County Council v. Zimmer Development Co.

HARRELL, J. Given the battle of almost epic proportions waged by the respective angels in the present litigation, it seems fitting to describe metaphorically with select readings from the entirely fictional Book of Land Use the forced march this case has made: Chapter MMIV (2004): In the beginning, a landowner applied to reclassify to a floating zone a certain property in Adelphi, in the county of Prince George’s, in the State of Maryland. The District Hegemon looked upon the application and saw that it was good. Chapters MMX — MMXII (2010-2012) Time passed. The landowner sought at last approval to complete that which had been initiated lo’ those many years ago.

Although the landowner’s latest initiatives were deemed acceptable by the County planning satraps, the District Hegemon, being displeased with these offerings, spurned them as unworthy. The landowner, feeling much afflicted, brought its plight before a local Sanhedrin who, finding uncharitable the District Hegemon’s most recent treatment of the landowner’s offerings, decreed that the offerings were pleasing indeed unto the eyes of the law. Chapter MMXV (2015) The displeased District Hegemon brings its case now before the Great Sanhedrin, which, having heard the piteous wailing and cries from all concerned, shall now pass final judgment. ⁵⁰² I. The Relevant Land Use Regime in Prince George’s County: A Mind-Numbing Primer Most judges and lawyers, and many public officials and members of the general public, are uninitiated (and perhaps even uninterested, unless their oxen are being gored) in the mysteries of land use regulation. With apologies particularly to the uninterested, the following introduction to the relevant zoning, planning, and land use regime in play virtually throughout all of Prince George’s County (and the Regional District of which it is a part) is useful, if not essential, in order to grasp the context of the facts of this case and our decision to follow.

Because the dispute is primarily about the source and terms of the locality’s authority to regulate land use, we will explore first the well-spring of that authority. The modern authority to regulate land use in Maryland may be traced to the colonial Maryland Charter of 1632. The Charter granted to the Lord Proprietor “free, full, and absolute power ... to ordain, make, enact, and ... publish any laws whatsoever. 1 , 2 Maryland Charter of 1632 (modified ⁵⁰³ for modern spelling). Much of this authority was wrested from the Proprietor by the legislative assembly prior to the colony achieving independence from Great Britain.

See generally Albert J. Martinez, Jr., The Palatinate Clause of the Maryland Charter, 1632-1776: From Independent Jurisdiction to Independence, 50 Am. J. Legal Hist. 305 (2008-2010). The State of Maryland retains this broad authority to regulate land use (and to delegate powers to the political subdivisions), subject only to the Federal and State constitutions. A. Delegation of Land Use Powers to Local Governments.

Maryland, like its sister states, delegates to local political subdivisions significant authority to regulate land use. 3 1 Edward H. Ziegler, Jr., Rathkopfs The Law of ⁵⁰⁴ Zoning and Planning §§ 1:9, 36:2 (4th ed. 2015) [hereinafter Rathkopfs The Law of Zoning and Planning ]; see also Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 528 , 814 A.2d 469, 476 (2002). Local governments possess no inherent power to regulate land use, but rather are limited to the powers granted to them by the State. W. Montgomery Cnty. Citizens Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 309 Md. 183, 186 , 522 A.2d 1328, 1329 (1987) (citing Crozier v. Co. Comm. of Pr.

George’s Co., 202 Md. 501, 505-07 , 97 A.2d 296 (1953)); see also Reynolds v. Sims, 377 U.S. 533, 575 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964) (“Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions”). But cf. William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America 171-189 (discussing the objections of Eighteenth Century jurists to state-wide regulation of liquor, while the same jurists had upheld identical local liquor controls without serious scrutiny). Under Maryland’s constitutional scheme, a local government’s authority to regulate land use may emanate only from enabling legislation of the General Assembly.

See Maryland Const. Art. XI; W. Montgomery Cnty. Citizens Ass’n, 309 Md. at 186 , 522 A.2d at 1329 (citing Crozier, 202 Md. at 505-07 , 97 A.2d 296 ). These powers are exercised, “in the main, through the implementation of what is known as the planning and zoning process.” Rylyns Enterprises, 372 Md. at 531-32 , 814 A.2d at 479 . ⁵⁰⁵ B. Zoning and Planning Distinguished Although related concepts, it is well established in Maryland that zoning and planning are separate functions.

Appleton Reg’l Cnty. Alliance v. Cnty. Comm’rs of Cecil Cnty., 404 Md. 92, 102 , 945 A.2d 648, 653 (2008); Mueller v. People’s Counsel for Baltimore Cnty., 177 Md.App. 43, 68 , 934 A.2d 974, 989 (2007) (citing Howard Co. v. Dorsey, 292 Md. 351, 361 , 438 A.2d 1339 (1982); Board of Cnty. Comm’rs of Carroll County v. Stephans, 286 Md. 384, 389 , 408 A.2d 1017 (1979)).

Maryland courts have parsed previously the distinction. Zoning is the more finite term. Rylyns Enterprises, 372 Md. at 528-29 , 814 A.2d at 476-77 . Generally, “the term ‘zoning’ is ‘used to describe 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.’ ” Maryland Overpak Corp. v. Mayor And City Council Of Baltimore, 395 Md. 16, 48 , 909 A.2d 235, 254 (2006) (quoting Stephans, 286 Md. at 388-89 , 408 A.2d at 1019 ).

The “territorial division of land within a jurisdiction” is “[t]he very essence of zoning____” Mueller, 177 Md.App. at 67-68 , 934 A.2d at 988 (citing Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 305 , 49 A.2d 799 (1946)). Parcels must be put to use in compliance with their zoning, excepting legal non-conforming uses. 4 Planning is the broader term. Bd. of Cnty. Comm’rs of Cecil Cnty. v. Gaster, 285 Md. 233, 246 , 401 A.2d 666, 672 (1979); Mueller, 111 Md.App. at 69, 934 A.2d at 989 ; see also Rylyns Enterprises, 372 Md. at 529 , 814 A.2d at 477-78 (stating that zoning is the more finite term).

Planning concerns “the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience....” Gaster, 285 Md. at 246 , ⁵⁰⁶ 401 A.2d at 672 (quoting 1 E.C. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978)). Unsurprisingly, the making of “plans” falls clearly under the ambit of “planning.” See Rylyns Enterprises, 372 Md. at 529 , 814 A.2d at 477 . Included in the zoning or planning powers is also the authority to enforce zoning and planning actions and decisions. For example, Maryland courts recognize the requirement and issuance of building and occupancy permits as part of the zoning power, Joy v. Anne Arundel Cnty., 52 Md.App. 653, 657-58 , 451 A.2d 1237, 1240 (1982), and subdivision controls as an element of the exercise of the planning power, Richmarr Holly Hills, Inc. v. Am.

PCS, L.P., 117 Md.App. 607, 645-46 , 701 A.2d 879, 898 (1997). Just as the power to zone implies more than establishing classifications and placing them on an official map, so too does the planning power encompass more than merely producing plans and acting on subdivision applications. Because “planning and zoning complement each other and serve certain common objectives,” 5 People’s Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 689 , 929 A.2d 899, 915 (2007); accord Richmarr, 117 Md.App. at 650 , 701 A.2d at 900 (quoting 4 R. Anderson, American Law of Zoning § 23.20 (2nd ed. 1977)), some implementation and enforcement procedures may have both planning and zoning aims. 6 ⁵⁰⁷ C. Zoning in General Maryland’s first local zoning enabling statute was enacted by the General Assembly in 1927 authorizing zoning in Baltimore City and other municipalities with more than 10,000 inhabitants. 7 See 1927 Md. Laws ch. 705. In reliance on this delegation, Baltimore City enacted its first comprehensive zoning ordinance on 30 March 1931. 8 See Jack Lewis, Inc. v. Mayor & City Council of Baltimore, 164 Md. 146, 148 , 164 A. 220, 221 (1933).

Since then, counties (both charter and otherwise) have been delegated also zoning powers. See Maryland Code (2012), Land Use Article §§ 4-102, 22-104 (“LU”). 1. Original and Comprehensive Zoning Versus Piecemeal Zoning Local zoning authorities implement their delegated zoning authority through “establishment of original zoning ⁵⁰⁸ through adoption of a [an original] zoning map, comprehensive rezoning of substantial areas of the jurisdiction through a legislative-type process initiated by the local government, and piecemeal rezoning of individual properties (by application of the owner or contract purchaser) through a quasi-judicial process.” Anne Arundel Cnty. v. Bell, 442 Md. 539, 553 , 113 A.3d 639, 647 (2015) (citing Rylyns Enterprises, 372 Md. at 532 , 814 A.2d at 479 ). Original zoning and, by definition, comprehensive rezoning involve large geographic areas and emanate largely from policy considerations, including future public needs, potential for orderly growth, and the public health, safety, and general welfare to be advanced. 9 Bell, 442 Md. at 553-54 , 113 A.3d at 647 -48 (citing Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 713 , 376 A.2d 483, 498 (1977)).

Piecemeal rezonings, in contrast, concern an individual property (or a relatively finite assemblage of properties) that is rezoned through a deliberative fact-finding process, including “at least one evidentiary hearing (generally), factual and opinion testimony, documentary evidence, cross-examination of the witnesses, and objections to the weighing of evidence.” Bell, 442 Md. at 555 , 113 A.3d at 649 (citing Anderson House, LLC v. Mayor of Rockville, 402 Md. 689 , 708 n. 17, 939 A.2d 116 , 127 n. 17 (2008)). The piecemeal rezoning “process results in a particularized set of written findings of fact and conclusions of law as to the zoning proposal for the parcel or assemblage in question.” Id. Both ⁵⁰⁹ processes conclude with a legislative act creating or altering the official zoning map for the jurisdiction. Anderson House, 402 Md. at 707 n. 17, 939 A.2d at 127 n. 17.

