County Council of Prince George's County v. Chaney Enterprises Ltd. Partnership

Adkins, J. Land use decisions are often contentious and frequently challenged—both administratively and in court. Petitioner County Council of Prince George’s County sitting as District Council amended an area master plan to prohibit surface mining in certain mineral-rich areas of the county. Today we consider whether Respondents—two mining companies and a mining trade organization—can seek judicial review of the master plan. We also determine whether the master plan amendments are preempted by state law.

BACKGROUND The Maryland-Washington Regional District Act (“RDA”) governs zoning, planning, and other land use matters in most of Prince George’s and Montgomery Counties. Md. Code (1957, 2012 Repl. Vol.), § 20-101 of the Land Use Article (“LU”); see also Cty. Council of Prince George’s Cty. v. Zimmer Dev.

Co., 444 Md. 490, 521 , 120 A.3d 677 (2015). 1 Through the RDA, and subject to its provisions, the State granted these counties the authority to regulate land use in those parts of the Maryland-Washington Regional District (“Regional District”) located within their respective borders. LU §§ 20-202, 22-104. Under the RDA, the District Council has the authority to adopt and amend zoning laws and maps, LU § 22-104(a)(1), (2), and must periodically consider whether to amend the master plans for the areas located in the Regional District, LU § 21-105(c)(1). The District Councils for Prince George’s County and Montgomery County consist of ⁵²² their respective county councils.

LU §§ 22-101, 14—101(f)(1). The RDA divides the counties’ planning and zoning authorities into separate titles—Title 21 governs planning and Title 22 governs zoning. Maryland has long recognized a distinction between zoning and planning. Appleton Reg’l Cmty.

Alliance v. Cty. Comm’rs of Cecil Cty., 404 Md. 92, 102 , 945 A.2d 648 (2008). Although they “complement each other and serve certain common objectives,” they achieve those objectives through different means. Zimmer, 444 Md. at 505-06 , 120 A.3d 677 (citation omitted).

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.” Id. at 505 , 120 A.3d 677 (citation omitted). The primary goal of zoning is “the immediate regulation of property use through the use of [zoning] classifications.” Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 530 , 814 A.2d 469 (2002) (citations omitted). A property owner may receive a special exception, which permits a use not automatically allowed by the zoning classification. See Stanley D. Abrams, Guide To Maryland Zoning Decisions § 11.01 (5th ed. 2012).

Special exceptions must be authorized by an administrative body pursuant to existing zoning laws and are subject to standards and conditions. Id. Plans, on the other hand, serve as a guide for long-term land use and development goals and propose zoning changes to implement these aims. Rylyns, 372 Md. at 529 , 814 A.2d 469 (footnote omitted); Pattey v. Bd. of Cty.

Comm’rs for Worcester Cty., 271 Md. 352, 360 , 317 A.2d 142 (1974) (citations omitted). Because plans do not regulate property use, zoning tools such as sectional map amendments, which alter zoning for large portions of land, are used to implement their recommendations. 1 Sara C. Bronin & Dwight H. Merriam, Rathkopf's The Law of Zoning and Planning § 1:41 (2017); see Cty. Council for Montgomery Cty. v. Dist. Land Corp., 274 Md. 691, 696 , 337 A.2d 712 (1975) (quoting from a District ⁵²³ Council resolution explaining that a sectional map amendment was adopted to bring an area into conformance with a master plan).

FACTS AND LEGAL PROCEEDINGS For zoning and planning purposes, Prince George’s County is divided into seven subregions, each with its own master plan. Subregion 5, the focus of this appeal, covers nearly 74 square miles of land located in the southwest corner of Prince George’s County, just south of Washington, D.C. Subregion 5 is a major source of sand and gravel for construction projects in the surrounding area. Respondents Chaney Enterprises Limited Partnership (“Chaney”) and Southstar Limited Partnership (“Southstar”) own and operate sand and gravel mines in Prince George’s County. 2 Respondent Maryland Transportation Builders and Materials Association (“MTBMA”) is a trade organization that represents the mining industry and has members with mining operations located in the county (collectively, “Mining Entities”). In 2002, Prince George’s County approved a new general plan that set forth the long-term vision for land use and development in the county.

