Clayman v. Prince George's County

Barnes, J., delivered the opinion of the Court. In this appeal, Lee H. dayman and Alan B. Mackall, the appellants, seek the reversal of an order, dated November 11, 1971, of the Circuit Court for Prince George’s County (Ralph W. Powers, J.), affirming the action of the Board of County Commissioners for Prince George’s County, sitting as a District Council (District Council), one of the appellees, in granting the application (No. A-7885) of R. Warren Amman, et al., the remaining appellees, for the rezoning of 6.3545 acres of land in Prince George’s County from the R-R zone (Rural Residential) to the C-2 zone (General Commercial). The land involved in the requested rezoning consists of 7.0645 acres of land in Prince George’s County located on the east side of Piscataway Road, north of Wind-brook Drive. It fronts 771.47 feet on Piscataway Road and 574.30 feet on Windbrook Drive.

The Technical Staff of the Prince George’s County Planning Board after deducting .71 acre of land for a right-of-way, leaving 6.3545 acres for the proposed C-2 use, recommended that the application for rezoning to the C-2 zone be denied because such rezoning would be contrary to the General Plan adopted in January 1964; there could likely be some delay in the completion of the necessary water and sewer facilities; there had been no mistake in the original zoning or a change in the character of the neighborhood since the original zoning; and any further use of land for commercial facilities should be where provided in the General Plan, which locations were far more advantageous than the subject property located, as it was, at the intersection of only an arterial and a major road. ⁴¹² The Planning Board, however, did not accept the recommendation of the Technical Staff, but on May 21, 1969, recommended approval of the requested rezoning upon three conditions, i.e. (1) the establishment of a 50-foot buffer along the north property line; (2) that landscaping should be provided along the frontage of Piscataway Road and Windbrook Drive to protect the residential development across these roads; and, (3) that the landscape plan be reviewed by the Planning Board. The reasons for its recommendation of approval of the granting of the application, subject to the conditions mentioned, were (1) it is on the corner of two major roads; (2) it is centrally located to serve as a neighborhood shopping center for the developed area around it; and, (3) the applicant has demonstrated a need. Commissioner Malzone dissented substantially upon the reasons for disapproval set forth in the Technical Staff report.

After hearings on September 9 and October 9, 1970, at which the applicants offered expert and other testimony and exhibits and the protestants offered evidence in opposition and submitted various written protests, the District Council on October 28, 1970, approved the application with three conditions, i.e. (1) a 20-foot buffer strip shall be established along the north property line; (2) landscaping shall be provided along the frontage of Wind-brook Drive to protect the residential development across these roads; and, (3) the landscape plan should be reviewed by the Planning Board, subject, however, to the applicants’ acceptance of these conditions. The protestants, Clayman, et al., on November 30, 1970, filed their request to the District Council for reconsideration based on the reasons advanced by them in this appeal; but their request was ignored. The applicants filed their acceptance of the rezoning conditions on December 23, 1970; and the District Council took final action to approve the conditional rezoning on the 2nd day of February, 1971, setting forth findings of fact and conclusions.

In these, the District Council determined that the “neighborhood” of the subject prop ⁴¹³ erty was “the market area of the proposed shopping center.” The District Council also found that within this neighborhood there had been changes indicative of increased density and urbanization. Sewerage became available to the emerging residential subdivisions; Piscataway Road is to be widened; population has increased substantially; traffic has increased on Piscataway Road; and Windbrook Drive is to be extended to Floral Park Road and Thrift Road; and, the applicants had established “a definite need for a shopping center in the area.” The District Council concluded that “due to the substantial changes and change in character of this neighborhood that commercial use is now justified.” A notice of appeal was duly noted and, on January 18, 1971, the protestants, dayman and Mackall, filed their petition for review in the Circuit Court for Prince George’s County, setting up many grounds of alleged error. In Paragraph 5 of the petition for review, the petitioners alleged that they were “persons and taxpayers in Prince George’s County Maryland, and own property in the general area of the property that was the subject of Zoning Map Amendment Petition No. A-7885.” They allege that their homes and properties will be reduced in value and their enjoyment of their respective properties gravely impaired if the rezoning is allowed to stand. They further allege that each of them is a person qualified to appeal “pursuant to Article VII of the Prince George’s County Charter and pursuant to Section 59-85(e) of the Public Local Laws of Prince George’s County, Chapter 898, 1965 Laws of Maryland).” The answer of the County to the petition for review denied the allegations of Paragraph 5 of that petition.

The applicants, on February 16, 1971, filed a motion to dismiss the appeal on the ground that it was prematurely filed, the final action of the District Council not having occurred until February 2, 1971, and further that one of the applicants, William V. Meyers, was only acting as agent and attorney for the owners of the subject property, had no other interest in it, and accordingly the ap ⁴¹⁴ peal should be dismissed as to him. Replies to this motion to dismiss were filed by the petitioners and the County and Judge DeBlasis denied the motion to dismiss on April 29, 1971. On May 4, 1971, the applicants filed their answer to the petition for review, denying the allegations of Paragraph 5 of that petition and affirmatively alleging that the petitioners were not aggrieved within the provisions of § 59-85 (e) of the Public Local Laws of Prince George’s County, and that Chapter 713 of the Prince George’s County Charter (the Charter) was not applicable at the time of the hearing before the District Council ; and, in any event, there was no evidence that the petitioner Mackall was a taxpayer and was, therefore, not “a person of record, as defined in § 701 (e) of the Charter,” and, if so held to be such, § 713, purporting to expand the right of appeal to all taxpayers in any zoning case without requiring proof of interest in the case, “is invalid and unenforceable.” It was also alleged that petitioner dayman was in no sense a party to the case, he merely being a spokesman for the opposition and, if deemed to be a party, was in no manner aggrieved by the decision of the District Council. The County, on May 27, 1971, filed an elaborate memorandum in opposition to the memorandum theretofore filed by the petitioners.

No point was raised or argued in regard to the standing of the petitioners to take the appeal. On September 29, 1971, the applicants filed a reply memorandum adopting the County’s reply memorandum and advancing the argument that the petitioners were without standing to appeal, citing several Maryland cases. The matter came on for hearing before Judge Ralph W. Powers on October 1, 1971, and after argument was taken under advisement. Judge Powers, on November 11, 1971, filed his opinion and an order affirming the action of the District Council.

Judge Powers was of the opinion that it was fairly debatable that there were sufficient changes in the ⁴¹⁵ “neighborhood” to change its character and that the District Council could legally grant the application so far as the Maryland “change-mistake” rule was concerned. He rejected the contention of the petitioners and protestants that conditional zoning was not prohibited by the adoption of the new Charter for Prince George’s County inasmuch as this Charter became effective after the case was decided by the District Council. It will be noted that Judge Powers did not consider or decide any question in regard to the standing of the petitioners to take the appeal from the action of the District Council. He passed an order on November 11, 1971, affirming the action of the District Council, and not dismissing the appeal for want of standing to take the appeal.

In sum, the question was not “tried and decided” by the lower court. The County did not challenge the standing of the appellants to take the appeal from the action of the District Council to the lower court either in its brief or at the argument before us nor did the appellants argue the question of standing in their brief. The appellants raised a number of contentions on the appeal to us which they had raised and argued before the lower court, i.e., (1) that the action of the District Council was arbitrary, unreasonable and capricious in that (a) the applicants offered no sufficient evidence to establish the proper boundaries of the “neighborhood” of the subject property and (b) made no showing of changes in the