Hyson v. Montgomery County Council

⁵⁹ Prescott, C. J., delivered the majority opinion of the Court. Barnes, J., concurs in the result. Concurring opinion at page 77, infra. Appellants, apparently in an effort to be certain they have overlooked nothing that may aid them, have assigned 10 alleged errors some of which overlap.

I, II, III, IV and VI all relate to purported illegalities in the hearing before the Montgomery County Council, sitting as the District Council (Council) ; hence, in order to conserve time and space, we shall consider them collectively, and add facts, when and if desirable. I, II, III, IV and VI Like the replays of the “I Love Lucy” series, some of appellants’ contentions have been before this Court on a number of occasions: lack of due process in the hearing before the Council of June 10, 1964; failure by the Council to comply with statutory provisions; abuse of discretion by the Council in failing “to remove irrelevant and prejudicial” material from the record; and improper conduct by one member of the Council. Making these allegedly horrendous illegalities more specific, they boil down to a claim (a) that a hearing on a petition for reclassification is quasi-judicial in character, and, therefore, appellants were entitled, as a matter of right, to cross-examine the witnesses produced by the petitioner; (b) that Section 104-39 (b) of the County Code was violated, because the Council put a time-limit of one hour on each side at the hearing (although the record was left open for 10 days so that any interested person could supplement it); (c) that the Council erroneously considered exhibits of petitioner which showed possible or purported improvements to be erected on the subject property; (d) that the Council failed to comply with Section 72-84 of the local Code (1960) in not having a recommendation from the Maryland-National Capital Park & Planning Commission; and (e) that one member of the Council stated that a traffic situation referred to by a witness was “temporary” in nature. We consider first the most important question involved in the appeal: the alleged denial of due process at the hearing before the Council.

We think this question as posed necessarily includes a consideration of whether or not the existing statutes ⁶⁰ and/or regulations required that appellants be afforded the opportunity to cross-examine at the hearing. The hearing opened with Councilmen Wilson, Floyd, Hiser and Williams present, and Councilwoman Diggs came in later. Mr. Miller, representing the applicants, made a statement. He pointed out that he was not soliciting conditional zoning, but the owners had a long-term lease with the A. & P. Tea Company for a portion of the property in accordance with an exhibit subject, of course, to reclassification.

Mr. Parthemer, Assistant General Superintendent of the A. & P. Tea Company, testified his company had sought a suitable location to serve this community (the neighborhood of the subject property) for five years; he confirmed the lease in accordance with the exhibit, which was an architect’s drawing of a proposed building. Mrs. Davidson, an attorney representing the opponents, objected to this exhibit and was informed that she could object “when it comes time for the opposition.” After offering Mr. Eebling, a real estate expert and examining him, Mr. Miller asked: “Are there any questions of Mr. Lebling?” No questions were asked. The same procedure occurred with Mr. Ditto, another real estate expert. Other witnesses were offered and their testimony taken, but it is unnecessary to set it forth here.

When the opposition took over, Mrs. Davidson stated that she “would first like to request the right of cross examination on the material that has already been presented.” She was informed, “it hasn’t been the practice.” She proceeded to offer her witnesses and the case, at her request, was held open for 10 days to offer “additional evidence” in writing. (It is interesting to note that petitions opposing the reclassification were offered by the opponents containing many names. Quite a number of the signers were residents of the District of Columbia and even Virginia.) Although the usual time of rezoning hearings in Montgomery County is limited to J4 hour to a side, in this case one hour to each was granted. Mrs. Davidson offered much testimony and the meeting was adjourned at 10:50 p.m., with the record showing only one opposing person not being heard, a Philip Marcus, whose address was not given.

