Prince George's Co. v. Convenience & Dollar Plus , 238 Md. App. 613 ( 2018 )

County Council of Prince George’s County, Sitting as the District Council v. Convenience
& Dollar Market/Eagle Management Company, No. 1415, September Term 2014, Opinion
by Kehoe, J.
LAND USE – MARYLAND-WASHINGTON REGIONAL DISTRICT ACT –
PRINCE GEORGE’S COUNTY DISTRICT COUNCIL REVIEW OF PLANNING
BOARD DECISIONS
The County Council of Prince George’s County, sitting as the District Council, exercises
appellate rather than de novo jurisdiction when it reviews a decision by the Planning Board
to grant or deny an application for a nonconforming use certification. Deciding whether
something is a nonconforming use is a quintessentially local question, and therefore is
within the Planning Board’s original jurisdiction. See Md. Code Ann., § 20-202(b)(1) of
the Land Use Article; Prince George’s County v. Zimmer Development, 444 Md. 490, 584
(2015).
Circuit Court for Prince George’s County
Case No. CAL 14-04253
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1415
September Term, 2014
____________________________________
COUNTY COUNCIL OF PRINCE
GEORGE’S COUNTY SITTING AS THE
DISTRICT COUNCIL
v.
CONVENIENCE & DOLLAR MARKET/
EAGLE MANAGEMENT COMPANY
____________________________________
Woodward, C.J.,
Kehoe,
Leahy,
JJ.
____________________________________
Opinion by Kehoe, J.
____________________________________
Filed: September 5, 2018
2018-09-05
14:54-04:00
In Prince George’s County v. Zimmer Development, 444 Md. 490, 584 (2015),
the Court of Appeals held that the District Council exercises appellate jurisdiction
when it reviews decisions of the Planning Board approving certain types of site
plan applications, specifically, comprehensive and specific design plans submitted
as part of the development review process for a property located in a comprehen-
sive design zone. The Court further held that, because the Council exercises
appellate jurisdiction, it can reverse a Planning Board decision “only if the Board’s
decision was not supported by substantial evidence, was arbitrary, capricious, or
illegal otherwise[.]” Id.In this appeal from a judgment of the Circuit Court for Prince George ’s County,
we must apply Zimmer’s teachings as to the nature of the District Council’s juris-
diction and the scope of its review to a decision by the Planning Board granting
Convenience & Dollar Plus/Eagle Management Company’s application to certify that the
convenience store operating on its property is a nonconforming use. We will hold
that the District Council exercises appellate jurisdiction when it reviews such de-
cisions by the Planning Board. Because the Planning Board’s decision in the
present case was supported by substantial evidence, and wa s neither flawed by a
legal error nor otherwise arbitrary or capricious, the District Council erred when it
reversed the Planning Board’s decision.
Background
1. An Abbreviated Statutory Overview
The Regional District Act
The primary source of Montgomery and Prince George’s Counties’ authority to
engage in land use regulation is the Maryland-Washington Regional District Act
(the “RDA”). 1 Zimmer, 444 Md. at 524–25; County Council of Prince George’s
County v. Brandywine Enterprises, Inc., 350 Md. 339, 342 (1998). The RDA is now
codified as Md. Code Ann. (2012), Division II of the Land Use Article (“LU”). The
1
The RDA establishes the Maryland-Washington Regional District and the Maryland-
Washington Metropolitan District. See LU § 20-101 (Regional District); LU § 19-101
(Metropolitan District). In this appeal, we are concerned with the Regional District. It en-
compasses most of Montgomery County and all of Prince George’s County “except for the
City of Laurel, as its boundaries existed on July 1, 2008.” LU § 20-101.
The terms “Regional District” and “Metropolitan District” reflect the Maryland-National
Park and Planning Commission’s dual role as an entity engaged in parks and planning. As
the Court explained in Boyle v. Maryland-National Park & Planning Comm’n, 385 Md.
142, 146 (2005):
The Commission is a bi-county agency created by the General Assembly to
develop both general and functional plans of proposed land development for
the Washington Metropolitan District, which consists of most of Montgom-
ery and Prince George’s Counties. That is the main “planning” function. In
carrying out the general plan, the Commission is authorized to acquire prop-
erty within the District for roads, parks, forests, and other recreation
facilities, and to improve and control such property for those purposes. That
is the main “park” function.
(Citations omitted.)
-2-
provisions of the RDA that are relevant to the issues raised in this appeal are im-
plemented in Prince George’s County through the Prince George’s County Zoning
Ordinance, which is codified as Title 27 of the Prince George’s County Code (the
“PGGC”).
The RDA and the Zoning Ordinance are complicated statutes with many mov-
ing parts. Writing for the Court in Zimmer, the Honorable Glenn T. Harrell, Jr.
examined portions of the RDA and Title 27 in the context of underlying principles
of land use law to give context to the contentions raised in that case. 444 Md. at
501–36. Judge Harrell’s cogent and thorough analysis is our starting point, and we
will refer to it frequently in the ensuing pages.
There are two broad categories of land use control: zoning and planning. Zim-
mer, 444 Md. at 505 (citing, among other authorities, Appleton Regional
Community Alliance v. County Comm’rs of Cecil County, 404 Md. 92, 102, (2008);
and Mueller v. People’s Counsel for Baltimore County, 177 Md. App. 43, 68
(2007)).
