*1 ASSOCIATION, INC. WOODLAWN AREA CITIZENS v. BOARD OF COUNTY COMMIS еt al. FOR SIONERS PRINCE GEORGE’S
COUNTY et al. 96, September Term, [No. 1965.] *2 21, 1966. January Decided 4, 1966, and ma denied February rehearing Motion for filed 7, 1966. opinion February
jority modified Oppenheimer, Hammond, Horney, argued before The cause was McWilliams, nes Bar JJ. Jr., for the appellants. Maloney, H.
Walter Kohler whom were Kahler, DeBlasis with & William L. brief, the appellees. rezoning, part for the applicants M. Lockhart on the Durity, with whom was L. Harry Lionell Commissioners, the other brief, ap- Board of County for the pellee.
Hammond, of the Court. majority opinion delivered the J., Barnes, Dissenting opinion page J., dissents. infra. rural suburban relatively presently homeowners Nearby the action are County appealing George’s area in Prince of unde- acres some forty-seven in changing District Council surrounded land and, wooded heavily for the most part, veloped for de- zoning from its and schools present homes by individual last had since the a status it has family, houses for one tached to land zoning that part comprehensive hundred eight some so as to permit for garden apartments zoned some two acres rather than forty-seven families to occupy hundred, unchanged. if the remained lists have entered neighbors
This the third time the own- of their environment. to defend the character its reclassifica- sought consideration ers under of the property at- to R-35 homes) (two from R-55 detached family tion (single AVhen residences). opposition tached single family the application to withdraw strong, sought loomed the owners in the chose not to acquiesce The District Council for change. the application.
withdrawal but dismiss *3 right to secure the again In the owners tried October 1961 in ef- families than the zoning to use their house more land to R-18, from R-55 to fect for reclassification asking permitted, so- nine hundred fifty which then some would have permitted acres. This the forty-seven called on garden type apartments for the Technical by recommended application disapproval Planning Park and Maryland-National Capital the Staff original that there had been neither grounds Commission on the Board rejected error the change, Planning nor substantial but The Dis- the approved application. the recommendation hearing after a which trict dismissed the application Council the appealed owners owners neighboring protested, On October George’s County. Circuit for Prince Court Council, nec- action of the District sustained the Judge Loveless sufficient that it was doing supported in so essarily holding mistake in zon- original there had been neither evidence that No neighborhood. appeal nor a in the character of the ing this Court. was taken to renewed property owners Spring Again rezoned for garden apartments.
their efforts have it of the application recommended denial the Technical Staff Board Planning in 1961. gave Again same reasons it 190' time,
recommended approval this after a hearing June 19, 1964, the District Council without giving reasons or bases its granted decision the reclassification to R-18 on September 1964. At the hearing District re- Council fused to accede to the motions of the protestants the 1962 affirmance the Circuit Court of the action of the Council in refusing rezoning in 1961 was judicata res and settled the status of the land either as of the date of the Council’s action 1961 or the court’s affirmance in and announced that it would not receive in evidence the record of the hear- ing (which the protesting neighbors and that proffered), would consider all since changes 1949 and the other factors it customarily took into account in whether to rezone deciding without particular referenсe to what had in 1961-62. happened On appeal, Parker found the of res principles judicata to be the law that controlled but decided that certain changes in classification after justified 1961-62 the action of the Coun- cil, despite its lack of revelation of the basis its decision and despite the fact that the record before the Council did show when the he changes relied on had occurred or they whether were paper or actual changes. appellants, protesting neighbors, appealed Judge
Parker’s order affirmance and urge us a number of er- upon rors, reversal, each of which they argue justifies including pro- cedural errors of the Council such as its failure to state findings of fact and conclusions of law and its reliance of and receipt unsworn upon testimony. We find it to discuss or unnecessary decide the various contentions we because conclude that principles of res were and find in the rec- controlling ord no evidence of significant change the neighborhood between 1961 and which means that the ac- *4 tion of the Council in rezoning essentially the same facts and conditions found insufficient to permit rеzoning 1961 was and illegal. arbitrary, capricious
The District Council has no inherent to zone or re- power zone. These are powers entirely delegated grant of the Gen- by eral as Assembly, pointed Perry Appeals, we out v. Board of At the time the matters now under were 294. review 66B, 21-37, Art. zon- taking place, (1957), Code the basic §§ other than towns ing enabling governments act municipal 100,000, Prince and cities with a over to population applied sections George’s County, but 35 said these explicitly § and in the Re- supplemented system zoning of planning District gional George’s of and Prince Counties Montgomery 1943, amended, as as by out Ch. 992 of the of spelled Laws and directed that Boards of within the District the respective council should ex- County acting Commissioners as district * “* * ercise in so far zoning and then powers, provided as the this or provisions may of subtitle be inconsistent with contrary to the provisions Chapter Mary- Laws amended; land of such shall have no ap- provisions plication within the district Maryland-Washington regional other provisions zoning Ch. 992 and planning provisions in Prince were applicable George’s County repealed by Ch. which enacted new sections Laws on these which werе in includ- subjects, effect ing and 79 and codified in the Code of Public Local §§ Laws of George’s Prince and which delineated County (1963) the extent and character of the to rezone individual right piece of limitations on that imposed right.1 of Prince
Section 59-83 the Code of Public Local Laws George’s two to rezon- provided (1963) prerequisites ing: submission of Planning to the Com- proposed change mission Planning for its (now Board) approval, disap- and a proval suggestions, after public hearing appropriate notice. public 59-85 made (a) mandatory stenographic Section of each such An transcript hearing. the Circuit Court appeal “* * * was granted by 59-85 (e) any person aggrieved § * * by a final decision of the district council On the appeal, to be heard without a the trial jury, judge under 59-85 (i) § could affirm or remand for further or could re- proceedings or modify verse “the decision” if the appellant’s substantial had been : rights prejudiced provisions 1. Amendments as to Regional George’s County District in Prince as enacted Ch. Chapters 780 of the Laws of 1959 made were 873 and
