Bhargava v. Prince George's Cnty. Planning Bd.

Brij Bhargava v. Prince George’s County Planning Board, No. 0659, September Term,
2023. Opinion by Kehoe, S., J.

Background: The Prince George’s County Planning Department of the Maryland National
Capital Park and Planning Commission approved of an application for a variance from the
County’s tree conservation ordinance to permit the Prince George’s County Public Schools
to remove eleven specimen trees to allow for the construction of new school. Citizen
Appellants filed an appeal to the Prince George’s County Planning Board of the Maryland-
National Capital Park and Planning Commission, which affirmed the variance. Appellants
filed a petition for writ of administrative mandamus to the Circuit Court for Prince
George’s County, which dismissed the petition because the issue was moot and because
the Appellants had failed to show any right in the continued existence of the specimen
trees.

Holdings:
The Appellate Court has jurisdiction to consider an appeal of dismissal of a petition for
writ of administrative mandamus because it was an appeal of the exercise of original
jurisdiction by a circuit court.

Variances from forest conservation ordinances, which are authorized by Md. Code Ann.,
Nat. Res. (“NR”) § 5-1611 et seq. (2023 Repl.), are qualitatively different from zoning
variances, which are authorized by Md. Code Ann., Land Use § 4-305.

The Appellants lacked standing to bring the appeal because they could not demonstrate a
cognizable right in the trees that were subject to removal.

The matter was moot because the trees had been removed and the Appellants took no action
to prevent their removal.

WOODS & FORESTS Variances under a forest conservation ordinance are distinct from
variances under a zoning ordinance. Unlike variances from a zoning ordinance, which
must account for the effect on surrounding properties, variances from forest conservation
ordinances address the regulation of the State’s natural resources pursuant to Md. Code
Ann., NR § 5-1611.

APPPEAL AND ERROR A trial court’s consideration of an administrative mandamus
action is an exercise of original jurisdiction by the trial court over which an appeal may be
taken to the Appellate Court. Md. Code Ann., Cts. & Jud. Proc. § 12-301.

STANDING Appellants lacked standing to pursue an appeal because variances under the
Prince George’s County tree ordinance require an examination of the property itself. This
requirement is different from zoning variances, which consider the relationship of the
subject property to surrounding properties.
MOOTNESS A matter is moot when there is no existing controversy from which the
court can fashion a solution. Department of Human Services v. Roth, 398 Md. 137 (2007).
In this case, the trees had been removed, and the Appellants had not taken any steps to
block removal.
Circuit Court for Prince George’s County
Case No. CAL21-13945

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 659

September Term, 2023
______________________________________

BRIJ BHARGAVA

v.

PRINCE GEORGE’S COUNTY PLANNING
BOARD
______________________________________

Nazarian,
Kehoe, S.,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Kehoe, J.
______________________________________

Filed: April 1, 2025

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2025.04.01
15:22:12 -04'00'
Gregory Hilton, Clerk
Despite the Appellants’ efforts to frame this appeal as a zoning case, it is manifestly

not a zoning case. This matter is an appeal from a decision of the Circuit Court for Prince

George’s County dismissing a petition for administrative mandamus, regarding a decision

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

Planning Commission (the “Board”), affirming the grant of a tree variance for the

construction of a K-8 public school on property owned by the Prince George’s County

Public Schools (“PGCPS”), 1 filed by the Appellants, Nancy Bhargava, Brij Bhargava,

Valencia Campbell, Brad Majors, and Derrick Southerland (“Appellants”). The circuit

court dismissed the case because it found that the request for administrative mandamus was

moot and that the Appellants lacked standing.

The case arises out of an application by the PGCPS for a variance from the County’s

Tree Conservation Ordinance (Prince George’s County Code (“County Code”), Article 25)

to remove eleven specimen trees 2 from a property to allow for the construction of a K-8

school. The Prince George’s County Planning Department of the Maryland-National

Capital Park and Planning Commission (the “Department”) approved the application for

In the record, PGCPS is referred to as the Board of Education of Prince George’s
1

County and Prince George’s County Public Schools.
2
Specimen trees are defined as:

Trees having a diameter at breast height of 30 inches or more; trees having
75% or more of the diameter at breast height of the current champion of that
species; or a particularly impressive or unusual example of a species due to
its size, shape, age or any other trait that epitomizes the character of the
species. This definition includes all the United States, the State of Maryland
and County, or municipality champion trees. See also County Code, Sec.
25-118(b)(65).
the variance for the removal of ten specimen trees on May 17, 2021. The Department

approved a supplemental application to remove an additional specimen tree on August 18,

2021. The Appellants noted an appeal to the Board, which affirmed the approval by voice

vote on October 14, 2021. The Appellants filed a petition for administrative mandamus in

the Circuit Court for Prince George’s County, which the circuit court dismissed as moot.

The circuit court also determined that the Appellants did not “show possession of a specific

and clear legal, substantial right or any right at all to the continued existence of the

specimen trees.” For reasons set forth below, we affirm the decision of the circuit court.

