              REPORTED

 IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND


            Nos. 259 and 265

          September Term, 2013




COUNTY COUNCIL OF PRINCE GEORGE’S
  COUNTY, MARYLAND, SITTING AS
        DISTRICT COUNCIL

                    v.

  ZIMMER DEVELOPMENT COMPANY




   Hotten,
   Berger,
   Moylan, Charles E., Jr.
         (Retired, Specially Assigned),

                   JJ.




          Opinion by Berger, J.




           Filed: May 28, 2014
       This case involves an administrative appeal from a zoning dispute. The Prince

George’s County Planning Board of the Maryland-National Capital Park and Planning

Commission (“Planning Board”) approved the Comprehensive Design Plan (“CDP”) and

Specific Design Plan (“SDP”) of appellee, Zimmer Development Company (“Zimmer”), to

construct a retail center. Thereafter, the County Council of Prince George’s County, sitting

as the District Council (the “District Council”),1 reversed the decision of the Planning Board.

Zimmer petitioned the Circuit Court for Prince George’s County for judicial review. The

circuit court reversed the decision of the District Council and reinstated the Planning Board’s

approval of Zimmer’s CDP and SDP.

       On appeal, the District Council presents four questions for our review, which we

rephrase as follows:

              1.       Whether Zimmer had the requisite standing to maintain
                       a petition for judicial review in the Circuit Court for
                       Prince George’s County.

              2.       Whether the District Council is vested with appellate
                       jurisdiction or original jurisdiction over zoning issues.

              3.       Whether the District Council exceeded the scope of its
                       authority when it reviewed matters other than the issues
                       identified for remand.

              4.       Whether the District Council erred in expanding its
                       consideration of CDP-1001 and SDP-1001 beyond


       1
         Although the County Council and the District Council are comprised of the same
elected officials, each performs distinct functions. Specifically, the District Council is tasked
with making discrete land use decisions, while the County Council carries out the general
legislative functions of the Prince George’s County government. See Cnty. Council of Prince
George’s Cnty. v. Dutcher, 365 Md. 399, 403, n.1 (2001).
                       determining whether the Planning Board’s approval was
                       arbitrary, capricious, discriminatory, or illegal.

       For the reasons that follow, we affirm the judgment of the Circuit Court for Prince

George’s County.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The disputed property (the “Edwards Property”) is a triangular 4.14 acre property that

is zoned for retail as a Local Activity Center Zone (L-A-C Zone).2 The Edwards Property

abuts Adelphi Road, Edwards Way, and Riggs Road in Prince George’s County along

Maryland Route 212 (Powder Mill Road).

       Zimmer is a national real-estate developer with its headquarters located in

Wilmington, North Carolina. Zimmer proposes to construct a retail center located on the

Edwards Property, which will be anchored by a CVS.

       Approval or denial of a proposed zoning plan begins with the Planning Board. The

Planning Board requires that an applicant obtain three approvals: 1) a Comprehensive Design

Plan (“CDP”);3 2) a Preliminary Plan of Subdivision (“PPS”);4 and 3) a Specific Design Plan

(“SDP”).5 On March 14, 2011, Zimmer filed Comprehensive Design Plan-1001 (“CDP-



      2
          Prior to 2004, the property was zoned R-R (Rural Residential).
      3
       The CDP details the overall design of the planned site. See Prince George’s County
Code (hereinafter “PGCC”) § 27-518.
      4
          The PPS is not at issue in this appeal.
      5
          The SDP details the specific plans for the planned site. See PGCC § 27-527.

                                               2
1001”) and Specific Design Plan-1001 (“SDP-1001”) with the Planning Board as part of its

application to build the retail center. The Planning Board accepted CDP-1001 and SDP-1001

for joint review. The Planning Board formally reviewed the plans at a public hearing on July

28, 2011 and subsequently approved both CDP-1001 and SDP-1001.

       Despite the Planning Board’s approval of Zimmer’s application, the District Council,

nevertheless, elected to exercise its discretion, pursuant to Prince George’s County Code

(hereinafter “PGCC”) § 27-523(a) and § 27-528.01(b), to “call-up” the case for review by

the District Council.6 On November 7, 2011, the District Council held a public hearing and

entertained oral argument regarding CDP-1001 and SDP-1001. One week after the hearing,

the District Council issued an order remanding the case to the Planning Board to reconsider

three issues (“the three remand issues”).

