Cassidy v. Baltimore County Board of Appeals

Prescott, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Baltimore County, filed June 13, 1958, affirming an order of the County Board of Appeals of Baltimore County (Board) granting the appellee, Baltimore Gas and Electric Company, (hereinafter referred to as the “Gas and Electric Company” or the “Company”) a special exception subject to certain conditions and restrictions, which authorized the construction of a steam electric generating station and related facilities on Carroll Island Neck between Saltpeter and Seneca Creeks, in the 15th Election District of Baltimore County. I The first, and one of the principal, contentions of the appellant is an attack upon the jurisdiction of the Zoning Commissioner (Commissioner) who originally granted a special exception upon an application for reclassification, and the jurisdiction of the subsequent tribunals that considered the case. They argue that neither the Commissioner nor the Board of Zoning Appeals had authority, express or implied, to grant a special exception when no application had been made therefor, and when the petitioner had applied only for a change of classification and the notice to the public did not specifically mention a request for a special exception, but stated only that a reclassification was sought.

Counsel for all parties concede that they have been unable to find a case wherein this exact question has been decided, and we have found none. It has been stated so frequently and so generally that the failure of an administrative official or board to give a proper ⁴²² notice of a hearing, required by law, is fatal to the jurisdiction of the official or the board to conduct the hearing that it requires no citation of authority to support the proposition ; 1 hence, we must examine the notice and the proceedings to determine whether the Commissioner and the Board lacked jurisdiction to grant the special exception. No question is raised concerning the enabling legislation, a discussion of which will be found in Huff v. Bd. of Zoning Appeals, 214 Md. 48 , 133 A. 2d 83 ; so, we shall confine our consideration in this case to the notice and the Zoning Regulations. The notice given by the Commissioner was as follows: “Pursuant to petition filed with the Zoning Commissioner of Baltimore County for' change or reclassification from a R.6 Zone to a M. H. Zone of the property hereinafter described, the Zoning Commissioner of Baltimore County, by authority of the Zoning Act and Regulations of Baltimore County, will hold a public hearing in Room 108, County Office Building, 111 W. Chesapeake Avenue, Towson, Maryland: “On Wednesday, May 8, 1957, at 10:00 A.M. “to determine whether or not the following mentioned and described property should be changed or reclassified as aforesaid for Manufacturing Heavy to wit: (here followed a detailed description of the property) “Containing 138 acres of land, more or less, of which 6.8 acres is submerged land, as shown on ⁴²³ plat plan filed with the Zoning Department, being property of Baltimore Gas and Electric Company.

By Order of WILSIE H. ADAMS Zoning Commissioner of Baltimore County.” No claim is made against the sufficiency of the publication of the notice; the attack is based only upon the fact that the notice did not specifically name a request for a special exception. Section 500.2 of the Zoning Regulations provides, in part, as follows: “500.2—In cases in which the permit applied for shall be for a use not permitted under regulations then in effect, the Zoning Commissioner may entertain a petition for the reclassification of such property. Such petition shall be filed by the legal owner of such property on forms adopted by the Zoning Commissioner. * * * Upon filing of such petition, the Zoning Commissioner shall set a time for public hearing thereon and shall give notice of the time and place of such hearing by advertisement in a newspaper of general circulation in Baltimore County for at least fifteen days prior to the date of such hearing, and shall cause the property sought to be reclassified to be posted with an appropriate notice of such petition and the time and place of such hearing.” And section 500.5 states: “500.5—In cases of petitions for Special Exceptions under Section 502 of these regulations, the Zoning Commissioner shall receive such petitions in such form as he may prescribe. He shall hold a public hearing thereon after giving public notice of such hearing as above provided with respect to petition for reclassification.

After such a hearing he shall pass his Order granting or refusing such Special Exception.” ⁴²⁴ Thus it is seen that the notice required in cases of petitions for special exceptions is identical with that required for petitions for reclassification; and, nowhere in the regulations is it explicitly prescribed that the notice must contain the words “special exception,” in order to authorize the Commissioner to grant one. Professor Merrill has this to say concerning the sufficiency of notice in administrative procedure : “In the first place, I think we may say that the notification, to be effective, must clearly apprise the noticee that he is to defend his interests with respect to action yet to be taken rather than create in him the impression that appearance on his part is futile because a final decision already has been achieved. But, the monition must be read by the noticee in the light of the provisions of the law under which it is given, and in that light statements may appear clearly to relate to contemplated action despite some awkwardness of phrase. “In the second place, the notification must indicate the authority under which the administration is acting and the facts which bring the matter within its jurisdiction. A monition of a proceeding of one character may not be used as the foundation for action of a different sort, though it may bear some relation to the subject of the original hearing.

