Maryland-National Capital Park and Planning Commission v. McCaw

• Decision Date: 12 May 1967
• Docket Number: MARYLAND-NATIONAL,No. 497,497
• Citation: 229 A.2d 584,246 Md. 662
• Parties: TheCAPITAL PARK AND PLANNING COMMISSION v. J. Elroy McCAW.
• Court: Maryland Court of Appeals

Page 662

246 Md. 662

229 A.2d 584

The MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. J. Elroy McCAW.

No. 497.

Court of Appeals of Maryland.

May 12, 1967.

Harry W. Lerch, Silver Spring (Thomas E. Jones, Upper Marlboro, on the brief), for appellant.

Frank B. Haskell, III, Upper Marlboro (Mitchell, Clagett & Euwer, Upper Marlboro, on the brief), for appellee.

Argued Feb. 13, 1967 before HORNEY, MARBURY, OPPENHEIMER, McWILLIAMS, and FINAN, JJ.

Reargued March 10, 1967 before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES, McWILLIAMS and FINAN, JJ.

OPPENHEIMER, Judge.

The question presented by this appeal is whether a subdivision plat in which land is dedicated to public use can be abandoned when the land is within an area designated for public taking as a regional park, and the local law under which the abandonment is sought provides that the plat can be abandoned only if 'no damage can be in any wise sustained by persons other than the petitioners.'

In November, 1908, a plat of subdivision entitled 'East River View Subdivision' (the subdivision) was made by one Lucas and duly recorded in Prince George's County where the land was located. The plat showed a number of small building lots, with several streets, sixty feet in width. Subsequently, a portion of the subdivision was abandoned under court order.

In May, 1963, The Maryland-National Capital Park and Planning Commission adopted a Master Plan for the Henson Creek Watershed, as part of the General Plan for the development of the Maryland-Washington Regional District in Montgomery and Prince George's County. The Master Plan designated a portion of the land within the subdivision as a part of a large regional park.

A few months later, in July, 1963, the appellee purchased a large tract of land which included all of the land in the subdivision. On July 15, 1965, he filed a petition in the Circuit Court for Prince George's County for leave to abandon the balance of the plat of the subdivision. The petition was brought under the Code of Public Laws of Prince George's County, Subtitle 12 (1963) (the statute).

Section 12-26 of the statute provides for the filing and recording of plats of subdivisions in Prince George's County. Section 12-31 provides that such plats, when filed for record, shall constitute a part of the land records of the county, and shall have the same force and effect as to notice given properly recorded deeds. Section 12-32 (the abandonment provision) reads in part as follows:

'When said plats are so recorded, those portions of said land designated on said plats as streets, roads, avenues, lanes, alleys and public parks or squares, shall be and the same are hereby declared to be forever dedicated to public use and shall not thereafter, on any pretext whatsoever, be altered or taken for private use; provided, however, that nothing herein contained shall effect (sic) the right of any person or persons owning or claiming any interest in said land derived by, from or under any persons other than the maker of said plat, or by, from or under such maker prior to such sub-division; and provided further, that the maker of any such plat or plats, his heirs or assigns, shall have the right to apply by petition to the Circuit Court for said County, for leave to abandon the sub-division of lands so made by him, and reconvert the same into one tract or parcel; * * * said Court if, convinced upon such proof, and after such notice by publication or otherwise or as it shall direct that no damage can be in any wise sustained by persons other than the petitioners, shall have power to pass an order authorizing and empowering such petitioner to abandon such sub-division, either in whole or in part * * *.'

All these sections of the statute (except the provisions in the abandonment provision as to the manner in which notice is to be given) were in effect when the plat of the subdivision was filed in 1908 by the appellee's predecessor in ownership. Code of Public Local Laws of Maryland, Art. 17, ch. 619, sections 85A, F, and G (1908).

The appellee's petition for leave to abandon stated that the appellee desired to reconvert all the portions of the subdivision to which the petition pertained to one parcel or tract of land and that none of the avenues or streets the dedication of which was sought to be abandoned had ever been opened or used as such. Paragraph 6 of the petition listed 'the property owners, persons and bodies corporate interested in the abandonment prayed for * * *' The public bodies listed included the County Commissioners of Prince George's County, the appellant, and the Washington Suburban Sanitary Commission. Paragraph 7 of the petition reads as follows:

'7. That the proposed abandonment does not effect any property other than that of the Petitioner and that no damage can in any way be sustained by virtue of said abandonment by any person, corporations or public bodies other than the Petitioner and those who will be personally served herein and/or will sign the consents hereto.'