“Zoning” is “the process of setting aside disconnected tracts of land varying in
shape and dimensions, and dedicating them to particular use s designed in some
degree to serve the interests of the whole territory affected by the plan. ” Zimmer,
444 Md. at 505 (quoting Maryland Overpak Corp. v. Mayor and City Council of
Baltimore, 395 Md. 16, 48 (2006)). Necessarily implicit in the power to establish
-3-
use districts and zoning regulations is the authority to enforce their strictures. Ac-
cordingly, “parcels must be put to use in accordance with their zoning[.]” Id. There
are exceptions to this rule; and one is the concept of a non-conforming use—that is, a
use that either: (1) had existed either prior to original comprehensive zoning af-
fecting the property; or (2) had been permitted by the zoning regulations in the
past, but is no longer permitted because of an intervening change in the law—may
continue, subject to amortization in certain circumstances. Zimmer, 444 Md. at 505.
This concept is codified in the RDA. See LU § 22-113. 2
The concept of “planning” is broader in scope. “Planning concerns ‘the devel-
opment of a community, not only with respect to the uses of lands and buildings,
but also with respect to streets, parks, civic beauty, industrial and commercial un-
dertakings, residential developments and such other matters affecting the public
convenience[.]’” Zimmer, 444 Md. at 505 (quoting 1 E.C. Y OKLEY , Z ONING L AW
AND P RACTICE § 1–2 (4th ed. 1978) (other citation omitted)). One aspect of plan-
ning is the formulation of “plans,” which are documents (typically approved by the
local legislature) that “contain elements concerning transportation and public fa-
cilities, recommended zoning, and other land use recommendations and proposals.”
2
LU § 22-113 states:
A person may continue, and appropriate licenses may be issued to the person
for, a lawful nonconforming use existing on the effective date of the respec-
tive zoning laws in the metropolitan district.
-4-
Mayor & Council of Rockville v. Rylyns Enterprises , 372 Md. 514, 529 (2002).
Subdivision control, i.e., the regulation of the process by which larger tracts of land
are divided into smaller ones for the purpose of residential, commercial, and indus-
trial development, is an inherent aspect of the local planning function. Zimmer, 444
Md. at 505 (citing Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md. App.
607, 645–46 (1997)); see also County Commissioners of Cecil County v. Gaste r,
285 Md. 233, 249 (1979) (Without subdivision controls, “[p]lanning would be fu-
tile[.]”)
The two concepts overlap. “Because ‘planning and zoning complement each
other and serve certain common objectives,’ some implementation and enforcement
procedures may have both planning and zoning aims.” Zimmer, 444 Md. at 506
(quoting People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 689
(2007)).
What we have said so far doesn’t distinguish Prince George’s and Montgomery
Counties from any other of the local jurisdictions in Maryland that exercise land
use control authority. What sets these counties apart from the rest of the State is
the way that planning and zoning authority is allocated among four agencies: the
Maryland-National Park and Planning Commission (the “Commission”); the plan-
ning board of each county; the county councils, which are referred to “district
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councils” when they exercise powers granted to them in the RDA 3; and the county
boards of appeal. 4 The RDA and, to some extent, the local laws of Prince George’s
and Montgomery counties, determine how specific land use control functions are
allocated. When there is a conflict between the RDA and local law, the RDA pre-
vails. See Zimmer, 444 Md. at 571.
The RDA assigns regional planning functions to the Commission, which is a
non-partisan State agency consisting of ten members, five chosen from Montgom-
ery and five from Prince George’s County. LU § 15-102. 5
3
See LU § 14-101(f):
“District council” means:
(1) for a single county, the county council sitting as the district council of the
county with respect to that portion of the regional district in the county under
§ 22-101 of this article;
(2) for the district council as a whole, the county councils of both counties
sitting jointly as the bi-county district council of the regional district under §
22-102 of this article; or
(3) for a municipal corporation, the governing body of the municipal corpo-
ration sitting as the district council for the municipal corporation under an
agreement authorized under § 20-704(c) of this article.
LU§ 22-101 states:
(a) The County Council of Montgomery County is the district council for that
portion of the regional district located in Montgomery County.
(b) The County Council of Prince George's County is the district council for
that portion of the regional district located in Prince George's County.
4
The provisions of the RDA relating to the Prince George’s County Board of Appeals are
found in LU §§ 22-303–311.
5
As the Court noted in Zimmer:
-6-
The five members of the Commission from each county also serve as the plan-
ning board for that county. LU § 20-201. The Legislature set out the powers and
duties of the planning boards in LU § 20-202 and § 20-207. Section 20-202 reads
in pertinent part (emphasis added):
(a)(1) Subject to paragraph (2) of this subsection, a county planning
board:
(i) is responsible for planning, subdivision, and zoning functions that
are primarily local in scope; and
(ii) shall exercise, within the county planning board’s jurisdiction, the
following powers:
1. planning;
2. zoning;
3. subdivision;
4. assignment of street names and house numbers; and
5. any related matter.
* * *
(b)(1) A county planning board has exclusive jurisdiction over:
(i) local functions, including:
1. the administration of subdivision regulations;
2. the preparation and adoption of recommendations to the district
council with respect to zoning map amendments; and
The RDA evinces also an intent of the State Legislature to prevent corruption
of or the appearance of impropriety by the commissioners. LU § 15–120 pro-
hibits commissioners from: (1) participating in decisions as a commissioner
in which the commissioner or the commissioner’s immediate family has a
financial interest; (2) taking certain employment while a commissioner; (3)
soliciting or accepting gifts, disclosing confidential information, or using
such information for private gain; or, (4) influencing other county or State
officials in the conduct of their duties. Commissioners are required by the
RDA to disclose publically any conflict with his or her official duties. LU §
15–120(g).
