Hyson v. Montgomery County Council

• Decision Date: 11 February 1966
• Docket Number: No. 91,91
• Parties: George HYSON et al. vl MONTGOMERY COUNTY COUNCIL et al.
• Court: Maryland Court of Appeals

Page 55

242 Md. 55

217 A.2d 578

George HYSON et al.

vl

MONTGOMERY COUNTY COUNCIL et al.

No. 91.

Court of Appeals of Maryland.

Feb. 11, 1966.

Concurring Opinion March 29, 1966.

Rita C. Davidson, Rockville, for appellants.

Robert L. Burchett, Asst. County Atty., Rockville (Robert G. Tobin, Jr., County Atty., and Douglas H. Moore, Deputy County Atty., on the brief), for Montgomery County Council, appellee.

James R. Miller, Jr., Rockville (Miller, Miller & Canby, Rockville, on the brief), for Capital Beltway Properties, Inc., appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

PRESCOTT, Chief Judge.

Appellants, apparently in an effort to be certain they have overlooked nothing that may aid them, have assigned 10 alleged errors some of which overlap. I, II, III, IV and VI all relate to purported illegalities in the hearing before the Montgomery County Council, sitting as the District Council (Council); hence, in order to conserve time and space, we shall consider them collectively, and add facts, when and if desirable.

I, II, III, IV and VI

Like the replays of the 'I Love Lucy' series, some of appellants' contentions have been before this Court on a number of occasions: lack of due process in the hearing before the Council of June 10, 1964; failure by the Council to comply with statutory provisions; abuse of discretion by the Council in failing 'to remove irrelevant and prejudicial' material from the record; and improper conduct by one member of the Council.

Making these allegedly horrendous illegalities more specific, they boil down to a claim (a) that a hearing on a petition for reclassification is quasi-judicial in character, and, therefore, appellants were entitled, as a matter of right, to cross-examine the witnesses produced by the petitioner; (b) that Section 104-39(b) of the County Code was violated, because the Council put a time-limit of one hour on each side at the hearing (although the record was left open for 10 days so that any interested person could supplement it); (c) that the Council erroneously considered exhibits of petitioner which showed possible or purported improvements to be erected on the subject property; (d) that the Council failed to comply with Section 72-84 of the local Code (1960) in not having a recommendation from the Maryland-National Capital Park & Planning Commission; and (e) that one member of the Council stated that a traffic situation referred to by a witness was 'temporary' in nature.

We consider first the most important question involved in the appeal: the alleged denial of due process at the hearing before the Council. We think this question as posed necessarily includes a consideration of whether or not the existing statutes and/or regulations required that appellants be afforded the opportunity to cross-examine at the hearing. The hearing opened with Councilmen Wilson, Floyd, Hiser and Williams present, and Councilwoman Diggs came in later. Mr. Miller, representing the applicants, made a statement. He pointed out that he was not soliciting conditional zoning, but the owners had a long-term lease with the A. & P. Tea Company for a portion of the property in accordance with an exhibit subject, of course, to reclassification. Mr. Parthemer, Assistant General Superintendent of the A. & P. Tea Company, testified his company had sought a suitable location to serve this community (the neighborhood of the subject property) for five years; he confirmed the lease in accordance with the exhibit, which was an architect's drawing of a proposed building. Mrs. Davidson, an attorney representing the opponents, objected to this exhibit and was informed that she could object 'when it comes time for the opposition.' After offering Mr. Lebling, a real estate expert and examining him, Mr. Miller asked: 'Are there any questions of Mr. Lebling?' No questions were asked. The same procedure occurred with Mr. Ditto, another real estate expert. Other witnesses were offered and their testimony taken, but it is unnecessary to set it forth here. When the opposition took over, Mrs. Davidson stated that she 'would first like to request the right of cross examination on the material that has already been presented.' She was informed, 'it hasn't been the practice.' She proceeded to offer her witnesses and the case, at her request, was held open for 10 days to offer 'additional evidence' in writing. (It is interesting to note that petitions opposing the reclassification were offered by the opponents containing many names. Quite a number of the signers were residents of the District of Columbia and even Virginia.) Although the usual time of rezoning hearings in Montgomery County is limited to 1/2 hour to a side, in this case one hour to each was granted. Mrs. Davidson offered much testimony and the meeting was adjourned at 10:50 p. m., with the record showing only one opposing person not being heard, a Philip Marcus, whose address was not given. He was not offered by Mrs. Davidson, but seems to have been acting in an individual capacity. We were informed that his objections were reduced to writing and filed within the ten days. The above, for our present purposes, is a sufficient statement of what occurred at the hearing.

