Woodlawn Area Citizens Ass'n v. Board of County Com'rs for Prince George's County

• Decision Date: 21 January 1966
• Docket Number: No. 96,96
• Citation: 241 Md. 187,216 A.2d 149
• Parties: WOODLAWN AREA CITIZENS ASSOCIATION, Inc., et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 187

241 Md. 187

216 A.2d 149

WOODLAWN AREA CITIZENS ASSOCIATION, Inc., et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.

No. 96.

Court of Appeals of Maryland.

Jan. 21, 1966.

As Modified Feb. 7, 1966.

Walter H. Maloney, Jr., Chillum, for appellants.

William L. Kahler, Washington, D. C. (DeBlasis & Kahler, Washington, D. C., on the brief), for James A. Cassidy, and others, part of appellees; by Harry L. Durity, Upper Marlboro (Lionell M. Lockhart, Upper Marlboro, on the brief), for Bd. of County Comrs. for Prince George's County, other appellee.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HAMMOND, Judge.

Nearby homeowners in a presently relatively rural suburban area in Prince George's County are appealing the action of the District Council in changing some forty-seven acres of undeveloped and, for the most part, heavily wooded land surrounded by individual homes and schools from its present zoning for detached houses for one family, a status it has had since the last comprehensive zoning of that part of the County in 1949, to land zoned for garden apartments so as to permit some eight hundred families to occupy the forty-seven acres rather than some two hundred, if the zoning remained unchanged.

This is the third time the neighbors have entered the lists to defend the character of their environment. In 1955 the owners of the property under consideration sought its reclassification from R-55 (single family detached homes) to R-35 (two attached single family residences). When opposition to the change loomed strong, the owners sought to withdraw the application for change. The District Council chose not to acquiesce in the withdrawal but to dismiss the application.

In October 1961 the owners tried again to secure the right to use their land to house more families than the zoning in effect permitted, asking for reclassification from R-55 to R-18, which would have then permitted some nine hundred fifty so-called garden type apartments on the forty-seven acres. This application was recommended for disapproval by the Technical Staff of the Maryland-National Capital Park and Planning Commission on the grounds that there had been neither original error nor substantial change, but the Planning Board rejected the recommendation and approved the application. The District Council dismissed the application after a hearing at which neighboring owners protested, and the owners appealed to the Circuit Court for Prince George's County. On October 9, 1962, Judge Loveless sustained the action of the District Council, necessarily holding in so doing that it was supported by sufficient evidence that there had been neither mistake in the original zoning nor a change in the character of the neighborhood. No appeal was taken to this Court.

In the Spring of 1963 the owners of the property renewed their efforts to have it rezoned for garden apartments. Again the Technical Staff recommended denial of the application for the same reasons it gave in 1961. Again the Planning Board recommended approval and this time, after a hearing on June 19, 1964, the District Council without giving any reasons or bases for its decision granted the reclassification to R-18 on September 15, 1964. At the hearing the District Council refused to accede to the motions of the protestants that the 1962 affirmance by the Circuit Court of the acction of the Council in refusing rezoning in 1961 was res judicata and settled the status of the land either as of the date of the Council's action in 1961 or the court's affirmance in 1962, and announced that it would not receive in evidence the record of the 1961 hearing (which the protesting neighbors proffered), and that it would consider all changes since 1949 and the other factors it customarily took into account in deciding whether to rezone without particular reference to what had happened in 1961-62. On appeal, Judge Parker found the principles of res judicata to be the law that controlled but decided that certain changes in classification after 1961-62 justified the action of the Council, despite its lack of revelation of the basis of its decision and despite the fact that the record before the Council did not show when the changes he relied on had occurred or whether they were paper or actual changes.

The appellants, the protesting neighbors, appealed Judge Parker's order of affirmance and urge upon us a number of errors, each of which they argue justifies reversal, including procedural errors of the Council such as its failure to state findings of fact and conclusions of law and its receipt of and reliance upon unsworn testimony. We find it unnecessary to discuss or decide the various contentions because we conclude that the principles of res judicata were controlling and find in the record no evidence of significant change in the neighborhood of the property between 1961 and 1964, which means that the action of the Council in rezoning in 1964 on essentially the same facts and conditions it found insufficient to permit rezoning in 1961 was arbitrary, capricious and illegal.