He was not offered by Mrs. Davidson, but seems to have been acting in an individual capacity. We were informed that his objections were reduced to ⁶¹ writing and filed within the ten days. The above, for our present purposes, is a sufficient statement of what occurred at the hearing. The appellants, as noted above, contend that the Council, at the hearing, was acting in a quasi-judicial capacity; therefore the hearing was required to be a “trial type” one, at which they were entitled, as a matter of right, to cross-examine the appellees’ witnesses.

The appellees counter by arguing that the Council was acting in a legislative, or quasi-legislative, capacity ; consequently the hearing required was not a trial-type one, and appellants were not entitled to cross-examination as a matter of right; and, even if they were so entitled, they had waived the same. As considerable uncertainties encompassed within the realm of these respective claims seem to exist, we deem it appropriate to give the contentions a somewhat thorough, even though rather lengthy, consideration. Before considering our present question specifically, we deem a few generalities appropriate. At the outset, we point out that the record does not present a clean-cut denial of the right to cross-examination.

There was no request to cross-examine any specific witness or witnesses, either at the time any witness was testifying, or when it came time for the presentation of the opposition. There were no questions propounded, or requested to be propounded, when Mr. Miller, who was conducting the proponents’ case, asked, “are there any questions of Mr. Lebling ?” And the same inquiry was made, with no questions asked, or requested to be asked, at the conclusion of Mr. Ditto’s testimony. These were experts offered by the applicants and certainly were two of their most important witnesses. The only reference to cross-examination was made after the applicants had concluded their case, and the opponents had begun theirs.

Also, the request when it came, “I would first like to request the right of cross-examination on the material (italics ours) that has already been presented,” cannot be said to be very specific in nature. It is a matter of common knowledge that witnesses at zoning hearings, generally, are not summoned, and are not required to remain until the hearing is concluded. There was no showing as to what witnesses of the proponents, if any, still ⁶² remained at the time the request was made, and, as previously-stated, no request to cross-examine any specific witness. We think the record, at most, discloses a partial, but very slight, denial of the right of cross-examination to the appellants at the hearing.

It is elementary that governmental bodies, tribunals, agencies, boards (and by whatever other appellations they may be known), and officials, in the performance of their public duties, exercise functions that are divided into three general categories: executive, judicial, and legislative. (As no question is here involved concerning executive powers, no further reference will be made thereto.) And functions, when they are not purely and completely judicial or legislative in nature, but have qualities or incidents resembling them, are referred to as quasi-judicial or quasi-legislative.- Up to the present time, no one has been able to delineate, with precision and accuracy, an exact formula for determining the line of demarcation between the differences between legislative and judicial functions. These differences, on occasions, are particularly difficult of determination when mixed, blended, or combined functions are given, and exercised by, the same official, board, or agency, 1 Davis, Administrative Law Treatise, §§ 1.09, 7.03, which is frequently the case. Compare Cooper, State Administrative Law, Ch. 1, Sec. 1.

(More will be said concerning this later.) And when the same official, board, or agency performs, in one proceedings, quasi-judicial and quasi-legislative functions, it is misleading and inaccurate to characterize the whole proceedings as judicial or legislative in nature. Davis, op. cit., 7.03. It should be carefully noted and remembered that the holding in any zoning or rezoning case, here or elsewhere, cannot be accurately appraised without a knowledge and consideration of the constitutional and statutory provisions and the local laws and zoning regulations prevailing at the time of the decisions, below and here. We know of no jurisdiction in Maryland having zoning where the laws and regulations are identical; hence each decision of this Court must be considered in the light of the laws and regulations of the jurisdiction from which the appeal emanated. ⁶³ This appeal comes from Montgomery County; consequently, our holdings herein must be limited to that county, except insofar as they also necessarily apply to other jurisdictions.

(a) We return to a consideration of our immediate questions. Apparently, Montgomery County in zoning matters has never acted under the authority given by Code (1957), Article 66B (this statement does not necessarily apply to incorporated cities in that county, a question not here involved). The county originally derived its zoning power by Ch. 448 §§ 20, et seq., of the Acts of 1927. These sections provided that the County Commissioners acting as a legislative body had a right to zone or rezone a certain portion of the county after a “public hearing.” It will not be necessary to trace the entire history of zoning in the county here; we shall set forth the pertinent provisions of the statutes and regulations prevailing at the time of the hearing involved herein later.