898 of the of 1965. Laws *5 “* * * inferences, findings, administrative because the conclusions, of con- are violation or decisions (1) statu- in еxcess of the or (2) stitutional provisions; or (3) jurisdiction agency; or tory authority by or affected made unlawful upon procedure; (4) law; competent, unsupported by error of or (5) other of entire material substantial evidence view and submitted; of weight against as or (6) record in view evidence material and substantial competent, or record, as by submitted agency; the entire or capricious.” (7) arbitrary definite imposed Assembly
Thus it is clear that General right and the power conditions restrictions on The Council in individual instances. District Council to rezone adjudi- as an it acts body, not act as a does plenary authority statutory It must follow agency large part. catory for its it must find support act lawfully, it must procedure, adduced and substantial evidence action in material competent, made, must and it transcript at a which a is hearing of public Assembly When the General capriciously. act or arbitrarily decisions enacted Ch. 780 of the repeated Laws that deviation justify this had to clearly Court established evi- from must be zoning change supported comprehensive or of a substantial either of in the original zoning dence error As- The General neighborhood. in the character of the rule and is of this established deemed to have known sembly meant, un- Ch. 780 of Laws enacting have at the hear- less the material substantial evidence competent, of er- ing fairly permitted finding before the District Council ** * ror error change, or would be “affected rezoning law” “arbitrary capricious.” or would be action of the District Coun-
Although it been said that the has cil in ultimately legislative, in individual cases func- delegated is clear that in and restricted this performing an or adjudicatory agency. tion it acts administrative largely Sons, Prescott, v. Board & Levitt Assembly after General called the District Coun- noting cil its function rezon- County, acting of Prince George’s its in- ing, administrative agency, findings, referring ferences, said for added), (emphasis conclusions or “decisions” Court: *6 zoning the action of
“We have held that repeatedly leg- of is a function that is zoning or reclassification However, this does not prevent islative nature. fact, of findings from administrative making
Council inferences, at ad- arriving administrative and drawing decisions, hearing and when ministrative conclusions and statute an- rezoning, clearly an application * * * such action. After its admin- making ticipates etc., fact, in a of the Council then findings istrative granting exercise its function of legislative to position reclassification.” denying petition In of light adjudications the administrative procedures make in which to follow and required the District Council is which of process rezoning, principles public policy to be underlie the rule of res would seem judicata logically ap Davis, 2 to its actions in this Administra plicable respect. See Treatise, 2 Administrative tive 18 (1958); Cooper, Ch. State Law w, ; 2 XV, La and 4 Am. 2d Administrative Ch. 1 (1965) §§ Jur. Cohen, ; Aspects La 496-97 (1962) Some w §§ Law, ; Md. L. Administrative Rev. Maryland (1964) Department Alcoholic Bev. Hollywood (Cal., Circle v. Con. 712, 714; Monaghan Y.), v. Bank), (N. 361 P. 2d Evans relaxation rule of general 118 N. 2d (“Any E. mat judicata
res is inadmissible administrative strictly even ters”). City In Knox v. contrary Our took a view. predecessors
Baltimore, that since the Board of Zon- held they not a tribunal its resolution that ing judicial prior Appeals a use status at time of non-conforming enjoyed ordinance was not res as judicata the enactment of the held a use at a later non-conforming to whether the lot owners Commrs., Maso v. Dal held date. and officials boards are
that all administrative * * *” “* * * at all judicial are so character that lot was not res as judicata оf a to its particular status could later rescind its Council action and the District re- Davis, supra, op. (§§ fuse to cit. Ch. rezone. Professor 18.02, clear and 18.08 in finds it particular), completely 18.03 *“* * the doctrine of res that the reasons behind principle system fully applicable in the court are judicata developed gen- that “the courts to some administrative proceedings” * * Dal Maso view He finds follow this sound erally misunderstanding agency based on a clear have been for the sufficiently judicial prin- can function never perform finds Although he to become ciples applicable. res there on the right theory in Dal Maso to have been result conditions, Professor says had Davis been 2 of his on Administrative case in 18.08 of Volume work Sec. 601-02: pp. Law court has done Maryland what the
“Worst all is are they agencies, say —to all together lump *7 and are Legislature of the ‘arms and instrumentalities all,’ that therefore ad- and to conclude judicial not un- res judicata. action can never be ministrative rather thinking of this of are type fortunate results cases. zoning in the Maryland out clearly brought * ** however, court has the Maryland Happily, for it from its extreme position, retrеated seemingly con- that ‘innumerable acknowledged has specifically boards of today, are decided troversies creation, fell within that traditionally of a character ” Crook, Hecht (citing v. judicial inquiry.’ of scope 271, 277.) 184 Md. Bd., 76, in Co. 230 Md. which Montgomery also v.
See Schutze Board, of a sub determining in compliance we held that Mont regulations subdivision with the plan division Code, function and exercised a quasi-judicial County gomery final after had an iden approved a plan not .could disapprove of new mean facts development absent the tical plan, a mere of and was time, change constituted mind since this also conduct. The Court said capricious arbitrary therefore Comm., Mettee v. County as Md. cases such that in prior Council, 479, Co. v. 227 Md. Const. Kay 486, 489, rezoning adjudications held that a mere it had been of of change previous mind was insufficient to a justify reversal action. in a Kay authorizing cause” statute equated “good for good Council a determination District to change “ * * or cause shown to from fraud (apart surprise) materially in conditions or other considerations change affect- ” decisions,’ merits, intervening since the ing former Corporatiоn v. of Patrick’s Church adopting language St.