444 Md. at 528.
-7-
3. the assignment of street names and house numbers in the regional dis-
trict[.]
* * *
In Zimmer, the Court construed LU § 20-202(b)(i) to mean that “the county planning
boards have ‘exclusive jurisdiction’ over ‘local functions,’ but [it] does not detail each of
the local functions within each jurisdiction.” 444 Md. at 567 (footnotes omitted). As a gen-
eral rule, “including” means “including by way of illustration and not by way of
limitation.” General Provisions Article § 1-110. See also Hackley v. State, 389 Md. 387,
393 (2005) (“Legislative drafters are to ‘use “means” if the definition is intended to be
exhaustive’ . . . and to ‘use “includes” if the definition is intended to be partial or illustra-
tive[.]’” (quoting Department of Legislative Services, MARYLAND STYLE MANUAL FOR
STATUTORY LAW 27 (1998) (some brackets omitted)).
For its part, LU § 20-2076 provides that “functions not specifically allocated in this
subtitle shall be assigned to the Commission or to one or both of the county planning
boards, as needed.” Such assignments must be approved both by the Commission and the
6
Section 20-207 states:
(a) Subject to subsection (b) of this section, functions not specifically
allocated in this subtitle shall be assigned to the Commission or to one
or both of the county planning boards, as needed.
(b) The assignments shall:
(1) be made by resolution of the Commission with the approval of the
respective county council; and
(2) carry out the policy that local or intracounty planning functions
should be performed by the county planning boards.
-8-
county council. Id. Approval by the county council may be evidenced by a provision in a
local land use ordinance. Zimmer, 444 Md. 566. The Commission’s approval can be in-
ferred from its administrative practices. Id. at 566–67 (“The MNCPPC appears to have
accepted the assignment, as the Planning Board considers, in practice, CDPs and SDPs.”
(footnote omitted)).
No single provision of the RDA sets out the land use control authority of the district
councils. However, and among other things, the district councils have the legislative au-
thority to adopt and amend zoning laws, LU § 22-104; to establish programs for the transfer
of development rights, LU § 22-105; to establish procedures for the resolution of disputes
as to building permits and other “zoning questions,” LU § 20-503; and to enact historic
preservation regulations. LU § 22-108. Additionally, the RDA specifically provides that
the Prince George’s County District Council may exercise quasi-judicial review authority
over certain land use decisions by that County’s Planning Board. See LU § 25-210 (author-
izing the District Council to review decisions of the Planning Board approving or
disapproving detailed site plan applications).7
Finally, LU § 22-111 authorizes the District Council to make provisions in the County
Zoning Ordinance for the County Board of Appeals to decide questions concerning the
7
The District Council also exercises review authority over other Planning Board deci-
sions pursuant to various provisions of the County Zoning Ordinance. See, e.g., PGCC
§ 27-228.01 (setting out fifteen categories of Planning Board decisions subject to District
Council review).
-9-
extension of legal nonconforming uses within or on buildings or lots, and the resumption
of a nonconforming use after interruption “by fire or other calamity.”8 Section 22-111 is
the centerpiece of one of the District Council’s contentions on the merits of this case. We
will discuss this statute in part 6 of this opinion.
The RDA’s statutory directives are implemented in Prince George’s County through
the Prince George’s County Code. The local legislation that speaks to our concern in this
case—nonconforming uses—is found in the County’s Zoning Ordinance.
The Prince George’s County Zoning Ordinance
The local law governing nonconforming uses in Prince George’s County is found in
Part 3, Division 6 of the Zoning Ordinance. PGCC § 27-241 sets out the general rule: a
“nonconforming building, structure, or use may be continued, repaired, or maintained.”
Whether a use that is not permitted by the current zoning regulations is allowed by law to
continue depends upon a process that the Zoning Ordinance labels “certification.” In order
for a use to be “certified,” the property owner must present evidence showing (1) when the
use was lawfully commenced on the property; (2) that the use has not ceased for more than
8
LU § 22-111 dovetails with LU § 22-311, which provides that the Prince George’s
Board of Appeals may:
in accordance with regulations adopted by the district council, hear and decide
requests for:
* * *
(ii) decisions on permits for extensions, substitutions, restorations, reinstate-
ments, or reconstructions of lawful nonconforming uses[.]
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180 consecutive days after the use became nonconforming (this requirement has some ex-
ceptions); and (3) that, other than not having a use and occupancy permit, there are no local
Code violations outstanding against the property.9 If the property owner satisfies these cri-
teria, it will receive a use and occupancy permit from the County.
An applicant begins the process by filing a written application with the Planning Board.
The application must be supported by documentation, which can include “tax records, busi-
ness records, public utility installation or payment records, and sworn affidavits.” PGCC
§ 27-244(b)(2)(A). The Board provides public notice of the pending request. PGCC § 27-
244(c). At this juncture, the statute sets out two alternative procedural paths:
9
These requirements are found in various parts of PGCC § 27-244. Specifically, PGCC
§ 27-244(b)(2)(A) requires proof of “the commencing date and continuous existence of the
nonconforming use[.]”
PGCC § 27-244(b)(2)(B) requires an applicant to demonstrate that:
the nonconforming use has not ceased to operate for more than one hundred
eighty (180) consecutive calendar days between the time the use became non-
conforming and the date when the application is submitted, or that conditions
of nonoperation for more than one hundred eighty (180) consecutive calendar
days were beyond the applicant’s and/or owner’s control, were for the pur-
pose of correcting Code violations, or were due to the seasonal nature of the
use[.]”
