Cardon Investments v. Town of New Market

COUCH, Judge. This appeal concerns the judicial review of a zoning decision in Frederick County, near the town of New Market. The local zoning board granted an application for rezoning of the subject property and the Circuit Court for Frederick County reversed the rezoning. The Court of Special Appeals affirmed the circuit court.

Cardon Inv’s. v. New Market, 55 Md.App. 573 , 466 A.2d 504 (1983). We granted certiorari to determine questions of public importance; we shall affirm the decision of the Court of Special Appeals. While the appellant has raised six issues for our consideration, 1 II.III.IV.V.VI.we shall recast those issues into three. They are as follows: ⁸¹ 1) Whether the State Department of Planning may raise a new issue after intervening in an administrative appeal; 2) Whether comprehensive zoning occurred in Frederick County in 1977; 3) .If comprehensive zoning occurred, was there sufficient evidence of change so as to render the decision to rezone fairly debatable.

I The Facts Zoning appeals usually involve lengthy and complex statements of fact, and this appeal is no exception to the rule. In order to avoid repetition of what has been well stated before, reference is made to the chronological recitation of facts prepared by Judge Bishop in Cardon, supra, 55 Md.App. at 575-78, 466 A.2d at 507-08 . As a general background to this appeal, we note that on March 2, 1982, the County Commissioners of Frederick County rezoned the land owned by the appellant, Cardón Investments (Cardón), from General Commercial to Highway Service. This rezoning was based upon a determination that there was substantial change in the neighborhood, when the change was measured from 1959, the date of the original comprehensive zoning of Frederick County.

The use of this date was mandated by Frederick County Code Section 1-19-67 (1977) 2 , which designated 1959 as the date for measuring change. ⁸² The rezoning would have permitted Cardón to build a truckstop on property located within view of the residents of the town of New Market. The town and its residents, the appellees before us, appealed the rezoning to the Circuit Court for Frederick County. The Department of State Planning (the Department) intervened pursuant to Maryland Code (1957, 1979 Repl.Vol., 1984 Cum.Supp.), Article 88C, § 2(r). 3 In the Statement of Position filed by the Department with their Motion to Intervene, the Department contended that 1959, the date used by the County Commissioners to measure change, was the wrong date to use. At the hearing in circuit court the Department explained its contention.

It argued that change should be measured from either 1971 (prior piecemeal zoning) or 1977 (prior zoning map update). At the hearing the Department stated: “the change or mistake rule as it has been developed in case law is binding on all local jurisdiction [sic] that exercise zoning power under Article 66B, and that includes Frederick County. The County has no authority to establish a different rule for Frederick County. In a ⁸³ number of cases the Court of Appeals has declared that the zoning power of local jurisdictions is limited by the terms of State Enabling Law.

A recent case on point is Harper Island Marina v. County Commissioners of Calvert County, [Harbor] that’s 286 Maryland 303 [ 407 A.2d 738 ] a 1979 case. The Court has also suggested, for example, in the Woodlawn [A]rea Citizens Association case, which is cited in the State’s memorandum, that County Commissioners when they engaged in piecemeal rezoning are analogous to administrative bodies and that they must follow enabling authority and procedures. Section 1-19-67 of the County Zoning Ordinance purports to establish a rule that conflicts with Article 66B, Section 4.05A, and the change of [sic] mistake case law. The Section would take away the presumption of correctness from any zoning change that has occurred in Frederick County since 1959, including in this case the 1971 and 1977 reclassifications of the Cardón property.

The State maintains that the Section is invalid and not binding in this case.” The circuit court agreed and recognized 1977 as the date from which to measure change. Working from that date, the court found insufficient evidence of change so as to warrant rezoning. The decision to rezone was accordingly reversed. The Court of Special Appeals affirmed, but on slightly different grounds.

Judge Bishop, writing for the court, determined that the 1977 zoning map update was, as a matter of law, a comprehensive rezoning. The Court of Special Appeals held that since use of the 1959 date was an erroneous conception of law, the issue was properly reviewed by the circuit court, even though it was not raised at the administrative level. The Court of Special Appeals then affirmed the circuit court’s finding of insufficient evidence to warrant rezoning. We begin by addressing the issue of the Department’s intervention and its objections to the validity of Frederick County Code § 1-19-67. ⁸⁴ II The Department’s Intervention and Objection Cardón argues that the Department may not intervene and raise an issue not addressed at the administrative level.

We have previously held that the Department may intervene in a zoning appeal, as long as the intervention is timely. Dep’t of State Planning v. Mayor of Hagerstown, 288 Md. 9 , 415 A.2d 296 (1980). The parties agree that the intervention was timely but disagree as to the Department’s right to raise a new issue on administrative appeal. Section 2(r), quoted in footnote 3, gives the Department the “standing and all rights of a party in interest or aggrieved party ... ”, but these rights “may be exercised only in accordance with applicable rules of procedure and law as they relate to the proceeding.” The question, then, is whether a party in interest or an aggrieved party can attack the validity of a zoning ordinance in the appeal of a zoning decision which relied in part upon that ordinance.

