Grant v. Prince George's Cnty.

Davona Grant, et al. v. County Council of Prince George’s County Sitting as the District Council, et. al., No. 75, September Term, 2018. Opinion by Getty, J. ZONING AND PLANNING—SOURCE AND SCOPE OF POWER The Court of Appeals held that the County Council of Prince George’s County sitting as the District Council (“District Council”) was authorized under the Regional District Act (“RDA”) to delegate to its staff attorney the responsibility of preparing a proposed opinion and order and written findings of fact. MUNICIPAL CORPORATIONS—RULES OF PROCEDURE AND CONDUCT OF BUSINESS OPEN MEETINGS ACT The Court of Appeals held that Petitioner, Davona Grant, failed to present sufficient evidence that the District Council violated the Open Meetings Act. The record is devoid of any evidence that the District Council communicated amongst itself or through its staff between its two hearings, and, therefore, Grant is unable to rebut the statutory presumption that the District Council complied with the Act.

ZONING AND PLANNING—SOURCE AND SCOPE OF POWER The Court of Appeals held that the District Council, through Prince George’s County Code § 27-132(f)(1), exercises original jurisdiction over special exception and variance applications. The RDA bestows upon the District Council wide-ranging authority to regulate zoning within its district. The RDA does not limit the District Council’s jurisdiction over zoning cases and does not confer exclusive jurisdiction over such cases on another entity. Circuit Court for Prince George’s County Case No. CAL16-30078 Argued: June 6, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2018 DAVONA GRANT, et al. v. COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY SITTING AS THE DISTRICT COUNCIL, et al. Barbera, C.J. *Greene, McDonald, Watts, Hotten, Getty, Booth, JJ.

Opinion by Getty, J. Filed: August 20, 2019 *Greene, J., now retired, participated in the hearing Pursuant to Maryland Uniform Electronic Legal Materials Act and conference of this case while an active member (§§ 10-1601 et seq. of the State Government Article) this document is authentic. of this Court; after being recalled pursuant to the 2019-11-18 11:48-05:00 Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk 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. Judge Glenn T. Harrell, Jr. Cty. Council of Prince George’s Cty. v. Zimmer Dev.

Co., 444 Md. 490, 502 (2015).1 In the instant appeal we write another chapter to the mysteries of the zoning powers, special exceptions and variances authorized by state and local codes for the Prince George’s County Council sitting as the District Council (“District Council”), so aptly described in the past by Judge Glenn T. Harrell, Jr. First, we must determine whether the District Council was authorized to delegate the preparation of its opinion and order to its staff attorney. The second issue is whether the District Council engaged in an “evasive device” intended to circumvent the requirements of the Maryland Open Meetings Act. Third, we must determine whether the District Council exercises original or appellate jurisdiction when it reviews decisions concerning special exceptions and variances from the Zoning Hearing Examiner (“ZHE”). We ultimately hold that the District Council is authorized to delegate to its staff attorney the preparation of a draft decision and that the District Council rightfully exercises original jurisdiction when hearing zoning cases from the ZHE.

In addition, we conclude 1 For a detailed discussion on the history of land use regulation in Maryland, an exhaustive review of the differences between zoning and planning, and generally “A Mind-Numbing Primer” concerning land use regulation within Prince George’s County, see Zimmer Dev. Co., 444 Md. at 502-534 (2015). that the Petitioners failed to present sufficient evidence that the District Council violated the Open Meetings Act. BACKGROUND In 2014, Wal-Mart Real Estate Business Trust (“Wal-Mart”) applied to the Maryland-National Capital Park and Planning Commission (“MNCPPC”) for a special exception, variance, and an alternative compliance regarding an existing store located in the Woodyard Crossing Shopping Center in Clinton, Maryland.2 The store was originally constructed in 2000 as a 134,241 square foot facility. The special exception and variance applications were made in connection with Wal-Mart’s intended goal of expanding the store to include an outdoor garden center and grocery store, and to eliminate the existing automotive servicing facility.

The planned expansion would increase the building’s square footage by 37,393 square feet. The impetus that drove Wal-Mart to apply for a special exception stems from the type of commercial zoning in question. The property is located within an area designated as a Commercial Shopping Center (“CSC”) Zone. See PGCC § 27-454 (describing the nature of the CSC Zone).

Although Wal-Mart’s current and intended future uses are individually allowed in the CSC Zone, the expansion required a special exception to combine all of these uses on a single parcel within a CSC Zone. See Prince George’s County Code (“PGCC”) § 27-461(a)-(b) (outlining the permitted uses of land relative to its zoning designation). 2 MNCPPC’s development review division reviewed Wal-Mart’s application for a special exception and variance. 2 Separately, the requirement for Wal-Mart to apply for a variance was not triggered by its plans to expand the existing store but instead was due to subsequent changes in the zoning code. When the store was built in 2000, the relevant portions of the PGCC required a fifty-foot set back from the surrounding properties.3 In 2002, the provision within the PGCC, i.e. PGCC § 27-348.02(a)(5), was amended to require a 100-foot setback.

