In re Concerned Citizens of PG Cnty. Dist. 4

IN THE MATTER OF CONCERNED CITIZENS OF PG COUNTY DISTRICT 4, ET AL.

No. 0472-2021

Court of Special Appeals of Maryland

June 29, 2022

Circuit Court for Anne Arundel County Case No C-02-CV-20-001850

Wells C.J., Beachley, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

OPINION

Adkins, Sally D., J.

This appeal presents a challenge to a text amendment enacted by the Prince George's County District Council ("Council") involving density in land use.^[1] CB-17-2019 ("CB-17" or "Bill") effectuates a text amendment to § 27-441(b) of the Prince George's County Zoning Ordinance (hereinafter "Zoning Ordinance")^[2] that allows-under certain circumstances―high-density townhouses to be constructed in the Residential-Agricultural ("R-A") Zone.

Concerned Citizens of Prince George's County ("Appellants") filed a petition for judicial review of the Council's decision to enact CB-17 alleging that the Bill was a site-specific text amendment implemented for the sole purpose of benefitting the Freeway Airport property and Appellee, Freeway Realty, LLC. The Circuit Court for Anne Arundel County affirmed the decision of the Council to enact CB-17. On appeal, Appellants present us with the following questions:

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?

5. May the District Council's enactment of CB-17-2019 be affirmed on the basis of "public interest" or "public benefit"?

Because we answer yes to question one, we reverse the decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

Freeway Airport Freeway Airport has been a part of the Prince George's County community since it began operation in 1947. The airport-located on a 129-acre property whose address is 3900 Church Road in Bowie, Maryland-is situated within an R-A zone. The purposes of the R-A zone are: (1) "[t]o provide for large-lot one-family detached residential subdivisions, while encouraging the retention of agriculture as a primary land use"; (2) "[t]o encourage the preservation of trees and open spaces" and (3) "[t]o prevent soil erosion and stream valley flooding." Zoning Ordinance § 27-426(a). Although operation of an airport is not allowed in an R-A zone, Freeway Airport has been a certified nonconforming use since 1968.

Kim Rodenhouser, whose family owns Freeway Airport, testified before the Council and community members regarding the history and challenges the airport has faced throughout the years. A power company installed high-tension lines to the west of the Freeway Airport property in the 1960s over the family's objections about detriment to their business. The aftermath of the September 11, 2001 tragedy also severely impacted the Freeway Airport business, as they were closed for 103 days. Due to these detrimental impacts on the Freeway Airport business, the Rodenhousers plan to seek financial recourse by either ramping up airport activity-through more flights, lessons, and increased operations-or finding a cost-beneficial way to utilize the property in a manner other than running an airport.

The Rodenhausers say that they seek to redevelop the property with quality townhouses because their other economic alternative-increasing airport activity-could pose a public safety issue on the surrounding residential areas.^[3] In order to further this townhouse redevelopment plan, Appellee Freeway Realty, LLC^[4] would need to proceed through the re-zoning or sectional map amendment process, as townhouses were not permitted in the R-A zone. The District Council, however, eliminated this need by passing CB-17.

Implementing CB-17

a. Draft 1

CB-17 amends § 27-441(b) of the Zoning Ordinance. The first draft of CB-17 was introduced before the Council on April 30, 2019. CB-17 was "[f]or the 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." (emphasis added). Draft 1 of CB-17 would have allowed townhouses to be used in an R-A zoned property if the assemblage of land: (1) was no more than 140 acres; (2) was located within one mile of a municipal boundary; (3) was formerly used as an airport; and (4) had frontage on a public right of-way classified as arterial or higher in the Master Plan of Transportation.

The Bill was before the Planning, Housing and Economic Development Committee ("Planning Committee") on June 6, 2019, but was put on hold while changes were made to the Bill. CB-17 was before the Planning Committee again on June 20, 2019. The Committee had received numerous letters of opposition to the initial draft of CB-17 and a variety of constituents spoke before the Committee to express their opposition. Most opposing speakers brought up concerns with the proposed allowable use of the Freeway Airport property. Largely they asserted that adding hundreds of townhomes-and thus hundreds of cars-to an already overloaded infrastructure on the Church Road corridor would only increase existing dangerous traffic conditions.

In addition to constituent opposition to the Bill, the Council received opposition from the City of Bowie, Prince George's County Planning Board, and Prince George's County Office of Law. The Office of Law provided comment on the Bill stating that it would be "subject to challenge as it appears to be drafted for a specific parcel" i.e., the Freeway Airport property. The Planning Board opposed CB-17 because it also believed the Bill was drafted for a specific property-the Freeway Airport. The Planning Board noted that, at the time it submitted its recommendation, 262 properties met the criteria of being less than 140 acres, within one mile of a municipal boundary, and having frontage on a public right of-way classified as arterial or higher. But, with the requirement that the property must have formerly been used as an airport, only one assemblage of land would qualify-Freeway Airport.^[5] The Planning Board further noted that allowing townhouses in the R-A zone was not congruent with the zone's prescribed purpose.

Some speakers, including Kim Rodenhauser and Robert Antonetti, a lawyer on behalf of Freeway Airport, spoke in favor of CB-17. Ms. Rodenhauser provided a brief history of Freeway Airport's operation and how "[t]his legislation would benefit [her] family." Mr. Antonetti spoke about the public safety issues involving the operation of the airport near residential homes and the history of accidents involving planes to and from the airport. Mr. Antonetti stated that this Bill "would absolutely motivate the permanent closure of this airport." At the end of the public hearing, after considering proposed amendments by the Planning Board and Zoning Hearing Examiner, the Committee approved a motion to move forward with a new Draft 2 of CB-17 by a vote of 3-2.

b. Draft 2

Draft 2 of CB-17 eliminated the requirement that the land be formerly used as an airport. This draft, if implemented, would add-in relevant part-the following footnote to § 27-441(b) of the Zoning Ordinance regarding uses in the R-A zone:

Notwithstanding any other provision of this Part, townhouses and one-family detached dwellings are a permitted use, provided:

(a) The use is located on an assemblage of land that:

(i) is no less than one hundred (100) acres and no more than one hundred fifty (150) acres in size; (ii) is located within one (1) mile of a municipal boundary;

(iii) is within 2,500 feet of land used for purposes of electrical generation, transmission, and distribution in connection with providing public utility service in the County by a regulated public utility; and (iv) has frontage of 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.

After a second and third reading and public hearing, no action was taken on the Bill after hearing comments from the public. ^[6]

c. Draft 3

The Council considered Draft 2 of CB-17 again on October 8, 2019. A new Draft proposed a substantive amendment to add back the "formerly used as an airport" language-but using the language in the conjunctive. Draft 3 of CB-17 would allow townhouses in the R-A zone if 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 located within one (1) mile of a municipal boundary;

(iii) is within 2,500 feet of land 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.

The Planning Board submitted another letter to the Council opposing Draft 3 of CB-17. In its letter, the Planning Board noted it was unable to identify all properties that could take advantage of Draft 3 of CB-17 as it did not have records on land "formerly used as an airport" and could not determine what is meant by "assemblages of properties." That Board further...