The District Council has no inherent power to zone or rezone. These powers are entirely delegated by grant of the General Assembly, as we pointed out in Perry v. Board of Appeals, 211 Md. 294, 127 A.2d 507. At the time the matters now under review were taking place, Code (1957), Art. 66B, §§ 21-37, the basic zoning enabling act for municipal governments other than towns and cities with a population over 100,000, applied to Prince George's County, but § 35 said explicitly that these sections supplemented the system of planning and zoning in the Regional District of Montgomery and Prince George's Counties as spelled out by Ch. 992 of the Laws of 1943, as amended, and directed that within the District the respective Boards of County Commissioners acting as a district council should exercise zoning powers, and then provided '* * * that in so far as the provisions of this subtitle may be inconsistent with or contrary to the provisions of Chapter 992 of the Laws of Maryland of 1943, as amended; such provisions shall have no application within the Maryland-Washington regional district * * *.'

The provisions of Ch. 992 and other planning and zoning provisions applicable in Prince George's County were repealed by Ch. 780 of the Laws of 1959, which enacted new sections on these subjects, which were in effect in 1961 and 1964, including §§ 78 and 79 and codified in the Code of Public Local Laws of Prince George's County (1963) and which delineated the extent and character of the right to rezone an individual piece of property and imposed limitations on that right. ¹

Section 59-83 of the Code of Public Local Laws of Prince George's County (1963) provided two prerequisites to rezoning: submission of the proposed change to the Planning Commission (now the Planning Board) for its approval, disapproval or suggestions, and a public hearing after appropriate public notice. Section 59-85(a) made mandatory a stenographic transcript of each such hearing. An appeal to the Circuit Court was granted by § 59-85(e) to '* * * any person aggrieved by a final decision of the district council * * *.' On the appeal, to be heard without a jury, the trial judge under § 59-85(i) could affirm or remand for further proceedings or could reverse or modify 'the decision' if the appellant's substantial rights had been prejudiced '* * * because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional provisions; or (2) in excess of the statutory authority or jurisdiction of the agency; or (3) made upon unlawful procedure; or (4) affected by other error of law; or (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted; or (6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency; or (7) arbitrary or capricious.'

Thus it is clear that the General Assembly imposed definite conditions and restrictions on the power and the right of the District Council to rezone in individual instances. The Council does not act as a plenary legislative body, it acts as an adjudicatory agency in large part. It must follow statutory authority and procedure, it must act lawfully, it must find support for its action in competent, material and substantial evidence adduced at a public hearing of which a transcript is made, and it must not act arbitrarily or capriciously. When the General Assembly enacted Ch. 780 of the Laws of 1959, the repeated decisions of this Court had clearly established that to justify a deviation from comprehensive zoning a change must be supported by evidence either of error in the original zoning or of a substantial change in the character of the neighborhood. The General Assembly is deemed to have known of this established rule and to have meant, in enacting Ch. 780 of the Laws of 1959, that unless the competent, material and substantial evidence at the hearing before the District Council fairly permitted a finding of error or change, a rezoning would be 'affected by * * * error of law' or would be 'arbitrary or capricious.'

Although it has been said that the action of the District Council in rezoning in individual cases is ultimately legislative, it is clear that in performing this delegated and restricted function it acts largely as an administrative or adjudicatory agency. In Board of County Commissioners of Prince George's County v. Levitt & Sons, 235 Md. 151, 158, 200 A.2d 670, 674, Judge Prescott, after noting that the General Assembly called the District Council of Prince George's County, acting in its function of rezoning, an agency, and referring to its administrative findings, inferences conclusions or 'decisions' (emphasis added), said for the Court:

'We have repeatedly held that the action of zoning or reclassification of...