Finally, pursuant to PGCC § 27-244(d)(1), an applicant must show that “the use to be
certified as nonconforming has no outstanding Code violations with the Department of
Permitting, Inspections, and Enforcement regarding the property other than failure to have
a use and occupancy permit.”
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First, if there is no request for a public hearing before the Board, a Board staff member
reviews the applicant’s written submission. If the staff member concludes that the docu-
mentation supports certification, he or she makes a recommendation to the Board that the
certification request be granted. A copy of the recommendation is sent to the District Coun-
cil, the recommendation is posted on the Board’s website, and notification is sent to
interested parties. PGCC § 27-244(d)(3).
Second, if there is a request for a hearing, or if the Planning Board staffer concludes
that the documentation submitted by the applicant is incomplete or not convincing, the
Planning Board must conduct a public hearing and decide whether to grant the application.
PGCC § 27-244(f)(1)(A)( 3). A copy of the Planning Board’s decision is forwarded to the
District Council.
Either way, the District Council can become involved. In the first scenario, the District
Council may decide to review the Planning Board staff recommendation “on its own mo-
tion.” PGCC § 27-244(e)(1). (This procedure is locally referred to as “calling up.” See
Zimmer, 444 Md. at 535.) If the Planning Board staff recommendation is called up by the
District Council, the matter is set for a hearing before a zoning hearing examiner, who
makes a recommendation to the Council. The District Council then makes a decision based
primarily on the record developed in the hearing before the zoning hearing examiner.10
10
More specifically, the zoning hearing examiner’s recommendation can be appealed to
the District Council. If this occurs, the Council will hold a public hearing with the argument
“limited . . . to the record of the [zoning hearing examiner’s] hearing.” PGCC § 27-
- 12 -
In the present appeal, however, we are concerned with the second scenario, that is, one
in which the Planning Board itself decides to grant or deny a certification application. In
such instances, the District Council may call up the Planning Board’s decision or a party
may appeal the Board’s decision to the District Council. PGCC § 27-244(f)(5)(A). In either
event, the District Council will hold a public hearing and will:
decide to affirm, reverse, or modify the recommendation of the Planning
Board. The decision of the Council shall be based on the record made before
the Planning Board. No new evidence shall be entered into the record of the
case unless it is remanded to the Planning Board and a rehearing is ordered.
PGCC § 27-244(f)(5)(D).
2. Convenience & Dollar’s Certification Application and the Board’s Hearing
Convenience & Dollar has owned a small commercial property located on Southern
Avenue near Capitol Heights since 2005. The property is improved by an 800-square-foot
building and a parking area. The property has been used for retail purposes since the 1980s
and is located in the County’s Subregion 4 Planning District.11
241(e)(6). The Council may also take administrative notice of “any evidence contained in
the record of any earlier phase of the approval process relating to all or a portion of the
same property.” PGCC § 27-131(f).
With or without a hearing, the District Council must make its own determination as to
the merits of the application. Section 27-241(e)(7).
11
The Commission is required to divide each county into local planning areas and to pre-
pare area master plans for each planning area. LU § 21-105(b) and (c). Master plans
“‘govern a specific, smaller portion of the County and are often more detailed in their rec-
ommendations than the countywide General Plan as to that same area.’” Maryland-Nat.
Capital Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73,
89 (2009) (quoting Garner v. Archers Glen Partners, 405 Md. 43, 48 n.5 (2008) (brackets
- 13 -
In 2005, the property was zoned as Commercial Shopping Center (“C-S-C”). Retail
stores are a permitted use in C-S-C districts. On June 1, 2010, the District Council approved
a new master plan for Subregion 4, and enacted a sectional map amendment, which
changed the zoning classifications of certain properties within the subregion. One of the
affected parcels was the property owned by Convenience & Dollar; it was reclassified from
C-S-C to Residential-Townhouse (“R-T”). Retail stores are not permitted uses in the R-T
district. Therefore, in order to continue to use its property for retail purposes, Convenience
& Dollar Plus needed to obtain a nonconforming use certification.
In December 2012, and without the assistance of legal counsel, Convenience & Dollar
filed an application for certification. In March 2013, the Planning Board staff reviewed the
application. The staff found the documentary information submitted with the application
to be scanty and inconsistent. Public records indicated that there had been a braid shop12
omitted)). The District Council must consider whether to direct the Commission to update
each local planning area master plan on at least a sexennial basis. LU § 21-105(c)(1)(i).
When this occurs, the Commission is required to review the existing master plan, make
such amendments as it deems necessary, and may make recommendations for “zoning, the
staging of development and public improvements[.]” LU § 21-105(c)(2).
Because area master plans include the Commission’s recommendations for changes to
the zoning classifications for individual parcels, the District Council typically enacts com-
prehensive re-zoning legislation, called “sectional map amendments,” or “SMAs,” on a
subregional basis in conjunction with consideration and approval of updated area master
plans for the region in question. See PGCC § 27-225.01.05.
12
The Zoning Ordinance distinguishes between “barber and beauty shops” and “retail
shops or stores”; but both are permitted uses in the C-S-C district. See PGCC § 27-461(b)
(Table of Uses).
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operating on the property for a time, and it wasn’t clear to staff whether the braid shop was
the exclusive use or whether the shop shared the space with a covenience store. The staff
report to the Board stated that the business records submitted in support of the application
did not clearly indicate that the retail use had been open without an interruption of 180 days
or more since the rezoning occurred, and that the affidavits submitted “were contradictory.”
The report concluded:
Perhaps additional evidence from the applicant to the Planning Board will be
more persuasive. However, based on the evidence submitted, staff believes
that the subject application should be recommended for DENIAL.