This left Wal-Mart in the awkward position where the existing store did not comply with the setback requirements as amended. Accordingly, the variance application concerns Wal-Mart’s existing facility and not its proposed expansion. In addition, the MNCPPC Planning Director had previously approved multiple alternative compliance applications concerning the Wal-Mart facility that needed to be amended under the new application. For example, in 1999 the Planning Director approved an alternative compliance application made by Wal-Mart that provided an alternative buffering scheme between the Wal-Mart and residentially zoned properties located to its west.4 In Maryland, traditional land use powers are generally delegated by the State to local political subdivisions.

Zimmer, 444 Md. at 504-05 . For Prince George’s County, the State 3 A “setback” requirement, such as that found in PGCC § 27-348.02(a)(5), requires that other buildings, structures, and off-street parking must be a certain distance from any adjoining land in a residential zone. 4 The amendment of the 1999 alternative compliance application, requested by Wal-Mart in the instant case, primarily concerned the store’s surrounding landscaping, parking, and a perimeter fence. Nonetheless, the alternative compliance applications are ancillary within the instant appeal and our review focuses on Wal-Mart’s special exception and variance applications. 3 Regional District Act (“RDA”), authorizes the District Council to adopt, amend and administer zoning laws within the county. 2012 Md. Code, Land Use (“LU”) § 22-104(a). The definition of “District Council” however, varies depending on the geographical delineations of the area concerned.

In situations involving zoning actions entirely within Prince George’s County, the County Council of Prince George’s County sits as the District Council. LU § 22-101(b). When acting in its zoning capacity, the District Council acts as an administrative agency. Cty.

Council of Prince George’s Cty. v. Brandywine Enter., Inc., 350 Md. 339, 342 (1998). The instant appeal concerns a challenge to the decision of the District Council that reversed a decision of the ZHE as described below. Proceedings Before the Zoning Hearing Examiner (ZHE) In response to Wal-Mart’s application for a special exception and variance, the MNCPPC development review division issued a report (“Staff Report”) which recommended that Wal-Mart’s special exception and variance application be denied but its alternative compliance request should be approved.5 The Prince George’s County Planning Board declined to hear the case and instead adopted the Staff Report’s 5 In special exception cases, the MNCPPC’s development review division is required to compile a report which recommends whether the special exception should be approved or denied. PGCC §§ 27-311, 27-307.

The MNCPPC development review division determined that Wal-Mart’s variance request had failed to meet two of three criteria: (i) extraordinary situations or conditions; and (ii) exceptional undue hardship. The Staff Report indicates that the application for a variance was primarily denied based on the issue concerning the 100-foot setback requirements. The Staff Report states, “[i]n this case, staff is particularly concerned with the impact of the proposed use on the residential properties to the west and the applicant’s request for a variance to the prescribed 100-foot setback.” 4 recommendation,6 as permitted under PGCC § 27-210, and assigned the case to a ZHE to conduct an evidentiary hearing. The ZHE then held hearings wherein she heard testimony and accepted evidence from those involved.

On May 13, 2016, the ZHE issued its decision. In its decision, the ZHE found the following: (1) that the existing store does not comply with the 100-foot setback requirement; (2) that stormwater runoff from the shopping center in which the Wal-Mart is located floods the neighboring residential communities; (3) that the area is already subject to significant traffic congestion; and (4) that the shopping center in which the Wal-Mart is located draws a greater amount of individuals to the area which, in turn, contributes to an increase in crime throughout the neighboring area. Therefore, the ZHE denied Wal-Mart’s application for a special exception and variance. The ZHE’s decision was transmitted to the District Council and hand-delivered to Rajesh Kumar, Principal Counsel to the District Council.7 Wal-Mart filed exceptions to the ZHE’s decision on June 13, 2016 and requested that the District Council hear the case.

That same day, the District Council elected, by unanimous vote, to take up the matter and make the final decision concerning Wal-Mart’s 6 Under the RDA, county planning boards consist of appointed commissioners. LU § 20- 201; LU § 20-101(c); The Maryland-National Capital Park and Planning Commission, Meet the Commissioners, available at: http://www.pgparks.com/826/Meet-the- Commissioners (https://perma.cc/E23Z-SWNY) (last visited August 19, 2019). The county planning boards are responsible for administering certain local functions within their respective counties. See LU § 20-202.

Under the PGCC, the Planning Board has the discretion to decide whether it will hold a hearing. PGCC § 27-210(a). If the Planning Board decides not to hear a case within fifteen days after publication of the Staff Report, the Planning Board is deemed to adopt the Staff Report’s recommendation. LU § 27-210. 7 In accordance with the question before this Court, we occasionally refer to Mr. Kumar as the District Council’s “staff attorney.” 5 special exception and variance applications.

