Crawford v. Cty. Cncl. of Prince George's Cty.

Ray Crawford, et al. v. County Council of Prince George’s County, Sitting as the District Council, et al., No. 4, September Term 2022. Opinion by Gould, J. JUDICIAL REVIEW—LAND USE—PLANNING AND ZONING Final decisions of the Prince George’s County District Council (the “District Council”) are subject to judicial review. Md. Code Ann., Land Use Article § 22-407 (a). Here, the final decision under review is the District Council’s affirmance of the Prince George’s County Planning Board’s (the “Planning Board”) approval of Amazon’s proposed modifications to, and use of, the Property.

The Supreme Court of Maryland applied the holding in County Council of Prince George’s County v. Zimmer Development Co.: when the District Council reviews a determination by the Planning Board regarding a Specific Design Plan, it considers whether the decision is legally authorized, supported by substantial evidence of record, arbitrary or capricious, or otherwise illegal. 444 Md. 490, 573, 583 (2015). AGENCY DEFERENCE—MIXED QUESTIONS OF LAW AND FACT Mixed questions of law and fact arise when an agency has correctly stated the law, its fact- finding is supported by the record, and the remaining question is whether the agency has correctly applied the law to the facts. We apply the substantial evidence standard of review to mixed questions of law and fact. Here, there was substantial evidence in the record to support the District Council’s affirmance of the Planning Board’s conclusion that Amazon’s proposed use of a property satisfied the definition of “warehouse” under the Prince George’s County zoning ordinance.

Circuit Court for Prince George’s County Case No.: CAL20-18900 Argued: September 13, 2022 IN THE SUPREME COURT OF MARYLAND* No. 4 September Term, 2022 RAY CRAWFORD, et al. v. COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY, SITTING AS THE DISTRICT COUNCIL, et al. Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Opinion by Gould, J. document is authentic. 2023-02-23 15:03-05:00 Filed: February 23, 2023 Gregory Hilton, Clerk * At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. This case requires us to review the approval of certain modifications and improvements to a property owned by Amazon.com Services, LLC (“Amazon”) in Prince George’s County.1 The approval was granted by the Planning Board of Prince George’s County and affirmed by the County Council of Prince George’s County, sitting as the District Council for Prince George’s County (“District Council”).

Petitioners Ray Crawford, Kathy Crawford, and Charles Reilly (together, “Crawford” or “petitioners”) sought judicial review in the Circuit Court for Prince George’s County. The circuit court affirmed the District Council’s decision, prompting petitioners to file a notice of appeal. 1 The Property is located within the Maryland-Washington Regional District (the “Regional District”). The Regional District includes most of Prince George’s and Montgomery Counties, as recognized under the Maryland-Washington Regional District Act (the “RDA”). Cnty.

Council of Prince George’s Cnty. v. Zimmer Dev. Co., 444 Md. 490, 523-25 (2015); see Md. Code Ann., Land Use Article (“LU”) § 14-101(l) (2012). As we explained in Zimmer: 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 District. 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. 444 Md. at 524-25 (citations omitted). The RDA established the District Council as a planning and zoning authority for that portion of the Regional District located in Prince George’s County. The members of the Prince George’s County Council serve as the members of the District Council. LU § 22-101(b).

While the appeal was pending in the Appellate Court of Maryland,2 petitioners filed a petition for writ of certiorari, which we granted. Crawford v. Cnty. Council of Prince George’s Cnty., 478 Md. 243 (2022). The question presented by petitioners, which we have rephrased,3 is: Did the District Council err in affirming the Planning Board’s determination that Amazon’s proposed use of the property falls within the definition of “Warehouse”4 under Section 27 of the Prince George’s County Code, and is, therefore, permitted by right at the property?

For the reasons explained below, we answer the question in the negative and affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The Property This dispute concerns a 28.9-acre property located at 1000 Prince George’s Boulevard, Upper Marlboro, Prince George’s County (the “Property”). The Property is 2 In the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland, and the name of the Court of Appeals to the Supreme Court of Maryland. The name changes took effect on December 14, 2022.