The Planning Board held a hearing on the application in March 2013. Convenience &
Dollar, now represented by counsel, presented the testimony of Kevin White, the senior
pastor of the New Life Christian Center, a church located about four blocks from the Con-
venience & Dollar property. Pastor White testified that he had been affiliated with the
church for thirteen years, that the longest vacation that he took doing that period was for
three days, that the Convenience & Dollar property had been used as a convenience store
throughout that period, and that he frequently shopped there. In response to questions from
Convenience & Dollar’s counsel, Pastor White stated that there had also been a braid or
beauty salon located on the premises between 2007 and 2009.
JoAnne Brown testified that she had been the manager of a restaurant located a few
feet from the Convenience & Dollar property “for over 20 years.” Like Reverend White,
she testified that the Convenience & Dollar property had been continuously used as a con-
venience store and she had often shopped there. She also testified that there had been a
- 15 -
beauty or braid shop sharing the premises with the convenience store in the period from
2007 to 2009.
Malik Waleed, Convenience & Dollar’s owner, also testified. He told the Board that
the property has been used as a convenience store since he purchased it in 2005 and that,
for a time from 2007 to 2009, he attempted to lease part of the space to a beauty/braid shop
but this arrangement was never satisfactory. He testified that, throughout this period, the
convenience store “never shut [its] doors,” and the property has been a “full blown con-
venience store” since 2010.
Counsel asked for, and obtained, a continuance to supplement the record with addi-
tional financial and tax records.
The hearing resumed in June 2013. Ivy Thompson, a member of the Board’s staff,
addressed the Board and informed it that staff had reviewed the additional financial records
and other documentation submitted by Convenience & Dollar’s counsel. She stated that:
Staff has come to the conclusion that the combination of [the original and
supplemental] supporting evidence [and] the testimony from the previous
Planning Board hearing has closed the 180 day gap noted in the original Staff
Report, and therefore staff is recommending approval[.]”
Commissioners Washington and Geraldo expressed reservations about the probative
weight of the documentary evidence. For example, they noted the absence of sales and use
tax returns for the latter half of 2010. Convenience & Dollar’s counsel acknowledged that
the returns had not been filed but represented that Mr. Waleed’s accountant was in the
- 16 -
process of preparing them. After further discussion, the Board members voted unanimously
to approve the application. The Board’s resolution stated in pertinent part:
The submission of the additional documentation [at the June hearing][13] com-
bined with the testimony heard during the [hearing] supports the applicant’s
claim that 4119 Southern Avenue has been in continuous use as a variety/re-
tail store since the zoning changed from C-S-C to R-T on June 1, 2010. . . .
While it remains unclear as to how much of the property was occupied by
the convenience store, there is nothing in the Zoning Ordinance that indicates
that a use must occupy 100 percent of the property. This supplemental infor-
mation closes the 180-day gap.
The District Council elected to review the Planning Board’s decision pursuant to
PGCC § 27-244(e).
3. The Proceedings Before the District Council and the Circuit Court
The District Council conducted a hearing on the certification application on October
21, 2013. Consistent with the District Council’s established practice, no new evidence was
introduced. Although there is no transcript of the District Council’s hearing in the extract,
the speaker’s list identifies Convenience & Dollar’s counsel as the only person who ad-
dressed the Council. On January 14, 2014, the Council voted to deny the application. It
issued a written decision on the same day. The District Council’s decision stated in relevant
part:
13
The Board resolution stated that this documentation included a copy of a lease dated
October 20, 2010, leasing the property for use as a convenience store; corporate sales tax
returns; purchase order receipts for items such as ice cream and candy; and a calendar
“detailing specific dates of previously submitted documents demonstrating continuous use
and operation of a retail/variety store use at the subject property[.]”
- 17 -
We have reviewed the record supporting the application, including appli-
cant’s evidence in support of its application for certification, as well as the
transcripts of hearing testimony offered at the March 21, 2013, and June 6,
2013, hearings before the Planning Board, in context with oral arguments
from the parties on October 21, 2013. Based on our review of that record, we
are not persuaded by the evidence because, in our view, the Applicant has
not met its burden to show that the use has not ceased to operate for more
than one hundred eighty (180) consecutive calendar days between the time
the use became nonconforming, and the date when the application [was] sub-
mitted[.]
Absent from the record is documentary evidence, such as tax records, busi-
ness records, public utility installation or payment records, and sworn
affidavits, showing the commencing date and continuous existence of the
nonconforming use. In fact, the District Council finds persuasive the record
testimony of Commissioner Washington questioning the evidence support-
ing the application. We are not persuaded that purchase records for goods
typically offered for sale at a convenience store are credible to show that
these items were actually sold, especially without wholesale invoices to
demonstrate those sales. Moreover, the District Council assigns considerable
probative value to the testimony from the hearing by Commissioner
Geraldo[14] highlighting gaps in the business and tax records submitted by
Applicant, particularly the fact that there are no tax records for the six-month
period of June 1, 2010 to January l, 2011 to adequately demonstrate the con-
tinuous operation of the use.
(Emphasis in original; citations to record omitted.)
Convenience & Dollar filed a petition for judicial review. The circuit court reversed
the decision of the District Council. The court concluded, as do we, that the District Council
exercised appellate jurisdiction over the Planning Board’s decision. The court remanded
the case to the District Council for it to “review the Planning Board’s decision regarding
14
Neither Commissioner Washington nor Commissioner Geraldo testified at the Board
hearing. As we have explained, they did express concerns about the absence of tax return
information for the latter half of 2010. Nonetheless, both commissioners voted to grant the
application.