Daniels
held that the
Whatever view be taken the applicability prin- may or ciples judicata doctrine of res to administrative quasi- judicial of an the text determinations or actions writers agency, and the agreement courts are in or general judgment that the court, court, order of a a trial which affirms or re- including actions, Davis, verses such determinations is. ordinarily ; op. supra 18.11, cit. 2 Am. Administrative 623-24 2d pp. § Jur. L,. 499. also annotation 71 A. 2d “Judg- Law See R. § ment denying for use of permit premises zoning regu- under lations bar to application.” Court has subsequent This taken that in position cases of res do principles both where apply, the first determination was as to an immutable condition, Linthicum, fact or Baltimore v. Baltimore,
Bensel v. City
where
changes,
occurred,
were
had
possible but
Whittle v. Bd.
Zoning
Appeals,
We reversed. unchangeable Bensel dealt with facts while thicum and cases the then at a determination of whether required case hand which would warrant reconsideration in circumstances changes first had out the that the He that fact place. pointed (a) taken judicial and not an appellate decision was the Circuit Court by * * (cid:127)“* of of res does not the the rule operation court prevent ; factor in this judicata” 44) regard that the decisive (p. (b) Maso, added), under Dal Knox be Maryland (and may Bensel, other, hand, on the one and and on the Liwthicum court of and one an agency between a decision a record ordi a Legislature; (c) the provisions a within rejection application nance time after setting the be do not with may which a new filed application dispense rule said at judicata. of res He then 45: page arisen, rule,
“The where the has general question such time as be lapse may seems be that after ordinance, a zoning may board specified by appeals new upon application special consider act denied, but that it may grant permit previously properly if such there has been substantial permit only * * * This rule to rest conditions. seems judicata, on doctrine of res but strictly upon it would the board arbitrary be proposition substantially conclusions to arrive opposite and the law.” same state facts same to have occurred be- changes alleged circumstances then tween 1954 were considered. These were: (1) area; commercialization increased (2) popu- increased Baltimore decreased ad- County; (3) opposition; (4) lation of to the granting ditional conditions attached safeguarding had changes neigh- There been two the immediate permit. church to a wooden and a third replace borhood—a stone one two, had been all station where there some four hundred filling feet south on York Road. de- Considerable commercial being had come into on York Road in five in- velopment both north south but none tervening years, property, had char- to have effect residential “upon was shown *9 46). live” (p. where the protestants neighborhood acter of the said: station we filling Of the new
“* * * station, four hundred some fiiijng one new in- or near an highway, on a busy feet to' the south not, does stations having filling two already tersection or in- change substantial in our show judgment, and 1954.” between 1949 crease in commercialization 46) (p- and the need of Baltimore County population
The increased had been testi- to care for their needs for new funeral homes it was stated: this point to in the first case. On fied case, to show “In second offered testimony they a greater in and hence population a further increase on this Testimony phase for a funeral home. need new case than more detailed in the second case was first, and the testi- in the issue was the same but estimation, not, our case does in in the mony presеnt from that pre- different situation materially show a 46) (p. 1949.” vailing nor the distinction cre- slight
Neither sentiment neighborhood were deemed to amount to a ated the additional restrictions In conclusion we held: substantial circumstances. change in the “Because the same facts essentially appeared could shown second case as as have been appeared case, res judi- in the first are barred appellees cata, should been (pp. and their have denied.” petition 49-50)
We think Whittle is of the case before us. dispositive No in fact or law was significant change substantial or shown to occurred between the 1961 and its application disposition have and that in and its 1964. The disposition Board to, Parker considered as im- testimony heard between the two four showing change applications, portant Highway matters. The was the tenta- proposed first East-West along scheduled to run one side of the tively ques- That road as a alleged if and when built. same tion *10 in 1961 and considered in the first the disposition application, it and was as indefinite in in and becoming reality inas and more the time of the so because perhaps second apрlication Capital Beltway, roughly parallels which route, its serving tentative had been and was completed needs and have The second the latter would served. purposes and was the terrain and its relative homes suitability single houses; apartment Parker found had been considered this in 1961-62 and The was the was third obviously unchanged. need for and the was considered in apartments—this 1961-62 lack of in the record as to need specific any greater testimony in 1963-64 than in 1961-62 and of land zoned for already apart- of, in ment use us to the we held leads view unavailed as insubstantiality Whittle on the popu- reliance lation increase in Baltimore County between 1949 and 1954 * * increased need for the issue alleged undertakers—“* not, was the same and the in the case does testimony present estimation, our from that show a different situation materially * * * prevailing Md.). 46 of 211 (at p. [1961-62]” R-55, zon- fourth was in classification from eight changes ing subject and the which surrounds property for extended distances for the two schools (except nearby being of R-35 both of which were 1961- patch zoning, to R-18. It was not shown that reclassifications >62) eight these were after nor still on or paper made whether were they had been made use of them actually (except some im- not what much more least had been but was developed), shown, that all of them were of portant namely, pieces wide, and a land which were on the far side of busy highways subject protesting distance from the and the long small con- of these reclassifications involved Three neighbors. feet from land here and tracts about 4100 involved tiguous some 6800 Another is also across Route 450' across Route 450. away others are from 6400 to 7200 feet feet distant. Three across is about feet eighth away Route and the across Road. Riverdale of de- for the neighborhood purpose what constitutes
While rezoning is not and governing under the law termining change defined, but from rigidly vary not be precisely may should re- case, just facie the properties case to we think that prima from to R-18 should reclassified R-55 ferred to were which subject prop- be considered be within the neighborhod offers no record and the erty protestants, and the homes in this not correct facie conclusion is why reason this prima use would, in actual if developed or case why properties or classifications, real effect uрon any under have their new the neighborhood character of make real homes. family one of individual 185, 186, Crane, three protestants v. DuBay to garden use family from one and two
of a reclassification to be aggrieved too far away were held to live apartments lived One damage. effects special could not show they but, said the across the Baltimore Beltway 1500 feet away *11 “* * * of the Belt- side is on the opposite his property Court: which, against apartments shield complete if not a way, other constructed, barrier.” Of adequate will serve as be “* * * dis- both reside considerable two we said: protestants out of mile) of a and possibly than four-tenths tance (more * * * * * * And, were none apartments. sight proposed would property of their respective able to show that the value as as close think if persons We that adversely be affected.” of a mile in nine-tenths 1500 feet across a superhighway neigh- were not within in another one case and four-tenths borhood, rezoning for the purpose protesting so to speak, rule general why without evidence changes, specific that as different, far 3300 away reclassifications as should be the neigh- not within highways and across are major 7200 feet DePaul v. In constitute therein. changes borhood and do not 221, 224, Board, we said: Md. 237 on sides been numerous both have changes
“These Road, apart- reclassifications for Landover and include of these zones. None as commercial ments as well a half- however, than approximately is closer changes, involved, for one lot except here property mile to the show is undeveloped. the aerial photographs which surrounding appellant’s property immediately area homes.” single family is zoned R-55 159, Rockville, Kaslow v. Md. 166 (“Important high-
See ways serve to divide areas from each other may zoning pur- 48, 60, poses; County, Hewitt v. Baltimore 220 Md. 151 A. 144; Imp. 265, 272, Shadynook Molloy, 2d Assn. 232 Md. v. Barnard, 192 A. 2d v. 502”). Stocksdale Md.