       Specifically, the Planning Board was directed to “reconsider its decision in light of

the [following] reasons,” namely: 1) whether the lack of a community center on the Edwards

Property could be “mitigated through amenities benefitting the surrounding community”;




       6
         Typically, appeals from the Planning Board’s decisions are effectuated by an
interested party filing an appeal to the District Council. See PGCC § 27-523(a) and PGCC
§ 27-528.01(a). In some cases, however, the District Council may elect to “call-up” (as it is
colloquially known) a case for review by the District Council. The District Council’s
authority to “call-up” a case is embodied in PGCC § 27-523(a) and § 27-528.01(b). See
PGCC § 27-523(a) (“The District Council may vote to review the Planning Board’s decision
[regarding a CDP] on its own motion within (30) days after the date of the notice.”); PGCC
§ 27-528.01(b) (“The District Council may vote to review the Planning Board’s decision on
a [SDP] on its own motion within thirty (30) days after the date of the notice of the Planning
Board’s decision.”).

                                              3
2) whether the proposed location of replacement trees to mitigate “the loss of the existing

tree canopy” was sufficient; and 3) “whether access for Edwards Way residents can be

improved, to compensate for the increases in traffic to and from the [Edwards] Property.”

       On February 9, 2012, the Planning Board held a hearing for the express purpose of

considering the three remand issues. Approximately four weeks after the hearing, the

Planning Board issued an amended resolution. Satisfied with Zimmer’s proposed solutions

to the three remand issues, the Planning Board again approved Zimmer’s application.7

       After the Planning Board’s second approval of Zimmer’s application, the District

Council exercised its authority to “call up” the case for a second time. On May 21, 2012, the

District Council heard oral argument. Approximately thirty days later, the District Council

issued a written opinion reversing the decision of the Planning Board and again denying

Zimmer’s applications for both CDP-1001 and SDP-1001. In support of its decision, the

District Council set forth fourteen specific grounds for denying Zimmer’s application.

       As a result of the denial of its application, Zimmer filed a petition for judicial review

in the Circuit Court for Prince George’s County.8 The circuit court held a hearing on

January 11, 2013.




       7
       The Planning Board adopted amended resolutions re-approving CDP-1001 and SDP-
1001 on March 8, 2012.
       8
       Zimmer appealed the denial of CDP-1001 and SDP-1001 separately. The cases were
subsequently consolidated.

                                               4
       On March 15, 2013, the circuit court, through a comprehensive written opinion,

reversed the District Council.9 In its memorandum opinion, the circuit judge first concluded

that Zimmer had the requisite standing to seek judicial review. Specifically, the circuit court

concluded that Zimmer is not “doing business” in Maryland and, therefore, is not subject to

Maryland’s laws governing unregistered foreign companies.10

       Next, the circuit court concluded that the District Council exercised appellate

jurisdiction from the Planning Board and not original, de novo, jurisdiction. The circuit court

found that “the [District] Council’s authority is limited to appellate review of the Planning

Board’s decisions” and that its “authority is limited to determining whether the Planning

Board’s decision was arbitrary, capricious, discriminatory, or illegal.” As such, the circuit

court judge found that the District Council is prohibited from “second guessing” the Planning

Board’s judgment, absent a showing that the Planning Board’s decision was arbitrary,

capricious, discriminatory, or illegal.

       The circuit court further found that the District Council was limited in its review to

the three remand issues. As a result, the circuit court held that the District Council

improperly exceeded the scope of its review. Specifically, the circuit court noted that “it was

improper for the [District] Council to expand its review in the second ‘call-up’ to consider

       9
        Although we “look[] through the circuit court’s . . . decision and evaluate[] the
decision of the agency,” People’s Counsel v. Surina, 400 Md. 662, 681 (2007), we,
nevertheless, set forth the circuit court’s detailed analysis and conclusions.
       10
        This requirement is embodied in Maryland Code (1975, 2007 Repl. Vol.)
§ 4A-1002(a) of the Corporations and Associations (“C.A.”) Article.

                                              5
new issues outside the scope of remand and that were never even discussed at oral

argument.”

