Mandel v. Board of County Commissioners

Oppenheimer, J., delivered the opinion of the Court. The appellants contend that a change in the zoning regulations enacted while litigation in respect of the use of the appellants’ properties under the former regulations was pending was illegally passed and violated their constitutional rights. ²¹² Consideration of the issues involved requires a statement of the nature and status of the litigation which was pending when the change was enacted and the manner in which the regulations were changed. Mr. & Mrs. Julius Mandel, and Homer Gudelsky, trading as The Gudelsky Company (the Mandéis), are the owners of a 376-acre tract of land situated on the west side of U. S. Route 29, and the north side of Maryland Route 108, in Howard County. They applied to the Board of County Commissioners for Howard County (the Board) for a zoning re-classification from an R-20 (Residential) District to an R-A-2 District (High-rise Apartments).

The Board denied the re-classification. The Mandéis filed a bill for a declaratory decree in the Circuit Court for Howard County 1 and, after hearing, that court restrained the Board from interfering in any way with the use by the Mandéis of their property as an R-A-2 District. The Board appealed to this Court from the decree and that appeal (No. 330, September Term, 1963) is now pending. Southern Properties, Inc. (Southern) is the owner of 31.55 acres of land located on the Howard County side of the Patuxent River opposite the town of Laurel.

Southern, like the Mandéis, had sought to have this land re-zoned from an R-20 District to an R-A-2 or High-rise Apartment District. The requested rezoning was denied by the Board. Southern filed a bill to reverse the Board’s decision in the Circuit Court for Howard County, which heard the case and had the matter under consideration when the Board, by resolution, changed the zoning regulations. The Circuit Court then determined that Southern’s proceedings before it had become moot.

Southern did not appeal the order entered on that decision. The Board’s action in respect of the change in the zoning regulation was taken on December 19, 1963, after a petition filed by the Board, and a hearing before it. By its action, the Board deleted from the zoning regulations the Howard County regulations known as Section 8, entitled “R-A-2 District.” The ²¹³ Mandéis and Southern appeared before the Board in opposition to the change. After the Board’s action in December, 1963, it filed a motion in case No. 330 to refer the questions therein presented back to the lower court because of the deletion of the R-A-2 District from the Howard County zoning regulations.

On January 21, 1964, Southern filed a bill in the Circuit Court for Howard County reciting the above facts insofar as they are pertinent to Southern’s property and asking that the Board’s action in deleting Section 8, R-A-2 District, from the Howard County zoning regulations be declared illegal, arbitrary, invalid and unconstitutional. The Board’s opinion and order of December 19, 1963 setting forth its reasons for the change in regulations was attached as an exhibit to the bill. There was also attached as an exhibit a communication from the Howard County Planning Director to the Board to the effect that the Planning Commission, on November 6, 1963, had considered the proposed amendment to the zoning regulations to repeal Section 8 and had recommended denial. The report of the technical staff was attached to this exhibit.

The Mandéis filed a petition to intervene in the proceedings brought by Southern and, pursuant to leave to do so, filed an “intervenors’ bill of complaint.” The Board demurred to both bills of complaint. Judge Macgill sustained the demurrer without leave to amend and dismissed the bills. The appellants have appealed from that order. I In the memorandum filed with his order, Judge Macgill found that no vested rights had accrued to the complainants to give them standing to attack the Board’s action in repealing and deleting the provisions for high-rise apartments in the zoning regulations.

We agree that the complainants (the appellants) had no vested rights, but it does not follow they had no standing to have the question decided. In City of Greenbelt v. Jaeger, 237 Md. 456 , 206 A. 2d 694 (1965), Judge Hammond, for the Court, considered the question of whether the appellant in that rezoning case was an “aggrieved” party, and analyzed our earlier decisions on the matter. The issue here is not whether the appellants are “aggrieved” parties under a statutory provision as to their right to ²¹⁴ appeal, under which the question presented in Greenbelt arose, but the discussion in that case is apposite as indicating that the appellants, or one of them, must have a special status in order to maintain the action. Both the Mandéis and Southern had applied to the Board to use their respective properties for high-rise apartments under the zoning regulations then existing.