The notification is adequate if it fairly informs the noticee of the nature of the proceedings and the capacity in which he is required to appear and answer. “Finally, and here is the heart of the requirement of notification in administrative proceedings, the noticee should be apprised clearly of the character of the action proposed and enough of the basis upon which it rests to enable him intelligently to prepare for the hearing. If this minimum requirement is met, the notification is adequate, no matter how much it may fall short of the standards of pleading in judicial contests.” 2 Merrill, Notice, Sec. 796. ⁴²⁵ The Board, in its able opinion, in answering the protestants5 argument that different standards of proof apply to petitions of reclassification than do to special exceptions and that constitutional requirements concerning notice, therefore, had not been met by advertising and posting for a reclassification, pointed out that all matters of proof which must appear to support a special exception case, plus either a showing of error in the original zoning or a substantial change in neighborhood conditions, must be established in a reclassification case. It cited as authority the case of Price v. Cohen, 213 Md. 457 , 132 A. 2d 125 , where a reclassification was denied because a situation detrimental to public safety and welfare existed. The Board, therefore, held that the notice of the attempt to reclassify was sufficient to meet the constitutional need of notice, as well as that required by Sec. 500.5 for granting the special exception.

It stated, however, that it would not make a similar ruling if the situation were in reverse, namely, had the notice been for a special exception and a reclassification granted. Judge Raine held likewise, and pointed out, from a practical point of view, that everybody properly before his court had ample and adequate notice of what the Board was to consider, calling attention to the fact that the hearings before the Board extended over many months. We agree. AVe think the notice in this case was, at least, a substantial compliance with the requirements of all of the Zoning Regulations and those enumerated by Professor Merrill, supra.

We can see no logical reason for, or salutary purpose to be served by, holding that upon a hearing of a petition for a reclassification of property, after proper notice, the Commissioner is limited to either a granting or denial of the reclassification. The notice in this case notified the public that the petitioner was seeking a reclassification of its property to the lowest, i.e., the least restricted, category of zoning in Baltimore County. This certainly apprised the public “clearly of the character of the action proposed and enough of the basis upon which it rest(ed) to enable55 them to “intelligently prepare for the hearing.” Anyone who attended ⁴²⁶ the hearing prepared to defeat the above request would likewise have been prepared to defeat the grant of a special exception, as pointed out by Judge Raine and the Board. As the matter is not before us, we express no opinion on the statement of the Board that had the petition been for a special exception and a reclassification granted, its decision would have been different.

We are fortified in this conclusion by the closeness with which petitions for reclassification and special exceptions are dealt with in the Zoning Regulations; that the method of notice required for each is identical; that it is the recognized practice in Baltimore County and conceded in this case that a petition for each may be filed at the same time and a joint hearing held thereon; and in Tyrie v. Baltimore County, 215 Md. 135 , 137 A. 2d 156 , we held that where a petition for a reclassification was denied, the Commissioner could not entertain a petition for a special exception under Sec. 500.12 until eighteen months had expired. Moreover, had the Commissioner granted the petition for a reclassification and the protestants appealed to the Board, it is certain that under the provisions of Section 501.7, 2 the Board would have had the power to have granted the special exception; thus, we would have ended with the same result from the same notice. The cases of Smith v. F. W. Woolworth Co., 111 A. 2d 552 (Conn.), and Kane v. Board of Appeals, 173 N. E. 1 (Mass.), cited and relied upon by the appellants, did not pass upon the question here presented. In the Smith case, the notice stated that a hearing would be held on an appeal from a decision denying the petitioner a “permit for the construction of an addition” to its present building, when, in fact, the hearing was on a petition to grant a variance which, as granted, materially affected the protéstanos rights.

In the Kane case, the petition was that the board vary the application of the ordinance in order that the landowner might erect a gasoline fill ⁴²⁷ ing station on his lot, property zoned for residential purposes. The notice declared that the petitioner was “asking for a variance” of the ordinance, not a variance of its application, and that the request of the petition was for such “variance * * * as applied to the erection or alterations in a proposed building.” It was held that the notice was defective: that from it, alone, one could not determine with reasonable certainty whether the petition was to the end that a new building be permitted to be erected or an old one altered; and it contained no intimation of the use which the building, new or altered, was to be put. Since the appellants contest the jurisdiction of the Commissioner or the Board to grant the special exception, we shall examine the regulations to see if they exceeded their authority. At this time, we will limit our consideration to the question as to whether the regulations permit the granting of a special exception for a “steam generating plant and related facilities” to a public utility in a R.6 Zone, Residence, One and Two Families, under any circumstances.

Section 502 authorizes the Commissioner, subject to an appeal to the Board, to grant permission for “uses (of land) listed as Special Exceptions.” Section 209.3 permits the granting of special exceptions in R.6 zones for “public utility uses other than those noted in section 200.11.” (The public utility services listed in 200.11 are such as telephone and telegraph lines, electric