Prince George's Cty. v. Concerned Citizens

Prince George’s County Council, et al. v. Concerned Citizens of Prince George’s County, et al., No. 23, September Term, 2022. Opinion by Gould, J. LAND USE – ZONING – STANDARD OF REVIEW Maryland courts review amendments to the text of a zoning ordinance as legislative actions. Md. Overpak Corp. v. Mayor of Balt., 395 Md. 16, 35 (2006); MBC Realty, LLC v. Mayor of Balt., 192 Md. App. 218, 234 (2010). In Prince George’s County, amendments to the zoning ordinance are considered “final decision[s]” of the Prince George’s County Council, sitting as the District Council, and are reviewed by courts only for legality.

See Md. Code Ann., Land Use § 22-407 (a)(1), (e) (2012, 2022 Supp.); Town of Upper Marlboro v. Prince George’s Cnty. Council, 480 Md. 167, 180-81, 191 (2022); Cnty. Council of Prince George’s Cnty. v. Chaney Enters. Ltd. P’ship, 454 Md. 514, 528-31 (2017).

LAND USE – ZONING – UNIFORMITY In uniformity challenges to zoning regulations, Maryland courts evaluate whether the regulation is “reasonable and based upon the public policy to be served.” Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 720 (1977). The Supreme Court of Maryland has held that “[t]he crux of the [uniformity] requirement is only that similarly situated properties are treated the same under the zoning regulations,” observing that “the kind of discrimination violative of the uniformity requirement occurs when a zoning ordinance singles out a property or properties for different treatment than others similarly situated.” Anderson House, LLC v. Mayor of Rockville, 402 Md. 689, 714-15 (2008). LAND USE – ZONING – UNIFORMITY The Supreme Court of Maryland upheld an amendment to a Prince George’s County zoning ordinance that allowed qualifying properties in the Residential-Agricultural Zone to develop higher-density housing. Even though the amendment’s text and history showed that the Council knew that only one particular property would likely qualify, the amendment was valid because it furthered a valid public purpose and did not discriminate between similarly situated properties.

Circuit Court for Anne Arundel County Case No. C-02-CV-20-001850 Argued: February 3, 2023 IN THE SUPREME COURT OF MARYLAND* No. 23 September Term, 2022 __________________________________ PRINCE GEORGE’S COUNTY COUNCIL, et al. v. CONCERNED CITIZENS OF PRINCE GEORGE’S COUNTY, et al. __________________________________ Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Getty, Joseph M. (Senior Justice, Specially Assigned) JJ. __________________________________ Opinion by Gould, J. Pursuant to the Maryland Uniform Electronic Legal Fader, C.J., Watts, and Booth, JJ., dissent. Materials Act (§§ 10-1601 et seq. of the State __________________________________ Government Article) this document is authentic. 2024.04.26 Filed: August 22, 2023 11:30:09 -04'00' 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 to the Supreme Court of Maryland. The name change took effect on December 14, 2022.

This zoning dispute involves the interplay between the public’s interest in the future of a small, struggling private airport in Prince George’s County and the financial interests of its owner. The airport lies in an area that was once rural and is now largely suburban. Over the past forty years or so, a few dozen small planes have crashed during takeoff or landing. Some of those planes have crashed into nearby residences or the highway that runs next to the airport, sometimes fatally.

Since at least the 1990s, the county has identified the airport as a public safety risk. The airport has experienced financial difficulties in recent years. As a result, its owners have said they will increase operations or, alternatively, redevelop the site for non-airport use. The county’s zoning ordinance has historically limited development of housing at the airport to low-density, single-family detached housing.

To incentivize redevelopment of the airport, the County Council, over the protests of some constituents, amended the text of the zoning ordinance to allow the airport to develop higher-density housing, including townhouses. Those constituents challenged the legality of that ordinance in court, claiming that it violated Maryland’s uniformity requirement, which requires zoning laws to “be uniform for each class or kind of development throughout a district or zone.” Md. Code Ann., Land Use (“LU”) § 22-201(b)(2)(i) (2012, 2022 Supp.).1 They argued that the ordinance, though facially neutral, violates uniformity because it is tailored so narrowly as to afford favorable 1 The cited statute applies to Prince George’s County. Maryland’s uniformity law applicable elsewhere in the State is functionally identical. See LU § 4-201(b)(2). development opportunities, in effect, to only the airport property.

The circuit court rejected their challenge, but the Appellate Court of Maryland2 reversed, finding that the ordinance violated the uniformity requirement. We find that, notwithstanding the financial benefits the airport’s owners and developers may enjoy, the ordinance was adopted to further a valid public purpose and does not discriminate against similarly situated properties; therefore, it should have survived the uniformity challenge. Accordingly, we reverse the judgment of the Appellate Court. BACKGROUND In November 2019, the Prince George’s County Council, sitting as the District Council (the “Council”),3 enacted Council Bill 17-2019 (“CB-17” or “Council Bill 17”), a text amendment to the Prince George’s County Code, to encourage the decommissioning of the Freeway airport by allowing higher-density housing.

Under the county zoning ordinance then in effect (the “Old Zoning Ordinance” or “PGCC § 27-”), the airport was zoned as Residential-Agricultural (“R-A”). The R-A Zone prohibited single-family attached residences (“townhouses”) and imposed a maximum development density of 0.5 dwelling units per acre. PGCC §§ 27-441(b), 27-442(h). 2 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals to the Appellate Court of Maryland. The name change took effect on December 14, 2022. 3 The Council is the ultimate local legislative authority over zoning laws and maps within Prince George’s County.

LU § 22-104. 2 Council Bill 17, however, exempts qualifying R-A Zone properties, namely the Freeway airport, from those limitations, allowing townhouses and a development density of up to 4.5 dwelling units per acre. PGCC § 27-441(b) n.136.4 Specifically, CB-17 allows for higher-density housing5 if located on an assemblage of adjacent properties that: (1) is 100-150 acres or was formerly used as an airport; (2) is entirely within one mile of a municipal boundary; (3) is entirely within 2,500 feet of land used for the generation, transmission, or distribution of electricity; and (4) has frontage on a freeway. Id. The Freeway Airport and Environs The Freeway airport is a privately-owned general aviation airport on a 129-acre property at 3900 Church Road in Bowie.

The Rodenhauser family has owned and operated the airport since it began as an airfield in the 1930s, when the area was rural. In 1947, the airport opened for general aviation and has operated as an airport ever since. In 1968, the property was included in the R-A Zone. Because the R-A Zone does not allow for airports,6 the property obtained legal nonconforming use status.7 4 The cited footnote appears throughout the record variously as Footnote 134 and Footnote 135.

The current version of the zoning ordinance codifies the text amendment as Footnote 136. PRINCE GEORGE’S COUNTY, MD., MUN. CODE (2022 Supp., Update 3), (codified through Bill No. CB-104-2022, effective Dec. 27, 2022). 5 We refer to the allowance of townhouse construction and a development density of up to 4.5 dwelling units per acre collectively as “higher-density housing.” 6 The R-A Zone allows special exceptions for private airstrips, which are much smaller and limited in their operations. PGCC §§ 27-441(b), 27-445.07. 7 Nonconforming uses are lawful uses that do not conform to zoning regulations, typically because they predate the enactment of a new zoning ordinance.

Trip Assocs., Inc. v. Mayor of Balt., 392 Md. 563, 573 (2006). A nonconforming use may be permitted to 3 Today, the airport is largely surrounded by suburban residential communities, developed mostly in the last two decades, containing hundreds, if not thousands, of homes. Waterford Estates is directly west of the airport, containing hundreds of single-family detached homes; Fairwood lies to the north and has approximately 1,700 residences, including townhouses; Fairview Manor sits to the east; and Woodmore Highlands is to the southeast. The Woodmore golf course community, directly west of Waterford Estates and approximately one-half mile from the Freeway airport, contains 259 townhouses.

That community was developed under a 2008 amendment to the zoning ordinance allowing townhouses on certain R-A Zone properties, up to a density of 0.5 dwelling units per acre. PGCC § 27-444(b)(6). Route 50, an interstate highway with four lanes in each direction, abuts the north end of the airport’s only runway. Along the property’s western edge, high-voltage electric transmission lines installed in the 1960s run approximately one thousand feet from, and parallel to, the runway.

The transmission lines, in addition to presenting aviation obstacles, reduce the space available for emergency landings. The eastern boundary of the property runs along Church Road, a county road with one lane in each direction. In the mid-1990s, the Small Airports Advisory Committee—which included Councilmember Derrick Leon Davis, the sponsor of CB-17—studied the various airports in Prince George’s County in an effort to promote safe development near the Freeway airport. The committee was especially concerned with the risk of, and damage from, planes continue if a property owner can show the use was lawful at the time the new zoning ordinance was enacted.

LU § 22-114. 4 crashing during takeoff and landing. Subsequent development of the Fairwood community, located just north of the airport, incorporated lessons from that study. Specifically, the Council enacted regulations limiting development density in areas where planes were more likely to crash. Since 1983, 32 accidents have been documented at the Freeway airport, resulting in 10 fatalities.

In some cases, planes have landed directly on or close to Route 50, colliding with traffic in at least one instance. On September 12, 2019, while CB-17 was under consideration by the Council, a plane from the airport crashed into Route 50, striking a car and injuring multiple people. At least twice, planes have crashed into or very close to homes, sometimes fatally. The Enactment of CB-17-2019 Councilmember Davis introduced CB-17 on April 30, 2019, to amend the Table of Uses under the Old Zoning Ordinance for the stated purpose “of permitting Townhouse and One-family detached dwelling uses in the R-A (Residential Agricultural) Zones of Prince George’s County, under certain circumstances.” CNTY.

COUNCIL OF PRINCE GEORGE’S CNTY., MD., SITTING AS THE DIST. COUNCIL, CB-17-2019, 2019 Leg. (2019). The first draft of the bill would have permitted development of townhouses up to 6.0 dwelling units per acre and single-family detached homes up to 6.7 dwelling units per acre in the R-A Zone if the assemblage of land: (1) was no more than 140 acres; (2) was formerly used, entirely or in part, as an airport; (3) was located within one mile of a municipal boundary; and (4) had frontage on a public right-of way classified as an arterial 5 or higher by the State.

Despite the facially neutral language of the bill, CB-17 specifically sought to incentivize the decommissioning of the Freeway airport. Two days later, the Prince George’s County Planning Board (the “Planning Board”) held a hearing on the bill. The Planning Board is a five-member body responsible for local planning, subdivision, and zoning. LU § 20-202(a)(i).

Proposed amendments to the zoning ordinance must be sent to the Planning Board for comments and recommendations. PGCC § 27-217. At the hearing, when a board member asked Robert Antonetti, counsel for Freeway Airport, LLC,8 why Freeway Airport did not instead apply to rezone the property, Antonetti said he expected a text amendment would be a faster and more direct process. The same day, the Planning Board issued a report to the Council opposing CB-17.

The Planning Board argued that townhouses were not appropriate for the R-A Zone, the stated purposes of which are “to provide for large-lot one-family detached residential subdivisions, while encouraging the retention of agriculture as a primary land use[,]” and to “encourage the preservation of trees and open spaces[.]” PGCC § 27-426(a). The Planning Board determined that, without the “former airport” requirement, approximately 262 properties would meet the criteria of the bill. With the “former airport” requirement, however, only the Freeway airport would qualify, as the three other operational airports in the county were not zoned R-A. The Planning Board added that it “believe[d] this bill was drafted for a specific property”—the Freeway airport. The Prince 8 Freeway Airport, LLC, a partnership between the Rodenhauser family and St. John Properties, Inc., is the contract purchaser of the Freeway airport property.

