Northampton Corp. v. Prince George's County
| Decision Date | 17 June 1974 |
| Docket Number | No. 851,851 |
| Citation | 321 A.2d 204,21 Md.App. 625 |
| Parties | NORTHAMPTON CORPORATION v. PRINCE GEORGE'S COUNTY, Maryland, et al. |
| Court | Court of Special Appeals of Maryland |
Russell W. Shipley, Hillcrest Heights, with whom were William E. Knight and Kahler, DeBlasis, Shipley & O'Malley, Hillcrest Heights, on the brief, for appellant.
Ellis J. Koch, Associate County Atty., with whom was Joseph S. Casula, County Atty., on the brief, for appellees.
Argued before THOMPSON, GILBERT and MOORE, JJ.
Northampton Corporation, appellant, is indignant over denial by the District Council of Prince George's County of two applications for rezoning filed by appellant. In this Court appellant urges us to reverse a judgment of the Circuit Court for Prince George's County affirming the action of the District Council and to remand the proceeding 'for passage of an appropriate rezoning resolution.' We decline to grant appellant the relief sought, but we vacate the judgment of the Circuit Court and remand the matter for proceedings under the applicable law.
On January 29, 1971 the appellant filed its application to rezone two areas, designated on the applications as ZAP 8563 and ZAP 8564, from R-R (rural residential) to I-1 (light industrial). The technical staff of the Maryland-National Capital Park and Planning Commission recommended that both properties be rezoned to I-1. The Planning Board of Prince George's County made a similar recommendation. The matter was heard before the county zoning hearing examiner. 1 The hearing was originally scheduled for July 7, 1972, and insofar as we can tell from the record, no protestants appeared at that time. The hearing, however, was postponed at the request of appellant until August 4, 1972. The record does reveal that there were no protestants physically present at the August hearing, but the examiner was in receipt of a letter from Mrs. Lem F. Woo, a resident of a nearby area. Mrs. Woo in her latter stated:
'I am greatly opposed to any rezoning especially any types of trucks, parking, lumber or warehousing, mainly because there is an elementary school in that area.
The idea of having trucks in this particular area would be a hazard to the children and to the school buses.'
In his opinion, in which he recommended that the District Council grant the requested rezoning, the examiner referred to Mrs. Woo's letter. The examiner also stated in his opinion that the 'school is not opposed to these applications.' It would appear, however, that the School Board did not phrase their letter to the examiner in quite such unqualified words. The Board actually said:
'There is no objection to the rezoning of (these) parcel(s) of land to the I-1 category as long as the ultimate use of this land is not detrimental to the safety, educational and administrative function of Ritchie Elementary School.'
As the result of the notification that the rezoning had been recommended by the hearing examiner, Mrs. Woo wrote to the Council and requested an opportunity to be heard on 'oral argument.' Mrs. Woo was in turn advised that 'oral argument' was scheduled before the Council on December 13, 1972, but argument would be limited to the testimony 'presented before the Zoning Hearing Examiner; no new testimony is allowed.' The record before us does not contain the minutes of the District Council for December 13, 1972 although it is apparent from subsequent minutes 2 that Mrs. Woo did appear on the December date and expounded her views. While the record is silent as to the happenings before the Council in December, it is conceded in the briefs that the District Council failed to approve a motion to rezone, and the cases were rescheduled. The District Council again considered the matter on February 28, 1973, and once more a motion to approve failed. 3 The failure of the Council to approve the motion to rezone operated as a denial because February 28, 1973 was the last day the Council could act under the Charter. 4
The appellant sought redress in the Circuit Court and argued that because the District Council had failed to make 'findings of basic facts and written conclusions', it should be reversed.
The trial court relied upon Prince George's County Code of Public Local Laws (1963), § 59-104 which states:
'In Prince George's County, no application for a map amendment or special exception, which is contested, shall be granted or denied except upon written findings of basic facts and written conclusions.' (Emphasis supplied).
The court then conclued that the instant case was not a contested case because Mrs. Woo did not attend the hearing before the zoning hearing examiner. Consequently, Mrs. Woo could not be cross-examined, and the denial of the right of cross-examination to the appellant constituted violation of procedural due process of law. The court then determined that § 59-104 was inapplicable. The judge went on to find that the District Council could have based its findings upon an aerial photograph depicting the close proximity of the elementary school to the subject property and might have determined that such property 'could pose a threat to the health, safety and welfare of the children.' The court further stated that there was a housing development nearby and that the Council could have taken this into consideration. The judge said:
'. . . (T)hese 100 houses or so are clearly visible from the subject property and would have some environmental effect thereon.'
He concluded that there was sufficient evidence before the District Council to support its actions and that the issue was 'fairly debatable.' See Largo Civic Ass'n v. Prince George's County, Md.App., 318 A.2d 834 (1974).
We observe that at the General Election on November 3, 1970 the voters of Prince George's County approved a Charter form of government. 5 The Charter became effective 'on the thirtieth day following its adoption, except was otherwise specifically provided in the Transitional Provisions (Article XII) of this Charter.' Charter, Art. XI, § 1101. The transitional provisions further mandated that Article XI 'shall become operative at the time the first County Executive and the majority of the members of the first Council take office.' Art. XII, § 1207. A County Executive was elected on January 26, 1971 and he, along with a majority of the County Council, took office on February 8, 1971. The provisions of the Charter were operative, not only at the time this matter was heard before the District Council on 'oral argument', but also when the hearing was held by the county zoning hearing examiner.
Article VII of the Charter entitled, 'Planning and Zoning', at § 706 states:
(Emphasis supplied).
Article VII, § 707(a) provides:
'(a) The final decision of the Council in any zoning case shall be based solely upon record evidence, and shall be supported by specific written findings of basic facts and conclusions of law.'
Article VII, § 711 prescribes the duties of the zoning hearing examiner as follows:
We think it clear that § 707(a) requires the District Council to make written findings of facts and conclusions of law when it renders a 'final decision'. In those cases where the Council has delegated the duty of making findings of fact and recommendations, pursuant to § 711, to the zoning hearing examiner, the Council may comply with the provisions of § 707(a) by adopting the findings and conclusions of the zoning hearing examiner. Consequently, it is only in those cases where a 'final decision' is made in which the Council does not adopt the findings and conclusions of the zoning hearing examiner that the Council's actions must be supported by its own 'specific written findings of basic facts and conclusions of law.' When, as here, the Council fails to act within the time prescribed in the Charter, and the application is thus denied, the trial court, on appeal, is free to make its own findings of fact and conclusions based upon the record submitted to it.
In the case now before us the trial judge should have considered the Charter provisions and not the Prince George's County Code of Public Local Laws (1963), § 59-104 because § 59-104 was implicitly repealed by the provisions of Charter Art. XI, § 1102 which provides:
'The...
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