Two days later, on June 15, the Clerk of the District Council sent notices to all parties involved that the District Council had scheduled oral arguments on July 18. Therefore, all parties on record were provided notice well in advance that the District Council would be hearing the case with oral arguments on July 18. Prior to the hearing, as noted earlier, Wal-Mart filed written exceptions to the ZHE’s decision. In response, Ms. Davona Grant and other citizen protestants (collectively referred to in this opinion as “Grant”)8 filed a lengthy response in opposition to Wal-Mart’s exceptions that included “Proposed Findings of Fact and Conclusions of Law” based upon their position that the ZHE’s decision should be affirmed.

According to statements made by Mr. Kumar at oral argument, he reviewed the record, Wal-Mart’s exceptions, Grant’s filings including their proposed findings and other materials submitted to the District Council and began preparing a draft decision in advance of the July 18 hearing. Proceedings Before the District Council At the hearing before the District Council on July 18, 2016, testimony was received from citizens and expert witnesses regarding the special exception and variance. Attorneys for both sides discussed the proposed expansion and its impact on traffic, architecture, 8 The Petitioners in this case are: Davona Grant, Jackie Foster, Donald Hancock, Larry Herschell, Frederick Holt, Willie L. Lee, George N. Leftwood, Jr., Wylie D. Powell, Jr., Marjorie M. Sproesser, and Jose L. Ventura. Before the ZHE, the record reflects that these individuals participated in the hearing: Grant, Foster, Hancock, Holt, Lee, Leftwood, and Sproesser. 6 crime, and other factors.

At the end of the hearing, District Council Member Mel Franklin,9 motioned to have Mr. Kumar prepare a proposed opinion and order with written findings of fact reversing the ZHE’s decision and in support of his motion stated in detail, This is a challenging case. It is, one, challenging because this is an existing shopping center. The Walmart in question is not in great condition aesthetically. And Clinton, in general, is in—is a, you know, as a community, it has challenges with the quality of its commercial opportunities or commercial options in Clinton.

So there is a big need for investment and redevelopment or reinvestment or renovation and all of the like in Clinton in particular. And so and all of those things are important. Obviously this is the kind of case, because it’s before the District Council, like any other District Council case, has to be decided on the law. And it is my belief that this sort of boils down to an existing shopping center that essentially, because of the dynamics of the existing shopping center, it is creating the legal problems with this proposed expansion and reinvestment.

And so the, in my view, the reasons for the variance and whether variances, the variance request is reasonable is, in large part, most of what’s been raised has to do with the difficulties with the existing site. It is not related to the challenges or problems with the expansion. I do appreciate what [People’s Zoning Counsel, Stan] Brown or what the opposition have said about frontage. I do believe that legally we, there is a sound justification on the frontage issue.

And I do want to thank all of the residents who participated in this process on both sides. Obviously, this is the largest anchor or will be the largest anchor of what is essentially the largest shopping center in Clinton. So it certainly has importance in the community. And this shopping center in particular needs to thrive.

It needs to thrive in large part because it is the most significant commercial presence in Clinton. It is in need of reinvestment. It is in need of redevelopment. And the hope is that the reinvestment or redevelopment will happen in Clinton, happen at this shopping center.

With that, I’m going to move that to direct Staff to prepare an Order reversing the decision of the Zoning Hearing Examiner and prescribing approval with conditions. 9 For clarity, it is important to note that at the time of these proceedings in 2016, Mr. Franklin was the District Council member from District 9, the District in which the Wal- Mart store is located. However, Mr. Franklin is currently an at-large member on the District Council having been elected to the at-large seat in the 2018 General Election. 7 His motion to have the staff attorney prepare a draft order reversing the decision of the ZHE received a unanimous vote by the District Council. The following day, July 19, Mr. Kumar presented to the District Council a proposed fifty-one page order. Initially, the approval was mistakenly titled as being an “Approval with Conditions.” However, as Mr. Kumar explained to the District Council during the open meeting, the order was not actually subject to conditions.

Mr. Kumar commented, [j]ust one correction, the Ordinance does not have conditions because the Order itself addresses the concerns that were raised at Oral Argument and Technical Staff including architectural renderings that were revised by the Applicant and submitted into the record, and that can be found on your draft, Page 46. That’s the exhibit that [Counsel for Grant] referred to during Oral Argument on Monday. This is the actual renderings that will be done to the site. The entire Walmart is being redone.

In addition, there is not a condition regarding stormwater because [Wal-Mart] obtained a revised Stormwater Conceptual Plan, which is basically on Page 29 of the Order. It outlines all of the requirements that the Applicant must comply with as part of the new development. Regarding buffering, the Applicant obtained approval from the Planning Director for alternative compliance. There will be buffering on the site.

There is [sic] photographs in the record regarding the fence. The fence is intact. It is a board-on-board fence with plantings on the residential side as well as the commercial side. The proposed order contained findings of fact distinct from those issued by the ZHE.10 As directed by the District Council, the proposed order approved Wal-Mart’s application for a special exception and variance.

