County Council v. Collington Corporate Center I Ltd. Partnership

RODOWSKY, Judge. Here, a real estate developer was unsuccessful in convincing a District Council to remove a zoning restriction that had been imposed on the subject property pursuant to a plan submitted by the developer’s predecessor in title. The Court of Special Appeals, in an unreported opinion, held that the restriction was invalidly imposed. As explained below, we shall hold that the invalidity, if any, was cured by retrospective legislation.

I The petitioner is the County Council of Prince George’s County, Maryland, sitting as the District Council pursuant to the Regional District Act, Maryland Code (1957, 1997 Repl. Vol.), Article 28. 1 Respondent, Collington Corporate Center I ²⁹⁹ Limited Partnership, is the owner and developer of a 414-acre parcel located in the southwesterly quadrant of the intersection of U.S. Route 301 and Central Avenue (Md. Route 214) (the Property). In 1978, by Zoning Map Amendment (ZMA) No. A-9284, the property was zoned E-I-A (Employment and Institutional Area). An E-I-A Zone is one of the Comprehensive Design Zones authorized by the Prince George’s County Zoning Ordinance.

See Prince George’s County Code (1995 ed.), Subtitle 27, “Zoning,” Part 8, “Comprehensive Design Zones.” 2 One of the reasons for the District Council’s authorizing Comprehensive Design Zones is “to use recent planning and zoning innovations.” § 27-476(a)(l). The way in which land in a Comprehensive Design Zone will ultimately be developed is to be reflected in plans submitted for approval in a three phase zoning review procedure. § 27-478. These three phases are the Basic Plan, the Comprehensive Design Plan, and the Specific Design Plan. § 27-478(a)(l), (2), and (3). With respect to Basic Plans, the phase with which we are concerned in this case, § 27-478, in part reads: “(a) The purposes of each individual Comprehensive Design Zone are intended to be satisfied by establishing incentives for good development, and the following three (3) phase plan review procedure: “(1) The initial phase is the review of a Basic Plan which shall show the types, amounts, and general location of land uses proposed.

The Basic Plan shall be reviewed concurrently with the review of, and action on, the [ZMA] application.” (Statutory cross-references omitted). The requirement for including the general location of land in a Basic Plan was ³⁰⁰ added to § 27-478(a)(l) by Council Bill (C.B.) 18-1990, effective April 17, 1990, and discussed, infra. The three levels of plans in the review procedure are “reviewed and acted upon prior to, or concurrently with, the review of, and action on, a subdivision proposal.” § 27-478(b). At the time of the 1978 E-I-A zoning the Property was part of a larger tract.

At that time, and today, warehouse and distribution use was and is a permitted use in an E-I-A Zone. In March 1989 the Property was the subject of a new Basic Plan, separate from the Basic Plan applicable to the remainder of the larger tract. This 1989 Basic Plan was submitted by Respondent’s predecessor in title. The plan contained a number of conditions, one of which, Condition 7, restricted certain uses that were permitted in an E-I-A Zone under the Zoning Ordinance.

Included among these restrictions in Condition 7 was “warehouse and distribution (except as accessory use).” 3 The District Council approved the 1989 Basic Plan with Condition 7. In the course of the later zoning proceedings that are now before us, the Technical Staff of the National Capital Park and Planning Commission (NCPPC) described the 1989 zoning of the Property as follows: “In 1989, the District Council supported the 1973 Comprehensive Plan land use and zoning recommendations as demonstrated in the conditions and considerations of the Basic Plan amendment (Zoning Ordinance No. 25-1989) for ³⁰¹ the subject property. To provide limited land use flexibility, warehouse and distribution use (as an accessory use only) was permitted, subject to architectural guidelines. Thereby, the District Council retained office type land use as the intended use and character for the subject property.” The District Council’s 1989 action was taken pursuant to § 27-195, “Map Amendment approval.” See § 27-195(a)(l) (“The District Council may approve or deny the application (including the Basic Plan).”).

