County Council v. Curtis Regency Service Corp.

SONNER, Judge. Following approval by the Prince George’s County Planning Board of an application for Preliminary Plat of Cluster Subdivision and Conceptual Site Plan submitted by appellees, Curtis Regency Service Corporation and Rose Valley Limited Partnership (Curtis Regency), a local citizens’ group appealed to the County Council for Prince George’s County, sitting as the District Council (District Council). On November 20, 1995, the District Council reversed the decision of the Planning Board, and Curtis Regency sought judicial review by the Circuit Court for Prince George’s County (Shepherd, J.). After oral argument, but before a final decision by the circuit court, the County Council for Prince George’s County (the County Council) 1 adopted County Bill (CB)-76-1996, which amended the County’s zoning ordinance, purporting, to clarify that the District Council had original jurisdiction in appeals from the Planning Board and from the Zoning Hearing Examiner (ZHE).

The circuit court reversed the decision of the District Council and reinstated the Planning Board’s approval. Appellant, the District Council, filed a Motion to Alter or Amend Judgment, and asked the court to rule that the District Council had original jurisdiction in these appeals as a result of the passage of CB-76-1996. The circuit court denied the motion. The District Council appeals and asks: I. Did the circuit court err in applying the wrong standard of review?

II

Did the circuit court err in finding that there was no record evidence to support the decision of the District Council? ¹²⁷ III. Did the circuit court err by failing to apply retroactively the ordinance enacted by the County Council? We conclude that the circuit court applied the correct standard of review, but improperly reinstated the Planning Board’s decision. We hold that the appropriate action is to remand the case to the circuit court so that it may further remand to the District Council for review of the appeal using the correct administrative standard of review.

As a result of our decision, we refrain from reviewing the second issue, since our affirmance on the first issue renders consideration of the second issue premature. Finally, we conclude that the circuit court correctly refused to apply retroactively the ordinance enacted by the County Council. FACTS Curtis Regency owns an 83.71-acre parcel of land zoned Rural Residential. The proposed subdivision of the land was known as Rose Valley Cluster.

On October 26, 1994, Curtis Regency filed an application for Preliminary Plat of Cluster Subdivision and Conceptual Site Plan approval under § 24-137 of the Prince George’s County Subdivision Ordinance (Subdivision Ordinance). In accordance with Maryland Code (1957, 1997 Repl.Vol.), Art. 28, § 7-111, known as the Regional District Act (RDA), Curtis Regency filed the application with the Prince George’s County Planning Board (the Planning Board) of the Maryland-National Capital Park and Planning Commission (the Commission). For Prince George’s County and Montgomery County, the General Assembly enacted the RDA, which allows the counties to create zoning enabling legislation, and authorizes the County Council to adopt and amend zoning ordinances. Art. 28, §§ 7-102, 7-103, 7-108, and 8-101(a); JMC Constr.

Corp. Inc. v. Montgomery County, 54 MdApp. 1, 3, 456 A.2d 931 (1983). The RDA, in § 7-111, also gave the Planning Board 2 respon ¹²⁸ sibility “for planning, platting and zoning functions primarily local in scope, as distinguished from the regional planning functions of the Commission ... The local functions exclusively within the jurisdiction of the respective planning boards include, but are not limited to, the administration of subdivision regulations____” Once the Planning Board approves or disapproves a subdivision plat, the RDA allows for an appeal to the District Council, if the county decides to implement such a process. Section 7-117.

Through the powers granted by the General Assembly, the County Council has created a comprehensive zoning ordinance at Subtitle 27 of the Prince George’s County Code, and has provided for an appeal from a decision of the Planning Board at § 24-137(j). After receiving the proposal, the Technical Staff of the Maryland-National Capital Park and Planning Commission (the Technical Staff) recommended disapproval of the application on January 3, 1995 because it disagreed with the conclusions reached in Curtis Regency’s traffic study. The Guidelines for the Analysis of the Traffic Impact of Development Proposals would prohibit the program development when the resulting level of service (LOS) is less than a particular minimum service level, in this case LOS “D,” or an hourly traffic volume of 1,450 vehicles. The LOS level describes the ability of a road network to handle traffic.