As part of its vision, the 2002 Prince George’s County Approved General Plan (“2002 General Plan”) divided the county into three land use areas called the Developed, Developing, and Rural Tiers. Approximately three-quarters of Subregion 5 was placed into the Developing Tier, with the remainder in the Rural Tier. Several years later, the Preliminary 2009 Subregion 5 Master Plan (“2009 Master Plan”) revised the subregion’s master plan to reflect the goals and policies of the 2002 General Plan. The 2009 proposed plan recognized that “[sjand and gravel [are] essential element[s] of new construction in the Washington, D.C. [ ] region” and sought to “capitalize[ ] on the extraction of sand and gravel resources prior to the land being ⁵²⁴ preempted by other land uses.” It also set a goal of providing “commercially viable access to sand and gravel resources.” Petitioner Prince George’s County Council sitting as District Council (“District Council”) adopted the 2009 Master Plan in September 2009.

In 2012, the Circuit Court for Prince George’s County invalidated the 2009 Master Plan due to the District Council’s failure to follow State-mandated procedures. In April 2013, the District Council held a joint public hearing with the Prince George’s County Planning Board (“Planning Board”) on a new plan, the 2013 Subregion 5 Master Plan (“2013 Master Plan”), which contained the same goals and policies for surface mining as the 2009 Master Plan. At the hearing and in written comments, several participants expressed concern about the effects of mining operations in Subregion 5 on the surrounding communities. The Mining Entities did not appear at the hearing or submit written comments on the 2013 Master Plan.

After considering the oral and written testimony, the Planning Board added more detailed special exception guidelines, but it did not propose any changes to the 2013 Master Plan’s sand and gravel policies. On July 8, 2013, the District Council met to consider several zoning matters, including the 2013 Master Plan. The meeting notice did not indicate that the District Council would be considering matters related to surface mining. 3 At the meeting the District Council considered the testimony and exhibits related to the 2013 Master Plan, and then directed its staff “to prepare a resolution of approval with revisions.” On July 24, 2013, the District Council adopted, by resolution (“Resolution”), the 2013 Master Plan with amendments added since its July 8, 2013 meeting (“the Amendments”). The ⁵²⁵ purpose of the 2013 Master Plan was to “establish[ ] policies and strategies to carry out a land use, preservation, and development vision for [] Subregion 5” consistent with the 2002 General Plan.

The Amendments “restriet[ed] sand and gravel mining to the [R]ural [T]ier.” It altered the plan’s goal from “capitaliz[ing]” on sand and gravel resources to “ba-lanc[ing] the need for” them against “the potential negative impact and nuisance to nearby properties and the environment” and removed language that prioritized the extraction of sand and gravel resources over other land uses. The District Council inserted language to “[e]ncourage” mining companies to “provide specific evidence” of a mine’s economic benefit. The plan was also amended to require mining companies to “mitigate on[-] and off-site transportation impacts” and potentially limit the hours and duration of mining activities. Finally, the Amendments required mining companies “to achieve post[-]mining reclamation that meets environmental needs.” 4 The District Council did not send the Amendments back to the Planning Board for comment or a public hearing prior to their approval.

On August 15, 2013, the District Council published a public notice announcing its approval of the 2013 Master Plan with the Amendments. On August 2013, the Mining Entities filed a petition for judicial review of the 2013 Master Plan in the Circuit Court for Prince George’s County pursuant to LU § 22—407(a)(1). The Mining Entities argued that the Amendments were invalid because the District Council failed to follow procedural requirements for their adoption. They also argued that the Amendments were preempted by Maryland’s Surface Mining Act (“SMA”). 5 In its opposition to the Mining Entities’ peti ⁵²⁶ tion, the District Council raised four jurisdictional arguments for dismissal.