For clarity, we refer to petitioner Freeway Airport, LLC, as “Freeway Airport” and the Freeway airport property as “the Freeway airport” or “the airport.” 6 George’s County Office of Law (“Office of Law”) agreed, writing in a one-sentence memorandum that “[t]he bill may be subject to challenge as it appears to be drafted for a specific parcel.” Neither the Planning Board nor the Office of Law expressly raised the prospect of a uniformity violation. Before CB-17 was sent to the Council, the Planning, Housing, and Economic Development Committee of the Prince George’s County Council (the “Planning Committee”) considered CB-17 in a hearing on June 20. In advance, Councilmember Davis had asked Karen Zavakos, Legislative Officer for the Planning Committee, to draft amendments to the bill (“Draft 2”) “[i]n the interest of tempering the concerns raised by [the] Planning Board[.]” In response to concerns that the “formerly used as an airport language . . . may have been too specific,” Draft 2 made the bill “more facially neutral.” As relevant here, Draft 2 eliminated the “former airport” language; increased the maximum area from 140 to 150 acres; required the assemblage to be within 2,500 feet of land used for electrical generation, transmission, or distribution; and changed the requirement of proximity to an arterial right-of-way to proximity to a freeway. Discussion at the Planning Committee hearing was dedicated to the Freeway airport. “Council Member Davis, the bill sponsor, informed the Committee that CB-17-2019 is intended to facilitate an idea for a development opportunity on property in his district where growth in the surrounding area of a small airport has occurred.” CNTY.

COUNCIL OF PRINCE GEORGE’S CNTY., MD., PLANNING, HOUSING, AND ECONOMIC DEVELOPMENT COMMITTEE REPORT, 2019 Leg., 1 (2019). Various constituents testified. Most opposed CB-17, expressing concerns about traffic safety on Church Road, increased burdens on public 7 resources like infrastructure and schools, and changes to the character of the area. A few residents, however, testified in support of CB-17, citing the unsuitability of the airport to the area, the undesirability of expanded airport operations there, and opportunities for economic development.

Kim Rodenhauser, whose family owns the Freeway airport, read a prepared statement. She described the financial challenges of the business and said that CB-17 would allow her family to redevelop the property rather than expand airport operations, which the Rodenhausers believed would otherwise be necessary to stay in business. She was forthright about the family’s financial interest in CB-17, saying, “This legislation would benefit our family . . . we have a vested interest in the future of the property[.]” The statement also described when, in 1998, an airplane crashed into the Rodenhausers’ home, killing one person. Antonetti testified about the history of aviation accidents at the airport and the risk presented by the nearby transmission lines, adding that “this bill would absolutely motivate the permanent closure of this airport.” He also argued that the site was well-suited for townhouses because it was located near existing housing development, a freeway, and electricity transmission, and had already been cleared.

Councilmember Thomas Dernoga suggested reducing the maximum distance from electrical infrastructure from 2,500 feet to 2,000 feet to ensure that no properties other than the Freeway airport would qualify. This suggestion, however, was ultimately not proposed as an amendment. The Planning Committee adopted the amendments proposed by Councilmember Davis, further revised the acreage requirement to include a minimum of 100 acres, and voted to advance Draft 2 to the Council. 8 The Council held a hearing on September 10. Public comment largely tracked the testimony at the Planning Committee hearing, with most opposing CB-17.

Councilmember Colin Byrd of the Greenbelt City Council expressed concern that, even though the bill targeted the Freeway airport, it “could allow other properties in the County to do similar things.” One constituent alleged that the proposed developer, St. John Properties, Inc., had misled residents into submitting letters supporting the closure of the airport. Others testified in support. Members of the Prince George’s County Chamber of Commerce called the use of the site as an airport “unsustainable” and contended that CB-17 would create jobs, expand the tax base, and encourage development of nearby retail and entertainment. Tom Williams, a longtime employee and instructor at the Freeway airport, described his unease flying so close to housing developments.

Antonetti also introduced maps into the record showing the 32 documented accidents since 1983. Councilmember Davis described his participation in the County’s past efforts to reduce public safety risks arising from the airport’s proximity to housing developments, namely Fairwood. He also rejected accusations made by certain constituents that councilmembers had been paid by private interests to support CB-17. The Council considered further amendments (“Draft 3”) on October 8, 2019.

The principal amendment, proposed by Councilmember Davis, reintroduced the “formerly used as an airport” language—no longer, however, as an absolute requirement but as an alternative to the acreage requirement. The record does not reveal why the former airport use language was reintroduced. When Councilmember Davis was asked if the language was necessary, given that the Freeway airport already satisfied the acreage requirement, he 9 replied affirmatively but without explanation. Another amendment reduced the maximum development density to 4.5 dwelling units per acre.

The Council approved the amendments without explanation. Before the next public hearing, Planning Board staff provided the Planning Board with a memorandum opposing CB-17, contending that townhouses were neither appropriate for the R-A Zone nor the successor Agricultural-Residential Zone (“AR”) under the New Zoning Ordinance (“2022 PGCC § 27-”),9 and that the bill appeared to have been drafted for a specific property. Two days later, the Planning Board submitted another report to the Council repeating its concerns and recommending that the property instead be rezoned to permit townhouses. The report noted that staff could not identify all properties meeting the criteria of Draft 3 because staff (1) lacked records of land “formerly used as an airport” and (2) could not determine what was meant by “assemblages of properties,” which could potentially describe an “infinite” number of properties.

The Planning Board, 9 In October 2018, the District Council adopted a new zoning ordinance (the “New Zoning Ordinance”). The New Zoning Ordinance was set to take effect when the Council approved a countywide sectional map amendment, a process requiring the Council to apply the appropriate zoning classification in the New Zoning Ordinance to each parcel of real property in the County. CNTY. COUNCIL OF PRINCE GEORGE’S CNTY., MD., SITTING AS THE DIST.

COUNCIL, CB-13-2018, 2018 Leg. (2018). The New Zoning Ordinance—both the zoning text and accompanying maps—ultimately took effect April 1, 2022. To distinguish citations to the Old Zoning Ordinance (“PGCC § 27-”) from citations to the New Zoning Ordinance, references to the New Zoning Ordinance are identified as “2022 PGCC § 27-.” When the New Zoning Ordinance took effect, the Freeway airport was rezoned as Agricultural-Residential (“AR”), the successor to the R-A Zone under the Old Zoning Ordinance.

The AR Zone, like its predecessor, prohibits townhouses as a principal use and provides for a maximum density of 0.5 dwellings units per acre. 2022 PGCC §§ 27-4201(d)(2), 27-5101(c). 10 however, noted that the Freeway airport would meet the criteria if its airport operations ceased. The Office of Law also reviewed Draft 3, writing on November 13 that the bill “appear[ed] to be drafted for a specific parcel contained within an R-A zone” because only one parcel met the eligibility criteria for townhouse development. The Office of Law stated that “[i]f townhomes are permitted in the R-A zone, then the zoning regulations will not be uniform because townhomes are not detached, single family, nor on large lots.” This statement marked the first direct appearance in the record of a uniformity concern. Notably, the Office of Law’s concern apparently arose not because only the Freeway airport met the townhouse development requirements but because, as a general matter, allowing townhouse development conflicted with the purposes of the R-A Zone.

The Council held a public hearing on Draft 3 on November 19. Constituents presented similar arguments as those previously described. Antonetti contended that the bill was “not merely for private gain,” citing the accident history at the Freeway airport and “the public safety benefit to closing a general aviation airport surrounded by residential development.” The President of the Woodmore Homeowner’s Association10 expressed concern that a specific parcel in his community called “Hidden Pond” might qualify for higher-density housing under CB-17. This prompted the Council to amend the bill in a manner designed to exclude that parcel.

The Woodmore Homeowner’s Association represents homeowners from the 10 Woodmore golf course community, not to be confused with Woodmore Highlands. 11 When it came time for the Council to vote on CB-17, Councilmember Deni Taveras explained her affirmative vote and encouraged other Councilmembers to do the same, saying: . . . I’ll mention my experience with airport safety issues. And the irony is that the gentleman from St. John’s does highlight seven crashes and nine, and ten fatal deaths that have occurred over the last several years and you are included. I remember.

And what it remind —what that also reminds me of is that, on November 12, 2001, back where I’m from in New York, we had 265 people die in a plane crash, Flight 587, heading to Dominican Republic. I don’t know if anybody remembers that, but it was shortly after 9/11. And I lost ten people, ten family members, on that plane crash, ones, family and friends. And, especially after 9/11, as a New Yorker, I was never the same, and neither was my family, and neither was the neighborhood.

Especially if you live in [sic] an airport, none of that is ever the same. . . . [T]he alternative [to developing the Freeway airport] is that they’re going to rebrand and they’re going to reengage to have higher, increasing traffic. This is the risk that you take. And everybody feels that it’s not them. They’re never going to get hit.

They’re never— they’ll survive. And so, the thing is, I just say there’s nothing wrong with the outline of the development plan that’s provided. With the same way we have Fairwood and some of these other higher-density, and Woodmore Highlands, some of these higher densities, they would look at— there’s no difference with what’s being proposed, which concerns me that why this area and not Fairwood and not these other places. Why is that okay?

And I think that the lady says, if they were allowed, why can’t this? And so, with that, I just want to say that, and there’s already plans for an ice rink. There’s already plans for a school site. There are already plans in place for future development that compensates and that accounts for the changes that are coming.

So, with that, I just want to say go ahead and vote in favorable [sic] for this proposal. 12 The Council then approved the final version of CB-17, and CB-17 took effect 45 days later on January 3, 2020. The enacted bill added Footnote 13611 to the Table of Uses, permitting townhouses and single-family detached homes in the R-A Zone at up to 4.5 dwelling units per acre if: (a) The use is located on an assemblage of adjacent properties that: (i) is no less than one hundred (100) acres and no more than one hundred fifty (150) acres in size or was formerly used as an airport; (ii) is entirely within one (1) mile of a municipal boundary; (iii) is entirely within 2,500 feet of land owned by a regulated public utility and used for purposes of electrical generation, transmission, or distribution in connection with providing public utility service in the County by a regulated public utility; and (iv) a portion of the boundary of the assemblage of adjacent properties has frontage on a public right--of--way classified as a freeway or higher in the Master Plan of Transportation and is maintained by the State Highway Administration. PGCC § 27-441(b). Procedural Background Judicial Review in the Circuit Court Concerned Citizens of Prince George’s County, et al. (“Concerned Citizens”) petitioned for judicial review of CB-17 in the Circuit Court for Prince George’s County on December 16, 2019.

In its supporting memorandum, Concerned Citizens presented five 11 See text accompanying note 4, supra. 13 questions, including whether CB-17 violated the uniformity requirement.12 They argued, without reference to case law, that CB-17 “[o]n its face” violated uniformity by allowing a “very specific, very limited segment of the R-A zone”—the Freeway airport—to develop higher-density housing, in conflict with the stated purposes of the R-A Zone. Citing Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686 (1977), Freeway Airport and the Council argued in a joint opposition memorandum that CB-17 did not violate uniformity because: (1) the text of the ordinance applied “uniformly to all qualifying properties using the same exact terminology of the regulation,” even if it produced “vastly different results on different properties throughout the zone,” and (2) CB-17 was “rooted in a sound public policy of protecting the citizens of Prince George’s County” by encouraging the decommissioning of the Freeway airport. Concerned Citizens’ reply memorandum focused on the alleged impropriety of using a text amendment to effect a “site-specific land use process,” but did not elaborate upon the uniformity issue. 12 Concerned Citizens presented the following questions before the circuit court: (1) Was the District Council’s enactment of CB-17-2019 an unlawfully granted zoning approval for the Freeway Airport property, when the statutory requirements for site-specific zoning actions were not met?; (2) Did the District Council’s enactment of CB-17-2019 constitute unlawful spot zoning?; (3) Did the District Council’s enactment of CB-17-2019 violate the uniformity requirement of the Regional District Act?; (4) Did the District Council’s enactment of CB-17-2019 violate the “special law” prohibition of Maryland’s Constitution?; and (5) Was CB-17-2019 enacted unlawfully in the absence of a required public hearing? 14 The matter was subsequently transferred to the Circuit Court for Anne Arundel County. At the hearing, Concerned Citizens’ uniformity argument was limited to showing that CB-17 was narrowly drafted to target and benefit the Freeway airport.

