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Court of Special Appeals says Prince Georges council’s authority to reverse zoning rulings is limited

You’re not planning board, P.G. council told

Court of Special Appeals says authority to reverse zoning rulings is limited

By: Steve Lash Daily Record Legal Affairs Writer May 29, 2014

The Prince George’s County Council has limited authority to overturn zoning decisions of the county planning board, a Maryland appeals court held this week — to the delight of a developer whose plan to build a shopping center in Adelphi won board approval but was rejected by the council.

In a 3-0 decision, the Court of Special Appeals said council members may not overturn a planning board decision because they disagree with it. The council may reject the board’s decision only if it was “arbitrary, capricious, discriminatory or illegal,” the intermediate court said, citing state and county law.

The court’s decision, unless appealed, clears the way for Wilmington, N.C.-based Zimmer Development Co. to begin building retail shops on a 4.14-acre property along Powder Mill Road near Riggs Road.

The council will meet next week to decide whether to seek review of the decision by Maryland’s top court, the Court of Appeals, said Rajesh A. Kumar, principal attorney for the District Council, the name given to the County Council when it sits to review planning board actions.

“The District Council will take this matter up promptly next week to discuss their appellate options because of the public policy implications of the Court of Special Appeals’ decision, including divesting the District Council of original jurisdiction in zoning matters,” Kumar said Thursday.

Zimmer Development’s attorney, Timothy F. Maloney, said the decision “fundamentally changes the way all zoning cases are held in Prince George’s County.”

The ruling “really protects the integrity of the planning board’s decisions and insulates them from political influence through the District Council,” added Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

The planning board consists of five members, including a chairperson, nominated by the county executive and confirmed by the council to four-year terms.

The Court of Special Appeals’ decision Wednesday addressed the scope of the Maryland Regional District Act, which created the county’s planning board, and of the Prince George’s County Code, which empowers the council to affirm, reverse or modify the board’s decisions.

The court said the act and code give the council the “appellate authority” to overturn the board’s decisions. The council has no authority to examine a developer’s plan anew, the court added in upholding a circuit court judge’s decision.

“Indeed, if the District Council were vested with de novo review, the planning board’s legal responsibility to engage in fact finding would be rendered meaningless,” Judge Stuart R. Berger wrote for the Court of Special Appeals. “The planning board’s thorough evidentiary processes could be simply discarded in favor of the review by the District Council, which neither conducts its own evidentiary hearing nor develops its own record.”

The Prince George’s County Planning Board initially approved Zimmer Development’s design plan in summer 2011, according to Berger’s opinion.

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