County Council of Prince George's County v. Brandywine Enterprises, Inc.

675 A.2d 585, 109 Md. App. 599, 1996 Md. App. LEXIS 65
CourtCourt of Special Appeals of Maryland
DecidedMay 2, 1996
DocketNo. 1014
StatusPublished
Cited by5 cases

This text of 675 A.2d 585 (County Council of Prince George's County v. Brandywine Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County Council of Prince George's County v. Brandywine Enterprises, Inc., 675 A.2d 585, 109 Md. App. 599, 1996 Md. App. LEXIS 65 (Md. Ct. App. 1996).

Opinion

HOLLANDER, Judge.

This case concerns the procedural effect of an automatic statutory denial that followed a decision of the Prince George’s County Zoning Hearing Examiner (“the Examiner”). Brandywine Enterprises, Inc. (“Brandywine”),1 appellee, sought a special exception to perform sand and gravel mining in Prince George’s County. Following a public hearing, the Examiner recommended approval of the application, subject to certain enumerated conditions. Unhappy with that result, a citizen who resided near the subject area sought review of the Examiner’s decision by the Prince George’s County Council, sitting as the District Council (“the Council”), appellant. [602]*602When the Council failed to render a decision within the statutorily specified time, the “application/appeal” was denied by operation of law, pursuant to Prince George’s County Code (“P.G.”), § 27-132(d)(2)(1991). Thereafter, appellee sought review in the Circuit Court for Prince George’s County, which reversed. The Council has appealed that decision and presents the following contentions for our review:

I. The scope of review by this court is limited to determining that the Council’s decision was fairly debatable and supported by substantial evidence.
II. The statutory denial is not arbitrary, capricious or discriminatory and was supported by substantial evidence.

Factual Background

The Brandywine property in issue consists of 75.44 acres, located approximately one mile southeast of the intersection of Aquasco Road (Md. Route 381) and Croom Road (Md. Route 382), in southern Prince George’s County (“the Property”). Predominately wooded, the Property is surrounded by farmland to the north and west, undeveloped woodlands and land that is surface mined to the east and south, and single family residences to the northeast. By grant of a 2.2 acre easement through the property of Phillip and Linda Hutton, the main portion of the Property is connected to Aquasco Road by a haul road. The Property is Open Space (“O-S”) zoned land,2 located within the area encompassed by the County’s Master Plan for Subregion VI, which was approved in 1973. The Master Plan recommends the removal of the vast sand and gravel deposits in southern Prince George’s County, before the land is developed.

On November 14, 1989, Brandywine submitted an application for a special exception, seeking permission to use the Property for surface mining of sand and gravel. On June 11, [603]*6031990, the Technical Staff of the Maryland-National Capital Park and Planning Commission (“Planning Commission”) issued a Technical Staff Report recommending approval of appellee’s application, subject to certain conditions. At the conclusion of a public hearing on July 11, 1990, the Examiner remanded the case to the Prince George’s County Planning Board (“the Planning Board”), de novo, with instructions to amend appellee’s application to include the 2.2 acre easement area.

On May 1, 1991, the Technical Staff of the Planning Commission again recommended approval of appellee’s amended application, subject to certain conditions, including those proposed by the Natural Resources Division of the Planning Commission in its July 1990 Environmental Impact Report. On June 6, 1991, the Planning Board held a hearing concerning appellee’s application, after which, on June 27, 1991, the Planning Board recommended denial of the application, in Resolution No. 91-202. The Resolution provided, in pertinent part:

WHEREAS, after consideration of the Technical Staff Report and testimony of its regular meeting on June 6, 1991, the Prince George’s County Planning Board disagreed with the staff recommendation; and
WHEREAS, the Planning Board recommendation is based on the following DETERMINATIONS:
A. The traffic generated by this request will adversely affect the surrounding neighborhood due to the already dangerous situation posed by trucks on MD 381.
B. Limited sight distance at the intersection of MD 381 and MD 382 makes the introduction of an additional 300 truck trips on MD 381 a hazard to motorists and pedestrians traversing the intersection.
C. The above traffic concerns are deemed to present such a potential for deleterious impact to the health, safety and welfare of present and future inhabitants of the neighborhood that a denial of the application is warranted.

[604]*604Thereafter, a hearing was held on July 16, 1991 before the Examiner, at which opponents and proponents of the application testified. On September 22, 1992, the Examiner issued his decision, recommending approval of the application, subject to twenty-six conditions. A document entitled “Notice of Decision,” which was included with the Examiner’s opinion, stated, in pertinent part:

On the 22nd day of September, 1992, the attached Decision of the Zoning Hearing Examiner in Case No. SE-3967 was filed with the District Council.
The Zoning Hearing Examiner’s decision shall become final SO calendar days after the above filing date unless:
(1) Written appeal within SO days of the above date is filed
(2) The District Council directs the case to be transmitted to the Council for final disposition by the Council.

The reverse side of the notice provided in pertinent part:

INSTRUCTIONS FOR FILING
I. Exceptions Taken to the Examiner’s Decision Shall be:
a) In writing;
b) Numbered in sequence;
c) Specific as to the error(s) which are claimed to have been committed by the Examiner....
d) Specific as to those portions of the record, including the Hearing Examiner’s Decision, relied upon to support your allegation of error(s) committed by the Examiner
II. Requests for Oral Argument:
If you desire oral argument before the District Council, request must be made, in writing, at the time of filing your exception(s).
[605]*605IV. When to File:
Your request for oral argument and/or exceptions must be filed within 30 days after the Examiner’s Decision has been filed with the District Council.

(Italics added; underlining in original).

On January 26, 1993, pursuant to P.G. § 27-131, “exceptions” to the Examiner’s decision were noted by Raymond Richards, a resident of Subregion IV. Upon consideration of the exceptions, the Council again remanded the case, de novo, to the Technical Staff for the limited issue of revising the inventory as required under P.G. § 27-410(a)(8).3 After appellee submitted a revised Traffic Impact Report on the basis of the new inventory, another evidentiary hearing was held before the Examiner on January 5,1994.

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Bluebook (online)
675 A.2d 585, 109 Md. App. 599, 1996 Md. App. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-council-of-prince-georges-county-v-brandywine-enterprises-inc-mdctspecapp-1996.