The scope of review by Maryland courts of the legislative decisions embodied in original zonings and comprehensive rezonings is quite narrow. 10 These actions “ ‘are limited only by the general boundaries of appropriate procedural and due process considerations.’ ” Bell, 442 Md. at 554 , 113 A.3d at 648 (quoting Rylyns Enterprises, 372 Md. at 533 , 814 A.2d at 480 .) Courts look to whether the local zoning authority: (1) followed the appropriate procedure designated by the zoning enabling statute and its own ordinances; (2) comported with the requirements of due process; (3) aimed to achieve a valid public purpose; and, (4) did not otherwise exceed the police powers. 11 See Rylyns Enterprises, 372 Md. ⁵¹⁰ at 533, 814 A.2d at 480 (quoting White v. Spring, 109 Md.App. 692, 696-97 , 675 A.2d 1023, 1025 (1996)). Properly enacted original zoning and comprehensive rezoning are presumed to be correct and may only be changed by the local zoning authority through later comprehensive zoning or an application for piecemeal rezoning. Bell, 442 Md. at 554 , 554 n. 6, 113 A.3d at 648 , 648 n. 6 (quoting Rylyns Enterprises, 372 Md. at 535-36 , 814 A.2d at 481 ). Courts are somewhat less deferential in their review of quasi-judicial piecemeal rezoning. 12 Like other quasi-judicial decisions, piecemeal rezoning is reviewed most frequently under the substantial evidence test.

Cremins v. Cnty. Comm’rs of Washington Cnty., 164 Md.App. 426, 438 , 883 A.2d 966, 973 (2005). The determination of the zoning authority should be upheld “if reasoning minds could reasonably reach the conclusion from facts in the record.” Cremins, 164 Md.App. at 438 , 883 A.2d at 973 (citing Stansbury v. Jones, 372 Md. 172, 182-83 , 812 A.2d 312, 318 (2002)). ⁵¹¹ 2. Euclidian Zones Early zoning ordinances sought to separate incompatible land uses through a method that would become known as “Euclidean” zoning. 13 1 Rathkopfs The Law of Zoning and Planning § 1:4.

Under a Euclidian zoning scheme, a zoning authority divides geographically an area into use districts. Rylyns Enterprises, 372 Md. at 534 , 814 A.2d at 480 (quoting Rouse-Fairwood Dev. Ltd. P’ship v. Supervisor of Assessments for Prince George’s County, 138 Md.App. 589, 623 , 773 A.2d 535, 555 (2001)). Certain permitted uses are specified by local ordinance and allowed in particular geographic areas.

Id. (citing Rouse-Fairwood Dev., 138 Md.App. at 623 , 773 A.2d at 555 ). These geographic areas and the zoning assigned to them are then recorded on an official zoning map. Id.

(citing Rouse-Fairwood Dev., 138 Md.App. at 623 , 773 A.2d at 555 ). The number of classifications that are available to be applied within a district has increased exponentially since the early schemes, but Euclidian zoning remains a basic framework for implementation of land use controls at the local level. 1 Rathkopfs The Law of Zoning and Planning §§ 1:4, 1:5; see also, e.g., Prince George’s County Code § 27-109 (“PGCC”) (listing the categories of zones that have been created in Prince George’s County). Euclidian zoning aimed to provide stability and predictability in land use planning and zoning. Rylyns Enterprises, 372 Md. at 534 , 814 A.2d at 481 .

The legislative enactment of a Euclidian original zoning or comprehensive rezoning is self-executing, id., and discretionary consideration of individual proposed uses is the exception rather than the rule, 1 Rathkopfs The Law of Zoning and Planning § 1:4. Euclidian zoning laws in Maryland must “be uniform for each class or kind of development throughout a district or zone[,]” ⁵¹² LU §§ 4-201(b)(2)(i), 10 — 301 (b)(2)(i); 22-201(b)(2)(i), to ensure that similarly situated properties are subjected to similar regulation, 14 see Anderson House, 402 Md. at 713-14 , 939 A.2d at 131 . The original or comprehensive zoning may be changed (unless by a subsequent comprehensive zoning) only by a subsequent piecemeal zoning, which in the case of a Euclidean zone may be granted only upon a showing of unforeseen changes in the surrounding neighborhood occurring since the prior original zoning or comprehensive rezoning or mistake of fact made by the zoning authority in the original zoning or previous comprehensive rezoning. 15 Rylyns Enterprises, 372 ⁵¹³ Md. at 538, 814 A.2d at 483 (citing Stratakis v. Beauchamp, 268 Md. 643, 652-53 , 304 A.2d 244, 249 (1973); Richmarr, 117 Md.App. at 635-37 , 701 A.2d at 893-94 ). A school of thought evolved that the stability and predictability of Euclidian zoning amounted sometimes to undesirable rigidity.

See People’s Counsel for Baltimore Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 71-72 , 956 A.2d 166, 176 (2008); Rylyns Enterprises, 372 Md. at 541 , 814 A.2d at 485 ; 1 Rathkopfs The Law of Zoning and Planning § 1:4. Although certain land use tools that fall under the zoning umbrella, such as non-conforming uses, 16 special exceptions, 17 ⁵¹⁴ and variances, 18 give Euclidian zoning some flexibility, they were thought not to be enough. 19 Rylyns Enterprises, 372 Md. at 537 , 814 A.2d at 482 (quoting Stanley D. Abrams, ⁵¹⁵ Guide to Maryland Zoning Decisions, § 11.1 (3d ed., Michie 1992)). 3. Floating Zones Floating zones (or planned unit development zones) are a local legislative response to the relative rigidity of Euclidian zoning and occupy the opposite end of the flexibility continuum of zoning categories from Euclidian zones. 20 Rylyns Enterprises, 372 Md. at 539 n. 15, 814 A.2d at 484 n. 15. Rezoning a parcel to a floating zone resembles in some aspects a special exception process, see id.

(citing Richmarr, 117 Md.App. at 640 , 701 A.2d at 895 (1997)); 1 Rathkopfs The Law of Zoning and Planning § 14:32, but, unlike a special exception, it culminates in a legislative act amending the zoning on the official zoning map. Floating zones are used often to allow the development of specialized or mixed uses. 3 Rathkopfs The Law of Zoning and Planning § 45:1; see Rylyns Enterprises, 372 Md. at 539 n. 15, 814 A.2d at 484 n. 15 (citing Russell R. Reno, Non Euclidean Zoning: the Use of the Floating Zone, 23 Md.L.Rev. 105, 107 (1963)). “In particular, floating zones have been used to permit large commercial and industrial uses, mixed uses, multifamily residences, and planned unit developments.” 3 Rathkopfs The Law of Zoning and Planning § 45:1. Local zoning authorities implement, where appropriate, floating zones through a two-step process. 1 Patricia E. Salkin, American Law of Zoning § 9:17 (5th ed. 2009) [hereinafter Am. Law Zoning ].

First, the local zoning authority establishes in its zoning ordinance a specific zoning classification for a specific purpose or a class of purposes, but does not assign on the zoning map the classification to any property, awaiting instead a property owner’s piecemeal application that is judged to meet the legislative criteria for the zone sought. ⁵¹⁶ 1 Am. Law Zoning § 9:17. This zone is said thus to “float” above the local jurisdiction to which the zone may be applied through the grant of a piecemeal zoning map amendment (or possibly through the adoption of a comprehensive rezoning, provided there was at least pending a piecemeal application at the time the comprehensive rezoning is adopted). Bigenho v. Montgomery Cnty.

Council, 248 Md. 386, 391 , 237 A.2d 53, 57 (1968); see also Rylyns Enterprises, 372 Md. at 539 n. 15, 814 A.2d at 484 n. 15 (citing Reno, Non Euclidean Zoning: the Use of the Floating Zone, supra, at 107); 1 Am. Law Zoning § 9:17. The second step is a property owner initiating a piecemeal rezoning action to implement the zone on a particular parcel. Rylyns Enterprises, 372 Md. at 539 n. 15, 814 A.2d at 484 n. 15 (citing Reno, Non Euclidean Zoning: the Use of the Floating Zone, supra, at 107); Bigenho, 248 Md. at 391 , 237 A.2d at 56 ; 1 Am.

Law Zoning § 9:17. Although the processing, review, and grant of a floating zone follows usually the same quasi-judicial process as Euclidian piecemeal rezonings, the change-mistake rule does not apply to the former. 21 See Bell, 442 Md. at 555-56 , 113 A.3d at 649 (citing Rylyns Enterprises, 372 Md. at 539 , 814 A.2d at 483-84 ); Aubinoe v. Lewis, 250 Md. 645, 653 , 244 A.2d 879, 884 (1968). To rezone a property to a floating zone, the zoning authority must find generally that the legislative prerequisites for the zone are met and the rezoning is compatible with the surrounding neighborhood (much as required to grant a special exception). See Bell, 442 Md. at 555-56 , 113 A.3d at 649 (citing Aubinoe, 250 Md. at 653 , 244 A.2d at 884 ); Rylyns Enterprises, 372 Md. at 539 n. 15, 814 A.2d at 484 n. 15 (citing Richmarr, 117 Md.App. at 640 , 701 A.2d at 895 ); Bigenho, 248 Md. at 391 , 237 A.2d at 56-57 .

The burdens of production and persuasion to demonstrate that the rezoning is appropriate fall on the applicant for a floating zone. 22 Rock ⁵¹⁷ ville Crushed Stone, Inc. v. Montgomery Cnty., 78 Md.App. 176, 193 , 552 A.2d 960, 968 (1989); 3 Rathkopfs The Law of Zoning and Planning § 45:4; see also Aubinoe, 250 Md. at 653 , 244 A.2d at 884 (“It is vitally important that the District Council make appropriate express findings based on adequate evidence that the purposes set forth in the Ordinance for the [floating] zone exist and that the project is compatible with the existing uses in the general neighborhood.”). Planning considerations are normally accorded greater weight in assessing piecemeal rezoning applications for floating zones compared to those for Euclidian zones, the latter of which are linked to the change/mistake rule. See Richmarr, 117 Md.App. at 637 , 637 n. 24, 701 A.2d at 894 , 894 n. 24. “Floating zones tend to be plan-implementation mechanisms” by which zoning decision-makers may carry out planning goals. 23 Richmarr, 117 Md.App. at 637 , 701 A.2d at 894 . A Conditional Zoning Another tool creating flexibility within the zoning process (whether Euclidian or floating zones are under consideration) is conditional zoning.

Conditional zoning, available under the piecemeal rezoning process in Prince George’s County, LU § 22-214(a), allows the placement in the grant of rezoning on the subject property of conditions regulating the specific parcel in ways other than by standards or limitations ⁵¹⁸ that are applicable to all land zoned similarly in the district. Bd. of Cnty. Comm’rs of Washington Cnty. v. H. Manny Holtz, Inc., 65 Md.App. 574, 579 , 501 A.2d 489, 491 (1985); 1 Am. Law Zoning § 9:20.