The following issues have been condensed and presented for appeal: 3

I. Whether the Appellate Court has jurisdiction to consider an appeal of
petition for administrative mandamus.

II. Whether the Circuit Court’s dismissal of the Appeal was legally
correct.

I. Factual Background

In the 1960s, the PGCPS acquired an unimproved 29.78-acre parcel of land in the

Fort Washington area of Prince George’s County. The property remained vacant and

3
The issues presented by the Appellants are:

1. Whether the Prince George’s County Planning Board met the minimum
requirements for articulating the facts found, the law applied, and the
relationship between the two when it failed to issue a written decision.

2. Whether the Prince George’s County Planning Board erred legally when it
determined that Section 25-119(d)(1)(A) did not require a finding of
uniqueness and unwarranted hardship as those terms have been defined under
Maryland’s variance jurisprudence.

2
3. Whether the record lacked substantial evidence to support the Prince George’s
County Planning Board’s decision to affirm TCP2-007-2021, TCP2-007-
2021-01, and the associated variances.

4. Whether the Circuit Court for Prince George’s County erred legally when it
dismissed Citizen-Appellants’ Petition for Judicial Review.

The issues presented by the PGCPS are:

1. Whether this Court has jurisdiction over Appellants’ action under Md. Code
Ann., Cts. & Jud. Proc. §§ 12-301 and 12-302(a).

2. Whether the Circuit Court erred when it dismissed Appellants’ action for
mootness based on Appellants’ failure to request a remedy of any kind that
could address their concerns and the fact that the trees have already been
removed.

3. Whether the Circuit Court erred when it dismissed Appellants’ action for lack
of standing based on Appellants’ failure to show a specific and clear legal,
substantial right or any right at all to the continued existence of the specimen
trees on PGCPS’ property.

PGCPS raised the following issues if this Court determines that the appeal should
not have been dismissed:

1. Whether the approvals of the tree conservation plans and associated tree
variances were appropriately documented.

2. Whether the Planning Board erred legally when it determined that PGCPS
would suffer an unwarranted hardship under Section 25-119(d)(1)(A).

3. Whether the record lacked substantial evidence to support the approvals of the
tree conservation plans and associated tree variances.

The Board raised the following issues on appeal:

1. Did the Circuit Court err when it dismissed the Appellant’s petition for Writ
of Administrative Mandamus?

2. Should this Court reverse the Planning Board’s decision affirming the
Planning Director’s approval of the Applicant’s TCP2 and associated
variances because there was no written decision?

3
became entirely wooded. Within the property there were nineteen specimen trees. A

specimen tree has a trunk that is thirty inches or greater in diameter at breast height. County

Code, Sec. 25.118(b)(65). PGCPS proposed to remove eleven of the nineteen specimen

trees to build a seventy-one foot high, four-story, 234,000 square foot school which would

accommodate 2,000 K-8 students. PGCPS’s proposal also allowed for the construction of

ball fields, parking areas, and other amenities. The landscape plan called for the removal

of 22.03 acres of forested land and the removal of eleven of the nineteen specimen trees.

The buildings and other improvements were located outside of two regulated non-tidal

wetlands areas and their associated buffers. PGCPS compensated for the removal of the

22.03 acres of trees by purchasing credits for the planting of 44.10 acres of off-site

preservation. 4

On March 18, 2021, PGCPS originally submitted an application for a variance to

permit the removal of ten of the nineteen specimen trees, TCP2-007-2021. PGCPS

submitted a later application to include an eleventh specimen tree, TCP-007-2021-01.

3. Was there substantial evidence in the record to support the Planning Board’s
decision to affirm the Planning Director’s approval of the TCP2-2021-007
and TCP2-2021-007-01 and the associated variances?
4
Section 5-1606 of the Natural Resources Article of the Maryland Code (2023
Repl.) establishes that a forest conservation threshold between one quarter to two acres be
planted for every acre of trees removed. In this case, two acres were planted for every acre
removed. Md. Code Ann., Nat. Res. (“NR”) § 5-1610.1 authorizes mitigation banks for
the replanting of trees and further authorizes local governments to create mitigation banks.
Section 25-121(d)(2)(B) of the County Code provides for a ratio of two acres to be planted
for each acre removed.

4
The overall site plan was subject to mandatory referral to the Board pursuant to Md.

Code Ann., Land Use § 20-301. 5 The requests for variances for the removal of the

specimen trees were not part of the mandatory referral. The Planning Director is charged

with evaluating and approving or denying variances for removal of the specimen trees.

County Code, Sec. 25-119(F)(3). Variances from the tree conservation ordinance are not

considered zoning variances. County Code, Sec. 25-119(F)(4).

On May 14, 2021, the Planning Director approved the requested variance in TCP2-

007-2021 to remove the ten specimen trees. On August 19, 2021, the Planning Director

approved the amended request for a variance in TCP2-007-2021-01 for the removal of the

additional specimen tree.

5
Section 20-301 of the Land Use Article (2012 Repl.) provides:

Subject to §§ 20-303 and 20-304 of this subtitle, a public board, public body,
or public official may not conduct any of the following activities in the
regional district unless the proposed location, character, grade, and extent of
the activity is referred to and approved by the Commission:

(1) acquiring or selling land;
(2) locating, constructing, or authorizing:
(i) a road;
(ii) a park;
(iii) any other public way or ground;
(iv) a public building or structure, including a federal building or
structure; or
(v) a publicly owned or privately owned public utility; or
(3) changing the use of or widening, narrowing, extending, relocating,
vacating, or abandoning any facility listed in item (2) of this section.