In this case, the part of the network being measured was the intersection of Md. Route 210 and Old Fort Road, since the total LOS for that intersection was LOS “F,” meaning that the traffic count supported a critical lane volume for the afternoon hours of 1,944 vehicles, and that the total critical lane volume was 2,037 vehicles. Curtis Regency concluded that, if it constructed a right-turn lane on the eastbound and westbound approaches to the intersection, it would provide a net benefit to the traffic conditions such that the afternoon critical lane volume would be reduced to 1,710 vehicles. The Technical Staff concluded ¹²⁹ that, even with the proposed change, the LOS would still exceed level “D,” and the improvement would not meet the magnitude of improvement required by the mitigation guidelines. On January 12,1995, the Planning Board conducted a public hearing and voted to deny the application.

On February 9, 1995, the Planning Board granted Curtis Regency’s request for reconsideration. Curtis Regency submitted a new traffic study based on traffic counts conducted after the January 12th decision. The new study indicated a significant variation in traffic volumes for the area and, in response, the Technical Staff hired an independent traffic consultant to prepare an additional study. The result of the independent study confirmed the result of Curtis Regency’s new study, and the Planning Board found that the proposed road improvements provided adequate access roads as required by § 24-124 of the Prince George’s County Code.

After a public hearing on June 1,1995, the Planning Board approved the application. A local citizens’ group appealed the decision to the District Council, which heard oral argument on November 6,1995. On November 20,1995, the District Council reversed the Planning Board’s decision, finding that (1) the LOS was at level “F” and required mitigation, (2) the proposed mitigation could not adequately decrease the LOS from “F” and, therefore, (3) the infrastructure and public facilities were inadequate to service the proposed cluster subdivision. Curtis Regency filed a petition for review by the circuit court and argued that (1) the Planning Board had exclusive jurisdiction over approval of subdivision plats, (2) the District Council failed to give due deference to the Planning Board’s decision, and (3) record evidence did not support the District Council’s decision.

The District Council argued that the circuit court’s review was limited. It could determine only if record evidence supported the District Council’s decision. On June 28, 1996, the circuit court heard oral argument. On September 10, 1996, the County Council adopted CB-76-1996, which amended § 27-132 of the Prince George’s County ¹³⁰ Code to “clarify” that the District Council had original jurisdiction to review a decision of the Planning Board.

Since the circuit court had not yet made a decision, the District Council mailed a copy of CB-76-1996, advising the court of the new ordinance and its asserted application. On November 13, 1996, the court reversed the decision of the District Council, finding that the District Council did not correctly apply the standard of review, but, instead, had become the trier of fact and had rendered the Planning Board’s findings useless. The court further held that the record evidence did not support the District Council’s reversal. Thereafter, the District Council filed a motion to alter or amend, asking the court to reconsider its decision after applying CB-76-1996, and the circuit court denied the motion.

DISCUSSION I. The District Council argues that it does not owe deference to the Planning Board. While it concedes that the Planning Board has jurisdiction to administer subdivision regulations, the District Council contends that the Planning Board is not the ultimate authority in approving and disapproving subdivision plats. Rather, the District Council claims that, by statute, it alone has the ultimate power to approve regulations and amendments governing the subdivision of land (§ 7-116) and the ultimate power to approve cluster subdivisions. The District Council points out that § 7-117 of the RDA authorizes it to hear appeals “from a decision approving or disapproving a subdivision plat,” but does not lay out any specific framework for the appeals process.