We have repeatedly stated and held that the actual acts of zoning and rezoning are legislative or quasi-legislative in nature. A few of the cases so holding are: Bishop v. Bd. of Co. Comm’rs, 230 Md. 494 ; Board v. Levitt & Sons, 235 Md. 151 ; Reese v. Mandel, 224 Md. 121 (adopting a comprehensive plan); Wakefield v. Kraft, 202 Md. 136 ; Md. Adv. Co. v. City of Baltimore, 199 Md. 214 ; Mandel v. Bd. of Co. Comm’rs, 238 Md. 208 . These cases are in full accord with the holdings elsewhere in this country and the text-writers.

We have no desire to recede from these holdings on the subject, and do not; on the contrary we reaffirm them. (Of course, the legislative authorities of the municipalities have no inherent or plenary authority to exercise the police power of the state; they merely exercise such police power as is delegated to them by the Legislature.) However, this does not mean that the Legislature (or the Council by regulation adopted pursuant to proper authority) cannot prescribe, within lawful and constitutional limitations, the mode of conducting the hearing on a rezoning application, cannot provide for the making of a record at such hearing, or cannot require that such an application “shall be determined on the basis of the evidence of record,” and shall be approved or disapproved on the merits. ⁶⁴ At the time of the hearing, June 10, 1964, the laws and regulations relating to Montgomery County provided that the Council shall hold “a public hearing” (Mtg. Cty. Code [1960], §§ 72-84, 104-39), at which “any interested party shall have the right to submit oral or written testimony,” and “a complete stenographic report * * * and a typewritten transcript thereof” shall be made.

Also that transcript, the petitioners’ application, the zoning map, and all exhibits were to be considered as parts of the record. And “evidence [offered at the hearing] which is immaterial, irrelevant, or unduly repetitious may be excluded.” And § 104-40 and the amendment thereto, Raws of Montgomery County, 1962, p. 143) the “application for a map amendment shall be decided on the basis of the evidence of record,” and approved or disapproved on the merits. (For the main part, these provisions seem to have become law in 1953. See Mtg.

Cty. Code (1955) §§ 107-38, 107-39.) Further, any “person aggrieved” was given the right to appeal to the Circuit Court which was granted the power to affirm the decision of the Council or to reverse such decision “as justice may require,” if it were “not in accordance with the law.” A further appeal was provided to the Court of Appeals. Code (Mtg. Cty. 1960), § 72-85.

In the light of these provisions, we must determine what is the type of public hearing which the Council was required to afford, and the nature of the functions exercised by the Council at such hearing, before the formal and final act of reclassifying the property or the denial of the application. It is clear to us, from the general law elsewhere and our previous decisions, that the provisions set forth above make it improper and inaccurate to characterize the whole proceeding at the hearing held by the Council when considering an application for reclassification and its action of denying or granting reclassification as quasi-legislative in nature or quasi-judicial in nature. The above provisions, without question, required the members of the Council to resolve disputed questions of adjudicative facts (as-contradistinguished from legislative facts or judicial action) concerning particular parties. Davis, op. cit., § 7.03; Board v. Levitt & Sons, supra.

(Professor Davis, in § 7.02, op. cit., states that adjudicative facts are “roughly” the ⁶⁵ kind of facts that go to a jury in a jury case.) And, when the Council was considering and determining these adjudicative facts concerning particular parties, it necessarily was performing a quasi-judicial function, even though its final action, in granting or denying the reclassification which was required to be based upon its findings of adjudicative facts, was quasi-legislative in character. A review of the previous decisions of this Court renders the above obvious. In Md. Adv. Co. v. City of Baltimore, 199 Md. 214 , the Court, referring to the action of the Board of Municipal and Zoning Appeals in approving or denying applications to erect billboards, stated: “The legal question here is whether this quasi-legislative and quasi-judicial determination was ‘an unreasonable, arbitrary, or unequal exercise of power.’ ” In Albert v. Pub.