Petitioners framed the issue as: “Whether an Amazon Last Mile Hub is a 3 ‘Warehouse’ and, therefore, permitted by right at the Subject Property.” 4 We refer to Section 27 of the Prince George’s County Code in effect October 2020 when the District Council approved Amazon’s application for property improvements as “the Zoning Ordinance” or “PGCC § 27.” The definition of “Warehouse Unit” is found in PGCC § 27-107.01(a)(256). In October 2018, the District Council also enacted a new zoning ordinance (the “New ZO”) under Council Bill 013-2018 (“CB-013-2018”), which took effect April 1, 2022. 2 improved with a 290,225 square-foot building, which includes 38,650 square feet of office space. The Property sits in the 708-acre employment park known as Collington Center. Collington Center is part of a Comprehensive Design Zone (“CDZ”) and is zoned as an Employment and Industrial Area (“E-I-A”).

Properties in E-I-A zones may be used for “warehouses and distribution facilit[ies],” among other things. PGCC § 27-515(b)(2). The Property is subject to Comprehensive Design Plan 9006, approved by the Planning Board in November 1990 and subsequently amended (“CDP-9006”).5 The existing building on the Property was constructed pursuant to Specific Design Plan 0007 (“SDP-0007”), approved by the Planning Board in September 2000. In approving SDP- 0007, the Planning Board found that the “warehouse [would] be primarily used for storing food products which would be distributed from the warehouse”—a permitted use under CDP-9006.

Once completed, the Property was used until 2019 by Distribution Plus Inc. to store and distribute specialty foods. Amazon’s Purchase of the Property and Proposed Changes In 2020, Amazon acquired the Property and proposed to use it as a “last-mile” delivery station. Amazon last-mile delivery stations receive and sort packages around the clock for delivery to customers. Packages are typically held for less than 12 hours at these facilities before being loaded onto delivery vehicles; non-deliverable packages are returned to the facility.

Delivery drivers use either company or personal vehicles. 5 The Planning Board approved CDP-8712 for Collington Center in May 1988. In November 1990, the Planning Board approved CDP-9006, which revised CDP-8712. The Planning Board subsequently amended CDP-9006 twice, in ways not relevant here. For simplicity, we refer to CDP-9006, as amended, as CDP-9006. 3 To put the Property to its proposed use, Amazon sought to increase the paved area for parking, loading, and circulation, and to add an exterior canopy along the eastern portion of the building.

These changes required amending SDP-0007 with the approval of the Prince George’s County Planning Board (“Planning Board”), under the same process applicable to initial SDP approvals.6 See Cnty. Council of Prince George’s Cnty. v. Zimmer Dev. Co., 444 Md. 490, 569-70 (2015); PGCC § 27-530. Accordingly, in March 2020, Amazon formally requested approval of amendment SDP-0007-03.7 The Planning Board The Planning Board’s authority to deny a Specific Design Plan (“SDP”) or amendment thereto is limited.

It may do so only if the application does not conform to the applicable Comprehensive Design Plan (“CDP”), zoning requirements, design guidelines and regulations, the Prince George’s County Landscape Manual, or other requirements not at issue here.8 Zimmer, 444 Md. at 534-36 ; PGCC § 27-124.03, 195(a), 521, 528(a)-(c). 6 The Zoning Ordinance requires a property owner seeking to increase paved surface area by more than ten percent to receive approval of an amendment to the applicable SDP from the Planning Board. PGCC § 27-530(a), 27-530(b)(1)(B). Amazon’s proposed expansion of the Property’s paved area exceeded ten percent, thus necessitating an amendment to SDP-0007. 7 This was the third proposed amendment to SDP-0007, hence the extension of “03” after “0007.” Of the two previously-proposed amendments—SDP-0007-01 and SDP- 0007-02—only the former was processed to completion. 8 Zimmer explains that: 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 4 When reviewing an SDP proposal, the Planning Board considers recommendations by technical staff and holds a public hearing. Zimmer, 444 Md. at 534 .

Here, the Planning Board’s technical staff evaluated Amazon’s application for compliance with E-I-A zoning requirements and the applicable Basic Plans, CDP, and SDP. The staff found the application complied with all requirements, reporting to the Planning Board that: “[t]he existing warehouse and distribution facility, for which the proposed parking and circulation is in support of, is a permitted use in the E-I-A Zone, in accordance with Section 27- 515(b)”; “[t]he SDP [amendment] is consistent with the regulations in the E-I-A Zone” regarding purposes, uses, and regulations; “[t]he Basic Plans designate the subject lot for manufacturing/warehouse uses”; “[t]he SDP [amendment] is in conformance with approved CDP-9006”; and the proposed amendment conforms with the existing SDP.9 The staff recommended approval of Amazon’s application. The Planning Board held a public hearing in July 2020. Petitioners argued that the proposed delivery station would serve as a “[parcel] hub”—not a “warehouse” as defined 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 are preserved and/or restored to the full extent possible.

