Dal Maso v. Board of County Commissioners

Barnes, J., delivered the opinion of the Court. In this zoning appeal the ultimate question for decision is whether the Circuit Court for Prince George’s County (DeBlasis, J.) erred in passing an order on July 13, 1971, affirming the action of the Board of County Commissioners for Prince George’s County, sitting as the District Council (District Council), denying the rezoning application of the appellant, Joseph L. Dal Maso, to rezone 45.5607 ± acres of land having frontages on the south side of Good Luck Road and the west side of the Baltimore-Washington Parkway, located in the 19th Election District of Prince George’s County and sometimes known as the Dal Maso Tract (the subject property) . On October 7, 1968, the appellant, Dal Maso, filed his application with the District Council to rezone the subject property from the existing R-R (Rural Residential) zone to the R-10 zone (Multiple-Family, Medium Density Residential at the time of the initial application). 1 The Prince George’s County Planning Board on June 18, 1969, recommended denial of the requested zoning, but recommended to the District Council that approximately 29 acres of the subject property be rezoned to the R-H zone (Multiple-Family, High Rise Residential), with a ⁶⁹³ restriction that the number of dwelling units be limited to three hundred. The Technical Staff on August 2, 1968, had recommended that the R-10 zoning be denied but that about 15 acres of the subject property (that portion south of the senior high school and east of the proposed primary school) be rezoned to the R-T zone (Town House), and that the balance of the property be zoned R-80 (One-Family, Detached Residential).

Hearings were held on the application on March 21, June 20 and August 20, 1969, at which testimony was taken both in support of, and in opposition to, the granting of the application. The District Council on December 16, 1969, unanimously adopted a Resolution denying the application for the R-10 rezoning, but approving R-H zoning for approximately 27.61 acres of the subject property and set out certain findings of fact and conclusions of law. Three appeals were duly noted from this decision of the District Council. One of these appeals (Law No. 43,312) was dismissed by the circuit court (Robert B. Mathias, J.) on the ground that the appellant in that case, the City of New Carrollton, was not an aggrieved party.

An appeal to this Court was taken from this decision but was subsequently voluntarily dismissed by the City of New Carrollton. In the remaining two appeals (Law Nos. 43,323 and 43,325), counsel for the District Council filed motions to remand the cases to the District Council on the ground that the written findings of fact and conclusions of law did not comply with the requirements set forth by us for such findings and conclusions under the Prince George’s County Zoning Ordinance in Montgomery v. Board of County Commissioners for Prince George’s County, 256 Md. 597 , 261 A. 2d 447 (1970). Counsel for Dal Maso was not notified of the filing of the motion. The circuit court remanded the cases to the District Council “for the purpose of a new hearing.

The parties to this hearing may adopt any of the earlier testimony or may introduce new testimony, and the District Council may adopt new written findings and conclusions.” ⁶⁹⁴ The new hearings on the application were held on September 18, 29 and 30, 1970. Two of the three Commissioners who had sat in the original hearings sat in the new hearing, together with one