       Finally, the circuit court considered the District Council’s fourteen reasons for

denying Zimmer’s application. The circuit court observed that only two of the fourteen

stated reasons for denial were raised in the District Council’s initial order of remand. After

reviewing each of the fourteen grounds for denying Zimmer’s application, the circuit court

further observed that none of the District Council’s grounds for denial were supported by

substantial evidence. As such, the circuit court reversed the decision of the District Council

and reinstated the Planning Board’s approval of CDP-1001 and SDP-1001.11

       This timely appeal followed. We shall recite the relevant standard of review in the

applicable section of our “Discussion,” infra.

                                       DISCUSSION

                                              I.

       The District Council first contends that the circuit court lacked subject matter

jurisdiction over the action. Specifically, the District Council argues that, because Zimmer

does not own property or operate a business in Prince George’s County, it is not a “person”

under Maryland law whose interests are subject to judicial review. As such, the District




       11
         The District Council’s appeal from the circuit court’s order reinstating the Planning
Board’s approval of SDP-1001 is identified as case no. 265 in the Court of Special Appeals.
The District Council’s appeal from the circuit court’s order reinstating the Planning Board’s
approval of CDP-1001 is identified as case no. 259.

                                              6
Council asks us to remand this case with an order instructing the circuit court to dismiss the

action for lack of subject matter jurisdiction.

       Zimmer maintains that the District Council failed to raise this issue before the circuit

court and, therefore, the issue is not preserved for our review. Zimmer claims that the

District Council’s subject matter jurisdiction argument “is a thinly veiled [] attempt to pursue

a standing challenge that it failed to preserve below.” Indeed, Zimmer contends that the only

standing argument advanced by the District Council was entirely unrelated to the argument

it presents on appeal. Zimmer further argues that, assuming arguendo, this issue is somehow

preserved for our review, Zimmer has the requisite standing to challenge the District

Council’s decision. We agree with Zimmer that this issue concerns one of standing and

further agree that it is not preserved for our review.

       Maryland Rule 8-131(a) expressly provides that we normally will not decide an issue

“unless it plainly appears by the record to have been raised in or decided by the trial court.”

Maryland Rule 8-131(a). The Court of Appeals has regularly held that “the primary purpose

of Rule 8–131(a) is to ensure fairness for all parties in a case and to promote the orderly

administration of law.” Elliott v. State, 417 Md. 413, 434 (2010) (quoting State v. Bell, 334

Md. 178, 189 (1994)).

       “Lack of subject matter jurisdiction may be raised at any time, including initially on

appeal” and “the issue of subject matter jurisdiction need not be raised by a party, but may

be raised by a court sua sponte.” Dutcher, supra, 365 Md. at 405. The preservation rule,



                                                  7
however, clearly applies to standing issues and “[w]e ordinarily do not decide issues of

standing not raised in the trial court.” Garner v. Archers Glen Partners, Inc., 405 Md. 43,

55 (2008); see also Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 71 (2003) (“[A]ny dispute

concerning [a party’s] standing should have been raised and litigated in the [c]ircuit [c]ourt,

not the Court of Special Appeals.”).

       At the outset, we agree with Zimmer that the issue advanced before us by the District

Council is one of standing, not subject matter jurisdiction. The District Council admits as

much in its brief as it repeatedly refers to the issue as one of standing, including arguing that

“Zimmer had no standing to seek a petition for judicial review.” Moreover, Maryland Code

(2012) § 22-407 of the Land Use Article (“L.U.”), which governs judicial review of decisions

of the District Council, clearly contemplates standing, not subject matter jurisdiction.

       Turning to the substantive merits of the District Council’s argument, the record before

us clearly reflects that the District Council failed to raise the issue of Zimmer’s standing

under L.U. § 22-407 in the circuit court. Although the District Council argued that Zimmer

lacked standing in the circuit court, the District Council’s standing argument was expressly

premised under Maryland Code (1975, 2007 Repl. Vol.) § 4A of the Corporations and

Associations (“C.A.”) Article, not L.U. § 22-407. Specifically, the District Council argued

that Zimmer was in violation of C.A. § 4A-1002(a), which requires that, before doing

business in Maryland, “a foreign limited liability company shall register with the [Maryland




                                               8
State Department of Assessment and Taxation].” See C.A. § 4A-1002(a). Indeed, the record

is devoid of any argument before the circuit court related to L.U. § 22-407.

