County Council of Baltimore County v. Egerton Realty, Inc.

• Decision Date: 24 April 1958
• Docket Number: No. 219,219
• Citation: 140 A.2d 510,217 Md. 234
• Parties: COUNTY COUNCIL OF BALTIMORE COUNTY v. EGERTON REALTY, Inc.
• Court: Maryland Court of Appeals

Page 234

217 Md. 234

140 A.2d 510

COUNTY COUNCIL OF BALTIMORE COUNTY v. EGERTON REALTY, Inc.

No. 219.

Court of Appeals of Maryland.

April 24, 1958.

Walter R. Haile, Towson, for appellant.

Solomon Liss, Baltimore (Harold I. Glaser, Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and JOHN B. GRAY, Jr., Special Judge.

HENDERSON, Judge.

This appeal is from an order of the Circuit Court for Baltimore County, passed on September 10, 1957, granting a writ of mandamus directing the County Council to approve the reclassification of a portion of the property owned by Egerton Realty, Inc., from an R.6 to a B.L. zone, as ordered by the Zoning Commissioner of Baltimore County on February 5, 1957.

On November 19, 1956, the appellee filed with the Zoning Commissioner a petition for reclassification of a portion of the property acquired by it in 1953. After an advertised public hearing had been held, the Zoning Commissioner passed the order in question, and no appeal was taken by the protestants from that order within the ten days specified in sec. 500.10 of the Zoning Regulations, adopted March 30, 1955. After the expiration of the time for appeal, the action of the Zoning Commissioner was referred to the County Council, as directed by sec. 500.2 of the Zoning Regulations. The Council requested an opinion from the County solicitor and was advised by him that it had no power to disapprove the action of the Zoning Commissioner, but that 'under the existing regulations the County Council must approve, pro forma, the action of the Zoning Commissioner or of the County Board of Appeals, as the case may be * * *.' Nevertheless, the Council refused to approve the reclassification, by a vote of three to one, three members abstaining.

The Baltimore County Zoning Enabling Act (Chapter 247, Acts of 1941), empowered the County Commissioners to appoint a Zoning Commissioner and a Board of Zoning Appeals, and by Chapter 502, Acts of 1945 and Chapters 369 364 and 365, Acts of 1953, incorporated in the Code of Public Local Laws of Baltimore County, (1955 ed.) as sec. 532, the County Commissioners were empowered to pass regulations, in accordance with a comprehensive zoning plan, and to delegate certain authority to the Zoning Commissioner. Sec. 532(c) set up the machinery for establishing the various zones and territorial divisions, upon recommendation of the Zoning Commissioner after public hearing by him, and after public hearing by the County Commissioners upon his final report. The section provided that the County Commissioners should have power, from time to time, upon recommendation of the Zoning Commissioner, and after hearing by him and by them, to amended, supplement or repeal the regulations adopted by them, 'but with respect to the boundaries of zoning districts, divisions or zones the County Commissioners may impose on and vest in the Zoning Commissioner the power to amend, supplement or change, from time to time, the boundaries of such zoning districts, divisions or zones, provided that the Zoning Commissioner shall hold a public hearing or hearings on any proposed amendment, supplement or change. No such amendment, supplement or change, however, shall become effective and binding until it shall have been approved in writing by the County Commissioners, but no notice and public hearing before the County Commissioners shall be necessary before such approval.' (Italics supplied.)

Sec. 500.2 of the Zoning Regulations likewise calls for written approval by the County Commissioners before any change in the boundaries of a zone, submitted by the Zoning Commissioner after the time for appeal has expired, shall become effective and binding. Sec. 500.3 provides that if, upon appeal to the Board of Zoning Appeals, a reclassification denied by the Zoning Commissioner is granted, he shall 'forthwith' submit said reclassification to the County Commissioners for 'their written approval'. Sec. 500.12 provides that if a reclassification is denied he shall not entertain another application for reclassification within 18 months from the date of his final order, or the final order of the Board.

Under sec. 306 of the Home Rule Charter, adopted November 6, 1956, it is provided that all legislative powers heretofore exercised by the County Commissioners shall be vested in the County Council. In sec. 522 the powers heretofore exercised by the Zoning Commissioner were confirmed and continued, subject to change by the Council in the exercise of its legislative function. It is conceded that the County Council has not rescinded or altered in any respect the powers previously conferred upon the Zoning Commissioner and the Board of Zoning Appeals. It is also conceded that in no previous instance has the County Council, or its predecessor, the County Commissioners, disapproved or failed to approve a change in boundaries recommended by the Zoning Commissioner under sec. 532(c) of the local Code.

Sec. 532(f) of the local Code calls for the appointment of a Board of Zoning Appeals and provides for appeals to it 'from any decision of the Zoning Commissioner.' Subsections (g) and (h) provides for further review, by certiorari, to the Circuit Court, and by appeal to this Court. Cf. Code (1957), art. 66B, sec. 22(i) and (o) of the Public General Laws. Under section 532(g), the petition for certiorari must set forth that 'such decision is illegal, in whole or in part, specifying the ground of the illegality. Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the Board.'

It is conceded that mandamus will not lie to control the exercise of judgment and discretion by public officials. Cf. Board of County Commissioners of Baltimore County v. Oxford Development Company, 209 Md....