5
The Appellants appealed the determination of the Planning Director to the Board

raising these issues: 6

there is no written decision that articulates the decision and the basis of the
decision to approve TCP2-007-2021 and the variance to Section
25-122(b)(1)(G) in accordance with the requirements of Maryland law; the
Maryland-National Capital Park and Planning Commission failed to provide
proper public notice of the decision to approve the TCP2-007-2021 and the
variance to Section 25-122(b)(1)(G); the applicant failed to prove
compliance with Section 25-119 including Section 25-119(d)(l); and the
Planning Director lacked the authority to approve the variance in accordance
with Section 25-119(d) because the tree conservation plan was associated
with the application for MR-2036F which was heard by the Planning Board.

The Board held a hearing on October 14, 2021. At that hearing, Ruth Grover, who

holds a master’s degree in urban planning, discussed the application for tree variances. She

stated that, under Prince George’s County Landscape Manual, the site plan requires

147,000 square feet of canopy, but has only 109,857 square feet of canopy. Ms. Grover

analyzed the criteria for a variance from the tree conservation ordinance and opined that

the application did not comply with title 25 of the County Code. She acknowledged that

the requirements set forth in the manual were considered suggestions, not mandates. She

stated that the subject property was not unique because other properties in the area have

wetland systems. She posited that any hardship was self-created because PGCPS could

6
The Appellants noted an appeal from the approval of TCP2-007-2021 on July 15,
2021 and filed a supplemental appeal from the approval of TCP-007-2021-01 on
September 16, 2021. The supplemental appeal incorporated the issues raised in the July
15, 2021 filing.

6
build a smaller school. 7 Some portion of Ms. Grover’s statement discussed the site plan

and whether the site plan complied with the County Code.

Hazel Robinson, the president of the Tantallon Square Homeowners Association

and president of the Alliance of Greater County Transparency discussed the application.

She stated that she bought her home because of the zip code and the forested area on the

subject property. She asserted that the property was not unique because other properties

had wetlands and similar environmental features. She asserted that the PGCPS could build

a school at a different location. 8

Carter Ferrington, the president of the Tantallon Citizens Association, argued that

the school could be built in another location and that the forest was very important for the

people living in the community.

Nancy Bhargava, who lives directly across from the subject property, talked about

the irreparable harm that she and other residents would incur if the trees were removed.

Brij Bhargava acknowledged that the trees had already been removed and

questioned whether the removal of the trees would cause an increase in flooding in the

area.

Herbert Jones, president of the North Tantallon Area Civic Association and a

founding member of the Alliance for Better County Transparency, adopted the comments

of the other speakers.

7
Ms. Grover did not explain how a smaller school would be either appropriate or
feasible.
8
Ms. Robinson did not offer any alternate location for the proposed public school.

7
Zanetta Walthour adopted the remarks of the other speakers. She was concerned

about flooding that might occur with the removal of the trees. She stated that the removal

of the trees would have a negative impact on her property.

Laureena Shah stated her opposition to the proposed variances and questioned

whether PGCPS had exhausted all of its options before determining to use the subject site.

Tolores Holmes echoed and endorsed the comments of the previous speakers.

Jamal Reid opposed the removal of the trees.

Angela Malone stated that removal of the trees would be an insult to the community.

She expressed a concern about the removal of trees and the effects of climate change. She

questioned the wisdom of removing trees to build a green school and suggested that the

more environmentally responsible approach would be to redevelop nearby underutilized

sites.

Saundra Hall endorsed what the previous speakers had said.

Megan Reiser, Supervisor for the County’s Environmental Planning Section,

explained the application. She noted that the site plan required mandatory referrals to the

Department of Natural Resources. She pointed out that the specific issue before the Board

was the variance for the removal of the specimen trees. She explained that the mandatory

referral process is a matter of State law and not tied to the County Code. She argued that,

under the mandatory approval process, the Planning Director is the appropriate approval

authority and that it is not necessary for there to be written findings. Nevertheless, the

Planning Director did make written findings with respect to the variances regarding the

removal of the specimen trees.

8
Jason Washington spoke on behalf of PGCPS. He said that ninety percent of the

property had been cleared and that construction was ongoing.

The Board discussed the appeal in open session and voted to deny it. The Appellants

filed a Petition for Judicial Review of the Board’s Decision. The Board moved for the

circuit court to dismiss the Petition for Judicial Review because there is no statutory right

of appeal of a determination under Prince George’s County’s Forest Conservation

Ordinance. The Appellants opposed this motion and posited that the matter could be

treated as a petition for writ of administrative mandamus under Rule 7-401 et seq. The

circuit court denied this motion to dismiss.

The circuit court acknowledged that the petition was presented as a Request for

Administrative Mandamus and, after giving due consideration of the Appellants’

arguments, dismissed the matter as moot. The circuit court found that the Appellants had

set forth no remedy, had not moved for a stay, and that the specimen trees, to whose

removal they objected, had already been removed. The circuit court also found that the

Appellants had not shown “possession of a specific and clear legal, substantial right or any

right at all to the continued existence of the specimen trees.” Accordingly, the circuit court

determined that there was no relief to be afforded to the Appellants.