Specifically, it argued that the petition was not properly before the court because: (1) none of the Mining Entities participated in the 2013 Master Plan proceedings; (2) the Mining Entities failed to exhaust administrative remedies by applying for a special exception; (3) the 2013 Master Plan is not subject to judicial review; and (4) the case was not ripe for review. The Circuit Court affirmed the District Council’s adoption of the Amendments, and found that LU § 22-407 only authorized judicial review of “sectional map amendments and zoning ordinances, and not [ ] master plans.” The court also concluded that the Amendments were not preempted by the SMA. The Mining Entities appealed to the Court of Special Appeals, which reversed in an unreported per curiam opinion. Chaney Enters.

Ltd. P’ship v. Cty. Council of Prince George’s Cty., 2016 WL 4698144 , at ¹ (Md. Ct. Spec. App. Sept. 7, 2016). The intermediate appellate court rejected the District Council’s jurisdictional challenges to the Mining Entities’ suit.

It held that the 2013 Master Plan was invalid because the District Council failed to send the Amendments back to the Planning Board for written comment. Id. at ¹⁰. On the preemption question, the court held that the SMA did not preempt the Amendments. 6 Id, at ¹⁴. The District Council filed a petition for writ of certiorari, and the Mining Entities filed a cross-petition. ⁵²⁷ We granted certiorari on both petitions.

The District Council presented the following questions for our review: 7 1. Can Respondents seek judicial review of the 2013 Master Plan under LU § 22-407? 2. Did the trial court correctly uphold the District Council’s adoption of the 2013 Master Plan Amendments as procedurally proper? The Mining Entities presented one question for our review: 8 Are the District Council’s Amendments to the 2013 Master Plan preempted by the SMA?.

Because we answer the District Council’s first question in the affirmative and the remaining questions in the negative, we shall affirm the judgment of the Court of Special Appeals. We will, however, conclude that the Amendments are severa-ble and that the remaining portions of the 2013 Master Plan still stand. ⁵²⁸ STANDARD OF REVIEW Judicial review of an administrative agency action is typically “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169 (2001) (citation omitted). But the three questions we are tasked with answering—(1) whether LU § 22-407 authorizes judicial review of an area master plan; (2) whether the adoption of the Amendments was procedurally proper; (3) and whether the Amendments are preempted by the State’s surface mining laws—are questions of law, which we review without deference. See Zimmer, 444 Md. at 553 , 120 A.3d 677 (citation omitted).

DISCUSSION The District Council has presented a barrage of interwoven jurisdictional and procedural arguments which we will attempt to untangle. Its primary contention is that LU § 22-407(a)(1) does not authorize judicial review of area master plans. As its fallback position, the District Council asserts that even if LU § 22-407(a)(1) permits judicial review in this case, the Mining Entities must meet certain threshold requirements before proceeding in court. Finally, the District Council contends that it complied with the procedural requirements for adopting the Amendments.

The Mining Entities, of course, disagree. On the preemption question, the Mining Entities argue that the Amendments are preempted by the SMA, which grants the Maryland Department of the Environment (“MDE”) authority to issue surface mining permits. In response, the District Council asserts that the General Assembly did not intend for the permitting process to supplant local land use authority, and therefore the Amendments are not preempted. Judicial Review Under LU § 22-407(a)(l) The District Council contends that the 2013 Master Plan merely sets land use policies—unlike zoning, it is not binding—and therefore is not subject to judicial review.

In support ⁵²⁹ of its argument, the District Council notes that the 2013 Master Plan was adopted pursuant to its planning authority under Title 21, not its zoning authority under Title 22. Because LU § 22^107(a)(l) appears in Title 22, not Title 21, the District Council argues, it does not authorize judicial review of the Amendments. 9 The RDA authorizes judicial review of certain District Council decisions under LU § 22-407(a)(1). When the Mining Entities filed their petition for judicial review, it provided: (a)(1) Judicial review of a final decision of the district council, including an individual map amendment or a sectional map amendment, may be requested by: (i) any municipal corporation, governed special taxing district, or person in the county; (ii) any civic or homeowners association representing property owners affected by the final decision; or (iii) if aggrieved, the applicant for the zoning map amendment. (Emphasis added.) 10 This is not the first time that we have been tasked with interpreting the RDA’s judicial review provisions.

