Hewitt v. County Com'rs of Baltimore County

• Decision Date: 11 May 1959
• Docket Number: No. 192,192
• Citation: 151 A.2d 144,220 Md. 48
• Parties: Elwood C. HEWITT et al. v. COUNTY COMMISSIONERS OF BALTIMORE COUNTY, Robert R. Gill et al., and John C. Fowble et al.
• Court: Maryland Court of Appeals

Page 48

220 Md. 48

151 A.2d 144

Elwood C. HEWITT et al. v. COUNTY COMMISSIONERS OF BALTIMORE COUNTY, Robert R. Gill et al., and John C. Fowble et al.

No. 192.

Court of Appeals of Maryland.

May 11, 1959.

As Modified on Denial of Rehearing July 2, 1959.

J. Nicholas Shriver, Jr., Baltimore (J. Paul Bright, Jr. and Cross & Shriver, Baltimore, on the brief), for appellants.

Kenneth C. Proctor and Austin W. Brizendine, Towson (Proctor, Royston & Mueller, Johnson Bowie and A. Gordon Boone, Towson, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, and PRESCOTT, JJ.

BRUNE, Chief Judge.

This is an appeal from a decree of the Circuit Court for Baltimore County dismissing a bill of complaint which sought to enjoin the use of certain property for commercial purposes and to require the County Commissioners to restore it to the residential use classification which had been recommended by the Zoning Commissioner. The property consists of two adjoining residentially improved lots totaling approximately 19 acres and lying on the south side of Timonium Road immediately west of the Baltimore-Harrisburg Expressway in the Eighth Election District of Baltimore County. The appellants are neighboring property owners who reside along both sides of Timonium Road west of the Expressway.

Ever since the original zoning of Baltimore County in 1945 the subject properties as well as all of the parcels of land now owned by the appellants have been zoned for residential use ('A' Residential). On March 30, 1955, the County Commissioners of Baltimore County ('County Commissioners') upon recommendation by Zoning Commissioner pursuant to Section 366(c) of the Code of Public Laws of Baltimore County (1948 Ed.) (§ 532(c) of the 1955 Ed.) promulgated new zoning regulations and restrictions for the entire County. Accordingly, the Baltimore County Planning Commission ('Planning Commission') prepared a new map for a large portion of the Eighth Election District proposing the boundaries of the new use districts on the basis of an extensive study of land uses begun in the latter part of 1952. See Huff v. Board of Zoning Appeals of Baltimore County, 214 Md. 48, 133 A.2d 83, and Fuller v. County Commissioners, 214 Md. 168, 133 A.2d 397, for comparatively recent zoning history in Baltimore County.

On the above map or plan, which was thereafter submitted to the Zoning Commissioner, the entire area of 15 to 20 square miles west of the Baltimore-Harrisburg Expressway bounded on the north by Tufton Avenue and Shawan Road, on the west by Greenspring Avenue and on the south by Seminary Avenue, was recommended for residential zoning. Mr. Malcolm Dill, who was then Director of the Planning Commission, testified that the Commission could see 'no apparent need for commercial zoning west of the Expressway in view of the expected low density development in that extensive area.' On the other hand, substantial areas east of the Expressway in the vicinity of Timonium Road and the subject properties were designated for commercial and industrial uses and are being partly utilized for such purposes at present.

The Zoning Commissioner, pursuant to the statute, prepared his preliminary report proposing certain minor changes in the Planning Commission's map, held a public hearing thereon on August 8, 1955, and on November 17, 1955, submitted his final report with recommendations to the County Commissioners. In this report he concurred in the conclusion of the Planning Commission that all the land to the west of the Expressway should be retained in a residential category, although he recommended that R-20 density be permitted throughout the major portion of a 3,000 foot strip west of the Expressway, which included the Fowble and Gill properties and part of the property of the appellants. He also recommended a higher density residential classification that that proposed by the Planning Commission for the property then known as 'Emerald Acres', which lies across Timonium Road from the Gill and Fowble tracts. See Fuller v. County Commissioners, supra.