The Appellants noted a timely appeal to this Court.

II. Discussion

A. Jurisdiction to Consider the Appeal

As a threshold question, PGCPS argues that this Court does not have appellate

jurisdiction over the circuit court’s dismissal of the petition for writ of administrative

9
mandamus. PGCPS bases this argument on Md. Code Ann., Cts. & Jud. Proc. § 12-302(a),

which requires a legislative grant to confer jurisdiction on the Appellate Court when the

circuit court, in its appellate capacity, has considered a petition for writ of administrative

mandamus. PGCPS urges dismissal of this action because this Court does not have

jurisdiction to entertain the appeal. Smith v. Taylor, 285 Md. 143, 147 (1979).

Appellants counter that this Court has jurisdiction over this appeal because a petition

for writ of mandamus is a common law action from which there is a right of appeal.

Appellants argue that they sought both administrative mandamus and common law

mandamus to direct that the Board issue a written decision.

Section 12-301 of the Courts and Judicial Proceedings Article provides:

Except as provided in § 12-302 of this subtitle, a party may appeal from a
final judgment entered in a civil or criminal case by a circuit court. The right
of appeal exists from a final judgment entered by a court in the exercise of
original, special, limited, statutory jurisdiction, unless in a particular case the
right of appeal is expressly denied by law. In a criminal case, the defendant
may appeal even though imposition or execution of sentence has been
suspended. In a civil case, a plaintiff who has accepted a remittitur may
cross-appeal from the final judgment.

Section 12-302(a) of the Courts and Judicial Proceedings Article provides:

(a) Unless a right to appeal is expressly granted by law, § 12-301 of this
subtitle does not permit an appeal from a final judgment of a court entered
or made in the exercise of appellate jurisdiction in reviewing the decision
of the District Court, an administrative agency, or a local legislative
body.

Our Supreme Court has directed this Court to look at the substantive relief sought

in a mandamus action to determine if we have jurisdiction to consider an administrative

appeal. Mayor and City Council of Baltimore v. ProVen Management, 472 Md. 642, 674

10
(2021). A common law writ of mandamus is an original action in the circuit court. Id.

The starting point to determine whether the Appellate Court has jurisdiction is whether

there are statutory provisions providing for appellate review. Id. at 665. No further appeal

will lie when the circuit court proceeding is in substance judicial review of an adjudicatory

decision by an administrative agency or local legislative body, pursuant to a statute,

ordinance, or charter provision, and the circuit court renders a final judgment within its

jurisdiction. Id. at 674. Prior to the enactment of Md. Code Ann., § 12-302(a), Maryland

appellate courts regularly exercised appellate jurisdiction over mandamus actions against

administrative agencies and officials. Id.

“[W]henever a circuit court directly reviews the action, or inaction, of any

administrative agency, governmental body, or official in the executive or legislative

branches of government, including local government, the court is exercising original

jurisdiction and not appellate jurisdiction.” Gisriel v. Ocean City Bd. of Sup’rs of

Elections, 345 Md. 477, 491 (1997). Circuit courts exercise appellate jurisdiction in

reviewing an action by a judicial authority or the exercise of a judicial power. Id. The

review of an administrative decision is an exercise of original jurisdiction by the circuit

court. Id.

In Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477 (1997),

Vincent Gisriel circulated a petition to bring a comprehensive zoning ordinance to

referendum. Id. at 480. The petition for referendum required the signatures of twenty

percent of the qualified voters. 345 Md. at 481. Mr. Gisriel was able to secure the

signatures of 19.81% of the qualified voters. Id. Mr. Gisriel filed a petition for writ of

11
mandamus to require the city to purge its voter rolls of unqualified voters, thereby giving

his petition the signatures of the requisite twenty percent of the registered voters to be

placed on the ballot. Id. at 483. The circuit court granted the writ of mandamus, but the

Appellate Court reversed that decision. Id. at 484. The Supreme Court took certiorari and

required the parties to answer the question as to whether the Appellate Court had

jurisdiction to consider its appeal. Id. The Supreme Court found that Mr. Gisriel’s petition

to have the Ocean City Board of Supervisors of Election purge its voter rolls was a common

law mandamus action over which the appellate courts had jurisdiction. Id. at 500-01.

In Murrell v. City Council of Baltimore, 376 Md. 170 (2003), our Supreme Court

considered whether a statutory appeal could be considered an action in mandamus. 376

Md. at 186. Cephus Murrell received notices from the City that buildings he owned were

condemned and could be razed. Id. at 176. Mr. Murrell sought administrative review of

this notice. Id. at 179. The Baltimore City Department of Housing approved the

condemnation notice. Id. at 181. Mr. Murrell filed an action to review the Department’s

decision in the Circuit Court for Baltimore City. Id. The circuit court affirmed the

decision, and Murrell noted an appeal to the Appellate Court. Id. at 181-82. Our Supreme

Court determined that, although judicial review was sought pursuant to statutory

permission, the action was in the nature of a mandamus action because the petitioner sought

to have the administrative body issue findings of fact. Id. at 199. Accordingly, the

appellate courts had jurisdiction to consider the appeal because it was an action in common

law mandamus over which the circuit court had original jurisdiction. Id.

