Grooms v. LaVale Zoning Board

Davidson, J., delivered the opinion of the Court. On 26 November 1973 the appellee, LaVale Zoning Board (Board), enacted a resolution and order which amended the zoning map of the LaVale Zo ning District, originally enacted in 1958. 1 The adoption of the resolution was preceded by a “study” of the entire LaVale Zoning District comprised of some 13,700 acres of land, public notice initially given on 22 June 1973 and two public hearings held on 9 July and 20 October 1973. 2 Approximately 1,328 acres of land at ten different locations, designated as Sections A through J, were rezoned by the resolution. About 925 acres were reclassified from the Rural-Residential zone (agricultural uses, small shops, dwellings) to the Residential A zone (family dwellings, apartments, churches, home occupations), while 414 acres were transferred from the Rural-Residential classification to Commercial A (retail businesses, dwellings). The reclassification approximately doubled the amount of Commercial A land available in the LaVale Zoning District.

Included in the commercial reclassification were approximately 84 acres of land, designated as Section J, owned by the appellee, Cumberland Mall Associates (owner), which were reclassified from the Rural-Residential to the Commercial A zone and which constitute the focal point of this proceeding. Proposed for construction on this site was a regional shopping center, comprised of an enclosed mall of approximately 500,000 square feet, to accommodate over 50 stores. Some property owners living in single-family residences located on lots within Section J, itself, as well as ²⁶⁹ other neighboring property owners (protestants) opposed, among other things, the adoption of that portion of the resolution affecting Section J. They appealed the grant of the reclassification to the Circuit Court for Allegany County where Judge James S. Getty entered an order affirming the action of the Board insofar as it affected Section J. This appeal followed. Here three questions are raised: 1) Do the protestants have standing to appeal? 2) Was the action of the Board invalid because two of its members had not been elected as required by law? 3) Did the map amendment adopted by the resolution of 26 November 1973 constitute comprehensive rezoning which bore a substantial relationship to the public health, comfort, order, safety, convenience, morals and the general welfare?

I The Board’s contention that the protestants lack standing to bring this appeal because they failed to allege and prove that they were aggrieved parties is without merit. Section 360 of the Allegany County Code provides, in pertinent part: “Any person, persons, taxpayer or officer of the District, jointly or severally aggrieved by a decision of the LaVale Zoning Board may, within thirty days after the filing of such decision in the office of the Zoning Board, appeal to the Circuit Court for Allegany County.” Thus, under the applicable local statute, a condition precedent to be met before a person has standing to appeal the Board’s decision to the Circuit Court for Allegany County is that he must be aggrieved by the decision. The principles evolved to determine when a person is “aggrieved” by the decision of a zoning body were articulated in Bryniarski v. Montgomery County Board of ²⁷⁰ Appeals, 247 Md. 137, 143-46 , 230 A. 2d 289, 294-95 (1967). Among them are the following: “2.

In cases involving appeals under the provisions of a zoning ordinance: (a) It is sufficient >.f the facts, constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication. Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966). (b) An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved. . . . “4.

If any appellant is a person aggrieved, the court will entertain the appeal even if other appellants are not persons aggrieved. See e.g., Marcus v. Montgomery County Council, supra [ 235 Md. 535 , 201 A. 2d 777 (1964)].” Applying these principles to the instant case produces a clear result. The petition was filed by seven named individuals, constituting the- Committee of Concerned Citizens Opposing Rezoning. It alleges that it is brought by the petitioners on “their own behalf” as “residents of the LaVale area” as well as on behalf of “all the other citizens of the LaVale zoning area.” One of the named individual appellants is Ronald C. Gordon, who testified at one of the public hearings before the Board.

Exhibit 12A, a petition in opposition to the reclassification of Section J, which was introduced into evidence at the second public hearing, indicates that Gordon is a property owner residing in a ²⁷¹ single-family residence located within the original boundaries of Section J and in close proximity to the land finally reclassified. 3 Although there was conflicting evidence in the record on the question of special damages, the trial court implicitly determined that the protestant was aggrieved. We agree. Under the present circumstances the facts constituting his aggrievement appear in the petition for appeal by necessary implication and the appeal must be entertained. II The protestants’ contention that the action of the Board was invalid because two of its three members were not elected is also without merit.

Section 359 of the Allegany County Code provides that the LaVale Zoning Board shall be comprised of three persons, each of whom is to be elected to serve a six year term. The first election was to be held in 1957 and the terms of office were arranged so that one expired in 1958, one in 1960 and one in 1962. Thereafter, every two years, one member of the Board was to be elected to serve a term of six years. Section 359 provides, in pertinent part: “(c) In the event of the removal from office of any member, or his failure to qualify, or his death in office, or for his inability to serve for any reason whatsoever, this subtitle shall not fail for want of a member of the Board, but in all such cases the Board of County Commissioners for Allegany County shall appoint a person to serve as a member of the Board to fill the unexpired term of the member of the Board.