       Ultimately, the District Council failed to raise the issue of Zimmer’s standing based

on L.U. § 22-407 before the circuit court. The District Council failed to challenge Zimmer’s

standing based on L.U. §22-407, and because the District Council now bases its standing

argument on L.U. § 22-407, the issue is not preserved for our review. As such, inasmuch as

the question is one of standing -- and not of subject matter jurisdiction -- and because the

issue was not raised before the circuit court, the District Council’s standing argument is not

preserved for our review on appeal.

                                              II.

       The District Council next contends that the circuit court improperly determined that

the District Council’s review of the Planning Board is limited to that of appellate jurisdiction

and not original, de novo, jurisdiction. The District Council maintains that the circuit court

erred in applying the reasoning of Cnty. Council of Prince George’s Cnty. v. Curtis Regency,

121 Md. App. 123 (1998), to this case. Specifically, the District Council argues that Curtis

Regency is inapplicable to the case at bar because the holding of Curtis Regency is limited

to that of subdivisions, not zoning issues. As shall be discussed, we hold that the District

Council is vested with appellate jurisdiction and not original, de novo, jurisdiction. We

further hold that the circuit court did not err in applying the reasoning of Curtis Regency to

this case.



                                               9
A.     Standard of Review

       In reviewing the decision of an agency, we “look[] through the circuit court’s . . .

decision[], although applying the same standards of review, and evaluate[] the decision of

the agency.” People’s Counsel v. Surina, 400 Md. 662, 681 (2007). We are “limited to

determining if there is substantial evidence in the record as a whole to support the agency’s

findings and conclusions, and to determine if the administrative decision is premised upon

an erroneous conclusion of law.” Hamza Halici v. City of Gaithersburg, 180 Md. App. 238,

248 (2008) (internal quotation marks and citations omitted).

       When applying the “substantial evidence” test, a reviewing court must decide“whether

a reasoning mind reasonably could have reached the factual conclusion the agency reached.”

Layton v. Howard Cnty. Bd. of Appeals, 399 Md. 36, 48-49 (2007) (internal quotation

omitted). “In applying the substantial evidence test . . . [we] must review the agency’s

decision in the light most favorable to the agency, since decisions of administrative agencies

are prima facie correct and carry with them the presumption of validity.” Pollock v. Patuxent

Inst. Bd. of Review, 374 Md. 463, 476-77 (2003). “Furthermore, not only is the province of

the agency to resolve conflicting evidence, but where inconsistent inferences from the same

evidence can be drawn, it is for the agency to draw the inferences.” Id. at 477 (citations and

internal quotations omitted).

       “We are less deferential in our review, however, of the legal conclusions of the

administrative body and may reverse those decisions where the legal conclusions reached by



                                             10
that body are based on an erroneous interpretation or application of the [applicable] statutes,

regulations, and ordinances . . . . ” Surina, supra, 400 Md. at 682 (internal quotations

omitted).   “When determining the validity of those legal conclusions reached by the

[administrative] body, however, ‘a degree of deference should often be accorded the position

of the administrative agency’ whose task it is to interpret the ordinances and regulations the

agency itself promulgated.”      Id. (internal citations omitted). Thus, “[e]ven though the

decision of the Board of Appeals was based on the law, its expertise should be taken into

consideration and its decision should be afforded appropriate deference in our analysis of

whether it was ‘premised upon an erroneous conclusion of law.’” Id. at 682-83 (internal

citations omitted). Finally, in an administrative appeal, the appellant bears the burden of

establishing an error of law or that the agency’s final decision was not supported by

substantial evidence. Taylor v. Harford Cnty. Dep’t of Soc. Servs., 384 Md. 213, 222-23

(2004).

B.     Jurisdiction of the District Council

       The District Council argues that it is vested with original jurisdiction and that it is not

limited in the scope of its review to the standard of review for appellate jurisdiction. The

District Council further maintains that the circuit court improperly relied upon Curtis

Regency in rendering its decision. Specifically, the District Council contends that the

application of Curtis Regency is limited to that involving subdivisions and does not extend

to zoning matters, such as the case before us.