With wise application, conditional zoning may mitigate negative effects of a use on nearby property owners while allowing land to be used as desired by its owner. 3 Rathkopfs The Law of Zoning and Planning § 44:2. In Maryland, local conditional zoning authority, at least for Euclidian zones, 24 must be granted expressly by the relevant zoning enabling statute. 25 See Rylyns Enterprises, 372 Md. at 567-68 , 814 A.2d at 500-01 ; Baylis v. City of Baltimore, 219 Md. 164, 166-170 , 148 A.2d 429, 431-433 (1959). Conditional zoning, where authorized, may be applied to both Euclidian and floating zones as part of the grant of a piecemeal rezoning. 26 See Bell, 442 Md. at 555 , 113 A.3d ⁵¹⁹ at 649. Although conditional zoning introduces flexibility, rezoning a property with conditions does not obviate the necessity for the zoning authority to make the underlying legislative findings required for the grant of the Euclidian or floating rezoning.

Id. When the restrictions imposed by conditions of rezoning regulate elements such as design, layout, siting, appearance, and landscaping, conditional zoning is related closely to planning. Cf. Gaster, 285 Md. at 246 , 401 A.2d at 672 (stating that planning is concerned with the “development of a community ... with respect to streets, parks, civic beauty, industrial and commercial undertakings, [and] residential developments ... ”) (quoting 1 Yokley, supra § 1-2).

In Rylyns Enterprises, we reasoned that the imposition of design conditions, as opposed to use conditions, was similar to subdivision regulation. Rylyns Enterprises, 372 Md. at 568 , 814 A.2d at 501 . Subdivision regulation is one of the key methods by which planning is implemented. See Richmarr, 117 Md.App. at 645-46 , 701 A.2d at 898 . 27 D. Planning in General In its broadest sense, planning is older than recorded history. 1 Norman Williams, Jr. & John M. Taylor, American ⁵²⁰ Land Planning Law § 1:5 (3rd Ed. 2003) [hereinafter Am.

Land Planning ] (stating that “maps of some prehistoric cities show at least a street system laid out on a coordinated basis, and some careful use of monumental sites”); cf. Duodecim Tabularum, http://avalon.law.yale.edu/ancient/twelve_tables. asp (establishing some site planning principles in ancient Rome, adopted in 449 B.C.E.) Attempts to coordinate the interrelated aspects of physical, social, and economic development, however, are a more recent phenomena. 1 Am. Land Planning Law § 1:5; 1 Rathkopfs The Law of Zoning and Planning § 1:41; cf. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law § 2:2 (3d ed. 2013) [hereinafter Land Use Planning and Development Regulation Law ] (describing planning as it existed in colonial America). Statutes formalizing, directing, and empowering broadly local planning were enacted after zoning enabling statutes generally. 1 Rathkopfs The Law of Zoning and Planning § 1:41. 1. Plans Plans are developed to guide the implementation of land use controls and zoning in a rational way that is beneficial to the public.

Land Use Planning and Development Regulation Law § 2:9; see Maryland-Nat. Capital Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 86 , 985 A.2d 1160, 1167 (2009). “Plans are long term and theoretical, and usually contain elements concerning transportation and public facilities, recommended zoning, and other land use recommendations and proposals.” Rylyns Enterprises, 372 Md. at 529 , 814 A.2d at 477 ; see also Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 86 , 985 A.2d at 1167 (quoting 1 Am. Law Zoning § 5-2) (listing the general purposes of comprehensive plans). Counties and municipal corporations are required generally to adopt, amend, and execute a “comprehensive plan.” LU §§ 1-405, 3-101. 28 In the abstract, a comprehensive plan “is ⁵²¹ ‘more than a detailed zoning map and should apply to a substantial area, be the product of long study, and control land use consistent with the public interest.” Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 85 , 985 A.2d at 1167 (citing Yokley, supra § 5-2).

This plan must be well thought out and consider the common needs of a particular area. Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 85 , 985 A.2d at 1167 (citing Yokley, supra § 5-2). The Land Use Article of the Maryland Code requires certain elements to be contained in comprehensive plans. LU §§ 1-106, 3-102.

The preparation of a comprehensive plan is conducted by a planning commission and presented to the local legislature for adoption. See LU §§ 1-406(a)(12), 1-415, 3-202. The plan-creation process is different slightly within the Maryland-Washington Regional District, which consists of most of Prince George’s and Montgomery counties, than elsewhere in the State. Within the Regional District, two types plans are required: (1) a “general plan” containing, at a minimum, recommendations for development in the respective county and supporting analysis; and, (2) “area master plans” pertaining to local planning areas into which each county is ⁵²² divided.

These plans are prepared by the Maryland-National Capital Park & Planning Commission (which is composed of separate planning boards for each county; the two boards sit together on bi-county issues and separately on matters that pertain purely to its respective county) and must be approved by the local legislature of the respective county. See LU §§ 14-101(b), 14-101(f), 21-202, 21-208(a). Area master plans govern typically specific, smaller portions of a county and are usually more detailed than general plans overlapping the same area. Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 89 , 985 A.2d at 1169 (2009) (citing Garner v. Archers Glen Partners, Inc., 405 Md. 43 , 48 n. 5, 949 A.2d 639 , 642 n. 5 (2008)).

Separate functional master plans, addressing transportation routes and facilities, hospitals and health centers, parks, police stations, fire stations, and significant sites and structures, may also be adopted and approved. See LU §§ 21-106, 21-107. Proposals for land use contained in a plan constitute a non-binding advisory recommendation, unless a relevant ordinance or regulation, or specific zoning, subdivision, or other land use approval, make compliance with the plan recommendations mandatory. Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 98-101 , 985 A.2d at 1174-77 ; Rylyns Enterprises, 372 Md. at 530-31 , 814 A.2d at 478-79 ; see also Gaster, 285 Md. at 250 , 401 A.2d at 674 (holding that a local ordinance enacting subdivision regulations required compliance with the plan).

The advisory nature of plans makes direct judicial review of their adoption and approval infrequent, at best. Cf. LU § 21—104(b)(4) (withholding explicitly from judicial review plans created under the Regional District Act). 2. Subdivision Subdivision controls implement plans (assuming the plan recommendations are deemed prudent and timely of fruition) and fall generally under the planning power delegated to local governments.

See Remes v. Montgomery Cnty., 387 Md. 52, 73 , 874 A.2d 470, 482 (2005); Coffey v. Maryland-Nat’l Capital Park & Planning Comm’n, 293 Md. 24 , 29, 441 A.2d 1041 , 1043 (1982) (“Subdivision controls are imposed for ⁵²³ the purpose of implementing a comprehensive plan for community development.”); 1 Am. Land Planning Law § 22:1; Land Use Planning and Development Regulation Law § 7:3. Although “subdivision” refers to the division and consolidation of parcels of land, or the land that has been divided or consolidated, LU §§ 1-101(r), 14 — 101(q), the regulations controlling how, when, and under what circumstances subdivision may occur are used to promote development that is beneficial to the community, see Surina, 400 Md. at 689 , 929 A.2d at 915 ; Coffey, 293 Md. at 27-28, 441 A.2d at 1043. Subdivision controls aim to ensure that developments will be able to support the uses for which the land is zoned.

Surina, 400 Md. at 689 , 929 A.2d at 915 . Among the considerations addressed are the aesthetic planning of the neighborhood, safety and convenience of streets and walkways, access by police and fire protection authorities, adequacy of utilities and other infrastructure, and the off-site effect of the development. 1 James A. Kushner, Subdivision Law and Growth Mgmt. § 1:5 (2d ed. 2012). Subdivision regulations attempt to respond to issues that are not so well-addressed through zoning, the initial step in the development process. E. The Maryland-Washington Regional District Act The property at issue in the present case is within the Prince George’s County portion of the Maryland-Washington Regional District (“Regional District”), as recognized in the Maryland-Washington Regional District Act (“RDA”), codified previously in Art. 28 of the Maryland Code, and codified now in Division II of the Land Use Article of the Maryland Code. 29 ⁵²⁴ Therefore, the RDA and the Prince George’s County Code (“PGCC”) govern the requirements and procedures at issue here.

The RDA is the essential source of the delegation by the State of zoning authority to Prince George’s County for the areas of Prince George’s County within the Regional ⁵²⁵ District. 30 , 31 E.g., Prince George’s Cnty. v. Ray’s Used Cars, 398 Md. 632, 646 , 922 A.2d 495, 503 (2007); Cnty. Council of Prince George’s Cnty. v. Brandywine Enterprises, Inc., 350 Md. 339, 342 , 711 A.2d 1346, 1347 (1998). The RDA regulates planning and zoning within the Regional District, which includes most of Prince George’s and Montgomery Counties. To execute this delegation, the RDA divides broadly authority related to zoning, planning, and other land use matters between the county (district) councils, the Maryland-National Capital Park & Planning Commission, and the county planning boards. 32 ⁵²⁶ The district councils for Prince George’s County and Montgomery County consist of their respective county councils.

LU §§ 22-101, 14-101. They have primary legislative authority. The district councils are authorized to adopt and amend zoning ordinances and the accompanying zoning maps for their counties, LU §§ 22-104, 22-201, and to develop processes and procedures to ensure that development complies with zoning requirements, see, e.g., LU §§ 20-503(a), 22-214(e). They have a role also in the creation of plans by establishing procedures for the planning process, see LU § 21-208(a), and approving master plans for their counties, see LU § 21-212.

Moreover, the district councils may delegate certain responsibilities and authority to other local governmental units or tribunals, subject to limitations as may appear in the RDA. The Maryland-National Capital Park & Planning Commission (“Commission” or “MNCPPC”), as its name suggests, administers parks, public recreation, and, in conjunction with the governments of Prince George’s and Montgomery counties, and their respective Planning Boards (which are constituent parts of the Commission), participates in the planning of development within the Regional District. See, e.g., LU §§ 15-102, 17-101, 20-205, 21-101, 21-103. The MNCPPC consists of ten members, five of whom are residents of Montgomery County, and five of whom are residents of Prince George’s County (each group of five constitute the Planning Board for its respective county).

LU § 15-102(a)(2). The governments of Prince George’s and Montgomery counties appoint the members from their respective jurisdictions. See LU § 15-102(a)(3). Among other things, the RDA authorizes ⁵²⁷ the MNCPPC to: (1) acquire property for parks, forests, roads, and other public spaces, LU § 17-101; (2) rename streets and highways and number and renumber houses within the district to fix mistakes, remove confusion, and establish uniformity, LU § 17-212; (3) acquire, improve, and manage land for flood control purposes, LU § 17-213; (4) establish road grades in Montgomery County, LU § 20-401; and, (5) recommend amendments to the zoning laws and subdivision regulations, LU § 20-203.

