Hunt v. Montgomery County

• Decision Date: 08 January 1968
• Docket Number: No. 18,18
• Parties: George HUNT et al. v. MONTGOMERY COUNTY, Maryland et al.
• Court: Maryland Court of Appeals

Page 403

248 Md. 403

237 A.2d 35

George HUNT et al. v. MONTGOMERY COUNTY, Maryland et al.

No. 18.

Court of Appeals of Maryland.

Jan. 8, 1968.

William M. Canby, Rockville, C. Edward Nicholson and Stanley J. Nadonley, Silver Spring (George W. Young, Jr. and Barnard T Welsh, Rockville, George B. Ballman, Kensington, Carl Lee Frederick, Jr., Wheaton, and William L. Kahler, Hillcrest Heights, on the brief), for appellants.

David L. Cahoon, County Atty. (Carter C. Hubbel, Jr., Asst. County Atty., Rockville, on the brief), for appellees.

Before HAMMOND, C. J., and HORNEY, MARBURY, McWILLIAMS and SINGLEY, JJ.

HAMMOND, Chief Judge.

This is a querulous appeal by some fourteen property owners of Montgomery County whose properties were rezoned to commercial classifications or classifications of greater density after the election of a completely new County Council by the old or 'lame duck' Council. The newly elected Council chose to reconsider these rezonings and before it had finally acted on them, the owners filed two equity suits seeking to enjoin any change in the zonings granted by the old Council and a petition on the law side against the County and the members of the Council for a declaratory judgment that the rezonings were 'final and no longer subject to reconsideration or appeal.'

The primary claim of the owners in seeking to enjoin rezoning by the new Council was that it lacked the power to do so unless it acted finally within thirty days of the original decision. The allegations were that the old Council had rezoned their properties between November 9 and November 11, 1966; that Section 111-50 of the Montgomery County Code (1965 Ed.) provides that the decision of the Council on any application for a map or text amendment shall be final except that the district council on its own motion may, within thirty days thereafter, 'reconsider its decision on any application'; that the new Council did on November 19, 1966, ten days after the earliest rezoning, formally resolve that 'the District Council on its own motion hereby reconsiders its decisions on the following applications for map and text amendments,' including those here involved; that the resolutions contain no mention of fraud, mistake or new evidence; and that as of the time of the filing of the petition for declaratory relief, the resolutions remained executory in that the Council has not acted to affirm, reverse or modify the prior decisions it resolved to reconsider, within thirty days of the decision, although the Council has set up a schedule of rehearings.

A secondary contention was that the members of the new Council did not, prior to resolving to reconsider the decisions of the old Council make an affidavit that they had read the entire record before acting, as allegedly required by Sec. 70-89 c of the Montgomery County Code (1965 Ed.).

Judge Clapp was imported from Frederick County to hear and decide this matter that was so momentous and meaningful in Montgomery County. Judge Clapp heard arguments on January 23, 1967, in the two equity cases and then conferred with all counsel. The results of that conference were summarized by Judge Clapp in the recitation of his declaratory judgment on why the court would declare, as it thereafter did, (a) that the resolution of the new Council to reconsider was a present, timely and valid action; (b) that there is no provision of law that requires the Council to take final action either affirming, reversing or modifying a zoning application within thirty days of an original decision; and (c) that the execution of an affidavit by a Council member that he has read the record in a rezoning application is not a prerequisite to voting to reconsider the prior decision. He said:

'After conference with the attorneys for all parties hereto involved in the above-captioned suits at Law and Equity, it appeared and the parties agreed, that the matters involved in these suits should be decided as promptly as possible, at trial court level. It appearing further that at least some of the issues involved in Law No. 20665 should be resolved in order to properly rule in Equity No. 32698 and Equity No. 32723, this Court determined to reserve ruling in said Equity suits until the issues raised in Law No. 20665 could come on for hearing. Because Plaintiffs did not feel they were in a position to proceed immediately to the merits, and the taking of testimony with regard thereto, it was agreed and acquiesced to by the parties hereto that the Defendants would file a Demurrer, rather than an Answer, and that as many issues as could be determined as a matter of law be argued and decided on said Demurrer; and, depending on the outcome of said Demurrer, that the time and convenience of the Court and the parties would be served by alleviating the necessity of taking any evidence relating to any disputed facts, such as the alleged reasons of the 'new' members in acting to reconsider, until such time as such issue was necessarily reached.'

The record supports the court's statement that it was by agreement and mutual consent that the demurrer to the petition for declaratory judgment was intended to present to the court whether as a matter of law the petitioners were entitled to the declaration they sought or must receive a declaration that the County's views on the issue were correct, and not whether the allegations of the petition presented a justiciable controversy. Indeed, although the petitioners in the course of argument on the question proffered to show the legislative history of the thirty-day provision (which seems to have been at least as favorable to the defendants' reading of the ordinance as to the petitioners'), it was not until after the declaration was ordered without a ruling on the demurrer that the petitioners on February 2, 1967, asked Judge Clapp in a conference of counsel at Frederick to rule on the demurrer and require the defendants to file an answer and then have a trial at which testimony on legislative history and administrative practice could be offered.

Judge Clapp refused to reconsider his decision and order, recalling that the parties had agreed there was no dispute as to the facts alleged in the petition for declaratory relief, but only a dispute as to the legal effects and result of those facts and that he had suggested and the parties had agreed that the legal effect and result could be tested and determined by a demurrer, since there was never any question as to whether the petition alleged a justiciable controversy. He opined that to him there was not the ambiguity in the statutes that would require or justify the taking of testimony, saying that petitioners had indicated they wished 'to prove the facts and circumstances of the adoption of these ordinances,' and added 'They might be interesting. But the ordinances must first be construed on their face and, to me, they seem to be perfectly clear. * * * So I don't feel that any testimony was required to assist in this interpretation. * * * I can only say I feel that I have, to date, complied with the decisions of the Court of Appeals on declaratory judgments. I notice in Myers v. Chief of Baltimore County Fire Bureau, 237 Md. 583 (207 A.2d 467), the statement, 'that demurrers rarely should be sustained or bills dismissed without declaring rights of parties.' And that was the reason that I have suggested in making up the formal decree the statement should be made that had this been an ordinary suit in law or equity, the demurrer should have been sustained because I felt the Bill was legally insufficient and in view of my interpretation of the action of the Council in these ordinances, but that it should further state in view of the fact that this is a petition for declaratory judgment, that the rights of the parties should have been declared in accordance with my opinion as outlined.'

The appellants raise in this Court the single, very narrow question of whether it was proper to issue a declaratory judgment without ruling on the demurrer. The appellants, having sought a declaration and having received one adverse to their position as a matter of law, now seek to establish that the demurrer was intended only to test the justiciability of the controversy and the suitability for resolution by a declaration of the questions presented by the petition. We think that Judge Clapp did not err to the prejudice of the appellants in making the declaration at the time he made it.

Ordinarily the only place a demurrer has in the declaratory process is to challenge the legal availability of the remedy sought to be used. In Shapiro v. Board of County Comm'rs, 219 Md. 298, 301-303, 149 A.2d 396, 398, Judge Prescott for the Court said:

'In actions for declaratory judgments or decrees, as in actions generally, a demurrer admits all of the alleged facts that are well pleaded.

'It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action. Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff. The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree.' (Citation omitted.)

The reason is plain why a demurrer should be used in declaratory judgment actions only to challenge the legal availability or appropriateness of the remedy.

'Where the plaintiff...