Ligon v. State of Md., Civ. No. B-75-936.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation448 F. Supp. 935
Docket NumberCiv. No. B-75-936.
PartiesCharles H. LIGON et al. v. STATE OF MARYLAND and Montgomery County, Maryland, etc., et al.
Decision Date23 November 1977

448 F. Supp. 935

Charles H. LIGON et al.
STATE OF MARYLAND and Montgomery County, Maryland, etc., et al.

Civ. No. B-75-936.

United States District Court, D. Maryland.

November 23, 1977.

448 F. Supp. 936
448 F. Supp. 937
448 F. Supp. 938
William M. Canby, Rockville, Md., for plaintiffs

Francis B. Burch, Atty. Gen. of Maryland, Henry R. Lord, and Warren Rich, Asst. Attys. Gen. of Maryland, Annapolis, Md., and Frank W. Wilson, Gaithersburg, Md., for State of Maryland.

Richard S. McKernon, County Atty., Rockville, Md., for Montgomery County, Maryland.

Barbara A. Sears, Durvasula S. Sastri, Sanford E. Wool and Gus Bauman, Silver Spring, Md., for Maryland-National Capital Park and Planning Commission.


BLAIR, District Judge.

This is a civil action arising out of the rezoning of two parcels of land in Montgomery County, Maryland. Plaintiffs hold title to the land as trustees for Gaithersburg Association, a general partnership comprised of the former stockholders of Urbana Development Corporation Urbana, a defunct Maryland corporation. Defendants are the State of Maryland, Montgomery County, Maryland County, The Maryland National Capital Park and Planning Commission Commission, The Montgomery County Council Council, and the individual Council members who voted for the rezoning resolution.

Before reaching the merits of the motions to dismiss which are the subject of this memorandum and order, a review of the stormy and litigious history of the attempted development of the parcels is necessary. In 1965, Urbana purchased the land which was zoned R-R (rural residential) and thereafter sought to have it reclassified to permit industrial use. The Montgomery County Council sitting as the District Council, see Annotated Code of Maryland, art. 66D, § 8-101 (Supp.1976), approved Urbana's application and the property was rezoned to I-1 (light industrial). The rezoning was affirmed by the Maryland Court of Appeals. Kirkman v. Montgomery County Council, 251 Md. 273, 247 A.2d 255 (1968). In November 1970, Urbana was dissolved and title to the land was transferred to plaintiffs as trustees for the partnership. In 1971, the trustees entered into contracts for the sale of parcels within the property subject to the approval of an industrial subdivision plat by the Commission. After the trustees learned that their land was within the taking lines of Seneca State Park, the subdivision plan was withdrawn from consideration. The trustees allege that this was done after they were informed that continued development would cause the tract to be placed in reservation under the subdivision provisions of the Montgomery County Code. The trustees then attempted development without subdivision

448 F. Supp. 939
and began to clear a portion of the property. The trustees allege that the Council considered this an emergency matter at its June 29, 1971 meeting and requested its attorneys to pursue legal action halting the development of the tract. The trustees allege that development was, in fact, stopped after the State threatened litigation under state erosion laws. Without detailing the specific allegations in the trustees' complaint, the complaint alleges that during the next year the defendants and their agents engaged in a course of conduct designed to prevent any development of the tract and to acquire it for park land, culminating with the Council's adoption of Resolution 7-797 which reclassified the tract from I-1 to R-R (rural residential)

Following the adoption of Resolution 7-797, the trustees appealed the Council's decision to the Circuit Court for Montgomery County. The circuit court rejected the trustees' contention that the downzoning deprived them of property rights without just compensation in violation of the fifth and fourteenth amendments to the Constitution and article three, section forty of the Maryland Constitution, In re Application No. F-805, Law No. 36699 (Mont.County Cir.Ct., filed June 28, 1974) at 9-10.1 The circuit court accepted the trustees' contention that the reclassification was a local map amendment and reversed the Council's action. The Council appealed and the case was heard by the Maryland Court of Appeals following the issuance of a writ of certiorari to the Maryland Court of Special Appeals. The Court of Appeals reversed, finding that the reclassification amounted to comprehensive rezoning which "bore a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare." County Council v. District Land Corp., 274 Md. 691, 337 A.2d 712, 718 (1975). The trustees did not seek a writ of certiorari in the United States Supreme Court from the adverse decision.