PGCC § 27–528(a). Nonetheless, the Planning Board must still exercise significant agency expertise and judgment in making these determinations. 444 Md. at 535-36 . 9 The applicable Basic Plan for the Property permits “Warehouses and wholesaling establishments,” and the applicable CDP permits “manufacturing/warehouse” uses. The most recently approved SDP for the Property permits “Warehousing/Distribution” uses. 5 in the Zoning Ordinance—and therefore not a permitted use. Petitioners reasoned that the brief storage times of packages, the last-mile delivery model, and the expected volume of vehicle traffic disqualified the proposed use from the definition of “warehouse.” Amazon’s counsel contended that the application satisfied the requirements of an SDP under PGCC § 27–528(a).

Counsel noted that the Property was previously permitted for warehouse use—which included vehicle traffic on the Property—and emphasized that Amazon’s proposed improvements to the Property were modest. Additionally, witnesses for Amazon provided assurances that operations would mitigate traffic impacts.10 The Planning Board voted unanimously to adopt the staff report findings and approve Amazon’s application to amend the SDP. On July 30, 2020, the Planning Board issued a resolution documenting its findings and approving Amazon’s application. The Planning Board found that the application met the requirements of an SDP under PGCC § 27-528(a) and that Amazon’s proposed use qualified as a “warehouse and distribution facility” use under PGCC § 27-515.

The District Council Petitioners appealed the Planning Board’s approval of the amendment to the District Council pursuant to PGCC § 27-528.01. Petitioners argued that the Planning Board erred in concluding that the proposed use of the Property qualified as a “warehouse” use under the Zoning Ordinance. 10 Samantha Mazo, witness for Amazon, said: “[Operations are] really designed . . . to accommodate and be as contextual and harmonious with the surrounding neighborhood as is commensurate with an industrially zoned property, and a property that has been used as a warehouse.” 6 The District Council subsequently issued a Notice of Final Decision (the “final decision”), announcing its unanimous approval of Amazon’s proposed amendment, SDP- 0007-03. The District Council concluded that the Planning Board correctly determined that Amazon’s proposed use qualified as a “warehouse and distribution facility” use under the Zoning Ordinance’s definitions of “warehouse unit” and “distribution facility.” PGCC § 27-107.01(a)(256), (66.4).11 In so finding, the District Council emphasized certain language from Amazon’s description of the proposed use in its Statement of Justification: [Amazon] delivery stations receive packages from other Amazon facilities and deliver the packages to the customers. . . . Packages are typically in the delivery station for under 12 hours prior to being loaded onto the DSP[12] vans and Amazon FLEX[13] cars for delivery. . . .

Once at the delivery station with their delivery van, DSP drivers load their delivery van and depart to deliver packages directly to customers. . . . After DSP drivers complete their routes, they return to the delivery station with any packages that may have been non-deliverable. . . . . . . FLEX drivers only return to the station at the end of the route if any packages were undeliverable. After departure of the last wave of delivery vehicles, delivery station associates prepare the delivery station for the next day’s delivery of packages from the line haul trucks. 11 As to the applicability of the definitions, PGCC § 27-107 provides: “The definitions contained in this Division shall apply to this entire Subtitle [Zoning], and to the wording of any conditions placed on any final decision made in accordance with this Subtitle, such as conditions placed on the approval of zoning cases.” 12 “DSP” stands for “delivery service providers.” 13 “FLEX” is an Amazon service for which delivery drivers use personal vehicles. 7 (Emphasis removed).

The District Council further explained that: No different than the specialty food distribution business that occupied the building before, Amazon intends to occupy, use, and maintain the same ≤300,000-square foot warehouse/distribution building and land for day-to- day operations to receive, store, sort, and deliver or distribute customer orders. Packages and materials will be stored in the building before deliveries and undeliverable packages will be returned and stored in the building. Judicial Review in the Circuit Court Crawford requested judicial review in the Circuit Court for Prince George’s County, pursuant to LU § 22-407(a). The circuit court affirmed the District Council’s final decision.

