Council of Chevy Chase View v. Rothman

MURPHY, Chief Judge. Chevy Chase View is a special taxing district in Montgomery County created by the General Assembly of Maryland by ch. 541 of the Acts of 1924; the substance of that act, with amendments, is now codified as ch. 64 of the Montgomery County Code (1984), §§ 64-1 through 64-11. Section 64-10(a), in its present form, empowers the council of Chevy Chase (the council), subject to the approval of the County Council of Montgomery County (the County Council), to adopt “such regulations with respect to dumping of garbage, sanitation, erection of buildings, tearing up of streets, operation of vehicles, removal of snow and ice or other police or health matters as the council deems necessary for the welfare and government of Chevy Chase View. ⁶⁷⁶ The council also is empowered to adopt reasonable and proper penalties for violations of the regulations governing Chevy Chase View; and the council may, in addition to enforcing such regulations by criminal prosecution, bring suit in the circuit court of Montgomery County, in the name of the council of Chevy Chase View, for which purpose said council shall be deemed a body corporate, to obtain a decree, order or judgment of that court compelling, by injunction or otherwise, compliance by any person with such regulations.” 1 (Emphasis added.) Approval to implement the provisions of § 64-10(a) was initially given in 1925 by the then governing authority of Montgomery County (the County Commissioners) when it approved what is now § 13(c) of the Chevy Chase View “Building Regulations”; that regulation provided: “It shall be unlawful for any person or persons to erect any building or to make any material additions or alterations to any existing buildings, except under the following conditions: * * * * * * No part of any dwelling, including a built-in garage, shall be erected within fifteen (15) feet of a sideline or within twenty-five (25) feet of the rear line; and no garage, shed or other outbuilding which is not built-in, shall be erected within less than seven (7) feet of a side or rear line.” This minimum building setback restriction was enacted pursuant to the council’s purported authority under § 64-10(a) to adopt regulations for the “erection of buildings.” It has remained, virtually unchanged, as a part of Chevy Chase View’s Building Regulations since its original enactment in 1925. 2 ⁶⁷⁷ I. In May of 1989, George Rothman and Connave Partnership (Rothman) applied for and was granted a building permit by Montgomery County to construct a house on property within Chevy Chase View. During the early stages of construction, the council advised Rothman that he was in violation of § 13(c)’s setback regulation.

When Rothman refused to stop construction, the council, on July 21, 1989, sought to enjoin the claimed violation by suit filed in the Circuit Court for Montgomery County. Rothman moved to dismiss the complaint, alleging that the minimum setback regulation of § 13(c) constituted a zoning regulation which the council was not authorized to enact; that it conflicted with the less restrictive building setback provisions of the Montgomery County zoning Ordinance and was therefore invalid; and that in any event building setback restrictions have nothing to do with the “erection of buildings,” within the contemplation of § 64-10(a). In response to Rothman’s motion, the council acknowledged that it is without authority to adopt zoning regulations. It maintained, however, that § 13(c) is not a zoning restriction but is a building regulation adopted with the express approval of the County Council, pursuant to authority vested in the council under § 64-10, to regulate “the erection of buildings ... or other police or health matters as the council deems necessary for the welfare and government of Chevy Chase View.” The council argued that both zoning ordinances and building codes may regulate the erection and location of buildings to ensure the provision of sufficient light and air, and to reduce fire hazards, and that setback restrictions may be adopted either as part of a zoning ordinance or as part of a building code.

The council maintained that the Montgomery County Zoning Ordinance, ch. 59 of the Montgomery County Code, permits the regula ⁶⁷⁸ tion by a special tax district of some matters otherwise regulated through the county zoning ordinance. In this regard, the council noted that § 59-A-2.2 of the county zoning ordinance prescribes only minimum building setback requirements and expressly provides that these requirements shall not interfere with other ordinances or regulations prescribing stricter standards, as in Chevy Chase View. The court (Ruben, J.), after a hearing but without filing an opinion, granted Rothman’s motion to dismiss. The council appealed to the Court of Special Appeals; we granted certiorari prior to decision by that court to consider the significant issue of public importance presented in the case.

II

There are a number of special taxing districts in Montgomery County, most of which, like Chevy Chase View, were created in the early part of this century by public local laws enacted by the General Assembly of Maryland. These enactments authorized the districts to exercise various express powers within their respective areas and to implement them by the adoption of regulations, subject to the approval of the governing authority of Montgomery County. See, e.g., Montgomery County Code (1984), ch. 62 (Chevy Chase Section 3, also known as The Village of Chevy Chase); ch. 65 (Drummond); ch. 66 ("Friendship Heights” and “The Hills”); ch. 67 (Martin’s Additions); ch. 69 (North Chevy Chase); and ch. 70 (Oakmont). The legislation under which the special taxing districts function generally provided for popular election of members of their governing bodies.