                                               11
       The Maryland Regional District Act (the “RDA”) was enacted by the General

Assembly to empower Prince George’s County to create zoning enabling legislation. Cnty.

Council of Prince George’s Cnty. Council v. Billings, 420 Md. 84, 96 (2011) (quoting Prince

George’s Cnty. v. Ray’s Used Cars, 398 Md. 632, 635–36 (2007)). The RDA specifically

provides for the creation of a county Planning Board. L.U. § 20-202(a)(1). The RDA further

provides that the Planning Board:

              (i)    “is responsible for planning, subdivision, and zoning
                     functions that are primarily local in scope; and

              (ii)   shall exercise, within the county planning board’s
                     jurisdiction, the following powers:

                     1.     Planning;

                     2.     Zoning;

                     3.     Subdivision;

                     4.     Assignment of street names and house
                            numbers; and

                     5.     Any related matter.

L.U. § 20-202(a)(1). (Emphasis added).




                                            12
       The District Council, pursuant to PGCC § 27-523,12 is only authorized to affirm,

reverse, or modify the decision of the Planning Board, or to return the case to the Planning

Board to take further testimony.13 Indeed, the District Council is expressly limited in its

consideration to “the facts and information contained within the record made at the hearing

before the Planning Board.” PGCC § 27-523(c). In our view, based on the testimony,

documents, and evidence presented at the hearing before the Planning Board, the District

Council is limited to determining whether the Planning Board’s decision was “arbitrary,

capricious, discriminatory, or illegal.” See Curtis Regency, supra, 121 Md. App. at 137-38.

       Indeed, if the District Council were vested with de novo review, the Planning Board’s

legal responsibility to engage in fact finding would be rendered meaningless.14 The Planning

Board’s thorough evidentiary process could be simply discarded in favor of the review by the

District Council, which neither conducts its own evidentiary hearing nor develops its own



      12
         We note that PGCC § 27-523 governs CDPs and not SDPs. PGCC § 27-528.01,
which governs the review of SDPs, provides that: “[i]n reviewing the [SDP], the District
Council shall follow the procedures as set forth for the review of [CDPs] in Section 27-523
as modified in this Section and findings as set forth in Section 27-528.” Therefore, the
procedures used by the District Council to review SDPs are the same as the procedures used
by the District Council to review CDPs.
       13
          PGCC § 27-523(d) provides that “[w]ithin sixty (60) days after the close of the
[District] Council’s hearing, the [District] Council shall affirm, reverse, or modify the
decision of the Planning Board, or return the Plan to the Planning Board to take further
testimony or reconsider its decision.” (Emphasis added).
      14
         PGCC § 27-522(a) expressly provides that: “[t]he Planning Board may approve,
approve with modification, or disapprove the [CDP].” Similarly, PGCC § 27-528 grants the
Planning Board the power to consider preliminary approvals of SDPs.

                                            13
record. Further, the Planning Board’s decision is final if no appeal is taken from the decision

of the Planning Board. See PGCC § 27-523(d) (“If the [District] Council fails to act within

the specified time, the Planning Board’s decision is automatically affirmed.”).

       The District Council argues that the circuit court erred in extending our reasoning in

Curtis Regency to include zoning issues.           In Curtis Regency, the Planning Board

preliminarily approved a subdivision plat proposed by Curtis Regency Service Corporation

and Rose Valley Limited Partnership (“Curtis Regency”). Id. at 126. A local citizens’ group

appealed the Planning Board’s decision to the District Council, which reversed the approval

by the Planning Board. Id. Curtis Regency subsequently sought judicial review of the

District Council’s decision. Id. The circuit court reversed the decision of the District

Council and reinstated the Planning Board’s approval of the subdivision plat submitted by

Curtis Regency. Id.