In the event that the original Board cannot or is not for any reason whatsoever elected at the June 18, 1957, referendum and ²⁷² election, the Board of County Commissioners of Allegany County shall appoint the entire Board as aforesaid. . . . “(d) Oath of office. Before assuming the duties of office, each member-elect shall take the constitutional oath of office, which shall be recorded in the office of the Clerk of the Circuit Court for Allegany County.” (Emphasis added.) The record shows that one of the three members of the Board, a Mr. Heacox, was duly elected to a six year term in 1972. His status is not in question. Another of the Board members, Mr. Kenneth M. Wilson, was appointed to the Board in December, 1966, to fill the unexpired term of one John J. Rowan who resigned.

There was no evidence to show that Wilson failed to take the requisite oath. In 1968 no one filed for the office of member of the Board, and in March, 1969, the County Commissioners appointed Wilson for a full six year term. He thereafter took the requisite oath of office. The third member of the Board, Mr. Robert C. Moore, was appointed in September, 1969, to fill the unexpired term of Arthur W. German, who resigned.

He thereafter qualified for office by taking the requisite oath. In 1970 nobody filed for office of member of the Board and, on 12 January 1971, Moore was appointed by the County Commissioners to a full six year term on the Board. He thereafter took the requisite oath. Both Wilson and Moore openly and notoriously discharged the duties of Board members from the time they took office until the time of the enactment of the map amendment here in issue.

A de jure officer is one regularly and properly elected or appointed and qualified, and holding his office during a constituted term. 3 McQuillin, Municipal Corporations § 12.102 (3rd ed. 1973). A “de facto” officer has been defined as one in actual possession of an office under some colorable or apparent authority, who exercises the duties of the office under such circumstances of reputation and acquiescence by the public authorities and the public as is calculated to ²⁷³ induce people, without inquiry, to submit to or invoke his official action, supposing him to be the officer he assumed to be. Kone v. Baltimore County, 231 Md. 466, 471 , 190 A. 2d 800, 802 (1963); Reed v. President of Town of Northeast, 226 Md. 229, 243-44 , 172 A. 2d 536, 542 (1961); Buckler v. Bowen, 198 Md. 357, 369-371 , 84 A. 2d 99, 105-06 (1951). A “usurper” or “intruder” has been defined as one who has neither lawful title nor color of right to office.

Reed, supra, at 226 Md. 244 , 172 A. 2d 542 -43. Thus, a de facto officer is distinguished from a usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the office and assumes to exercise its function without either the legal title or color of right to such office. 3 McQuillin, supra, at §§ 12.102, 12.103. Color of right may consist of an election or appointment, holding over after the expiration of a term, or by acquiescence by the public for such a length of time as to raise the presumption of colorable right by election, appointment or other legal authority to hold such office. 3 McQuillin, supra, § 12.102; see Izer v. State, 77 Md. 110, 115 , 26 A. 282, 283 (1893). All of the official acts of a defacto officer, filling a dejure office, done in regard to public matters affecting the public interest, are, upon grounds of public policy and necessity, considered as valid and binding as if they had been performed by de jure officers.

Kone, supra, at 231 Md. 473 , 190 A. 2d 803 ; Reed, supra, at 226 Md. 246 , 172 A. 2d 543 ; Havre de Grace v. Fahey, 108 Md. 533, 538-39 , 70 A. 218, 220 (1908); Koontz v. Burgess, 64 Md. 134, 136 , 20 A. 1039 (1885); see Hetrich v. County Commissioners of Anne Arundel County, 222 Md. 304, 312 , 159 A. 2d 642, 646 (1960). A mere usurper does not acquire the status of a defacto officer and his acts generally are void unless and until he continues to act for so long a time as to afford a presumption of his right to act. Reed, supra, at 226 Md. 244 , 172 A. 2d 542 -43; Van Amringe v. Taylor, 12 S. E. 1001, 1007 (N.C. 1891); 2A Antieau, Municipal Corporation Law, § 22.01 (1974); 63 Am.Jur.2d Public Officers and Employees, § 499 (1972). Whnre there is a de jure office, all that is required to make an officer de facto is that the individual claiming the office ²⁷⁴ be in possession of it, performing its duties, and claiming to be such officer under color of right.

Since color of right may consist of holding over after the expiration of a term, one who is actually in possession of a public office, by virtue of holding over after the expiration of a previous official term, and who discharges the duties o:: such office, is' at least a de facto officer. Reed, supra, at 226 Md. 243 -46, 172 A. 2d 542 -43; Benson v. Mellar, 152 Md. 481, 487-92 , 137 A. 294, 296-98 (1927); 3 McQuillin, supra, § 12.102. It has long been recognized in this State, as elsewhere, that the public interest requires, in the absence of any provisions to the contrary, that public offices should be filled at all times, without interruption. Reed, supra, at 226 Md. 242 -43, 172 A. 2d 542 ; Benson, supra, at 152 Md. 491 , 137 A. 298 .