On December 6, 1935, pursuant to notice duly published, the County Commissioners held a public hearing for the announced purpose of hearing 'objections and recommendations' with respect to the Zoning Commissioner's final report and proposed map. At that hearing the suggestion was made for the first time that the subjedt properties be classified for non-residential uses. Dector Fowble, owner of the easternmost tract lying next to the Expressway (on a portion of which he had built a substantial residence in 1953), requested that his property be placed in an M. L. zone. It is not clear from the record as to exactly what classification his neighbor on the west, Mr. Gill, requested; but the trial court inferred from the fact that they were acting in concert that Gill sought a similar treatment for his property, and we understood at the argument in this Court that this inference was correct. No evidence was offered at the hearing in support of these requests nor was any objection thereto expressed by any of those present. None of the appellants attended the hearing although they all had at least constructive notice that a hearing would be held on that date. Immediately thereafter, however, some of the appellants filed a protest against any change in classification of the Fowble and Gill properties from that previously proposed and requested an additional hearing by the County Commissioners on the matter. This request was not granted. Instead, a meeting was held between the County Commissioners and the Zoning Commissioner during which all requests which had been made at the public hearing were further discussed. Thereafter, on December 20, 1955, the County Commissioners approved a new zoning map for a portion of the Eighth Election District of Baltimore County under which the properties owned by Fowble and Gill were carved out of the otherwise exclusively residential area west of the Expressway and classified Business, Local (B.L.). Whether any other changes were made by the County Commissioners as a result of the December, 1955, hearing is not clear and cannot be determined from the map. It seems that if any others were made, they were of a minor character. No others were shown to have been so made in the immediate area here involved.

The appellants attack the action of the County Commissioners on two grounds: (1) that the notice given of the hearing before the Commissioners was not sufficiently worded so as to apprise the public fairly that substantial changes might be made in the zoning map and that a further hearing should have been held on the Fowble and Gill requests; and (2) that the 'last minute' change in zoning of the subject properties from residential to Business, Local was arbitrary, capricious, discriminatory, and illegal.

With regard to the questions of the sufficiency of the notice and of one hearing only by the County Commissioners, we note at the outset that comprehensive zoning or rezoning requires approval of the County Commissioners (now approval of the County Council which has succeeded to the legislative powers of the Commissioners). County Council of Baltimore County v. Egerton Realty, Inc., 217 Md. 234, 140 A.2d 510; Baltimore County v. Missouri Realty, Inc., Md., 148 A.2d 424; Charter of Baltimore County, Sec. 306.

Under Section 366(c) of the 1948 Edition of the Baltimore County Code (Sec. 532(c) of the 1955 Edition), the County Commissioners are empowered 'from time to time, upon recommendation by the Zoning Commissioner, to amend, supplement or repeal the regulations or restrictions adopted by them, provided that the Zoning Commissioner shall hold a public hearing or hearings on any proposed change, and the County Commissioners shall follow the same procedure with respect to notice and public hearings as provided for the original regulations and restrictions * * *.' Then follow provisions under which the County Commissioners can delegate to the Zoning Commissioner the power to amend or change the boundaries of zoning districts after a public hearing or hearings, but no amendment or change made by the Zoning Commissioner is to be effective until approved by the County Commissioners.

The pertinent provisions of Section 366(c) relating to notice and hearing by the County Commissioners, governing original zoning and made applicable to rezoning, are as follows: 'After the County Commissioners have received the final report [of the Zoning Commissioner], they shall hold a public hearing or hearings thereon, giving at least fifteen days' notice in a newspaper of general circulation throughout Baltimore County, of the place and time of the beginning of such hearing or hearings.'

The published notice of the hearing stated that the Zoning Commissioner had prepared and submitted to the County Commissioners a Final Report with respect to proposed amendments, supplements and changes in the boundaries of the zoning districts within a portion of the Eighth Election District and that the County Commissioners would hold a public hearing on said Final Report at a specified time and place, at which time and place the County Commissioners would 'hear objections and recommendations with respect to said Final Report.' The notice also stated that the 'Final Report consisting of a comprehensive zoning map setting forth in color the proposed amendments, supplements and changes' was on file and open to public inspection at the office of the County Commissioners during specified hours; and the notice described the area covered by the Final Report.

We do not think the statutory language could be construed as requiring the County Commissioners to state in advance (what they could hardly know) the exact nature of any action which they might take with regard to matters brought to their attention at the contemplated hearing. Indeed, it is difficult to see how (without either prejudgment or...