On May 7, 2021, the circuit court affirmed the Council’s decision without explanation. Judicial Review in the Appellate Court On appeal to the Appellate Court of Maryland, Concerned Citizens raised substantially the same challenges as in the circuit court13 and largely repeated their uniformity argument. In discussing Woodward & Lothrop for the first time, Concerned Citizens distinguished that case on the grounds that the regulations there were relatively broad and had an actual effect on numerous properties, in contrast to those in CB-17, which “were painstakingly specific to the Freeway Airport property.” Concerned Citizens did not argue, however, that any criteria of CB-17 were unreasonable or not based on a public 13 Those issues, as stated and numbered by the Appellate Court, were: (1) Did the District Council’s enactment of CB-17-2019 violate the uniformity requirement of Maryland Code, Land Use Article, Regional District Act?; (2) Did the District Council's enactment of CB-17-2019 violate the “special law” prohibition of the Maryland Constitution?; (3) Did the District Council's enactment of CB-17-2019 constitute unlawful “spot” zoning?; (4) Was the District Council's enactment of CB-17-2019 an unlawful grant of relief to Freeway Airport from the use and density restrictions of the R-A zone without the required administrative, quasi-judicial procedure?; and (5) May the District Council’s enactment of CB-17-2019 be affirmed on the basis of “public interest” or “public benefit”? In re Concerned Citizens of PG Cnty.

Dist. 4, 255 Md. App. 106 , 109-10 (2022). 15 purpose. Those issues arose only when the Appellate Court questioned Freeway Airport during oral argument, which led to a cursory and unrevealing discussion. Concerned Citizens did not contend that any other properties were unreasonably excluded from the development opportunities under CB-17. The Appellate Court held that CB-17 violated Maryland’s uniformity requirement.

In re Concerned Citizens of PG Cnty. Dist. 4, 255 Md. App. 106 (2022). The Court reasoned that CB-17 was “tailor-made for Freeway Airport” and that the record did not show “any public purpose for creation of this special high-density area within an R-A zone[.]” Id. at 124 . In effect, the Court deemed CB-17 a “mere favor” to Freeway Airport.

Id. at 125-27 . As evidence, the Court pointed to the provisions in CB-17 relating to former airport use and proximity to electrical infrastructure, finding that they lacked any discernible public purpose.14 The Court did not reach the other issues on appeal. Petition for Certiorari and the Motion to Dismiss Freeway Airport and the Council each petitioned for writ of certiorari, asking this Court to reverse the Appellate Court and affirm the validity of CB-17. To complicate matters, after we granted writ of certiorari, Prince George’s Cnty.

Council v. Concerned Citizens of Prince George’s Cnty., 482 Md. 31 (2022), a newly elected Council enacted Council Bill 17-2023 (“CB-17-2023”), which took aim at CB-17 and the broader practice of enacting footnote exceptions to the Table of Uses in the Old Zoning Ordinance. CNTY. 14 The Court did not take issue with the provisions requiring proximity to a municipality and a freeway. Concerned Citizens, 255 Md. App. at 125-26 & n.16. Concerned Citizens has not argued that those provisions are not reasonable and based upon public policy, except to the extent they target the Freeway airport. 16 COUNCIL OF PRINCE GEORGE’S CNTY., MD., SITTING AS THE DIST.

COUNCIL, CB-17-2023, 2023 Leg. (2023).15 The Council subsequently filed a notice of dismissal, thereby withdrawing as a party and leaving Freeway Airport as the sole petitioner. See Md. Rule 8-601(a). Concerned Citizens moved to dismiss the case on the grounds that CB-17-2023 had repealed CB-17 and thus rendered the uniformity question moot.

See Md. Rule 8-602(c)(8). “Generally, a case is moot if no controversy exists between the parties[.]” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 351 (2019). In land use and zoning cases, we generally presume that, absent contrary legislative intent, a substantive change in law occurring during litigation and before any substantive rights have vested is applied retroactively. McHale v. DCW Dutchship Island, LLC, 415 Md. 145, 170 (2010). Thus, if CB-17-2023 were to indeed preclude Freeway Airport from developing under CB-17, this controversy would be moot.

Freeway Airport, in opposing the motion to dismiss, contends that development of the airport can proceed under CB-17 despite the passage of CB-17-2023. Freeway Airport argues that: (1) the New Zoning Ordinance allows, in certain cases, for development under the Old Zoning Ordinance, see Concerned Citizens, 255 Md. App. at 109 n.2; (2) CB-17-2023 prohibits development only under 2022 PGCC § 27-1903; and (3) CB-17-2023 does not prohibit Freeway Airport from developing the property under other 15 Council Bill 17-2023 declared as its purposes: “limiting the authority in the Zoning Ordinance for development of Townhouse and One-family attached dwelling uses under the prior Ordinance in the R-A [] Zone” and “eliminat[ing] uses permitted in the prior Ordinance by way of Footnoted exceptions[.]” 17 sections, namely 2022 PGCC § 27-1704, which allows for development of certain “grandfathered” projects. From the information in this record, we are unable to definitively determine that the case is moot. We shall, therefore, address the merits.

The effect of our decision on the parties will be an issue for another day. ZONING AND THE STANDARD OF REVIEW Zoning authorities in Maryland implement land use plans and determinations of zoning categories primarily through three processes: original zoning, comprehensive rezoning, and piecemeal rezoning. Mayor of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 532 (2002). Original zoning is the initial designation through legislative action, ordinarily by a local government, of large areas according to their permissible or prohibited uses and conditions.

Id. at 532, 535 . Comprehensive rezoning, as its name suggests, refers to the same process applied to areas previously zoned. Id. In contrast, piecemeal rezoning is a quasi-judicial action, culminating in a legislative act, relating to an individual parcel, lot, or assemblage, and is typically requested by a property owner.

Id. at 532 ; Anderson House, LLC v. Mayor of Rockville, 402 Md. 689 , 708 n.17 (2008). The Council derives its zoning authority from the Maryland-Washington Regional District Act (the “RDA”). Prince George’s County v. Zimmer, 444 Md. 490, 525-26 , 523 n.29 (2015) (providing a history of the RDA); LU, Titles 14 to 27 (codifying the RDA). The RDA establishes the Maryland-Washington Regional District, which consists of nearly all of Montgomery and Prince George’s counties, LU § 20-101, and grants primary zoning authority to the County Councils sitting as the District Councils, LU § 22-101. 18 The Council’s zoning powers include “divid[ing] the portion of the regional district located within its county into districts and zones of any number, shape, or area it may determine.”16 LU § 22-201.

The Council has authority to “adopt and amend the text of the zoning laws” and their accompanying maps to regulate, among other things: “the location, height, bulk, and size of each building or other structure”; “the density and distribution of population”; “the location and uses of buildings and structures”; and “the uses of land[.]” LU § 22-104; see also LU § 22-201(b)(1). Importantly, a text amendment is not a piecemeal rezoning, as it does not change the assigned zone of any parcel. MBC Realty, LLC v. Mayor of Balt., 192 Md. App. 218, 238 (2010). Instead, it amends the regulations that apply to a particular zone.

Id. We review the Council’s action in zoning matters as administrative agency action. Cnty. Council for Prince George’s Cnty. v. Carl M. Freeman Assocs., Inc., 281 Md. 70, 74 (1977); Md. Rule 7-201(b).

We look through the decisions of the trial court and evaluate agency action directly. Comptroller of Md. v. FC-GEN Operations Invs. LLC, 482 Md. 343, 359 (2022). For Prince George’s County, Section 22-407 of the Land Use Article provides the standards of judicial review for the Council’s “final decision[s]” in zoning matters.

LU § 22-407(a)(1), (e); see also Town of Upper Marlboro v. Prince George’s Cnty. Council, 480 Md. 167, 181, 191 (2022); Cnty. Council of Prince George’s Cnty. v. Chaney Enters. Ltd. P’ship, 454 Md. 514, 528-31 (2017).

Both legislative and quasi-judicial acts by the 16 Here, we use the terms “district” and “zone” interchangeably. 19 Council constitute reviewable “decisions.” Chaney Enters., 454 Md. at 531 n.12 (clarifying that zoning “decision[s]” under LU § 22-407(a)(1) include legislative acts, in contrast to other statutes that limit review to zoning “actions”); see also Town of Upper Marlboro, 480 Md. at 180-81, 191 (reviewing legislative acts of Prince George’s County Council under LU § 22-407). Section 22-407(e) identifies the circumstances under which we may reverse or modify a zoning decision by the Council. The decision must be: “(i) unconstitutional; (ii) in excess of the statutory authority or jurisdiction of the district council; (iii) made on unlawful procedure; (iv) affected by other error of law; (v) unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or (vi) arbitrary or capricious.” LU § 22-407(e). Quasi-judicial decisions may be reversed or modified under any of the above circumstances.

Town of Upper Marlboro, 480 Md. at 180-81, 191 . In contrast, we review legislative decisions only for legality, which implicates only provisions (i) to (iv) of the list above. Id. Review for legality “is an even more limited standard than the already narrow review for arbitrary and capricious action, or for action unsupported by substantial evidence.” Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 393 (2010).

Here, the Council’s enactment of CB-17 was “in the nature of” a legislative action. MBC Realty, 192 Md. App. at 234 (holding that a text amendment is “in the nature of a legislative action”); see Md. Overpak Corp. v. Mayor of Balt., 395 Md. 16, 35 (2006).17 17 Community members and at least one councilmember protested the Council’s decision to use a text amendment here, arguing that Freeway Airport should have applied 20 Legislative action enjoys a strong presumption of validity; we do not substitute our policy judgments for those of the legislature, and we assume as the action’s basis any reasonably conceived state of facts that would sustain it. See Rylyns, 372 Md. at 535, 542-43 (“Because special exceptions [and conditional uses] are legislatively-created[,] . . . they enjoy the presumption of correctness[.]”); Anderson House, 402 Md. at 723-24 (discussing the presumption in the context of original zoning and comprehensive rezoning). The challenger to the law or regulation “carries the heavy burden of establishing, by clear and affirmative evidence” the invalidity of the action.

Anderson House, 402 Md. at 724 . for a piecemeal rezoning—a quasi-judicial action. Those critics saw CB-17 and text amendments broadly as ways to circumvent the more rigorous requirements of quasi-judicial action. In that vein, Concerned Citizens argued before the circuit court and Appellate Court that CB-17 unlawfully bypassed what they contended were the required quasi-judicial procedures for “site-specific zoning action.” The Appellate Court did not reach this issue, instead invalidating CB-17 on uniformity grounds. In MBC Realty, opponents of a text amendment which, in effect, allowed only a single arena to install new billboards, argued that the amendment was piecemeal zoning. 192 Md. App. at 238 .

