Clark v. Wolman

Prescott, C. J., delivered the opinion of the Court. Judge Evans, in the Circuit Court for Anne Arundel County, upheld a decision of the Mayor and Aldermen of the City of Annapolis (the City) classifying (or reclassifying) appellees’ property, and the appellants, nearby property-owners, appealed. Three questions are presented: (1) do'appellants have standing to contest the City’s action; (2) did the failure of an of ⁵⁹⁹ ficial to comply, literally, with the ordinance provisions relative to notification invalidate the City’s action; and (3) was the evidence produced at the hearing such as to render the City’s decision to classify the property RBX not fairly debatable, and therefore arbitrary and capricious ? The appellees own about 33 acres located at Carrollton and Clairbourne Roads in the City of Annapolis.

It originally was zoned “agricultural” under the County’s zoning. Around June 1, 1964, the property was annexed to the City of Annapolis, which had, and has, no “agricultural” classification in its zoning ordinances. On July 20, 1964, appellees petitioned the City for an RBX classification (to be developed with garden apartments, with parking). A public hearing was conducted by the City, at which evidence was produced by the petitioners and the protestants.

After the hearing, the City adopted a resolution granting the petitioners’ request. Appellants then filed a bill of complaint in the Circuit Court seeking to have said resolution set aside as being “unconstitutional, illegal and void.” After due consideration, Judge Evans, as stated above, upheld the City’s action and this appeal followed. More facts will be given under the individual contentions presented. I The appellees argue that appellants have no standing to prosecute this appeal because none of them is a resident or taxpayer in the City, although they own property “contiguous to the property sought to be rezoned * * They contend that residents and taxpayers of one political subdivision have no right to challenge a zoning ordinance of another political subdivision.

For the purposes of this appeal, we shall assume, without deciding, that appellants do have standing. II Appellants’ brief states “Section 26-59 (c) of the Code * * * of Annapolis provides that notice shall be sent to the property owners within 175 feet” of the subject property. The ordinance was not offered in evidence and is not included in the record extract. Appellees urge that the ordinance is not properly before us.

In the recent case of Strickler v. Board of County Commissioners, 242 Md. 290, 298 , we rather specifically cautioned ⁶⁰⁰ members of the bar that, ordinarily, ordinances which are to be relied upon shall be offered in evidence. However, in the view that we take of the case at bar, we shall extend, again, the warning, and assume, without deciding, that the ordinance is before us. Appellants’ argument here is rather technical and specious in nature. They claim that appellants Thomas D. Clark and Betty F. Clark, his wife, should have received written notice of the hearing by the City, and the failure to give them such written notice invalidated the City’s action.

However, they not only received constructive notice (by newspaper publication), but they also obtained actual and written notice from a property owners association. In addition, Mr. Clark saw the posted sign on the property sought to be classified, which also notified of the date of the hearing. As a matter of fact, Mr. Clark attended the hearing, where, according to his own admission, he was accorded the right to be heard, but made no protest. Mrs. Clark, although she had actual knowledge of the hearing stayed at home to look after the children.

The law, in its majesty, is not designed to require futile action or idle gestures. It is well settled that notification purposed to inform may be replaced by actual knowledge. 1 Merrill, Notice, 480. And this is especially so when the knowledge has been acted upon without reliance upon the notification’s absence or its defects. Ibid.; Cassidy v. Board of Appeals, 218 Md. 418 ; 2 Merrill, Notice, 384, 444.

In the instant case, the required notice to property owners within 175 feet was for the purpose of informing them of the hearing on the requested change. They had actual knowledge thereof and acted upon that knowledge. We hold that under the circumstances, Mr. and Mrs. Clark lost nothing from the failure to receive written notice of the hearing, and this failure did not invalidate the City’s action. Ill Judge Evans ably summarized the evidence, to which we make one or two slight additions, thus: “Jack L. Carr, Planning Director [who also recommended granting petitioners’ request], read a letter ⁶⁰¹ dated 21 September 1964 from the City Planning and Zoning Commission to the Mayor and Aldermen wherein the following is stated: “After hearing the presentation by the petitioners at its regular meeting of September 3, the Planning Commission met in executive session on September 15 and voted unanimously to recommend to the Mayor and Aldermen that the request for reclassification be approved.

The following reasons were set forth in support of this recommendation: “Annapolis has, over the past two or three years, experienced changes in its growth characteristics such that a pattern of mixed single-family and multi-family residential areas has been found to be complementary. This is particularly the case where multi-family ‘garden apartments’ have been introduced into relatively self-contained, undeveloped areas which do not lend themselves readily to extended single-family unit subdivision. These growth characteristics are certainly evident in the fifth and sixth wards of the City where there are substantial tracts of otherwise by-passed land severed by a peripheral street circulation system and by community facilities and municipal services of more than sufficient capacity to absorb the additional service required of them. “Mr. Edmund W. Dreyfus, an architect and part owner of the tract being discussed, then presented a schematic plan of the proposed apartment group showing a density of 16 units per acre. When asked about the proposed price range, Mr. Dreyfus answered, ‘Well, we feel that this project being located as it is, adjacent to a golf course and a very low density occupancy area, will command a higher rental than anything to my knowledge that now exists in the Annapolis area.’ Mr. Dreyfus further stated