Some, like The Village of Chevy Chase, were expressly authorized to impose real estate taxes and levy assessments for improvements upon property within their respective districts for the purpose of maintaining roads, sidewalks, and similar purposes, and to utilize all funds authorized to be collected for their legislatively mandated purposes. More specifically, in Chevy Chase ⁶⁷⁹ View, § 64-6 provided that the funds so collected could be used, inter alia, for the removal of snow, ashes, garbage, and other refuse and “for enforcing such building, sanitary and other regulations for the welfare and government of Chevy Chase View as the council may prescribe in accordance with § 64-10.” That section, as earlier noted, authorizes Chevy Chase View to adopt regulations with respect to “dumping of garbage, sanitation, erection of buildings, tearing up of streets, operation of vehicles, removal of snow and ice or other police or health matters.” (Emphasis supplied.) Virtually this same provision is included in the enabling legislation in effect in the Village of Chevy Chase, Friendship Heights and The Hills, Martin’s Additions, North Chevy Chase, and Oakmont. Purporting to act in pursuance of the powers vested in it by the General Assembly, and first approved by Montgomery County’s governing authority in 1925, the council of Chevy Chase View adopted a number of regulations. In addition to § 13(c)’s regulation of building setback lines, other regulations enacted by the council under the caption “Building Regulations” required that all structures within the district be built and used only for one-family residential purposes; other regulations imposed certain parking requirements and prohibited obstructions and excavations upon sidewalks or in parking areas within designated time periods.

Regulations of Chevy Chase View adopted under the heading “Public Service and Police Regulations” made it unlawful to disturb the peace by discharging firearms; to disturb public meetings; to loiter; to obstruct members of the council in carrying out their duties; to leave glass on the roads; to litter in the area; and to deface street signs. The regulations of these special tax districts are contained in vol. 3 of the Montgomery County Code (1984), Appendix M, at 11295—11377. In 1924 when the General Assembly created Chevy Chase View, and in 1925 when the County Commissioners of Montgomery County first approved Chevy Chase View’s regulations, Montgomery County had no authority to zone ⁶⁸⁰ and had not enacted a comprehensive building code. Thereafter, by ch. 448 of the Acts of 1927, the General Assembly created the Maryland-Washington Metropolitan District, embracing parts of Montgomery and Prince George’s Counties, and placed it under the jurisdiction of the Maryland-National Capital Park and Planning Commission.

Section 4 of that Act required the Commission to make a plan for the physical development of the Metropolitan district, including a zoning plan for the control of the height, area, location, and use of buildings, including the power to establish building setback lines. It authorized the County Commissioners of Montgomery County, sitting as a district council and acting within the provisions of the Act, to restrict the “location of buildings” and related matters. Section 21 of the Act provided that if any of the regulations adopted by the County Commissioners imposed more stringent standards than other existing state or local laws, the former would prevail. Section 22 of the Act specifically dealt with the establishment by the County Commissioners of building setback lines and provided that if any such regulations adopted by the County Commissioners were more stringent than those required by other laws, including “other local regulations,” the former would prevail.

Chapter 703 of the Acts of 1927 authorized the County Commissioners of Montgomery County to make rules and regulations for the construction of buildings and the employment of a building inspector. This Act provided authority to enact a building code but contained no “conflict” provision with other existing laws. 3 Pursuant to ch. 448 of the Acts of 1927, a zoning ordinance of the Maryland-Washington Metropolitan District in Montgomery County was adopted by the County Commissioners on March 6, 1928. It was repealed and reenacted, with amendments, on October 28, 1930. The ordinance, among other things, gave broad zoning powers to the ⁶⁸¹ County Commissioners, including the power to regulate building lines beyond which the foundation wall of a building could not project, to regulate the location of buildings, height, bulk, and areas of yards and open spaces.

Section X of the 1930 ordinance declared that, in interpreting and applying the ordinance, “the requirements contained herein are declared to be the minimum requirements for the protection of the health, morals, safety or welfare ... [and] shall not be deemed to interfere with or abrogate or annul or otherwise affect in any manner whatsoever any easements, covenants, or other agreements between parties.” This section further provided that where the ordinance “imposes a greater restriction upon the use of buildings or premises or upon the height of buildings or requires larger open spaces than are imposed or required by other ordinances, rules, regulations or permits, or by easements, covenants, or agreements, the provisions of this ordinance shall control.” By § 12 of ch. 599 of the Acts of 1933, the counties were vested with broad zoning authority, it being provided in § 26 that whenever the regulations made under the Act were more restrictive than required by any other statute or local ordinance, or regulation, the former would govern. Section 26 further provided that whenever the latter regulations were more stringent, they would be deemed supplemental and would govern under their own provisions. Chapter 714 of the Acts of 1939 amended the laws relating to the Maryland-Washington Metropolitan Regional District. By § 16 of that Act, the County Commissioners of Montgomery County were empowered to regulate the location, height, bulk and size of buildings and other structures, building lines, minimum frontages, depth and areas of lots, and percentages of lots which may be occupied, the sizes of yards, courts and open spaces, the density and distribution of population, the uses of buildings for trade, industry, residence, and other purposes.

It was also provided in § 17 of that Act that the County Commissioners could “regulate the erection ... and uses of buildings.” Section 18 provid ⁶⁸² ed that the regulations enacted by the County Commissioners, consistent with the Act's provisions, if more restrictive, would prevail over any state or local regulations. By ordinance dated September 30, 1941, enacted by the County Commissioners of Montgomery County pursuant to ch. 714 of the Acts of 1939, the county’s 1930 zoning ordinance was reenacted with amendments. The ordinance contained detailed zoning regulations governing, inter alia, the erection and location of buildings, and of building setback lines. This ordinance contained no provision relating to conflicts with other laws, as did the earlier zoning ordinances.

By ch. 213 of the Acts of 1947, the General Assembly repealed the original 1924 Act creating Chevy Chase View; in its place, it enacted eleven new sections which largely tracked the substantive provisions of the repealed Act. No change was made in the language of § 64-10, which authorized Chevy Chase View to adopt regulations. In 1948, Montgomery County adopted a Home Rule Charter and became subject to