They have attacked, in a court of equity, the validity and constitutionality of the change in the zoning regulations which, of itself, would prohibit that use. The special damage to the appellants in not being able to use their properties for the desired high-rise apartments is implicit in the proceedings. See Crozier v. Co. Comm. Prince George’s County, 202 Md. 501, 507 , 97 A. 2d 296 (1953).

Wakefield v. Kraft, 202 Md. 136 , 96 A. 2d 27 (1953) was a suit in equity by property owners against the County Commissioners of Howard County for a decree to have a resolution rezoning a tract of real estate owned by the petitioners declared unconstitutional. We reversed a decree granting the relief prayed (two judges dissenting) but considered the validity of the Commissioner’s action on the merits. In our opinion, in this case, the prior proceedings before the Board by both appellants give them the requisite status to attack the legality of the change in the zoning regulations. In addition, the Mandéis have standing to question whether the Board, by its action, violated the terms of the injunction issued against it in the judicial proceedings in which the Mandéis and the Board were parties.

In his memorandum, Judge Macgill, while basing his holding on the lack of standing of the parties, found, in effect, that the Board’s action was not invalid because it interfered with any vested rights of the appellants. He did not consider the other legal issues as to the validity of the Board’s action raised by the Board’s demurrer to the bills of complaint. Ordinarily, under Maryland Rule 885, we would not decide questions which were not 'decided by the lower court. However, the Rule provides an exception when decisions of questions of law by this Court are necessary or advisable to avoid the expense and delay of another appeal.

Among the types of cases excluded or excepted from the Rule are those presented on demurrer. Kent v. Mer.-Safe Dep. & Tr. Co., 225 Md. 590, 593 , 171 A. 2d 723 (1961) ; ²¹⁵ Martin G. Imbach, Inc. v. Deegan, 208 Md. 115, 131 , 117 A. 2d 864 (1955). II We agree with Judge Macgill that this case is to be determined under the law as it now exists, that the appellants had not secured a final decree establishing their rights to use their properties for the use permitted under the former classification, that they had no vested rights, and that the change in the regulations is not invalid because it eliminates the proposed use.

Yorkdale v. Powell, 237 Md. 121 , 205 A. 2d 269 (1964) was decided after the appeals in the present case were taken. In Yorkdale , we applied the rule that an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence, citing Grau v. Board of Zoning Appeals, 210 Md. 19, 23 , 122 A. 2d 824 (1956); Lake Falls Assn. v. Bd. of Zon. Appeals, 209 Md. 561 , 121 A. 2d 809 (1956); and Banner v. Home Sales Company D, 201 Md. 425 , 94 A. 2d 264 (1953). Judge Hammond, for the majority of the Court, said: “It would seem to follow from the decisions in Banner, Lake Palls and Grau that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below.” 237 Md. at 126.

The dissent in Yorkdale affords no sustenance to the appellants here, for the dissenting judges agreed as to the law which controlled the decision and dissented only because they believed that the County Council of Baltimore County had shown a clear intention that the legislative change in the zoning regulations should not apply to pending litigation. In this case, the appellants contend the legislative change is invalid because it was meant to apply to the pending litigation. The effect of that allegation, on demurrer, will be considered hereafter, but, on the ²¹⁶ issue here considered, it is clear that the Board, as a legislative body, if its action is otherwise in accordance with law, can validly change a zoning regulation, even though the effect of its action is to eliminate any inchoate rights which property owners may have asserted in pending appeals from adverse administrative determinations under the pre-existing regulations. It is contended on behalf of the Mandéis that because the Board was a litigant in the pending case and had been enjoined by court order from interfering with the Mandéis’ use of their land for high-rise apartments, its subsequent action in changing the zoning regulation was invalid on that ground alone.

It is true that this precise situation did not exist in Yorkdale or in the cases therein cited. 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, Code (1957) Article 41, § 244-256, a contested case) and its position as a