Board of County Commissioners v. Guyther

Davidson, J., delivered the opinion of the Court. The appellant, the Board of County Commissioners of St. Mary’s County (Board) is composed of five members. 1 On 8 September 1976, the Board met. All five members were present. The minutes of that meeting show that when an application, filed by the appellees Robert Oliver Guyther and ²⁴⁵ another (owner), to reclassify a 29 acre parcel of land from the AR-2 zone (Agricultural-Residential) to the C-2 zone (Highway Commercial) was to be considered, two members, Commissioners Millison and McKay, excused themselves because of a conflict of interest.

The three remaining members, Commissioners Dean, Jarboe and Parlett, held a hearing on the application. On 21 October 1976, these three Commissioners voted to deny the application. The owner appealed. On 15 July 1977, in the Circuit Court for St. Mary’s County, Judge Jacob S. Levin entered an order which reversed the decision of the Board and directed it to grant the requested reclassification.

On 3 August 1977, the Board again met. Four of the Board’s five members, Commissioners McKay, Millison, Dean and Parlett, were present. The minutes of this meeting show that when the matter of the Circuit Court’s order directing reclassification was to be considered, Commissioner Millison excused himself from the meeting “because of possible conflict of interest.” Commissioner McKay “offered to provide the applicant with a letter stating that he would have no business interest in the property in question for the remainder of his term as County Commissioner if it would help his cause.” Commissioner Parlett made a motion to appeal the Circuit Court’s decision. Commissioner Dean seconded the motion, and he and Commissioner Parlett voted in its favor.

Commissioner McKay abstained. The facts that on 8 September 1976 Commissioner McKay disqualified himself because of a conflict of interest from participation in the hearing on the application for rezoning, that on 21 October 1976 he did not vote on that application, and that his statement on 3 August 1977 did not clearly indicate that his conflict of interest had terminated, establish that his reason for abstaining from the vote to appeal was his disqualification because of conflict of interest. In this Court the owner filed a motion to dismiss the appeal. He contends that because Commissioner McKay had disqualified himself because of a conflict of interest, he was incompetent to act even though he was physically present when the vote to appeal was taken.

As a result, he asserts, ²⁴⁶ there were then only two members of the Board competent to act and that number was insufficient to constitute a quorum. He maintains that, in the absence of a quorum, the Board’s determination to appeal was invalid. He concludes that the appeal was not taken pursuant to law and should be