this idea was restated:
“He trial based his decision on the fact judge] [the had in the zoning changes granted several been But, area. an examination of shows that all the record one of these were on the west except changes opposite, side of York Road from We applicants’ property. have cases a street road be a nat may held past Sapero ural line between two zones. v. M. boundary C., Imp. 2d 74. In Shadynook & C. A. A. 2d held Molloy, Assn. v. we uses on one side of the apartment that the existence alter the use of the street does not land the op side, and therefore the street is an posite appropriate line demarcation.” to, heard testimony the Council Parker
Finally, considered, the of a center area shopping beyond school site from the instant from C-l to C-2 and the small roadside areas An rezoning to commercial of two along Road. The center area had been rezoned to napolis shopping construction the first application C-l and was under when filed had been finished before the Circuit Court (it seemingly *12 in and the from C-1 to C-2 1962) change (to permit decision showroom, suggested an it was at the argument) automobile the character of the changed neighbor would not to have seem than fill hood and the added anymore between 1961-62 1963-64 more distant increased commercialization in ing station and the small areas of two rezoned C-2 at one end Whittle. One at the other end a small of land which strip other used as before the first application. was zoned and C-2 The to the small extension of commer existing rationale of Whittlе there to these here. applies rezonings cialization that the law has been altered since argue The 1961- appellees zone changed in R-18 there- that the definition in zone Prince so make R-18 after and before 1964 as to R-H zone con- (“floating”) George’s analogous 77. The County, point in Montgomery sidered Beall v. District either the Coun- was not raised before considered not formally cil or the Circuit new definition was Court. The the former that it is like before us but the concede put appellees slightly R-18 is decreased density in an zone except one that apartments density perhaps —under the former limitations to from have on tract contrast subject could been built change is not such 800 to 850 under the new. think this We of the doctrine the law as would with dispense principles in 1961- garden res R-18 judicata. zoning permitted apartments there could have 62 and it them in permitted 1963-64. Earlier here acres dealt with forty-seven being ap- been built apartment four and times as many proximately three-quarter homes, later four one- units individual living perhaps and, believe, not a difference not in kind we quarter, legally significant degree. considering erred in without granting Council its first mat- between and second considerations
change ter, if such and would have erred it had undertaken considera- it, granted rezoning tion and on the before since on testimony could significant change substantial or rea- not testimony occurred, have by reasoning have been found minds to sonably affirming and the order the Circuit Court Board must be reversed.
reversed, with
Order costs.
Barnes, filed the following dissenting opinion. J., I dissent for three reasons: 1) because re- unduly Maryland nature of the conditions” “mistake-change strictive rule, is, in judicata res my because the doctrine of 2) opinion because, my opinion, there were suf- applicable, 3) changes in conditions between October the time ficient rezoning change zone to de- “fairly make rule its “mistake-change” present even if the vigor batable” doctrine of res were applicable. and the *13 202
I. I out pointed at some Part III length of my dissenting opinion MacDonald v. Board Commissioners County Prince George’s 549, County, 576-601, 210 A. 2d 325, 340-354 I (1965) why thought the “mistake- Maryland conditions” rule in regard to rezoning improperly came into the I Maryland law. also pointed out that it lias been
repudiated
of last
courts
resort in
of our
many
sister
States
has suffered severe criticism by text writers on zon-
I
ing.
also
sought
indicate
why
“mistake-change” rule
contrary
public interest and
aas purely judge-made
rule we might
at least
change—or
modify—it
freeing
thereby
the people’s representatives who “would arise from the present
them,
Procrustean bed
which
upon
we have placed
with renewed
vigor to advance the
interest.”
public
majority opinion
the case at bar not only forces the
bed,
body
upon
Procrustean
but adds several
bed,
new slats
and,
to that
makes it shorter and more narrow
me,
makes it far more uncomfortable than
be-
even was
fore. The majority
adds further
“mis-
opinion
rigidity to the
take-change” rule by indicating that this rule has been incor-
porated by
into the
implication
provisions
the Act of
ch.
amending sections of the Code of Public Local Laws
of Prince George’s County (1953
Edition),
particularly
indicating
grounds
Section 79
(i)
on which the trial court
can reverse or
modify
action
the District Council. As I
forth,
read the
the reasons set
79(i),
Section
except possibly
unconstitutional,2
subsection
which
well be
(6)
may
they merely
state those
which
elements
would make the action of
Dis-
unreasonable,
trict Council
or would
arbitrary
capricious
result in a
tаking
private property without the payment
just
We have held
compensation.
that the true test of the va-
MacDonald, supra,
Md.;
page
page
1.
582 of 238
344 of 210
A. 2d.
upon
pass
2. We have heretofore
declined to
this issue. See
Sampson
(Md.)
