Garrett Park v. Montgomery County Council, 248

• Decision Date: 06 March 1970
• Docket Number: No. 248,248
• Citation: 262 A.2d 568,257 Md. 250
• Parties: GARRETT PARK, Maryland v. MONTGOMERY COUNTY COUNCIL et al.
• Court: Maryland Court of Appeals

Page 250

257 Md. 250

262 A.2d 568

GARRETT PARK, Maryland v. MONTGOMERY COUNTY COUNCIL et al.

No. 248.

Court of Appeals of Maryland.

March 6, 1970.

John J. Delaney, Silver Spring (Linowes & Blocher, R. Robert Linowes and Joseph P. Blocher, Silver Spring, on the brief) for appellant.

C. Edward Nicholson, Silver Spring, for appellees Morton and Arthur willcher.

Arthur S. Drea, Jr., Asst. County Atty. (David L. Cahoon, County Atty., and Alfred H. Carter, Deputy County Atty., Rockville, on the brief) for appellees Montgomery County Council and others.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

McWILLIAMS, Judge.

The appellant, Garrett Park ¹ (the town), is one of the older (1898) municipalities of Montgomery County. Montgomery County Code § 54-1 (1965). Morton and Veronica Willcher (Willcher) are the owners of a 2.5214 acre tract (the property) the zoning classification of which is the subject of this dispute. They became parties by intervention but for our purposes we shall treat the Montgomery County Council (the council) as the appellee. Since the matter before us is a reprise of Stephens v. Montgomery County, 248 Md. 256, 235 A.2d 701 (1967), our chief concern will be the applicability of the doctrine of res judicata.

Willcher bought the property, described in detail in Stephens, in February 1964. In August of that year all of Garrett Park was reclassified from R-60 (Residential, 6000 square feet minimum) to R-90 (Residential, 9000 square feet minimum). In November Willcher sought a change in classification from R-90 to R-T (Town Houses). The town and its residents 'vigorously opposed' his petition. The council granted the reclassification, saying:

'* * * From the evidence presented by both sides the Council finds that this property could not reasonably be developed in the R-90 Zone.

'The ordinance that enacted the Town House Zone stated that it would 'enable construction of attractive and desirable residences in areas or on land not ideally suited topographically or otherwise for single-family development.' The Council finds that this small tract of land is not suitable for development with single-family residences because of its proximity to commercial uses, the railroad and especially its odd shape. The construction of a small number of town houses at this location can have no detrimental effect upon nearby detached single-family residences.'

The council's decision was upheld by the circuit court, Anderson, J. We affirmed the decision of Judge Anderson in Stephens. Judge Marbury, for this Court, said:

'Based upon consideration of the evidence before the council, as shown by the record, we hold that the lower court was correct in finding that there was substantial evidence to justify the decision of the council and that its decision was fairly debatable. We also think Judge Anderson properly construed the law in affirming the council's rezoning of the subject property.' Id. at 260, 235 A.2d at 703.'

Less than three weeks after out decision in Stephens the town filed a petition to reclassify the property from R-T back to R-90 alleging that the earlier decision was based on an 'erroneous' premise, i. e., that the property could not reasonably have been used in the R-90 classification because only four lots could have been developed upon it, whereas, in fact, six lots could be developed and, had the council been aware of this 'fact' it would have rejected the R-T classification. The hearing examiner, Rita C. Davidson, in an able and comprehensive opinion, concluded that '(b)ecause essentially the same facts appeared in the second case as appeared or as could have been shown in the first case the * * * (town) is barred by res judicata.' The council adopted her recommendation that the application be denied, 'find(ing) and conclud(ing) that the same facts appeared in the second case as appeared or as could have been shown in the first case (and that) (c)onsequently, there has not been a change in fact or circumstance between the first case and the instant case sufficient to justify reclassification.' The town's appeal to the circuit court stressed the inapplicability of res judicata. On 14 February 1969 the council moved for a summary judgment alleging 'no genuine dispute as to facts' and its right to judgment as a matter of law 'on the principle of res judicata.' The trial judge, Moorman, J., agreed; this appeal is from the summary judgment entered by him on 28 July.

I.

The town suggests impropriety in the use of summary judgment claiming it is not available under Maryland Rule B ('Administrative Agencies-Appeal From'), and insisting there is a genuine dispute as to material facts.

Since the first point was not raised in the court below it need not be considered here. Rule 885. However, an interesting notion is presented so we shall indulge in a brief comment. It does not seem to us that summary judgment was, in these circumstances, an impermissible procedure. Rule B9 provides as follows:

'A party to the proceeding before the agency, or to whom the agency is required by law to give notice of the action appealed from, who desires to participate in the appeal as a party * * * shall file with the clerk of the court, within thirty days after the filing of the petition of appeal * * * a demurrer or an answer admitting or denying a fact alleged in such petition and asserting briefly such defense as he or it may see fit, or other appropriate pleading. * * *.' (Emphasis added.)

In Sterling v. Local 438, Liberty Ass'n of Steam and Power Pipe Fitters, 207 Md. 132, 139-40, 113 A.2d 389, 392 (1955), Judge (now Chief Judge) Hammond, for the Court, observed:

'Even before the rules permitted summary judgments, the defense of res judicata could be made by demurrer where the facts and the nature of the prior adjudication appeared on the face of the pleadings. * * * It is clear that under the present rules of practice and procedure, motions for summary judgments may be granted on the ground of res judicata under similar circumstances.' (Emphasis added.)

Since Rule B9 expressly provides for an 'other appropriate pleading' we think, in view of Sterling, that a motion for summary judgment is such an 'appropriate pleading.' Maryland Rule 5 v; contra, Fletcher v. Flourney, 198 Md. 53, 81 A.2d 232 (1951), (decided before 1 January 1957, the effective date of Rule 5 v). See also 101 C.J.S. Zoning § 367 at 1221 (1958).

In its brief the town contends that the 'factual' disputes which preclude the entry of summary judgment are as follows: (1) 'Whether the existing R-T zoning on the subject property is proper;' (2) 'Whether the original R-90 zoning on the subject property was confiscatory;' (3) 'If the original action of the District Council granting R-T zoning in 1965 was a mistake * * * whether the District Council * * * erred * * * in refusing even to investigate whether it should correct its earlier mistake * * *;' (4) 'Whether application F-150 (the instant case) was a local map amendment;' and (5) 'Whether the Council was required to find any change in fact or circumstance in order to grant the (requested) R-90 zoning * * *.' In the trial court the town asserted 'seven facts' which it alleged were in dispute. However, 'after carefully reviewing each statement' Judge Moorman concluded that the disputes were not as to facts but were 'questions for the court's determination should the appeal reach trial.' We agree. As Judge Hammond noted in Sterling, supra, 207 Md. at 140, 113 A.2d at 393, quoting from Mellen v. Hirsch, 8 F.R.D. 250, 252 (D.Md.1948), aff'd, 171 F.2d 127 (4th Cir.1948), "the only issue now open for further litigation between the parties in this case is merely a question of law and not one of fact."

II.

In support of its main contention the town argues that (1) '(r)es judicata is not applicable where (the) initial decision is based upon erroneous testimony;' (2) '(the) facts and circumstances between (the) first and second decision are dissimilar;' and (3) '(a) legislative body has the right and obligation to correct its own mistakes.' No useful purpose will be served by rehashing the cases dealing with the doctrine of res judicata, especially in view of our frequent application of it in the past. Its applicability to a judgment affirming or reversing an administrative or quasi-judicial decision appears to be well settled. See,...