In County Council for Prince George’s County v. Carl M. Freeman ⁵³⁰ Associates., Inc., 281 Md, 70, 376 A.2d 860 (1977), the Court considered whether the District Council’s approval of a rezoning sectional map amendment was subject to judicial review under Maryland Code (1957, 1970 Repl. Vol., 1976 Cum. Supp.), Article 66D, § 8-106(e), a predecessor to LU § 22-407(a)(1). Id. at 72-74, 376 A.2d 860 .

Similar to the provision at issue here, the statute provided for “judicial review of any final decision of the district council.” Id. at 75, 376 A.2d 860 (emphasis added). Unlike the contested provision, it did not expressly provide for review of sectional map amendments. The Court rejected the District Council’s argument that a sectional map amendment is “purely legislative” and therefore was not a final decision subject to judicial review. Id.

It reasoned that “by using the words ‘any final decision’ ... the [Legislature expressed an intent that council resolutions adopting [sectional map amendments] be appealable in Prince George’s County.” Id. The District Council argues that we have not extended this holding to master plans, and we should not do so now. But we think that Freeman’s, logic applies with equal force in this case. The Freeman Court further reasoned that the General Assembly intended to provide broad judicial review in Prince George’s County because the narrower Montgomery County provisions only permitted appeals from applications for map amendments.

Freeman, 281 Md. at 75 n,3, 376 A.2d 860 (citing Art. 66D, § 8-105(a)). This is still the case. As currently codified, LU § 22-402(a)(1) limits judicial review in Montgomery County to “a final action of the district council on an application for an individual map amendment or a sectional map amendment.” A comparison of these two sections demonstrates that if the General Assembly had wanted to restrict judicial review under LU § 22-407, it would have done so. See ⁵³¹ Harford Cty. v. Saks Fifth Ave.

Distrib. Co., 399 Md. 73, 86 , 923 A.2d 1 (2007) (“[T]he Legislature is presumed to have meant what it said and said what it meant.” (citation and internal quotation marks omitted)). Although LU § 22-407(a)(1) does not expressly list master plan amendments as decisions subject to judicial review, its text broadly authorizes, without limitation, judicial review of “a final decision” of the District Council. This is not the exact same language the Freeman Court interpreted.

When LU § 22-407(a)(1)’s predecessor statute was repealed and recodified in the Land Use Article, the General Assembly replaced “any” with “a,” but the legislative history reveals that the General Assembly intended to recodify the statute without substantive change. 11 2012 Maryland Laws ch. 426. Thus, we read the contested provision as broadly as the Freeman Court interpreted its previous iteration. LU § 22-407 can readily be interpreted to mean that the General Assembly intended to authorize judicial review of any final decision the District Council has the authority to make—whether a planning decision or a zoning decision. Moreover, although the “scope of review by Maryland courts of the legislative decisions embodied in original zonings and comprehensive rezonings is quite narrow,” that scope broadens when “a relevant ordinance or regulation, or specific zoning, subdivision, or other land use approval, make compliance with the plan recommendations mandatory.” Zimmer, 444 Md. at 609, 522 , 120 A.3d 677 ; 12 Rylyns, 372 Md. at 530-31 , 814 A.2d 469 (“We repeatedly have ⁵³² noted that plans ... are advisory in nature and have no force of law absent statutes or local ordinances linking planning and zoning.

