent with the Regional District Act and with this Court’s decisions under that Act. Consequently, the district council reasons, “[t]he only inquiry ... [is] whether, given the statutory denial, the record makes the statutory denial unreasonable, arbitrary or capricious.” According to the district council, a reviewing court must search the record for any evidence which could support a denial. It argues that if this Court locates even a “scintilla of [such] evidence” then we must reverse the lower courts and affirm the denial of the application, despite the lack of findings of fact and conclusions of law by the district council explaining its reasons for the denial. Brandywine argues that the Court of Special Appeals correctly interpreted § 27-132(d)(2) and that the recent amendment has no effect on the resolution of this case.

It further argues that, even if the district council’s interpretation of the regulation is correct, the circuit court properly concluded that the district council’s decision was unsupported by substantial evidence. Additionally, Brandywine argues that the denial of the special exception application was unlawful, arbitrary and capricious.

II

As mentioned previously, the Regional District Act is the exclusive source of zoning authority in those areas of Prince George’s County located within the Regional District. Therefore, “ ‘any enactment concerning zoning in the county, which is at variance with the Regional District Act, is inoperative within the district.’ ” Mossburg v. Montgomery County, supra, 329 Md. at 502 , 620 A.2d at 890 , quoting Chevy Chase View v. Rothman, 323 Md. 674, 685 , 594 A.2d 1131, 1136 (1991). ³⁴⁷ The provision of the Regional District Act governing the resolution of the instant case is § 8-123. That section states that “[i]n Prince George’s County, no application for a map amendment or special exception, which is contested, may be granted or denied except upon written findings of basic facts and written conclusions.” This provision makes clear that, when the zoning hearing examiner grants a contested special exception application, and there is an appeal, a statutory denial of the application by the district council, with no written findings of fact or conclusions of law, is not authorized by the Regional District Act. Section 8-123 of the Regional District Act plainly mandates that when a decision is rendered in a contested application for a special exception, whether granting or denying the application, written findings of fact and conclusions must be provided.

No provision is made in § 8-123 for a “statutory denial” or any other type of approval or denial without written findings and conclusions supporting the action. Any provisions of the Prince George’s County zoning regulations which are at variance with this section of the Regional District Act are inoperative. Accordingly, to the extent that the local zoning regulation, § 27—132(d)(2) of the Prince George’s County Code, allows the district council to deny a special exception without there being any written findings and conclusions supporting the denial, the regulation is inconsistent with the Regional District Act and is invalid. This conclusion is supported not only by the plain language of the Regional District Act, but also by this Court’s decisions.

In Mossburg v. Montgomery County, supra, 329 Md. at 506-508 , 620 A.2d at 892-893 , the Court was called upon to review the propriety of a county zoning ordinance requiring a super-majority vote by the Montgomery County Board of Appeals for the approval of a special exception application. We held that the supermajority requirement