The Appellate Court rejected that argument, reasoning that the amendment did not change the assigned zone of the arena. The same reasoning applies here. Additionally, neither the Land Use Article nor the Prince George’s County Code require that “site-specific” zoning decisions be subject to quasi-judicial proceedings, despite providing for rules in other specific situations. See LU § 22-206 (providing for text amendment procedures); LU § 22-301 (providing authority to grant special exceptions and variances); PGCC §§ 27-143 to 27-157 (providing rules for map amendments); PGCC §§ 27-214 to 27-219 (providing rules for text amendments); PGCC §§ 27-296 to 27-418 (providing rules for special exceptions).

Though applying for piecemeal rezoning may have been available to Freeway Airport, the Council was permitted to act legislatively. 21 DISCUSSION Concerned Citizens challenges the legality of CB-17 on the grounds that the ordinance violates the uniformity requirement, which requires zoning laws to “be uniform for each class or kind of development throughout a district or zone.” LU § 22-201(b)(2)(i). Concerned Citizens argues, and the Appellate Court agreed, that CB-17 violates uniformity because the Council narrowly tailored it to single out18 the Freeway airport as the only qualifying property. Maryland’s uniformity statutes, the likes of which nearly all other states have adopted, Anderson House, 402 Md. at 713 & n.20, reassure property owners that they will not be subject to “arbitrary” or “invidious” discrimination, id. at 717-20 , or government favoritism or coercion, id. at 716 (quoting Rylyns, 372 Md. at 536 ).19 Modern courts, including this one, understand uniformity as a state law counterpart to “the constitutional equal protection prohibition against purely arbitrary zoning classifications and restrictions,” and generally apply similar principles of review. 1 Rathkopf’s The Law of 18 The term “singling out” in Maryland uniformity cases first appears, to our knowledge, in Anderson House, 402 Md. at 714 , 715 n.21, 717, 720, though the concept appeared long before then in spot zoning cases, see, e.g., Rylyns, 372 Md. at 546 . 19 Maryland’s uniformity statutes adopt, nearly verbatim, the language of the Standard State Zoning Enabling Act, a model act promulgated by the U.S. Department of Commerce. The model act provides: “All such regulations shall be uniform for each class or kind of buildings throughout each district.” A STANDARD STATE ZONING ENABLING ACT § 2 (U.S. DEP’T OF COMMERCE 1926).

Courts have also described improper discrimination as “unfair,” Anderson House, 402 Md. at 720 , “unequal,” id., “ad hoc,” id. at 714 , and “unreasonable,” Rylyns, 372 Md. at 546 (describing illegal spot zoning). 22 Zoning and Planning § 4:8 (4th ed. rev. 2023) (“Rathkopf”) (citing Woodward & Lothrop, 280 Md. 686 ); see also Anderson House, 402 Md. at 719 n.23 (comparing the Equal Protection clause analysis to uniformity analysis). Spot zoning cases, which typically involve uniformity or uniformity-like challenges to piecemeal rezonings, are also instructive.20 See, e.g., Cassel v. Mayor of Balt., 195 Md. 348 (1950); Hewitt v. Cnty. Comm’rs of Baltimore Cnty., 220 Md. 48 (1959). We may consider direct and circumstantial evidence, including “the historical background of the decision under [legislative] challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by the members of the decisionmaking body.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (describing the standard of review in an equal protection challenge).

Regulations that draw classifications between properties within a zone are, as a general matter, permissible. The leading cases in Maryland’s limited uniformity case law provide that such regulations do not violate uniformity when “reasonable and based upon the public policy to be served,” Woodward & Lothrop, 280 Md. at 720 , and when “similarly situated properties are treated the same[,]” Anderson House, 402 Md. at 715 . 20 “Spot zoning occurs when a small area in a District is placed in a different zoning classification than the surrounding property[.]” Rylyns, 372 Md. at 546 (quoting Tennison v. Shomette, 38 Md. App. 1, 8 (1977)). 23 Public Purpose Two of our leading uniformity cases present examples of regulations based upon valid public purposes, that is, “the public policy to be served.” Woodward & Lothrop, 280 Md. at 720 . In Woodward & Lothrop, we upheld regulations discriminating between properties in the same zone based on size and the year that the use began, when those regulations furthered “the legislative purpose of encouraging land assembly to permit cohesive development and to assure open spaces and other amenities[.]” Id. at 721 . And in Anderson House, we found that regulations tailored to existing property conditions— which, in effect, created classifications—helped “avoid[] the need for a race to obtain variances lest existing developed properties become nonconforming,” 402 Md. at 719 , “minimiz[ed] the impact of businesses on adjacent residential properties,” id. at 725 n.26, and “preserv[ed] the residential character of the existing structures and lots,” id.

In contrast, zoning regulations have been held invalid when they lack a public purpose. In Cassel v. Mayor of Baltimore, we invalidated the rezoning of a single property in a larger residential zone because the sole purpose of the rezoning was to allow the property owner to operate a funeral home, not to satisfy any apparent public need. 195 Md. at 358 (finding little local demand for funeral homes, three existing funeral homes within a close distance, and proximity to a commercial district where the funeral home could have operated instead). Similarly, in Hewitt v. County Commissioner of Baltimore County, we struck down a zoning map amendment reclassifying two properties in a large residential area to business zoning when the only evidence of a public benefit was a vague, speculative notion of serving travelers from a nearby expressway. 220 Md. at 62-63 . 24 The requirement that there be a valid public purpose promotes uniformity by protecting against mere favoritism toward particular parties. For example, in Board of County Commissioners of Washington County v. H. Manny Holtz, Inc., the Appellate Court invalidated the piecemeal rezoning of a property because the Washington County Board of County Commissioners (the “Board”) had, merely to appease certain neighbors, restricted the allowable uses of the property as a condition of approval. 65 Md. App. 574, 576-77 (1985); see also Benner v. Tribbit, 190 Md. 6, 20 (1948) (describing invalid zoning regulations, broadly, as “arbitrary permission to A and prohibition to B to use their own property, at the pleasure of neighbors or at the whim of legislative or administrative agencies”); Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 130 (1972) (discussing an invalidated ordinance where “the sole basis for [different treatment] was a ‘plebescite [sic] of neighbors’ without any supporting evidence that related to the public health, comfort, safety or welfare []”).

Here, CB-17 furthers a public purpose by incentivizing the redevelopment of land currently used for a nonconforming and dangerous airport. Eliminating the risk of plane crashes, particularly in a residential area, without question furthers an interest in public safety, and Concerned Citizens has not argued otherwise. Moreover, some constituents and at least one local association supported CB-17 because they expected townhouse development would benefit the local economy. The Council was presented with the following arguments and information, which together make up a “state of facts reasonably [] conceived that would sustain” the Council’s 25 enactment of CB-17.

See Anderson House, 402 Md. at 724 (quoting Edgewood Nursing Home v. Maxwell, 282 Md. 422, 427 (1978)). 1. A history of crashes and fatalities relating to aircraft taking off or landing at the Freeway airport. This record included detailed maps in the record showing crash events—some fatal—and testimony from the owners of the airport. 2. Testimony from an employee of the Freeway airport describing the risks presented by nearby transmission lines and residences. 3.

A history of the County’s past efforts to mitigate crashes involving aircraft from the Freeway airport (and other airports), the harms from which were exacerbated by the growth of nearby housing developments. The County’s efforts included studies and implementation of safety regulations. 4. Support from some residents and members of the Chamber of Commerce on the grounds that development of townhouses would provide economic benefits and that continued use of the property as an airport would be inappropriate. Additionally, the elimination or mitigation of nonconforming uses is, as a general matter, a valid public purpose.21 Trip Assocs., 392 Md. at 573 .

That is because nonconforming uses are, by definition, incompatible with the zone in which they are located and thus reduce uniformity. Cnty. Council of Prince George’s Cnty. v. E. L. Gardner, Inc., 293 Md. 259, 267 (1982) (“[N]onconforming uses pose a formidable threat to the success of zoning” because they “limit the effectiveness of land use controls, . . . imperil the success of the community plan, and injure property values.”). For instance, we have upheld as a proper exercise of the police power a regulation that phased out all 21 Concerned Citizens did not argue before the circuit court or Appellate Court that discontinuing a nonconforming use, either as a general matter or as applied here, is not a valid public purpose.

The question did not even arise until the Appellate Court held that CB-17’s effort to eliminate a nonconforming use did not overcome the uniformity challenge. Concerned Citizens, 255 Md. App. at 126-27. 26 nonconforming junk yards within two years. Shifflett v. Baltimore County, 247 Md. 151, 154 (1967). Here, the Freeway airport has been a legal nonconforming use since 1968, when the mostly rural area was first zoned as R-A. Moreover, the airport has become, over time, even less practically suited to the increasingly suburban area.

The circumstances here contrast with those in Cassel, 195 Md. 348 , and H. Manny Holtz, 65 Md. App. 574 , where we invalidated regulations that reduced uniformity. In Cassel, we invalidated the rezoning of a property located in an established residential neighborhood that had previously been used as a residence. 195 Md. at 357-58 . The property had been rezoned to commercial use to allow the owner to run a funeral home. Id.

That is not a use most people would call “in harmony with” a residential area. Id. at 355 . In H. Manny Holtz, a property owner sought a rezoning of his property from residential to business to operate a convenience store. 65 Md. App. 574 . There, the Board, in its legislative capacity, had already established the appropriate uses for the business zone, which included a convenience store use.

Id. at 577 n.1, 583 n.3. Subsequently, the Board, in its quasi-judicial capacity, restricted the uses of only the applicant’s property to prohibit convenience store use. Id. at 577 .22 Thus, the Board’s action not only deviated from the zoning ordinance, but reduced uniformity. Moreover, the Board stripped the property owner of a use to which he was otherwise entitled.

In contrast, the Council here, in its legislative capacity, passed a text amendment that determined in the first instance the 22 The Appellate Court also said that because the Board had already legislatively designated the permitted uses in the zone, “the exclusion of any one or more uses by the County Commissioners in its quasi-judicial capacity [was] a usurpation of the legislative function.” H. Manny Holtz, 65 Md. App. at 583 n.3. 27 possible uses in the R-A Zone and could be seen as increasing uniformity by encouraging an out-of-place airport to redevelop as housing in a largely residential area.23 Concerned Citizens, having failed to argue that decommissioning the Freeway airport, or any other similar airport, has no valid public purpose, instead has presented evidence of public opposition to CB-17. Indeed, dozens of community members and other public officials opposed higher-density housing development at the Freeway airport. But Concerned Citizens conflates public sentiment with public purpose. Our duty is not to weigh public opinion or debate public policy, but to determine only whether specific legislation reasonably serves a public purpose.

Concerned Citizens argues that any of the ostensible public purposes for CB-17, even if valid on their face, are mere pretext for favoritism toward Freeway Airport. In doing so, counsel for Concerned Citizens acknowledged to the circuit court that the Council, in enacting CB-17, expressed a concern for public safety: I mean, come on. How can the District Council. . . not understand and accept all of this nonsense about how dangerous the airport is[?] Yes, maybe the airport is dangerous. Maybe when it started in the ‘40s, it was in the middle of nowhere. 23 Nor does this case present the same risk of “emasculat[ing] the uniformity requirement,” see H. Manny Holtz, 65 Md. App. at 584 , as in Cassel and H. Manny Holtz.

