Board of County Commissioners v. Stephans

Smith, J., delivered the opinion of the Court. We are here presented with the question of whether the right of appeal from “a zoning action by the local legislative body” contained in Maryland Code (1957,1978 Repl. Vol.) Art. 66B, § 4.08 (a) includes the right of appeal from the enactment of a zoning text amendment or the adoption of a ³⁸⁶ comprehensive “mini” plan by such a local legislative body. Since we conclude that it does not, we shall affirm that portion of the judgment of the Court of Special Appeals holding that the adoption of the plan was not embraced within the term “zoning action.” We shall reverse so much of the judgment as held that the legislative body’s enactment of a text amendment was included within the right of appeal thus granted.

The opinion of the Court of Special Appeals was reported in Stephans v. Board, 41 Md. App. 494 , 397 A.2d 289 (1979). The facts are simply stated. The County Commissioners of Carroll County took a series of actions on December 14,1977, which sparked this controversy. The Carroll County Planning and Zoning Commission had recommended to the commissioners the .adoption of a comprehensive “mini” plan for the Freedom area of that county and its environs, the addition of a new section to the county zoning ordinance providing for what was known as a “R-40,000 Residence District,” a change in the standards for approval of subdivisions, provision for schools and colleges as a principal permitted use in a conservation zone, a specification that department stores be a permitted use in a local business district, and comprehensive rezoning of the Freedom area.

The county commissioners adopted each of those recommendations. The appellees objected for a variety of reasons to certain of those actions by the county commissioners. Accordingly, they invoked the provisions of Code (1957, 1978 Repl. Vol.) Art. 66B, § 4.08 (a), as last amended by Chapter 267 of the Acts of 1975, and appealed to the Circuit Court for Carroll County.

In point of fact, three appeals were entered. In each instance the trial judge sustained demurrers by the County. Ultimately, final judgments were entered in each of the cases pursuant to Maryland Rule 605 a. Art. 66B, § 4.08 (a) provides: (a) Who may appeal; procedure. — Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals, or by a zoning ³⁸⁷ action by the local legislative body, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, may appeal the same" to the circuit court of the county.

Such appeal shall be taken according to the Maryland Rules as set forth in Chapter 1100, Subtitle B. Nothing in this subsection shall change the existing standards for review of any zoning action. The trial judge (Weant, J.) referred to and quoted from an opinion he had written in a similar case where he said: A zoning action is an act or deed involving the division of the County into districts and the formulation and application of regulations having to do with structural and architectural designs of buildings and regulations prescribing use to which buildings may be put within a designated district. He determined that the adoption of the “mini” plan and the adoption of the text amendments were not zoning actions. The Court of Special Appeals said: We agree with the trial judge when he concluded that the actions of the County Commissioners were not zoning actions, at least insofar as the adoption of the “Mini Plan” is concerned.

However, we disagree with his conclusion that the Text Amendment was also not a zoning action. [Id. 41 Md. App. 500 .] Our grant of certiorari on the petition and cross-petitions of the parties embraces three questions: (1) Do the words “zoning action” in Art. 66B, § 4.08 (a) encompass the adoption by a local legislative body of a comprehensive “mini” plan or a text amendment to the zoning ordinance, including the establishment of a new zoning district? (2) Does Art. 66B, § 4.08 (a) authorize a taxpayer who is not aggrieved, affected by or interested in a zoning action to appeal to a circuit court and to further appeal to the Court of Special Appeals. If so, is § 4.08 (a) of Art. 66B invalid because it violates the doctrine of separation of powers? (3) Do Art. 66B, § 4.08 (a) and ³⁸⁸ Subtitle B of Chapter 1100 of the Maryland Rules require an appellant to include in the petition of appeal factual allegations which show standing to take the appeal?