We hold they may. Article 66B, entitled Zoning and Planning, delineates the statutory law in zoning matters. Article 66B addresses, in separate subtitles, Zoning in Baltimore City (subtitle 2), and General Development Regulations and Zoning (subtitle 4). Section 4.08(a) establishes the right of an aggrieved party to appeal to the circuit court of the county in which the zoning decision was made.

Similarly, Section 2.09(a) establishes the right of an aggrieved party in Baltimore City to appeal a zoning decision to the Circuit Court for Baltimore City. 4 ⁸⁵ In interpreting § 2.09, this Court has held that on appeal a party may attack the validity of a local zoning ordinance even though the issue was not raised below. Ellicott v. Mayor of Baltimore, 180 Md. 176 , 23 A.2d 649 (1942). In Ellicott , local residents protested a variance granted by the Baltimore City zoning board, and then, on appeal to Baltimore City Superior Court, they attacked the validity of the ordinance which authorized the variance. The appellees argued that an attack on the statute must be raised by seeking an injunction in equity.

Chief Judge Bond, writing for the Court, disapproved of this theory, noting that if separate action was required: “the design of the statute and the ordinance would be departed from. Some persons interested in a municipal development, who might feel aggrieved within the meaning of the law, and are intended to be heard, taxpayers and others besides neighboring owners, for instance, could not contest the validity of the variation at all because they would not be able to show the peculiar injury necessary [for an injunctive action]. Bauernschmidt v. Standard Oil Co., [ 153 Md. 647 , 139 A. 531 (1927) ], supra. And questions of validity of the variation and of iregularities in the Board’s action could not be heard together in one proceeding.

The statute and ordinance are still capable of a construction that will permit raising the question of validity on the appeal; it is convenient for the court on appeal to hear questions as the original ordinance contemplated; to separate the questions we should be following strict logic to impose a ⁸⁶ disadvantageous practice; and that, we have concluded, should not be done. The contest of the varying ordinance may be heard on the appeal to the court, although not before the Board.” Id., 180 Md. at 181 , 23 A.2d at 651 . See also Hartman v. Prince George’s County 264 Md. 320, 324 , 286 A.2d 88, 90 (1972); Poe v. Baltimore, 241 Md. 303, 307 , 216 A.2d 707, 711 (1966); and Mayor of Baltimore v. Seabolt, 210 Md. 199, 206 , 123 A.2d 207, 212 (1956). Because of the similar language contained in § 2.09(a) and § 4.08(a) of Article 66B, we hold, in accordance with Ellicott , that objections to the validity of a local zoning ordinance may be raised for the first time on administrative appeal.

Cardón also contends that the validity of a comprehensive rezoning is an issue which cannot be raised in an administrative appeal pursuant to Md.Ann.Code (1957, 1983 Repl.Vol.), Art. 66B, § 4.08(a). In Bd. of County Comm’rs v. Stephans, 286 Md. 384 , 408 A.2d 1017 (1979), we so held, and we reaffirm that holding today. While Cardón has correctly stated the law, its error lies in applying that law to these facts. In this instance, the validity of comprehensive rezoning was not attacked; the attack was made upon the validity of a local zoning ordinance.

The Circuit Court, however, determined that, despite the Commissioners’ expressed intent, comprehensive rezoning had occurred. This is not the same as a procedure in which the comprehensive plan itself is directly attacked. Therefore, Cardon’s argument has no merit. Ill Comprehensive Rezoning Having established that the Department may intervene and raise the validity of the local zoning ordinance, we next review the ordinance itself.

The Department argues that § 1-19-67 of the Frederick County Code is invalid because it conflicts with the State enabling law, Md.Code (1957, 1983 ⁸⁷ Repl.Vol.), Art. 66B, § 4.05(a), and the precedents established by this Court in interpreting that law. Section 1-19-67 was enacted in 1977 at the same time that the Commission repealed and re-enacted the zoning ordinances for the entire county. The repeal and re-enactment has been characterized by Cardón as a zoning map update and by the Department as a comprehensive rezoning. Section 1-19-67 states that change must be measured from 1959.

See footnote 2 of this opinion. By its express language, then, the Frederick County Code did not limit the Commissioners to considering change or mistake only from 1977, the date of the new zoning ordinance. The State enabling law, § 4.05(a), states in relevant part: “Where the purpose and effect of the proposed amendment is to change the zoning classification, the local legislative body shall make findings of fact in each specific case including, but not limited to, the following matters: population change, availability of public facilities, present and future transportation patterns, compatability with existing and proposed development for the area, the recommendation of the planning commission, and the relationship of such proposed amendment to the jurisdiction’s plan; and may grant the amendment based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification.” [Emphasis added.] We have held that the change or mistake rule, codified at § 4.05(a), means that a strong presumption of correctness attaches to original zoning and to comprehensive rezoning. See, e.g., Mayor of Rockville v. Henley, 268 Md. 469 , 302 A.2d 45 (1973); Chevy Chase Village v. Montgomery County, 258 Md. 27 , 264 A.2d 861 (1970). 5 ⁸⁸ The question, then, is whether the 1977 action was a comprehensive rezoning to which a strong presumption of correctness would normally attach.

In determining this issue, we turn to a recent opinion written for the Court by the late Judge Davidson, and relied upon below by Judge Bishop. In Mraz v.