The District Council, continuing in the open session, then moved to adopt the order which carried by a seven to two vote. There 10 The fact that the District Council engaged in its own factfinding has greater implications in terms of the third issue before this Court. If the District Council exercises original jurisdiction in such cases, it is not limited to the factual findings established by the ZHE. However, if the District Council exercised merely appellate jurisdiction over such cases, then it would not be permitted to engage in such factfinding and its review would be limited to facts found by the ZHE. 8 is no evidence that any District Council members met or discussed the application or the findings of fact during the intervening time period between the July 18 and July 19 hearings.

Judicial Review of the District Council’s Actions As a result of the District Council’s action, Grant filed a petition for judicial review on August 11, 2016. The appeal was heard by the Circuit Court for Prince George’s County on April 20, 2017. The circuit court affirmed the District Council’s decision in an order and opinion dated June 7, 2017. In response, Grant filed a notice of appeal in the circuit court and appealed its decision to the Court of Special Appeals.

In addition to the arguments concerning Wal- Mart’s special exception and variance applications, Grant averred that the District Council violated the Open Meetings Act based on its conduct between its July 18 and 19 hearings.11 In an unreported decision dated December 3, 2018, the Court of Special Appeals determined that the District Council applied the wrong legal standard and remanded the case to the District Council. In addition, the court concluded Grant failed to prove a violation of the Open Meetings Act occurred. Thereafter, Grant petitioned this Court for writ of certiorari, which we granted on March 5, 2019. On appeal, the parties are joined by Amicus Curiae, Barnabas Road 11 There, Grant argued that the District Council held a furtive meeting between its July 18 and 19 hearings in which it deliberated on Wal-Mart’s special exception, variance application, and the District Council’s proposed order. 9 Associates, LLC, who write in support of Grant’s position.

In her petition for a writ of certiorari, Grant presents three issues: 1. Whether Maryland administrative law authorizes a zoning tribunal to vote to approve a special exception without deliberating on the factual issues and then delegate to its staff attorney the authority to make the required factual findings without informing the staff attorney of the factual basis of the tribunal’s decision. 2. If, as the Court of Special Appeals postulated, the District Council’s staff attorney prepared a draft opinion and showed it separately to individual members of the District Council before the July 19 meeting, whether such a process is an “evasive device” which violates the Open Meeting Act. 3. Whether the District Council erred by exercising original jurisdiction when it reversed the Zoning Hearing Examiner’s decision.

STANDARD OF REVIEW In reviewing an administrative agency’s decision regarding a special exception “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.” People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 66 (2008) (internal quotation marks omitted) (citing People’s Counsel for Balt. Cty. v. Surina, 400 Md. 662, 681 (2007)). In such situations, we review the evidence adduced in the courts below to determine “whether the zoning body’s determination was supported by ‘such evidence as a reasonable mind might accept as adequate to support a conclusion[.]’” Loyola Coll. in Md., 406 Md. at 67 .

However, we review legal questions or the agency’s conclusions of laws de novo. Town of Oxford v. Koste, 431 Md. 14, 25 (2013). Because the parties dispute solely the 10 applicability of certain statutory provisions of the RDA, PGCC, and Open Meetings Act. we review these legal questions de novo. DISCUSSION A. The District Council was Authorized to Delegate Preparation of its Proposed Opinion to its Staff Attorney for its Subsequent Consideration and Adoption.

Grant argues that the procedure undertaken by the District Council in the instant case stands in opposition to Maryland administrative law. Specifically, she argues that the District Council failed to make required factual findings, delegated to its staff attorney the authority to draft its decision and make factual findings, and failed to properly inform its staff attorney of the relevant factual findings that would support its decision. Her arguments are primarily based on the limited statutory language that defines the role of Principal Counsel and technical staff within proceedings before the District Council. To support her position that Principal Counsel lacks the authority to prepare a draft findings of fact and decision, she directs the Court to various provisions of the Prince George’s Charter,12 the RDA, the PGCC and the Zoning Ordinances, which describe the duties of the Technical Staff, the Planning Board, the ZHE, People’s Zoning Counsel, and the District Council in the administrative review and application for a special exception.

By contrast, Grant contends that the RDA, the Charter, and the PGCC, including the Zoning Ordinances, do not establish the position of Principal Counsel. 12 Grant’s reliance on the Charter in this context is misplaced. In Prince George’s Cty. v. Maryland-National Capital Park and Planning Comm’n, 269 Md. 202 (1973), we held that Article VII of the Charter has no force and effect within that portion of Prince George’s County within the Regional District. 11 Grant argues that an administrative agency may only delegate authority to its staff where the agency’s enabling statute specifically permits such a delegation. To support her argument, she relies on Pub. Service Comm’n of Md. v. Wilson, 389 Md. 27, 52 (2005).