12
In Prince George’s County v. Baretta U.S.A. Corp., 358 Md. 166 (2000), our

Supreme Court found that other possible claims that the petitioner might have could not

confer appellate jurisdiction. 358 Md. at 181. The Supreme Court held that there is no

exception to the non-appealability doctrine set forth in Md. Code Ann., Cts. & Jud. Proc.

§ 12-302(a) for issues that could have been litigated. Id. at 182. In that case, Baretta U.S.A.

Corp. (“Baretta”) filed a statutory appeal for review of an administrative decision. Id. at

170. At oral argument before the Appellate Court, Baretta challenged the validity of a

provision of the County Code that allowed for the award of damages for humiliation and

embarrassment in discrimination cases. Id. at 171. The Appellate Court held that the

provision of the County Code allowing for damages was invalid. Id. at 172. The Supreme

Court, however, held that, notwithstanding the possibility of other claims, the matter was

in the nature of an administrative appeal and that the Appellate Court did not have

jurisdiction to consider an appeal from the circuit court judgment. Id. at 182.

Appellants cite Matthews v. Housing Authority of Baltimore City, 216 Md. App.

572, cert. denied 439 Md. 330 (2014), in which this Court held that both common law and

administrative mandamus are governed by rules in the circuit court and are subject to

review by this Court. 216 Md. App. at 582. Darlene Matthews participated in a Housing

Choice Voucher Program to rent a home in Baltimore City. Id. at 574. Her participation

in that program was terminated when the Housing Authority of Baltimore City determined

that her home had an unauthorized occupant. Id. Ms. Matthews’ estranged husband,

Gerald, began to live in her home. Id. at 575. She requested that he be permitted to live in

the home. Id. The Housing Authority determined to terminate her voucher because there

13
was evidence that Mr. Matthews had been living in the home on several occasions prior to

Ms. Matthews’ request to have him added as a resident. Id. at 577-78. Ms. Matthews

appealed the decision, and the Hearing Officer found that the Housing Authority had shown

by a preponderance of the evidence that Ms. Matthews was not eligible to participate in the

voucher program. Id. at 578. Ms. Matthews filed a petition for administrative mandamus

of the Hearing Officer’s decision in the Circuit Court for Baltimore City. Id. at 575. The

circuit court affirmed the Hearing Officer’s decision. Id. Ms. Matthews noted an appeal

to the Appellate Court, which considered whether Md. Code Ann., Cts. & Jud. Proc. § 12-

302(a) divested it of jurisdiction to consider the administrative mandamus action. Id. at

579.

In Matthews, the Housing Authority contended that there is a distinction between a

petition for writ for common law mandamus and a petition for writ of administrative

mandamus. Id. at 581. We noted that both actions arise when there is no statutorily granted

right of appeal to the circuit court. Id. Administrative mandamus applies when there is a

contested case, and common law mandamus applies when there is no contested case. Id.

Both actions are guided by specific procedures and are subject to review by this Court. Id.

The Appellants first noted their appeal to the Circuit Court for Prince George’s

County as an administrative appeal under Rule 7-201 et seq. Appellees moved for

dismissal because there is no statutory right of appeal under the Prince George’s County

Tree Conservation Ordinance, and the petition was amended to be a review under Rule

7-401 et seq. The Appellants claim that their action, although not specifically pled as an

14
action for common law mandamus, was also in the nature of common law mandamus

because, as a matter of relief, they sought to have the Board issue written findings.

We conclude that there is no statutory basis for appeal under the Prince George’s

County Forest Conservation Ordinance, and that this action was an exercise of original

jurisdiction by the Circuit Court for Prince George’s County. Accordingly, this Court has

jurisdiction to review the decision of the circuit court under Md. Code Ann., Cts. & Jud.

Proc. § 12-301.

B. The Circuit Court’s Decision

1. Standard of Review

“[T]he standard of review of the grant or denial of a motion to dismiss is whether

the trial court was legally correct.” Howard v. Crumlin, 239 Md. App. 515, 521 (2018),

cert. denied, 463 Md. 153 (2019) (citing Blackstone v. Sharma, 461 Md. 87, 110 (2018)).

When reviewing a circuit court’s grant or denial of a motion to dismiss, “we must assume

the truth of the well-pleaded factual allegations of the complaint, including the reasonable

inferences that may be drawn from those allegations.” Adamson v. Correctional Medical

Services, Inc., 359 Md. 238, 246 (2000) (citations omitted). “[D]ismissal is proper only if

the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail

to afford relief to the plaintiff.” Id. (Citations omitted.) In sum, because we must deem

the facts to be true, our task is confined to determining whether the trial court was legally

correct in its decision to dismiss. Monarc Const., Inc. v. Aris Corp., 188 Md. App. 377,

384 (2009).

15
Determination of whether the circuit court erred in granting the Appellees’ motion

to dismiss is a question of law, which we review de novo. Chesapeake Bay Foundation,

Inc. v. CREG Westport I, LLC, 481 Md. 325, 336 (2021). We owe no deference to the

decision of the lower court. Talbot County v. Miles Point Property, LLC, 415 Md. 372,

384 (2010). An appellate court “must determine whether the lower court’s conclusions are

legally correct[.]” Id. (quoting Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 (2004)).

