Floyd v. COUNTY COUNCIL OF PG CTY.

Liss, J., delivered the opinion of the Court. This is an appeal by Gregory A. Floyd, et al., appellants, from a final order of the Circuit Court for Prince George’s County, Maryland, affirming the decision of the County Council of Prince George’s County, Maryland, sitting as the District Council, which granted a rezoning application filed by appellee Donald S. Nash. Appellant raises two questions to be decided by this appeal: 1. Did the Circuit Court err by admitting into the record an amendment to the General Plan that was enacted subsequent to the Council’s grant of the requested rezoning? 2.

Is there substantial record evidence to support a conclusion that Nash’s proposed development meets the require ²⁴⁸ ments enumerated in Prince George’s County Code, § 27-591 0»? On July 30, 1981, Donald S. Nash, owner of the property which is the subject of this zoning appeal, made an application for rezoning of the property, which had been zoned O-S and R-A, 1 to the E-I-A (Employment Institutional Area) category, a Comprehensive Design Zone. Joining in the application with Mr. Nash were Charles S. Dukes, Trustee for the University of Maryland Foundation, and Stuart C. Fisher and Charles S. Shaw, contract purchasers. The property consists of approximately 466 acres on the northeast quadrant of Route 50 and Crain Highway.

Bounded on the west by Crain Highway, on the south by Route 50, and on the east by the Patuxent River, the property is located within the Bowie-Collington Master Plan Area. 2 In Prince George’s County, an application for a Comprehensive Design Zone must include a basic plan (Pr. Geo. Co. Code, § 27-579), which must be reviewed by the Planning Commission Technical Staff and the Planning Board (§ 27-581). Nash’s Basic Plan set forth a proposal for a major office research center for scientific, educational, commercial, research and trade association activity to be known as the Maryland Science and Technology Center.

The Center, designed as a cooperative effort between the private sector and the University of Maryland Foundation, would provide a campus-like setting for a major research-oriented office community. Robert Smith, representing the University of Maryland Foundation, testified at the public hearing that the idea for the Center was sponsored by University of Maryland President Dr. John Toll, who believed that "there should be in the State of Maryland for the benefit of the ²⁴⁹ University and for the economic development of the State, a major research park, not unlike the facilities at Stanford and the Research Triangle and Princeton’s Forrestal Park,” and that "this is a contribution the University of Maryland can make to the citizens of Maryland, and more particularly to the National Capital area.” The office and research center would provide employment for recent Maryland graduates, would develop the State’s economic base, and would enhance the University’s image and prestige. The proposed development is mammoth. It contemplates construction of 7,700,000 square feet of floor space.

This is equal to 150% of all existing commercial floor space in Prince George’s County. Development is proposed in two phases. The first phase of development calls for construction of 1,950,000 square feet of floor space, which would cause 3,000 persons to utilize the site. Completion is scheduled between 1988 and 1990.

Phase II development envisions construction of an additional 5,750,000 square feet of floor space, which would bring 8,846 more persons to the site. Phase II development is to be completed between 1991 and 2000. Buildings will range in height from two to sixteen stories. The application was considered under a "fast track” system which gave it priority status and resulted in expedited consideration and review.

Prior to public hearing, the Basic Plan was reviewed by the Bowie Advisory Planning Board and the Bowie City Council. In a Memorandum dated August 26, 1982, the Bowie Advisory Planning Board unanimously recommended approval of the Basic Plan for the Center. The Bowie City Council recommended approval of the project on September 14, 1981. The Technical Staff of the Maryland-National Capital Park and Planning Commission, although suggesting significant limitations on the size of the project, recommended approval of the rezoning in its report dated September 1, 1981.

After a public hearing, the Prince George’s County Planning Board, on October 1, 1981, approved the requested zoning, subject to various conditions, but without the size limitations suggested by the Technical Staff. ²⁵⁰ The Zoning Hearing Examiner conducted a hearing and after considering the testimony and exhibits, recommended denial of the application, on November 30, 1981, based on determination that the application failed "to come even close to the recommendations of the Master Plan.” Following the Planning Board and Zoning Hearing Examiner’s decisions, oral arguments were held before the District Council for Prince George’s County on January 11, 1982. Subsequently, in Zoning Ordinance No. 2-1982 the District Council approved the Nash rezoning, as the Planning Board had recommended, and included ten conditions to be satisfied by the developer before building permits could be issued. These conditions imposed restrictions on development of the property reflecting staging, planning and environmental concerns. The District Council’s action in approving Nash’s rezoning application and basic plan is the first phase of a three-phase process under the Prince George’s Zoning Ordinance.

Section 27-327 (b) provides that E-I-A zoning involves first, review of a "basic plan,” second, review of a "comprehensive design plan,” and third, review of a "specific design plan.” The basic plan shows the types and amounts of land use on the site; the Comprehensive Design Plan shows land use locations, circulation systems, and development staging; and the specific design plan shows site design for each portion of a development to be constructed at the same time. After approval of a specific design plan and final subdivision approval, an applicant may obtain building permits and start construction. The Council’s approval was conditioned upon ten requirements related to transportation and Master Plan issues, which must be satisfied in the remaining stages of the Comprehensive Design Zone process. A failure to meet these conditions would prevent the issuance of necessary building, grading and use permits, and result in revocation of the approved E-I-A zoning.