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Petitioner’s request for certification of a nonconforming use to determine whether the Plan-
ning Board’s decision . . . was arbitrary, capricious, discriminatory, or illegal.”
The District Council has appealed the judgment and presents one issue, which we have
reworded:
Does the Prince George’s County District Council exercise original, as opposed to
appellate, jurisdiction when it reviews a decision of the Planning Board to grant or
deny an application to certify a nonconforming use?
4. The Standard of Review
Our standard of review in cases of this nature is well-established:
When we review the final decision of an administrative agency, such
as the Board of Appeals, we look through the circuit court ’s and inter-
mediate appellate court’s decisions, although applying the same
standards of review, and evaluate the decision of the agency. . . . The
court’s task on review is not to substitute its judgment for the expertise
of those persons who constitute the administrative agency. In our re-
view, we inquire whether the zoning body’s determination was
supported by such evidence as a reasonable mind might accept as ad-
equate to support a conclusion.
* * *
Generally, a decision of an administrative agency, including a local
zoning board, is owed no deference when its conclusions are based
upon an error of law.
People’s Counsel for Baltimore County v. Loyola College, 406 Md. 54, 66–67
(2008) (quotations marks, citations, ellipses, and bracketing deleted).
5. The Proper Scope of the District Council’s Review
The dispositive issue on appeal is whether the District Council exercises original juris-
diction when it reviews a decision of the Planning Board in a nonconforming use
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certification proceeding. The agency that has such jurisdiction is authorized to make de
novo fact finding with regard to the merits of a detailed site plan application. Zimmer, 444
Md. at 570. In Zimmer, the Court of Appeals held that the Planning Board has orig-
inal jurisdiction to review and approve comprehensive design plans (“CDPs”) and
specific design plans (“SDPs”), and that the District Council review was limited to
deciding whether the Planning Board’s decision “is not authorized by law, is not
supported by substantial evidence of record, or is arbitrary or capricious.” Id. at
573.
The Court’s analysis was primarily one of statutory interpretation. The Court
began with LU § 20-202(b)(i), 15 which “provides that the county planning boards
have ‘exclusive jurisdiction’ over ‘local functions,’ but does not detail each of the
local functions.” 444 Md. at 567. In the context of LU § 20-202 and LU § 20-207, 16
the Court observed (emphasis added):
15
Section 20-202(b)(i) states:
A county planning board has exclusive jurisdiction over:
(i) local functions, including:[ ]
1. the administration of subdivision regulations;
2. the preparation and adoption of recommendations to the district council
with respect to zoning map amendments; and
3. the assignment of street names and house numbers in the regional dis-
trict[.]
16
Section 20-207 states:
(a) Subject to subsection (b) of this section, functions not specifically allocated in
this subtitle shall be assigned to the Commission or to one or both of the county
planning boards, as needed.
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The Legislature did not itemize expressly or exhaustively each such
intended function for apparent good reason.
The RDA makes particular provision for the local functions that the
Legislature did not intend to be within the planning boards ’ exclusive
jurisdiction. LU § 20–503(c) authorizes the District Council to refer
for advice only some or all building permits to the Maryland–National
Capital Park & Planning Commission for review and recommendation
as to zoning compliance. LU § 22–208 requires referral to the county
planning boards of applications for zoning map amendments for a
“recommendation.” Although unclear on its face as to the standard of
review, LU § 25–210 authorizes, in Prince George’s County, the Dis-
trict Council to “review” the “final decision” of the Planning Board,
and issue a “final decision.”
CDP and SDP approvals were not among the local functions that the
Legislature excepted from the planning boards’ exclusive jurisdiction.
Because no alternative provision was made, the RDA indicates to us
that, like other unspecified local planning functions, the Planning
Board is invested with exclusive original jurisdiction over the deter-
mination of CDPs and SDPs, subject to appellate review by the
District Council.
For the authority of the Planning Board to be “exclusive” or “origi-
nal” with respect to the CDP and SDP approval processes, the
Planning Board must be the de novo decision-maker regarding the
merits of a CDP or an SDP. The District Council, if allowed to decide
de novo whether a CDP or an SDP should be approved, violates the
division of authority established by the RDA.
444 Md. at 569–70 (footnotes omitted).
(b) The assignments shall:
(1) be made by resolution of the Commission with the approval of the respective
county council; and
(2) carry out the policy that local or intracounty planning functions should be
performed by the county planning boards.
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The Court also addressed the District Council’s argument that it was authorized
to exercise de novo review pursuant to a provision of the Prince George’s County
Zoning Ordinance—in effect, that the District Council could grant itself original
jurisdiction. Initially, the Court observed that “[t]o the extent that the Charter, or
the ordinances adopted thereunder, conflict with the RDA, the Charter and ordi-
nances are invalid and the RDA governs.” Id. at 526 n.30 (citing Prince George’s
County v. Maryland–Nat’l Capital Park & Planning Commission, 269 Md. 202,
223 (1973)). Later in its analysis, the Court considered PGCC § 27–132(f) (the
same ordinance that the District Council relied upon for its assertion of de novo
fact-finding authority in the present appeal):
A provision of the county ordinance, such as PGCC § 27–132(f), that
purports to give the District Council (or any other body) the authority
to decide, de novo, a local function related to planning, zoning, sub-
division, or the assignment of street names and house numbers, is
invalid. The District Council may not arrogate to itself original juris-
diction where the RDA places that responsibility elsewhere. Only the
General Assembly, through amendment of the RDA, may accomplish
that objective.