Brothers
Inc. v. Board of
Commissioners
George’s County,
116, 120,
289; 292
of Prince
A. 2d
(1965)
prior
opinion
and the
cases cited in Note
(D
Fortunately
(6)
case.
subsection
was eliminated from Section
1965.
the Acts of
ch.
effective June
*14
that
non,
action in
is whether
legislative
rezoning
lidity, vel
Broth
Sampson
unreasonable,
and
arbitrary
capricious
action is
Prince
Commissioners
ers
Inc. v. Board
(Md.)
and
prior
240
II. is if opinion recognizes rezoning legisla- The majority character, judicata—a ap- tive in doctrine of res doctrine plicable adjudication by judicial to final bodies—cannot only action of the “that the apply. majority opinion recognizes The District cases Is ultimately individual Council words, other it action legislative”. begins In legislative However, be- and it as a action. somewhere ends result, its the ma- tween the of the action and end beginning character and the judicial takes jority indicates this is opinion res judicata applies. my concept doctrine of As I in the MacDonald: dissenting opinion unsound. stated “Another reason for action upholding the of the leg- islative here body is that it is a legislative body, and not mere administrative organ. and rezon- Zoning character; ing legislative in it is not quasi-judicial, administrative, quasi-legislative, quasi-executive, other anything legislative. than Rathkopf, Law of 27; Zoning Planning & (3d ed.), Zon- Yokley, Section ing (2d & Practice ed.), Law and cases Section therein; collected Zoning, Section C.J.S. cases cited.” is no There doubt that the General Assembly delegating the zoning local power legislative body restrict the may *15 exercise of that power any reasonable and way, constitutional limitations or including restrictions usually ju- associated with dicial proceedings. not, But such limitations and restrictions do in my opinion, convert what is function essentially to a judicial function with carrying it the more restrictive re- of due of quirements law process ordinarily associated with ju- dicial proceedings. Indeed it is constitutionally impossible Maryland to effectuate conversion of a legislative function to a judicial function judicial as the power exclusively vested by Article IV of the Maryland Constitution in the Courts men- tioned in that Article and this judicial dele- power may be gated to either executive or legislative boards or commissions. Our predecessors held this in Dal Maso v. Board specifically County Commissioners Prince George’s 182 County, of of 200, case, bar, A. This (1943). 34 2d 464 like the case at arose George’s Prince and also County involved a situa- Maso, tion. In Dal the Board of Commissioners County Prince George’s County acting the District Council after giv- notice ing the and conducting hearing the Act required by of rezoned the Dal Chapter Maso at River- property dale from “A” “D” Residential to Commercial on 1942. July later, 14, 1942, A on week July the District Council rescinded its order of July gave notice of a new to held hearing be arrived, on August 1942. Before the of the new day hearing however, on owners filed a August pe- Page Md., page
3. 586 of 238 346 of 210 A. 2d. for a for Prince tition writ of mandamus the Circuit Court to reinstate George’s the District Council compel of which it had rescinded abide its resolution by July 14. In for the of the writ of manda- July issuance petition July mus the that the Board’s action petitioners alleged and de- legal “was "without sanction and in violation arbitrary, use of their privation rights prop- of the in the petitioners erty and of said Board and void.” beyond powers Judge Ogle of the Marbury, Judge Appeals (and Associate Court later Cir- Judge) Chief Chief Judge Seventh Judicial cuit, court, heard the case in the trial held the insuffi- petition cient This on demurrer and dismissed the order was petition. affirmed unanimous by the Court Court. Appeals opinion the Court of Chief Appeals written who, in regard Sloan the contention petitioners the Board’s action of stated 7 was res for the July Court:
“The contend that the order of the de- petitioners is res amending judicata, fendant the zoning regulations means, course, which has the permanence of a or judgment ju- decree of court competent risdiction. There is some confusion as to the nature boards, and character of administrative these there are them many opinions and text writers who refer to and, as quasi-judicial. do hear facts based on They them, decisions, make but decisions are not judg- those resolutions, or findings, ments decrees. If their *16 ignored, orders are resisted or must call they courts to enforce them. Administrative boards and of- 1939, Chapter 714, 17, By 4. the Act of 19 the restrictions Secs. placed power upon of the District to Council rezone were requirement proposed for submission of the amendment Maryland-National accompanying Capital map to the Park and report Planning prior for consideration for a Commission days period days, hearing, for a for less than which 30 30 prior required given newspapers gen- notice to two be county in the eral circulation which the land was located. There any appeal provision for to the Circuit was no Court Prince Appeals. George’s County or to the Court 206 Legisla instrumentalities of
ficials are arms arid all; to and ture,, they belong and are not judicial branch from the authority all their derive State, all ju In this government. under our form of for Ar by is such as authority only provided dicial Constitution, been and it has ticle 4 of the Maryland exercised functions can be only judicial decided that v. in that Article (Day authority which find their 602; 221, v. Humphreys A. Md. 159 Sheriff, 162 735; Quenstedt Walls, 292, A. v. Wil 181 169 Md. Hewes, 354; 118 son, A. v. 194 Md. Levin coming no court not and that 233), Md. 86 A. in this cán established be State. within its provisions clothe Legislature any power This forbids authority. any judicial with administrative boards done, but it can be states which may There be 205 of 182 one of them.” (Page is not Maryland Md.; A. 2d). 466 of 34 page Prescott, majority for the speaking Tawes, Fair v. Representation Maryland Committee Court 656, 663, 412, 425-426, A. 2d stated:
228 Md. Maryland IV of Constitu- of Article “Section in the judicial power tion vests the State Ju- judicial all the power and this diciary, encompasses Swann, 25 173.” (The v. Magruder of the State. is in the original quotation).