Pr. Geo. Co. Code § 27-596. Four of the conditions concerned transportation facilities, three concerned compliance with Master Plan requirements.

Addi ²⁵¹ tional conditions adopted by the District Council contained an open space requirement, an environmental setting for a historic site on the Nash property, 3 and an amendment to the basic plan for the provision of a hiker and equestrian trail. The appellants filed a B rule appeal to the Circuit Court for Prince George’s County on February 11, 1982, contesting the decisions of the District Council. On appeal, Nash sought to supplement the record below by requesting the Circuit Court to consider evidence of a sewer area change and an amendment to the General Plan for Prince George’s County. Because these changes had been enacted subsequent to the Council’s hearing, and were not part of the record, Floyd moved to exclude the evidence.

The motion was granted as to the sewer area change, but denied as to the General Plan Amendment. After a hearing on December 21, 1982, the trial judge affirmed the District Council’s approval of the zoning, finding that substantial evidence was presented on the record so that the decision of the District Council was neither arbitrary nor capricious. From the ruling of the Circuit Court appellants filed this appeal on January 24, 1983. Nash’s motion for expedited hearing was granted on March 9, 1983. 1.

At argument in the lower court, Nash and the Council introduced an amendment to the County’s General Plan, which had been approved shortly after the Nash rezoning. 4 ²⁵² The Court granted a motion in limine in regard to information about a sewer system area change but permitted introduction of the General Plan Amendment, accepting the document on the ground that it was merely taking judicial notice, under § 10-203 (a) of the Courts Article, Md. Ann Code, of adopted County law relevant to the case. The Court of Appeals has held that the judicial analysis of the propriety of a zoning authority’s action shall be based on "... the facts as presented and conditions as they existed as of the date of the Council’s action.” Board of County Commissioners v. Meltzer, 239 Md. 144, 153 , 210 A.2d 505, 510 (1965). In Meltzer , the Court of Appeals found that the Circuit Court’s consideration of a newly adopted Master Plan designation for the property for which the rezoning was sought was improper since that change was not effective on the date of the Council’s hearing. The Court in Meltzer held that the action of the Council was supportable even had the additional facts been before them.

The Court thought that there was very little, if any, possibility that the Council would have changed its action had those facts been before them. And, it was held that if the Council had had this information at the time of its hearing, to consider with the other evidence produced before it, it still would not have rendered its action clearly erroneous and not fairly debatable. Therefore, the case did not require remand. 5 Similarly, in the instant case, it is clear from the Council’s decision that it was aware of and was ready to adopt the Plan Amendment when the Nash case was before it, and it is also clear that with or without this additional matter, Nash satisfied the District Council — and, apparently, the lower court — that he complied with the Master Plan standard in § 27-591 (b) (1). ²⁵³ In light of these facts we find no prejudicial error in the Circuit Court’s admission of the Amendment into evidence. 2. Review of the record below makes it clear that the Circuit Court correctly upheld the District Council’s approval of the zoning in this case because the findings required by the District Council as set forth in § 27-591 (b) were supported by substantial evidence.

The Circuit Court opinion by Judge James Magruder Rae, the trial judge, summarized the case succinctly when he stated: The primary thrust of the appellants is that it was the appellees’ duty to develop a record to sufficiently prove to the District Council that the desired E-I-A (Employment Institutional Area) should be granted. The appellants correctly indicate that within the ordinance establishing such zone, an element of required proof, among other things, are seven sections of criteria to be considered by the District Council.|6J The Court recognizes that this type of zoning reflects the more modern-day viewpoint toward land use and zoning concepts. It allows landowners to petition to zoning authority for a change in zoning without having to show the traditional test of mistake in the initial zoning or change in the community. There are safeguards for the public in general and the surrounding area is kept from being oppressed by piecemeal or indefinite development, in that the Statute requires periodic review by the zoning authority and other governmental agencies.

It further allows the development of the tract of land over a gradual period of time taking into account technological advances which from time to time occur in the fields of transportation, sewer facilities, educational, library facilities and other related required private and governmental development. ²⁵⁴ The Court is of the opinion that the applicants have correctly stated the cardinal principle of court review of the State of Maryland of the actions of a zoning board. The Court must review the entire record and consider the entire record developed before the zoning board and then the test that the Court is to apply is: "Was the action taken by the zoning board, in this case the District Council, unreasonable, arbitrary and capricious?” The Court has reviewed the three matters raised by the appellants as to why they feel there was no record to support the action of the District Council. The Court is of the opinion that the District Council did in the record cover such matters as to whether the employment area should only go to a depth of 1,500 feet of Maryland State Route 3 (Crain Highway). The obvious