Beshore v. Town of Bel Air

Sybert, J., delivered the opinion of the Court. In this suit the appellants, who are citizens and taxpayers of Harford County and of Bel Air, its county seat, challenged the validity of two ordinances adopted by the Town Commissioners of Bel Air—Resolution No.. 20, which annexed and zoned four properties adjacent to the perimeter of the town, and Ordinance No. 157, passed earlier, which amended the town’s zoning ordinance so as to permit the fixing of zoning classifications for newly annexed property in the annexation proceedings. The appellees, who were defendants below, are the Town of Bel Air, its five Town Commissioners, and its Superintendent of Public Works. After a hearing, Judge Dyer in the Circuit Court for Harford County passed a decree upholding the validity of the two legislative enactments and denying an injunction to prohibit the issuance of building permits for the annexed property.

The complainants then appealed. The four tracts annexed to the town by Ordinance No. 20 are contiguous and aggregate nearly 68 acres. They front on the east side of U.S. Route No. 1, on the south edge of Bel Air. The ⁴⁰³ largest, known as the Durham-Julio tract, consists of 44.76 acres, unimproved, zoned in the county as B-3 (General Business District), except for a small portion zoned A-l (Agricultural District).

The next largest tract, known as the Pons-Kunkel property, also unimproved, contains 20.35 acres and was zoned in the county as R-2 (Urban Residence District, permitting single family dwellings). The two remaining parcels, one containing E48 acres owned by one Tucker, and the other containing 1.33 acres owned by one Smith, are improved business properties and each was zoned in the county as B-3 (General Business District). Ordinance No. 157 and Resolution No. 20 were adopted by the Town Commissioners after the owners of the Durham-Julio tract, which was then outside the Bel Air town limits, failed early in 1961 to obtain from Harford County a permit for the construction of a shopping center. Their application, which was awaiting a public hearing before the County Commissioners after it had been approved by the Harford County Planning and Zoning Commission, was “checkmated” by a decision of the Circuit Court for Harford County in an unrelated case involving a property known as the “Worthington Farm”, several blocks distant from the Durham-Julio tract but also adjacent to and outside the town limits.

The court held that no shopping center could be erected in the county near Bel Air, but only “at or near” one of the six areas designated for business service centers on the Harford County Land Use (or Master) Plan adopted by the County Commissioners in 1957. The nearest of such areas is approximately three miles distant from Bel Air. After the court’s decision, no further steps were taken on the Julio’s application to the county. The Durham-Julio tract was part of a farm owned by W. Edgar Durham, who had contracted to sell the 44.76 acres in question to Grove Point, Inc., a family corporation owned by three real estate developers named Julio.

Before the circuit court ruling just mentioned, the Julios had approached the Bel Air Town Commissioners relative to the furnishing of sewer service to the proposed shopping center, since no such county service was available. The Town Commissioners, following their established policy, had replied that the shopping center could ⁴⁰⁴ be connected with the town sewer system if the property were annexed to the town and arrangements were made for a suitable division of the costs. Several days after the circuit court decision in the Worthington case, the Town Commissioners of Bel Air, a representative of Whitman, Requardt and Associates, the town’s consulting engineers, and officials of the State and County Health Departments held a meeting on April 6, 1961, at which it was reported that the Town had several requests for the sewering of properties outside the corporate limits, and expected more, and that the town’s boundaries would expand. It was suggested that the Worthington and Durham properties could be sewered without overloading the town’s facilities.

In view of the fact that all previous annexations to the town had involved areas zoned non-commercial in the county (as pointed out by the appellees in their brief and argument), and of the further fact that some of the properties now considered for possible annexation held commercial classifications in the county, the Town Planning Commission at a meeting held on May 3, 1961, decided that sec. 4.6 of the Town Zoning Ordinance (No. 149), which provided that annexed territory should automatically be classified as R-l (permitting single-family residences) until otherwise classified, should be revised and that independent legal opinion be sought to determine how this could be accomplished. At a special meeting of the Planning Commission held on May 10, 1961, a legal opinion of a Baltimore law firm was submitted which suggested that sec. 4.6 be amended to read as follows: “4.6 In all cases where territory has not been specifically included within a district, such territory shall automatically be classified as R-l District until otherwise classified, but in cases of annexation of territory where the annexation proceeding provides a zoning classification for the territory to be annexed, such territory shall be so classified upon incorporation into the Town of Bel Air.” Adoption of the amendment in the language of the legal opinion was recommended to the Town Commissioners who, at a ⁴⁰⁵ meeting on the same day, discussed and approved the recommendation as submitted. After two notices by publication, a public hearing was held on June 14, 1961, and on August 14, 1961, the Town Commissioners adopted Ordinance No. 157, embodying the amendment. Apparently all requirements of Article 17 of the town’s Zoning Ordinance (relating to amendments) and of Code (1957), Art. 66B (Zoning and Planning), were complied with in adopting the amendment.

