Ritchmount Partnership v. Board of Sup'rs of Elections for Anne Arundel County, s. 161

CourtCourt of Appeals of Maryland
Citation388 A.2d 523,283 Md. 48
Docket NumberNos. 161,162,s. 161
Decision Date26 June 1978
William C. Mitchell, Jr., Annapolis (C. Bowie Rose, Annapolis, on the brief), for Ritchmount Partnership et al

Thomas M. Downs and C. Fred Delavan, Annapolis (Harry C. Blumenthal, Annapolis, on the brief), for Refuse Disposal of Maryland, Inc.

Robert C. Wilcox and Frederick C. Sussman, Asst. County Solicitors (Michael R. Roblyer, Anne Arundel County Sol., Annapolis, and Emile J. Henault, Jr., Glen Burnie, on the brief for Board of Supervisors of Elections for Anne Arundel County), for Anne Arundel County.


LEVINE, Judge.

We consider in these two appeals the constitutionality of Article III, § 308 of the Charter of Anne Arundel County and specifically whether the people of a home rule county may In ratifying § 308, the voters of Anne Arundel County sought to retain the right to approve or reject by way of petition and popular election ordinances of the Anne Arundel County Council. Appellants, who own real property situated in northern Anne Arundel County, instituted these separate suits in the Circuit Court for Anne Arundel County (Childs, J.), challenging the validity of § 308 and a 1974 zoning referendum held pursuant thereto. 2 The trial court issued a declaratory decree upholding the referendum article and election. Because of the singular importance of the constitutional question to the fundamental structure and administration of local government in Maryland, we granted certiorari to review these companion cases prior to their consideration by the Court of Special Appeals. We now affirm.

confer upon themselves the power of referendum over local legislative enactments, where such power was neither delegated by act of the General Assembly nor expressly reserved to the inhabitants of charter counties by the Constitution of this State. 1

Early in October 1972, the Anne Arundel County Council (the County Council) enacted Bill No. 136-72, adopting comprehensive zoning maps for the northern portion of the County's third assessment district in which appellants' property is located. That same day the County Council gave its approval to a total of 97 individual amendments, 14 of which were successfully vetoed by the County Executive. 3 The remaining 83 amendments and original Bill No. 136-72 finally went into effect on December 2, 1972. As a result of the passage of Bill No. 136-72, appellants' properties were reclassified to permit commercial and light industrial uses in lieu of prior primarily residential restrictions.

In the meantime, a contingent of property owners dissatisfied with the 1972 zoning legislation commenced a suit in equity to restrain County authorities from enforcing Bill No. 136-72. The Circuit Court for Anne Arundel County granted the desired relief, declaring the ordinance to be void in its entirety on account of the County Council's failure to comply strictly with the dictates of § 307 of the county charter setting forth certain procedural requirements for the amendment of local ordinances. On appeal this Court, in Anne Arundel County v. Moushabek, 269 Md. 419, 430-31, 306 A.2d 517 (1973), affirmed the decision of the chancellor insofar as it invalidated all 83 amendments, but modified the decree so as to resurrect the original unamended version of Bill No. 136-72.

In the wake of Moushabek, the County Council acted swiftly to pass emergency legislation, Bill No. 52-73, which was designed to repeal what remained of Bill No. 136-72 and reenact it, this time with the provisions of the judicially stricken 83 amendments incorporated directly into the text of the new law. Instead of challenging the new ordinance through litigation, opponents of this latest zoning action undertook to defeat it by appealing to the voters of Anne Arundel County. Accordingly, a petition for referendum bearing the requisite number of signatures was filed in timely fashion with the Board of Supervisors of Elections of Anne Arundel County (the Elections Board), which, in accordance with the provisions of § 308 of the Charter, ordered the question placed on the ballot for the upcoming general election. 4 On November 5, 1974, the voters of Anne Arundel County rejected Bill No. 52-73 by a decisive margin.

In an effort to annul the results of the November referendum and thereby to revive the ill-fated Bill No. 52-73, appellants commenced the present actions, claiming that the Elections Board lacked authority to approve the citizen referendum petitions. It was argued that § 308, which created the right to hold local referenda in the first instance, was itself invalid, being an exercise of power allegedly in excess of that vested in counties adopting a charter form of government under the Home Rule Amendment to the State Constitution, Md.Const., Art. XI-A, and the Express Powers Act, Maryland Code (1957, 1973 Repl.Vol. & 1977 Cum.Supp.) Art. 25A, § 1 Et seq.