In Wilson, we were tasked with determining whether the Chairman (“the Chairman”) of the Public Service Commission (“the Commission”) acted improperly by unilaterally terminating an employee. Id. at 33-34 . In that case, the Court held that the Chairman did not have the unilateral authority to terminate an employee. Id. at 59 .

Grant reads Wilson to endorse the proposition that administrative agencies may only delegate authority to perform a certain function to its staff if that agency’s enabling statute authorizes such delegation.13 As mentioned earlier, the District Council’s existence is attributable to the RDA. Accordingly, the RDA is the enabling statute through which the District Council draws its powers to establish local zoning law. See Zimmer, 444 Md. at 523-24 . Therefore, she contends that based on Wilson, the District Council is only permitted to delegate to its staff attorney the responsibility of preparing a draft decision if the RDA authorizes such delegation.

However, we find that her arguments misconstrue our holding in Wilson. In Wilson, we held only that the Chairman did not have the unilateral authority to terminate employees because the relevant provisions of the Commission’s enabling statute 13 An enabling statute is a statute that empowers an administrative agency to engage in a specific administrative function and establishes the outer limits of such an agency’s power. Dep’t of Econ. and Employment Dev. v. Lilley, 106 Md. App. 744, 759 (1995) (“administrative agencies derive their power from enabling statutes that govern them.”). See also Zimmer Dev.

Co., 444 Md. at 518 (detailing the role enabling statutes play in reference to zoning). 12 bestowed that power upon the Commission as a whole. Wilson, 389 Md. at 58-59 . This becomes increasingly evident throughout the Court’s analysis: Language appears throughout the statute authorizing the Commission to “hire” or “appoint” all types of employees of the PSC. In contrast, there is no mention in this statute, nor any other statute we could find, of language that outlines the Chairman’s authority, independent of the Commission’s, to “hire” or “appoint” employees of the PSC.

Although § 2–108(d) [of the Public Utilities Companies Article (“PU”)] does not discuss specifically the authority of the Commission to terminate employees, [PU] § 2–108(d) states that “all personnel of the Commission are subject to the provisions of the State Personnel and Pensions Article.” That Article governs the termination of PSC employees, specifically those employees in the executive and management services, and those who are special appointments, all of which “serve[ ] at the pleasure of the employee’s appointing authority” and “may be terminated from employment for any reason, solely in the discretion of the appointing authority.” § 11–305. Because [PU] § 2–108(d) constructs a statutory scheme outlining both the Commission’s explicit authority to hire and implicit authority to terminate employees of the PSC, we conclude that the Commission as a whole is the “appointing authority.” Wilson, 389 Md. 27, 52 (2005) (emphasis added). Wilson addressed the Chairman’s authority to take final action—the termination of an employee—where the statute required the Commission as a whole to make final employment decisions. Clearly, the Wilson Court did not hold that “Maryland law only authorizes an administrative agency to delegate certain authority to an employee of the agency if the agency’s enabling statutes authorizes such a delegation” as Grant contends.

Pet. Br. at 10. Instead, the Court held that the head of an administrative body may not take unilateral action that directly contravenes the express powers granted to that agency “as a whole” through its enabling statute. In this case, the District Council did not delegate the final decision-making authority for granting or denying Wal-Mart’s special exception and variance to Principal Counsel— 13 rather, it delegated the preparation of a draft findings of fact and conclusions of law for the District Council’s deliberation and consideration.

On July 18, the District Council directed Principal Counsel to prepare a draft for its consideration. On July 19, the District Council subsequently met and voted to approve the findings of fact and conclusions as set forth in the document. There was no impermissible delegation of its final decision-making authority to staff. We find Grant’s reliance on Wilson unpersuasive.

As previously discussed, the RDA is the District Council’s enabling statute. The RDA bestows upon the District Council the authority to regulate zoning and establish procedures and provisions regarding zoning hearings. Under the RDA, any decision concerning a special exception requires a written finding of material facts and conclusions. LU § 25-204.

Under the RDA, LU § 22-206 grants to the District Council the power to regulate zoning: (a) A district council may amend its zoning laws, including any maps: (1) in accordance with procedures established in its zoning laws; and (2) after holding an advertised public hearing. (b) The procedures and zoning laws may include: (1) procedures limiting the times when amendments may be adopted; (2) provisions for hearings and preliminary determinations by an examiner, a board, or any other unit; (3) procedures for quorums, number of votes required to enact amendments, and variations or increases based on factors such as master plans, recommendations of the hearing examiner, county planning board, municipal corporation, governed special taxing district, or other body, and 14 petitions of abutting property owners, and the evidentiary value that may be accorded to any of these factors; and (4) procedures for hearings, notice, costs, fees, amendment of applications, recordings, reverter, lapse, and reconsideration de novo of undeveloped zoning amendments. LU § 22-206(a)--(b). Another provision, LU § 22-301 details the District Council’s role within hearings on special exceptions and variances: (a)(1) A district council may adopt zoning laws that authorize the board of appeals, the district council, or an administrative office or agency designated by the district council to grant special exceptions and variances to the zoning laws on conditions that are necessary to carry out the purposes of this division.