On August 14 the Town Commissioners requested the Planning Commission to study adjoining areas and to make recommendations as to the proper zoning thereof, “with particular reference to the Worthington and Durham properties”. On August 17, 1961, W. Edgar Durham filed a petition with the town of Bel Air requesting the annexation of the 44.76 acre Durham-Julio tract. The petition was referred to the Planning Commission for its recommendations as to zoning in conjunction with the proposed annexation. The Commission held a public hearing on the recommendation of its planning consultant, Julian Tarrant, that the property be zoned B-3 (General Business), except for a small strip suggested for a residential classification, and then recommended to the Town Commissioners that, if annexed, the Durham-Julio property be zoned as suggested by Mr. Tarrant.

The Town Commissioners introduced a resolution for the annexation of the tract, including the zoning as recommended, and published a notice of a public hearing for December 4, 1961. Before that date, the public hearing and the annexation proceeding were cancelled because of (according to the appellants) certain procedural imperfections. Then the owners of the Durham-Julio, Pons-Kunkel, Tucker and Smith properties filed with the Town Commissioners a joint petition, dated January 13, 1962, requesting that their properties be annexed by the town and that they retain the zoning classifications which they had in Harford County or be assigned similar zoning classifications under the town’s Zoning Ordinance. The Town Commissioners requested the Bel Air Planning Commission to study the petition and make recommendations in regard to zoning classifications.

In turn, the Planning Commission directed Mr. Tarrant, the planning consultant, to recommend zoning classifications for the area to be ⁴⁰⁶ annexed. Mr. Tarrant later recommended that upon annexation the Durham-Julio tract should be classified as B-3 (General Business) except for a small portion which he suggested for R-l (Single-Family Residence). As mentioned earlier, these two parts of the Durham-Julio property were zoned B-3 (General Business) and A-l (Agricultural) in Harford County. Tarrant recommended that the Pons-Kunkel property be classified R-l (Single-Family Residence).

In the county this property was zoned R-2 (which permitted single-family dwellings). As to the Tucker and Smith properties he recommended that they be zoned B-3, the same classification as they had in the County. The Town Planning Commission on February 21, 1962, approved the new zoning classifications as suggested by Tarrant and, after the publication of notices on March 1 and 8, a public hearing on zoning was held by the Planning Commission on March 14, 1962. At the hearing counsel for the owners of the Pons-Kunkel property stated that the owners desired their property to be classified as R-2 (General Residence) upon annexation rather than R-l as advertised in the notices of the hearing.

On March 20 the Planning Commission recommended to the Town Commissioners that the zoning classifications for the properties to be annexed be as Tarrant recommended except that the Pons-Kunkel property should be zoned R-2 rather than R-l. On June 18 a charter amendment, Resolution No. 20, providing for the annexation and zoning of the land in question (with the classifications recommended by the Planning Commission) was introduced at a meeting of the Town Commissioners. After the publication of four weekly notices, a public hearing was held on July 31, 1962, and on August 20, Resolution No. 20 was adopted by the Town Commissioners. On November 3, 1962, the appellants filed a bill of complaint in the Circuit Court for Harford County seeking a declaratory judgment.

However, on March 22, 1963, an amended bill based on the general equity jurisdiction of the circuit court was filed praying that Ordinance No. 157 and Resolution No. 20 be declared invalid, that the Town, the Town Commissioners and the town’s Superintendent of Public Works be enjoined from ⁴⁰⁷ issuing permits to any person for the erection of a shopping center on the Durham-Julio tract, and for general relief. On January 31, 1964, the circuit court decreed, after a trial on the merits, that the Ordinance and the Resolution were valid and denied the relief prayed. I The appellants’ first contention is that “as a matter of public policy” Ordinance No. 157, permitting annexation and zoning to be effected in one proceeding, is void because of the participation of a person in its passage who had a conflicting private pecuniary interest. The person referred to is Adolph A. Pons, Jr., who at the time of the enactment of Ordinance No. 157 was one of the Town Commissioners of Bel Air and the Commissioners’ representative as a member of the town’s Planning Commission.