The abutting property owners and the County Commissioners consented to the abandonment. Washington Suburban Sanitary Commission filed a conditional consent. The appellant, Maryland-National Capital Park and Planning Commission (the Commission), without formal entry of its appearance as a party, consented, in writing, to the abandonment of that portion of the subdivision which lies outside the boundaries of the proposed park, but asked the court to disapprove the abndonment of that portion of the subdivision which lies within the duly adopted park boundaries. With its pleading, the Commission filed as an exhibit the similar recommendation of the Prince George's County Planning Board and a copy of the duly adopted Master Plan of Land Use for the Henson Creek Watershed which shows the proposed Henson Creek Regional Park.

The street area in the part of the proposed abandonment to which the Commission objects consists of about ten acres, which is a small proportion of the land dedicated to the public use in the 1908 subdivision plat and a small proportion of the remainder of the appellee's land. The land owned by the appellee containing dedicated streets in the portion of the subdivision to whose abandonment the Commission does not object, like other portions of the appellee's property purchased from the original subdivision owner, is contiguous to the proposed park. The Commission owns no land abutting that of the property here involved, but it was agreed by counsel, in oral argument, that the Commission has acquired other parcels within the area of the designated park.

A hearing was held by the court below, at which no testimony was taken. At its conclusion, on November 16, 1965, the court entered a Final Order for Abandonment, based on the pleadings, exhibits and argument of counsel. On December 16, the court granted leave to the Commission to intervene as a party for the purpose of appeal.

I

The threshold question, raised by the appellee's motion to dismiss, is whether the Commission has standing to appeal. The appellee contends that the Commission is not a party, within the requirement of Code (1957) Article 5, section 6, because it has not shown a direct interest in the subject matter of the litigation. That section of the Code provides that any party may appeal from any final decree entered by a court of equity. Under it, appeals are permitted by parties of record and also persons who were directly interested in the subject matter of the suit. See First Union Savings & Loan, Inc. v. Bottom, 232 Md. 292, 295, 193 A.2d 49 (1963), and cases therein cited. The test of standing here involved is broader than that involved in zoning cases, where ordinarily an appeal from a decision of the administrative agency can only be taken by an aggrieved party who not only has a specific interest or property right affected but is personally and specially affected in a way different from the effect upon the public generally. Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967); Alvey v. Hedin, 243 Md. 334, 339, 221 A.2d 62 (1966); Dubay v. Crane, 240 Md. 180, 185, 213 A.2d 487 (1965), and cases therein cited. Here, the abandonment provision of the statute emphasizes the public interest involved. The dedicated open spaces are declared to be forever dedicated to public use and are not thereafter to be altered or taken for private use 'on any pretext whatsoever' unless it is shown that no damage can be in any wise sustained by persons other than the petitioners.

Under explicit statutory provisions, the Commission is a representative of the public in matters such as are here involved. It is empowered to make general plans for the physical development of the District and in doing so, is expressly made the representative of the State. Code of Public Local Laws of Prince George's County, sections 59-68, 59-69 (1963). It is given the power of condemnation and lands acquired by it are held for the benefit of citizens of the State and especially for the benefit of citizens of Montgomery and Prince George's Counties. Sections 59-31, 59-37. Under section 59-75, no plat of any subdivision of land shall be admitted to the land records of either county without the Commission's approval, and the Commission has the power to require dedications of streets and roads in such subdivisions.

The vital role played by planning bodies such as the Commission in the protection of the interest of the public was recognized in Krieger v. Planning Comm'n of Howard County, 224 Md. 320, 167 A.2d 885 (1961). That case upheld the authority of the Planning Commission to deny approval of a subdivision plan submitted to it by a developer. The Commission had duly adopted a major street plan and subdivision regulations with which the proposed plan did not comply. Judge Henderson, for the Court, said: 'If the Planning Commission were powerless to require compliance, the whole purpose of...