Prince George's County v. McBride

Citation268 Md. 522,302 A.2d 620
Decision Date04 April 1973
Docket NumberNo. 203,203
PartiesPRINCE GEORGE'S COUNTY, Maryland, v. Joseph F. McBRIDE.
CourtCourt of Appeals of Maryland

Ellis J. Koch and Harry L. Durity, Assoc. County Attys. (Walter H. Maloney, Jr., County Atty. of Upper Marlboro, on the brief), for appellant.

Joseph F. McBride, Lanham (Robert S. Hoyert, Robert A. Diemer, Bill L. Yoho, Roy W. Hooten and Hoyert, Diemer, Yoho, Hooten & McBride, Lanham, on the brief), for appellee.

Joseph S. Casula, Upper Marlboro, on the brief for City of Bowie, Robert W. Shook, Hyattsville, on the brief for Prince George's County Municipal Ass'n, amicus curiae.

Argued before MURPHY, C. J., and BARNES, SINGLEY, SMITH and LEVINE, JJ.

LEVINE, Judge.

At first glance, one might view this appeal as one taken from the mere denial of a rezoning application, and thus expect it to be decided somewhat routinely in accordance with the abundant collection of zoning cases that now repose in the Maryland Reports. Indeed, but for the enactment of Chapter 278, Laws of Maryland, 1969, we might well have been concerned in this case merely with the commonplace zoning question of whether the evidence of 'change' was fairly debatable. As it happens, what began as a 'garden variety' zoning case has blossomed into one presenting significant issues of statutory construction and constitutional law. The Circuit Court for Prince George's County (Loveless, J.) decided the case on one of these issues, the effect of which was to declare Chapter 278 unconstitutional. From that ruling, this appeal is taken.

On January 31, 1969, appellee (McBride) filed an application with appellant (the District Council) for the reclassification of a parcel containing approximately 11,252 square feet located in the City of Bowie (Bowie) from the C-1 (local commercial) to the I-1 (light industrial) zone. On April 9, 1969, the District Council, pursuant to § 59-83(c) 1 of the Code of Public Local Laws of Prince George's County, referred the application to Bowie for its recommendation. 2 Section 59-83(c) had been amended by Chapter 417, Laws of 1966, to '(allow) such governing body . . . sixty (60) days in which to make its recommendation.'

On July 1, 1969, while the matter was presumably still under consideration by Bowie, Chapter 278 became effective. It added to § 59-83(c) the proviso 'that . . . a two-thirds majority of all the members of the district council shall be required before said council may change the zoning classification of property within any incorporated municipality contrary to the recommendation of such municipality thereon.'

On September 2, 1970, some 17 months after the application had been referred to it, Bowie forwarded its recommendation that the rezoning be denied. The matter came on for hearing on October 9, 1970 before the District Council which, on November 2, 1970, issued its decision. By a 3-to-2 vote, that body determined that there had been a 'substantial change in the neighborhood' and, for a number of reasons detailed in its decision, concluded that the subject property should be rezoned, but to the C-2 (general commercial) zone and not to I-1. During itself bound by the augmented majority proviso in Chapter 278, however, the District Council denied the application for 'want of a two-thirds majority vote.'

McBride appealed the District Council's decision to the circuit court where he mounted an attack on several grounds. As we noted earlier, Judge Loveless found it necessary to reach only one of those issues, concluding, in effect, that Chapter 278 is an unconstitutional delegation of the zoning power to municipalities due to the lack of proper standards. Being of that view, he 'determined that the simple majority vote of the Council was all that was required,' and therefore ordered that the zoning application 'be granted by the District Council.'

In addition to challenging the circuit court's decision, appellant also seeks to have us decide the remaining issues which were not reached below. It is joined in this request by McBride. Our study of the record persuades us that we should reach the additional questions posed by the parties, even though they were not reached below, to 'avoid the expense and delay' of what is certain to be at least one more 'appeal to this Court,' Rule 885. 3

The additional issues presented to us, which have been briefed and argued, are:

Whether McBride has been denied equal protection of the law?

Whether Bowie was required to make its recommendation within sixty days?

Whether Bowie was estopped from making its recommendation?

(1)

We have noted that the circuit court struck down Chapter 278 as unconstitutional for the reason that it delegates zoning power to municipalities without providing necessary standards. In support of that ruling, McBride reminds us of our decision in Prince George's Co. v. Laurel, 262 Md. 171, 179, 277 A.2d 262 (1971), where we noted that by virtue of its exclusion from the Regional District, 'the Town of Laurel is the only one of the twenty-nine incorporated municipalities in Prince George's County which was granted and now exercises planning and zoning powers.' On this basis, he argues, the standards or guidelines that might otherwise be available to a municipality such as Bowie under Maryland Code (1957, 1970 Repl. Vol.) Art. 66B, § 4.01 et seq., in effectuation of the zoning power, do not apply.