The Commission originates and produces also the proposed general and master plans for the Regional District. 33 See LU §§ 21-202, 21-203(a). We perceive also that the RDA seeks to foster a degree of independence in and immunize, to some extent, the Commission from undue grass roots and hierarchical political influence. The RDA directs that commissioners must be individuals of “ability” and “experience.” 34 LU § 15-102(b). Of the five commissioners from each county, no more than three may be members of the same political party, LU § 15 — 102(c)(1), and if a commissioner is appointed to fill an unexpired term, he or she must be a member of the same political party as the vacating commissioner.

LU § 15 — 102(d)(5). Finally, “[a] commissioner may not be selected as representing or supporting any special interest.” 35 LU § 15-102(c)(2). ⁵²⁸ The RDA evinces also an intent of the State Legislature to prevent corruption of or the appearance of impropriety by the commissioners. LU § 15-120 prohibits commissioners from: (1) participating in decisions as a commissioner in which the commissioner or the commissioner’s immediate family has a financial interest; (2) taking certain employment while a commissioner; (3) soliciting or accepting gifts, disclosing confidential information, or using such information for private gain; or, (4) influencing other county or State officials in the conduct of their duties. Commissioners are required by the RDA to disclose publically any conflict with his or her official duties.

LU § 15-120(g). As noted earlier, the planning board for a county consists of the commissioners of the MNCPPC appointed from that county. 36 LU § 20-201; see also LU §§ 15-102, 15-103. The planning boards are “responsible for planning, subdivision, and zoning functions that are primarily local in scope[,]” see LU § 20-202, and not otherwise placed under another agency’s purview, see, e.g., LU § 22-104 (granting to the Montgomery County and Prince George’s County district councils authority to adopt and amend zoning law). The county planning boards have exclusive jurisdiction over local functions within their purview and any mandatory referrals by the county government. 37 LU § 20-202(b). ⁵²⁹ The RDA does not itemize exhaustively the local functions that are within the exclusive jurisdiction of the planning boards.

LU § 20-202(b)(l) provides, however, in relevant part: A county planning board has exclusive jurisdiction over: (i) local functions, including: 1. the administration of subdivision regulations; 2. the preparation and adoption of recommendations to the district council with respect to zoning map amendments; [ 38 ] and 3. the assignment of street names and house numbers in the regional district.... The Legislature’s use of “including” indicates that the local functions listed in LU § 20-301 are not intended to be an exhaustive list, but rather examples of local functions. The fundamental division of zoning, planning, and land use authority in the RDA grants regional authority to the Commission, broad local authority to the county planning boards, and specific local authority to the county district councils. 39 ⁵³⁰ Although the RDA grants authority to the district councils through discrete provisions, unlike the broader grant of authority provided the planning boards, such authority is not narrow. The district councils have broad legislative authority.

See, e.g., LU §§ 20-104 (granting authority to create and amend zoning law), 20-105 (granting authority to district councils to create a program for the transfer of development rights), 20-503 (granting authority to the district councils to create “a process to raise a zoning question before the preparation of all structural specifications of a building or structure that may be required for a complete building permit”), 22-104 (granting authority to the “governing body of Montgomery County or Prince George’s County” to adopt and amend subdivision regulations). F. Comprehensive Design (Floating) Zones in Prince George’s County The District Council for Prince George’s County (“District Council”) classifies as “comprehensive design zones” certain types of floating zones established pursuant to the RDA. PGCC § 27-109. Explaining the reasons for creating comprehensive design zones, PGCC § 27-476 states: (1) It is within the ultimate objectives of the District Council’s authority (under Article 28 of the Annotated Code of Maryland) to use recent planning and zoning innovations; (2) The demands for housing, commercial and industrial activities, and related public facilities and services are undergoing substantial and rapid changes, requiring improved methods of land use control; and (3) There is a need to encourage the optional and imaginative utilization of land contemplated by Comprehensive Design Zones in order to: (A) Improve the total environment; (B) Lessen the public costs associated with land development and use; ⁵³¹ (C) Fulfill the purposes of each individual Comprehensive Design Zone; and (D) Fulfill the recommendations and purposes of the General Plan, Master Plans, or Sector Plans in selected areas.

Each type of comprehensive design zone has also its own goals, but all are aimed generally at encouraging good development. See PGCC § 27-478(a). To take advantage of the flexibility provided by the comprehensive design zones, a developer must seek first to change the present zoning of a parcel by submitting an application for zoning map amendment and accompanying Basic Plan. 40 PGCC §§ 27-187, 27-195(a)(1). The application and Basic Plan must demonstrate that the entire proposed development will conform to the relevant criteria for the proposed zone.

PGCC § 27-195(b). The Planning Board provides the District Council with an analysis and recommendation regarding the application. PGCC § 27-192; see also LU § 22-208. If the District Council approves the zoning map amendment, it may specify particular permitted land use types and planning and development guidelines that must be followed by the applicant and subsequent owners in the subsequent approval processes.

PGCC § 27-195(a)(1). The District Council may impose also conditions on the property along with the new zoning classification. PGCC § 27 — 195(c); see also LU § 22-214(a). If the District Council approves the application and Basic Plan, thereby rezoning the property, the applicant must submit next a Comprehensive Design Plan (“CDP”) and a Specific Design Plan (“SDP”). 41 PGCC § 27-487(a).

The CDP is the ⁵³² second step in the evolutionary detailing of what the applicant proposes to develop on the property. The applicant must provide, among other things, preliminary drawings, details, and designs of the actual proposed development. PGCC § 27 — 518(b). 42 The third step, the SDP, 43 includes additional ⁵³³ and greater development detail. See PGCC § 27-527(b). 44 Development and use of the property must comply with the approved SDP, which binds future owners as well as the ⁵³⁴ applicant, unless a revision is sought and approved.

PGCC §§ 27-529, 27-530. The Planning Board, after its technical planning staff reviews an applicant’s submissions and makes a recommendation, holds a public evidentiary hearing. Thereafter, it approves or denies a CDP or SDP (with or without conditions). PGCC §§ 27-522, 27-528.

To receive approval, the plans must meet certain requirements set out in PGCC §§ 27-521 and 27-528. PGCC § 27-521 details several findings that the Planning Board must make in order to approve a CDP. The first is that the CDP is in conformance with the approved Basic Plan, and certain zoning requirements. See PGCC §§ 27-521(a)(1), 27-223(b)(3)(B), 27-195. 45 , 46 The CDP must demonstrate more, however, than showing simply that the proposed development would comply with the property’s zoning.

Among other ⁵³⁵ things, the CDP must demonstrate: (1) that it “would result in a development with a better environment than could be achieved under other regulations[,]” PGCC § 27-521(a)(2) (emphasis added); (2) “the preservation and/or restoration of the regulated environmental features in a natural state to the fullest extent possible[,]” PGCC § 27-521(a)(11) (emphasis added); and, (3) that “[ajpproval is warranted by the way in which the Comprehensive Design Plan includes design elements, facilities, and amenities, and satisfies the needs of the residents, employees, or guests of the project[,]” PGCC § 27-521(a)(3) (emphasis added). Although the County Code indicates the appropriate considerations, the Planning Board (and its technical planning staff) must exercise expertise and judgment to determine whether to approve a CDP, wielding necessarily significant discretion in that endeavor. The considerations governing the decision are the essence of planning. 47 The Planning Board’s discretion to deny an SDP is cabined. See PGCC § 27-528(c) (“The Planning Board may only deny the Specific Design Plan if it does not meet the requirements of Section 27-528(a) and (b), above.”).

The Planning Board must approve an SDP unless the submission fails to: (1) conform to the CDP, the Landscape Manual, or the applicable design guidelines and regulations; (2) demonstrate that the development will be served adequately by existing or programmed public facilities within a reasonable time; (3) demonstrate that surface water will be handled adequately; (4) conform with an approved Type 2 Tree Conservation Plan; and, (5) demonstrate that regulated environmental features ⁵³⁶ are preserved and/or restored to the full extent possible. 48 PGCC § 27-528(a). Nonetheless, the Planning Board must still exercise significant agency expertise and judgment in making these determinations. The decision of the Planning Board as regards a CDP or an SDP is subject to review by the District Council. PGCC §§ 27-523(a), 27-528.01.

Any person of record before the Planning Board may appeal the decision to the District Council (which did not occur in the present case), or the District Council may elect on its initiative to review (“call up”) the decision (which is what happened here). Cf. PGCC § 27-523(a). The District Council may affirm, reverse, or modify the decision of the Planning Board, or remand the case to the Planning Board for further consideration.

PGCC § 27-523(a). In the present case, we are asked to consider what is the proper role of the District Council in reviewing decisions of the Planning Board and the standard(s) by which the District Council may review the Planning Board’s decision.

II

Factual and Procedural Background Now we shall bring down to earth somewhat this opinion. The property at the heart of this dispute (the “Edwards Property”) is a triangular 4.14 acre parcel in Adelphi, Prince George’s County. The parcel is bounded by Adelphi Road, Edwards Way, and Riggs Road. Zimmer Development Company (“Zimmer”), a national real estate developer based in Wilmington, North Carolina, wishes to construct on the Edwards Property a small retail center with a CVS store as the primary tenant. ⁵³⁷ The Edwards Property was zoned originally R-R (Rural Residential), a Euclidian single-family, detached residential zone, which would not allow development of a retail center on the Property.

In 2004, after Edwards Commercial Properties’ 49 submission of an application for a zoning map amendment of the parcel to L-A-C (Local Activity Zone), 50 a floating zone, together with a Basic Plan depicting how it would develop the property generally, the County Council for Prince George’s County, sitting as the District Council, adopted Zoning Ordinance 10-2004 granting the requested rezoning to the L-A-C zone, subject to several conditions. Zoning Ordinance 10-2004 required as conditions the following: 1. The Basic Plan shall be revised to show the following rights-of-way along the frontages of the subject property: ⁵³⁸ MD 212 — 40 feet from center line (toward the ultimate right-of-way of 80 feet); Adelphi Road — 50 feet from center line (toward the ultimate right of way of 100 feet); Edwards Way — 35 feet from center line (in accordance with Zoning Ordinance requirements adjacent to commercial zone). 2. The Applicant will provide a double left-turn lane along southbound/westbound MD 212 at the approach of Adelphi Road.

