Carole Highlands Citizens Ass'n v. Board of County Commissioners

Henderson, J., delivered the opinion of the Court. This appeal in a zoning case is from the order of the trial court dismissing two petitions for review filed May 15, 1959, challenging resolutions of the County Commissioners of Prince George’s County, sitting as a District Council for that part of the Mary land-Washington Regional District within Prince George’s County. The actions taken involved the reclassification of a large lot owned by William Cohen, by dividing it in two and changing the front portion from R-55 (one-family, detached residential) to C-2 (general commercial), and the back portion from R-55 (one-family, detached residential) to R-18 (multiple family, low density), respectively. In the court below the reclassifications were challenged on the grounds that they constituted “spot zoning”, and were arbitrary and capricious because of a lack of proof of original error or change of condition, but the only contention pressed on appeal is that the reclassifications were conditional and in violation of the uniformity provisions of the zoning laws and ordinance.

At the argument it was suggested by counsel for the appellees that the County Commissioners derived their zoning powers from section 1124 of the Code of Public Local Laws of Prince George’s County (1953 Ed.), which, by reference, adopts those powers conferred by Art. 66B of the general law. It would seem, however, that this section, and other pertinent ⁴⁶ sections of the local Code, were expressly repealed by Chapter 780, Acts of 1959, effective April 28, 1959, when new sections dealing with the powers and duties of the Maryland-Washington Regional District were adopted in a recodification. We think the applicable sections are now sections 75, 76, 79, 85, 86 of Chapter 780. Generally, it may be said that the zoning powers in this District are derived from the local law, but supplemented by the general law, Art. 66B, where there is no inconsistency.

Under sec. 76, supra, the local law requires that all regulations (including use regulations) “shall be uniform for each class or kind of building throughout any district or zone * * The language is virtually identical with that contained in Code (1957), Art. 66B, sec. 2. Sec. 79 (d) of the local law defines “amendment” to include any change in the zoning map, and “regulation” to include any “restrictions * * * limitations * * * and prohibitions.” In Resolution No. 67, under attack, the County Commissioners, in reclassifying the westerly portion of lot 7, containing some 4.83 acres fronting on New Hampshire Avenue, from R-55 to C-2, made the newly-permitted commercial use “Subject to * * * the specific agreement made with Mr. Blair Smith, attorney for the petitioners, relative to the location and operating time of the swimming pool and the prohibition against the erection of a gasoline station on the premises zoned C-2.” It is conceded that under the Zoning Ordinance for that part of the Maryland-Washington Regional District within Prince George’s County, sec. 21.1 provides that an automobile filling station is permitted without special exception in a C-2 zone. In Resolution No. 68, the Commissioners in reclassifying the easterly portion of lot 7, containing some 4.45 acres from R-55 to R-18, did not specifically impose any conditions or restrictions, but it seems clear from the record that the action taken was dependent upon the action in No. 67. In his testimony Mr. Smith, counsel for the owner of lot 7, stated that his client wanted to “put up this motel * * * [and not] anything but this motel, so I offer this contract to the Board of County Commissioners.” He then read a form of contract reciting that William Cohen desired to erect a modern luxury ⁴⁷ motel and apartments and agreed to construct “in addition to the Motel units, a first-class restaurant, three community rooms to be used for civic and social purposes, a regulation swimming pool capable of being converted into a facility for ice skating during the winter months and that said facilities will be shared with residents of the community on a membership basis.” There followed agreements as to the type of apartments that would be constructed on the rear portion of the lot, the time within which work would be