In those cases, the courts feared that upholding the challenged regulations could be “an opening wedge for other enterprises,” Cassel, 195 Md. at 358 , and encourage the “piecemeal proliferations [sic] of [] mini-districts [,]” H. Manny Holtz, 65 Md. App. at 584 . We see little risk that CB-17 will push Prince George’s County down a slippery slope into zoning chaos. If anything, CB-17 is just another ordinance in a long line of exceptions, carveouts, and workarounds to Prince George’s County’s antiquated zoning ordinance (the Old Zoning Ordinance). Indeed, the enactment of the New Zoning Ordinance was largely motivated by a desire to streamline zoning and do away with such exceptions. 28 Concerned Citizens claims, however, that the Council’s concern was either disingenuous or induced by Freeway Airport through improper means, and that the real driver of CB-17 was “development, money.” Concerned Citizens has repeatedly alleged the existence of an illegal or unethical relationship between the Council and Freeway Airport.

The Appellate Court appeared to share this view, expressing concern with what it perceived as a “worrisome dynamic between public and private interests.” Concerned Citizens, 255 Md. App. at 126. According to the Court, the Council appeared to have bestowed a “mere favor” upon Freeway Airport, id. at 125-26, enacting CB-17 “merely to accommodate private interests detrimental to the welfare of other property owners in the same district[,]” id. at 126 (quoting Page v. City of Portland, 165 P.2d 280, 283 (Or. 1946)). In this vein, the Appellate Court questioned the credibility of the public safety interest in closing the Freeway airport, citing the airport’s “[i]ncongruous[]” plan to intensify operations if unable to develop higher-density housing. Id. at 122.

Concerned Citizens has not, however, identified evidence of favoritism toward Freeway Airport, instead merely insinuating that developers have contributed to the election campaigns of councilmembers. The record provides no reason to think the Council would not have passed CB-17 if some other party owned or intended to develop the airport. The only specific example of impropriety we have discerned in the record is the allegation by nearby residents that the developer used misleading tactics to solicit support for the proposed development. Concerned Citizens has not shown, however, how the developer’s 29 actions implicate the motives of the Council in enacting CB-17.24 And, that Freeway Airport’s plans under one scenario might conflict with the public safety interest does not undermine the public safety interest in closing the airport.

If anything, Freeway Airport’s alternative plan to intensify flight operations could reasonably heighten that interest.25 Nor are we moved that Freeway Airport pushed the Council to adopt CB-17 by raising the undesirable prospect of increased airport operations. See Concerned Citizens, 255 Md. App. at 126 (remarking that the airport owners leveraged their “allegedly dangerous” airport to “bull[y]” the Council into enacting favorable legislation). Whether 24 In any event, the Council was made aware of these allegations at public hearings. 25 The Appellate Court also contended that the Council lacks authority to make land use policy relating to airport safety, reasoning that regulation of airport safety is the domain of the State. Concerned Citizens, 255 Md. App. at 122-23.

We disagree. The Council did not purport to enact an airport safety policy. This was merely a text amendment to encourage the decommissioning of an airport, which was squarely within the Council’s domain. Moreover, though the State is indeed responsible for many aspects of airport regulation, that authority does not preclude political subdivisions from establishing airports and enacting certain regulatory measures to promote their safety.

State law explicitly allows political subdivisions to establish airports, Md. Code. Ann., Transp. (“TR”) § 5-416 (1977, 2020 Repl. Vol.), encourages them to adopt zoning regulations to eliminate airport hazards, TR § 5-602, and affords them authority to “adopt, under its police power, airport zoning regulations to protect the aerial approaches of [a]ny airport not owned by this State,” TR § 5-604(a).

See also Rathkopf § 85:3 (“State courts generally have rejected implied state preemption claims based on state licensing or regulation of pilots or aircraft, or control of other aspects of airport development and operation.”) (footnote omitted). In fact, Prince George’s County has already used zoning regulations to promote airport safety. The County established Aviation Policy Areas “to establish a standard of safety and compatibility for the occupants of land in the immediate vicinity of airports[.]” PGCC § 27-548.32; see also PGCC § 27, Part 10B. These areas are subject to detailed regulations, covering everything from development density to the proliferation of birds that might interfere with flight paths.

PGCC § 27-548.38. 30 the operative word is “bullied,” “pressured,” “persuaded,” “influenced,” or “encouraged,” the result is the same. That Freeway Airport, a private company, presented the Council with two options—including one at odds with the public interest—does not evidence corruption, but a business decision. Even if the Council conceded more than what was necessary to incentivize redevelopment of the property, such miscalculation does not sustain a uniformity challenge. Accountability for any such error in judgment must come from the voters, not the courts.

Facial Neutrality Concerned Citizens asks us to infer, as the Appellate Court appears to have done, that the Council improperly favored Freeway Airport simply because CB-17 is “site-specific,”26 “tailored” in an “excruciatingly detailed” manner to “single out” the Freeway airport without mentioning it by name. Concerned Citizens thus asks us to look beyond the facial neutrality of CB-17 to the reality of its practical application. Freeway Airport, on the other hand, argues that facial neutrality is the only requirement to survive a uniformity challenge, understanding Anderson House to require only that the same terminology apply to all properties in a zone. Freeway Airport finds support in our statements there that “uniformly applicable regulations that produce disparate results in application do not violate the uniformity requirement,” Anderson 26 In this context, we understand the term “site-specific” to mean affecting one or just a few properties.

Though the term is used broadly in the zoning context, see Rathkopf § 60, the term does not appear to have any basis in Maryland uniformity law, as it is absent from our key uniformity cases. See, e.g., Anderson House, 402 Md. 689 ; Woodward & Lothrop, 280 Md. 686 ; H. Manny Holtz, 65 Md. App. 574 ; Rylyns, 372 Md. 514 . 31 House, 402 Md. at 717 ; that “zoning regulations need to be equally applicable,” id. at 719 n.23; and that we focus “upon the terminology of the ordinance, rather than upon its application,” id. at 718 (quoting Woodward & Lothrop, 280 Md. at 720 ). If Freeway Airport is correct, CB-17 is valid because, regardless of the results, it is facially neutral. Facial neutrality, though relevant to our analysis, is not, on its own, a sure defense to a uniformity challenge.

See Church of the Lukumi Babalu Aye, 508 U.S. at 534 (holding, in an equal protection context, that facial neutrality is not determinative when evaluating claims of improper discrimination). Rather, regulatory classifications must “be founded in real and not feigned differences having to do with the purpose for which the classes are formed.” Rumson Ests., Inc. v. Mayor of Fair Haven, 828 A.2d 317, 330 (2003) (emphasis added) (quoting Roselle v. Wright, 122 A.2d 506, 511 (N.J. 1956)). Otherwise, legislators could circumvent the uniformity requirement with clever drafting. Indeed, facial neutrality in Woodward and Anderson House was not enough to survive a uniformity challenge—we also required a showing of a reasonable relationship to a public purpose and equal treatment of similarly situated properties.

Moreover, courts in the out-of-state cases that we reviewed in Anderson House required the same showing. 402 Md. at 714 -15 (citing Rumson Ests., 828 A.2d 317 and Harris v. Zoning Comm’n of New Milford, 788 A.2d 1239 (Conn. 2002)). We distinguished the regulations in those cases from ones that did not further the public welfare, which were consequently invalidated. Anderson House, 402 Md. at 725 n.26 (citing Hamer v. Town of Ross, 382 P.2d 375 (Cal. 1963) and C & M Devs., Inc. v. Bedminster, 820 A.2d 143 (Pa. 2002) and Nat’l Land and Inv. Co. v. Kohn, 215 A.2d 597 (Pa. 1965)). 32 “Site-Specific” Concerned Citizens argues that CB-17 is invalid because it is too site-specific.

Concerned Citizens highlights not only the narrowly drafted qualifying criteria, but also what the Dissent calls the “very limited shelf life” of CB-17. Dissenting op. at 9, 45, 71. Concerned Citizens and the Dissent contend that the Council, aware that the previously enacted New Zoning Ordinance would soon take effect, not only understood the Freeway airport to be the sole qualifying property at that time, but likely for all time. Dissenting op. at 9 (“[CB-17] did not have any prospective application beyond the Freeway Property.”); id. at 65.

The record is not clear, however, that other properties—including non-airport properties qualifying under the property size criterion—could not have developed under CB-17 between its effective date of January 4, 2020, and the effective date of the New Zoning Ordinance, April 1, 2022. When the Council considered CB-17, the effective date of the New Zoning Ordinance was unknown, as it was contingent upon the Council’s adoption of the countywide sectional map amendment—an outcome which, at the time, was not itself guaranteed. Indeed, the sectional map amendment was not enacted until April 1, 2022. See note 9, supra.

In other words, CB-17 was in effect for more than two years, during which time other property owners could have sought to develop under the ordinance. Nonetheless, for purposes of our analysis, we proceed as if the Council, in enacting CB-17, intended to reach only the Freeway airport and believed it would be the only property to ever qualify under, and take advantage of, CB-17. 33 We do not think that a regulation’s “site-specific” intent or effect alone sustains a uniformity violation. That a regulation affects only one or a few properties, though relevant to our uniformity analysis, is not dispositive. See Rylyns, 372 Md. at 543 -44 (quoting Collard v. Village of Flower Hill, 421 N.E.2d 818, 821 (N.Y. 1981) (“[Z]oning is not invalid per se merely because only a single parcel is involved or benefitted[.]”)); id. at 546 (explaining that spot zoning is not per se invalid).

For example, the piecemeal rezoning in Cassel was invalidated not because it affected one property—which is the definition of piecemeal rezoning—but because it discriminated between similarly situated properties without good reason. 195 Md. at 357-58 . This proposition holds not only when regulations inadvertently affect only one or a few properties, but even when a zoning authority deliberately targets a particular property or properties. See Rockville Fuel & Feed, 266 Md. at 130 (upholding a text amendment challenged on equal protection grounds even though it was enacted for the sole purpose of thwarting the construction of a specific concrete mixing plant). That a legislature may contemplate a specific property does not prove the absence of a public purpose, or arbitrary or invidious discrimination; we do not require legislatures to conceive of legislation “as an abstraction” without any actual properties in mind.

MBC Realty, 192 Md. App. at 236 . And though Concerned Citizens portrays the Council’s “site-specific” efforts as alarming, such amendments are not unusual and are often initiated by private interests.27 27 See O’Donnell v. Basslers, Inc., 56 Md. App. 507 (1983) (owner of a private airfield seeking to develop a commercial airport and who successfully petitioned the zoning board for a text amendment allowing commercial airports in certain zones); MBC Realty, 192 Md. App. at 223-26 (noting that “every conditional use that has been added to the 34 For example, in MBC Realty, LLC v. Mayor of Baltimore, the City Council of Baltimore enacted a text amendment, at the express request of a development company, allowing new billboards in the “B-5” zone only on publicly owned stadiums and arenas, knowing that only the First Mariner Arena would be eligible. 192 Md. App. at 226 & n.5, 235-36. Immediately after, the City Council granted the conditional use to that arena. Id.

Though the text amendment was not challenged on uniformity grounds, the Appellate Court rejected the challengers’ argument that the circumstances proved favoritism and a lack of public purpose, holding that we “[do] not impose a [] knowledge limitation upon the legislative act.” Id. at 236 . Thus, the Appellate Court upheld a text amendment solicited by a private interest and targeting one property both in intent and effect. Moreover, as with CB-17, only one property would ever likely qualify under the text amendment, given that the text Baltimore City Zoning Code since 1971 has been effectuated by means of a text amendment”). Other times, opponents of development or certain uses seek “site-specific” text amendments to restrict uses by others.