Where the latter exist, however, they serve to elevate the status of comprehensive plans to the level of true regulatory device.” (footnote and citation omitted)); see also HNS Dev., LLC v. People’s Counsel for Balt. Cty., 425 Md. 436, 457 , 42 A.3d 12 (2012) (“[W]hen the development regulations incorporate Master Plan compliance[,] the Master Plan itself becomes a regulatory device, rather than a mere guide and recommendation.”). The District Council’s July 24, 2013 Resolution approving the Amendments is clear and definitive in its adoption of policy to “[r]estrict sand gravel mining to the [R]ural [T]ier,” a well-defined geographical area. The District Council acknowledges that the Mining Entities will need to apply for special exceptions for sand and gravel operations. 13 And § 27-317(a)(3) of the Prince George’s County Code (“PGCC”) requires that a special exception use may only be approved if “[t]he proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan.” (Emphasis added.) This ⁵³³ county law creates the link between planning and zoning that elevates the Amendments to a regulatory device.

By the same token, when the landowner applies for a permit to engage in surface mining under the SMA, the MDE “may not issue the permit until the appropriate county has ... [certified in writing] that the proposed land use conforms with all applicable county zoning and land use requirements.” Md. Code (1975, 2007 Repl. Vol.), § 15-810(c)(2) of the Environment Article (“EN”). In our view, these legislative provisions give the District Council the muscle to ensure that its policy to “restrict sand and gravel mining to the rural tier” will be enforced—a further confirmation that the Amendments created a regulatory device that, based on Rylyns and Freeman, is subject to judicial review. In sum, based on the statutory language in LU § 22-407 and the binding regulatory nature of the Amendments, we conclude that judicial review is authorized in this case. 14 Participation in Administrative Proceedings The District Council contends that because the Mining Entities did not attend any of the public hearings on ⁵³⁴ the 2013 Master Plan, they are barred from seeking judicial review.

Under the Administrative Procedure Act (“APA”), to be entitled to judicial review of a final agency decision a person must be a party to agency proceedings and be aggrieved by that final decision. Md. Code (1957, 2014 Repl. Vol.), § 10-222(a)(1) of the State Government Article (“SG”); Cty. Council of Prince George’s Cty. v. Billings, 420 Md. 84 , 97 n.10, 21 A.3d 1065 (2011).

There is a “low minimum threshold of required action” to become a party to agency proceedings. Billings, 420 Md. at 101-02 , 21 A.3d 1065 . We have explained that “anyone clearly identifying himself to the agency for the record as having an interest in the outcome of the matter being considered by that agency” satisfies this requirement. Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 286-87 , 686 A.2d 605 (1996) (quoting Morris v. Howard Research & Dev.

Corp., 278 Md. 417, 423 , 365 A.2d 34 (1976)). But the District Council’s argument conflates standing to seek judicial review under the APA with standing to seek judicial review under LU § 22-407(a)(1). In Boyds Civic Ass’n v. Montgomery County Council, 309 Md. 683 , 526 A.2d 598 (1987), we held that the APA does not apply to proceedings before a county council. Id. at 703-04 , 526 A.2d 598 .

In reaching our holding, we concluded that the Montgomery County Council, which was sitting as District Council, was not an “agency” under the APA, Id, at 704, 526 A.2d 598 . The APA defined the term then as it does today—“a unit that: (i) is created by general law; (ii) operates in at least [two] counties; and (iii) is authorized by law to adjudicate contested cases.” Compare Md. Code (1957, 1984 Repl. Vol.), SG § 10-201(b)(2), with Md. Code (1957, 2014 Repl. Vol.), SG § 10-202(b)(2).

We reasoned that although the RDA assigns zoning and planning duties to the Montgomery County Council, it was “created by the Montgomery County [C]harter, not by general law” and “[i]t obviously operates only in Montgomery County.” Boyds, 309 Md. at 704 , 526 A.2d 598 . Therefore, “it fail[ed] to fit the definition of ‘agency’ contained in [the APA].” Id. ⁵³⁵ The District Council similarly fails to fit the APA definition of “agency.” Although the RDA—a general law—delegates the District Council zoning and planning authority, the County Council, which sits as District Council, was created by the Prince George’s County Charter and it only operates in that county. PGCC § 2-101. Therefore, the APA—and its participation requirement—does not apply to proceedings before the District Council.