In accord with this principie the Court of Appeals has recognized that an elected or appointed officer may remain in office at the expiration of his term and is entitled to exercise the powers of the office until his successor qualifies, whether or not the statute creating the office so provides. Reed, supra, at 226 Md. 242 , 172 A. 2d 541 ; Walker v. Talbot County, 208 Md. 72, 79-80 , 116 A. 2d 393, 397 (1955); Benson, supra, at 152 Md. 491 , 137 A. 296 -97; Ijams v. Duvall, 85 Md. 252, 261-62 , 36 A. 819, 820 (1897); Ash v. McVey, 85 Md. 119, 130 , 36 A. 440, 442 (1897); Lynn v. Mayor and City of Cumberland, 77 Md. 449, 454 , 26 A. 1001, 1002-03 (1893); Robb v. Carter, 65 Md. 321, 335 , 4 A. 282, 284 (1886); Sappington v. Scott, 14 Md. 40, 54-55 (1859); Thomas v. Owens, 4 Md. 189, 221-22 (1853). Under a statute which specifically provides that officers shall continue to hold office until their successors lawfully qualify, incumbents who so continue and have qualified are de jure officers. Under a statute which does not specifically so provide, incumbents who hold over are de facto rather than de jure officers.

Claude v. Wayson, 118 Md. 477, 487-90 , 84 A. 562, 565-66 (1912); Smoot v. Somerville, 59 Md. 84, 88-89 (1882). Here it is evident that Board members Wilson and Moore were acting as de facto officers when they adopted the resolution amending the zoning map. Initially each one was properly appointed to the office to fill the unexpired term of ²⁷⁵ a resigned Board member, and each of them apparently took the requisite oath. Neither they nor any other person thereafter sought election or was elected to the office of member of the Board.

Thus, until the next elections, one to be held in 1974 and one to be held in 1976, no successor could qualify. From the time of their initial appointment until the time of the enactment of the map amendment, both Wilson and Moore were in possession of the office of a member of the Board and were performing the duties of that office openly, notoriously, and in full view of the public. Both of them were former incumbents, validly appointed and properly qualified, whose claim to office was based upon a right to hold over until the qualification of a successor, even though the applicable provisions of the Allegany County Code did not specifically so provide. Since the powers of de facto officers extend to the issuance of a zoning ordinance and a properly amended zoning map, and since the public acts of a de facto officer are valid and binding, the enactment of the resolution amending the zoning map was valid and binding, and, if not arbitrary and capricious, should be accorded full force and effect. 4 See Walker, supra, at 208 Md. 79 , 116 A. 2d 397 . ²⁷⁶ Ill We now reach the basic issue in this case which is whether the map amendment adopted by the 1973 resolution constituted a comprehensive rezoning and if so, whether it bore a substantial relationship to the public health, welfare, order, safety, convenience, morals and general welfare.

For a resolution of this question additional facts must be considered. Most of the 84 acre tract designated as Section J, comprising the focal point of this case, was the subject property of a previous individual map amendment application which requested reclassification from the Rural-Residential and Residential A zones to the Commercial A zone. After a hearing at which a group of residents in the surrounding area appeared to protest, the LaVale Zoning Board changed the property’s classification to Commercial A, thereby making possible the proposed construction of an enclosed shopping mall of approximately 500,000 square feet, accommodating over fifty stores. The Board premised its decision on a finding that there had been a substantial change in the character of the neighborhood since the original zoning in 1958.

The protestants appealed to the Circuit Court for Allegany County which concluded that the rezoning was unjustified because no legally sufficient evidence to establish a change in the character of the neighborhood had been adduced before the Board. The court reversed the Board’s decision. In Border v. Grooms, 267 Md. 100 , 297 A. 2d 81 (1972), the Court of Appeals affirmed the trial court. The protestants contend that the action of the Board in rezoning the entire LaVale District was arbitrary and capricious.

They maintain that the comprehensive rezoning was a subterfuge employed for the sole purpose of accomplishing a rezoning of the 84 acre tract of land located in Section J, which is the same site formerly proposed for a shopping center in Border, supra. They assert that the Board, in initiating the proposed extensive revision of the LaVale zoning map, was attempting to achieve indirectly through the device of comprehensive rezoning that which ²⁷⁷ they failed to achieve directly by way of the individual map amendment case. In support of their position they point out that the changes proposed by the reclassification of Sections A through 1 were inconsequential and essentially