Also at that time, § 27—195(c)(1) and (2) read as follows: “(c) Conditional approval. “(1) When it approves the [ZMA], the District Council may impose reasonable requirements and safeguards (in the form of conditions) which it finds are necessary to either: “(A) Protect surrounding properties from the adverse effects which might accrue from the [ZMA]; or “(B) Further enhance the coordinated, harmonious, and systematic development of the Regional District. “(2) In no case shall these conditions waive or lessen the requirements of, or prohibit uses allowed in, the approved zone .... ” (Emphasis added). The language italicized above became the keystone of the holding by the Court of Special Appeals in Rodriguez v. Prince George’s County, 79 Md.App. 537 , 558 A.2d 742 , cert. denied, 317 Md. 641 , 566 A.2d 101 (1989). In Rodriguez , the appellant sought to have two parcels of land zoned E-I-A, but, after anticipating opposition by the District Council, the appellant amended his Basic Plan to exclude certain uses that were otherwise expressly permitted in the E-I-A Zone. Id. at 546 , 558 A.2d at 746 .

The District Council approved, and the circuit court affirmed. The Court of Special Appeals reversed. To summarize its holding it said that “the clear proscription of § 27—195(c)(2) canfnot] be circumvented by the artifice of simply amending the Basic Plan to exclude uses that the Council finds, or might find, objectionable but which are ³⁰² expressly permitted in the E-I-A zone.” Id. at 548, 558 A.2d at 747 . 4 In response to Rodriguez , the District Council amended § 27-195, “Map Amendment approval,” by C.B. 18-1990. Section 27-195(a), as amended, reads (underlining indicates new matter): “(a) In general “(1) The District Council may approve or deny the application (including the Basic Plan).

Approval shall be an approval of the general land use types, range of dwelling unit densities and commercial/industrial intensities, general circulation pattern, general location of major access points and land use relationships shown on the Basic Plan. Whenever an applicant designates a limitation of uses within an application, the District Council may approve specific land use types and their general locations within the development, in accordance with the applicant’s designation, as part of its approval of the Basic Plan, in order to ensure overall compatibility of land use types within the proposed development and with surrounding land uses. Such an approval by the District Council shall become a part of the approved ³⁰³ Basic Plan. The District Council may also specify certain planning and development matters (known as ‘considerations’) for the Planning Board and Technical Staff to consider in later Comprehensive Design Plan, Specific Design Plan, or subdivision plat review.

The specifics of the considerations shall be followed, unless there is a clear showing that the requirement is unreasonable under the circumstances.” Council Bill 18-1990 also amended § 27-195(c)(2), the provision relied upon in Rodriguez . In relevant part § 27—195(c)(1) and amended (c)(2) read as follows (underlining indicates new matter): “(1) When it approves the [ZMA], the District Council may impose reasonable requirements and safeguards (in the form of conditions) ... “(2) In no case shall these conditions waive or lessen the requirements of, or prohibit uses allowed in, the approved zone, except as provided in subparagraph (a)(1), above.” Of controlling significance to our disposition of the instant matter is § 2 of C.B. 18-1990 which reads: “BE IT FURTHER ENACTED that this Ordinance shall apply to all Basic Plans regardless of date of actual approval but shall not apply to or affect any specific and particular use if a valid application for a building permit has been received by the Department of Environmental Resources prior to the effective date of this Ordinance.” (Emphasis added). In September 1995 the Respondent applied to the District Council (Application No. A-9284-C) to revise the 1989 Basic Plan in order to eliminate the restriction against warehouse or distribution use when not as an accessory use. 5 When the ³⁰⁴ matter reached the District Council through the administrative process in October 1996, the Council remanded the application to the zoning hearing examiner to determine, inter alia, the impact of Rodriguez . The examiner subsequently recommended that the District Council approve deletion of the restriction, but, on December 3, 1997, the District Council issued notice of its final decision rejecting the Respondent’s amendment to the Basic Plan.

Respondent sought judicial review in the Circuit Court for Prince George’s County, arguing, inter alia, that the restriction included in the 1989 Basic Plan was invalid under the Rodriguez application of § 27-195(c). 6 The circuit court sustained the District Council’s action, and Respondent appealed to the Court of Special Appeals. The Court of Special Appeals reversed on the ground that, under Rodriguez , the