Serv. Commission, 209 Md. 27 , the Court pointed out that, apart from statute, the necessity of a hearing in an administrative proceeding depends on the character of the proceeding and the nature of the interest of the person seeking relief. During the course of the opinion, the Court said: “The Commission in performing this function [determining the need for additional taxicabs] * * * acts in a legislative or an administrative-legislative capacity and not in a judicial or quasi-judicial capacity. Therefore, due process does not require a hearing.” This was true even though hearings were required to be held by the Commission under other sections of the law.

Compare El iason v. State Roads Comm., 231 Md. 257 . Also, in Schultze v. Montgomery Co. Bd., 230 Md. 76 (not a zoning case), the Court of Appeals said: “In so doing, the board is, of course, determining facts, and accordingly is exercising a quasi-judicial function. Many cases since Dal Maso v. County Comm’rs, 182 Md. 200 , * * * have made it clear that notwithstanding anything therein said, administrative bodies or officers may exercise such power. See, for example, Hecht v. Crook, 184 Md. 271, 277 , * * *; Heaps v. Cobb, 185 Md. 372 , * * *; and Heath v. M. & C. C. of Baltimore, 187 Md. 296 , * * In Board v. Levitt & Sons, supra, a zoning case with provisions of law in regard to hearing and determination on the ⁶⁶ record very similar to those of the instant case, we explicitly stated: “We have repeatedly held that the action of zoning or reclassification of zoning is a function that is legislative in nature.

However, this does not prevent the Council from making administrative findings of fact, drawing administrative inferences, and arriving at administrative conclusions and decisions, when hearing an application for rezoning, and the statute clearly anticipates such action. Cf. County Council v. Egerton, 217 Md. 234 . 1 Am. Jur. 2d, Administrative Law, § 92.

After making its administrative findings of fact, etc., the Council is then in a position to exercise its legislative function of granting or denying the petition for reclassification.” Also in Mamdel v. Bd. of Co. Comm’rs, supra, we said : “The appellants fail to distinguish, however, between the function of the Board as a party in an adjudicative proceeding (or in the language of the Administrative Procedure Act * * * a contested case) and its position as a legislative body. * * *. The difference between the legislative, or rule-making, power of a body such as the Board, and its position in contested cases, is set forth in the definitions of ’rule’ and ’contested case’ in § 244 of the Administrative Procedure Act.” (Emphasis added.) (We do not mean to indicate that the Council is included in the definition of “agency” in Code [1965 Repl. Vol.], Article 41, § 244[a], but refer to the Act only for the purposes of analogy. Cf.

Character Committee v. Mandras, 233 Md. 285 .) In Woodlawn Area Citizens Ass’n, Inc. v. Bd. of Co. Comm’rs, 241 Md. 187 , we again pointed out that although the action of the Council in Prince George’s County “in rezoning in individual cases is ultimately legislative, it is clear that in performing this delegated and restricted function it acts largely as an administrative or adjudicatory agency.” See also, Oppenheimer (now Judge Oppenheimer), Administrative Law, ⁶⁷ 2 Md. E. Rev. 185, wherein the distinction between quasi-legislative and quasi-judicial functions, even when performed by a single agency, is clearly pointed out. We, therefore, as previously indicated, have no hesitancy in holding that the statutes and regulations, set forth above, conferred quasi-judicial functions upon the Council in making its determination of facts at the hearing. See, in addition to the authorities cited above, 1 & 2 Am. Jur. 2d, Administrative Law, §§ 92, 161, 415.