At the time in question, Pons’ wife and two of her relatives were the owners of the 20.35 acre tract referred to as the Pons-Kunkel property. Pons participated in deliberations and votes of the two town bodies leading to the adoption of the ordinance. In an effort to show that Pons had a private pecuniary interest in the passage of Ordinance No. 157, the appellants assert that at least since 1960 the owners of the unimproved Pons-Kunkel property desired to build apartments thereon but were prevented by two obstacles—the use was not permitted under the property’s zoning classification in the county, and the tract lacked sewer service, which would be available only if it were annexed to Bel Air. They claim that the amendment of sec. 4.6 of the town’s Zoning Ordinance was the first step in a scheme on Pons’ part to bring his wife’s property into the town with a zoning classification permitting apartments and to induce the Julios to consent to annexation of their larger tract with the same business classification it bore in the county, thereby rendering the extension of the town’s sewer system to both properties economically feasible.

The difficulty with the appellants’ argument is that it is not supported by the evidence. A diligent search of the record has failed to reveal any clear evidence that the owners of the Pons-Kunkel tract desired or intended, at the time of the adoption of Ordinance No. 157, to build apartments on their property. ⁴⁰⁸ When the ordinance was adopted on August 14, 1961, no petition for annexation had been presented to the Town Commissioners, and there is nothing in the record to show that Pons had ever had any contact with the Julios before the ordinance was passed. We think it is significant that when the original petition for annexation of the Durham-Julio tract was filed on August 17, 1961, the owners of the Pons-Kunkel property did not join in. The first mention to any official agency of possible annexation of the latter parcel appears to have been made orally at a Planning Commission meeting on September 6, 1961, as is indicated in a subsequent letter from Mr. Tarrant to the chairman of the commission.

This date was more than three weeks after the passage of Ordinance No. 157. While Pons participated in some or all of the action in the original Durham-Julio application, the proceedings proved abortive and were cancelled in December, 1961. We think the inference is permissible from the evidence that the Pons-Kunkel interests did not positively decide to request annexation until the joint petition was filed by the owners of the four properties on January 13, 1962. It was conceded that Pons did not attend meetings of either the Planning Commission or the Town Commissioners at which this petition was discussed or voted upon.

There is no intimation in the evidence that Pons influenced the proceedings or the result with respect either to Ordinance No. 157 or Resolution No. 20. Rather, the passage of the ordinance seems to have been dictated by the necessities of the situation then facing the town, and the form of the enactment was suggested by independent counsel. The evidence fails to bear out the Machiavellian role attributed to Pons by the appellants, and the cases which they cite are distinguishable on the facts. While it is true that most, if not all, courts apply a strict rule in striking down enactments where one who participated is shown to have a conflicting interest, we said in the recent case of Montgomery County v. Walker, 228 Md. 574, 580 , 180 A. 2d 865 (1962) : “Whether, in a particular case, a disqualifying interest exists, is a factual question and is governed by the circumstances of that case, and the enunciation of a definitive rule is not possible.” On the record presented here, we cannot ⁴⁰⁹ hold Judge Dyer clearly wrong in finding no conflict of interest on the part of Pons when he participated in the passage of Ordinance No. 157, Maryland Rule 886 a, and thus the validity of the ordinance was properly sustained.

For similar holdings in cases involving more or less comparable facts, see Wilson v. Long Branch, 142 A. 2d 837 (N. J. 1958) ; Van Itallie v. Borough of Franklin Lakes, 146 A. 2d 111 (N. J. 1958) ; Benincasa v. Incorporated Vill. of Rockville Centre, 215 N. Y. S. 2d 575 (1961); and see annotation, 133 A.L.R. 1257 . II The appellants next contend that Resolution No. 20, providing for both annexation and zoning of the four tracts mentioned, is invalid for four specific reasons. We shall discuss the issues in a sequence different from that appearing in the briefs. The appellants argue that “zoning changes and classifications for which there is a special statute [Code (1957), Art. 66B] are not intended to be included in an annexation resolution under the guise of the ‘conditions and circumstances’ provision of the annexation statute [Code (1957), Art. 23A, sec. 19(b)].” Section 19(b) of the annexation law, supra, provides: “* * * The resolution shall describe by a survey of courses and distances, and may also describe by landmarks and other well-known terms, the exact area proposed to be included in the change, and shall contain complete and detailed provisions as to the conditions and circumstances applicable to the change in boundaries and to the residents and property