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Development


Prince George's is way behind on smart growth. Courts are helping it catch up.

For decades, Prince George's County has seen less commercial and high-density residential development than its peers in Montgomery, Arlington, and Fairfax, particularly around its 15 Metro stations. That could begin to change now that Maryland's highest court has smoothed the path for new development there.


Maryland court image from Shutterstock.

In a game-changing decision last month, the Maryland Court of Appeals ruled that the Prince George's County Council cannot deny approval of new development projects after the county's planning board approves them, except in extreme circumstances.

Previously, the council's ability to overrule planning board decisions made it nearly impossible to predict which developments might ultimately win approval, and which might never see the light of day.

With such uncertainty hanging over every proposal, developers stayed away. Now, with much less threat of a last-minute council veto, developers may become more likely to build quality projects in Prince George's.

Details of the court case

The court ruling states the council cannot overrule decisions of the planning board in development review matters unless those decisions lacked supporting evidence or were otherwise arbitrary, capricious, or illegal.

Maryland law gives the Prince George's County Planning Board broad authority to review and either approve or deny development proposals.

The county council, on the other hand, has more discrete, but nevertheless significant, powers under state law when it comes to development. It appoints members of the planning board, sets zoning, and rules on appeals from the planning board. But the council cannot, according to this court ruling, overrule the board's decisions on individual development cases, unless the board committed some sort of legal error.

Before this decision, the county council always purported to exercise "original jurisdiction" when it reviewed the planning board's decisions. This allowed the council to decide cases however it wanted, as long as there was evidence to support their decision.

The court, however, said that approach was incorrect. The county council does not have original jurisdiction. Rather, like an appeals court, the county council only has "appellate jurisdiction," meaning it has to assume the planning board's decision was correct, unless the board's decision was legally wrong or wholly lacked evidence.

In other words, the council can no longer simply take development review into its own hands and overrule the planning board's judgment whenever it wants.

Importantly, the court's decision does not eliminate public input from the process. The public still has a full right to argue before the planning board, and can still appeal to the council and then to the courts if they are aggrieved by the board's decision. However, appeals must be based on a legal error, not simple opposition to the project.

The CVS that started it all

This lawsuit arose out of a nearly 10-year effort to build a CVS in Adelphi.


A CVS. Not the one in Adelphi. Photo by Mike Mozart on Flickr.

The case began in 2004, when the county rezoned the property to allow retail. In 2011, a developer submitted a site plan for the CVS. The planning board approved the site plan, saying it met the rules of the retail zone.

No one appealed the planning board's decision, so everything seemed a go. Until the county council called up the case. They wanted changes, so they sent it back to the planning board with instructions to reconsider a few issues.

In 2012, the planning board approved the site plan again, this time with a few modifications in response to the council's requests. Again, no one appealed.

But once again, the council called up the case for review. This time, they denied the application altogether, after the council member in whose district the property lay spoke against it.

The council listed 14 reasons for its denial, none of which related to the original issues the council had first raised in its 2011 call up.

The developer sued, and three successive courts found the county council in the wrong.

A win for smart growth

A suburban-style CVS in Adelphi may not be the kind of development smart growth advocates usually hope for. But this case will ultimately make approval of genuine smart growth projects easier, by reducing the role of politics in development review.

Bottom line: No longer will developers have to work for years on a seemingly-approvable project, only to have the council yank the floor out from beneath them at the eleventh hour. Rather than leaving development up to the political whims of the county council, this court decision will hopefully allow objective law to rule Prince George's County development review.

A version of this post appeared on Prince George's Urbanist.

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Public Safety


Mary Cheh wants to change the definition of assaulting a police officer. Here's why that's important.

On Tuesday, Ward 3 DC Councilmember Mary Cheh introduced a bill to reform some elements of criminal justice procedure. It would change the law around "assaulting a police officer," strengthen prosecutors' duty to turn over evidence to defendants, and other things. Why does Cheh feel these laws need reforming, and what will her bill do?


Image by chriswhite313 on YouTube.

First, a quick quiz: Which of the following would be considered "assaulting a police officer"?

  1. Punching a police officer in the face.
  2. Standing behind a gate holding it closed while an officer tries to push it open.
  3. Sitting in your car grabbing the steering wheel while an officer tries to drag you out of your car.
  4. Standing at a Metro station with your hands in your pockets, refusing to take them out of your pockets when an officer commands you to.
  5. Being a Metro passenger and having transit police drag you from your wheelchair and smash your face into the ground.

If you guessed just #1, you are wrong.

All of these are cases which happened in recent years and where people were charged with Assaulting a Police Officer (APO). The DC Court of Appeals upheld APO convictions in #1, #2, and #3. The US Attorney argued #4 was APO, but the appeals court said no. In #5, charges were dropped after the incident was caught on video.