The appellants, as noted above, contend that the Council, at the hearing, was acting in a quasi-judicial capacity; therefore the hearing was required to be a 'trial type' one, at which they were entitled, as a matter of right, to cross-examine the appellees' witnesses. The appellees counter by arguing that the Council was acting in a legislative, or quasi-legislative, capacity; consequently the hearing required was not a trial-type one, and appellants were not entitled to cross-examination as a matter of right; and, even if they were so entitled, they had waived the same.

As considerable uncertainties encompassed within the realm of these respective claims seem to exist, we deem it appropriate to give the contentions a somewhat thorough, even though rather lengthy, consideration.

Before considering our present question specifically, we deem a few generalities appropriate. At the outset, we point out that the record does not present a clean-cut denial of the right to cross-examination. There was no request to cross-examine any specific witness or witnesses, either at the time any witnesses was testifying, or when it came time for the presentation of the opposition. There were no questions propounded, or requested to be propounded, when Mr. Miller, who was conducting the proponents' case, asked, 'are there any questions of Mr. Lebling?' And the same inquiry was made, with no questions asked, or requested to be asked, at the conclusion of Mr. Ditto's testimony. These were experts offered by the applicants and certainly were two of their most important witnesses. The only reference to cross-examination was made after the applicants had concluded their case, and the opponents had begun theirs. Also, the request when it came, 'I would first like to request the right of cross-examination on the material (italics ours) that has already been presented,' cannot be said to be very specific in nature. It is a matter of common knowledge that witnesses at zoning hearings, generally, are not summoned, and are not required to remain until the hearing is concluded. There was no showing as to what witnesses of the proponents, if any, still remained at the time the request was made, and, as previously stated, no request to cross-examine any specific witness. We think the record, at most, discloses a partial, but very slight, denial of the right of cross-examination to the appellants at the hearing.

It is elementary that governmental bodies, tribunals, agencies, boards (and by whatever other appellations they may be known), and officials, in the performance of their public duties, exercise functions that are divided into three general categories: executive, judicial, and legislative. (As no question is here involved concerning executive powers, no further reference will be made thereto.) And functions, when they are not purely and completely judicial or legislative in nature, but have qualities or incidents resembling them, are referred to as quasi-judicial or quasi-legislative.

Up to the present time, no one has been able to delineate, with precision and accuracy, an exact formula for determining the line of demarcation between the differences between legislative and judicial functions. These differences, on occasions, are particularly difficult of determination when mixed, blended, or combined functions are given, and exercised by, the same official, board, or agency, 1 Davis, Administrative Law Treatise, §§ 1.09, 7.03, which is frequently the case. Compare Cooper, State Administrative Law, Ch. 1, Sec. 1. (More will be said concerning this later.) And when the same official, board, or agency performs, in one proceedings, quasi-judicial and quasi-legislative functions, it is misleading and inaccurate to characterize the whole proceedings as judicial or legislative in nature. Davis, op. cit., 7.03.

It should be carefully noted and remembered that the holding in any zoning or rezoning case, here or elsewhere, cannot be accurately appraised without a knowledge and consideration of the constitutional and statutory provisions and the local laws and zoning regulations prevailing at the time of the decisions, below and here. We know of no jurisdiction in Maryland having zoning where the laws and regulations are identical; hence each decision of this Court must be considered in the light of the laws and regulations of the jurisdiction from which the appeal emanated.

This appeal comes from Montgomery County; consequently, our holdings herein must be limited to that county, except insofar as they also necessarily apply to other jurisdictions.

(a)

We return to a consideration of our immediate questions. Apparently, Montgomery County in zoing matters has...