Kay Construction Co. v. County Council for Montgomery County

Sybert, J., delivered the opinion of the Court. This appeal questions the validity of an order of the Circuit Court for Montgomery County which sustained a finding by the County Council for that County, acting as a District Council, that there was “good cause shown” (as required by the Zoning Ordinance) in appellees’ petitions for reconsideration of a previously adopted rezoning resolution. The rezoning would have allowed appellant to construct low density apartment houses on a tract of land owned by it. The Council granted the petitions for reconsideration and after a rehearing rescinded the rezoning resolution.

The appellant makes the further point that the record does not sustain the Council’s action rescinding the rezoning resolution. The original application was filed by the appellant with the Council in December, 1958, requesting rezoning of approximately 12 acres of land located at the northwest corner of Viers Mill Road and Connecticut Avenue in Wheaton, from the R-60 Zone (single-family dwellings) to the R-20 Zone ⁴⁸² (medium density, multi-family) or R-30 zone (low density, multi-family). The Council held a public hearing on February 11, 1959, at which extensive testimony was given by proponents and opponents in regard to the effect that the proposed rezoning would have on traffic, schools, and the neighborhood in general. The Council did not render its decision until November, 1959, granting by a four-to-three vote the rezoning of 8.5 acres of the 12 acre tract to the R-30 Zone (low density, multi-family), with certain set backs.

It found from the evidence presented that there had been substantial change in the neighborhood since original zoning so as to warrant rezoning. It took note of the heavy traffic dual lane highway and intersection that the property borders as well as the fact that it faces, across Connecticut Avenue (extended), the semi-commercial telephone exchange building behind which is the only large development of R-40 semi-detached dwellings in the county, and that the Belair Swimming Club is located directly across Viers Mill Road from appellant’s property. The Council also recognized the fact that it was denying the same requested zoning to two other tracts of land across Viers Mill Road from the subject property, pointing out that the problems involved with development of those properties had been solved. Finally, it took cognizance of the fact that appellant’s property had been recommended for multi-family zoning by the Master Plan for Kensington-Wheaton, which had been adopted by the Planning Commission in the interim between the original hearing and the publication of the Council’s resolution.

Opponents of the rezoning—certain residents of the area and a citizens’ association—on December 31, 1959, filed two petitions for reconsideration of the resolution granting the rezoning. On the same day, one of the councilmen who had voted with the majority for rezoning resigned from the Council. When a later vote on the two petitions resulted in a three-three deadlock, the Council postponed its decision until the appointment of a new member. On March 1, 1960, after a new member was named, the Council by a four-three vote adopted a resolution which granted reconsideration and a re ⁴⁸³ hearing in regard to its original rezoning resolution, the new Council member voting for the resolution along with the three members who had opposed the rezoning.

The resolution granting the reconsideration merely stated that the Council “finds for good cause shown that its decision should be reconsidered”. Section 107-41 of the Zoning Ordinance for the Maryland-Washington Regional District in Montgomery County (1955 ed.), now § 104-42, Montgomery County Code (1960 ed.), relating to petitions for reconsideration, states in part: “The decision of the district council on any application for a map or text amendment shall be final except that a petition requesting reconsideration of the district council’s decision on any application may be filed * * *. The petition may be granted by resolution of the district council for good cause shown and, if granted, the decision of the district council may be rescinded and the application thereafter by resolution of the district council approved, denied or dismissed with or without further hearing as may be required by law * * (Italics ours.) On March 22, 1960, the rehearing was held and on April 12, 1960, the County Council by the same four-three vote-adopted a resolution rescinding its original resolution rezoning the subject property for apartments and denying appellant’s' rezoning application. Appellant appealed to the Circuit Court for Montgomery County, asking that the resolution granting reconsideration be set aside because no good cause had been shown for granting it; that the final resolution denying the application for rezoning be set aside, and that the original rezoning resolution be declared in effect.