       On appeal, we concluded that the District Council possessed appellate jurisdiction,

not original jurisdiction, over subdivision matters. Id. at 135. The District Council,

therefore, “acted contrary to its statutorily defined power” and should have “given deference

to the Planning Board’s decision, except as to matters of law.” Id. at 137. We expressly held

that “the District Council should have used its power to determine whether the action of the

[Planning Board] was ‘arbitrary, capricious, discriminatory or illegal.’” Id. at 137-38 (citing

People’s Council for Baltimore Cnty. v. Beachwood Ltd. P’ship, 107 Md. App. 627, 648-49

(1995)) (internal quotation marks omitted). Moreover, we reasoned that “[s]ince the District



                                              14
Council does not have the power to create the cause, but, instead, hears the cause to correct

and revise proceedings already instituted, it does not exercise original jurisdiction.” Id. at

134. Rather, the District Council is “confined to exercise its appellate jurisdiction.” Id.

Indeed, in concluding that the District Council is vested with appellate jurisdiction, we

observed that the District Council

              may not substitute its judgment for that of the [Planning Board],
              even if it, had it been so empowered, might have made a
              diametrically different decision. The circumstances under which
              it may overturn or countermand a decision of the [Planning
              Board] are narrowly constrained. It may never simply second
              guess.

Id. at 137 (quoting Beachwood I, supra, 107 Md. App. at 638).

       In the instant case, the District Council fails to provide any legal support for its

contention that Curtis Regency applies only to subdivision issues, not zoning issues. Instead,

the District Council baldly sets forth the applicable standard of review that courts use to

evaluate agency decisions and argues that its determinations are entitled to deference. We

are unpersuaded. Indeed, nowhere in Curtis Regency do we suggest that the case be limited

to subdivision matters. In fact, we broadly framed the issue in that case as “whether, as an

appellate forum, the [District] Council owed deference to the fact finding and conclusions

flowing therefrom of the Planning Board.” Id. at 133-34. We did not then -- nor do we

now -- expressly limit our holding in Curtis Regency to cases involving subdivisions.




                                             15
       The District Council subsequently amended the PGCC in an effort to grant itself

original jurisdiction.15 Specifically, PGCC § 27-132(f) provides:

              (f) Jurisdiction.

                     (1)    In deciding an appeal to the District
                            Council, . . . the [District] Council shall
                            exercise original jurisdiction.

                     (2)    For any appeal or review of a decision
                            made by . . . the Planning Board, the
                            [District] Council may, based on the
                            record, approve, approve with conditions,
                            remand, or deny the application.

PGCC § 27-132(f) (emphasis added).

       In Curtis Regency, however, we expressly observed that, if the District Council were

to adopt an ordinance such as PGCC § 27-132(f), “we would strongly question its validity,

since it would appear to contradict the exclusive jurisdiction given to the Planning Board by

public general law.” Curtis Regency, supra, 121 Md. App. at 135, n. 4 (citing Prince

George’s Cnty. v. Maryland-Nat’l Capital Park and Planning Comm’n, 262 Md. 202

(1973)). “The RDA, being a public general law, circumscribes what implementing local




       15
          It is noteworthy that the District Council only references PGCC § 27-132(f) in
passing in its brief. In both instances, the District Council references PGCC § 27-132(f) for
the proposition that the District Council is only authorized to approve, approve with
conditions, remand, or deny CDP-1001 and SDP-1001 based on the record established before
the Planning Board. Inexplicably, however, the District Council fails to reference PGCC §
27-132(f) as grounds in support of its argument that it possesses original jurisdiction over
zoning disputes. The District Council further failed to raise the applicability of PGCC
§ 27-132(f) in the hearing before the circuit court.

                                             16
legislation the [District] Council may enact.” Dutcher, supra, 365 Md. at 424. Indeed, “[t]he

[District] Council is not empowered to augment the administrative appeal process beyond

that provided for in [Maryland Code (1957, 1997 Repl.Vol.), Art. 28,] § 7–117.” 16 Id. at 425.

Moreover, the RDA “is the exclusive source of zoning authority in those areas of Prince

George’s County which it covers.” Cnty. Council of Prince George’s Cnty. v. Brandywine

Enterprises, Inc., 350 Md. 339, 342 (1998) (emphasis added).

       A plain reading of the RDA reflects the unassailable conclusion that the General

Assembly expressly empowers the Planning Board with the authority to administer “zoning

functions that are primarily local in scope.” L.U. § 20-202(a)(1)(I). The RDA further

provides that zoning issues are subject to the Planning Board’s jurisdiction. L.U. § 20-

202(a)(1)(ii). Zimmer, therefore, suggests that PGCC § 27-132(f) is invalid because it is an

attempt to use a local ordinance to contravene the state enabling act, the RDA. We agree.

