Largo Civic Ass'n v. Prince George's County

Gilbert, J., delivered the opinion of the Court. Harry A. Boswell, Jr., for Harry Boswell Associates, contract purchaser of 77.7978 acres of land (A-7709) in Prince George’s County, made application for a zoning map amendment so as to change the zoning on the land from R-R (rural residential) to C-l (local commercial). The “Statement of Reasons for and Justification in Support of the Request for Zoning Map Amendment” indicates that as to A-77Ó9 the applicant’s intent was “to actually obtain 20 acres of C-l zoning, 10.3 acres of R-30 [(multiple-family, low-density residential)], and 36.8 acres of RT [(town house)] zoning.” The “justification” expressed an intent “to provide ... for a Green Space, Club and Recreation area and for the dedication of two new streets and the widening of the ⁷⁸ existing White House Road.” Six months later Boswell and Philip Lustine, contract purchasers for another parcel of land (A-8247), separated from A-7709 by White House Road, applied for rezoning from R-R to C-l. The “justification” as to A-8247, which parcel contained 62.945 acres, stated, “[w]hether or not the Comprehensive Development Zone [then being considered by the Maryland National Capital Park and Planning Commission (MNCPPC)] becomes available, it is the intention of the owners of the subject application to present a design in accordance with the spirit of such an ordinance to include apartment, town house, and office uses” in addition to green spaces and lakes.

The matter went to hearing before the then Board of County Commissioners 1 sitting as the District Council. 2 The MNCPPC Technical Staff Report on A-7709 recommended “approval of the C-l zone for only 15 acres, with the suggestion for approval of the R-30 zone for 27 acres and denial for the remainder.” The recommendation was subject to certain conditions among which was that “the R-30 zone shall .be developed in a density not to exceed 9.5 dwelling units per acre.” The report of the technical staff pertaining to A-8247 recommended “denial of the C-l zone or any other commercial or multi-family residential zone with the suggestion that the property remain in the R-R zone.” The Prince George’s County Planning Board recommended as to application A-7709 the rezoning of the property so as to contain 20.0 acres of C-l, 35.3 acres of R-30,. 10.0 acres of R-80 (one-family, detached residential) with 2.79 acres to remain in the R-R zone for green space. The same Board recommended as to A-8247 disapproval for a C-l zone, but ⁷⁹ approval of 15 acres of R-30, 8 acres of C-0 (commercial office building), 12 acres of R-10 (multiple-family, high-density residential), 10 acres of R-H (multiple-family, high-rise residential), 12 acres of R-T with 1.735 acres to remain as R-R zoning for green space. There were conditions affixed to the Board’s recommendation. Four protestants individually testified against the zoning map amendment and submitted exhibits 3 to bolster their position.

The protestants’ testimony was to the effect that the proposed rezoning would not materially affect their property insofar as causing depreciation is concerned, but that the proposal, if allowed, would increase traffic, overcrowd the schools and place a burden on the sanitary system. One protestant sought to establish by cost accounting that it would take the county many years to recover its initial outlay for road improvement and the installation of water and sewerage. The District Council, by a vote of two to one, adopted the recommendations of the Planning Board. Feeling aggrieved at the Council’s action all the protestants who had testified before the Council appealed to the Circuit Court for Prince George’s County.

In the appeal they were joined by Joseph R. Mosby, Eva L. Mosby, Leroy C. Kane and Joyce D. Kane, who had not so testified. The Largo Civic Association, who had protested the rezoning, also appealed. Judge Samuel W. H. Meloy affirmed the action of the District Council, and the appellants have appealed to this Court. The appellees, Prince George’s County, et al., have moved to dismiss the appeal on the ground that the appellants have no standing as they are not aggrieved parties within the meaning of the law.

At the time of the hearing the Largo Civic Association was not an incorporated body, 4 and it has not been shown in the ⁸⁰ record before us that it was either a taxpayer or an aggrieved party. Consequently, it has no standing to appeal. Improvement Ass’n v. Raine, 220 Md. 213 , 151 A. 2d 734 (1959); Windsor Hills Imp. Ass’n v. Balto., 195 Md. 383 , 73 A. 2d 531 (1950).

Therefore, the appellees’ motion to dismiss is granted as to Largo Civic Association. Appellees bottom their argument that the appeal should be dismissed as to the Mosbys and the Kanes on the provisions of § 59-85 of the Prince George’s County Code of Public Local Laws (1968), subsections e and j. Those two subsections confer a right of appeal from the District Council to the Circuit Court and a further right of appeal from the Circuit Court to this Court by “the applicant, or any party to the circuit court review who is an aggrieved party.” Appellees reason that the record fails to show that Joseph R. Mosby, Eva C. Mosby, Leroy C. Kane and Joyce D. Kane were parties to the proceeding before the District Council, and hence they are not aggrieved within the meaning of Bryniarski v. Montgomery Co., 247 Md. 137 , 230 A. 2d 289 (1967). In that case the Court of Appeals held, at 143, that: “Under the applicable statutory law, two conditions precedent must be met before a person has standing to appeal to the Circuit Court. .. from a decision of the . .. [District Council]: (1) he must have been a party to the proceeding before the [District Council], and (2) he must be aggrieved by the decision of the [District Council].” The fallacy in the appellees’ argument is that the record, although not the transcript, does indicate that the Mosbys and the Kanes appeared before the District Council even though they did not testify.