emphasis on the deci- heavily in Dal Maso had relied The petitioners Appeals v. McKinney, Board Zoning sion Court this it was As to case (1938). Atl. 174 Md. stated: Legislature conferred are pow-
“The powers it, neces- public and which the belong ers which to be administered its require and convenience sity case, McKinney in the As was said creatures. Board is a ad- type ‘The those A. 544: so necessarily play large which agencies
ministrative government under modern in the operation a part *17 conditions, the function of which is to ascertain and determine ultimate facts which the upon will is to operate. function the exer- Such involves discretion, cise of and is in its judgment, nature judicial.’ This might have been so qualified by adding, as it does not conflict with or on Ar- long impinge ticle 4 of the Maryland Constitution. Their function action as sphere defined Miller of Iowa in a on Administrative brochure Raw American Bar Assоciation is: ‘The not for inquiry purpose determining existing facts and resultant duties, and controverted rights and which is a judicial function, but is for the formation and determination duties, rights future which is a legislative func- If tion.’ there is no usual remedy provided, the meth- ods of mandamus to injunction action or compel Md.; prevent it are available.” 205-206 (Pages 466-467 of pages 34 A. 2d). in Dal
The Court
Maso cited with
its decision
approval
Baltimore,
Knox v.
180 Md.
“The most recent case in this court as to whether order, a zoning or resolution is res permit, judicata is Baltimore, Knox v. 23 A. 2d where contended that appellant the Board of Zoning Ap could not peals revoke a resolution or classifi prior cation of his It was property. there said (page 93 of Md., 23 A. page 2d) : ‘The Board of Zon ing Appeals a court of being jurisdic competent tion or tribunal judicial it cannot be held that the reso 28, 1939, lution that Board on passed by February res toas whether had appellant non-con ” use the lot forming question.’ 207 of 182 (Page Md.; 2d). 467 34 A. page out,
As the majority opinion Professor points Davis in his Maso, work on Administrative Law is critical of Dal but has never been overruled Court of Appeals the majority does not to ovеrrule it. On the purport it has contrary, been *18 it, is obligation I see by
cited the Court. As our many times Davis. to follow Dal Maso rather than Professor Board, In County Planning v. Montgomery Schultze 76, 79, A. 2d 502 and Construction (1962) Kay Co. v. County Montgomery County, Council for opin both cited the (1962), majority 2d 694 A. ion, the Council there is dicta which indicates that County functions.” does exercise “quasi-judicial Montgomery County unnecessary In my opinion, language, this is unfortunate cases, to that the decisions in those which rise the notion gives not over but holding impaired in Dal Maso has been somewhat it, exer- As in both Council was ruled. I see cases the not cising legislative “quasi-judicial a “restricted a function” the my prefix has been observation when It function.” word, are to a distinctions is well-defined “quasi” appended blurred, Its is and error often results. thinking invited fuzzy ex- If the placed upon use should be avoided. the restrictions with the usually ercise of associated legislative power are those functions, if character- may inquire exercise of one the judicial harm really of as “quasi-judicial” ization the function does merely if in characterization is not the difference suggested are con- I think not. These different quite semantic exercise? of and result in different cеpts applications requirements law, “leg- of whether is depending upon due function process hand, islative,” on If the the one or the other. “judicial” due of law legislative, require function is does process counsel, the of testimony the hearing, taking opportunity otherwise), of or cross- right oath or the confrontation (under guards examination and other time-honored safe associated function. The limitations judicial with the of only exercise legislative are power the exercise those upon specifically Constitution, forth in as for the example, set the prohibition of other than for use private property public the against taking just of the compensation, leg- the upon payment unreasonable, and thus arbitrary capricious islation be not of law. When the is process power a denial due General to a local delegated Assembly legislative body the by unlimited, limited except by making the statute grant is course, con- grant legislative power, subject, short, of review In the power stitutional limitations mentioned. court, or upon appeal, original
of a either an upon proceeding such mentioned and limitations is limited to constitutional factors imposes. my opinion, limitations as the statute or modifica- forth in which reversal 79(i) justify set Section mentioned) already tion the Court are all (except “(6)” constitutional those present specific effect factors which unreasonable, action is or the issue whether the limitations from 255(g) or are Sec. arbitrary capricious. They adapted Code, Adminis- of Article 41 a section Maryland its inapplicable trative Procedure Act which definition branches.” It seems “agency” “legislative judicial *19 the of the Administrative Procedure clear that other provisions not made to before the District proceedings Act are applicable construction, est as a rule of inclusio unius Council result of the Comi, exclusio Investment v. Gay Company alteriusSee 438, 463, 433, 466 (1963). A. 2d clear in a on a re- conducting It seems to me that hearing not zoning required the District Council is to application per- witnesses, to the which mit cross-examination or even swear function, required judicial would be if the were proceeding or if the the Procedure Act were provisions of Administrative to the District Council. applicable Board, Planning supra,
In v. Montgomery County Sсhultze in of the Board the absence Montgomery County Planning fraud, mistake inadvertence and additional surprise, “a final facts had of mind” in its of a change approval mere of Mont- subdivision with the the plan complying provisions it. County Code and to The gomery attempted disapprove prop- filed to the Circuit for equity owner a bill have Court erty by Planning declare that this action Montgomery County the Board The court dismissed capricious. was trial arbitrary the reversed bill of but decree was on complaint, appeal. the of mere of change The Court held that this mind was Appeals con- conduct. This arbitrary capricious holding entirely In- with the of a function nature. sistent exercise the action Plan- original was no thought deed there 344(a). (1957), Art. Sec. 5. Md. Code Board and this not
ning was res doctrine is mentioned in the of opinion the Court. v. Kay County Montgomery Construction Co. Council for supra, of