Because of our conclusion as to the meaning of the term “zoning action,” we shall be obliged to answer only the first question. In Harbor Island Marina v. Calvert Co., 286 Md. 303 , 407 A.2d 738 (1979), Judge Digges recently spelled out for the Court the rules for statutory construction, citing cases: The polestar of statutory interpretation is to ascertain and carry out the real intent of the legislature when it enacts a statute____This intent must first be sought from the words utilized in the enactment, with the terminology chosen being given its ordinary and popularly understood meaning____ However, if because of uncertainty interpretation becomes necessary, courts must consider not only the everyday meaning of the enactment’s words, but also the effect of the proposed construction in light of the subject matter and purposes sought to be accomplished____If the statute is susceptible of more than one construction which is both reasonable and consistent with commonsense, then we should apply the construction which will carry out its object and purpose. [Id. at 311.] The problem here arises in part because of the word “action.” Zoning has been defined by this Court. For instance, in Applestein v. Baltimore, 156 Md. 40 , 143 A. 666 (1928), Judge Offutt said for the Court: The term “zoning” has come to have a technical and artificial meaning, which is different from its literary and etymological significance. And while in its literary sense it signifies a belt or girdle more or less symmetrical in outline, it is also used to describe the process of setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses designed in some ³⁸⁹ degree to serve the interests of the whole territory affected by the plan. [Id. at 51.] In Benner v. Tribbitt, 190 Md. 6 , 57 A.2d 346 (1948), in the context of a controversy where it was claimed that a municipal corporation had improperly denied issuance of a building permit, Judge Markell said for the Court: There is no magic in the word “zoning”, but there is a wide difference between exercise of the police power in accordance with a comprehensive zoning plan, which imposes mutual restrictions and confers mutual benefits on property owners, and arbitrary permission to A and prohibition to B to use their own property, at the pleasure of neighbors or at the whim of legislative or administrative agencies. [Id. at 20.] We recently said in Board of County Comm’rs v. Gaster, 285 Md. 233 , 401 A.2d 666 (1979): As we noted in Wash.

Co. Taxpayers Ass’n v. Board, 269 Md. 454, 455-56 , 306 A.2d 539 (1973), some confusion exists relative to the terms planning and zoning, which are not synonymous. Zoning is concerned with the use of property but planning is broader in its concept. 1 E. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978) comments: Expressing the matter in another way, let us say that zoning is almost exclusively concerned with use regulation, whereas planning is a broader term and indicates the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience and welfare as may be properly embraced within the police power. [Id. at 4.] There are three integral parts of adequate land ³⁹⁰ planning, the master plan, zoning, and subdivision regulations. [Id. at 246.] “Action” in the legal sense connotes a controversy between two or more opposing parties, usually in a court proceeding, but possibly before an administrative tribunal. A dispute or controversy is a key element, however, not found in these cases. Black’s Law Dictionary (5th ed. 1979) says, for instance: Term in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law.

Pathman Const. Co. v. Knox County Hospital Ass’n, Ind. App., 326 N.E.2d 844, 853 . The legal and formal demand of one’s right from another person or party made and insisted on in a court of justice.

An ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. It includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court. [Id. at 26.] In this regard see generally Concannon v. State Roads Comm., 230 Md. 118, 123-24 , 186 A.2d 220 (1962); O’Neill & Co. v. Schulze, 177 Md. 64, 70 , 7 A.2d 263 (1939); Baltimore v. Libowitz, 159 Md. 28, 30 , 149 A. 449 (1930); Fountain v. State, 135 Md. 87, 90 , 108 A. 473 (1919); and Paesch v. State, 2 Md. App. 746, 747, 237 A.2d 83 (1968). It seems improbable, therefore, that the General Assembly could have had in mind when it used the term “zoning action” that it would be providing judicial review in the form of an administrative appeal from a legislative act adopting a comprehensive plan or amending the text of a zoning ordinance. In this instance we are provided assistance by the legislative history of this section.

In Blumenthal v. Clerk of Cir. Ct., 278 Md. 398, 403 , 365 A.2d 279 (1976), Judge Levine observed for the Court, citing cases, “That resort may be had ³⁹¹ to the legislative history of a statute when an ambiguity exists is a cardinal rule of construction.” Accordingly, we turn to the history of this particular statute. As was pointed out in Gaster, 285 Md. at 239 , this zoning statute had its origin in the enactment of Chapter 599 of the Acts of 1933. This particular section is derived from Code (1957) Art. 66B, § 22. That section was concerned solely with the board of appeals.

As it appeared in Code (1951) Art. 66B, § 22, the antecedent of the section with which we are now concerned said in pertinent part, “Any person ... aggrieved by any decision of the Board of Appeals ... may present to the circuit court of the county, a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality.” Then § 22 went on to provide, “Upon the presentation of such petition the court may allow a writ of certiorari directed to the Board of Appeals to review such decision of the Board of Appeals ....” Section 22 was a long section. In dealing with the board of appeals it specified that it should consist of three members and one was to be appointed in every county or municipality using Art. 66B. The legislative body for the subdivision was authorized by § 22 to “provide that the said Board of Appeals m[ight], in cases where it [was] exceptionally difficult if not impossible to comply with the exact provisions of the ordinance, make such variation as w[ould] prevent unwarranted hardship or injustice and at the same time most nearly accomplish the purpose and intent of the regulations of the zoning plan.” Chapter 321 of the Acts of 1957 repealed and reenacted § 22 with amendments. The actual text amendment to § 22 was a subsection enacted as § 22 (o) providing an appeal from circuit courts to this Court.

However, Chapter 321 broke § 22 up into subsections so that the ancestor of § 4.08 (a) became § 22 (i) without any change in