In Zoning, Know the Steps to Accept an Exception

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

It’s never a bad time for a little appellate reminder on how a local zoning authority should document a variance decision, especially when it also serves as the coda to the nine-year saga of the Wal-Mart Superstore in Clinton. For those who haven’t been tracking Grant v. County Council of Prince George’s County, here’s the gist: When the county established a new setback requirement, Wal-Mart was allowed to have its current setback grandfathered in, but when the company wanted to expand the whole building it needed to either comply with the new setback or a variance. Not surprisingly, Wal-Mart opted for the variance.

A bunch of procedural questions popped up along the way about the County’s use of staff attorneys, compliance with the Open Meetings Act, and relationship with its zoning hearing examiner, all of which the former Court of Appeals would love to tell you about in its 2019 opinion at 465 Md. 496. At the end of the day, however, the case returned to the County to fix how it evaluated the variance request. Other zoning authorities should pay attention so it can learn from those mistakes.

It’s first worthwhile to quickly go over the weird way in which Montgomery County and Prince George’s County conduct their zoning pursuant to state law. As part of the somewhat complex scheme in § 20 of the Land Use Article of the Maryland Code, the two counties make up what is called the “Maryland-Washington Regional District,” and within the Regional District each county council serves a “district council” for zoning actions completely within its county. But basically the takeaway is that the Prince George’s County County Council acted as an administrative zoning agency when it considered Wal-Mart’s request for a variance. 

Initially, the Council messed up. For one, it misinterpreted the language of the County Code regarding zoning. Those provisions only permit a variance if a “parcel of land” has “exceptional narrowness, shallowness, or shape, exceptional topographic conditions, or other extraordinary situations or conditions” — qualities that the Council applied to the building rather than the land. The Council also needed to better address a second factor for getting a variance: that the current zoning would result in “peculiar and unusual practical difficulties” to the owner.

So on remand the Council got to work revising its determination. Given a second chance, the Council laid out detailed and significant findings about both the unique characteristics of the property and how that related to the setback requirements from which a variance was needed. The overall problem was a combination of the wetlands on the property and the neighboring Patuxent River Primary Management Area and other residential lots, all of which together “pinched” the developable area. That was a difficulty not faced by other nearby commercial properties and one that dropping the setback requirement would relieve by giving Wal-Mart more room for loading trucks… even if that was closer to residential areas than would otherwise be permitted.

Unsurprisingly, that didn’t prevent another lawsuit, but this time the Council hadn’t left the outcome susceptible to being overturned. It took only five pages — with more than a page dedicated to a block quote from the Council’s revised statement — for the Appellate Court to rule in its favor. There are a couple quick lessons in there that other zoning bodies should take note of so they one day get the same result.

To start, when it comes to explaining why a variance was granted, more is better (especially when the project is a controversial one). All the particular aspects of the property — and the properties in close proximity — that are relevant should be thoroughly described with specificity. Further, it’s not enough to just say that a property meets a legal standard to be eligible for a variance; whatever the issues are must actually be solved by the variance being requested.

Glossing over a zoning decision at the local level may save a couple hours in the near term, but it will soon be outbalanced by the years of litigation that follow. Using a casual rubber stamp to approve a variance risks skepticism and scrutiny in the appellate courts. Better to do a complete job in supporting the decision upfront and leave as little room as possible for challenge.

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