Count I, which contains thirty-eight paragraphs incorporated by reference in the three other counts, alleges that the reclassification is an unlawful taking in violation of the fifth amendment to the Constitution and article 23 of the Maryland Declaration of Rights and article 3, § 40 of the Maryland Constitution. Count II alleges that the defendants and their agents have acted to deny plaintiffs rights guaranteed by 42 U.S.C. § 1983. Count III alleges that defendants have conspired to violate plaintiffs' civil rights in violation of 42 U.S.C. § 1985(3). Count IV alleges both tortious interference with contract rights and tortious abuse of process by defendants.

Plaintiffs seek injunctive relief forbidding the defendants from interfering with the trustees' development of the tract under the I-1 zoning classification. Plaintiffs also seek one million dollars for the alleged uncompensated taking, nominal monetary damages against all defendants on Counts II, III and IV, costs, and other relief that the court deems appropriate. All defendants have moved to dismiss.

In Count I, plaintiffs have competently alleged a cause of action for violation of their constitutional rights under the fifth and fourteenth amendments to the Constitution. Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462, 464, 36 S.Ct. 402, 60 L.Ed. 743 (1916); Mosher v. City of Phoenix, 287 U.S. 29, 32, 53 S.Ct. 67, 77 L.Ed. 148 (1932); M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354 (N.D.Cal.1975); Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974). In Counts II and III, plaintiffs allege violations of their civil rights in violation of 42 U.S.C. §§ 1983 and 1985(3). Neither the State of Maryland, Montgomery County nor the Montgomery County Council are "persons" within the meaning of section 1983. Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 513-14, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Shapiro v. Maryland, 336 F.Supp.

448 F. Supp. 940
1205, 1208 (D.Md.1972); Donohoe Construction Co., Inc. v. Maryland Nat. Cap. Park & Planning Comm'n, 398 F.Supp. 21, 23 (D.Md.1975); Shellburne, Inc. v. New Castle County, 293 F.Supp. 237, 244-46 (D.Del. 1968). Neither are they "persons" within the meaning of section 1985(3). Bosely v. City of Euclid, 496 F.2d 193, 195 (6th Cir. 1974); M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354, 359-60 (N.D.Cal. 1975); Black Brothers Combined v. City of Richmond, 386 F.Supp. 147, 148 (E.D.Va. 1974). This is true whether the action be for injunctive or monetary relief. Monroe v. Pape, supra; City of Kenosha v. Bruno, supra.

Defendant Commission contends that the court lacks subject matter jurisdiction over it because it is not a person within the meaning of the Civil Rights Act. The question was expressly left open by Judge Young in Donohoe Construction Co. v. Maryland Nat. Cap. Park & Planning Comm'n, 398 F.Supp. 21, 23 (D.Md.1975). While the statute is by no means explicit on the question of whether the Commission is an agency of the State or of Montgomery and Prince George's Counties, the Maryland Court of Appeals recently addressed the issue in O & B, Inc. v. Maryland-Nat. Cap. Park & Planning Comm'n, 279 Md. 459, 369 A.2d 553 (1977), a case involving the status of the Commission as a state agency for purposes of sovereign immunity in tort under the common law. The court analyzed the history and function of the Commission and concluded that the Commission is an agency of the State. The court acknowledged that the Commission is subject to county control and performing local functions, but found that the Commission was established by public general laws rather than by county legislation and its powers and duties, as well as the degree of local control, is determined by the state legislature. 369 A.2d at 555-56. In addition, the court found provisions in Annotated Code of Maryland, art. 66D (Supp.1976) which indicates that the Commission is a state rather than local governmental agency. 369 A.2d at 556. The court concluded:

Thus, although the Commission has local functions and responsibilities, it appears that the General Assembly has created the Commission as the state agency responsible for coordinating planning, zoning, and recreational activities within the Washington metropolitan area which otherwise would be the sole responsibility of the counties. Even though Prince George's and Montgomery Counties exercise some control over the Commission, the extent to which they do so is determined by the General Assembly and not by the county charters or the county laws. The powers and duties of the Commission, created by the General Assembly, are solely within the control of the General Assembly.
For these reasons, we find that the Commission is properly characterized as a state agency for the purpose of determining its right to invoke the doctrine of sovereign immunity.

369 A.2d at 556.

As a state agency, the Commission is not a person within the meaning of the Civil Rights Act. Burt v. Board of Trustees, 521 F.2d 1201, 1205 (4th Cir. 1975); Huntley v. North Carolina State Board of Education, 493 F.2d 1016, 1017 n. 2 (4th Cir. 1974)...

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