Timing of this improvement will be determined at the preliminary plan of subdivision. 3. Prior to the approval of the Specific Design Plan for the subject property, the applicant shall submit an acceptable traffic signal warrant study to the County Department of Public Works and Transportation (DPW & T) for the intersection of Adelphi Road and Edwards Way. The Applicant shall use a new 12-hour count and shall analyze signal warrants under total future traffic as well as existing traffic. 4. During the review of Preliminary Plan of Subdivision, the Applicant shall provide more detailed operational analyses at the intersections of MD 212/Edwards Way and MD212/site entrance.

The scope of these analyses will be determined after approval of the proposed Basic Plan and in consideration of the permitted access to the site. 5. Total commercial development of the subject 4.14 acre site shall be limited to a maximum of 40,000 square feet. 6. During the Comprehensive Design Plan and subdivision review, the Applicant shall address the addition of public streets to accomplish access from Adelphi Road or obtain a variance from Section 24-121 of the Subdivision Regulations. 7. Development of the subject property shall have a woodland conservation threshold of 20 percent.

If off-site mitigation is proposed, the first priority for mitigation sites shall be within the Anacostia Watershed. 8. During the Comprehensive Design Plan and Specific Design Plan review, the Applicant shall address the following issues: ⁵³⁹ A. Architectural design shall be distinctive in order to create an image of quality and permanence. B. A build-to line shall be considered in order to create an inviting streetseape. C. The streetseape shall create a pedestrian-friendly environment with consideration of the following elements: (1) Street furniture including pedestrian lighting (2) Trash receptacles (3) Bike racks (4) Pedestrian crosswalks should be a contrasting paving materials (5) Need for bus stop[.] D. Massive surface parking facilities adjacent to either Riggs or Adelphi Road shall be prohibited.

E. An architectural focal point and/or sculpture located within a green area shall be provided at the intersection of Adelphi and Riggs Road. F. No loading and/or dumpster areas shall be visible from adjacent roadways. G. The design plans shall address the entire property, so that the final development of the individual lots creates a visually cohesive development, compatible in regard to architectural treatment and site layout. 9. Additional conditions of approval: A. The leadership of the Buck Lodge Citizen’s Association, White Oak Manor Civic Association, and Hampton’s Association will each nominate two representatives and one alternate to participate with the developer of the subject property in regular meetings, scheduled by the developer, during each of the phases of development (including but not limited to the Preliminary Plan of Subdivision, Comprehensive Design Plan, and Specific Design Plan) of the property.

B. At the time of Preliminary Plan Application, the developer of the subject property shall include the intersection of Metzerott Road and Riggs Road in its traffic ⁵⁴⁰ study, to demonstrate the adequacy of transportation facilities in the surrounding area. C. Any required widening and improvements to the public rights-of-way for Riggs Road, Adelphi Road, and Edwards Way shall include five-foot sidewalks, in accordance with applicable State and County Standards. D. The developer of the subject property shall work with the Maryland State Highway Administration on the improvements to Riggs Road, Maryland Route 212, to provide a center turn lane to allow northbound traffic to make left turn turns into the subject property without impeding through traffic. E. The developer of the subject property shall be responsible for payments for all road and intersection improvements necessary to mitigate any failing traffic conditions caused by the on-site development.

Such improvements will be determined at the time of Preliminary Plan Review. F. The developer of the subject property shall work with the various transit authorities and agencies to maintain the locations of the existing bus stops along Riggs Road and Adelphi Road. The developer shall construct a bus pull-off area to allow the loading and unloading of passengers out of the travel lanes of the roadways, within the public rights-of-way. G. The developer of the subject property shall work with the Prince George’s Department of the Environment, to utilize low impact stormwater management techniques to the degree practicable.

H. The developer of the subject property shall take all reasonable actions to alleviate and reduce the possibility of crime occurring on or adjacent to the property. j.[ 51 ] qpiie developer shall keep clean all areas of the subject property, during and after development. ⁵⁴¹ K. The developer shall incorporate trees, shrubs, open areas, flowers, walkways, and lighting into the site plan. The property shall be cleared of poorly lit or secluded areas, and adequate safety lighting shall be installed to improve visibility into the site and deter illegal activity. 10. The developer shall make its best efforts to include a restaurant as an ancillary tenant on the subject property. Time passed.

On 14 March 2011, Zimmer filed concurrently with the Commission a proposed Comprehensive Design Plan-1001 (“CDP-1001”) and Specific Design Plan-1001 (“SDP-1001”) for the development of the Edwards Property. On 28 July 2011, the Planning Board held a public hearing on the applications. The technical staff of the Planning Board, having reviewed the submissions, recommended their approval with conditions. CDP-1001 and SDP-1001 were found by the Planning Board to comply with the approved Basic Plan and the planning standards applicable to CDPs and SDPs for the L-A-C zone and, consequently, were approved subject to conditions substantially similar to those recommended by the technical staff. 52 ⁵⁴⁵ No party to the Planning Board proceedings appealed.

The District Council elected, however, to review the Planning Board’s approval of the CDP and SDP, pursuant to PGCC § 27-523(a) and § 27-528.01(b). On 7 November 2011, the District Council held a public hearing and entertained oral arguments. 53 Seven days later, the District Council remanded CDP-1001 and SDP-1001 to the Planning Board to consider three specific areas of concern: (1) whether the lack of a community center and the destruction of the natural tree canopy could be mitigated through amenities benefiting the surrounding community; (2) whether the deforestation mitigation plans were adequate; and, (3) whether access for the nearby residents of Edwards Way could be improved to ⁵⁴⁶ compensate for the increase in traffic resulting from the proposed development. On 9 February 2012, and after its technical staff pondered the District Council’s three areas of apparent concern, the Planning Board held a hearing to consider the specific issues identified in the District Council’s remand. Four weeks after that hearing, the Planning Board issued amended resolutions, delineating additional findings and again approving CDP-1001 and SDP-1001, subject to substantially the same conditions. 54 The Planning Board addressed each of the issues for which the District Council remanded the application.

With respect to the lack of a community center, the Planning Board noted that the Edwards Property was of insufficient size for the construction of a community center. The Planning Board noted that, in the L-A-C zone, a “community center” is not justified unless the tract comprises twenty adjoining acres, and a “village center” requires ten adjoining acres. 55 The Planning Board did require additionally Zimmer to provide a sculpture to the previously planned mini-park on the site and to include in its landscape plan flowering plants that were drought-resistant. With respect to the environmental concerns, the Planning Board explained how it arrived at its determination that none of the trees on the rather small lot could be retained and why the proposed mitigation for their loss was adequate. Finally, the Planning Board described its re-analysis of the traffic impacts on Edwards Way vis-a-vis the proposed development and the neighborhood, concluding that “[t]he installation of a [traffic] signal at Adelphi Road and Edwards Way will greatly reduce delay for traffic using Edwards Way, and should reduce any queuing that currently ⁵⁴⁷ occurs” and that “[n]o changes to the previously approved transportation-related conditions associated with the plan approval [were] warranted.” No party took an appeal, but the District Council elected again to review the Board’s revised decisions regarding CDP-1001 and SDP-1001.

On 21 May 2012, the District Council entertained oral arguments. A member of the Planning Board staff presented an overview of the proposed development and addressed the issues for which the District Council remanded the case to the Planning Board. The Planning Board staff member recommended approval of the CDP and SDP. The District Council had no questions for the staff member.

The attorney representing Zimmer was allowed thirty minutes to address the Council. On behalf of Zimmer, he concurred succinctly 56 with the Planning Board’s assessment and stated that the conditions imposed by the Planning Board addressed the considerations remanded to the Planning Board. Although the attorney reserved the lion’s share of his allowed time for questions from the District Council, none were forthcoming. The opposition (although none had appealed to the District Council) were given thirty minutes to speak.

Two persons took the podium. A member of the Adelphi community and also of an ad hoc civic group “People United for Fairness” spoke. He argued that CDP-1001 should be denied because: (1) the property could be better used as a community meeting place (or potentially as a park); (2) the clearing of the woodlands would be damaging ecologically; (3) the runoff from the property and the general effect on the water table would damage nearby properties; (4) the development would endanger pedestrians; and, (5) response times for emergency vehicles would be compromised as a result of increased traffic. He questioned also the level of community involvement in the planning of the development. ⁵⁴⁸ The President of the Board of the Racquet Club Condominium, a property directly across Edwards Way from the proposed development, spoke in opposition as well.

Her concern was primarily that the truck traffic accessing the finished development and the placement of the traffic signal at the intersection of Adelphi Road and Edwards Way would disrupt existing traffic patterns. According to her remarks, driveways serving approximately 530 housing units with ingress and egress on Edwards Way, which road suffered already from congestion, would be affected adversely. She complained also that there was no outreach by Zimmer or its affiliates to the Racquet Club Condominium community in the planning of the development. In rebuttal, Zimmer’s attorney highlighted the ways in which the community had been involved (or invited to be involved) in the planning process, including his direct contact with the President of the Board of the Racquet Club Condominium.

The People’s Zoning Counsel 57 spoke last. He stated that the case had “been reviewed exhaustedly by the community” and concurred with the Planning Board actions. ⁵⁴⁹ At the close of the hearing, the Council member, in whose district the subject property lay, remarked: “I think that this zone on this property, L-A-C, one of the main features of an L-A-C zone is supposed to be some tangible community benefit. And other than really a welcome sign, there isn’t anything significant, you know, for this community.” That Council member moved then for an Order of Denial, which motion was seconded. There being little discussion, the District Council Chair called for a vote.

The vote was 9-0 to deny the CDP and SDP and to have its staff prepare an order of denial. The staff of the District Council generated the Order of Denial, with an attached memorandum explaining its conception of reasons for the proposed denial. The memorandum marshalled fourteen reasons. According to the memorandum, CDP-1001 and SDP-1001, as approved by the Planning Board, failed to meet several conditions of the 2004 zoning map amendment, 58 fell below the minimum floor area ratio ⁵⁵⁰ (FAR) for retail commercial development in a parcel zoned LA-C, 59 and did not justify adequately the failure to include a community center in its development. 60 The District Council, on 21 June 2012, adopted as its own the Order of Denial and attached memorandum.

