Crozier v. County Com'rs of Prince George's County

• Decision Date: 12 June 1953
• Docket Number: No. 157,157
• Citation: 202 Md. 501,97 A.2d 296,37 A.L.R.2d 1137
• Parties: , 37 A.L.R.2d 1137 CROZIER et ux. v. COUNTY COM'RS OF PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 501

202 Md. 501

97 A.2d 296, 37 A.L.R.2d 1137

CROZIER et ux. v. COUNTY COM'RS OF PRINCE GEORGE'S COUNTY et al.

No. 157.

Court of Appeals of Maryland.

June 12, 1953.

Lansdale G. Sasscer, Jr., Upper Marlboro (Hal C. B. Clagett, Jerrold V. Powers and Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellants.

LeRoy Pumphrey and H. Mason Welch, Washington, D. C., for Miller and others.

C. Calvert Lancaster, Upper Marlboro, for County Com'rs for Prince George County.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The Circuit Court for Prince George's County sustained a demurrer to an amended Bill of Complaint which sought an injunction restraining the owners of property from using it as permitted by its rezoned classification, and directing the County Commissioners of that County, sitting as a District Council, to set aside the order which effected the rezoning.

The Bill was brought by Gordon W. Crozier and Mozelle P. Crozier, his wife, only, but it alleges that the action is on behalf of several hundred similarly situated property owners in the subdivisions known as Colebrook, Hillcrest Heights and Hillcrest Gardens, whose property, like that of the complainants, '* * * either adjoins or is in close proximity of the property rezoned * * *'

The Bill makes the following pertinent allegations. First, that an application for Map Amendment and Rezoning of the property of the individual defendants, seeking its rezoning from 'two family, semi-detached, residential' to 'apartment house, low density, residential', was duly filed with the Maryland-National Capitol Park and Planning Commission. The Commissioners approved the request for amendment and thereafter, as the law directs, the application went to the County Commissioners of Prince George's County, as a District Council, who, on September 19, 1951 held a hearing in Hyattsville. After the hearing, the application for rezoning was denied. No continuance was requested at the hearing, nor was any such request made within thirty days thereafter. It is further alleged that a rehearing was requested after that period and the date set for November 21, 1951, and that on that date a hearing was held before the District Council on the same application that was heard and denied on September 19, 1951; following the second hearing, the Zoning Map was changed, as requested, to permit apartment house construction. The Bill alleges that the action of the District Council, following the rehearing, was illegal and void, because in violation of the Zoning Enabling Acts of the County, and of the zoning ordinance enacted and condified by the County Commissioners of Prince George's County on November 29, 1949 and in force at the times mentioned, as to notice by publication, public hearing and posting of the property, and says that by reason of the failure to give notice and to post the property, the complainants, as well as other interested parties, had no notice, actual or constructive, of such rehearing and so did not appear on November 21, 1951. The interest of the complainants in the matter and their allegation of special damage is set forth in Paragraph 20 of the Bill of Complaint as follows:

'20. Your orators further allege that their property, together with 300 other individual property owners either adjoins or is in close proximity of the property rezoned and that their individual properties will be further damaged due to the fact that your petitioners property and other individual property owners will be cheapened and depreciated in value of a minimum of not less than $300.00 for each individual property owner and in excess of $1,000.00 to many.'

The appellees do not seriously dispute that the Enabling Acts and the ordinances were not followed, but dismiss this as inconsequential, saying: 'It matters not that some slight violation of an ordinance might have been made for that would be a moot question and the Court would not be justified in inquiring into it unless someone had sustained damage and this must appear from clear and convincing allegations in the pleadings. The Trial Court was unable to find any such allegations in the present pleadings and he dismissed the amended Bill of Complaint.' Although relying on the failure of the Court below to find adequate allegations of special damage in the pleadings, the appellees in other parts of the brief and in their argument here seriously contend that this Court should consider facts extraneous to the Bill of Complaint, considered by the Court below, which were either learned by him from statements of counsel at the hearing or known to him as a resident of the County, and relied on by him. In the decree of the Court below, it is said: '* * * after counsel for both sides had been fully heard and upon consideration of the pleadings, together with statements as to the facts in the case made by counsel in open Court, * * *' it is adjudged, ordered and decreed that the demurrer be sustained. It is, of course, entirely clear that when the case is decided on demurrer, the well pleaded allegations of fact in the Bill must be considered as true and the case must be decided entirely on those allegations. This being so, the controlling question here is the one question raised by the appellees' demurrer, namely do the complainants allege in the Bill: 'such an interest in the subject matter as would entitle them to maintain this cause of action'? We think that they do.

The power of the County Commissioners of Prince George's County to zone or rezone is one that they have only by statutory delegation and can be exercised only to the extent and in the manner the Legislature has said that it may be. The basic power to zone is conferred on the County Commissioners by Chapter 992 of the Acts of 1943 and such portions of Sections 1 to 8, inclusive, of Article 66B of the Code, 1951 Ed., as are not inconsistent with the Acts of 1943. Section 4 of Article 66B requires notice and public hearing: '* * * at which parties in interest and citizens shall have an opportunity to be heard.' Section 5 of that Article provides that: 'The provisions of Section 4 relative to public hearings and official notice shall apply equally to all changes or amendments.' Section 985 of the Code of Public Local Laws of Prince George's County, Flack's Edition, authorizes the Commissioners as a District Council to zone and rezone: '* * * in accordance with the conditions and procedure specified in Sections 986 to 994, inclusive, of this Article, * * *.'. Section 988, before the passage of any regulation authorized, requires a public hearing, of which thirty days prior notice must be published in two newspapers of general circulation in the County. Zoning ordinances passed and codified by the County Commissioners on November 29, 1949 and in effect at the times with which we are here concerned, have the same requirements as to a public hearing and newspaper notice of it, and in addition, require posting the property in a conspicuous manner. They further provided that action on any proposed amendment is not subject to reconsideration after thirty days except by the filing of a new application. Within the thirty day period an amendment may be recalled for consideration if a rehearing be scheduled, advertised and posted, as in the case of a new application. No new application involving the same property may be accepted within six months of the date of the denial of the first. See Sections 30.3, 30.31, and 30.43.

The requirements of the ordinance are binding on the Commissioners sitting as a District Council and they may exercise their zoning powers only by following the procedure specified; this is implicit, if not explicit, in Sections 985 and 988 of the Prince George's...