Posted by: Patricia Salkin | October 5, 2018

MD Court of Special Appeals Holds County Council Exceeded the Scope of Its Appellate Jurisdiction in Reversing Board’s Decision over Nonconforming Use

This post was authored by Matthew Loeser, Esq.


Commercial property owner, Convenience & Dollar, sought judicial review of district council’s decision reversing a county planning board’s approval of a property owner’s nonconforming use certification application. The Circuit Court reversed, and the council appealed. On appeal, the question for review before the court was whether the District Council exercises original jurisdiction when it reviews a decision of the Planning Board in a nonconforming use certification proceeding.


The District Council’s argument on appeal focused on LU §§ 22-111–114, which addressed nonconforming uses in the Regional and Metropolitan District. Specifically, the Council argued that, by enacting these statutes, the Legislature transferred original jurisdiction over nonconforming use determinations from the Planning Board to the Council itself. None of these However, none of these statutes addressed, either explicitly or by implication, whether the District Council or the Planning Board had original jurisdiction in matters involving nonconforming uses. Assuming arguendo that LU § 22-111 authorized the District Council to transfer initial responsibility to decide nonconforming use certification applications from the Planning Board to the Board of Appeals, the District Council failed to take that step. Thus, the court found that LU § 22-111 did not support the District Council’s position that it has original jurisdiction in nonconforming use certification applications. As the District Council did not have original jurisdiction in this case, it could reverse the decision of the Planning Board only if the Board’s decision was not authorized by law, is not supported by substantial evidence of record, or is arbitrary or capricious.


Here, was nothing in the record to suggest that the Council viewed the Planning Board’s decision as arbitrary, capricious, flawed by a misunderstanding of law, or not supported by substantial evidence. Instead, the District Council conducted its own review of the evidence, weighed that evidence differently than did the Board, and concluded that it was not persuaded that the nonconforming retail use should be certified. Accordingly, the court affirmed the judgment of the circuit court in part, vacated it part, and remanded the case so that the court can enter a judgment ordering the District Council to affirm the decision of the Planning Board.


County Council of Prince George’s County v Convenience & Dollar Market, 193 A. 3d 225 (MD 9/5/2018)

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