444 Md. at 571 (emphasis added).
The Court concluded:
A Planning Board decision is vulnerable if it is not authorized by law,
is not supported by substantial evidence of record, or is arbitrary or
capricious. When the standard of administrative appellate review used
by the District Council mimics the standard of review that would be
employed by the courts for the review of the same agency action, it is
not interfering with the jurisdiction of the Planning Board. Employing
a less deferential standard of review, however, would impinge on the
original jurisdiction granted to the Planning Board by the RDA.
- 22 -
444 Md. at 573.
6. Analysis
Against this backdrop, Convenience & Dollar’s argument to this Court is
straightforward: it asserts that Zimmer stands for the proposition that LU § 20-
202(a)(2) 17 assigns to the Planning Board original jurisdiction to decide zoning
matters that are local in function, that nonconforming use certification applications
are local matters, and that there is nothing in the RDA to suggest that the Legisla-
ture intended to divest the Planning Board of its authority in this area.
For its part, the District Council acknowledges that the RDA apportions land use reg-
ulatory authority between the District Council and the Planning Board, and that Zimmer
teaches that the Planning Board has original jurisdiction over local zoning functions pur-
suant to LU § 20-202(a). Nor does the District Council take issue with the proposition that
deciding a nonconforming certification application is a “local function” for purposes of LU
§ 22-202(b)(1).
17
LU § 20-202 states in relevant part:
(a)(1) Subject to paragraph (2) of this subsection, a county planning board:
(i) is responsible for planning, subdivision, and zoning functions that are pri-
marily local in scope; and
(ii) shall exercise, within the scope of the county planning board’s jurisdic-
tion, the following powers:
1. planning;
2. zoning; [and]
3. subdivision;
***
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The District Council focuses on LU §§ 22-111–114, which address nonconforming
uses in the Regional and Metropolitan District. It contends that, by enacting these statutes,
the Legislature transferred original jurisdiction over nonconforming use determinations
from the Planning Board to the Council itself. The District Council’s argument is not con-
vincing, for reasons that we will now explain.
The first problem with the District Council’s argument is that three of the statutes upon
which it relies, LU § 22-112,18 LU § 22-113,19and LU § 22-114,20 have nothing to do with
18
LU § 22-112:
(a) This section applies to any official or body authorized to issue a license
or permit.
(b)(1) In this subsection, “residential zone” means any area in the regional
district that is designated on a zoning map as residential.
(2) Except as provided in paragraph (3) of this subsection, an official or body
may not issue a license or permit for a commercial or industrial purpose or
to conduct any commercial or industrial enterprise or business in a residential
zone.
(3) Paragraph (2) of this subsection does not apply if the purpose, enterprise,
or business is allowed by an applicable zoning law under allowed uses or
special exceptions granted by a board of appeals.
19
LU § 22-113:
A person may continue, and appropriate licenses may be issued to the person
for, a lawful nonconforming use existing on the effective date of the respec-
tive zoning laws in the metropolitan district.
20
LU § 22-114:
A lawful nonconforming use that existed on the effective date of a zoning
law enacted by Montgomery County or Prince George’s County under this
title in that portion of the regional district in the applicable county that is
outside the metropolitan district may be continued and appropriate licenses
may be issued.
- 24 -
the allocation of responsibilities between the Planning Board and the District Council. Sec-
tion 22-112 prohibits nonconforming commercial and industrial uses in residential zoning
districts within the Regional District unless the “business is allowed by an applicable zon-
ing law under allowed uses or special exceptions granted by a board of appeals.” Section
22-113 provides that the lawful nonconforming uses may continue to operate within in the
Metropolitan District. Section 22-114 establishes the same rule to those parts of the Re-
gional District that are not included in the Metropolitan District. 21 None of these statutes
address, either explicitly or by implication, whether the District Council or the Planning
Board has original jurisdiction in matters involving nonconforming uses. We now turn to
the remaining provision of the Land Use Article upon which the Council relies.
LU § 22-111 states (emphasis added):
(a) This section does not authorize the validation, ratification, or legalization
of any violation of law or regulation in effect at the time of the action by the
district council under this section.
(b) In accordance with its zoning laws, the district council may provide for
the grant of power to the Board of Appeals of Prince George’s County on
appeal to allow:
(1) an extension of a lawful nonconforming use throughout all or a part of a
building in which the nonconforming use lawfully exists;
(2) the restoration or reconstruction of an existing lawful nonconforming
use if by fire or other calamity the use has been destroyed to the extent of not
more than 75% of the reconstruction value of the building in which the lawful
nonconforming use was carried on; or
21
See n. 1, supra, for an explanation of the distinction between the Regional and Metro-
politan Districts.
- 25 -
(3) an extension of an existing lawful nonconforming use on the same lot as
the lot existed as a single lot under single ownership when enactment of the
zoning law made the then existing use on the lot nonconforming.
Section 22-111 pertains to the extension or the restoration of nonconforming uses; it
does not address the process by which it is decided whether a nonconforming use should
be certified in the first instance. Thus, by its terms, it does not apply to the administrative
decision-making process at issue this case. Moreover, LU § 22-111 is of no avail to the
District Council because it has not “provide[d] for the grant of power to the Board of Ap-
peals of Prince George’s County” to consider nonconforming use certification cases. As
the District Council states in its brief (emphasis in original):
Consequently, as directly authorized by the RDA, the District Council
adopted local nonconforming use regulations within its Zoning Ordinance,
being also Subtitle 27 of the Prince George’s County Code. However, the
District Council, in enacting local laws governing the certification of non-
conforming uses, did not delegate its jurisdiction to the Board of Appeals.