       The Bill Summary of the 1996 amendment provides that the District Council’s

purpose in enacting the amendment was to grant itself original jurisdiction based on its own

independent understanding of its responsibility in examining zoning issues. The Bill

Summary provides, in relevant part:

              [Section 27-132(f)] clarif[ies] what has always been assumed
              and has historically been the [District] Council’s practice
              regarding jurisdiction of the [District] Council when hearing
              appeals. The bill states that when hearing an appeal from the


       16
         The RDA was previously embodied at Maryland Code (1957, 1997 Repl.Vol.), Art.
28, §§ 1-101 through 8-127.

                                             17
              Planning Board . . . the [District] Council is exercising original
              jurisdiction. This means that in deciding an appeal, [the District
              Council] may make the decision based on their own judgement
              [sic] rather than simply determining whether the [Planning
              Board] made an error of law or had before it substantial
              evidence to support its decision.

CB-76-1996, 1996 Leg. Sess. (Prince George’s County Council 1996) (emphasis added).

       The Bill Summary goes on to note that the District Council shall not accept new

evidence:

              Tom Haller, representing the Chamber of Commerce, . . .asked
              for clarification regarding the ability of the [District] Council to
              accept new evidence under the provisions of this bill. Joyce
              Nichols, Principal Counsel to the District Counsel [sic], pointed
              out that the language [amended PGC Code § 27-132(f)] states
              that the decision of the [District] Council shall be based on the
              record.

The Bill Summary, therefore, explains that PGC Code Section 27-132(f) permits the District

Council to substitute its judgment and decide the case differently from the Planning Board,

but it must do so based on the record presented to the Planning Board.

       Nevertheless, the District Council argues that it has “original jurisdiction” over

appeals from Planning Board decisions. Critically, the District Council cannot grant itself

original jurisdiction when the General Assembly has expressly entrusted the Planning Board

with the authority to decide preliminary zoning issues. In enacting subsection (f) of PGCC

§ 27-132, the District Council assumed that it possessed original jurisdiction. In so doing,

however, the District Council failed to consider the applicability of the RDA. Indeed, “no

custom, however long and generally it has been followed by officials of the State, can nullify

                                              18
the plain meaning and purpose of a statute.” Smith v. Higinbothom, 187 Md. 115, 132

(1946) (emphasis added). Although the District Council has long assumed that it possesses

original jurisdiction, a plain reading of the RDA reflects that the Planning Board, not the

District Council, is vested with original jurisdiction over zoning matters. The District

Council simply cannot insert the magic words “original jurisdiction” and assume that such

an amendment authorizes itself with original jurisdiction, especially in light of the

provision’s conflict with the RDA.

       Moreover, the express provisions of the PGCC provide that: 1) the decision of the

Planning Board is final if there is no appeal to the District Council; 2) the District Council

is limited in its review to the facts and information established at the hearing before the

Planning Board; and 3) the District Council is only authorized to affirm, reverse, or modify

the decision of the Planning Board based on the record. Indeed, “the District Council does

not have the power to create the cause, but, instead, hears the cause to correct and revise

proceedings already instituted . . . .” before the Planning Board. Curtis Regency, supra, 121

Md. App. at 134.

       Similarly, the Court of Appeals has acknowledged the internal inconsistency of Prince

George’s County’s attempt to confer original jurisdiction on the District Council through the

District Council’s enactment of PGCC § 27-132(f). Specifically, Judge Harrell, writing for

the majority in Dutcher, cogently observed as follows:

              PGCC § 27-132(f) . . . is not a subdivision regulation under
              PGCC subtitle 24, but rather a zoning regulation under PGCC

                                             19
              subtitle 27. As such, we do not review PGCC § 27-132(f) here,
              but do note that it is confusing and internally inconsistent as
              regards the nature of the jurisdiction the District Council
              purports to exercise in matters addressed by [PGCC
              § 27-132(f)].

Dutcher, supra, 365 Md. at 411, n. 13. The Court, in Dutcher, highlighted that the District

Council grants itself “original jurisdiction” under PGCC § 27-132(f)(1), but, nevertheless,

confines itself to examining the Planning Board’s decision “based on the record . . . .” PGCC

§ 27-132(f)(2). Indeed, it is inherently inconsistent for the District Council to grant itself

“original jurisdiction” when it is limited to reviewing the record established before the

Planning Board.