As noted above, we granted certiorari while the appeal was pending in the Appellate Court of Maryland. Crawford, 478 Md. 243 . DISCUSSION Standard of Review Final decisions of the District Council are subject to judicial review. LU § 22- 407(a).14 In County Council of Prince George’s County v. Zimmer Development Co., 444 Md. 490 , this Court addressed the propriety of the District Council’s reversal of the Planning Board’s approval of a certain proposed development.

The issues implicated in that case included, among other matters, the source and scope of the Planning Board’s statutorily granted authority, the nature and scope of the District Council’s role in 14 The District Council may act on a CDP or SDP application at the request of a “person of record” or on the Council’s own motion. Otherwise, the Planning Board’s decision becomes the final action, reviewable by the circuit court. Zimmer, 444 Md. at 574 n.92; see PGCC § 27-528.01(a)-(b). 8 reviewing decisions by the Planning Board, and the appropriate standards for judicial review of the District Council’s review of such decisions. Id.

In Zimmer, speaking for the Court, Judge Harrell provided a detailed “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)[.]” Id. at 502. Those same concepts are applicable and relevant here. Rather than repeat Zimmer’s tutorial, we shall stand on its author’s shoulders and assume familiarity with the principles and concepts explained there. We held in Zimmer that the “District Council may reverse an approval by the Planning Board only if the decision was one the Planning Board was not legally authorized to make, is not supported by substantial evidence of record, is arbitrary or capricious, or is otherwise illegal.”15 Id. at 583.

The appropriate standard to apply depends on whether the question on review is one of law, fact, or mixed law and fact—or, alternatively, if it is committed to agency discretion and expertise.16 15 Because the District Council’s role in reviewing CDPs and SDPs “mimics the standard of review” applied by the courts to agency decisions, Zimmer, 444 Md. at 573 , the courts might seem to “look through” the District Council decision directly to the decision of the Planning Board. This interpretation, however, is technically incorrect: the courts may only review final agency action, which, here, is the affirmance by the District Council of the Planning Board’s approval of SDP-0007-03. 16 To provide clarity on the distinctions between these concepts, we offer the following summary: First, we review questions of law, issues “concerning the application or interpretation of the law,” de novo. Question of Law, Black’s Law Dictionary (11th ed. 2019); Comptroller of Maryland v. FC-GEN Operations Inv.’s LLC, 482 Md. 343, 360 (2022). However, we may give weight to an agency’s interpretation of statutes that it administers.

See, e.g., Marzullo v. Kahl, 366 Md. 158, 172 (2001). 9 Crawford contends that whether the proposed use of the Property is permitted under the Zoning Ordinance is a question of law subject to de novo review. We disagree. Questions of law involve only the application or interpretation of law, regardless of the particular facts of a case. Question of Law, Black’s Law Dictionary; see Kor-Ko Ltd. v. Maryland Dep’t of the Env’t, 451 Md. 401 (2017) (reviewing whether the term “premises” in an environmental regulation includes a surrounding commercial park or is limited to the building that is the source of emissions); Dep’t of Health & Mental Hygiene v. Campbell, 364 Md. 108 (2001) (reviewing whether guardianship commissions may be deducted as a “personal needs allowance” from a Medical Assistance recipient’s available income); Total Second, we review questions of fact, “determination[s] [by the agency] supported by evidence in the record,” under the substantial evidence standard.

Finding of Fact, Black’s Law Dictionary; FC-GEN Operations Inv.’s, 482 Md. at 359 ; see also Md. Code Ann., State Gov’t Article § 10-222(h)(3)(v) (2021). Third, we review mixed questions of law and fact, “issue[s] that [are] neither a pure question of fact nor a pure question of law,” also under the substantial evidence standard. Mixed Question of Law and Fact, Black’s Law Dictionary; FC-GEN Operations Inv.’s, 482 Md. at 363 . Fourth, we review agency action on “matters committed to the agency’s discretion”—“when an agency acts neither as a finder of fact nor as an interpreter of law but rather in a ‘discretionary’ capacity,” Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 528-29 (2004), and where its actions are “specific to its mandate and expertise,” Christopher v. Montgomery Cnty.

Dep’t of Health & Hum. Servs., 381 Md. 188, 199 (2004)—under the arbitrary and capricious standard. See Zimmer, 444 Md. at 574 . Examples of matters committed to the agency’s discretion include an agency’s determination of the appropriate discipline for employee