On 3 July 2012, Zimmer sought judicial review by the Circuit Court for Prince George’s County of the District Council’s denial of SDP-1001 and CDP-1001. In a written opinion, the Circuit Court held, among other things, that: (1) the District Council had appellate jurisdiction, not original jurisdiction, to review the determinations of the Planning Board and, hence, was limited to determining whether the Planning Board’s decision was arbitrary, capricious, discriminatory, or illegal; (2) the District Council’s review, under the circumstances, was limited further to the specific issues for which it remanded the case to the Planning Board; and, (3) the District Council substituted improperly its judgment for the judgment of the Planning Board, as there was substantial evidence supporting the Planning Board’s determination on each of the remanded issues. 61 The Circuit Court reversed ⁵⁵¹ the decision of the District Council and remanded the case to the District Council, with directions to approve CDP-1001 and SDP-1001, as approved by the Planning Board. The District Council appealed the judgment of the Circuit Court to the Court of Special Appeals (“CSA”). The intermediate appellate court affirmed.

Cnty. Council of Prince George’s Cnty. v. Zimmer Dev. Co., 217 Md.App. 310, 331 , 92 A.3d 601, 614 (2014). That court held, inter alia, that: (1) the District Council was authorized to exercise only appellate jurisdiction to review the decisions of the Planning Board regarding SDP-1001 and CDP-1001, and, hence, was restricted to determining whether the Planning Board decision was arbitrary, capricious, discriminatory, or illegal; (2) PGCC § 27-523(c) allowed for District Council review on the second call-up only of the remand issues; and, (3) the District Council’s argument that each of its fourteen reasons for denying the applications was supported by substantial evidence was inapposite because only the remand issues were appropriate to consider and the District Council was authorized to reverse only arbitrary, capricious, discriminatory, or illegal decisions by the Planning Board.

Zimmer Dev., 217 Md.App. at 318-31 , 92 A.3d at 606-14 . The District Council sought our review of the case. We granted a writ of certiorari, Prince George’s Cnty. v. Zimmer Dev. Corp., 440 Md. 114 , 99 A.3d 778 (2014), to consider the following questions: 1) Did the CSA err in its statutory construction of the “Regional District Act” (“RDA”) by holding that the District Council is vested with appellate rather than original jurisdiction over Planning Board preliminary determinations with respect to regional and legislative zoning matters? ⁵⁵² 2) Did the CSA err by applying County Council of Prince George’s County v. Curtis Regency, 121 Md.App. 123 , [126, 708 A.2d 1058, 1059 (1998) ], even though it involved a preliminary planning matter rather than a legislative, regional zoning matter which conflicts with this Court’s holding in County Council of Prince George’s County v. Dutcher, Prince George’s County v. Dutcher, [ 365 Md. 399, 425 , 780 A.2d 1137, 1152 (2001) ]? 3) Whether the County Council’s 1996 enactment of the County Code (“PGCC”) § 27 — 132(f), providing that the District Council “shall exercise original jurisdiction” in its “review [of] a decision made by ... the Planning Board,” is consistent with the provisions of the RDA? 4) Whether the CSA’s holding improperly transfers the legislative, regional zoning authority expressly provided to the District Council by the RDA to the Planning Board, a subordinate agency? 5) Whether the CSA’s holding violates the separation of powers doctrine because the judiciary has divested the legislative body of its legislative authority over regional zoning, including the applications related to zoning map amendments sought here, specifically designated by State law? 6) Whether the CSA nullified the District Council’s statutory right to “remand” a case to the Planning Board for further information, and the District Council’s obligation to issue a “final” decision prior to judicial review, by holding that the District Council is limited after remand to only those issues that were remanded? 7) Assuming, arguendo, that the CSA correctly held that the District Council's standard of review of the Planning Board’s actions is the “arbitrary, capricious, discriminatory or illegal” standard, then whether the CSA erred by reinstating the Planning Board’s recommendations as to Zimmer’s applications, instead of remanding for the District Council to apply the correct standard of review? ⁵⁵³ III.

Judicial Standard of Review The questions posed in the District Council’s petition for writ of certiorari may be condensed into three: (1) did the District Council have broad, original jurisdiction when considering the Planning Board’s approvals of CDP-1001 and SDP-1001, or did it have only a more limited, appellate-like jurisdiction; (2) was the District Council’s ultimate consideration of the Planning Board’s approvals limited to the issues remanded to the Planning Board; and, (3) assuming the District Council reviewed the Planning Board’s decision using an improper standard, should the case have been remanded to the District Council to apply the correct standard? Each of these are legal questions, which we decide without deference to the judgments of the intermediate appellate court or Circuit Court. Talbot Cnty. v. Miles Point Prop., LLC, 415 Md. 372, 384 , 2 A.3d 344, 351 (2010). “Accordingly, we ‘look through the circuit court’s and intermediate appellate court’s decisions, although applying the same standards of review, and evaluate the decision of the agency.’ ” Elms v. Renewal by Andersen, 439 Md. 381, 391 , 96 A.3d 175, 181 (2014) (quoting Surina, 400 Md. at 681 , 929 A.2d at 910 ). We consider often the expertise of an administrative agency tasked with implementing statutes when determining whether its decision was premised on an erroneous conclusion of law.

Surina, 400 Md. at 683 , 929 A.2d at 911 (quoting Marzullo v. Kahl, 366 Md. 158, 173 , 783 A.2d 169, 178 (2001)). When a case before us presents solely conclusions of law respecting jurisdiction, however, we do not afford deference to the legal conclusions of the agency. Miles Point Prop., 415 Md. at 384 , 2 A.3d at 351 .

IV

The CDP and SDP Approval Process in the RDA As noted previously, Prince George’s County’s authority to regulate land use within the Regional District is delegated by the RDA. E.g., Ray’s Used Cars, 398 Md. at 646 , 922 A.2d at 503 ; Brandywine Enterprises, 350 Md. at 342 , 711 A.2d at 1347 ; see also supra note 30. The respective roles of the ⁵⁵⁴ District Council and Planning Board in the CDP and SDP approval process depend on the provisions of the RDA regarding that process, both express and reasonably implied. The requirement that a CDP and a SDP must be approved before physical development may begin in comprehensive design zones is a process by which planning goals may be implemented.

The RDA provides expressly for some methods to accomplish this task, but provides also a method by which additional functions not mentioned in the RDA may implement planning responsibilities. We look first to the methods provided for expressly. A. Zoning Map Amendments The District Council asserts that CDP-1001 and SDP-1001 partake of the nature of zoning map amendments because they purport to carry out the approved Basic Plan. With respect to acting on zoning map amendments, the Planning Board provides only recommendations to the District Council.

See LU §§ 22-208, 20-202(b). 62 The conclusion of the District Council’s syllogism is, therefore, that the Planning Board’s approval of CDP-1001 and SDP-1001 was merely a recommendation. The argument continues that, because the Planning Board’s approval was a recommendation, and such a recommendation in the instance of a zoning process has no inherent legal weight, the District Council had original authority to decide differently the action to be taken regarding CDP-1001 and SDP-1001, without any deference owed or presumptive correctness accorded the Planning Board’s determination. The form of the District Council’s logic tracks, to a point — Planning Board decisions in Prince George’s County ⁵⁵⁵ regarding zoning map amendments are mere recommendations to the District Council — but falters with its first major premise. CDP-1001 and SDP-1001 were not zoning map amendments, nor do they partake of the character of such.

The act of rezoning the Edwards Property was completed in 2004 when the District Council approved the L-A-C zone and the Basic Plan for the proposed development by virtue of Zoning Ordinance 10-2004. 63 This ordinance was the legislative act establishing the rezoning. After the legislative act, the property was zoned L-A-C, subject to the conditions enumerated in Zoning Ordinance 10-2004. 64 The subsequent CDP and SDP steps required were to ensure that the development proposed for the Edwards Property addressed the planning implementation goals required for the specific comprehensive design zone involved. The CDP and SDP steps are designed as an increasingly more rigorous path to flesh-out the details and specifics of the proposed development. See PGCC §§ 27-518, 27-521, 27-527, 27-528.

Neither party here supplies an alternative theory explaining the source of authority within the RDA for the establishment of the requirements of the CDP and SDP processes. In an ⁵⁵⁶ abundance of caution, we will consider other possible options in aid of our task to discover Legislative intent. B. Are They Processes to Raise Zoning Questions? One possibility is that CDPs and SDPs operate as a process to raise zoning questions.

LU § 20-503(a) states that “[b]y zoning law, a district council may provide for: (1) the issuance of use and occupancy permits; and (2) a process to raise a zoning question before the preparation of all structural specifications of a building or structure that may be required for a complete building permit.” Although CDPs and SDPs are not “use and occupancy” permits, which are treated separately in the PGCC, see PGCC § 27-253, “a process to raise a zoning question” is broad and could encompass conceivably actions like CDP and SDP approval. 65 LU § 20-503 does not describe expressly the authority of the District Council to review de novo Planning Board actions on CDPs and SDPs as part of a scheme to raise and resolve zoning questions. With regard to building permits, the statute provides: (a) In general. — By zoning law, a district council may provide for: (1) the issuance of use and occupancy permits; and (2) a process [ 66 ] to raise a zoning question before the preparation of all structural specifications of a building or structure that may be required for a complete building permit. ⁵⁵⁷ (b) Montgomery County . — In Montgomery County, all building permit applications shall be referred to the Commission for review and recommendation as to zoning requirements. (c) Prince George’s County. — In Prince George’s County, the County Council, by local law, may provide for the referral of some or all building permit applications to the Commission for review and recommendation as to zoning requirements. LU § 20-503.

Despite excluding the Planning Board from making final determinations as to the issuance of building permits, the RDA does not specify which agency has original jurisdiction over building permits or other elements of a process to raise zoning questions. LU § 20-513 grants to the District Council broad authority to impose and implement building codes, in part through permitting. The District Council is not limited expressly in its delegation or retention of the original jurisdiction to make these decisions. 67 See LU § 20-513(g) (“A building code adopted under this section shall be enforced by the officers designated in the county charter or county code.”). 68 Although categorizing CDPs and SDPs as a process contemplated by LU § 20-503 would provide a simple resolution to the present case, that is not a good fit with the permits and certificates contemplated by the section. The deciding ⁵⁵⁸ agency wields narrower discretion regarding the issuance of building permits and use and occupancy permits. “[T]he issuance of building permits in respect to applications that fully comply with applicable ordinances and regulations of a particular subdivision is a ministerial act.” Evans v. Burruss, 401 Md. 586, 605 , 933 A.2d 872, 883 (2007).