County, County the Council rezoned a tract land Wheaton from Zone to (single-family dwelling) the R-60 the Zone R-20 Zone or R-30 (medium density, multi-family) (low a four to three density, November multi-family) by for After were filed reconsideration residents petitions vote. association, Council, and a on County the area сitizens’ March had been former replacement after there Council, aby member four-three vote reconsid- granted that it “finds cause shown that its good eration recited decision should be reconsidered.” This was made “finding” 104-42 of Montgomery County with attempt comply § cause” be (1960 Ed.) required “good Code which shown if reconsideration of an amendment granted the Council ordinance. A held on or text map rehearing Council April March 1960 and rezoning reso- rescinded the original same four-three vote changes occurring original lution. There were no between and the denial resolution. subsequent approval and denial. trial court sustained the reconsideration Its The held that Appeals order was reversed on Court appeal. action was “mere mind” the Council’s subsequent of the original cause reconsideration good and this was *20 words, by the Court holding action of the Council. other the legislative restriction that requiring was predicated upon for the be Court Judge Sybert, speaking cause shown. good Md.; 698 of 177 A. 2d: page 486 of 227 page stated at zon- that the cases cited dealt with recognize “We while, as exercising quasi-judicial powers, boards ing indicated, the instant case involves the Coun- we have However, acting body. cil the reason- legislative a has in those cases some relevance ing applied Ordinance, by that requiring ‘good issue before us. The to the grant- cause’ be shown as a condition necessary reconsideration, of a for ing by petition Council a limitation upon has in effect that grafted agency even regard bodies quasi-judicial (cid:127)which exists in 211 Council to in It the absence statute. permits of where there only reconsideration a grant petition so, as de- doing a reason to be substantial appears supplied). fined in the cases cited.” (Emphasis acting Council was recognizes The that the Court rezoning application a legislative granting capacity not constitu- that the limitation is legislatively, applicable doctrine upon there no reliance was imposed. Again tionally, most mentioned. The Court judicata; of res the doctrine is not a function certainly recognized that function. was a so-called “quasi-judicial” of our decisions that doctrine prior
It seems clear from Boards zoning by decisions judicata res does not apply Brune, Court, stated for the of As Chief Judge Zoning Appeals. County, Baltimore Zoning Appeals in Whittle v. Board of of 45 Md. A. 2d (1956):
“* * * has been held doctrine of res [T]he decision was not to be where the earlier applicable record, of a a board zon- by made not court but v. an Knox ing agency. Mayor administrative appeals, Baltimore, 88, 23 & A. 2d City Council Md. 15.” however, level, in a case When a case reaches the trial court to a application specific ordincmce involving the matter, of res ju owner a contested principles dicata This is there is a contested case then because may apply. has judicial
before court function. doctrine exercising that involving judicial been cases determination applied ain residential office use was a business use not post permitted district, Linthicum, 170 use Baltimore v. Md. Atl. not a question non-conforming that the use (1936),
use, Baltimore, 2d Bensel 101 A. 826 (1954) v. for a no be funeral exception granted should special district, Zoning v. Board home in a residential use Whittle cases, it is Appeals County, supra. Baltimore In these pointed estoppel is not a direct but out that estoppel by judgment so estoppel adjudicated judgment, is a collatеral fact between the if is a the factual situation there *21 time of the original adjudication and the subsequent applica- tion, there is no effective the estoppel by prior judgment. Whit- tle, supra, Md.; 45 of 211 page 46 of 125 page A. 2d. indicates that the majority decision in Whittle is dis- positive of the case I at bar. agree. cannot Whittle dealt with a special use for a funeral exception in a home residential use district, and not with a change the zoning law itself the by legislative as is body the situation in the case at In one bar. the amended; case the law is not case, the other law is the amended. In the one case there is a definite issue of fact to determined; case, be in the other the is whether or question not the in the change zoning ismap “fairly debatable.” The de- termination of this latter question means that on facts then the before body, issue could have been decided either way. Linthicum, Whittle,
Neither Bensel nor involved a change 'law, there is no case in Maryland prior decision in the majority case at bar that the doc- applies trine of res case. In it is an my opinion, Indeed, unwarranted restriction upon legislative power. up- statute, on the limited appeal provided by Court makes no determination is no taken before testimony facts—there the Court—as the entire determination is essentially limited to two issues was the District 1) Council’s action debat- “fairly able” or did it in a 2) result taking without just When District compensation. Council removes zoning re- strictions from the rezoned property consideration obviously 2No. does not to apply. regard the determination debatable”,6 issue was it would seem to me “fairly that the same facts would also be “fairly debatable” at the time of a sec- ond consideration those facts the District Council. If the opinion affirming 6. his the former action Loveless declining District Council the zone stated: “However, though even there much indication in this record sway by petitions effort was made Commissioners opponents, large presented and a turnout of there still facts exists question reasonably of a substantial nature that makes the de- ruling way arbitrary, capri- batable and a either would not have been unsupported' by competent, cious or material and substantial evidence.” (Emphasis supplied). *22 different action on from a those same facts resulted new zon- faсts, short, in ing viewpoint, new evaluation of those same fraud, reason not any “plebiscite motivated the or neighbors” other consideration which impermissible would unreasonable, render the action or I arbitrary can capricious, Council, no legal see constitutional reason the District why as a could not come to a different body, conclusion.
I would so hold.
The mandate of Article 8 of in Rights the Declaration of the Constitution in Maryland must be mind. It always kept pro- vides : “That Legislative, the pow- Executive Judicial
ers of Government to ought be separate forever other; distinct from each and no exercising the person functions of one of said shall assume or Departments the discharge duties other.”
III. But even if the be “mistake-change” rule vigorously applied if the of res judicata doctrine should be deemed to be ap- me plicable, it to that there were appears sufficient changes in conditions in the between neighborhood October 1961 and the time of in change the zone to rezoning make the change “fairly debatable.”
(A) Since October there has in change been the zoning in regard law itself R-18 zone—the zone involved very in the case bаr—reducing density in that zone. It would think be difficult to of more substantial “change condi- tions” than an amendment to the zoning law itself to reduce density zone very question.