“So long as the Circuit Court applies the proper legal standards and reaches a reasonable

conclusion based on the facts before it, an appellate court should not reverse a decision

vested in the trial court’s discretion merely because the appellate court reaches a different

conclusion.” Aventis Pasteur, Inc. v. Skevofalix, 396 Md. 405, 436 (2007).

2. Mootness

The matter before the Board arose out of the Appellants’ letters, through counsel,

of June 15 and September 16, 2021. The June 15 letter stated:

I am filing on my clients’ behalf an appeal to the Planning Board of the
approval of the Type 2 Tree Conservation Plan, TCP2-007-2021 which
included the approval of a variance from Section 25-122(b)(1)(G) to allow
the removal of ten specimen trees. My clients are also appealing the approval
of a variance from Section 25-122(b)(1)(G). I have attached a copy of the
TCP2-007-2021 plan.

The September 16 letter stated:

This letter constitutes a supplement to the appeal I filed on June 15, 2021
(appeal dated June 15, 2021 is attached as Exhibit A). I am supplementing
the appeal to include the approval of an additional specimen tree on August
19, 2021. I received a copy of the approval on September 14, 2021 (Approval
attached as Exhibit B).

My clients respectfully request a hearing before the Planning Board.

16
The Board held its hearing on October 14, 2021.

The Appellants’ Petition for Judicial Review before the circuit court stated that they

were seeking judicial review, “pertaining to the decision of the Prince George’s County

Planning Board on October 14, 2021 to affirm the approval of the Type 2 Tree Conservation

Plans (TCP2-OO7-2021 and TCP2-007-01) and the associated variances from Section

25-122(b)(1)(G) to allow for the removal of eleven specimen trees at the proposed Southern

K-8 Middle School site.” The circuit court found that the Appellants had:

set forth no request for a remedy of any kind, which could address their
concerns, and the trees have already been removed, leaving any such
effective remedy no longer available. As a result, this Court is unable to
provide any relief because there is no relief to be given.

The circuit court also noted that the Appellants, despite claiming that they possessed

a clear legal right to the continued existence of the specimen trees, did not avail themselves

of any available relief for a stay pursuant to Rule 7-205. Citing Department of Human

Services v. Roth, 398 Md. 137, 143 (2007), and Suter v. Stuckey, 402 Md. 211, 219 (2007),

the circuit court noted that the appeal was moot because there was no relief that could be

offered to the Appellants.

“A case is moot when there is no longer any existing controversy between the parties

at the time that the case is before the court, or when the court can no longer fashion an

effective remedy.” Roth, 398 Md. at 143 (quoting In re Kaela C., 394 Md. 432, 452

(2006)). “[T]he doctrine of mootness applies to a situation in which past facts and

occurrences have produced a situation in which, without any future action, any judgment

17
or decree the court might enter would be without effect.” Hayman v. St. Martin’s

Evangelical Lutheran Church, 227 Md. 338, 343 (1962).

In this case, the subject specimen trees have been removed, and within the

framework of the petition before the circuit court there was no relief that could be granted.

A court may consider the merits of a moot matter if the matter presents an unresolved issue

of “important public concern that, if decided, will establish a rule for future conduct.”

Hammen v. Baltimore County Police Dept., 373 Md. 440, 450-51 (2003); see also

Department of Human Resources v. Roth, 398 Md. 137, 143-44 (2007). The Appellants

claimed, without offering any authority, that they had a substantial right in the stand of

trees on the subject property. They offered no substantive evidence as to why removal of

the specimen trees would create an adverse effect on them. Nor did they undertake any

meaningful effort to prevent the removal of the trees. Accordingly, the circuit court

correctly determined that there was no relief to be accorded. Nevertheless, the appeal does

raise a question as to who has standing to appeal a variance under a forest conservation

ordinance. For that reason, we will consider the substance of the appeal as it relates to the

issue of standing.

3. Standing

In Chesapeake Bay Foundation, Inc. v. CREG Westport I, LLC, Justice Brynja M.

Booth undertook a thorough analysis of the statutory history of the forest conservation

ordinances and the relationship of those ordinances to the regulatory scheme governing

land use. 481 Md. at 328-30. The Forest Conservation Act of 1991 (the “Act”) served to

18
protect forests by identifying and protecting sensitive areas as part of the site planning

process. Id. at 329. The Act is administered by the Maryland Department of Natural

Resources (“DNR”) and establishes standards for local jurisdictions to use, inter alia, in

mapping priority areas, development review, and approval of forest stand delineations. 9

Id. Justice Booth noted:

On a property with significant forest cover, a forest conservation plan,
as well as any variance or waivers that are granted by the approving agency
from the strict application of the provisions of the Forest Conservation Act
or local forest conservation program, may dictate the scope, location, and
placement of the building footprint and structures on the property.

