Dal Maso v. Board of County Com'rs of Prince George's County

• Decision Date: 03 November 1943
• Docket Number: 2,3.
• Parties: DAL MASO et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY. DAVIS et al. v. SAME.
• Court: Maryland Court of Appeals

34 A.2d 464

DAL MASO et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY.

DAVIS et al. v. SAME.

182 Md. 200

Nos. 2, 3.

Court of Appeals of Maryland

November 3, 1943

Appeals from Circuit Court, Prince George's County; Ogle Marbury Chief Judge.

Mandamus proceedings by Joseph Dal Maso and another and by Winnie E Davis and another against The Board of County Commissioners of Prince George's County, Maryland, acting as District Council, a municipal corporation, to compel defendant to reinstate and abide by rescinded resolutions rezoning petitioners' property. From judgments dismissing their petitions, petitioners appeal.

Judgments affirmed.

Louis Lebowitz, of Washington, D. C. (Alfred F. Goshorn, of Washington, D. C., on the brief), for appellants.

T Howard Duckett, of Hyattsville (Waldo Burnside, of Hyattsville, on the brief), for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, ADAMS, and BAILEY, JJ.

SLOAN Chief Judge.

This appeal is from an order sustaining a demurrer to a petition for mandamus, which the petitioners had filed to the defendants' answer, the court holding that the petition was insufficient, and the demurrer mounting up to the first error in pleading, it should be and was sustained and the petition dismissed, from which the petitioners appeal.

It appears from the petition that on April 17, 1942, application was made by the appellants, Joseph Dal Maso and Leo Dal Maso, to the Maryland-National Capitol Park and Planning Commission for the re-zoning of their property at Riverdale in Prince George's County from Residential 'A' to Commercial 'D.' On May 29, 1942, the Park and Planning Commission forwarded the petition to the Board of County Commissioners of Prince George's County acting as District Council. On June 2, 1942, the petitioners requested a public hearing, paid the costs of the required advertisement, which was published as provided by law, and the hearing was set and had on July 7, 1942. On that date, after hearing, the petition was approved and, by resolution of the District Council, the petitioners' property rezoned. A week later, July 14, 1942, the defendant rescinded its order of July 7th and gave notice of a rehearing to be held on August 18, 1942. Before that day arrived, the appellants, on August 12, 1942, filed their petition for a writ of mandamus to compel the defendant 'to reinstate and abide by its order of July 7, 1942, which approved the rezoning of the tract of land, the property of Joseph Dal Maso and Leo Dal Maso.'

It appears from the answer of the defendant, which does not deny any of the statements of fact contained in the petition, that the petition for rezoning was not the petitioners' first application for an amendment of the zoning resolution; that a similar application had been made in November, 1940, and after hearing was disapproved and not allowed, and again, in November, 1940, a similar application was made, and on the day of the hearing was withdrawn. Then, or shortly thereafter, certain residents and organizations requested the defendant to give them notice of any future application for rezoning. No such notice was given, but immediately thereafter the opponents of the amendment requested a rehearing, which resulted in the rescission of the order of July 7, 1942, and on the rehearing, the application was refused.

In their petition for mandamus, the petitioners charged that the action of the defendant of July 14, 1942, rescinding the order of July 7th, 'was arbitrary, without legal sanction, and in violation and deprivation of the rights of the petitioners in the use of their property and beyond the powers of said Board and void,' and their contention now is that the Board of County Commissioners is powerless to reconsider or rescind the order theretofore passed, and that it abideth forever.

The zoning powers of the defendant are contained in the Act of 1939, ch. 714. The boundaries of the district to be zoned are described in section 1 of the Act, and lay partly in Montgomery County and partly in Prince George's County, but we are only concerned with the latter county, and its Board of County Commissioners, sitting as District Council. The planning commission shall be appointed under the provisions of section 2 of Chapter 448, Acts of 1927. By section 4 of the Acts of 1939, ch. 714, it is 'authorized and empowered to make and adopt and, from time to time, amend, extend, or add to a general plan for the physical development of the District,' as set forth in detail in sections 4 and 5. By section 16 of the Act of 1939, the Board of County Commissioners of the respective counties, is 'empowered, in accordance with the conditions and procedure specified in Sections 17 to 25, inclusive, of this Act, to regulate, in the portion of the District lying within its county, 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, the sizes of yards, courts and other open spaces, the erection of temporary stands and structures, the density and distribution of population, the uses of buildings and structures for trade, industry, residence, recreation, agriculture, * * * forestry or other purposes.' No restrictions on the use of land for farming. This section designates the Board of County Commissioners as 'District Council.'

By section 17, the Commission shall certify zoning plans, to the County Commissioners, but before 'adopting and certifying its zoning plan,' it must hold a public hearing, after notice by publication.

Section 19, of the Act of 1939, provides 'that each District Council [County Commissioners] may from time to time amend its regulations or any regulation, including the maps or any map,' after a public hearing on the prescribed notice by publication, 'but no such amendment shall be passed unless the same be first submitted to the Commission for approval, disapproval or suggestions.'

The appellant relies for its contention that the defendant appellee, cannot grant a rehearing on a permit already granted in the case of Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207. In that case the Board of Zoning Appeals of Baltimore City had refused an application for a permit for a gasoline station. Later an application for a rehearing was filed, and the permit was granted. The order was appealed from to the City Court, which reversed the order. Thereupon the Board of Zoning Appeals appealed to this court. A motion was made to dismiss the appeal, and all that this court decided was, that the Board of Zoning Appeals, in the absence of statutory authority, had no right of appeal from a decision adverse to it, and the appeal was dismissed. On the briefs, and at the argument, the appellee did contend that the Board of Zoning Appeals had no right to revoke its original order refusing a permit, and that its action was res judicata, and this court concluded the discussion of this question by saying (page 566 of 174 Md., page 547 of 199 A., 117 A.L.R. 207): 'The action of the Board therefore in reopening the case was beyond its powers, and void.' If that statement is to be accepted by the present court as the law of this state, then, without further ceremony, there is nothing left to do but reverse the decision in this case. If this is to be recognized as a precedent, there would be no recourse for us but to...