PGCC § 27-229.[22]
22
PGCC § 27-229 sets out the powers of the County Board of Appeals. It states in relevant
part:
(a) The Board of Zoning Appeals (known in this Division as the “Board”)
shall have the following powers and duties:
(1) To hear and decide appeals involving variances from the strict application
of this Subtitle (commonly known and referred to in this Division as vari-
ances);
(2) To hear and decide appeals where it is alleged that, in the administration
of this Subtitle, there is error in the refusal of a building or use and occupancy
permit, or in any other decision of the Department of Permitting, Inspections,
and Enforcement, the Planning Board, or any other person or body authorized
to administer this Subtitle;
* * *
- 26 -
Assuming, solely for purposes of analysis, that LU § 22-111 authorizes the District
Council to transfer initial responsibility to decide nonconforming use certification applica-
tions from the Planning Board to the Board of Appeals, the fact remains that the District
Council has not taken that step. Thus, LU § 22-111 does not support the District Council’s
position that it has original jurisdiction in nonconforming use certification applications.
A nonconforming use certification application should be granted if the applicant
proves: (1) when the nonconforming use began; (2) that, subject to certain exceptions, the
use has continued without an interruption of more than 180 days; and (3) that there are no
local code violations pending against the property other than its failure to have a use and
occupancy permit. See PGCC § 27-244(b) and (d). All of these inquiries are limited to the
parcel in question, and are quintessentially local in nature. We hold that deciding a non-
conforming use certification application is a local zoning function, and that the Planning
Board has original jurisdiction over such applications pursuant to LU § 20-202(b)(i).
Because the District Council did not have original jurisdiction in this case, it could
reverse the decision of the Planning Board only if the Board’s decision was “not authorized
by law, is not supported by substantial evidence of record, or is arbitrary or capricious.”
Zimmer, 444 Md. at 573. The Court equated this standard with the standard that courts
apply in judicial review proceedings. Id. at 573–74.
There is nothing in the District Council’s decision to suggest that the Council viewed
the Planning Board’s decision as arbitrary, capricious, flawed by a misunderstanding of
law, or not supported by substantial evidence. Instead, the District Council conducted its
- 27 -
own review of the evidence, weighed that evidence differently than did the Board, and
concluded that it was not persuaded that the nonconforming retail use should be certified.
In so doing, the District Council exceeded the proper scope of its review in cases in which
the Planning Board has original jurisdiction. See, e.g., People’s Counsel for Baltimore
County v. Surina, 400 Md. 662, 681 (2007) (“The heart of the fact-finding process often is
the drawing of inferences made from the evidence. . . . The court may not substitute its
judgment on the question whether the inference drawn is the right one or whether a differ-
ent inference would be better supported. The test is reasonableness, not rightness[.]”
(Citations and quotation marks omitted; ellipsis in original.)). We conclude, as did the cir-
cuit court, that the District Council erred when it reversed the Planning Board’s decision
in this case.
7. The Appropriate Appellate Relief
The circuit court reversed and remanded this case to the District Council for it to review
the Planning Board’s decision in light of the court’s conclusion that the Council exercised
appellate, and not original, jurisdiction in the matter. The court’s judgment was issued be-
fore the Court of Appeals filed its opinion in the Zimmer case. With the benefit of that
opinion, we conclude that it is not necessary to remand this case to the District Council for
further deliberations.
As a general rule, when courts decide that an administrative agency’s decision is based
upon an error of law, they remand the case to the agency for it to reconsider the matter in
light of the court’s explanation of the applicable legal standard. See, e.g., Board of Public
- 28 -
Works v. K. Hovnanian’s Four Seasons at Kent Island, LLC, 425 Md. 482, 522 (2012).
However, as the Court observed in Zimmer, a remand is not necessary if “‘there is no ad-
ministrative function that remains to be performed.’” 444 Md. at 581 (quoting Anne
Arundel County. v. Halle Development, Inc., 408 Md. 539, 557 (2009)).
Returning to the case before us, the sole basis of the District Council’s decision was
that, after its own de novo review of the evidence, it reached a different conclusion than
did the Board. The District Council’s use of an incorrect standard of review is a legal error
that would normally warrant a remand to that body. However, the Council has never taken
the position that the Planning Board’s decision was flawed by legal error, or was otherwise
arbitrary or capricious. It is manifest that the Planning Board’s decision was supported by
substantial evidence, as that concept has been defined in Surina and other cases. The Dis-
trict Council does not contend otherwise to this Court.
We conclude, as did the Court of Appeals in Zimmer, that remanding the case to the
District Council for additional deliberations “would be futile because there is only one
action the District Council could take,” namely, to affirm the Planning Board’s decision.
444 Md. at 582.
In summary, we agree with the circuit court that the District Council exercises appel-
late, and not original, jurisdiction, when it reviews Planning Board decisions in applications
for nonconforming use certifications. However, with the benefit of the Court of Appeals’
analysis in Zimmer, we conclude that a remand to the District Council is unnecessary.
Therefore, we affirm the judgment of the circuit court in part, vacate it part, and remand
- 29 -
this case so that the court can enter a judgment ordering the District Council to affirm the
decision of the Planning Board.
THE JUDGMENT OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY IS AFFIRMED IN PART AND
VACATED IN PART. THE CASE IS RE-
MANDED TO THE CIRCUIT COURT FOR
PROCEEDINGS CONSISTENT WITH
THIS OPINION. APPELLANT TO PAY
COSTS.
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