Bowie Volunteer Fire Department & Rescue Squad, Inc. v. Board of County Commissioners

Smith, J., delivered the opinion of the Court. Appellant, Bowie Volunteer Fire Department and Rescue Squad, Inc., (Fire Company) is desirous of having a new fire house and appears to be encountering a few stumbling blocks along the way. This specific case deals with the Fire Company’s request for the writ of mandamus to compel the Board of County Commissioners of Prince George’s County to reissue a building permit for the fire house which had been rescinded. We shall affirm the action of Judge Mathias in denying the writ of mandamus.

Section 28.348 of the Prince George’s County zoning ordinance as adopted on August 15,1967, states: “In all zones a (volunteer) fire, ambulance and/or rescue station may be permitted provided the site is located in the immediate prox ³⁸³ imity of a site designated as a fire or rescue station on a plan of fire and rescue stations for Prince George’s County approved by the District Council.” The Fire Company applied to the District Council for a special exception. It was granted. Promptly thereafter a building permit for the erection of the fire house was granted. The granting of the special exception was appealed to the Circuit Court for Prince George’s County which reversed the action of the District Council.

We considered the matter in County Commissioners v. Brown, 253 Md. 632 , 253 A. 2d 888 (1969), and remanded the case without affirmance or reversal for remand by the Circuit Court to the District Council for further proceedings. On November 6, 1968, subsequent to the Circuit Court decision relative to the special exceptions and prior to our consideration of that case in the spring of 1969, the District Council passed a resolution staying the previously granted special exception and rescinding the building permit “until such time as a decision has been rendered by the Maryland Court of Appeals.” A “stop work” notice was posted November 8. A contract between the Fire Company and its builder was entered into on October 23, 1968. It is conceded that work done under that contract and under the building permit was minimal.

This mandamus action was filed on November 21, 1968. In addition to the usual allegation that the action of the public officials concerned was “arbitrary” the petition states, “The sole reason for their action [was] their reliance upon an ordinance declared by [the Circuit Court for Prince George’s County] on the 1st day of October, 1968, to be inoperative.” If the reason for the action of the District Council was the decision of the Circuit Court on October 1, 1968, that fact does not appear in the record. The decision to which reference is made is a case involving Laurel Volunteer Fire Department No. 1, Inc ³⁸⁴ It applied for a special exception to build a fire-substation. The application was denied.

It then asked the Circuit Court to review, contending that section 28.348 of the zoning ordinance was of no force and effect because it was contingent upon the adoption of a plan for fire and rescue stations and that no such plan had been validly adopted by the County Commissioners sitting as the District Council. The Prince George’s County Code of Public Local Laws, 1963, § 59.68 requires public hearings prior to the adoption of any “General Plan, Local Master Plan or Functional Master Plan”. The county in that proceeding argued that the plan referred to in section 28.348 of the zoning ordinance was not a “Functional Master Plan” and, therefore, no' public hearing was necessary. Judge Bowie determined it to be a functional master plan.

Accordingly, he remanded the case to the County Commissioners sitting as the District Council so that a plan for fire and rescue stations might be approved by the District Council in accordance with the provisions relative to public hearing. He further ordered, that proceedings be held by the County Commissioners sitting as the District Council in accordance with section 28.348 of the zoning ordinance at such time as a valid plan might be adopted. It is said there was no appeal from that decision. We set forth the above information relative to the alleged improper adoption of the plan since it is interwoven with the arguments of the Fire Company here, the facts set forth, being gleaned from copy of the opinion in that case printed in the record extract.

We do not have before us the full record in the Laurel Volunteer Fire Department No. 1, Inc., case, nor are we to be understood as taking judicial notice of it. Fletcher v. Flournoy, 198 Md. 53 , 81 A. 2d 232 (1951). The Fire Company takes the position that section 28.348 of the zoning ordinance is inoperative (although it presented no evidence to that effect other than a certified copy of the opinion of Judge Bowie) and that, therefore, the pre-existing zoning ordinance is applicable. It says the pre-existing ordinance .permits in a rural resi ³⁸⁵ dential zone “public buildings and uses”.

It points to the local law relative to nonprofit fire companies and rescue squads which makes them “an instrumentality of Prince George’s County and/or the municipality in which they operate for the protection of life and property from the hazards of fires, explosions and related perils” and which provides that the beneficial interest in their assets “shall be vested in Prince George’s County or the municipality wherein such volunteer fire companies and/or rescue squads are located and operating.” Therefore, it says the District Council acted illegally when it rescinded the building permit because it was a public building the Fire Company proposed erecting. Judge Mathias in his oral opinion said: “Very well, gentlemen, the Court finds in this case that the Bowie Volunteer Fire Company did, in fact, receive a building permit to construct a fire company [sic] and that that permit was validly issued as a result of the provisions of Section 28.348 of the Zoning