Heard v. Cty. Council of Prince George's Cty.

309 A.3d 596

260 Md.App. 417

Bradley E. HEARD

v.COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY, Sitting as District Council, et al.

No. 1794, Sept. Term, 2022

Appellate Court of Maryland.

February 2, 2024

Circuit Court for Prince George’s County, Case No. CAL21-08992, ShaRon M. Grayson-Kelsey, Judge.

Argued by Bradley E. Heard, Capitol Heights, MD, on brief, for Appellant.

Argued by Rajesh A. Kumar, Prince George’s County Council, Largo, MD (Arthur J. Horne, Jr. and Dennis Whitley, III, Shipley & Horne, P.A., Largo, MD), on brief, for Appellee.

Argued before: Wells, C.J., Nazarian, Tang, JJ.

Wells, C.J.

This appeal arises from a judgment of the Circuit Court for Prince George’s County dismissing appellant Bradley Heard’s petition for judicial review of coappellee Prince George’s County Council’s ¹ enactment of zoning bill CB-42-2021—an ordinance that amended the R-55 (single-family detached residential) zone to allow for the adaptive reuse of an abandoned public-school building by the Mission of Love Charities, the other appellee (for convenience both appellees will be referred to as "the District Council"). The circuit court did not reach the merits of Heard’s claims finding that he lacked both property owner and taxpayer standing to challenge the passage of the bill.

Heard asks us to resolve three questions, which we have rephrased:²

1. Does Heard have standing to challenge the District Council’s enactment of CB-42-2021?

2. Did the District Council legally enact CB-42-2021?

3. Even if CB-42-2021 was validly enacted, did the District Council exceed its authority because the ordinance constitutes "spot zoning?"

For the reasons that we discuss, we reach a different conclusion from the circuit court and determine that Heard has standing to challenge the District Council’s passage of CB-42-2021. On the merits, we conclude the legislation was legally enacted and does not constitute spot zoning. The ordinance is, therefore, valid and enforceable within the meaning of the RDA.

BACKGROUND

On June 8, 2021, six members of the Prince George’s County Council proposed and presented the first draft of CB-42-2021 to the District Council.³ It provided:

(E) A former public-school building, currently or previously located in a Development District Overlay Zone, where the building is greater than 10,000 sq. ft in gross floor area and the building is situated on a lot or parcel exceeding 2 acres, can be adaptively reused primarily by an eleemosynary, philanthropic or non-profit institution, established prior to (date) and whose previous office headquarters was within 150 yards of the school building. The adaptive user can also operate, sell or lease space within the building to an entity or entities in any use permitted in the CSC zone. (Emphasis added)

The property at issue is known as the Lyndon Hills School located at 6181 Old Central Avenue. The school has sat unused and vacant for several years.

On June 17, 2021, the Prince George’s County Planning Board⁴ submitted written comments on the first draft of the bill. The Planning Board noted that the bill would run counter to the 2000 Addison Road Metro Approved Sector Plan and Sectional Map Amendment because the property was subject to a Development District Overlay Zone (DDOZ), which has its own separate process to amend the table of uses in the DDO Zone.⁵ In its report, the Planning Board noted "there is an existing process where a property owner can request an amendment to permit use in a DDOZ."

On July 1, 2021, before the County Council sitting as the Committee of the Whole ("COW"),⁶ the bill’s principal sponsor, then-councilmember Rodney Streeter, noted that this legislation was critical to the continued operation of the Mission of Love Charities, Inc., a small nonprofit human services organization located directly across the street from the old Lyndon Hill School property at 6180 Old Central Avenue.

To address the Planning Board’s concern about the DDOZ, Councilmember Streeter moved to amend CB-42-2021. The amendment provided:

(E) Eleemosynary or Philanthropic Institution. Notwithstanding any provision to the contrary in Section 27-548.22, or any general provisions of Part 10A, Division 3 of the Zoning Ordinance, the adaptive reuse of a former public school building, currently or previously located in a -10 - Development District Overlay Zone, where the building is greater than 10,000 sq. ft in gross floor area and the building is situated on a lot or parcel exceeding 2 acres, and can be adaptively reused primarily by an eleemosynary, or philanthropic institution, providing social services to the community and whose previous office headquarters was within 150 yards of the school building with a validly issued occupancy permit prior to May 1, 1999. The use is permitted by right and the operator can also sell or lease no more than 49% of the space within the building to an entity or entities to engage in any use permitted by right in the CSC zone. (Emphasis added).