       Taken together, the pertinent provisions of the PGCC, read in conjunction with the

RDA, leads us to conclude that the District Council is vested with appellate jurisdiction, not

original jurisdiction, over zoning matters. As such, the District Council is limited to deciding

whether the Planning Board’s decision was “arbitrary, capricious, discriminatory, or illegal.”

Curtis Regency, supra, 121 Md. App. at 137-38.

                                              III.

       The District Council next contends that the circuit court erred in finding that the

District Council was limited to reviewing the three remand issues when it “called-up” the

case for a second time. Moreover, the District Council asserts that it was proper for the

District Council to expand its review beyond the three issues that were initially remanded to

the Planning Board. We disagree.



                                              20
       As mentioned, supra, PGCC § 27-523(c) expressly provides:

              The District Council shall schedule a public hearing on the
              appeal or review. Testimony at the hearing shall be limited to
              the facts and information contained within the record made at
              the hearing before the Planning Board.

PGCC § 27-523(c) (emphasis added). Thus, a simple reading of PGCC § 27-523(c) leads

to the unassailable conclusion that the District Council must constrain its review of decisions

of the Planning Board “to the facts and information contained within the record made at the

hearing before the Planning Board.” PGCC § 27-523(c).

       In the instant case, the Planning Board approved CDP-1001 and SDP-1001 on

September 15, 2011. Subsequently, the District Council “called-up” the case and, upon

review of Zimmer’s application, remanded the case to the Planning Board to expressly

consider the three remand issues.17 Satisfied with Zimmer’s proposed solutions to the three

remand issues, the Planning Board issued an amended resolution that specifically addressed

each issue upon remand and again approved CDP-1001 and SDP-1001. As such, when the

District Council exercised its discretion to “call-up” the case for a second time, it was limited

to the three remand issues expressly considered by the Planning Board.

       Clearly, therefore, when the District Council set forth its fourteen grounds for denying

CDP-1001 and SDP-1001, it was acting outside its statutorily defined powers. Indeed, the




       17
         As discussed supra, the Planning Board was instructed to expressly consider:
1) mitigating the removal of trees through other amenities; 2) the location of potential
replacement trees; and 3) whether access to Edwards Road could be improved.

                                               21
express terms of § 27-523(c) could not be any clearer. The District Council’s scope of

review is narrowly constrained to the facts and information presented at the hearing before

the Planning Board. More fundamentally, however, the District Council was not authorized

to set forth any grounds for denial other than the grounds specifically advanced before the

Planning Board, namely, the three remand issues.          Rather, the District Council was

authorized to determine whether the Planning Board’s approval of Zimmer’s application was

“arbitrary, capricious, discriminatory, or illegal.” Curtis Regency, supra, 121 Md. at 137-38.

Accordingly, the District Council erred, as a matter of law, in expanding its consideration of

CDP-1001 and SDP-1001 beyond the scope of the three remand issues.

                                             IV.

       The District Council next argues that each of its fourteen grounds in support of its

decision to deny Zimmer’s application is supported by substantial evidence. In light of our

holding in Part III of our “Discussion,” this issue is moot.         Critically, as addressed

previously, the District Council -- as an appellate forum -- is limited to determining whether

the decision of the Planning Board was “arbitrary, capricious, discriminatory, or illegal.” See

Curtis Regency, supra, 121 Md. at 137-38.

       Accordingly, when the District Council exercised its discretion to “call-up” CDP-1001

and SDP-1001 for a second time, it was limited to determining whether the Planning Board’s

approval of CDP-1001 and SDP-1001 was “arbitrary, capricious, discriminatory, or illegal.”

Id. Clearly, therefore, when the District Council set forth additional grounds for reversing



                                              22
the Planning Board, it was acting outside its statutorily defined power by substituting its

judgment for that of the Planning Board. As such, the District Council erred -- as a matter

of law -- in reversing the Planning Board and denying Zimmer’s application.

                                   JUDGMENT OF THE CIRCUIT COURT FOR
                                   PRINCE GEORGE’S COUNTY AFFIRMED.
                                   APPELLANT TO PAY THE COSTS.




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