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For decades, Prince George’s County has seen less commercial and high-density residential development than its peers in Montgomery, Arlington, and Fairfax, particularly around its 15 Metro stations. That could begin to change now that Maryland’s highest court has smoothed the path for new development there.
In a game-changing decision last month, the Maryland Court of Appeals ruled that the Prince George’s County Council cannot deny approval of new development projects after the county’s planning board approves them, except in extreme circumstances.
Previously, the council’s ability to overrule planning board decisions made it nearly impossible to predict which developments might ultimately win approval, and which might never see the light of day.
With such uncertainty hanging over every proposal, developers stayed away. Now, with much less threat of a last-minute council veto, developers may become more likely to build quality projects in Prince George’s.
Details of the court case
The court ruling states the council cannot overrule decisions of the planning board in development review matters unless those decisions lacked supporting evidence or were otherwise arbitrary, capricious, or illegal.
Maryland law gives the Prince George’s County Planning Board broad authority to review and either approve or deny development proposals.
The county council, on the other hand, has more discrete, but nevertheless significant, powers under state law when it comes to development. It appoints members of the planning board, sets zoning, and rules on appeals from the planning board. But the council cannot, according to this court ruling, overrule the board’s decisions on individual development cases, unless the board committed some sort of legal error.
Before this decision, the county council always purported to exercise “original jurisdiction” when it reviewed the planning board’s decisions. This allowed the council to decide cases however it wanted, as long as there was evidence to support their decision.
The court, however, said that approach was incorrect. The county council does not have original jurisdiction. Rather, like an appeals court, the county council only has “appellate jurisdiction,” meaning it has to assume the planning board’s decision was correct, unless the board’s decision was legally wrong or wholly lacked evidence.
In other words, the council can no longer simply take development review into its own hands and overrule the planning board’s judgment whenever it wants.
Importantly, the court’s decision does not eliminate public input from the process. The public still has a full right to argue before the planning board, and can still appeal to the council and then to the courts if they are aggrieved by the board’s decision. However, appeals must be based on a legal error, not simple opposition to the project.
The CVS that started it all
This lawsuit arose out of a nearly 10-year effort to build a CVS in Adelphi.
The case began in 2004, when the county rezoned the property to allow retail. In 2011, a developer submitted a site plan for the CVS. The planning board approved the site plan, saying it met the rules of the retail zone.
No one appealed the planning board’s decision, so everything seemed a go. Until the county council called up the case. They wanted changes, so they sent it back to the planning board with instructions to reconsider a few issues.
In 2012, the planning board approved the site plan again, this time with a few modifications in response to the council’s requests. Again, no one appealed.
But once again, the council called up the case for review. This time, they denied the application altogether, after the council member in whose district the property lay spoke against it.
The council listed 14 reasons for its denial, none of which related to the original issues the council had first raised in its 2011 call up.
The developer sued, and three successive courts found the county council in the wrong.
A win for smart growth
A suburban-style CVS in Adelphi may not be the kind of development smart growth advocates usually hope for. But this case will ultimately make approval of genuine smart growth projects easier, by reducing the role of politics in development review.
Bottom line: No longer will developers have to work for years on a seemingly-approvable project, only to have the council yank the floor out from beneath them at the eleventh hour. Rather than leaving development up to the political whims of the county council, this court decision will hopefully allow objective law to rule Prince George’s County development review.
A version of this post appeared on Prince George’s Urbanist.