This post revises and expands on one from 2011 on this issue, when incident #5, above, was in the news.

When assault means assault

#1 is obvious. If you do that you can be charged with a felony APO. DC law § 22-405, "Assault on member of police force, campus or university special police, or fire department," reads:

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10,000, or both.
But the law contains another kind of APO, a misdemeanor, which most of us would probably not consider "assaulting" a police officer. It's more like what we think of as "resisting arrest."
(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.
To be guilty of misdemeanor APO, someone might need to only "oppose" a law enforcement officer without cause. Courts have drawn a distinction between "passive" resistance, like slumping to the ground when being arrested in a protest, versus "active" resistance against the officer's actions. That's why the court overturned a conviction in Ava Howard v. United States (#4 in the quiz), where a trial court only found Howard guilty of refusing to sit down and take her hands out of her pockets.


Riot image from 1000 Words / Shutterstock.com.

When it's really just resisting arrest

But in other cases, the Court of Appeals has upheld APO convictions even without evidence of actions that the average person might consider "assault." In Dolson v. United States, Dolson ran from police and went to his own house, where he went inside a chain link fence. Dolson pushed the gate closed while the officer tried to push it open. The Court of Appeals upheld Dolson's conviction just based on this action, finding it constituted misdemeanor APO.

In Coghill v. United States, the court upheld a conviction for misdemeanor APO. Coghill was stopped by police while driving a car and refused to let police search it. He got out of the car at their instruction, but at some point got back in. Officers tried to drag him out of the car, but he braced himself against the floorboards and gripped the steering wheel.

The court held that it counts as "assaulting a police officer" just to be "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him" and upheld Coghill's conviction.

Why does this matter?

If someone is convicted of misdemeanor APO, a future employer might look at their record and think they're quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer.

If the police respond to someone resisting arrest by savagely beating him or her on the ground, as has happened in some places, it can be very difficult to file a civil rights lawsuit with a conviction for "assaulting a police officer," even if it's again not really what most people consider "assaulting."

In one incident, New Jersey police beat a Rutgers student who was lying on the ground, all the while yelling "stop resisting." And in 2011, a shocking video showed transit police roughly dragging Dwight Harris, a homeless man in a wheelchair, out of his chair. They charged him with APO, but dropped the charges after the video surfaced.

It's important to keep in mind that some people really do hit police officers, and many who do should be prosecuted. Legally, "assault" also covers more than just physically punching; it includes spitting on someone or threatening to cause physical injury, for example.

Dolson, for instance, did end up hitting an officer in the face and breaking his nose later on, after the chain link fence shoving match. Neighbors say this was self-defense and the officer was choking Dolson. Without video, we can't really know.

If there hadn't been video of Dwight Harris, the charges might have stuck, too. This is the same pattern we've been seeing in high-profile cases around the country, where the presence of bystanders with camera phones belies a police claim of why they had to hit, shoot, or even kill someone.

(Disclosure: My wife works for the DC Public Defender Service. She did not work on any of the cases listed in this article, and nothing here represents the official opinion of the Public Defender Service.)

Cheh's bill makes APO into two offenses

Among other changes, Mary Cheh's bill deletes the "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer" language. Instead, it creates two, separate misdemeanor offenses, both punishable to the same degree (up to $1,000 or six months in prison).

One, Assaulting a Police Officer, would get narrower. Instead of "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer..." the law would read just "knowingly assaults a law enforcement officer." Someone accused of this would also have the right to a jury trial.

But the bill also adds language saying, "A person may not intentionally resist a lawful arrest; or prevent an individual who the person has reason to know is a law enforcement officer from making or attempting to make a lawful arrest or detention of another person."

It'd still be illegal, and a misdemeanor, to resist arrest. However, this would only apply while an officer is trying to make a "lawful arrest," not at any time whatsoever as under current law.

That's not all

APO and resisting arrest represent just one of the sections of the bill. Another would codify and expand prosecutors' duty to turn over evidence, especially evidence that could help the defendant. One section would make more information available to the Office of Police Complaints, which handles—you guessed it—complaints against police.

Another would set stricter standards for how police get eyewitnesses to make identifications, ensuring that if the witness is looking at a set of photos, for instance, the process doesn't unfairly bias the witness toward picking out the person the police have in mind.

This bill is just one of many that councilmembers introduced at the latest legislative session. Kenyan McDuffie (Ward 5) now chairs the judiciary committee and will decide whether to hold a hearing on the bill. If he does (and he ought to), prosecutors and/or police may oppose some provisions, and the legislative process will determine what, if anything, becomes law.

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Education


Charter schools sue for more funding, and the result could be a setback for home rule

A group of charter schools claims the DC government spends about $2,000 less per student on the charter sector than on DC Public Schools each year, in violation of federal law. Opponents say that requiring strict equality in funding between the sectors makes no sense.


Photo of judge with scale from Shutterstock.

