County Com'rs of Queen Anne's County v. C. J. Langenfelder & Son, Inc.

• Citation: 237 Md. 368,206 A.2d 710
• Decision Date: 03 February 1965
• Docket Number: No. 409,409
• Parties: COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY et al. v. C. J. LANGENFELDER & SON, INC.
• Court: Court of Appeals of Maryland

Page 368

237 Md. 368

206 A.2d 710

COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY et al. v. C. J. LANGENFELDER & SON, INC.

No. 409.

Court of Appeals of Maryland.

Feb. 3, 1965.

Argued and reargued by Robert R. Price, Jr., and James E. Thompson, Jr., Centreville, for appellants.

Argued and reargued by John W. Sause, Jr., Centreville, and Walter C. Mylander, Jr., Baltimore (Charles C. W. Atwater, Baltimore, on the brief), for appellee.

Argued June 2, 1964, before BRUNE, C. J., and HAMMOND, PRESCOTT, and HORNEY, JJ., and IRVINE H. RUTLEDGE, Special Judge.

Reargued Dec. 8, 1964, before PRESCOTT, C. J., and HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

PRESCOTT, Chief Judge.

This appeal reaches us in a very peculiar procedural posture. On January 10, 1961, the Commissioners of Queen Anne's County (Commissioners) adopted an 'Interim Zoning Ordinance.' By its own provisions, this ordinance expired on year after its adoption. During argument, it was conceded to be invalid, and has little, if any, significance in the determination of this appeal.

On January 9, 1962, the Commissioners, purportedly acting under authority of the Code (1957), Article 66B, adopted another 'Interim Zoning Ordinance,' effective as of January 10. This ordinance stated that it was temporary in nature and should expire when 'a permanent comprehensive zoning ordinance * * * is adopted * * *,' but in no event should it remain in force and effect for a period exceeding two and one-half years.

In August of 1963, the appellee acquired some three acres of land in Queen Anne's County, known as the 'Love Point Pier' property. Contending that appellee had entered upon said property and instituted uses thereof contrary to those permitted by its classification in the Interim Zoning Ordinance last mentioned above, and not authorized as a lawful nonconforming use, the appellants filed suit praying an injunction to restrain the allegedly unlawful use of the property. When suit was filed, a complete copy of the Interim Ordinance, including its preamble, was filed as an exhibit of the bill of complaint. The appellee demurred to the bill of complaint, and the demurrer was sustained by the chancellor on the ground that the bill, on its face, showed that certain statutory procedural prerequisites had not been complied with by the Commissioners before adopting the ordinance. The demurrer was sustained without leave to amend, and the bill of complaint was dismissed.

Thereafter, on October 16, 1963, the Commissioners filed a motion for leave to amend the bill of complaint. In this motion, they alleged that they would amend the bill of complaint 'so as to recite and allege in their amended bill of complaint that all necessary prerequisite procedural requirements under Article 66B were complied with in the adoption of the' ordinance. The motion then recited in detail many acts bearing upon the compliance with the prerequisites required by Article 66B and stated they would be included in the allegations of the amended bill of complaint.

After hearing on this motion, the court, on October 29, 1963, struck out its former order which had sustained the demurrer and dismissed the bill of complaint, and allowed the Commissioners to file an amended bill of complaint.

On November 13, 1963, within the time permitted by the last above mentioned order, the Commissioners filed an amended bill of complaint. It included many allegations of acts on the part of county officials, which the Commissioners claimed were compliances with the prerequisite procedural requirements. However, with the bill of complaint was filed an exhibit purporting to be 'a true copy of the Queen Anne's County Interim Zoning Ordinance,' but it failed to include the preamble of the ordinance, and this was the portion thereof which raised a grave question as to whether or not the procedural prerequisites had been complied with. The defendant filed a motion ne recipiatur, moving the court not to receive 'the amended bill of complaint and Exhibit A [the body only of the zoning ordinance] on the grounds,' inter alia, that the amended bill of complaint, together with its exhibit, 'is on its face a false pleading' and 'that said amended bill of complaint and exhibit are contrary to the authority of [the] order of the court granting leave to amend.'

A hearing was held upon this motion at which counsel for the plaintiffs readily admitted that the deletion of the preamble from the copy of the ordinance was not done by inadvertence or mistake. The chancellor, without expressing any opinion as to how it might affect the result of the filing of another demurrer, offered to permit counsel for the plaintiffs to amend further so as to include the entire ordinance, body and preamble; but this the plaintiffs were unwilling to do. Thereafter, the chancellor in an able and carefully prepared opinion decided that the motion ne recipiatur should be granted because: (1) the proposed amended bill of complaint was not in conformity with and not within the bounds and scope of the previous order allowing the amendment or within the terms and allegations of the petition of the plaintiff to amend; (2) the certificate appended to the exhibit deposing that it was a true copy of the ordinance was 'patently erroreous'; (3) in the chancellor's opinion, where a document which forms the basis for a prayer of injunction is filed with the bill of complaint and it is not within the exclusive control of the defendant, the...