See Rockville Fuel & Feed, 266 Md. at 119-23 (text amendment prohibiting concrete manufacturing that the City of Gaithersburg enacted as an emergency measure just one day before the plaintiff property owner sought final approval for a special exception to construct and operate a concrete manufacturing plant); Free State Recycling Sys. Corp. v. Bd. of Cnty. Comm’rs for Frederick Cnty., Md., 885 F. Supp. 798 (D. Md. 1994) (zoning board that sought to close a recycling facility with a text amendment that would impose impossibly burdensome regulations on the facility). For example, citizens thwarted Costco’s plans to install a large gas station at the Westfield Wheaton Mall by persuading the Montgomery County Council, on two separate occasions, to pass text amendments requiring greater distance between large gas stations and nearby communities.

Bill Turque, Wheaton Costco Gas Station Nixed by Montgomery Planning Board, WASH. POST, Mar. 1, 2013; Bill Turque, Costco Loses Latest Round in Fight to Open Big Gas Station at Wheaton Mall, WASH. POST, Dec. 21, 2015; MONTGOMERY COUNTY, MD., ZONING ORDINANCE § 59-3.5.13.C (2023). 35 amendment applied only to publicly-owned stadiums and arenas. Yet those circumstances did not give rise to a finding of improper favoritism.

Id.; see also Eutaw Enters., Inc. v. City of Baltimore, 241 Md. 686, 696 (1966) (upholding ordinances that the City Council knew would only affect one commercial check casher because the ordinances were general in application and applied equally to similarly situated properties). Finally, we note that the “painstakingly specific” tailoring to which Concerned Citizens points as evidence of favoritism toward Freeway Airport was prompted in part by opposition to higher-density housing on other properties. For instance, at the request of the President of the Woodmore Homeowner’s Association, the Council passed a narrowing amendment to ensure that the Hidden Pond parcel in Woodmore would not qualify for higher-density housing. Similarly, the provision requiring a minimum acreage of 100 acres was proposed not by Freeway Airport but by an outspoken critic of CB-17, Councilmember Dernoga, to “further limit the number of [qualifying] properties.” Councilmember Dernoga had also proposed, unsuccessfully, to reduce the proximity to electrical infrastructure requirement from 2,500 feet to 2,000 feet—again, to limit the number of qualifying properties.

Thus, at least some of the “painstakingly specific” tailoring of which Concerned Citizens complains arose not out of demands by Freeway Airport but, ironically, out of concerns by others that non-Freeway airport properties might qualify for higher-density development. 36 Similarly Situated Properties A finding that a regulation furthers a public purpose does not mark the end of our uniformity analysis. We also examine how the regulation operates, specifically whether it discriminates between properties in a reasonable manner. Woodward & Lothrop, 280 Md. at 720 (“reasonable and based upon the public policy to be served” (emphasis added)). It is worth repeating that discrimination between properties within a zone, i.e., regulatory classification, is not per se prohibited.

We held in Anderson House that “[t]he crux of the [uniformity] requirement is only that similarly situated properties are treated the same under the zoning regulations,” 402 Md. at 715 (emphasis added), observing that “[m]any jurisdictions agree that the kind of discrimination violative of the uniformity requirement occurs when a zoning ordinance singles out a property or properties for different treatment than others similarly situated,” id. at 714 (emphasis added). A regulation that discriminates between similarly situated properties is invalid. What it means for properties to be “similarly situated” is central to understanding the apparent disconnect between the parties’ arguments, and between ours and the Dissent’s. Concerned Citizens assumes that all properties in the R-A Zone are, by definition, similarly situated and that site-specific classification within the zone thus violates uniformity.

Just because properties are within the same zone, however, does not make them similarly situated; zoning categories are not determinative. Rylyns, 372 Md. at 593 (Cathell, J., dissenting) (quoting Sweetman v. Town of Cumberland, 364 A.2d 1277, 1288 (R.I. 1976)) (establishing, in a conditional use challenge, that “[o]wners of property in the same land-use category are not necessarily ‘similarly situated’ so that they must be 37 treated identically under the equal protection clause. . . . [T]wo parcels may have been classified at different times when the needs of the municipality differed. Different pieces of property [in the same zone] may also have physical characteristics which differ enough to require some minor differences in use restriction[.]”).28 Properties are similarly situated when there is no reasonable basis to treat them differently; regulations thus violate uniformity when they discriminate between properties unreasonably. See Anderson House, 402 Md. at 714 (discussing N.T. Hegeman Co. v. Mayor of River Edge, 69 A.2d 767 (N.J. 1949), where the setback requirement that was invalidated applied to only one block of a business district without any apparent reason for disparate treatment); id. at 715 (discussing Veseskis v. Bristol Zoning Comm’n, 362 A.2d 538 (Conn. 1975), where the invalidated ordinance applied only in one specific instance, but not in other instances presenting the same circumstances); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (invoking the concept of “similarly situated” in an equal protection claim).

For example, as we cited in Anderson House, 402 Md. at 715 n.21, a Wisconsin court struck down, on uniformity grounds, an ordinance exempting one of four parcels in the same zone from obtaining a permit for a rendering plant because the exemption was “not based upon substantial distinctions which make the operation of a rendering plant and packing plant in one area of the industrial district different from any other areas in the industrial district,” Boerschinger v. Elkay Enters., Inc., 145 N.W.2d 108, 110-11 (Wis. 1966). 28 Conversely, just because properties are zoned differently does not permit invidious discrimination between properties. Rathkopf § 4:8. 38 In Anderson House, we upheld zoning regulations that discriminated between properties based on size and produced different—and even unique—results. 402 Md. at 720 . In doing so, we, by implication, held that properties of different sizes were not similarly situated and could thus be treated differently under the regulations. Similarly, in Woodward & Lothrop, we upheld density regulations based on property size, thus recognizing properties 22,000 square feet or larger as not similarly situated to smaller properties. 280 Md. at 721 .

We did the same for the compliance requirements there, which differed according to whether the use of the property began before or after January 1, 1959. Id. at 722-23 .29 29 The Dissent distinguishes CB-17 from the valid regulations in Anderson House, Woodward & Lothrop, and MBC Realty, on the grounds that those cases involved original and comprehensive zoning or text amendments having “general application” in a zone. Dissenting op. at 7-8, 35 & n.15. By “generally applicable,” we understand the Dissent to be describing regulations affecting many properties broadly, even if they produce different or unique results among properties in the zone.

See Dissenting op. at 31, 34-36; see also Anderson House, 402 Md. at 715 . The Dissent distinguishes between “generally applicable” regulations and those which target a property or properties. Dissenting op. at 7-8, 34-36. Council Bill 17, the Dissent contends, is invalid because, as applied, it affects only one property, even if the entire body of regulations applying to the R-A Zone are facially neutral and apply uniformly.

Dissenting op. at 7-10, 34-36, 41. As an initial matter, in our view, the Dissent misconstrues the text amendment held valid in MBC Realty, 192 Md. App. 218 , as having “general prospective application[.]” Dissenting op. at 35 n.15. There, the City Council of Baltimore enacted Ordinance 03-514, at the explicit request of a development company, to “amend[] the text of the Zoning Code to create for the B-5 district a conditional use for new billboards on publicly owned stadia and arenas[.]” MBC Realty, 192 Md. App at 226 & n.5. The City Council knew that only the First Mariner Arena would be eligible for the conditional use.

Id. at 226, 235-36 . That does not strike us as a text amendment having “general application.” Instead, Council Bill 17 stands out for how transparently the Council targeted the Freeway airport, as manifested by the legislative history. That seems to be, at heart, what the Dissent takes issue with. Dissenting op. at 9-10 (“[T]he legislative record in this case 39 Perhaps hypotheticals will help.

Imagine two identical, adjacent single-family houses. A regulation, with narrowly drafted and facially neutral terms, allows House A to install a backyard swimming pool, but not House B. The owner of House B could argue that the regulation violates uniformity because his property is similarly situated to his neighbor’s and, yet, his property is treated differently. Or, under the circumstances here, imagine a property in an R-A Zone that was formerly used as an airport, has freeway frontage, and is within one mile of a municipality, but fails to qualify for higher-density development under CB-17 because it is 3,000 feet from the nearest electrical infrastructure rather than entirely within 2,500 feet, as CB-17 requires. The owner of that property could argue that the regulation violates uniformity because the property is similarly situated to the Freeway airport and yet is excluded because of the 2,500-foot requirement.

At that point, the Council would have to explain why the 500-foot difference between 3,000 feet and 2,500 feet is reasonable and based in public contains a robust discussion among the decisionmakers that reflects a clear and unmistakable intent to draft criteria that would apply only to the Freeway Property.”). Transparency, however, should not count as a demerit in a uniformity analysis. Indeed, transparency seems to be the antidote to the Dissent’s concern that our holding will encourage landowners to secure favorable text amendments through ex parte communications with local elected officials. Dissenting op at 68.

But enacting a text amendment requires much more than obtaining the sponsorship of a single elected official. In Prince George’s County, enacting a text amendment requires a public hearing with adequate notice to the public. PGCC § 27-216. The proposed amendment must be referred to the Planning Board for comments and a recommendation.

PGCC § 27-217. Moreover, an amendment generally requires multiple readings and consideration by the appropriate standing committee. See THE CNTY. COUNCIL RULES OF PROC.

(CNTY. COUNCIL FOR PRINCE GEORGE’S CNTY., MD. JULY 2020). A text amendment requires a majority vote of the full Council, PGCC § 27-218. 40 policy.

If the Council lacks a credible explanation, then that regulation would evince the sort of arbitrariness or favoritism characteristic of a uniformity violation. Here, CB-17 discriminates between properties, but Concerned Citizens has not shown that CB-17 discriminates between similarly situated properties. Concerned Citizens has not identified any actual, or even hypothetical, properties similarly situated to the Freeway airport that the qualifying criteria of CB-17 excluded from higher-density development opportunities.30 This comes as little surprise, as there are presumably few, if any, properties in the R-A Zone that reasonably resemble the Freeway airport. Instead, Concerned Citizens assumes that all R-A Zone properties are, by definition, similarly situated.

Not only is that assumption legally erroneous, see Rylyns, 372 Md. at 593 (Cathell, J., dissenting), but it is practically flawed, for many other existing properties in the R-A Zone are very different from the airport. For instance, the properties featuring single-family detached residences in nearby Waterford Estates are wholly different, practically speaking, from the 129-acre airport property, and treating them differently does not offend our sense of fairness. Concerned Citizens has not argued that any of the qualifying criteria of CB-17 are unreasonable, i.e., that they discriminate between similarly situated properties or are not “based upon the public policy to be served.” Woodward & Lothrop, 280 Md. at 720 . As 30 Nor does the Dissent.

Instead, the Dissent appears to incorrectly shift the burden to Freeway Airport, pointing out that Freeway Airport failed to identify any other properties qualifying under CB-17 that would have showed that CB-17 had “general application.” Dissenting op. at 7 (“Although the Majority alludes to ‘similarly situated properties,’ neither the Majority, nor Freeway identify any.”); id. at 63-64 n.30. 41 previously noted, that topic arose only when the Appellate Court questioned Freeway Airport during oral argument. The Court then took it upon itself to evaluate the reasonableness of those criteria, finding that the requirements of proximity to a municipal boundary and freeway frontage could reasonably relate to a public interest, but that the requirement of proximity to electrical infrastructure and the provision making eligible former airport property do not. Concerned Citizens, 255 Md. App. at 125-26 & n.16. We disagree with how the Appellate Court analyzed the qualifying criteria.