But if a federal court buys the charters' legal argument, its decision could have far-reaching implications not only for education in DC but also for the issue of home rule in general.

The DC Association of Chartered Public Schools, which represents 39 charter schools, filed a complaint in federal court in July along with two individual charters, Eagle Academy and Washington Latin. The schools say the District has shortchanged the charter sector by more than $770 million over the past eight years.

The group is not seeking to recover that amount, but it does want the court to order DC to fund the two sectors equally in the future. The group claims the DC School Reform Act, which was enacted by Congress in 1996, required the DC Council to create a per-pupil funding formula that is the same for both DCPS and charters, and not to supplement that amount with any additional funds for DCPS.

"Nobody really wants to sue," says Robert Cane, executive director of a charter advocacy organization called FOCUS. But, he says, the charter community has been trying to negotiate with DC on the funding issue for many years, without success.

Last week, the DC Office of the Attorney General (OAG) asked the court to throw out the lawsuit, arguing that even if the funding is unequal—something DC isn't conceding—the DC Council had the right to amend the federal statute under the Home Rule Act.

Legal issues and home rule

Everyone agrees that under the Home Rule Act, passed in 1973, Congress delegated legislative control to the DC Council over local matters like education. All legislation in these areas passed by the Council goes to Congress for a 30-day review period, but if Congress doesn't act, the legislation goes into effect.

But the charters argue that when Congress passed the School Reform Act 23 years later, it was reclaiming the legislative authority over DC granted to it by the US Constitution. That means, they say, that the DC Council has no authority to change fundamental provisions of the Act. The District says this argument is a "novel" one that has no basis in the law. The charter group will file its response to DC's legal arguments in November.

Some observers argue that the charter group's interpretation of the law would be unworkable. Under their view, says Matt Frumin, a DC education activist, "in order for the District to make any significant modifications to education, we would need to have a law passed by two houses of Congress and signed by the President."

Cane counters that congressional action is only needed for "substantive changes that violate the letter of the law or the intent of Congress," not for "technical fixes." But Frumin responds that that the School Reform Act doesn't make that distinction. Nor, he says, is it clear who would decide what is "substantive" and what is merely "technical."

Different sectors have different costs

Aside from the legal issues, some say there are policy reasons to treat charters and DCPS differently. A DC-commissioned study released last year found that it was impossible to compare costs in the two sectors accurately. Each charter school has its own accounting system, and DCPS has yet a different one.

While the study acknowledged that DCPS gets more funding per pupil, it also concluded that DCPS's per pupil costs are much higher. Not only does DCPS, unlike the charter sector, need to pay union wages, it also has to maintain a lot of unused space because it's required to serve all grade levels in every neighborhood. The study estimated that DCPS needs only about 70% of the space it's currently maintaining.

DCPS schools also include facilities like pools and auditoriums that serve other community purposes. And DCPS buildings also tend to be older than those used by charters and more expensive to maintain.

Given the sectors' different cost structures, Frumin argues that charter advocates "are saying either give DCPS less than it needs to succeed, or give charters more, in the name of mathematical parity." Instead, he says, schools should be funded on the basis of what they actually need to educate children well.

Robert Cane of FOCUS responds that DCPS hasn't been forthcoming about its true operational expenses, and that the numbers the school system puts out have varied wildly. "This is all made up after the fact," he says.

Cane acknowledges that the per-pupil allotment for charters in DC is generous compared to what charters get in many other jurisdictions, but he says that's not the issue.

"It's very expensive to educate these kids," he says. "We have more poor and minority kids than DCPS has. If we have more of these kids, why should we have less money?"

The implications of the lawsuit

But the federal district court isn't considering these policy questions. It's only concerned with the law. If the court sides with the charter group and requires strict equality in funding, the result will be either that DCPS funding goes down or charter funding goes up.

If DCPS loses funding, it will have an even tougher time competing with the charter sector. If charter funding goes above its current relatively generous level, even more charter operators may be drawn to the District, and the charter sector's share of students could grow well above the 44% it stands at now.

Beyond that, the charter group's interpretation of the law of home rule would significantly limit DC's autonomy. If the courts accept the charters' argument, any time Congress passes legislation specifically directed at the District, DC authorities will lose their ability to change that law and then interpret congressional silence as acquiescence.

DC's charter sector has some legitimate grievances, especially when it comes to the difficulty of finding suitable space for schools. And no doubt charters here could find good uses for additional funds.

But it's far from clear they need more money to do a good job of educating their students. DC's charter sector was recently declared the best in the nation by the National Alliance for Public Charter Schools. And most charters here have a comfortable financial cushion, with the sector as a whole listing $283 million in assets at the end of fiscal year 2013.

Given those circumstances, it's difficult to see why they would choose to jeopardize DC's hard-won legislative autonomy in a bid for more funding.

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