Rasnake v. Board of County Com'rs of Cecil County

• Decision Date: 28 February 1973
• Docket Number: No. 187,187
• Citation: 268 Md. 295,300 A.2d 651
• Parties: Curtis S. RASNAKE et al. v. BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY.
• Court: Maryland Court of Appeals

Page 295

268 Md. 295

300 A.2d 651

Curtis S. RASNAKE et al. v. BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY.

No. 187.

Court of Appeals of Maryland.

Feb. 28, 1973.

Daniel H. Bathon, Elkton, for appellants.

O. Robert Lidums, Elkton (William B. Calvert, Elkton, on the brief), for appellee.

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

SMITH, Judge.

Because we see a fundamental difference between the facts in this case and those in Hewitt v. Baltimore County, 220 Md. 48, 151 A.2d 144 (1959), and Walker v. Talbot County, 208 Md. 72, 116 A.2d 393 (1955), relied upon by a trial judge in concluding that Cecil County fully complied with the provisions relative to notice of a proposed change in its zoning ordinance, we shall reverse that determination.

The Cecil County zoning ordinance had permitted '(t)emporary buildings and uses for construction purposes' in any zone 'when approved by the Board of Appeals' subject to certain restrictions, one of which was that the permits so issued had an outside limit in time, with renewals, of two years. They had been used, apparently, for placement of trailers or mobile homes on lots when the occupant was building his own home. Provision for amendment was made in § 13 of the ordinance which stated in relevant part:

'The regulations . . . set forth in this ordinance may from time to time be amended provided however that no such action may be taken until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in the county.

'Any proposed amendment shall be submitted to the Planning Commission for report and recommendation prior to any action thereon by the County Commissioners. The . . . County Commissioners may originate proposed amendments.'

The county commissioners proposed an amendment which would have permitted these temporary buildings and uses for construction purposes 'when approved by the Cecil County Zoning Inspector,' without any revised restrictions except that the zoning inspector was permitted to revoke the temporary permit at any time he believed that satisfactory progress in construction was not shown. The county commissioners published a notice of the hearing which set forth the proposed ordinance as amended verbatim. The notice then stated:

'NOTE: The legal effect of the above ordinance, if adopted, will be to allow the Cecil County Zoning Inspector to approve certain structures and uses in any zone rather than to require approval by the Board of Appeals, which is presently necessary. In addition it would allow the Zoning Inspector to revoke any approval previously given if in his opinion satisfactory progress in construction is not shown. (This explanation is not a part of the ordinance).' (Emphasis in the notice.)

The hearing was duly held. The county engineer spoke of his 'short experience' in Cecil County and harkened back to his World War II experiences in Indiana 'where variations were made in respect that a man could build his basement, top it off and live in the basement, and then progressively build his house.' He claimed the program 'was abused because people got in the basement, lived there, never continued . . . result(ing) in the elimination of the entire program.' He then suggested amendment of the ordinance to require the filing of a $500 bond by the applicant, the bond to be returned to the applicant if completion of the construction project occurred within the specified time of the permit, otherwise the applicant was to forfeit his bond and permanently vacate the temporary building or use. His proposal also called for elimination of the provision for revocation of the permit if the building inspector were not satisfied with progress. In making his recommendation the engineer said:

'The type of bond subject to the approval of the Commissioners could be an amount put in escrow in a bank so that the applicant could derive the interest that this money would accrue over the period of the permit.'

The persons present at the hearing indicated their approval of the amendment as originally proposed by the commissioners, but the $500 bond provision brought a storm of protest. As one person put it:

'After listening to this gentleman here, these people are moving on this property to save money. Now, if they have the $500 to do this, what he is asking them to do is jeopardize $500 of hard, earned cash, if they run into hardships. Maybe he was born with a silver spoon. A lot of us weren't. And we have to live the way we can live. And a lot of these people are doing this because they are trying to get ahead. They are not doing it to be jeopardized by forfeiting a $500 bond, which they would have to put up in cash if the bond went through. This is ridiculous.'

Another protestant said:

'I would like to make a comment in regard to this trailer business. We have three classes of people in this country. We have millionaires, who do as they please. Then we have a group of people who were born poor and run to the State Board all their lives, no willing to exert themselves, try to better themselves. We have another class of people who were born poor who are willing to work to have something for themselves.

'I approve of this construction trailer. We had many cases in the county where the lumber was stolen almost as soon as it was unloaded. If a man puts a trailer there he can work at night and weekends. If (he) pays for the lumber and the lot, that is a handsome price. But when you pay $4 and $8 an hour for construction purposes, they just can't make it.

'And I think the two-year limit is all right providing you have some 'ifs' in it. A man might work out in a few years' time, but he may have somebody who goes to the hospital and have a doctor bill and a hospital bill, and that can put a crimp in his style. And if you are going to cut him off in two years' time and make him move out because something happened that he had no control over, I don't want that forced on our people. I have been here all of my life, and am one of that class of people that I am talking about.

'When you put a bond on a man, or make him put up or forfeit something before he can start on this, that is throwing a stumbling block in the path of a man who can't afford it, and I am opposed to it, and I would like some ifs and ands and buts in there so if he has hard luck and can't make out in two years, give him an extension.'

Without further hearing, the county commissioners in accordance with the recommendations of the engineer eliminated the provision for revocation if the zoning inspector were not satisfied with progress and substituted a paragraph setting forth an additional restriction upon such permits. It read:

'd. The applicant post a bond in the amount of five hundred dollars ($500.00) (cash, surety, or property bond) to the County Commissioners of Cecil County, said bond to be returned to the applicant if completion of the construction project occurs within the specified time of the permit, otherwise the applicant forfeits his bonds and permanently vacates the temporary building or use.'

The appellants unsuccessfully sought a determination by the Circuit Court for Cecil County that the bond provision of the ordinance is invalid. They do not contest the right of the county to amend its ordinance by requiring such a bond, but say that there was a substantial change here without prior public notice, and without a proper chance to be heard, so that the commissioners should be required to give the public prior notice that they intend to include a bond provision. They concede that substantial changes in an ordinance after hearing are permissible, but say that 'those changes must have been indicated as possible in the original notice.' We agree.

In 8A McQuillin, Municipal Corporations § 25.249 (1965 rev.ed., Supp.1972) it is stated:

'Notice of a zoning ordinance or amendment or of hearings thereon generally must be given where and as required, and the ordinance or amendment is invalid for failure to give required notice. . . . The notice must adequately inform as to what changes are proposed, and the actual change must conform substantially to the proposed changes in the notice. Some deviation from the proposed changes may be immaterial. However, a substantial difference between the...