Id. at 330. Md. Code Ann., Nat. Res. § 5-1611 authorizes local governments to adopt

variance procedures from their tree conservation ordinances:

(a) In the preparation of the State or local forest conservation programs, the
State and local authorities shall provide for the granting of variances to the
requirements of this subtitle, where owing to special features of a site or other
circumstances, implementation of this subtitle would result in unwarranted
hardship to an applicant.
Variance procedures
(b) Variance procedures adopted under this section shall:
(1) Be designed in a manner consistent with the spirit and intent of this
subtitle; and
(2) Assure that the granting of a variance will not adversely affect water
quality.

9
“‘Forest stand delineation’ means the methodology for evaluating the existing
vegetation on a site proposed for development, taking into account the environmental
elements that shape or influence the structure or makeup of a plant community.” Md. Code
Ann. Nat. Res. § 5-1601(p).

19
Variances from the Trees and Vegetation Ordinance are subject to the requirements of

Section 25-119(d) of the County Code:

(1) An applicant may request a variance from this Division as part of the
review of a TCP [Tree Conservation Plan] where owing to special features
of the site or other circumstances, implementation of this subtitle would
result in unwarranted hardship to an applicant. To approve a variance, the
approving authority shall find that:
(A) Special conditions peculiar to the property have caused the
unwarranted hardship;
(B) Enforcement of these rules will deprive the applicant of rights
commonly enjoyed by others in similar areas;
(C) Granting the variance will not confer on the applicant a special
privilege that would be denied to other applicants;
(D) The request is not based on conditions or circumstances which are
the result of actions by the applicant;
(E) The request does not arise from a condition relating to land or building
use, either permitted or nonconforming, on a neighboring property; and
(F) Granting of the variance will not adversely affect water quality.
(2) Notice of a request for a variance shall be given to the State of Maryland
Department of Natural Resources within 15 days of receipt of a request for a
variance.
(3) Variances shall be approved by the Planning Board, Zoning Hearing
Examiner, and/or the District Council for all tree conservation plans that are
associated with applications heard by them. The Planning Director may
approve variances for tree conservation plans that are not associated with
applications heard by the Planning Board, Zoning Hearing Examiner and/or
the District Council. The Planning Director’s decisions are appealable to the
Planning Board.
(4) Variances granted under this Subtitle are not considered zoning
variances.

(Emphasis added.)

Consideration of a forest conservation plan (and by extension a variance from the

forest conservation requirements) is a separate regulatory process from zoning

considerations. CREG Westport, 481 Md. at 350-51; see also Md. Code Ann., Nat. Res.

§ 5-1608(b).

20
Notwithstanding the statutory separation between variances from the Tree and

Vegetation Ordinance and the considerations regarding variances from a zoning ordinance,

Appellants cite a number of zoning decisions to argue that the PGCPS did not meet the

legal standards for a variance.

Appellants cite Montgomery County v. Rotwein, 169 Md. App. 716 (2006), for the

proposition that the combination of wetlands and woodlands on the subject property cause

the “zoning provision to impact disproportionately” on it. 169 Md. App. at 727-28. An

applicant must demonstrate that the application of the zoning ordinance to the unique

characteristics of the land would cause “peculiar or unusual practical difficulties” that

justify the variance requested. Id. at 727. The Appellants’ reliance on Rotwein is

misplaced. The Trees and Vegetation Ordinance does not look at the disproportionate

impact of the variance. Instead, the Trees and Vegetation Ordinance makes DNR an

interested party by requiring that notice of the application be served on DNR. The people

of Maryland, through DNR, therefore, are the potential aggrieved party because of DNR’s

statutory role in overseeing forest conservation plans. CREG Westport, 481 Md. at 329. It

is also noteworthy, that under Md. Code Ann., Land Use § 20-303, the Commission need

only communicate reasons for its decision if it denies an application.

Appellants also rely on Dan’s Mountain Wind Force, LLC v. Allegany County

Board of Zoning Appeals, 236 Md. App. 483 (2018), to contend that there was no showing

of a practical difficulty that would have deprived the Board of Education of reasonable and

significant use of the entire parcel. 236 Md. App. at 492. In Dan’s Mountain, we focused

on uniqueness as an aspect of the test for considering a zoning variance. Id. at 494-95.

21
Uniqueness is a necessary element of the variance test, allowing a zoning board “to

determine whether the zoning law’s effect on [the] property is particularized to that given

property.” Id. at 494. We observed in Dan’s Mountain that:

First, if the allegedly restrictive effect of the zoning law is not unusual, and
a characteristic is shared by many properties, the problem ought to be
addressed by legislation . . . .

Second, and similarly, the uniqueness analysis guarantees that a granted
variance cannot act as a precedent in an application regarding another
property. If the effects of the zoning law operate similarly to the way in which
they operate on a separate applicant property, the uniqueness requirement is
likely not satisfied. Finally, in an analogous situation, the [Supreme Court]
has noted that uniformity of the application of zoning laws—accomplished
in part by requiring that properties exempt from those laws be unique—
performs a “critically essential function,” by “protect[ing] the landowner
from favoritism towards certain landowners within a zone by the grant of less
onerous restrictions than are applied to others within the same zone.”

Id. at 494-95. Carney v. City of Baltimore, 201 Md. 130 (1952), stands for the proposition

that applications for a variance are not merely for the owner’s convenience. 201 Md. at

137.

