City of New Carrollton v. Belsinger Signs, Inc., 397
| Decision Date | 03 July 1972 |
| Docket Number | No. 397,397 |
| Citation | 292 A.2d 648,266 Md. 229 |
| Parties | CITY OF NEW CARROLLTON v. BELSINGER SIGNS, INC. |
| Court | Maryland Court of Appeals |
Carr, Bonner, O'Connell, Kaplan, Thompson & Diuguid, Daniel R. Thompson and George W. Shaffer, Rockville, on brief for appellant.
James J. Lombardi, Lombardi, Casula & Hertz, Upper Marlboro, and Frank W. Braden, Jr., Bethesda, on brief for appellee.
Submitted to BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ., and IRVING A. LEVINE, Special Judge.
The appellant (Carrollton) is the Johnny-come-lately (1953) of Prince George's County's 29 incorporated towns. It lies just inside the Capital Beltway (U.S. 495) and immediately north of Maryland Route 450.
In 1963 its City Council adopted an ordinance to regulate 'signs, billboards and other advertising devices' within the corporate limits of the town. Section 3(5)(a) of the ordinance is as follows:
Section 5 of the ordinance, oddly enough, seems to make it possible for the Council to abrogate its provisions virtually at will. Section 5 provides that:
'Upon request for an exemption to the provisions of this ordinance made in writing to the Mayor and Council by a person seeking to erect, repair or alter a sign within the corporate limits of the City of Carrollton, the Mayor and Council may, upon a showing of reasonable grounds therfor by the person seeking said exemption, grant the exemption request and permit the desired erection, repair or alteration of a sign although all of the requirements of this ordinance have not been complied with.'
In 1968 the Marriott Corporation decided to put one of its restaurants in what is known as the Plaza 30 Shpping Center. The site selected for the purpose was adjacent to Route 450 but some 20 feet below the surface of the road. As a result passing motorists often failed to see either the restaurant or the small sign on its rooftop. To overcome this disadvantage Marriott, in the fall of 1970, contracted with the appellee (Belsinger) for the construction, using bricks and cinder blocks, of a 'doublefaced, internally lit, free-standing' sign to be placed alongside the highway so as to be visible to passing motorists. The shopping center had erected a sign listing its shops but Marriott, for reasons undisclosed, had not been able to have its restaurant included.
Unaware of the Carrollton ordinance Belsinger applied to the Prince George's County Department of Inspection and Permits for a building permit. The applicable county zoning ordinance appears to have been Section 25.62(b)(1) of the Prince George's County Zoning Ordinance, which is as follows:
'(b) In the C-1, C-2, I-1, I-2, R-P-C(C-1), R-P-C(C-2), R-P-C(I-1), and R-C-P(I-2) Zones, a free standing or ground supported sign identifying an integrated shopping center, or integrated industrial center may be erected, subject to the following conditions and requirements:
(1) Total Street Frontage on No. of Signs
All Streets of Center Permitted
0 to less than 100 feet None
100 to 1,100 feet One
Each additional 1,000 feet
or fraction thereof One "
On 10 September the Maryland-National Capital Park and Planning Commission (M-NCPPC) approved Belsinger's application. The county issued the permit on 14 September. The sign was erected in March 1971 at a cost of $9,306.
Soon after Belsinger had erected the sign Carrollton's City Administrator notified him that it was in violation of Section 3(5)(a) of the ordinance. Belsinger applied immediately for a permit and the waiver provided by Section 5. The Council turned him away and ordered the removal of the sign. On 26 May Belsinger filed his bill of complaint for a declaratory judgment and temporary injunctive relief. The case came on for trial before the chancellor, Bowie, J., on 2 September 1971. On 13 January 1972 Judge Bowie signed and filed a decree declaring the County Council, sitting as the District Council, to have the exclusive right and power to regulate zoning and signs in Prince George's County (except in the City of Laurel), and declaring Section 3(5)(a) of the Carrollton ordinance to be null and void.
Chapter 780 of the Laws of Maryland of 1959 continued the existence and amplified the jurisdiction and powers of the M-NCPPC (created in 1927), the 'Metropolitan District' and the 'Regional District' which presently comprises all of Montgomery County and all of Prince George's County except the town of Laurel. See Chapter 373, Laws of 1965; Prince George's County v. Laurel, 262 Md. 171, 185, 277 A.2d 262 (1971). Within the Regional District the County Councils of Montgomery and Prince George's counties are empowered to regulate
'. . . (1) the location, height, bulk, and size of buildings and other structures, building lines, minimum frontages, depths and areas of lots, and percentages of lots which may be occupied; (2) the sizes of yards, courts, and other open spaces; (3) the erection of temporary stands and structures; (4) the density and distribution of population; (5) the uses of buildings and structures for trade, industry, residence, recreation, agriculture, public activities, or other purposes; and (6) and uses of land for trade, industry, residence, recreation, agriculture, forestry, or other purposes. . . .' Laws of 1959, ch. 780, § 75.
Section 57 of the 1959 act enlarged the boundaries of the Regional District and went on to provide in subsection (d)(3) that:
'No municipal corporation within either of the areas added by this sub-section to the Regional District shall be authorized, by means of an amendment to its charter or otherwise, to exercise any of the powers relating to planning, sub-division control, or zoning now or hereafter granted by this Article to the Commission or the County Commissioners of Prince George's County. . . .'
There can be no doubt (indeed Carrollton concedes) that the power to zone within the Regional District is vested exclusively in M-NCPPC and the District Councils. But we are not unmindful of section 4.01(a) of the state-wide planning and zoning law, Code (1970 Repl.Vol.), Art. 66B, which provides:
'For the purpose of promoting health, safety, morals, or the general welfare of the community the legislative body of counties and municipal corporations are hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that my be occupied, off-steet parking, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, signs, structures and land for trade, industry, residence or other purposes.' (Emphasis added.)
While subsection 4.01(a) seems to empower municipal corporations to zone and to regulate signs it is entirely clear that in the Regional District it is without force or effect. Section 7.02 of Art. 66B provides that
'. . . within the limits of the Maryland-Washington regional district . . . insofar as the provisions of this artice may be inconsistent with or conrrary to the provisions of Chapter 992 of the Laws of Maryland of 1943, as amended (an earlier version of the Regional District Act); such provisions shall have no application within the Maryland-Washington regional district . . ..'
Thus it would seem that the Legislature has emphasized the authority of the Park and Planning Commission to exercise exclusive zoning power in the Regional District. Middleman v. Maryland-National Capital Park and Planning Comm., 232 Md. 285, 291, 192 A.2d 782 (1963). See generally Moser, County Home Rule-Sharing the State's Legislative Power with Maryland Counties, 28 Md.L.Rev. 327 (1968). Section 85(a) of the 1959 act also recognizes the exclusion of the Regional District from the provisions of Article 66B:
'Within the Regional District, the zoning powers or any of them vested by Article 66B of the Annotated Code of Maryland in any municipality or council of any municipality within the Regional District shall be construed...
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