The authorities seem to be in accord that when an administrative board or agency is required to hold a public hearing and to decide disputed adjudicative facts based upon evidence produced and a record made, that a reasonable right of cross-examination must be allowed the parties. Professor Davis, op. cit., § 7.05, states the proposition in this manner: “When the adjudicative facts are in dispute, our legal tradition is that the party affected is entitled not only to rebut or explain the evidence against him but also to ‘confront his accusers’ and to cross-examine them” 1 We have no intention of attempting to promulgate a comprehensive rule respecting the type or the amount of cross-examination that the Council must provide at hearings on applications for reclassification. The rationale of the cases and authorities is that reasonable cross-examination, which is required for a full and true disclosure of the facts, having due regard to the circumstances of each particular case, the nature of the proceedings, and the character of the rights which may be affected by it must be permitted; and that is as far as we are required to go at this time. ⁶⁸ Although this Court does not seem to have been called upon previously to- decide the precise question being discussed, its previous decisions seem to foreshadow thé result. reached above, notwithstanding' the language used in Overton v. Board of Co. Comm., 223 Md. 141 , at page 146. The actual holding therein was that “there was no request by any appellants for that which they now claim was denied them [the right to cross-examination] * * *.” See also Temmink v. Bd. of Zoning Appeals, 205 Md. 489, 497 , and Severn v. Baltimore City, 230 Md. 160, 172 , wherein the author of Overton states: “Since our holding is based on waiver, it. is not'to be taken as implying our approval of any administrative practice in contested cases which would * * * deprive the claimant of'the opportunity for cross-examination* * *.” (not a zoning case.) Having decided that appellants were entitled to reasonable cross-examination if it were properly asked for and denied, what does the record actually show in this respect?

(We note in passing that Montgomery County seems to be the only jurisdiction in the State, whose zoning authorities are required to decide adjudicative facts, which does not provide for cross-examination.) We shall not repeat what we have already stated in.that regard. After examining and re-examining the record, we are unable to find a denial of appellants’ request to cross-examine any specific witness or “material.” (The applicants did not request or receive the right to cross-examination, both sides being treated exactly the same.) Consequently, we are unable to hold that error on this score was committed. One of the primary purposes of requiring an objection in a trial court or other reviewable proceeding is to afford that court or the body conducting the proceeding an opportunity of correcting possible errors, thereby saving time and expense. We hold that no prejudicial error has'here been shown.

Of course, the question could have been turned upon an assumption that reasonable cross-examination was required and a finding that the record failed to disclose a denial thereof, but, since the question was raised and discussed in the briefs by both sides, also argued by them at the hearing in this Court, and we consider it one of significance, we preferred to treat it as we have above. ⁶⁹ (b) Mtg. Cty. Code (I960'), Section 104-39(b), as amended, provided, in part, as follows: “Any interested person shall have the right to submit oral or written testimony at the hearing [held on the question of zoning or reclassification].” The “interested” persons mentioned therein are, we think, the same class of persons who can qualify as “aggrieved persons” under our decisions relative to qualifications to be entitled to appeal. It scarcely can be seriously argued the legislative body intended that any and all persons, irrespective of where they lived or owned property, or the nature of “interest” they might have, such as the signers of the petitions, offered by appellants, living in the District of Columbia and Virginia (the subject property is located a very considerable distance from the boundaries of that State and District), were entitled to be heard.

We have already pointed out that, generally, administrative agencies are not bound by the technical rules of evidence and all of the procedures afforded in a trial in a court of law, provided such agencies observe the basic rules of fairness to parties appearing before them. In the instant case, the proponents and opponents were treated exactly alike, each side being allowed one hour to present its evidence at the hearing, and an additional ten days to file supplementary written evidence. This additional evidence was made a part of the record, which was open to inspection by the parties and the public. Although the record discloses that the President of the Council announced he was “sorry we didn’t get a chance to hear everybody tonight,” the record itself merely shows that only one person, Philip Marcus, was present and would have liked to have testified.

