Hyattsville, MD. Image by Mr.TinDC licensed under Creative Commons.

Prince George’s County is rewriting its zoning code, and hidden away in the reams of updated zoning procedures is one particular development review process that looks an awful like one the Maryland Court of Appeals ruled against in 2015. Residents and county leaders pointed this out and called again for the removal of the problematic process, but in a recent letter county officials have made it clear: “call-up” is moving forward.

What is “call-up” and why is it a problem?

In 2015, Maryland’s highest court sat for a case about a CVS that a developer had been trying to build in the county for approximately 10 years. The Planning Board had already approved the plans — twice — and nobody else was complaining about it. But there it sat, a victim to a highly discretionary and unusual procedure that the Prince George’s County Council has known as “call-up.”

“Call-up” refers to a particular development review process where the District Council can “call-up” a project for additional review, thereby adding delays and uncertainty to projects. (The District Council is what the Prince George’s County Council calls itself when it sits as the local zoning authority.)

“Call-up” can be used when a project is applying for some sort of zoning relief or special development process. Most projects in Prince George’s County other than single-family developments have to apply for some kind of exception or special process, which the county Planning Board can grant after leading a public process to engage affected stakeholders. The reason for this is that the old zoning code is complicated and outdated (one of the reasons for the rewrite). It is very rare today for larger projects to be built “matter-of-right” in Prince George’s County, meaning that the project fits perfectly into the existing zoning regulations.

Prior to the court’s decision in 2015, after the Planning Board’s public process was complete the District Council could also “call-up” a project for additional review in front of the full council. Then, the council could essentially throw out the Planning Board’s decision and re-decide the case as if it had never been decided. The council could do this even if the Planning Board had made no errors, and/or the parties involved had reached an agreement and no one had appealed the decision. This is what was happening to the CVS.

Image by Mike Mozart licensed under Creative Commons.

It’s easy to see how this type of “call-up” process could be abused (here are two examples). The Maryland Court of Appeals at least thought so, and ruled against the practice in 2015. In that case, the court said the District Council could only act to correct errors committed by the Planning Board, but couldn’t not to ignore the Planning Board’s rulings and re-decide the entire case.

It shouldn’t take 10 years to get approval to build a CVS, or any other development, and the process shouldn’t be dependent on the whims of politicians on the council. That’s the kind of timeline and process that sends developers looking elsewhere to build, and leaves county residents without the quality development they so desperately want to see.

Dozens asked for “call-up”to be taken out of the new zoning code

Fast forward to last year. Planners had initially proposed doing away with the call-up procedure in their original draft of the zoning rewrite. Then, some members of the county council requested it be added back in during the September 2017 draft revisions.

Residents and leaders noticed a new process added called “election to review.” The code explains that when a project applies for a special exemption and other permits (as many do), the Planning Board should conduct a public process and come to a decision, but that “in addition, the District Council may, on its own motion, elect to review the ZHE’s decision on the special exception” (page 184, 11c).

Sounds a lot like the old “call-up,” just with a new name.

Many were upset. The public comment period for this draft of the new zoning code ended late last year, and county officials recently released an analysis of all the comments received. You can see that dozens of residents wrote in (including many readers of GGWash) asking for the removal of this problematic “election” process (the list starts on page 44). They were even joined by the City of Hyattsville, which sent in this official comment (emphasis is mine):

“District Council: In previous comments to M-NCPPC, the City has expressed our desire to see the ‘call-up’ authority of the District Council removed. As noted by Clarion Associates, this is not considered a best practice, and adds time and uncertainty to the development process… At the direction of the District Council, the ‘call-up’ authority to require an additional review on development decisions like special exemptions, variances and site plans, have been re-inserted into the Comprehensive Review Draft of the Zoning Ordinance and Subdivision Regulations. This authority would allow the District Council to review the Planning Board decision even if there was no appeal and/or party in opposition to the Planning Board decision. The City firmly believes that this language is inconsistent with both the Maryland Court of Appeals decision and land use 'best-practice', therefore we request that this language removed from the Zoning Ordinance and Subdivision Regulations, prior to adoption.

What was the county’s response?

To the City of Hyattsville, the response was simple: under staff analysis, “Comment noted.” Under staff recommendation, “Make no change.”

In another section of the report, county officials explained themselves further. Under staff analysis:

While prior versions of the proposed Zoning Ordinance did not include election to review, the Comprehensive Review Draft does, at the request of the District Council. Election to review could potentially apply to special exceptions, major detailed site plans, and certification of nonconforming uses, as well as minor detailed site plans if it is first appealed to the Planning Board and the Board has made a decision. The form letter and other comments mischaracterize the Court of Appeals decision on the Zimmer case. Election to review is not illegal under Maryland law.

And under staff recommendation, “Make no change”

Essentially the message is: “You are misinterpreting the court case, the District Council asked for this specifically, and the election process is not illegal… so we’re keeping it.”

College Park, MD. Image by teakwood licensed under Creative Commons.

So what is in line with the courts, and what is not?

It seems a bit problematic that the only given reason for keeping the new “election” language is that the District Council asked for it, but leaving that aside, let’s get into this idea that many of us who commented are misinterpreting the 2015 court case.

As discussed here and here, the court ruling established that the “call-up” process was ok if and only if it was used as an appeals procedure. In other words, the District Council was not permitted to overturn the Planning Board’s decision in a case unless it could be shown that there was a defect in the Planning Board proceedings or that there was insufficient evidence presented to support the Planning Board’s decision.

To some extent, the regulations for the new election process do align with this ruling: h.The District Council may only modify or reverse the decision on appeal if the decision is not supported by substantial evidence, is arbitrary and capricious, or is predicated on an error of law. (page 184)

But the real question is, does it even make sense to have the District Council serve as an appellate body when the parties still have a right to have the Planning Board’s decision appealed to the Circuit Court (and to further appellate courts in Maryland), no matter what the District Council says or does? Virtually no other jurisdiction in Maryland has this quirky and unnecessary procedure — and for good reason.

What is more, the language from earlier in that section is still problematic: “c. In addition, the District Council may, on its own motion, elect to review the ZHE’s decision on the special exception.”

This means that even if no appeal is filed, the District Council can — and I don’t know how else to say it — “call-up” a decision for further review. In other words, yes, the new election process does specify that the county council is supposed to act as an appellate body. But 1) should it? And 2) the code still gives them the power to proactively call up cases when no appeal is filed.

The problematic "election" process on page 182 of 2017 Zoning Rewrite draft.  Image by Prince George’s County Planning Board.

What’s next?

County staff are now finalizing the legislative draft of the new zoning code, which will come before the county council later this year for a vote. There will be another round of public hearings and engagement when the final draft is released.

It’s important to note that this year is an election year in Prince George’s County, and the vote on the new code will probably happen later this year.

GGWash is committed to follow up on this issue in the coming months. If you live in or work in in Prince George’s County, make sure to sign up for our advocacy updates here so we can keep you in the loop.

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David Whitehead is the Housing Program Organizer at Greater Greater Washington.  A former high school math teacher and a community organizer, David works to broaden and deepen Greater Greater Washington’s efforts to make the region more livable and inclusive through education, advocacy and organizing. He lives in Edgewood.

Bradley Heard is an attorney and citizen activist who resides in the Capitol Heights area of Prince George’s County. A native of Virginia Beach and former longtime Atlanta resident, Brad hopes to encourage high-quality, walkable and bikeable development in the inner Beltway region of Prince George’s County.