After a hearing the court remanded the case to the Council with the requirement that it set forth in an opinion what factors constituted “good cause shown” as required by the Zoning Ordinance as a condition for reconsideration. In the opinion which it subsequently adopted by a four-three vote, the Council set out ten factors contained in the two petitions for reconsideration which it felt met the ⁴⁸⁴ “good cause shown” requirement and supported the Council’s stated conclusion that it had made “a plain and simple error in judgment based on the evidence of record”. The court, after a second hearing, found that the ten reasons mentioned in the Council’s opinion constituted good cause shown and affirmed both the resolution granting the petitions for reconsideration and the resulting resolution which rescinded the rezoning of appellant’s property. In this appeal from the lower court’s order, appellant contends that the requirement under the Ordinance of “good cause shown” was not met by the two petitions for reconsideration, nor by the Council’s admission of error in judgment which it felt warranted reconsideration of the original resolution.

In any event, appellant maintains, there was insufficient evidence to support a reversal of the R-30 classification granted in the original resolution. With respect to whether a legislative body of a municipal corporation, such as the County Council, has the power to rescind an ordinance or resolution previously adopted, it has been said that such power of rescission exists provided it “is in conformity to the law applicable and the rules and regulations adopted for the government of the body”. 4 McQuillin (3rd ed.), Municipal Corporations, § 13.49. It is settled law in this state that the “requirements of the ordinance are binding on the Commissioners sitting as a District Council [here, the County Council sitting as a District Council] and they may exercise their zoning powers only by following the procedure specified * * Crozier v. Co. Comm. Pr.

George’s Co., 202 Md. 501, 506, 97 A. 2d 296 (1953). The issue thus narrows to a determination of whether the reasons relied upon by the Council as warranting reconsideration met the Ordinance’s requirement of “good cause shown”. The Zoning Ordinance does not define what conditions must be met to establish “good cause shown”. While it may not be possible to state an all-embracing definition of that phrase, it is possible to ascertain its general meaning by an examination of some of the cases where the problem of applying it has arisen.

What will measure up to a showing of “good cause” ⁴⁸⁵ in a particular case will depend upon the circumstances of that case. We have found no case in this Court involving an express statutory requirement that good cause be shown for reopening a zoning case. However, in Zoning Appeals Board v. McKinney, 174 Md. 551 , 199 Atl. 540 , 117 A.L.R. 207 (1938), this Court interpreted the Baltimore City ordinance, which contained no such express provision, as implicitly requiring such a showing in order to permit a reopening. There the Court said ( 174 Md. at 564 ) : “It may be conceded without discussion that the Board has the right to correct errors in its decisions caused by fraud, surprise, mistake or inadvertence, which any agency exercising judicial functions must have, to adequately perform its duties.” The Court then considered authorities from other States and concluded that in the absence of such facts it was beyond the power of the Board, a quasi-judicial body, to reopen the case, which involved an application for a gasoline station permit.

This Court declined to apply McKinney to the rescission of an actual rezoning granted by the County Commissioners of Prince George’s County in Dal Maso v. County Com’rs., 182 Md. 200 , 34 A. 2d 464 (1943); but in holding that the County Commissioners, under the applicable statute, which said nothing about a requirement for showing good cause, could reconsider a rezoning case without any such showing as was held necessary in McKinney , the Court stated that the County Commissioners had such power, but this statement was qualified by the further statement, quoted from 37 Am. J’ur., Municipal Corporations, § 150, p. 762, that this was true “in the absence of statute or a rule to the contrary.” ( 182 Md. at 207 .) Here we do have a statute or rule to the contrary requiring good cause to be shown. Por the meaning of good cause, McKinney still seems a valid guide, even though Dal Maso declined to import or imply a requirement of good cause in the statute there involved, which did not use the term. Here we have an entirely different problem of statutory construction —the meaning of the term when it is used in a statute or ordinance—and we find no need to examine the precise scope of Dal Maso.

(Cf. Md. Clothing Mfrg. Co. v. Baltimore, 207 Md. ⁴⁸⁶ 165, 170, 113 A. 2d 743 (1955), where McKinney was discussed without any reference to Dal Maso.) The rationale of McKinney has been applied by other courts, even in the absence of a statutory requirement for showing good cause, in determining whether a zoning board—acting as a quasi-judicial body—has properly reopened and reversed its own decision, and the text writers are in general accord. The Connecticut rule was laid down in St. Patrick’s Church