The indicates majority change density was not substantial as “under the former limitations density perhaps could apartments have been built on subject tract contrast to 800 to 850 under the new.” To mind this my a substantial difference which would support District Coun- cil in its action.
(B) com- change There was also a subsequent zoning on which a center has been erected mercial property shopping subject prop- feet southeast lying approximately change commercial) The was from C-l erty.7 (local commercial). can com- C-2 There be no doubt that this (general subject neighborhood” mercial is “within the in- that this for more property. majority suggests tensive commercial use was “to an automobile show- permit and this “would argument” room” “was at the use suggested *23 of the changed neighborhood not seem to have the character the filling and 1963-64 more than added between 1961-62 increased commercializa- station and the more distant [uses?] * * case *.” The reliance on the Whittle ap- tion Whittle case out that рears opinion points to be in that misplaced. already filling at the time of the case there were two original added, so that it when third one was stations the area the the ordinance change is that there was no apparent use to the more extended commercial subsequent permit was to consider the The District Council entitled original action. class- of the uses the C-2 quite permitted character different ification, increased use to which rather than the one particular immediately had been property apparently put.8 the C-2 (C) . . District Council entitled to consider as my In the was opinion the char- in conditions which would indeed change of the of the the extension neighborhood, proposed acter East- the immediately adjoining subject property West Highway of March Report the northeast. In the Technical Staff it was stated: extension of the right-of-way “The the proposed the boundary forms northeastern Highway East-West of the tract.” majority opinion shopping is the the indicated that center In7. subject Report tract. In Technical 1500 feet from the the Staff’s approximately
is 1961, however, following “Located stated: subjеct property is tract of land to the 700 feet southeast of Glenridge Shopping which is the site of Center zoned C-l presently under construction.” George’s County of the Prince will An examination Code 8. men- Highway this extension East-West Although and in Judge of the Technical Report tioned in both the Staff extension was that completion opinion Loveless’ the rezoning approval fruition time nearer to fact, of Fred the uncontradicted evidence than it was 1961. consultant, Tuemmler, indicated qualified planning W. well had Highway that reservations the proposed East-West He subject property. in areas adjacent been obtained on the extension “is number one also that this testified very with “the list improvements” Commissioners’ before the make State they usually presentation effective Commission, be before have that you it won’t long Roads East- permitted uses in a C-l difference disclose that between great those zone is indeed. zone and is a C-3 *24 216 needed, and will meet they as a It is Highway reality.
West the need.” Appeals Board Baltimore held in Rohde v. County We that the proposed Md. A. 2d 216 (1964) 234 199
County, “change be considered as a of a road could properly extension Bruñe, for the for a reclassification. Chief conditions” Court, stated: Com
“There Roads testimony was State mission was to build the extension willing proposed Boulevard, County of Goucher if requested by duly so, such a for to do and that the would make mal some writing. ques there was request Though could or tion as to how soon the Commission just act, think that the evidence was sufficient would we this extension was ‘reasonably probable show that was, Board foreseeable future.’ The fruition determining entitled to consider it accordingly Trustees subject classification of the proper property. Bal Fund and Institute v. McDonogh Educational of timore 550, 570-71, 2d 637.” 221 Md. County, A. Md.; 2d). A. of 234 218-219 (Page pages Ass’n., Corp. Forge Community Jobar v. Rodgers also See Balti 106, 112, McBee v. 202 A. 2d Cf. (1964). 312, 317, 157 2d County, (1960). more A. mind that my in the case at bar establishes to testimony “reasonably prob- Highway the extension of the East-West con- properly able of fruition in the foreseeable future” and was of that large as a in conditions. This extension sidered road alter the character greatly controlled-access will subject prop- and will erect a barrier between the neighborhood The Prince land to the east of that erty lying highway. and the Board in George’s County Planning recommending approval ex- subject R-18 zone for the this property gave proposed Hennessey presenting tension consideration. M. James recommendation, favorable stated: Planning Board’s re- Board’s considered that the opinion “It is the *25 classification the the R-18 Zone would property area, for a more the orderly development provide semi-detached is homes. adjacent since the property “Furthermore, Highway the proposed East-West ad- this forms natural barrier between property East, prop- the and between the joining this is so that erty and Pines all undeveloped, East in the orderly development would assist petition Community.” v. Wingard,
Cf. Ass’n Community Lutherville A. 2d 534 (1965). (D) prop- I am District Council could also that the opinion R-18 type consider the increased need the erly substantially in in capítol an area close to the nation’s apartments “as the established the county which uncontradicted evidence fastest growing popula- the 1960 the Country.” county 357,000. By tion of Prince George’s County approximately at time of the there were the Planning estimates Commission’s 423,000 County—a in the case at bar hearing people 790,000 gain of The estimаtes indicated population 18%. in the 20 from or more than a increase years 100% situation, It the need is that such volatile apparent 1960. has sub-
for the in the R-18 zone type apartments permitted in- increased and the stantially testimony since 1961 is quite dicated in this case different this. factual situation case, from relied upon by majority, that the Whittle case out there was opinion the Whittle it was in the pointed from, prevailing” not “a different situation materially decision. The evidence to me prior time of indicates materially different in the case at bar at the situation zoning than it was at the time of the prior time decision. As to become Pres
We must static. permit Ramer, cott, Court, said in Missouri aptly Realty v. 442, 447, 140 Md., A. 2d 657 (1958): is a universal that zon- principle recognition
“It If is not static. could imposed, not be al- ing, once conditions changing that surround us in tered with retarded, would progress be today, the world *26 advantages, from zon- many logically expected would be ing, lost.” also Rohde v. Board Baltimore Appeals See 2d; Md., supra,
County, page 267 of 234 199 A. page Appeals County, v. Board Baltimore Zoning Offutt 557, 105 A. 2d (1954). that the Planning thought Board and the District Council Judge zone was in conditions. justified by changes debatable, Parker do I. thought the issue was and so fairly stated, For all of affirm Parker’s the reasons I would order.