And, it is maintained, since Chapter 278 itself failed to provide such standards, the District Council acted contrary to our decisions requiring a delegation of the zoning power to be accompanied by proper standards or guidelines, Marek v. Board of Appeals, 218 Md. 351, 146 A.2d 875 (1958); Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 190 Md. 478, 49 A.2d 799, 58 A.2d 896 (1946); Tighe v. Osborne, 149 Md. 349, 131 A. 801, 43 A.L.R. 819 (1925); see Gino's v. Baltimore City, 250 Md. 621, 244 A.2d 218 (1968).

In the view we take of this question, it becomes unnecessary to decide whether Chapter 278 is unconstitutional due to a lack of standards or guidelines, for we do not agree that the proviso under attack here has the effect of delegating zoning power to municipalities.

While we have never had occasion to decide the issue presented by the trial court's ruling, the 'augmented majority' provision is not entirely new to the zoning law of Maryland. Indeed, while, as we noted in the first McBride case, Chapter 278 introduced the concept to Prince George's County, the very same provision has been in effect for Montgomery County ever since the passage of Chapter 780, Laws of 1959, known as the 'Regional District Act.' A variation is also found in Code (1957, 1970 Repl.Vol.) Art. 66B, § 3.08 which, in substance, provides that decisions of planning commissions conforming with an adopted land-use plan may be overruled only by a two-thirds vote of a local legislative body.

In this connection, it is reasonable to suggest that if there is any validity to McBride's contention that Chapter 278 is an improper delegation of zoning power, the argument applies with greater force where a planning commission is cast in the role occupied here by Bowie, since zoning is clearly a legislative function, Scull v. Coleman, 251 Md. 6, 246 A.2d 223 (1968); Ark Readi-Mix v. Smith, 251 Md. 1, 246 A.2d 220 (1968); Reese v. Mandel, 224 Md. 121, 167 A.2d 111 (1961), that is committed to local legislative bodies and municipalities, and not to planning commissions.

An analogous provision was presented in Gratton v. Conte, 364 Pa. 578, 73 A.2d 381 (1950). There, a statute provided that recommendations of the city planning commission against proposed changes in zoning regulations or districts could be overridden only by a three-fourths vote of the city council. While the issue was not whether that provision constituted a delegation of zoning power, what the court there said is persuasive:

'. . . (T)he Commission is, as far as zoning is concerned, merely a recommendatory body; final decision rests in the elective legislative body of the city government. . . . (T)he Act of 1927 provided that in case of disapproval by that body of a proposed change in zoning regulations or boundaries a vote of three fourths of all the members of the Council should be required to pass the ordinance; once such a vote is obtained, however, the requirements of the law are fulfilled. The ultimate power is vested in the Council, and its good faith in acting for the public welfare cannot be questioned by the judicial branch of government.' 73 A.2d at 384.

In Hopkins v. MacCulloch, 35 Cal.App.2d 442, 95 P.2d 950 (1939), where a similar provision applicable to a planning commission was involved, the court held, in effect, that there was no delegation of the zoning power. In so holding, the court cited with approval an earlier California case, City of Stockton v. Frisbie & Latta, 96 Cal.App. 277, 270 P. 270 (1928), where a similar conclusion was reached in connection with a zoning ordinance that required a greater than majority vote for the adoption of classification changes where there were protests by a stated percentage of property owners within a specified distance of the area sought to be rezoned. Similar provisions are found in a number of enabling acts and zoning ordinances throughout the country and, where challenged as unlawful delegations of legislative power, have uniformly been upheld as not constituting such a delegation, Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742 (1962); Koppel v. City of Fairway, 189 Kan. 710, 371 P.2d 113 (1962); Trumper v. City of Quincy, 264 N.E.2d 689 (Mass. 1970); Northwood Properties Co. v. Perkins, 325 Mich. 419, 39 N.W.2d 25 (1949); Farmer v. Meeker, 63 N.J.Super. 56, 163 A.2d 729 (1960).

In 1 Rathkopf, The Law of Zoning and Planning, 28-5 (3rd ed. 1962), it is aptly stated:

'The purpose of a provision requiring a greater than ordinary vote for a change in a zoning classification upon...

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