Anne Arundel County v. Moushabek, 84

Citation306 A.2d 517,269 Md. 419
Decision Date01 September 1973
Docket NumberNo. 84,84
PartiesANNE ARUNDEL COUNTY, Maryland v. Edmond I. MOUSHABEK et al. ,
CourtCourt of Appeals of Maryland

Ira J. Wagonheim and John M. Court, Asst. County Sol. (Paul F. Borden, County Sol., Annapolis, on the brief), for appellant.

Jay I. Morstein, Baltimore (Stephen H. Sachs and Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH, Judge.

We are here presented with the question of whether amendments to an Anne Arundel County zoning ordinance were properly adopted and, if not, whether their invalidity vitiates the entire zoning ordinance. We shall answer both questions in the negative.

On October 2, 1972, the County Council (the council) of Anne Arundel County (the county) adopted Bill No. 136-72, a comprehensive zoning ordinance for the northern portion of the third assessment district of that county. A public hearing on the ordinance had been held on September 18, 1972. After the hearing a number of amendments to the bill were proposed by various council members. At the October 2 meeting at which the ordinance was adopted by the council, 97 of those amendments were also adopted. The county executive approved and signed the bill, after first vetoing 34 of the amendments pursuant to the item veto provisions of the county charter. The council sustained 14 of the vetoes and overrode 20.

The problem here arises under § 307(e) of the county charter. In setting up the procedure for passing ordinances it provides in pertinent part:

'Not later than the next calendar day following the introduction of a bill the Chairman of the Council shall schedule a public hearing thereon which shall not be less than seven days after its introduction; provided that the Council may reject any ordinance on its introduction without a hearing by a vote of five members. The hearing may, but need not be, held on a legislative session-day and may be adjourned from time to time. After the public hearing as herein provided, a bill may be finally passed on a legislative session-day with or without amendment, except, that if a bill is amended before final passage and the amendment constitutes a change of substance, the bill shall not be passed until it is reprinted or reproduced as amended and a hearing shall be set thereon and proceedings had as in the case of a newly introduced ordinance.' (Emphasis added.)

The subsection further provides that it 'shall not be applicable to emergency ordinances and the annual budget and appropriation ordinance of Anne Arundel County . . ..' This was not an emergency ordinance. It is conceded that no hearing was held by the council between the time of adoption of the amendments and final passage. The key question, therefore, is whether these were amendments 'of substance.' There is no contention that the charter provision here is anything other than mandatory if these amendments are found to be amendments 'of substance.'

The appellees are owners of real property in the area rezoned by the ordinance. They sought, successfully, in the Circuit Court for Anne Arundel County to strike down the ordinance by reason of the claimed procedural defect. The chancellor in his opinion made no reference to the question of severability there and here raised by the county, apparently concluding that the procedural defect invalidated the entire ordinance.

Each and every one of the 97 amendments to the bill changed zoning for a particular area. The county's concept of the meaning of the term 'change of substance' is a change outside the scope of the title. It points out that this ordinance was intended to apply to the third assessment district. It says that if there had been an attempt to amend the ordinance by providing for zoning in a portion of the fourth district, this would have necessitated an amendment to the title of the ordinance and thus would be an amendment of substance. It then argues that the title of the ordinance is enough to place interested citizenry on notice that their property may be affected and they thus have the obligation to follow the path of the bill through the council. Alternatively, it suggests that the specific amendments complained of by the appellees concern approximately 342 acres of land out of more than 30,000 acres affected by the bill and thus suggests that the amendments do not constitute changes of substance.

The Anne Arundel County charter is to its legislative body as the Constitution of Maryland is to the General Assembly of Maryland. In Legg v. Annapolis, 42 Md. 203 (1875), Judge Alvey said for the Court:

'A valid statute can only be passed in the manner prescribed by the Constitution, and when the provisions of that instrument, in regard to the manner of enacting laws, are wholly disregarded, in respect to a particular Act, it would seem to be a necessary conclusion that the Act, though having the forms of authenticity, must be declared to be a nullity. Otherwise the express mandatory provisions of the Constitution would be of no avail or force whatever.' Id. at 221.