(2) Any zoning law adopted under this subsection shall contain appropriate standards and safeguards to ensure that any special exception or variance that is granted is consistent with the general purposes and intent of the zoning laws. (b) Subject to § 22-309 of this subtitle, an appeal from a decision of an administrative office or agency designated under this subtitle shall follow the procedure determined by the district council. (c) The district council may authorize the board of appeals to interpret zoning maps or decide questions, such as the location of lot lines or district boundary lines, as the questions arise in the administration of zoning laws. LU § 22-301.

As evident, the RDA empowers the District Council to pass zoning laws and grants broad authority to the District Council. The District Council sits as an administrative agency when reviewing a zoning matter. Brandywine Enter., 350 Md. at 342 (“The Regional District Act authorizes the County Council to sit as a district council in zoning matters, and, when it does so, it is acting as an administrative agency.”). Under the RDA, 15 the District Council is required to make written findings of fact.

Not only are the findings and conclusions required to be in writing, but they must be meaningful, and may not simply recite the statutory criteria or make boilerplate resolutions. See Bucktail v. Talbot Cty., 352 Md. 530, 553 (1999). See also Critical Area Comm’n v. Moreland, 418 Md. 111, 134 (2011) (noting that when a Board of Appeals merely states conclusions of law without pointing to the evidentiary base for those conclusions, such findings are not amenable to meaningful judicial review and remand is warranted). After considering the evidence, the District Council must reduce its findings of fact and conclusions of law to writing.

As part of this process, someone must take the initial step of putting pen to paper and assembling the proposed findings and conclusions of law for consideration by the District Council. In many instances, the public body charged with making that decision—whether a legislative body or a board of appeals—requests that its staff or attorney prepare the initial draft for the collective review and ultimate approval of the public body as a whole. There is nothing in the RDA, the PGCC or administrative law generally which prohibits this standard practice. The RDA grants unto the District Council extensive authority to adopt zoning laws and procedures concerning special exceptions and variances.

LU §§ 22-206, 22-301. Additionally, the RDA contains no language restricting the District Council from delegating to its staff attorney the responsibility of preparing a proposed order and the accompanying draft findings of fact. Moreover, Grant fails to identify any provisions within the PGCC or the RDA that would prohibit the District Council from delegating to 16 its staff attorney the responsibility of drafting a proposed order for the District Council’s consideration. The power to delegate to its staff attorney the ability to draft a proposed order and findings of fact falls under the umbrella of authority granted unto the District Council under the RDA.

In fact, through the grant of zoning authority under the RDA, the District Council has established provisions of the PGCC which implicitly enable the District Council to delegate to its staff attorney the responsibility of preparing a proposed order. In a section titled “voting and attendance records” of the District Council’s hearing procedures under the PGCC, the District Council must record a vote concerning “[a]ny District Council instructions for the preparation of findings of fact and conclusions, or other relative documents, necessary for use by the Council in taking action.” PGCC § 27- 132(a)(4)(A)(iv). Implicitly, the provision indicates that the District Council may delegate the preparation of a proposed order, which includes findings of fact, to its staff attorney. Therefore, under the PGCC, the District Council may permissibly delegate the preparation of “findings of fact and conclusions, or other relative documents[] necessary” to its staff attorney.

Id. Confirming our interpretation, the Rules of Procedure for the Prince George’s County District Council provide that “[t]he final action shall clearly articulate the policy or the basis in the record for the Council’s action.14 Upon final review of a zoning 14 The Rules of Procedure for the Prince George’s County District Council are distinct from the District Council’s hearing procedures enacted through the PGCC. See PGCC § 27- 132; Rules of Procedure for the Prince George’s County District Council (2018) available 17 application or case, the District Council shall adopt a written document that embodies a final decision.” Rule 7, Rules of Procedure for the Prince George’s County District Council (2018). Accordingly, under the procedural rules governing the District Council’s activities, the staff attorney’s proposed order and the accompanying findings of fact were adopted by the District Council upon obtaining the requisite number of votes in an open meeting.

At that point, the proposed order itself and the included findings of facts became that of the District Council and not of its staff attorney. Grant argues that “[n]othing in the RDA, the County Code, or the Zoning Ordinance suggests that the District Council has the authority to delegate to the Principal Counsel the Authority to make his own factual findings in a special exception case.” Pet. Br. 11. Grant’s argument is based upon the faulty premise that the District Council delegated its decision-making authority to its staff attorney and failed to deliberate.

While the District Council certainly could have undertaken more deliberation at its meetings on July 18 and July 19, we do not find that the District Council abdicated its decision-making authority to Principal Counsel. Based upon the record, we find that on July 18, the District Council voted and gave tentative approval of the special exception and variance application and asked Principal Counsel to prepare an appropriate order for Council’s review and consideration. Principal Counsel prepared the draft findings of fact and conclusions of law. The following day, the District Council met and voted to approve the findings of fact at: https://pgccouncil.us/DocumentCenter/View/3890/District-Council-Rules-of- Procedure (https://perma.cc/7J3W-9L8X) (last visited Aug. 19, 2019). 18 and conclusions of law.

