Howard County v. Bay Harvestore System, Inc.

WEANT, Judge. Initially we point out that because appellee has dropped its request for the rezoning of 4.45 acres of land from the R Zoning District to the B-2 Zoning District of Howard County, the precipitating cause for this litigation no longer exists. Nonetheless, we feel obliged to perfect this appeal because of the practice of the Zoning Board of Howard County in allowing its members to participate in decisions of that Board when such participants were not present during the actual hearing on the subject matter. While this may now be considered a moot case, we are not constitutionally prohibited from deciding it.

Reyes v. Prince George’s County, 281 Md. 279, 292 , 380 A.2d 12, 23 (1977). Consequently, for the reason that the action complained of herein is likely to reoccur, we deem it advisable to render a decision thereon even though a dismissal might be authorized under Rule 1035 b 8. On 28 April 1982, the Howard County Zoning Board denied Bay Harvestore’s petition for the rezoning of a 4.45 acre parcel. Bay Harvestore appealed the Board’s decision to the Circuit Court for Howard County (Nissell J., presiding).

Following a hearing on 8 April 1983, the court held that the Zoning Board’s ruling was invalid because members of the Board who did not attend the actual rezoning hearing (but who had reviewed the record) participated in the decision to deny Bay Harvestore’s petition. The circuit court struck the Board’s ruling and remanded the case for a ²¹ rehearing in accordance with the Howard County Administrative Procedures Act and Zoning Board Rules of Procedure. Alleging that the circuit court’s interpretation and application of certain provisions of those acts were erroneous, the Board filed the instant appeal. In it they present one issue for our consideration: Is the Zoning Board of Howard County prohibited from permitting its absent members from later participating in a decision of the Board if the absent Board member becomes adequately familiar with the record of the hearing?

Bay Harvestore owned a 4.45 acre parcel of land located on the north side of Maryland Route 144 in Howard County. In September of 1981, Bay Harvestore filed a petition for a zoning reclassification with the five-member Board. Three of those five individuals were on hand at a 27 January hearing on Bay Harvestore’s petition. The Board denied the request in a written order dated 28 April 1982.

It stated that Bay Harvestore had failed to produce sufficient evidence of change, mistake or a denial of all reasonable use of the property in question to justify the requested rezoning. It was signed by three Board members, two of whom had been absent during the actual hearing but who certified that they had familiarized themselves with the record by listening to a tape recording of the proceedings. A dissenting opinion, in favor of granting the reclassification, was filed by two of the members who had sat at the January 27th hearing. Disgruntled by the Board’s decision, Bay Harvestore appealed to the circuit court.

On appeal Bay Harvestore alleged, among other things, that the method employed by the Board was unfair and illegal because only three of the five members attended the hearing and, of those three, two favored the reclassification while only one opposed it. That single member became the majority when she was joined by the two