Use and occupancy permits are concerned primarily with discrete standards as well. See PGCC § 27-257 (stating that the issuance of a use and occupancy permit certifies that the building, structure, and use meet the requirements of Prince George’s County’s zoning ordinances); Cowles v. Montgomery Cnty., 123 Md.App. 426, 439 , 718 A.2d 678, 685 (1998) (describing the considerations of the Board of Appeals of Montgomery County regarding a use and occupancy permit). The review of a CDP and SDP, on the other hand, requires planning expertise and the exercise of a broad range of discretion. See supra at Part I.F. In addition, applications for (and issuance of) building permits and use & occupancy certificates would follow approval of a CDP and SDP in the development process.

More to the heart of the matter, zoning compliance is not at the heart of the CDP and SDP approval process. Although compliance with zoning is one element the agency making the decision must find to approve a CDP or SDP, it must decide also many more quintessential planning matters. See supra at Part I.F. The focus of the CDP and SDP process is the development of a community, including the civic beauty, local infrastructure, and environmental concerns. See PGCC §§ 27-521, 27-528.

The purpose of the process is to “result in a development with a better environment than could be achieved under other regulations!,]” PGCC § 27-521(a)(2), not a development that complies only with zoning and other land use regulation. Thus, LU § 20-503(a) may be eliminated as a “magic bullet” for the resolution of the present controversy. C. Is There an Apt Analogy to be Made to the Detailed Site Plan Process? In many ways, CDPs and SDPs are similar in the Prince ⁵⁵⁹ George’s County land development processes to Detailed Site Plans. 69 Detailed Site Plans are required for “certain types of ⁵⁶⁰ land development [that] are best regulated by a combination of development standards and a discretionary review----” PGCC § 27-281.

Where required, Detailed Site Plans generally must be approved before a final plat of subdivision 70 or grading, building, or use of occupancy permits may be approved or issued. PGCC § 27-270 (specifying order of approvals); see also PGCC § 27-281.01 (stating generally the circumstances under which a Detailed Site Plan must be approved before permits are issued). The general purposes of Detailed Site Plans are: (A) To provide for development in accordance with the principles for the orderly, planned, efficient and economical development contained in the General Plan, Master Plan, or other approved plan; (B) To help fulfill the purposes of the zone in which the land is located; (C) To provide for development in accordance with the site design guidelines established in this Division; and (D) To provide approval procedures that are easy to understand and consistent for all types of Detailed Site Plans. PGCC § 27 — 281(b)(2).

These are planning considerations, like those underlying the process for the approval of CDPs and SDPs. The required content of a Detailed Site Plan is most similar to that of an SDP. Compare PGCC § 27-282 (indicating the content required in a Detailed Site Plan), 71 with PGCC ⁵⁶¹ § 27-527 (quoted supra note 44) (indicating the content required in an SDP). In a generic sense, CDPs and SDPs are ⁵⁶² glorified site plans. 72 The approval process regarding Detailed Design Plans under LU § 25-210 73 is similar to the process the District Council argues applies here to CDPs and SDPs.

The District Council is authorized expressly to “review a final decision of the county planning board to approve or disapprove a detailed site plan.” LU § 25-210(a). Parties of record before the District Council may appeal to the District Council a decision of the Planning Board, or the District Council may review the decisions on its initiative. LU § 25-210(a). The District Council’s determination after review is “a final decision.” LU § 25-210(d).

LU § 25-210 does not prescribe, however, the standard of review by which the District Council considers decisions of the Planning Board (nor did Art. 28, § 8-129) regarding Detailed Site Plans. The District Council’s review results in a “final decision,” according to LU § 25-210(d), but LU § 25-210(a) labels also the decision of the Planning Board as “a final decision.” 74 Despite their similarities, key differences exist between the CDP and SDP process and the Detailed Site Plan process. A Detailed Site Plan is required to demonstrate that its design “represents a reasonable alternative for satisfying the site design guidelines, without requiring unreasonable costs and without detracting substantially from the utility of the proposed development for its intended use.” PGCC § 27-285(a)(1). It is a method of moderating design guidelines so as to allow for greater variety of development, while still ⁵⁶³ achieving the goals of the guidelines.

The CDP and SDP process, in contrast, is a broader implementation of planning considerations, aimed at producing “a better environment than could be achieved under other regulations.... ” PGCC § 27-521(a)(2). In the final analysis, CDPs and SDPs are not Detailed Site Plans by another name. The PGCC’s treatment is determinative because the CDP and SDP process and the Detailed Site Plan process were in existence when the Legislature enacted Senate Bill 901 of 2011, which was codified as Art. 28, § 8-129 and re-codified in LU § 25-210. 75 The intent of the Legislature was to regulate Detailed Site Plans as that term was used in Prince George’s County in 2011. If the Legislature intended CDPs and SDPs to be regulated similarly and under the same statute, we must assume that it would have done so expressly.

D. Enforcement of Conditional Zoning As noted earlier, the RDA has authorized since 1968 Prince George’s County to engage in conditional rezoning. See Art. 28, § 8 — 104(e)(1) (re-codified as LU § 22-214). 76 The RDA provides also for the District Council to “adopt local laws necessary to provide adequate notice, public hearings, and enforcement procedures for the implementation [of such authority.]” LU § 22-214. Although the RDA provides expressly for the District Council to adopt the local laws to ⁵⁶⁴ implement conditional zoning, it is silent regarding the District Council’s authority to review the actions of an agency to which is delegated execution of the enforcement procedures the Council creates. See LU § 22-214.

Conditional zoning, when used to impose requirements related to design, layout, siting, appearance, and landscaping (as opposed to the uses of the land) is related closely to planning. 77 See supra at Part I.C.4. The majority of the conditions applied to the approval of the L-A-C zone and the Basic Plan for the Edwards Property involved planning considerations. Eleven of the conditions on the property were related to traffic impact alleviation, accommodation of mass transit, and the procurement of such. Eight concerned design, architecture, or landscaping.

Others required certain streetscape infrastructure, efforts at crime reduction, woodland conservation, storm-water management, and the inclusion of civic groups in the design process. Only two conditions involved solely the commercial land uses to be developed on the property, which limited commercial development to 40,000 square feet and required the developer to make its “best efforts” to include a restaurant as an ancillary tenant on the property. The CDP and SDP processes may be used as a tool to realize the planning goals of conditional zoning and to guide the design of the proposed development, especially when the conditions refer to matters that must be addressed coincidentally through the legislative requirements of the CDP and SDP processes. It appears that CDP-1001 and SDP-1001 were used as such with regard to the Edwards Property.

Most of the justifications offered by the District Council for denying CDP-1001 and SDP-1001 involved perceived failures to address adequately conditions imposed on the Edwards Property during the rezoning. See supra note 58. Were it used only to consider and implement the conditions imposed on the piecemeal rezoning, perhaps the CDP and ⁵⁶⁵ SDP review and approval processes could be seen as extensions of the District Council’s “enforcement procedures for the implementation of’ its conditional zoning, as provided for by LU § 22-214(e). Guiding development to comply with conditional zoning requirements could be termed “enforcement,” 78 and the CDP and SDP approval processes could be termed a “procedure.” 79 Under the PGCC, however, the CDP and SDP processes do much more than implement conditional zoning.

It implements planning considerations to achieve a better development than would otherwise be achievable. See PGCC § 27-521(a). The CDP and SDP processes would be necessary even if the District Council, upon approving a piecemeal rezoning, attached no conditions on a rezoning. The developer would need still to satisfy the legislative findings set out in PGCC § 27-521 for the CDP and PGCC § 27-528 for the SDP.

CDP-1001 and SDP-1001 provide useful illustration of how the CDP and SDP processes extend more proportionately to matters outside the potential reach of conditional zoning. The District Council justified its denial of CDP-1001 and SDP-1001, in part, on the failure to consider adequately a community center. None of the conditions or express requirements of the PGCC require a community center in every development of L-A-C zoned property, but the District Council recognized correctly that the CDP and SDP processes involve more than implementing static zoning requirements and the conditions imposed on the property’s rezoning, or achieving uniformity ⁵⁶⁶ throughout the district. It implements the planning purposes of the comprehensive design zone at issue.

E. Assignment of Other Functions LU § 20-207 provides a method by which functions that are not assigned otherwise in the RDA may be implemented in the Regional District and by which local governmental body. According to the statute, “functions not specifically allocated in this subtitle shall be assigned to the Commission or to one or both of the county planning boards, as needed.” LU § 20-207(a). Because no provision of the RDA deals expressly with CDPs or SDPs, and the similar or related land use actions that are detailed expressly by the RDA do not perform identical or sufficiently similar functions as the CDP and SDP approval processes, LU § 20-207 is a source of authority in the RDA by which a role in the CDP and SDP approval processes may be seen as delegated to the Planning Board. 80 , 81 LU § 20-207 imposes two requirements on the allocation of “additional functions.” First, the assignments must be approved by the District Council and by the MNCPPC. LU § 22-207(b)(l).

The District Council has provided its approval, as demonstrated by PGCC §§ 27-522 and 27-528, which authorize initial consideration by the Planning Board. 82 The ⁵⁶⁷ MNCPPC appears to have accepted the assignment, as the Planning Board considers, in practice, CDPs and SDPs. 83 Assignment to the Planning Board of additional functions must also “carry out the policy that local or intracounty planning functions should be performed by the county planning boards.” LU § 20-207(b)(2). Performance by the Planning Board of a plan implementation process carries out undoubtedly that policy. V. Original Authority to Approve or Deny CDPs and SDPs As we described supra at Part I.E, the RDA grants to the Planning Board and to the District Council certain powers. LU § 20 — 202(b)(i) provides that the county planning boards have “exclusive jurisdiction” over “local functions,” but does not detail each of the local functions within each jurisdiction. 84 , 85 These functions may include any local matter related ⁵⁶⁸ to planning, zoning, subdivision, or assignment of street names and house numbers.

See LU § 20-202(a). 86 The functions ⁵⁶⁹ delegated to the county planning boards pursuant to LU § 20-207 are among the unlisted local functions over which the planning boards have exclusive jurisdiction. The Legislature did not itemize expressly or exhaustively each such intended function, for apparent good reason. The RDA makes particular provision for the local functions that the Legislature did not intend to be within the planning boards’ exclusive jurisdiction. LU § 20-503(c) authorizes the District Council to refer for advice only some or all building permits to the Maryland-National Capital Park & Planning Commission for review and recommendation as to zoning compliance.

