Board of County Commissioners v. Oxford Development Co.

Bruñe, C. J., delivered the opinion of the Court. The County Commissioners, the Planning Commission and the Planning Director of Baltimore County appeal from an order of the Circuit Court directing that a writ of mandamus be issued commanding them “to .process and tentatively approve” a subdivision plan or plat of the appellee (the “Development Company”) relating to a ³⁷⁵ tract of approximately forty-eight acres of land known as “Enchanted Acres.” The original petition of the appellee was filed on March 10, 1955. It was amended by leave of court on June 8, 1955. The amendments inserted the word “tentative” at three points (at the last of which it should have been “tentatively”).

In the following statement we have indicated each of the amendments by italicizing the inserted word and by enclosing it in square brackets. The prayer of the petition is that the appellants be commanded “to process and [tentatively] approve” the appellee’s subdivision plan and plat of “Enchanted Acres.” The appellee alleged that it was the contract purchaser and equitable owner of the land in question, that in January, 1955, it had submitted its subdivision plat and plan to the appellants for [tentative] approval in accordance with Section 27 of Article 66 B of the Code (1951), that its plan was in accordance with the zoning rules and regulations of Baltimore County as in force then and at the time of filing the petition, and that notwithstanding the provisions of Section 27 of Article 66 B, the appellants had “refused to consider, act upon or approve said plan for residential development within the thirty day period provided in said Section 27 of Article 66 B, and have continued the refusal and [sic, “of”?] [tentative] approval of said plat for certain reasons contained in an interoffice communication from * * * [the] Director of Planning to * * * [the] Director of Public Works,” an unsigned copy of which had been delivered to the Development Company and would be produced upon the hearing on the petition. The Development Company further alleged in its petition that this memorandum contained “no valid or legal grounds upon which refusal to approve said plat could be based, and the reasons therein attempted to be assigned are in direct conflict with the present zoning rules and regulations adopted by the County Commissioners * * The Development Company’s petition further asserted that the appellants “arbitrarily, illegally and without just cause have neglected ³⁷⁶ and continually neglect and refuse to take any positive action for approval of your petitioner’s plat and plan of subdivision, and have arbitrarily and illegally withheld approval of said plat without just cause or reason * * The County Commissioners filed one demurrer to the petition, and the Planning Commission and Planning Director joined in another. A hearing was held, and on June 8, 1955, the trial Judge signed an order which overruled the demurrer [s] and allowed the appellants five days in which to answer.

On the same day the Development Company sought and was granted leave to amend its petition, as above stated. The docket entries list the petition to amend and the order granting leave to do so after the order overruling the demurrers. The record is silent as to whether these demurrers were or were not considered as applicable to the amended petition. The appellants thereafter filed a joint answer to the amended bill in which they denied that they had refused to consider the plat and averred, on the contrary, that “thorough and complete studies of said plat have been made and that tentative approval thereof has been withheld for the reason that the lot areas in the proposed development conflict with the minimum areas required by the Planning Commission for the section of the County of which the land contained in the proposed development is a part.” They also denied that their action was illegal, unlawful, arbitrary or capricious.

The appellee demurred to the answer to the amended petition, and its demurrer was sustained. Thereupon, and without any proof being taken, the order for the issuance of the writ was entered. The appeal is from that order. The petition as amended seeks tentative approval of the appellee’s plat and plan.

The only statutory provision upon which the appellee relies, so far as its petition discloses,- is Section 27 of Article 66B of the Code. The planning regulations of Baltimore County have not been made a part of the record. These are simply municipal ³⁷⁷ regulations, of which our courts do not take judicial notice. See Givner v. Cohen, 208 Md. 23 , 116 A. 2d 357 , and cases therein cited.

See also Code of Public Local Laws of Baltimore County (1948),