County Council v. Offen

⁵⁰¹ KARWACKI, Judge. This case presents a challenge to the adoption by the Prince George’s County Council, sitting as the District Council (the District Council), of a comprehensive rezoning plan known as a Sectional Map Amendment (SMA). The SMA, among other things, downzoned a piece of property owned by Dr. J. Allan Offen. Offen desired to develop the property, proposing to build a 118,000 square foot “medical mall” facility.

When his property was downzoned pursuant to the comprehensive plan, Offen sought judicial review of the District Council’s action. The Circuit Court for Prince George’s County affirmed the District Council’s adoption of the SMA, but the Court of Special Appeals remanded the case to the circuit court for further consideration. We granted Prince George’s County’s petition for certiorari to review the decision of the intermediate appellate court. I The facts giving rise to the present controversy date back almost three decades.

In 1966, Dr. J. Allan Offen purchased approximately 17.1 acres of undeveloped land in Prince George’s County (the subject property). At the time, the property was zoned R-R (Rural Residential), but in 1969, Offen asked that the land be rezoned for commercial use. On December 30 of that year, the District Council approved his piecemeal zoning request. Approximately half of the subject property was rezoned C-0 (Commercial Office) and half was rezoned C-2 (General Commercial-Existing) (the then-equivalent of the present C-S-C Commercial Shopping Center zone, Prince George’s County Code (1991, 1992 Supp.), § 27-454).

The rezoning was expressly conditioned, however, on the District Council’s review and approval of any proposed development or site plan prior to construction. Shortly after the property was rezoned, the Department of Health and Mental Hygiene in 1970 imposed a sewer moratorium in Prince George’s County, prohibiting any expansion of the publicly-provided sewerage system. The State-imposed ⁵⁰² sewer moratorium was limited to developments utilizing the public sewerage system; it did not affect a landowner’s ability to develop property using private wells and septic systems. The moratorium was lifted in May, 1978.

Ten years after the sewer moratorium was lifted, Offen submitted a conceptual site plan for the subject property which envisioned a 118,000 square foot medical complex. The plan was approved by the District Council on April 11, 1988 with several conditions; among them was a requirement that all development of the property be subject to the approval of a detailed site plan. Shortly thereafter, Offen requested a change in the water and sewer service category for his property. 1 Specifically, he asked that the property be redesignated from its existing classification of Service Area Four (service available -within three to six years) to Service Area Three (immediate priority). The District Council denied Offen’s request in November, 1988 and redesignated the property from Service Area Four to Service Area Six (no planned service).

Offen sought judicial review of the District Council’s action, and in August, 1991, the Circuit Court for Prince George’s County reversed the District Council’s denial of Offen’s request on the ground that the denial was arbitrary and capricious, remanding the case to the District Council and ordering the council to grant Offen’s request for redesignation to Service Area Three. The redes ⁵⁰³ ignation was accomplished by the District Council’s adoption of an amendment to the Ten Year Water and Sewer Plan on October 29, 1991. In the meantime, other events were developing. Based on the District Council’s 1988 approval of his conceptual site plan, Offen met with various engineers and architects, put together a detailed site plan for the subject property, and submitted it to the Prince George’s County Planning Board (Planning Board) for approval as required by the conditions of the 1988 council resolution approving the conceptual site plan.

At the same time, the Planning Board had begun to study and recommend changes to the Master Plan and SMA for that area of Prince George’s County in which Offen’s property was located. The recommended changes included downzoning of the subject property from its commercial classification to R-A (Residential-Agricultural). The Master Plan was adopted by the Planning Board in September 1990, and after several public hearings, it was approved by the District Council on April 2, 1991. On May 30, 1991, the Planning Board rejected the detailed site plan Offen had submitted.

Because the 1988 approval hinged on the subsequent approval of a detailed site plan, the Planning Board’s action effectively prohibited Offen from obtaining building and construction permits until he could win approval for his plan. Shortly thereafter, on July 15, 1991, the Planning Board transmitted to the District Council a proposed SMA implementing the changes approved in the Master Plan, thereby triggering an automatic stay that prohibited the issuance of building permits until the District Council acted on the proposal. The District Council adopted the SMA in resolution CR-120-1991 on November 26, 1991. Offen filed a timely Order of Appeal of the District Council’s decision in the Circuit Court for Prince George’s County and ⁵⁰⁴ petitioned the court for review pursuant to then-Maryland Rule B2(e). 2 In his Petition, Offen requested the court to: 1.

Reverse the decision of the District Council with respect to the subject property; 2. Remand the SMA back to the District Council to reconsider the decision with respect to the subject property; 3. Declare CB-14-1991 (regarding Sectional Map Amendment revisory petitions) an unconstitutional violation of his due process rights; and 4. Grant whatever additional relief the court may have deemed appropriate.