The record contains sufficient evidence of the District Council’s deliberation for us to uphold its decision in this case. Based upon the record in this case, although we do not find that the District Council improperly delegated its decision-making authority to Principal Counsel, we caution that more deliberation by the public body—rather than the very bare minimum—is always encouraged. When a public body acting in a quasi-judicial capacity undertakes the most minimal skeletal procedural acts when adopting the findings of fact and conclusions of law, the public body should not be surprised by public skepticism or criticism, or a legal challenge of its decision. B. Grant Presents Insufficient Evidence that the District Council Violated the Open Meetings Act.

Grant’s Contentions Related to the Open Meetings Act Grant alleges that the District Council violated the Open Meetings Act during the deliberation process in connection with its approval of Wal-Mart’s special exception and variance application. Grant asks the Court to find a violation of the Open Meetings Act based upon the following sequence of events: On July 18, at an open meeting, the District Council gave tentative approval for the special exception and variance and asked Principal Counsel to prepare an appropriate order for the Council’s review and consideration; and On July 19, again at an open meeting, the District Council voted to approve a 51-page Findings of Fact and Conclusions of Law granting the special exception and variance. During her appeal to the Court of Special Appeals, Grant asked the intermediate appellate court to “infer[] from the conduct of the two public meetings that a secret, 19 undisclosed third meeting occurred between the meeting of July 18 and the meeting of July 19.” Grant v. Cty. Council of Prince George’s Cty., No. 809, Sept. Term 2017, 2018 WL 6329825 , at ⁴ (Md. Ct. Spec.

App. Dec. 3, 2018). In rejecting Grant’s hypothesis, the Court of Special Appeals stated that “[t]here is, however, no evidence in the record that suggests that such a meeting occurred, and Grant did not introduce any testimony before the circuit court to support her contentions.” Grant at ⁷ . In theory, the Court of Special Appeals presented an alternative hypothesis to Grant’s surreptitious meeting theory: It could have happened as Grant suggests. More likely, however, the staff prepared a draft opinion and showed it separately to individual members of the District Council before the July 19 meeting.

If that’s what happened, a quorum never met, no public business was conducted, and the Open Meetings Act was not triggered. Grant, at ⁷-8. On appeal to this Court, Grant contends that the scenario described by the Court of Special Appeals assumes that Mr. Kumar was able to write the fifty-one page draft Findings of Fact and Conclusions of Law (“Findings of Fact”) and meet with each District Council member during the night hours after the conclusion of the July 18 proceeding and before the Council reconvened on July 19. Grant asserts that such a scenario is unrealistic.

Grant further contends that if such a scenario in fact occurred, it violated the Open Meetings Act’s requirement that the public be allowed to observe the agency’s deliberation. Grant posits that such conduct would constitute a “walking quorum”—a term sometimes used by other states interpreting their state statutory open meetings act requirements—and asks this Court to hold that where a staff attorney meets individually with one or more members, but less than a quorum of the public body, such action violates the Open Meetings Act. 20 In response to Grant’s assertions, the District Council and Wal-Mart argue that Grant has failed to present any evidence that a violation of the Open Meetings Act occurred. The District Council and Wal-Mart argue that Grant is now advancing a new argument based upon an alternative hypothetical posed by the Court of Special Appeals in its opinion which they contend is dicta. The Open Meetings Act The first Maryland comprehensive legislation to require open meetings of public bodies was enacted in 1977.

Cmty. and Labor United for Balt. Charter Comm. (“C.L.U.B.”) v. Balt. City Bd. of Elections, 377 Md. 183, 193 (2003).

The Open Meetings Act is codified at 2014 Md. Code General Provisions Article (“GP”) §§ 3-101 through 3- 501.15 The legislative purpose and policy of the Open Meetings Act is clearly stated in GP § 3-102(a), that: 15 Maryland’s first comprehensive Open Meetings Act was codified at sections 7 through 15 of Article 76A of the Maryland Code. During Code Revision, Article 76A was re- codified as §§ 10-501 through 10-512 of the State Government Article (“SG”) by Chapter 284 of the Acts of 1984 without any substantive changes. See City of Balt. Dev.

Corp. v. Carmel Realty Assocs., 395 Md. 299, 321 (2006). The Act was again re-codified as §§ 3- 101 through 3-501 of the General Provisions Article (“GP”) by Chapter 94 of the Acts of 2014, without substantive changes. As we have commented in the past, “[c]ode revision is a periodic process by which statutory law is re-organized and restated with the goal of making it more accessible and understandable” and is “presumed to make clear the existing meaning of the statutory law rather than to change its meaning.” Smith v. Wakefield, LP, 462 Md. 713, 726 (2019). Maryland Code Revision began in 1970 as a long-term project to create a modern comprehensive code when Governor Marvin Mandel appointed the Commission to Revise the Annotated Code.