The Court evaluated each criterion of CB-17 in a vacuum, focusing on the “site-specific” nature of each rather than the broader purpose of encouraging the closure of the Freeway airport and any other nonconforming airport presenting similar public safety risks, to the extent one exists. When viewed in this light, the qualifying criteria are “reasonable and based upon the public policy to be served.” Woodward & Lothrop, 280 Md. at 720 . Nearby highways, population centers, and transmission lines are the safety hazards at the Freeway airport. That these features are not uniquely hazardous at Freeway Airport, but other airports too, bolsters that finding.

Moreover, the Council could have reasonably concluded that higher-density housing, though generally inappropriate in the R-A Zone, is appropriate near existing highway transportation, electrical infrastructure, and population centers. The Appellate Court also seized upon the clause making eligible properties formerly used as airports, finding that it lacked a public purpose and was included only to select the Freeway airport, while finding the qualifying criterion of property size reasonably based upon public policy. Concerned Citizens, 255 Md. App. at 126. But identifying airport 42 property, and the Freeway airport specifically, is the public purpose here, and, if anything, the qualifying criterion based on property size is the peculiar provision.

Concerned Citizens speculates that the property size criterion was drafted to make CB-17 look less “site-specific”31 and that the former airport provision was subsequently reintroduced either to (1) bolster CB-17’s ostensible public purpose of decommissioning unsafe airports or (2) allow Freeway Airport to develop fewer than one hundred acres. The first possibility is irrelevant, as CB-17 indeed furthers a public policy of retiring a hazardous, nonconforming airport. The second possibility, even if true, would remain consistent with the aim of encouraging the redevelopment of the Freeway airport by allowing the developer greater flexibility. Again, we assume any reasonably conceived state of facts that would sustain CB-17.

See Anderson House, 402 Md. at 724 . We can reasonably suppose—and, in the absence of contrary evidence, conclude—that the Council sought both to encourage the decommissioning of the Freeway airport and to provide for general housing needs on large properties near existing population centers and infrastructure. For these reasons, we cannot say that the disjunctive requirement of property size or former airport use is so unreasonable as to violate uniformity. 31 That the Council drafted CB-17 to appear less “site-specific” by including other assemblages of properties, in addition to airports, does not change the fact that CB-17 was designed, as its critics contend, to target the Freeway airport. The Council’s effort to make CB-17 more legally defensible by broadening its potential application is not, however, a sufficient basis to invalidate CB-17. 43 CONCLUSION The Council, in enacting CB-17, exercised its authority under the RDA to amend the text of the Prince George’s County zoning ordinance.

LU § 22-104. We afford legislative action a strong presumption of validity, and Concerned Citizens has the “heavy burden of establishing, by clear and affirmative evidence[,]” that CB-17 is invalid. Anderson House, 402 Md. at 723-24 . Consistent with that standard of review and burden of proof, we neither invalidate CB-17 on speculation that the Council acted with improper motives nor transfer the primary burden of proof to Freeway Airport.

Though Concerned Citizens has accurately observed that CB-17 targets the Freeway airport using narrow, site-specific language, Concerned Citizens has not shown that CB-17 lacks a public purpose or discriminates between similarly situated properties. Concerned Citizens has not established that CB-17 discriminates arbitrarily, either by providing examples of similarly situated properties that CB-17 treats differently or by establishing that its qualifying criteria are not reasonably based upon the public policy to be served. See Woodward & Lothrop, 280 Md. at 720 ; Anderson House at 402 Md. at 714-15 . On these grounds, Concerned Citizens’ uniformity challenge falls short.

For these reasons, we reverse the judgment of the Appellate Court and affirm the decision of the District Council. With respect to the issues that Concerned Citizens raised but were not reached by the Appellate Court, our analysis here substantially answers those questions and renders a remand unnecessary. See Md. Rule 8-604(d)(1). JUDGMENT OF THE APPELLATE COURT OF MARYLAND REVERSED.

COSTS TO BE PAID BY RESPONDENTS. 44 Circuit Court for Anne Arundel County Case No.: C-02-CV-20-001850 Argued: February 3, 2023 IN THE SUPREME COURT OF MARYLAND* No. 23 September Term, 2022 PRINCE GEORGE’S COUNTY COUNCIL, et al. v. CONCERNED CITIZENS OF PRINCE GEORGE’S COUNTY, et al. Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Getty, Joseph M., (Senior Justice, Specially Assigned), JJ. Dissenting Opinion by Booth, J., which Fader, C.J. and Watts, J., join. Filed: August 22, 2023 * 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.

Respectfully, I dissent. In this case, we must determine whether the Prince George’s County Council, sitting as the District Council (“District Council”), was acting within its legal boundaries when it enacted CB 17-2019—a legislative zoning text amendment that permitted townhouse uses in certain limited circumstances in the Residential-Agricultural (“R-A”) Zone, a Euclidean zone in the Prince George’s County zoning ordinance that was in effect in 2019. See Town of Upper Marlboro v. Prince George’s County Council, 480 Md. 167 , 180–81 (2022) (explaining the standard of review for agency actions that are deemed to be legislative is limited to assessing whether the agency was acting within its legal boundaries); Maryland Code (2012, 2022 Supp.), Land Use (“LU”) § 22-407(e).1 “Under this ‘legal boundaries’ 1 In this case, it is undisputed that the Prince George’s County Council, sitting as the District Council (“District Council”), was undertaking a legislative act (as opposed to a quasi-judicial act) when it enacted CB 17-2019. The General Assembly has provided for judicial review of a District Council’s decision pursuant to Maryland Code (2012, 2022 Supp.), Land Use (“LU”) § 22-407(e), authorizing courts to: (1) affirm the decision of the district council; (2) remand the case for further proceedings; or (3) reverse or modify the decision if substantial rights of the petitioner have been prejudiced because the district council’s action is: (i) unconstitutional; (ii) in excess of the statutory authority or jurisdiction of the district council; (iii) made on unlawful procedure; (iv) affected by other error of law; (v) unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or (vi) arbitrary or capricious.

Under the statute, a court may reverse or modify the decision of the District Council if the court determines that the district council exceeded its statutory authority. LU § 22- 1 standard, government legislative action will be permitted to stand as long as it was ‘consistent with relevant law.’” Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 393 (2010) (quoting Judy v. Schaefer, 331 Md. 239 , 264–66 (1993)). I. Overview In determining whether the District Council exceeded its legal boundaries in enacting CB 17-2019, we start our analysis with the State enabling statute that confers authority upon the District Council to enact text amendments within Euclidean zones. We begin our discussion with the enabling statute because, “[u]nder Maryland’s constitutional scheme, a local government’s authority to regulate land use may emanate only from the enabling legislation of the General Assembly.” County Council of Prince George’s County v. Zimmer Dev.

Co., 444 Md. 490, 504 (2015) (citations omitted). Indeed, where a local government adopts zoning legislation that is inconsistent with its enabling authority, this Court has not hesitated to hold that it is invalid.2 407(e)(3)(ii). This standard of review is consistent with our case law that describes the scope of our review of legislative actions as assessing whether the legislative body was acting within its legal boundaries. Town of Upper Marlboro v. Prince George’s County Council, 480 Md. 167 , 180–81 (2022); Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 393 (2010). 2 See, e.g., Mossburg v. Montgomery County, 329 Md. 494, 496, 508 (1993) (holding that a provision of the Montgomery County zoning ordinance that required special exceptions to be granted by a “supermajority” vote was not “expressly authorized by the General Assembly in the zoning enabling statute” and was therefore invalid); Richmark Realty Co. v. Whittlif, 226 Md. 273, 276 , 285–86 (1961) (invalidating an ordinance that purported to waive a zoning provision prohibiting the construction of a filling station within 300 feet of a park because it was arbitrary and discriminatory). 2 A. The Enabling Statute and the Uniformity Requirement It is undisputed that the R-A Zone is a Euclidean zone.

The applicable State enabling statute requires that zoning laws enacted by the District Council for traditional Euclidean zones “shall be uniform for each class or kind of development throughout a district or zone.” LU § 22-201(b)(2)(i) (emphasis added). If the zoning text amendment violates the “uniformity” requirement of the enabling statute, it is invalid. Although there is not a lot of case law on the uniformity requirement, courts consistently find the requirement violated in at least one scenario. That scenario “occurs when a zoning ordinance singles out a property or properties for different treatment than others similarly situated.” Anderson House, LLC v. Mayor & City Council of Rockville, 402 Md. 689, 714 (2008) (emphasis added).

In Anderson House, this Court explained that “the uniformity requirement demonstrates that . . . discrimination in favor of, or against, particular properties . . . will not be tolerated.” Id. at 717 . In this case, we must determine whether the text amendment enacted by CB 17-2019 violates the uniformity requirement. By way of brief background, it is helpful to review CB 17-2019’s provisions and the facts about the property at the center of this case, the Freeway Property. B. CB 17-2019 Prior to the enactment of CB 17-2019, townhouses were not permitted in the R-A Zone.

The text amendment enacted by CB 17-2019 permitted townhouses to be constructed at a density of up to 4.5 dwelling units per acre in “certain circumstances.” Those circumstances are that the townhouses could be constructed “on an assemblage of adjacent properties” that: (1)(a) is no less than 100 acres and no more than 150 acres in 3 size, or (b) “was formerly used as an airport”; (2) is located entirely within one mile of a municipal boundary; (3) is located “entirely within 2,500 feet of land owned by a regulated public utility and used for purposes of electrical generation, transmission, or distribution in connection with providing public utility service in the County by a regulated public utility”; and (4) “has frontage on a public right-of-way classified as a freeway or higher in the Master Plan of Transportation and is maintained by the State Highway Administration.” C. The Freeway Property The Freeway Property, also known as Freeway Airport, is owned by the Rodenhauser family and is under contract to be purchased by Petitioner Freeway Realty, LLC (“Freeway”), a partnership between St. John Properties, Inc. and the Rodenhauser family. The Freeway Property is located at 3900 Church Road, Bowie, Maryland. Although its mailing address is Bowie, it is located outside Bowie’s corporate limits, but within one mile of the municipal boundary. The Freeway Property consists of multiple separate parcels totaling 129 acres.

It has been used as a general aviation airport since 1947, and its airport use has been a certified nonconforming use3 under the Prince George’s 3 A nonconforming use is a use that predates the adoption of a new zoning ordinance and is inconsistent with it. If a property owner can demonstrate that a use was valid and lawful at the time of the adoption of a new zoning ordinance, the use may be permitted to continue. Trip Assocs., Inc. v. Mayor & City Council of Balt., 392 Md. 563, 573 (2006). The Regional District Act (“RDA”) expressly authorizes Prince George’s County and Montgomery County to recognize the continuation of “lawful nonconforming use[s] that existed on the effective date of a zoning law enacted” within the Regional District.

LU § 22-114. Although the continuation of nonconforming uses is not favored (and local ordinances are strictly construed in order to effectuate the purpose of eliminating nonconforming uses), such uses are nevertheless “‘a vested right entitled to constitutional protection.’” Trip Assocs., Inc., 392 Md. at 573–74 (quoting Amereihn v. Kotras, 194 Md. 591, 601 (1950)). 4 County Zoning Ordinance since 1968. In the 1960’s, a power company that owns an adjacent property installed high-tension lines along the entire western boundary of the Freeway Property. The Freeway Property’s northern boundary runs along U.S. Route 50, and its eastern boundary runs along Church Road, which is a county road.

