Relating to Real Estate

County Council of Prince George’s County, Sitting as the District Council v. Zimmer Development Company, 444 Md. 490 (2015), is a must read for anyone interested in Maryland zoning and planning procedure, and particularly for those concerned about real property located in Prince George’s or Montgomery Counties. Judge Glenn Harrell handed down this decision on August 20, 2015, after he had retired as an active judge on the Court of Appeals; he was recalled for it. The case is 101 pages in length, the first 42 of which discuss the history of zoning and planning in Maryland from 1632 to the present. This is a fine gift for Judge Harrell to leave to the bench and bar.

The underlying facts in Zimmer involve the proposed development of 4.14 acres in Adelphi, Prince George’s County, Maryland, known as the Edwards Property. Zimmer Development Company planned to build a retail center on the Edwards Property with a CVS pharmacy as its anchor. An application was filed in 2004 for a zoning map amendment of the Edwards Property to an L-A-C (Local Activity Zone), a floating zone, with a Basic Plan outlining how the property would be developed. The County Council of Prince George’s County, sitting as the District Council, adopted a zoning ordinance granting the rezoning request subject to certain conditions.

On March 14, 2011 Zimmer filed a Comprehensive Design Plan-1001 and Specific Design Plan-1001 for the Edwards Property, and after a public hearing the staff of the Planning Board recommended their approval with conditions. Then the Planning Board approved the plans subject to comparable conditions.
No party to the proceedings before the Planning Board appealed, but the District Council elected to consider the plans. It held public hearings and remanded the plans to the Planning Board to consider three issues. The Planning Board and its staff considered those issues, and the Planning Board again approved the plans, subject to basically the same conditions.

Again, no party to the proceedings before the Planning Board appealed, but the District Council elected to consider the plans. Neighbors appeared and complained about the loss of trees, increase of traffic, and absence of a new community center. The District Council issued an order of denial, citing 14 reasons for its action.

On appeal to the Circuit Court for Prince George’s County, the decision of the District Council was reversed. That decision was affirmed by the Court of Special Appeals in Cnty. Council of Prince George’s Cnty. v. Zimmer Dev. Co., 217 Md. App. 310 (2014). The Court of Appeals issued a writ of certiorari and affirmed the decision of the Court of Special Appeals.

The Court of Appeals held as follows:

1. When the County Council of Prince George’s County, sitting as the District Council pursuant to the Regional District Act, considers matters that have been decided by the Planning Board approving a comprehensive design plan, a specific design plan, or a specific design plan of a property previously zoned to a comprehensive design zone (a floating zone), it exercises appellate jurisdiction. Like an appellate court, the County Council only has the authority to reverse the action of the Planning Board if there is not substantial evidence to support for the decision of the Planning Board, if the decision of the Planning Board is arbitrary and capricious, or if it is based on an error of law.

2. Once the County Council remanded the matter to the Planning Board to consider certain specified issues and the Planning Board reviewed the matter, the County Council could only reverse the Planning Board based on its treatment of the issues that were identified on the initial remand.

3. A court reviewing the decision of an administrative agency is not required to remand the case for further consideration by the agency if no administrative discretion or function remains and the outcome that has been stated is required by law.

For questions, please contact Ed Levin (410) 576-1900.