At oral argument Offen withdrew his constitutional claim, leaving only his request that the adoption of the SMA be reversed and that the SMA be subsequently remanded for reconsideration. The circuit court affirmed the District Council’s decision to adopt the SMA. The trial court first acknowledged that its review of a comprehensive zoning action was limited in scope, and citing Nollan v. California Coastal Comm’n, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), it determined that the rezoning contained in the SMA advanced the legitimate interest of preserving the residential character of the neighborhood without denying Offen all beneficial use of his property. The circuit court further found that the District Council’s adoption of the SMA was neither arbitrary nor capricious, insofar as the rezoning served a legitimate state interest and Offen possessed no vested rights in the prior zoning classification.

Offen appealed the decision of the circuit court to the Court of Special Appeals. The intermediate appellate court ⁵⁰⁵ held that the SMA, as a comprehensive rezoning, was entitled to a presumption of validity, and that the presumption had not been rebutted. Offen v. County Council of Prince George’s County, 96 Md.App. 526, 535 , 625 A.2d 424, 428 (1993). On the question of whether the downzoning constituted an unlawful taking without just compensation, the Court of Special Appeals “agree[d] with the lower court that [Offen] cannot prevail under vesting principles.” Id. at 568 , 625 A.2d at 445 .

The court did not stop there, however. It determined that the trial court had “failed to perceive the possible applicability of the zoning estoppel theory,” id. at 538 , 625 A.2d at 430 , and that under Md.Rule 8-131(a), the intermediate appellate court could consider the issue even though it had not been raised by the parties or considered by the trial court. 3 Id. at 539 , 625 A.2d at 430 . Stating that it was “most concerned with the County’s actions with regard to the 1988 application for a sewer category upgrade, its actions during that litigation, its failure either to appeal the trial court’s adverse judgment or to comply with it, and its prior and subsequent conduct,” id. at 574 , 625 A.2d at 448-49 , the Court of Special Appeals remanded the case to the circuit court to determine whether the doctrine of “zoning estoppel” applied to the instant case. 4 ⁵⁰⁶ Specifically, the intermediate appellate court asked the trial court to determine “whether the facts ... are sufficient to estop the County from denying the issuance of a [building] permit under the zoning as it was in 1988.” Id. at 578 , 625 A.2d at 450 . We granted the County’s petition for certiorari on November 2, 1993 in order to consider the intermediate appellate court’s remand for consideration of “zoning estoppel,” and we will reverse the judgment of the Court of Special Appeals and remand the case to that court with instructions to affirm the circuit court. 5 II We begin our analysis with the recognition that judicial review of a comprehensive zoning action is limited in scope. ⁵⁰⁷ The case at bar is a limited review of an action of an administrative agency, specifically, the adoption of the SMA by the District Council.

Absent specific statutory authority, judicial review of administrative agency actions is grounded in the doctrine of the separation of powers, and “[i]n those instances where an administrative agency is acting in a manner which may be considered legislative in nature (quasi-legislative), the judiciary’s scope of review of that particular action is limited to assessing whether the agency was acting within its legal boundaries.” Department of Nat. Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 221-24 , 334 A.2d 514, 521-24 (1975); see also Judy v. Schaefer, 331 Md. 239, 265-66 , 627 A.2d 1039, 1052-53 (1993) (noting limited scope of review when agency action is legislative, as opposed to adjudicatory or quasi-judicial, in nature). Offen has conceded that the SMA constitutes a comprehensive, as opposed to a piecemeal, zoning plan. Our decisions have consistently recognized that appellate review of a comprehensive rezoning is limited in scope.

We explained in Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 4 , 246 A.2d 220, 221-22 (1968), that “zoning is a legislative function, and ... [wjhen a comprehensive map designed to cover a substantial area is adopted, it is entitled to the same presumption of correctness as an original zoning.” This presumption of correctness is particularly difficult for a property owner to overcome: “For an individual property owner to escape the binding impact of a comprehensive rezoning he must show that the plan lacks the necessary relationship to the general public interest and welfare that is presumed or that the effect of the plan is to deprive him of any reasonable use of his property.” Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 67 , 254 A.2d 700, 705 (1969). See also Howard County v. Dorsey, 292 Md. 351, 362-63 , 438 A.2d 1339, 1346 (1982); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706-07 , 376 A.2d 483, 495 (1977), cert. denied sub nom. Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. ⁵⁰⁸ 1245, 55 L.Ed.2d 769 (1978); County Council v. District Land Corp., 274 Md. 691, 701-02 , 337 A.2d 712, 718 (1975); Montgomery County v. Leizman, 268 Md. 621, 631-33 , 303 A.2d 374, 379-80 (1973). Applying this standard, the circuit court in the case sub judice found “no legal basis in the record ... to take issue with the judgment of the County Council sitting as the District Council [in its] adoption of the SMA,” a finding which, with the exception of the zoning estoppel issue, was affirmed by the intermediate appellate court.

The scope of review of the instant case by this Court is éven more limited. We granted the County’s petition for certiorari to consider the intermediate appellate court’s invocation of the doctrine of zoning estoppel. In reviewing a decision rendered by the Court of Special Appeals, this Court ordinarily will consider only issues raised in the petition for certiorari