“The cardinal rule of statutory interpretation is to ascertain and effectuate the real

and actual intent of the Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010). “If

the language of the statute is unambiguous . . . , our inquiry” ends with “the statute as

written, without resort to other rules of construction.” Id. at 275. The language “must be

viewed within the context of the statutory scheme to which it belongs[.]” Id. at 276.

Further, “[w]e presume that the Legislature intend[ed] its enactments” to act as a

“harmonious body of law.” Id.

22
Appellants’ reliance on these cases is mistaken because the present case manifestly

does not involve zoning. Section 25-119(d)(4) of the County Code specifically provides

that variances in this context are not zoning variances. A comparison of the criteria for a

variance from the Trees and Vegetation Ordinance, found in Subtitle 25 of the County

Code, and a variance from the Prince George’s County Zoning Ordinance, found in Subtitle

27 of the County Code, is instructive. Section 27-230(a) of the County Code, which sets

for the criteria for granting zoning variances, provides:

A variance may only be granted when the District Council, Zoning Hearing
Examiner, Board of Appeals, or the Planning Board as applicable, finds that:
(1) A specific parcel of land is physically unique and unusual in a manner
different from the nature of surrounding properties with respect to
exceptional narrowness, shallowness, shape, exceptional topographic
conditions, or other extraordinary conditions peculiar to the specific parcel
(such as historical significance or environmentally sensitive features);
(2) The particular uniqueness and peculiarity of the specific property causes
a zoning provision to impact disproportionately upon that property, such that
strict application of the provision will result in peculiar and unusual practical
difficulties to the owner of the property;
(3) Such variance is the minimum reasonably necessary to overcome the
exceptional physical conditions;
(4) Such variance can be granted without substantial impairment to the intent,
purpose and integrity of the general plan or any area master plan, sector plan,
or transit district development plan affecting the subject property; and
(5) Such variance will not substantially impair the use and enjoyment of
adjacent properties.
(6) Notwithstanding any other provision of this Section, a variance may not
be granted if the practical difficulty is self-inflicted by the owner of the
property.

(Emphasis added).

The requirements for a zoning variance require that the subject parcel be “physically

unique and unusual in a manner different from the nature of surrounding properties with

23
respect to exceptional narrowness, shallowness, shape, exceptional topographic conditions,

or other extraordinary conditions peculiar to the specific parcel.” County Code,

§ 27-230(a). Uniqueness is essential to the granting of a zoning variance because it is a

test as to whether the application of the zoning law is particularized to the subject property.

Dan’s Mountain, 236 Md. App. at 494.

This language is distinct from the requirements of Section 25-119. For a variance

from the Trees and Vegetation Ordinance, the applicant must show, “to special features of

the site or other circumstances, implementation of this subtitle would result in unwarranted

hardship to an applicant.” County Code, § 119(d). The focus is on the special features of

the site, and not its uniqueness. In other words, the focus is on how the special features of

the site affect the proposed use of the land.

The grant of a zoning variance requires consideration of whether the granting of the

variance will impair use and enjoyment of adjacent properties. County Code,

§ 27-230)(a)(5). There is no corresponding provision for a variance under the Trees and

Vegetation Ordinance. Again, there the focus is on the effect on the subject parcel. The

legislature was specific in pointing out that a variance under Subtitle 25 of the County Code

was not a zoning variance. The legislature also did not use the word “unique” in Section

25-119(d) of the County Code. These word choices by the legislature confirm that

variances under Section 25-119(d) are substantively different from variances under Section

27-230. Accordingly, the Appellants’ reliance on zoning decisions to suggest that the

Board did not give proper consideration to the uniqueness of the subject property or the

effect of the tree variance on surrounding properties is without merit.

24
The notice provisions for variances under the Trees and Vegetation Ordinance

provide that an application is to be served on DNR. There is no corresponding obligation

under the Zoning Ordinance. This requirement speaks to who the interested parties are in

a variance under the Trees and Vegetation Ordinance: the property owner and DNR.

Adjacent property owners are not mentioned as potentially interested parties. As the trial

court correctly noted, the Appellants did not point out any cognizable right that they had

to the trees on someone else’s property. The interest is that of the people of Maryland

through the offices of DNR.

The circuit court correctly determined that the Appellants had no cognizable right

in the trees on the subject property. The County Code is clear that variances under Subtitle

25 are to look at the use of the property itself, and that variances under Subtitle 27 require

the property to be unique and further to consider the effect on surrounding properties. This

distinction plainly demonstrates that the Appellants had no legally cognizable interest in

the tree variance.

C. Conclusion

This Court can exercise jurisdiction here because the action before the circuit court

was a matter of original jurisdiction in the manner of seeking mandamus relief, which

included an order to direct the Board to issue written findings. The circuit court correctly

dismissed the Petition for Administrative Mandamus because the Appellants could not

provide any cognizable interest in the subject trees, nor did they undertake any effort to

block their removal. Accordingly, we affirm the decision of the Circuit Court for Prince

George’s County dismissing the Appellants’ Petition for Administrative Mandamus.

25
JUDGMENT OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY IS
AFFIRMED. APPELLANTS TO PAY COSTS.

26