Before April 1, 2022, the Freeway Property was classified in the R-A Zone under what I refer to as the Old Zoning Ordinance. As part of the enactment of a New Zoning Ordinance and a comprehensive rezoning, the Freeway Property was rezoned to the Agricultural-Residential (“AR”) Zone effective April 1, 2022. Under both the former R-A Zone and the successor AR Zone, the Freeway Property can be developed as a matter of right for single-family residences on two-acre lots. It is undisputed that the Freeway Property fit the criteria contained within CB 17- 2019, and therefore could be developed with townhouses at a maximum density of 4.5 dwelling units per acre—a use and density that were not permitted in the R-A Zone prior to the enactment of CB 17-2019, and which are not permitted in the successor AR Zone.

D. The Parties’ Contentions Respondent Concerned Citizens of Prince George’s County (“Concerned Citizens”) argues that the text amendment violates the uniformity requirement because it is “site- specific” and applies only to the Freeway Property. Concerned Citizens contends that the criteria are “painstakingly specific” to the Freeway Property. In determining whether the text amendment violates the uniformity requirement, Concerned Citizens urges the Court to look not simply at the text of the criteria, but to consider the text within the broader context of the legislative record in this case, including contemporaneous statements by the 5 Bill sponsor, the Bill’s drafter, and a member of the District Council who opposed the Bill, and the various iterations of the Bill that were proposed over the course of seven months. Concerned Citizens contends that the legislative record in this case confirms that the criteria of the text amendment were drafted in a manner to ensure that only the Freeway Property would be eligible for townhouse uses.

Concerned Citizens asserts that the text amendment was discriminatory and site-specific to the Freeway Property, giving it favorable treatment over other similarly situated properties. Freeway argues that the text amendment does not violate the uniformity requirement because “identical terminology . . . applies to all present and future properties in the R-A Zone, including all other properties that potentially qualify under the criteria set forth” in the text amendment. Or, stated another way, Freeway asserts that the text amendment applies “to any eligible R-A zoned property within Prince George’s County.” Freeway points out that, under the uniformity case law, the question is whether the zoning classification “uniformly applies to all qualifying properties using the same exact terminology or whether a property is singled out for discriminatory treatment.” E. Summary of Conclusions The Majority assumes that the Council “intended to reach only the Freeway airport and believed it would be the only property to ever qualify under, and take advantage of,” CB 17-2019. Maj.

Op. at 33. Under the Majority’s theory, the District Council’s action in deliberately targeting the Freeway Property for favorable treatment satisfies the uniformity requirement under state law because the Majority believes that the text amendment did not discriminate between similarly situated properties. Id. at 41 (“Here, CB [17-2019] 6 discriminates between properties, but Concerned Citizens has not shown that CB [17-2019] discriminates between similarly situated properties.”). Although the Majority alludes to “similarly situated properties,” neither the Majority, nor Freeway identify any.

Moreover, an independent review of the record reflects that there are no similarly situated properties. 4 For the reasons set forth more fully herein, I agree with Concerned Citizens that CB 17-2019 violated the uniformity requirement because “by the terms of the legislation[,]” it singles out the Freeway Property “for disparate treatment[.]” Anderson House, 402 Md. at 720 . This is a rare case where zoning text that uses ostensibly facially neutral language was not, in fact, generally applicable because its criteria were pretextual. Together, the criteria serve no purpose other than to identify an individual property. In short, the text was drafted in a manner to ensure that it would apply only to Freeway Property, thereby singling it out.

As I will detail below, the Majority embraces the clear and unmistakable effort on the part of the Bill sponsor to draft a text amendment that purported to have general application, but in fact, singled out a specific property for favorable treatment. Under our case law, as well as the case law from other states, when faced with a uniformity challenge, courts generally interpret the ordinance in question utilizing the same 4 The Majority contends that I am incorrectly shifting the burden to the District Council and, by extension, to Freeway. Maj. Op. at 41 n.30.

I am not. My review of the legislative record in this case confirms Concerned Citizens’ contention that no one— including the Prince George’s County Planning Board—could identify any other property that satisfied the criteria, aside from the Hidden Pond parcel, which was excluded by final legislative amendments after the public hearing closed. Freeway argued to this Court that the amendment applies to other similarly situated properties. That argument is not borne out by the record. 7 principles employed when analyzing equal protection claims.

In the context of equal protection claims, facial neutrality is not dispositive. I would consider the ordinance’s text and also its context in the broader legislative rezoning process that was ongoing in Prince George’s County when the text amendment was being considered, as well as the legislative record, including contemporary statements by the Bill sponsor as he proposed various iterations of the Bill. Starting with the text, the criteria are tailor-made to describe the unique characteristics of the Freeway Property. The Freeway Property falls within CB 17-2019’s size and location criteria.

Other criteria identify the uses being made of the adjacent properties. Although the text amendment uses facially neutral language, its unique set of combined criteria do not in fact apply to “similarly situated properties,” and single out the Freeway Property for disparate treatment. In other words, the legislation was drafted in a manner to ensure that only one property could satisfy the criteria despite the general language utilized by the District Council, in violation of the uniformity requirement. This is confirmed by the broader legislative rezoning.

As discussed in more detail herein, six months prior to the District Council’s consideration of CB 17-2019, it adopted a new zoning ordinance which does not permit townhouse uses in the AR Zone that succeeded the R-A Zone. The new zoning ordinance was expected to become effective upon the completion of a district-wide comprehensive rezoning, which was ongoing when CB 17-2019 came before the District Council. At the time, the Council was aware that the text amendment permitting townhouse uses would have a very limited shelf life. In other words, the District Council knew the text amendment would not have prospective 8 application to “similarly situated properties” beyond the period necessary to complete the ongoing comprehensive rezoning.

Although the Majority acknowledges that the Old Zoning Ordinance was being phased out, it makes no attempt to explain how a text amendment to an old zoning ordinance—that was enacted after the adoption of a new and inconsistent zoning ordinance—could possibly apply to any property other than the Freeway Property. In other words, it did not have any prospective application beyond the Freeway Property. Additionally, the legislative record in this case—including the contemporaneous statements of the Bill sponsor, Bill drafter and a District Councilmember who opposed the legislation, as well as the various iterations of the Bill itself—clearly demonstrate that the criteria were drafted in a pretextual manner to suggest that the text might have general application, but in fact, when read in their aggregate, would apply only to one property— the Freeway Property. Although the Majority purports to review the legislative record, and pays lip service to the notion that, without such a review, “legislators could circumvent the uniformity requirement with clever drafting[,]” Maj.

Op. at 32, that is precisely what occurred here. The Majority condones the conduct that it purports to disavow by refusing to grapple with the pretextual nature of CB 17-2019. As I set forth in more detail below, the legislative record in this case contains a robust discussion among the decisionmakers that reflects a clear and unmistakable intent to draft criteria that would apply only to the Freeway Property. CB 17-2019 singled out the Freeway Property for favorable treatment in violation of the uniformity requirement.

The effect of the text amendment was to permit townhouse 9 uses on only one property within the R-A Zone, which is now the AR Zone under the New Zoning Ordinance. The text amendment was the functional equivalent of an illegal spot zoning of a particular property—the creation of a “mini-district” comprised of the Freeway Property in the R-A Zone—enabling that lone property to be developed for townhouses. Accordingly, I would hold that CB 17-2019 violated the uniformity requirement of the enabling statute and is therefore ultra vires and invalid.

II

Planning and Zoning Laws—Some Background Before turning to the uniformity analysis, it is useful to provide an overview of the planning and zoning tools that the General Assembly has provided to the District Council. If our case law teaches us anything in the area of zoning law, it is that zoning and planning concepts are nuanced and difficult to discuss in a vacuum. Zoning opinions tend to be lengthy for a reason—it is necessary to understand the interrelationship between different zoning tools and the reasons behind them—to consider their correct application. Unfortunately for the reader, this dissenting opinion is no exception A. The Maryland-Washington Regional District Act In November 1970, the citizens of Prince George’s County adopted a charter form of government pursuant to Article XI-A of the Constitution of Maryland.

Prince George’s County v. Thurston, 479 Md. 575, 579 (2022). The legislative branch of the County government—the Prince George’s County Council—is comprised of eleven members, nine of whom are elected from geographic districts and two of whom serve as at-large members. Prince George’s County Charter, Art. III §§ 301, 304. 10 Like all charter counties in Maryland, Prince George’s County has been given planning and zoning authority by the General Assembly. Prince George’s County’s zoning authority primarily emanates from the Maryland-Washington Regional District Act (“RDA”), which is currently codified in Division II of the Land Use Article of the Maryland Code.

Zimmer, 444 Md. at 523–24. “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.” Id. at 524–25 (footnote omitted). The RDA “regulates planning and zoning” within the Maryland-Washington Regional District (“Regional District”), which includes most of Prince George’s County and Montgomery County.5 In Zimmer, we described the statutory delegation of planning and zoning authority within the Regional District as follows: [T]he 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. 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 5 The Regional District encompasses “the entire area of Prince George’s County, except for the City of Laurel as it existed on July 1, 2013.” LU § 20-101(b). 11 authority to other local governmental units or tribunals, subject to limitations as may appear in the RDA. 444 Md. at 525–26 (footnote omitted).

The Maryland-National Capital Park and Planning Commission is an agency of the State that is comprised of a total of ten members—five of whom are residents of Montgomery County and five of whom are residents of Prince George’s County. LU §§ 15-101–15-102. The commission members from each county are designated as “the Montgomery County Planning Board or the Prince George’s County Planning Board, respectively.” LU § 20-201; see also LU § 14-101(b)–(c). The county planning board “is responsible for the planning, subdivision, and zoning functions that are primarily local in scope[.]” LU § 20-202(a)(1)(i).

It has “exclusive jurisdiction over: (i) local functions, including: 1. the administration of subdivision regulations; [and] 2. the preparation and adoption of recommendations to the district council with respect to zoning map amendments[.]” LU § 20-202(b)(1)(i). The district council for each jurisdiction has legislative authority to adopt and amend zoning laws and zoning maps for the portion of the Regional District located within their respective counties. LU § 22-104(a). The RDA also establishes procedures for the amendment of zoning laws and zoning maps, which I discuss in more detail infra.

The land use tools and procedures established in the RDA are not unique to the counties comprising the Regional District. To the contrary, the zoning tools established in the RDA have been around since the establishment of the first zoning laws in this country, and have universal application, not only in Maryland, but in our sister states. 12 B. Local Land Use Tools—Planning, Zoning, and Subdivision Generally speaking, there are three integral parts of land use management: (1) planning; (2) zoning; and (3) subdivision regulation.6 In Wesley Chapel Bluemount Association v. Baltimore County, this Court described these distinct, but complementary components, as follows: Governmental control over land development is effected principally in three ways—through the adoption of (1) master plans delineating the desired uses for all land within the planning area, both for development and for roads, parks, schools, and other public purposes, (2) zoning regulations designed to implement the master plans by placing legal restrictions on the use of land by non-governmental persons and entities, and (3) subdivision and other development regulations designed to ensure that private development of the land is consistent with the applicable master plan and zoning regulations. Although each of these devices has an independent purpose and may be subjected to a separate development and approval procedure, their functions, to some extent, coalesce, in that they are all designed to assure that land development occurs in a manner that is consistent with overall legislative policy and community welfare. 347 Md. 125, 129 (1997) (citing generally Bd. of County Comm’rs v. Gaster, 285 Md. 233 (1979)). The General Assembly has adopted various enabling statutes that authorize local governments to enact local legislation to carry out each of these functions. 1.

Planning Authority The enabling statutes that govern the planning functions for most counties are found primarily in LU §§ 1-401–1-418 and §§ 3-101–3-304, et. seq. Under these statutes, counties and municipal corporations having planning and zoning authority are required to adopt a “comprehensive