Ruling in favor of the constitutionality of the charter referendum article, the lower court concluded that Bill No. 52-73 had been properly presented to the electorate of Anne Arundel County and therefore had been effectively repealed. In so holding, the chancellor was thus required to ascertain what, if any, prior zoning legislation governed the permissible use of appellants' real estate following the popular repudiation of Bill No. 52-73. Rejecting appellants' suggestion that the repeal of Bill No. 52-73 had created a zoning vacuum, leaving their property free from land use controls altogether, the trial court ruled that the defeat of the ordinance automatically revived predecessor Bill No. 136-72 in its unamended form a result which, in the chancellor's opinion, was mandated by our holding in Anne Arundel County v. Moushabek, supra, 269 Md. 419, 306 A.2d 517.

In the appeals before us, appellants challenge both the legality and effect of the 1974 zoning referendum. We turn first to the question of the constitutionality of the Anne Arundel County charter referendum article.


The crux of appellants' constitutional assault on § 308 is that when the people of Anne Arundel County framed and ratified their county charter in 1964, they, like the inhabitants of the state's seven other charter counties (Baltimore, Harford, Howard, Montgomery, Price George's, Talbot, and Resolution of the complex constitutional claim presented in these cases turns on the nature and scope of the rights of local self-government guaranteed to county residents by Article XI-A of the Constitution as implemented by Article 25A. From the time of the establishment of the first county administration (St. Mary's) around the year 1637, See 1 J. Scharf, History of Maryland 123 (1967 ed.), to the first decade of the twentieth century, residents of Maryland's 23 counties enjoyed no appreciable measure of local self-determination. Being nothing more than political subdivisions of the state, counties were considered to be mere administrative The waning years of the nineteenth century witnessed the birth of a national movement, the purpose of which was to restore and revitalize local government by giving citizens of counties and municipalities the power to legislate as to local matters free from undue encroachment by state legislatures. In Maryland, as elsewhere, the "Home Rule" movement was fueled by widespread public indignation over excessive The theory behind the principle of home rule is that the closer those who make and execute the laws are to the citizens they represent, the better are those citizens represented and governed in accordance with democratic ideals. State v. City of Milwaukie, 231 Or. 473, 373 P.2d 680, 685 (1962). It is said that since the opportunity for popular participation and maximum public awareness of government is greatest at the local level, the likelihood of governmental arbitrariness and imposition is diminished by strengthening local political control over local concerns. See Fordham, Decision-Making in Expanding American Urban Life, 21 Ohio St.L.J. 274, 275 (1960).

                Wicomico), possessed no power to repeal or amend legislative enactments of the County Council, except that which had been explicitly conferred upon them by organic or statutory law.  It is argued that, save for certain provisions relating to the issuance of county bonds (Art. 25A, § 5(P)(1)(ii)), there was nothing to be found in either the Constitution or the acts of the General Assembly which even remotely resembled a grant of the referendum power to the voters of Anne Arundel County, at least as of the time of the zoning referendum in November 1974.  5 Thus, say appellants, § 308 must [388 A.2d 528] be deemed a nullity, since it purports to reserve to the county citizenry a power which it had never validly acquired.  6
                instrumentalities of state government, public corporations, subject at all times to the plenary control of the Legislature and possessing only those limited powers which had been delegated by the General Assembly, together with such implied powers as were necessary for the execution of the powers expressly granted.  Howard County v. Matthews, 146 Md. 553, 561, 127 A. 118 (1924); County Comm'rs of Talbot County v. County Comm'rs of Queen Anne's, 50 Md. 245, 259 (1879); Baltimore v. State, 15 Md. 376, 462, 74 Am.Dec. 572 (1860).  For the historical background of early county government in Maryland, See J. McMahon, An Historical View of the Government of Maryland 79-97 (1831).  By and large, these delegated powers of local government were wielded by county commissioners who, like members of the levy and provincial courts before them, were administrative officials concerned primarily with the

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