The County, in devising the provisions on its own, has outlined, in § 24 — 137<j) of the Prince George’s County Code, that an “appeal shall be based on the record as made before the Planning Board ... in accordance with Section 27-290 of the Zoning Ordinance.” Although the ordinance restricts the appeal to one based on the record, neither § 24 — 137(j) nor § 27-290 of the County Code provide the District Council with the standard of review ¹³¹ it must use. Rather, § 27-290(d) informed the District Council only that it must “affirm, reverse or modify the decision of the Planning Board, or return the Detailed Site Plan to the Planning Board to take further testimony or reconsider its decision.” The District Council directs us to a “parallel” appellate procedure involving the Zoning Hearing Examiner (ZHE), where all appeals are also based on the record, and suggests that case law indicates that the District Council owes no deference to the ZHE. Likewise, here, the District Council asserts that this parallel procedure makes it clear that the same standard of review applies to an appeal of a Planning Board decision. Before we address the central issue in this case, the standard of review to be applied by the District Council in this type of appeal, we note that the District Council’s suggestion, that the procedure used on appeal of a ZHE decision is parallel to an appeal of a Planning Board decision, is without merit.

We find that the role of the ZHE is far removed from that of the Planning Board. For example, in a case relied upon by the District Council, Cox v. Prince George’s County, 86 Md.App. 179 , 586 A.2d 43 (1991), this Court explained the process through which a special exception passes before reaching the District Council. First, the Technical Staff makes a report and recommendation and forwards it to the Planning Board. The Planning Board decides whether to accept the Staffs recommendation and forwards its own recommendation to the District Council.

Before the District Council decides the case, however, the ZHE, an employee of the District Council, files a written decision, with specific recommended findings of facts, conclusions of law, and a disposition recommendation. Finally, the District Council decides whether to grant the exception. Although the ZHE has authority under § 27-312(a)(C) of the Prince George’s County Code to approve or deny a special exception or variance, the Zoning Ordinance specifically retained in the District Council the authority, “upon its own motion,” to elect “to make the final decision on the case itself.” There is no analogue to this language with regard to the ¹³² Planning Board’s decisions on subdivisions. Instead, the process used for subdivision plat applications, under § 24-137 of the County Code, is as follows: (1) The applicant files its application with the Planning Board; (2) The Technical Staff then reviews the application and makes a recommendation; (3) The Planning Board reviews the recommendation, holds a public hearing, and then votes on the application; (4) If no appeal is taken, the decision of the Planning Board is final.

Clearly, the District Council’s role with respect to decisions of the ZHE is not parallel to its role with respect to Planning Board decisions. The Planning Board has original jurisdiction over the administration of subdivision regulations, and the District Council can hear appeals of those decisions only if an applicant or a party of record takes an appeal. It cannot, upon its own motion, make any decision or take the case away from the Planning Board. See also Colao v. County Council of Prince George’s County, 109 Md.App. 431 , 675 A.2d 148 (1996), aff'd, 346 Md. 342 , 697 A.2d 96 (1997) (describing process for comprehensive design zone applications when ZHE decision is merely recommendation that District Council may or may not adopt).

Having discarded the District Council’s assertion that the standard of review used in hearing an appeal of a ZHE decision is the same standard of review to be used here, we return our focus to what we believe to be the thrust of this case — determining the correct standard of review by the District Council in an appeal of a Planning Board decision to approve a cluster subdivision. The District Council suggests that the lack of specificity in the Prince George’s County Ordinance and the RDA means that no restrictions exist on the action that the District Council can take with regard to a subdivision matter. Rather, the District Council argues that the directions to the District Council in the County Code clearly reserve jurisdiction in the District Council for the final decision. The District Council claims that a finding that it owes deference to the Planning Board nullifies the power of the local governing body inconsis ¹³³ tent with the grant of power to the District Council by the General Assembly in § 7-117.

In addressing this issue, we find it necessary to point out generally the limitations imposed in appellate review. When asked to review a decision of an administrative agency, a reviewing court must give the decision great weight and a presumption of validity. Cox, 86 Md.App. at 187 , 586 A.2d 43 , citing Terranova v. Board, 81 Md.App. 1, 9 , 566 A.2d 497 (1989). In reviewing the decision of an administrative agency, a court is “limited to