Hence, we must ascertain whether in this instance the council in enacting the ordinance complied with the provisions of the charter.

There may be a possible parallel between this charter provision and some of our criminal cases. Clerks of court for generations in accordance with Maryland Rule 714 and its predecessor statutes have said to grand juries, 'Are you content that the Court shall amend matters of form, altering no matter of substance without your privity in those bills you have found?' On this subject Judge Horney said for the Court in Lank v. State, 219 Md. 433, 149 A.2d 367 (1959):

'As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else-including the order of arrangement and precise words, unless they alone will convey the proper meaning-is formal. 27 Am.Jur., Indictments and Informations, § 117.' Id. at 436, 149 A.2d at 368.

In Corbin v. State, 237 Md. 486, 206 A.2d 809 (1965), Judge Marbury alluded to Lank and its holding. He then said for the Court:

'We have held in the past that a criminal charge must so characterize the crime and describe the particular offense so as to give the accused notice of what he is called upon to defend and to prevent a future prosecution for the same offense. (Citing cases.) Under the circumstances as presented here changing the name of the owner of the property constituting the subject matter of the crime charged was a change in form and not substance, since none of the essential elements of the offense was changed, and therfore the amendment was properly allowed and resulted in no prejudice to the rights of the accused. Annotation, 68 A.L.R. Power of court to amend indictment, p. 928.' Id. at 490, 206 A.2d at 811.

Another possible parallel is to be found in the holdings of our sister states relative to pleading. In Barber v. Briscoe, 8 Mont. 214, 19 P. 589 (1888), the court gave illustrations of an amendment of substance as:

'where some material allegation has been left out of the original complaint, as, for instance, in a suit to recover on a note payable at a certain place, the failure to allege presentation and dishonor at the place of payment; or, in a suit to recover damages for a malicious prosecution, the failure to allege malice, or that the prosecution was without probable cause, or that it had been terminated in favor of the plaintiff.' Id. at 218-219, 19 P. at 590.

In Western Smelting Co. v. Benj. Harris & Co., 302 Ill.App. 535, 541, 24 N.E.2d 255 (1939), an amendment materially increasing the ad damnum was held to be an amendment of substance. See also 3 Words and Phrases (permanent ed. 1953) 471 'amendment of substance.'

Black's Law Dictionary (4th ed. 1951) defines 'substance' as:

'Essence; the material or essential part of a thing, as distinguished from 'form.' . . . That which is essential.' Id. at 1597.

We find persuasive the language used by the New Jersey courts relative to a provision somewhat similar to the charter provision here. In New Jersey a statute (N.J.S.A. 40:49-2(c)) provides relative to certain ordinances:

'If any amendment be adopted, substantially altering the substance of the ordinance . . .,' (Emphasis added.)

certain procedures shall be followed. Their interpretation of that section strikes us as being in line with Black's definition and not inconsistent with our holdings in criminal matters. In Wollen v. Fort Lee, 27 N.J. 408, 142 A.2d 881 (1958), a zoning ordinance was amended without following that procedure. The court there said:

'The words are to be assessed in the context of the provision of which they are a part and the basic policy of the statute. 'Substance' in the statutory intendment has reference to the essential elements of the legislative act and the public policy of acts in pari materia. In relation to the altered use-classification of the tract itself, the establishment of a 'buffer' zone 50 feet wide for entrance ways and landscaping usable in part for off-street parking and garages was patently incidental to the fulfillment of the basic project, secondary or minor in a design for the highest and best use of the lands in the exercise of the zoning process. Compare Manning v. Borough of Paramus, 37 N.J.Super. 574, 118 A.2d 60 (App.Div.1955), Jayne, J. A. D. And the 'enlarged restraint,' if such it be, imposes no burden on plaintiffs; they are not aggrieved. See State v. Council of Newark, 30 N.J.L. 303 (Sup.Ct.1863). The statute has in view pragmatic considerations that would not be served by holding republication of the amendment requisite in these circumstances. The act is to be given a reasonable construction to advance the essentials of the avowed policy.'...

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