Put differently, the bill amended the table of permitted uses for the R-55 (residential single-family detached) zone to allow for the adaptive reuse of a former public-school building that is:

(1) currently or previously located in a Development District Overlay Zone;

(2) where the building is greater than 10,000 sq. ft. in gross floor area; (3) is situated on a lot or parcel exceeding 2 acres;

(4) can be adaptively reused primarily by an eleemosynary, or philanthropic institution⁷, providing social services to the community; and

(5) whose previous office headquarters was within 150 yards of the school building with a validly issued occupancy permit prior to May 1, 1999.

The amendment adds that "this use is permitted by right and the operator can also sell or lease no more than 49% of the space within the building to an entity or entities to engage in any use permitted by right in the CSC [commercial shopping center] zone."⁸

Prior to a vote on the amendment, staff attorney for District Council, Karen Zavakos, the Acting Director of Prince George’s County’s Department of Planning, Housing & Economic Development, provided the following explanation for the amendment:

Thank you, Mr. Chair, Members of the Council. I bring this Amendment No. 1 explanation to you by way of a quick introductory explanation. One, this bill went straight to introduction. So, as sometimes, you know, when we get into a situation where time is of the essence, we have in the past gone straight to introduction which means that no further amendment may be made to the bill without readvertising it. So, remember, this bill didn’t go to committee, and it came out no recommendation 10-0.

The reason for this is because we could not get, not yet, as Councilmember Streeter explained, put together an Amendment No. 1 which is not an amendment of substance. So, what the Amendment No. 1 does, this appears on page 128 of your virtual binder. The change is simple. It seeks to replace wholesale the proposed new footnote to the use tables.

What you have here is property that, as Mr. Horne explained, is desirous of continuing its use; but it is within a Development District Overlay Zone. The reason I bring that up is because, as you know, your new ordinance will extinguish the Overlay Zones. So, this bill, while Mr. Horne absolutely point out, is helpful to this particular project, it could potentially be helpful to other projects that are subject to the Development District Overlay Zone without having unintended consequences.

So, specifically what the next text of proposed Subsection E in the table will do is it clarifies that this is notwithstanding any provision to the contrary of how the Development District Overlay work, and this is a signal that this is going to be the way that the ordinance will work when the new zoning ordinance takes effect.

The District Council voted to unanimously adopt the amendment. There was also a motion to make the bill effective on the date of adoption, which also carried unanimously. Finally, the bill was unanimously enacted.

Heard filed a petition for judicial review of District Council’s actions in the Circuit Court for Prince George’s County and alleged his standing as follows:

Petitioner avers that the District Council’s enactment of CB42-2021 was illegalor ultra vires, and that the action may injuriously affect Petitioner’s property and that of other Prince George’s County taxpayers, inasmuch as the legislation reasonably may result in a pecuniary loss to Petitioner and other taxpayers, or in an increase in their taxes. Accordingly, Petitioner is aggrieved by the District Council’s action.

In his Memoranda in Support of his Petition, Heard further advanced standing, as follows:

Petitioner is a taxpayer, property owner, local community activist, lawyer, blogger, and nonprofit executive who resides nearby to the former Lyndon Hill School property. *** Petitioner has averred that the District Council’s enactment of the challenged legislation may injuriously impact Petitioner’s property and that of other Prince George’s County taxpayers, inasmuch as the legislation reasonably may result in a pecuniary loss to Petitioner and other taxpayers, or in an increase in their taxes.

Heard argued that the bill was an invalid and unenforceable local zoning law because, first, it was enacted in contravention of the county charter. This was because, Heard asserted, the bill was never presented to the County Executive and therefore never became a local law. Second, Heard contended CB-42-2021 constitutes unlawful "spot or contract zoning,"⁹ because it allows for eleemosynary and philanthropic uses in a detached, single-family residential zone, and it was clearly crafted solely for the benefit of Mission of Love.

In their joint answer to the petition for judicial review, the District Council asserted that Heard had no standing. It argued that taxpayer standing was inapplicable to final actions of the Prince George’s County District Council. Instead, ...