This formal revision of the statutory law for the General Assembly was coordinated by the Department of Legislative Services. Code Revision was completed in 2016 with the enactment by the General Assembly of the Alcoholic Beverages Article. 21 [i]t is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: (1) public business be conducted openly and publicly; and (2) The public be allowed to observe: (i) The performance of public officials; and (ii) The deliberations and decisions that the making of public policy involves. Thus, the policy of the Open Meetings Act, which has remained unchanged since its initial enactment in 1977, is that “citizens be allowed to observe . . . the deliberations and decisions that the making of public policy involves.” C.L.U.B., 377 Md. at 193 . In New Carrollton v. Rogers, 287 Md. 56, 72 (1980), Chief Judge Robert C. Murphy expanded upon this policy behind the Open Meetings Act as follows: While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings.

In this regard, it is clear that the Act applies, not only to final decisions made by the public body exercising legislative functions at public meeting, but as well to all deliberations which precede the actual legislative act or decision. . . . . It is, therefore the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business. To implement the legislative purpose of the Open Meetings Act, the General Assembly defined the public entities that are subject to the Act, identified the governmental functions that are covered by the Act (as well as certain functions which are exempt), set forth statutorily prescribed exemptions to the Act which permit the public body to convene 22 in closed session, outlined minimum standards for giving notice, and prescribed certain minimum requirements for disclosing in the minutes the matters discussed and actions taken in both open session and in closed session. The Open Meetings Act states that “[e]xcept as otherwise expressly provided in this subtitle, a public body shall meet in open session”16 which the public is invited to attend. 16 The Open Meetings Act broadly defines “public body” as an entity that: (i) consists of at least two individuals; and (ii) is created by: 1.

The Maryland Constitution; 2. A State statute; 3. A county or municipal charter; 4. A memorandum of understanding or a master agreement to which a majority of the county boards of education and the State Department of Education are signatories; 5. an ordinance; 6. a rule, resolution or bylaw; 7. an executive order of the Governor; or 8. an executive order of the chief executive authority of a political subdivision of the state.

GP § 3-101(h)(1). The Open Meetings Act provides that the following entities are also subsumed within the definition: (i) Any multimember board, commission or committee appointed by the Governor or the chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority of the political subdivision, if the entity includes in its membership at least two individuals not employed by the State or the political subdivision; (ii) Any multimember board, commission or committee that: 1. is appointed by: A. an entity in the Executive Branch of the State government, the members of which are appointed by the Governor, and that otherwise meets the definition of a public body under this subsection; or 23 GP §§ 3-301, 3-303.17 The Act further defines the term “meet” to mean “to convene a quorum of a public body to consider or to transact business.” GP § 3-101(g). “Quorum” is defined under the Act as: “(1) a majority of the members of a public body; or (2) the number of members that the law requires.” GP § 3-101(k). The Open Meetings Act does not apply to all functions of a public body. It does not apply to a public body carrying out an administrative function, a judicial function, or a quasi-judicial function as those terms are defined by the Act.

GP §§ 3-101, 3-103(a)(1). The Act likewise does not apply to a “chance encounter, a social gathering, or any other occasion that is not intended to circumvent this title.” GP § 3-103(a)(2). Notwithstanding the exceptions described above, the Open Meetings Act applies “to a public body when it is meeting to consider: (1) granting a license or permit; or (2) a special exception, variance, conditional use, or zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” GP § 3-103(b). 18 In summary, B. an official who is subject to the policy direction of an entity described in item A of this item; and 2. includes in its membership at least two individuals who are not members of the appointing entity or employed by the State; and (iii) The Maryland School for the Blind. GP § 3-3010(h)(2). 17 Section 3-305 sets forth the statutory exceptions where a public body is permitted to meet in closed session or adjourn an open session to a closed session. 18 The language set forth in Section 3-103(b) (formerly SG § 10-503(b)) was added during the 1991 Legislative Session to clarify that licensing, permitting and zoning matters were expressly subject to the Act, regardless of the what “function” the public body is performing.

The language was added in response to concerns that public bodies were broadly construing the “quasi-judicial function” exemption to apply when the body 24 the Open Meetings Act will apply when the entity meets the definition of a “public body”, the members of the public body are “meeting” as defined by the Act, and the public body is performing one of the functions subject to the Act. When the Open Meetings Act applies to a meeting of a public body, the Act requires that the public has notice and an opportunity to observe the meeting. Specifically, before a public body meets either in an open session or closed meeting, it must provide the public with “reasonable advance notice of the session.” GP § 3-302(a). The Act also prescribes basic parameters for the notice, as well as the manner in which such notice may be given.

GP § 3-302(b), (c). In addition to the public notice requirements, any public body that intends to meet in an open session must make