He lived about a block from the subject property, and was not represented by Mrs. Davidson. His written statement of some 6 pages in the record extract was accepted and filed about 3 days later. He is not a party to this appeal. There can be little doubt that the zoning authorities, in conducting their hearings on applications for reclassification, where frequently individual emotions run high (Cf. 2 Rathkopf, The Law of Zoning & Planning, § 43-19), must be recognized as having the discretion to regulate, reasonably, the length of time afforded parties to present their evidence.

Whether constitu ⁷⁰ tional or statutory requirements, or the elements of fair play and impartiality have been violated in this regard should also be decided on a case to case basis. Compare NLRB v. Donnelly Garment Co., 330 U. S. 219 . Here, the record fails to show that the appellants (or any one of them) were unduly or unlawfully hampered or restricted by being allotted one hour to present their testimony at the hearing and ten days for filing additional written evidence, the same treatment that applicants received. In fact, none of appellants requested more time at the hearing.

They were fully apprised of the applicants’ claims, and they were given an opportunity to refute those claims, to offer their own evidence, and to argue (we have previously considered the contention relative to cross-examination). There was no intimation that applicants filed, during the 10 day period, evidence which the appellants did not have an opportunity to answer; indeed, the record indicates that no evidence was offered by applicants subsequent to the hearing. In any event, appellants made no objection to the time allotted, and made no attempt to have the record show that their cause was harmed thereby. We find nothing under this heading to show any prejudicial denial of constitutional or statutory rights.

Compare Greene v. McElroy, 360 U. S. 474, 496 . (c) This assignment of error gives us little difficulty. Appellants complain that they were not given the right to object to the introduction of a site plan and architect’s rendering of applicants’ proposed use of the subject property, and the Council’s refusal to remove the same from the record. It is universally acknowledged that administrative bodies, ordinarily, are not bound by the strict rules of evidence of a law court.

In addition, the record makes it clear that applicants and the Council fully realized that the Council could not grant conditional rezoning, and the applicants were making no request for such rezoning. The record also makes it plain that the Council gave little weight to such exhibits—the president expressly so stating as a fact. No claim is made that the site plan and architect’s drawing did not depict a permitted use under the reclassification requested; consequently, it was entitled to be considered by the Council as showing one of the possible uses of the property, if the reclassification were granted. ⁷¹ (d) This contention, also, gives us little difficulty. Appellants urge that the Council’s action was invalid because the Council failed “to comply with the statutory requirement [Mtg.

Cty. Code (1960), Section 72-84] that there be a recommendation or report from the [Md.-Nat’l Capital Park & Planning] Commission in the file.” We shall not discuss the details of the argument, for it is based upon a consideration of the 1960 local code, Section 72-84, and not upon the amendment thereto in Ch. 630 of the Acts of 1963. (A later amendment is contained in Ch. 624 of the Acts of 1965, not here relevant.) Moreover, Exhibit 15 plainly shows that the Council had a recommendation from the Commission, dated April 7, 1964, approving the reclassification; and there is nothing in the recommendation (E. 49) showing that it was conditional (assuming, without deciding, that this would be of significance) as claimed by appellants. (e) The contention here is that Councilwoman Diggs invalidated any action taken as a result of the hearing by stating that a traffic congestion situation mentioned by a witness at the hearing was “temporary” in nature while a road improvement was in process.

There can be little doubt that administrative officials, in the conduct of their proceedings, should conduct such proceedings with impartiality and proper decorum, and they should in cases of this nature base their conclusions upon evidence as distinguished from opinions of individual members. Montgomery County v. Walker, 228 Md. 574 ; Temmink v. Bd. of Zoning Appeals, 205 Md. 489 . Although the remark was, perhaps, unfortunate, or, possibly, “inappropriate,” as it was characterized by the trial judge, we are unable to find that the Councilwoman