To support its argument that participation and aggrievement are still required, the District Council relies on County Council of Prince George’s County v. Billings, in which we unnecessarily applied the APA’s judicial review requirements in addition to those in LU § 22-407(a)(1). 15 420 Md. at 97-98 , 21 A.3d 1065 . We concluded that citizens who sought judicial review of two District Council decisions satisfied the “non-demanding” statutory standing requirements of LU § 22-407(a)(1) as well as the APA’s participation and aggrievement requirements. Id. But Billings did not graft the APA’s standing requirements onto LU § 22-407(a)(1).

Here, LU § 22-407(a)(1) expressly authorizes judicial review—and, unlike the APA’s provision, it does not require participation to establish standing. Moreover, the Mining Entities clearly satisfy standing requirements of LU § 22-407(a)(1). Chaney and Southstar are persons in the county, and the MTBMA represents at least one mining entity that owns property in the Developing Tier of Subregion 5, where the Amendments prohibit surface mining. See LU § 22-407(a)(1)(i), (ii).

Furthermore, it runs counter to logic that we would require participation in proceedings as a prerequisite to judicial review when the District Council did not give notice that it was considering amending the 2013 Master Plan. The Mining Entities are seeking judicial review because the District Coun ⁵³⁶ cil’s failure to follow proper procedures resulted in their inability to weigh in on the proposed changes, ie., participate. Exhaustion of Administrative Remedies The District Council contends that Respondents Chaney and Southstar must exhaust the RDA’s administrative remedies before resorting to the courts. 16 It relies on Maryland Reclamation Associates v. Harford County (MRA II), 342 Md. 476 , 677 A.2d 667 (1996), and Prince George’s County v. Ray’s Used Cars, 398 Md. 632 , 922 A.2d 495 (2007), for the proposition that Chaney and Southstar must first apply for special exceptions before they can petition for judicial review of the area master plan amendments. We are not persuaded.

In MRA II, a landowner brought a declaratory judgment action challenging land-use ordinances governing rubble landfills. 342 Md. at 485 , 677 A.2d 567 . We declined to address the landowner’s arguments because Harford County had established a zoning board of appeals pursuant to the Express Powers Act (“EPA”), which mandated exhaustion before a party could seek judicial review. Id. at 494-97, 677 A.2d 567 . We explained that if the General Assembly “has provided an administrative remedy for a particular matter, ... this Court has ‘ordinarily construed the pertinent legislative enactments to require that the administrative remedy be first invoked and followed’ before resort to the courts.” Id. at 493, 677 A.2d 567 (alteration omitted) (quoting Bd. of Educ. for Dorchester Cty. v. Hubbard, 305 Md. 774, 786 , 506 A.2d 625 (1986)).

In Ray’s, 18 used car dealers challenged the constitutionality of a Prince George’s County zoning ordinance that restricted the size of used car lots under the Declaratory Judgments Act. 398 Md. at 636 , 922 A.2d 495 . We concluded that the car ⁵³⁷ dealers had to exhaust the administrative remedies provided to them under the RDA and the PGCC before seeking a declaratory judgment. Id. at 650 , 922 A.2d 495 . We explained that “the adjudicatory administrative and judicial review procedures under the Regional District Act ... are available to furnish relief to each of the plaintiffs].” Id. at 647 , 922 A.2d 495 .

Unlike the MRA II and Ray’s petitioners, the Mining Entities are using a procedure provided under the RDA. They are challenging the Amendments under LU § 22-407(a)(1), which expressly provides for judicial review of “any final decision” of the District Council. Because the Mining Entities seek relief through a judicial review procedure available to them under the RDA as opposed to seeking relief under a separate statute, we find that exhaustion is not mandated here. The Court of Special Appeals recognized two additional statutory provisions that cut against the District Council’s exhaustion argument.

First, LU § 22-407(a)(2) sets a 30-day deadline for filing a petition for judicial review. Even if a party submitted a special exception application before the 30-day deadline, the lengthy special exception process would not conclude before the window for seeking judicial review had closed. Second,