LU § 22-208 requires referral to the county planning boards of applications for zoning map amendments for a “recommendation.” Although unclear on its face as to the standard of review, LU § 25-210 authorizes, in Prince George’s County, the District Council to “review” the “final decision” of the Planning Board, and issue a “final decision.” CDP and SDP approvals were not among the local functions that the Legislature excepted from the planning boards’ exclusive jurisdiction. Because no alternative provision was made, the RDA indicates to us that, like other unspecified local planning functions, the Planning Board is invested with exclu ⁵⁷⁰ sive original jurisdiction over the determination of CDPs and SDPs, 87 subject to appellate review by the District Council. For the authority of the Planning Board to be “exclusive” or “original” with respect to the CDP and SDP approval processes, the Planning Board must be the de novo decision-maker regarding the merits of a CDP or an SDP. The District Council, if allowed to decide de novo whether a CDP or an SDP should be approved, violates the division of authority established by the RDA.

A provision of the county ordinance, such as PGCC § 27 — 132(f), that purports to give the District Council (or any other body) the authority to decide, de novo, a local function related to planning, zoning, subdivision, or the assignment of street names and house numbers, is invalid. The District Council may not arrogate to itself original jurisdiction where the RDA places that responsibility elsewhere. Only the General Assembly, through amendment of the RDA, may accomplish that objective. The PGCC purports to direct the District Council to engage in this prohibited de novo review.

PGCC § 27-528(d), which governs the review by the District Council of Planning Board decisions regarding a CDP, requires the District Council to “make the same findings which are required to be made by the Planning Board” before approving the CDP. PGCC § 27-528.01 governs the District Council’s review of SDP decisions, requiring the same procedures that are required in reviewing a CDP, including presumably that the District Council must make the same findings that were required to be made by the Planning Board. PGCC § 27-132(f) eliminates any doubt as to whether the District Council’s range of discretion was desired to be substantively the same as that of the Planning ⁵⁷¹ Board, when considering the same issues. According to PGCC § 27-132(f), “[i]n deciding an appeal to the District Council, or Council election to review a decision, the Council shall exercise original jurisdiction.” 88 To the extent that the provisions of the PGCC purport to give the District Council the ability to consider de novo the merits of Planning Board decisions regarding CDPs and SDPs, such provisions are invalid.

Because, according to PGCC § 27-106, the provisions are severable, they are still enforceable to the extent that they do not conflict with the original jurisdiction of the Planning Board under the RDA. 89 VI. Standard by which the District Council may Review Planning Board Decisions The parties agree that the District Council has authority to exercise some level of review of the Planning Board’s decisions regarding approval of CDPs and SDPs. 90 ⁵⁷² That authority would derive implicitly from the legislative powers granted to the District Council in the RDA. Pursuant to the RDA, the district councils are authorized sometimes to establish procedures by which decisions are made, even though the review of content of the decision is outside their purview. 91 The MNCPPC, along with the constituent planning boards, are responsible for developing plans, but, under the RDA, the district councils establish the procedures through which the plans are developed, adopted, and applied. See LU § 21-201 (a) (“This subtitle is intended to vest control over planning procedures in the district councils of Montgomery County and Prince George’s County, to the extent that control is not inconsistent with this division.”).

Although delegation to the Planning Board of enforcement procedures to implement the District Council’s conditional zoning authority would fall also under LU § 20-207, and hence be exclusively within the original jurisdiction of the Planning Board, the RDA provides specifically for the District Council to establish procedures in that regard. LU § 22-214(e). It does not violate the RDA for the District Council to establish procedures and processes by which the Planning Board approves or denies CDPs and SDPs. Establishing procedures to guide the consideration of administrative action is a legislative function, which the RDA grants to the district councils in most instances.

Further, the ability to create and modify procedures may be inherent in the assignment of additional functions to the Planning Board. Through its ability to establish procedure, the District Council may carve-out for itself a role in the CDP and SDP ⁵⁷³ approval process by requiring that, upon appeal to the District Council or upon its election to hear a matter, the case be considered by the District Council before a decision may become final. If the District Council agrees with the Planning Board or remands for further consideration the CDP or SDP, it does not interfere with the original jurisdiction afforded to the Planning Board. The effect of those actions, although not inconsequential necessarily, is only procedural.

When the District Council reverses the Planning Board’s determination regarding the approval of a CDP or SDP, however, the District Council risks interfering with the jurisdiction committed to the Planning Board. A Planning Board decision is vulnerable if it is not authorized by law, is not supported by substantial evidence of record, or is arbitrary or capricious. When the standard of administrative appellate review used by the District Council mimics the standard of review that would be employed by the courts for the review of the same agency action, it is not interfering with the jurisdiction of the Planning Board. Employing a less deferential standard of review, however, would impinge on the original jurisdiction granted to the Planning Board by the RDA.

Judicial review of administrative agency action based on factual findings, and the application of law to those factual findings, is “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 based on an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel for Baltimore Cnty., 336 Md. 569, 577 , 650 A.2d 226, 230 (1994). The reviewing court may not substitute its judgment for that of the administrative agency. United Parcel Serv., 336 Md. at 576-77 , 650 A.2d at 230 . Rather, the court must affirm the agency decision if there is sufficient evidence such that “a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Consumer Prot.

Div. v. Morgan, 387 Md. 125, 160 , 874 A.2d 919, 939 (2005) (quoting Christopher v. ⁵⁷⁴ Dept. of Health, 381 Md. 188, 199 , 849 A.2d 46, 52 (2004)) (internal quotation marks omitted). Agency decisions receive an even more deferential review regarding matters that are committed to the agency’s discretion and expertise. In such situations, courts may only reverse an agency decision if it is “arbitrary and capricious.” Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 529-30 , 846 A.2d 341, 349 (2004). “Logically, the courts owe a higher level of deference to functions specifically committed to the agency’s discretion than they do to an agency’s legal conclusions or factual findings.” Spencer, 380 Md. at 529 , 846 A.2d at 349 . The District Council, by applying properly these same standards to its review of Planning Board actions on CDPs and SDPs, would not encroach on the Planning Board’s original and exclusive jurisdiction afforded by the RDA. 92 Courts’ limited review of the decisions of administrative agencies is grounded largely on Article 8 of the Declaration of Rights of the Constitution of Maryland, which mandates the separation of powers. 93 As a result, courts are “without authority to interfere with any (proper) exercise of the legislative prerogative or with the lawful exercise of administrative authority or discretion.” Dep’t of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 225 , 334 A.2d ⁵⁷⁵ 514, 524 (1975).

Courts may not engage in an “independent original estimate of or decision on the evidence.” Linchester Sand & Gravel, 274 Md. at 225 , 334 A.2d at 523 . Applied properly, reviewing the decision of an administrative agency under the standards described supra, a court does not encroach upon the powers of the Legislature as implemented by an administrative agency. Linchester Sand & Gravel, 274 Md. at 225 , 334 A.2d at 523-24 . Although separation of powers principles do not apply to the relationship between the District Council and the Planning Board, the same format seems appropriate to explain the treatment explained in this opinion.

The courts and the Legislature derive their authority largely from the Constitution of Maryland, which divides the powers granted thereunder among them and the Executive Branch. The District Council and Planning Board derive their land use authority within the Regional District from the RDA, which divides the powers granted thereunder between them and other local agencies. As the courts are prohibited by the Declaration of Rights from usurping the legislative prerogative implemented through administrative agencies, the District Council is prohibited by the RDA from usurping the exclusive and original authority of the Planning Board. The Courts are not able to reach a different conclusion on the evidence when reviewing the decisions of an administrative agency.

The District Council may not do so with regard to Planning Board decisions on CDPs and SDPs. If the standards of review applied by courts reviewing administrative agencies do not interfere with the substance of the Legislature’s authority implemented by such administrative agencies, the District Council applying properly the same standards would not interfere with the substance of the Planning Board’s authority. The difference between the District Council’s review of the Planning Board decisions here and the courts’ review of administrative agency decisions is that the courts are granted explicitly the judicial power. Md. Const.

Art. IV. The District Council is not given explicitly authority by the RDA to review ⁵⁷⁶ decisions generally within the original jurisdiction of the Planning Board.

VII

The District Council’s Authority to Consider in its Review Issues other than Those Remanded The District Council argues that, during its ultimate review of and action in this case, it was not limited to considering only the issues remanded on 7 November 2011 to the Planning Board. According to the District Council, nothing in the RDA or the County Code limits the District Council to considering on election a Planning Board decision on remand only the remand issues. Further, the District Council claims that such a limitation would: (1) make the ability to remand nugatory; and, (2) requiring the District Council to make a final determination regarding any non-remand issues before it gathered all the information would be an absurd result. We disagree.

A. Plain Language of PGCC § 27-523 The District Council is correct that the RDA does not limit explicitly the review of the District Council to issues the Council may remand to the Planning Board. As explained supra at Part VI, the RDA provides generally for the District Council to establish procedures, which would include remanding a CDP and SDP to the Planning Board. In our view, the PGCC limits the District Council’s review to the remand issues. PGCC § 27-523 governs review of CDPs and SDPs before the District Council. 94 The ordinance states: The District Council shall schedule a public hearing on the appeal or review.

Testimony at the hearing shall be limited to the facts and information contained within the record made at the hearing before the Planning Board. In addi ⁵⁷⁷ tion, the Council may take judicial notice of any evidence contained in the record of any earlier phase of the approval process relating to all or a portion of the same property, including the approval of a preliminary plat of subdivision. PGCC § 27 — 523(c). The Court of Special Appeals held that “the hearing before the Planning Board” indicated by PGCC § 27-523(c) included only the hearing on remand, at which the Planning Board’s consideration was limited by the District Council to the issues remanded to the Board.

Zimmer Dev., 217 Md.App. at 330 , 92 A.3d at 613 . According to the appellate panel, the District Council’s scope of review was constrained to the facts and information presented at the Planning Board’s hearing immediately prior to the District Council’s final review. Id. We agree with this construction.

The plain language of the second sentence of PGCC § 27-523(e) informs the conclusion. The word “before” may be used generally as a preposition, conjunction, or adverb, but in any context it indicates either that something occurred “in front of’ or “during the period of time preceding” some other event or action. The only reasonable understanding of “before” in PGCC § 27-523(c) is as a preposition. The use of “before” indicates that the “hearing” to which the provision refers is the hearing that was “in front of’ the Planning Board.

This hearing is referred to using the definite article (i.e., “the”), indicating that this “hearing” is a particular one, and is identifiable. Where a remand occurs, there is necessarily more than one hearing, the initial one and one on remand. For the “hearing” in question to be identifiable, it must be the ultimate or final Planning Board hearing and action which the District Council elected to review. If the District Council