In a “Petition for Reconsideration” 5 filed with the District Council the Mosbys and the Kanes are listed as parties to the petition. Moreover, the petition recites: “4. On December 18, 1970 the Board of County ⁸¹ Commissioners mailed to Your Petitioners and others a Notice of Final Decision of their action taken on October 30, 1970 [in case A-7709 and A-8247].” The petition was submitted under affidavit. We glean from the “Petition for Reconsideration” that the Mosbys and the Kanes were present at the hearing before the District Council even though they did not testify, and their appearance is not noted in the transcript.

We find nothing in Bryniarski v. Montgomery County, supra, holding that a person must testify before the administrative agency in order to be a “party to the proceeding before the” agency. Indeed, there is no requirement that he do so provided the record shows he was in fact a party. DuBay v. Crane, 240 Md. 180 , 213 A. 2d 487 (1965). See also Hertelendy v. Montgomery Cty., 245 Md. 554 , 226 A. 2d 672 (1967).

As the record in this case indicates that the Mosbys and the Kanes were parties before the District Council, their appeal may not be dismissed under the first requisite of Bryniarski v. Montgomery County, supra. We observe that it would be a simple matter to determine who was or was not a party to the proceeding before the zoning agency if the agency would follow the practice in Baltimore City and some counties. There the name and address of each person appearing at the hearing is obtained in writing regardless of whether the individual testifies. Such a procedure insures against a person who appeared at the zoning hearing being denied his or her right to appeal merely because they did not testify.

We, therefore, suggest that a roll of those in attendance at the hearing be taken by the agency and that the roll be made part of the record. The appellees further challenge the standing of all of the appellants to appeal because of the distance that the appellants reside from the land that was the subject of the rezoning applications. Our perusal of the record discloses that the Peloquin residence is about 3,000 feet from the A-7709 tract, while Dercola is 4,300 feet away. The record is silent as to the distance, in feet, that the other appellants live from the subject properties.

The appellees conclude, ⁸² however, that the appellants reside at a point too distant for appellants to be aggrieved parties. It is apparent from the aerial photographs, maps and other evidence submitted at the hearing that the applicants’ property is readily visible from the homes of the appellants. Unlike Wilkinson v. Atkinson, 242 Md. 231 , 218 A. 2d 503 (1966), there is no “broad beltway” acting as a barrier, separating the appellants’ properties from that of the applicants’. Nor is there evidence that the appellants’ residences were situate on a high hill with a dominant view as in Wilkinson v. Atkinson, supra.

We think that the record, while leaving much to be desired, nevertheless establishes the appellants’ proximity to the subject properties, and that their proximity results in their being “personally and specially affected in a way different from that suffered by the public generally”, DuBay v. Crane, supra at 185; Jahnigen v. Staley, 245 Md. 130, 135 , 225 A. 2d 277, 280 (1967); Alvey v. Hedin, 243 Md. 334, 339 , 221 A. 2d 62, 64 (1966), and thus satisfies the second requisite of Bryniarski, supra. We hold that the appellants are aggrieved parties, entitled to maintain this appeal, and the appellees’ motion to dismiss, except as to the Largo Civic Association, is denied. We turn now to the consideration of the issues raised by the appellants in this appeal. I. Appellants contend that the rezoning granted by the District Council is void for lack of procedural due process of notice.

The Prince George’s County Code of Public Local Laws (1963), § 59-83 (c) provided in pertinent part: “Before any regulation or regulations authorized by this article may be passed, the district council ... shall hold a public hearing thereon and shall give notice of the time and place thereof by one insertion in two newspapers of general circulation respectively in the county in which the property is located. .. . [T]he text or copy of the text of the ⁸³ regulations, together with the map or maps forming part of or referred to in the regulations, shall be on file for public examination ... in the office of the clerk to the county commissioners of Prince George’s County. The cost of advertising in connection with publication of proposed amendments in the zoning regulations or maps shall be paid by the persons or corporations making application for such changes.” The Code of Public Local Laws also provides that the District Council is empowered to include in its regulations a provision for additional notice which notice may be given by mail to the owners of property in the general vicinity or by the posting of the notice on or in the vicinity of the property involved. The attack launched by the appellants in the instant case is not directed toward the failure on the part of the applicants to give any notice, but rather is concerned with the type of notice given. Appellants contend that while the application and notice indicate a desire to rezone the properties to C-l, that indication was misleading and incorrect because the applicant in actuality desired that only a small portion of the land be rezoned to C-l and that the balance be rezoned in varying degrees of residential density.

There are two answers to the appellants’ argument. First, § 30.42 of the County Zoning Ordinance, adopted by the Board of County Commissioners of Prince George’s County on March 12,1965, provides: “The district council may grant a zoning map amendment for a less intensive zone than that sought by the applicant for all or a part of the property for which zoning reclassification is requested.” Thus, under the ordinance the Council had the right to grant “less intensive” zoning than that sought by the applicant. The question remains, however, of what is meant by the words “less intensive zone”. The Zoning Ordinance of Prince George’s County, § 11.1, provides: ⁸⁴ “For the purpose of these regulations, the district [Maryland-Washington Regional District in Prince George’s County, Maryland] is hereby divided into ... classes of zones, 6 which are established as follows: R-R zone (rural residential) R-80 zone (one-family, detached residential) R-55 zone (one-family, detached residential) R-35 zone (one-family, semi-detached, and two-family, detached residential) R-T zone (town house) R-30 zone (multiple-family, low density residential) R-20 zone (one-family, triple-attached residential) R-18 zone (multiple-family, medium-density residential) R-10 zone (multiple-family, high-density residential) R-H zone (multiple-family, high-rise residential) R-P-C zone (planned community) C-0 zone (commercial office building) C-l zone (local commercial) C-2 zone (general commercial) 1-1 zone (light industrial) 1-2 zone (heavy