Northeast Plaza Associates v. President of the Town of North East

MURPHY, Chief Judge. This case focuses upon the procedure to be followed when a municipality undertakes to place newly annexed land in a zoning classification that permits uses substantially different from the applicable county master plan prior to annexation. I On November 18, 1985, Commercial Center Development Corporation (CCDC) asked the Commissioners of the Town of North East to annex approximately eighty acres of largely unimproved land. CCDC also requested that the Town Commissioners, during the annexation process, change the zoning on this parcel from Cecil County’s light industrial to the town’s commercial and. multifamily residential.

These changes would allow the CCDC to build first a shopping center and later apartments and townhouses. ²³ The Town Commissioners scheduled a public hearing for January 20, 1986 and published the required notice. At the hearing, the Commissioners heard testimony for and against the proposed annexation and rezoning. The Town Administrator made a brief oral statement about the effect of the annexation on municipal services; no written description of the extension of services was, however, available for public inspection. Although the town’s Planning Commission did not hold a public hearing on the proposed rezoning, it recommended approval at its January 27, 1986 meeting.

On February 4, 1986, the Cecil County Commissioners passed a resolution approving the proposed zoning changes. Although the county’s Planning Commission did not review the proposed rezoning or make any recommendation, the county’s Director of Planning and Economic Development advised the County Commissioners that, in his opinion, the proposed changes were consistent with the county’s Comprehensive Zoning Plan. Later the same day, the Town Commissioners held a special meeting and approved a resolution giving final approval to the annexation and rezoning. Northeast Plaza Associates (Associates), an owner of land adjacent to the annexed parcel but outside the Town of North East, filed a declaratory judgment action challenging the validity of the annexation and rezoning; it named as defendants the President and Commissioners of the Town of North East, the Board of County Commissioners of Cecil County, Sun-op, Inc.—the record owner, and CCDC—the developer.

According to Associates, neither the Cecil County Commissioners nor the North East Town Commissioners followed the required procedures for rezoning individual parcels of land. Thus, Associates asked the court to declare the rezoning invalid. In addition, Associates alleged that the Town Commissioners made procedural errors in the annexation process that rendered the annexation void. The trial court (Cole, J.), in an order declaring the rights of the parties, viewed the annexation and rezoning as two ²⁴ separate processes.

It found the following defects in the annexation process: The public notice incorrectly listed the effective date of the annexation, and the Town Commissioners did not provide the statutorily required “outline” for extension of municipal services to the annexed area. The court held, however, that Associates had no standing to challenge these defects because it was neither located in North East nor did it reside or own property in the area to be annexed. The court then determined that the proposed change in zoning classifications was substantial and that neither Cecil County nor North East had demonstrated sufficient change in circumstances or mistake in the original zoning to justify such a change. The court held, however, that the Town could zone newly annexed land as if it had never been zoned.

The court also determined that the County Commissioners did not have to follow any particular zoning procedures in deciding whether to approve the Town’s request to change the zoning of the annexed land. Although it reached these issues, the court also held that Associates could not challenge the rezoning in a declaratory judgment action, but should have exhausted administrative remedies available to it under § 9-6 of Article 9 of the Town’s Zoning Ordinance. 1 Associates appealed from the trial court’s judgment. We granted certiorari prior to argument in the Court of Special Appeals. II A complex set of statutory provisions govern annexation and zoning.

Municipal corporations have the authority to annex adjoining territory by following the procedure prescribed by Maryland Code (1957, 1987 Repl.Vol.) Art. 28A, § 19. Either the municipality’s legislative body or the ²⁵ voters and property owners in the area to be added may propose annexation. § 19(b)(1), (c). After such a proposal is made, the statute mandates, among other things, the giving of public notice to those in the affected area; requires a description of the “proposed change and the conditions and circumstances applicable”; requires a public hearing on the annexation resolution; and requires that a copy of the public notice be provided to the County Commissioners and the regional and State planning agencies having jurisdiction within the county. § 19(d). In addition, § 19(o) requires the municipality to provide “a proposed outline for the extension of services and public facilities into the area proposed to be annexed.

The outline shall be open to public review and discussion at the public hearing, but amendments to the outline may not be construed in any way as an amendment to the resolution, nor may they serve in any manner to cause a reinitiation of the annexation procedure then in process. A copy of the outline shall be provided to the governing body of the county or counties in which the municipal corporation is located and any regional and State planning agencies having jurisdictions within the county at least 80 days prior to the holding of the public hearing required by this section. The outline shall contain a description of the land use pattern proposed for the area to he annexed, which may include any county master plan already in effect for the area. It shall be presented so as to demonstrate the available land for public facilities which may be considered reasonably to be necessitated by the proposed use, such as school sites, water or sewerage treatment facilities, libraries, recreation, fire or police.

It shall contain also a statement describing the schedule for extending to the area to be annexed each municipal service performed within the municipality at the time of annexation and a statement as to the general methods by which the municipality anticipates to finance the extension of municipal services into the area to be annexed.” (Emphasis added) ²⁶ After the public hearing, the legislative body may enact the resolution, which shall not take effect for at least forty-five days. § 19(e). Persons eligible to object to the annexation may petition for a referendum within this forty-five day period, thereby staying the annexation pending an election. § 19(f) (residents of area to be annexed); § 19(g) (residents of municipality); § 19(h) (county in which municipality located). After the annexation, a municipality with planning and zoning authority is vested with “exclusive jurisdiction over planning and zoning and subdivision control within the area annexed.” § 19(s). The annexing municipality’s authority to zone is limited, however, by § 9(c), which provides in part: “[N]o municipality annexing land may for a period of five years following annexation, place that land in a zoning classification which permits a land use substantially different from the use for the land specified in the current and duly adopted master plan or plans or if there is no adopted or approved master plan, the adopted or approved general plan or plans of the county or agency having planning and zoning jurisdiction over the land prior to its annexation without the express approval of the board of county commissioners or county council of the county in which the municipality is located.” Code (1983 RepLVol.), Art. 66B regulates the planning and zoning powers of local governments.

Before adopting a comprehensive zoning plan or any amendments to that plan, the local legislative body must hold at least one public hearing “at which parties in interest and citizens shall have the opportunity to be heard;” public notice must be given at least twice prior to the hearing. § 4.04(a), (b). If an amendment changes the zoning classification for a particular parcel of land, “the local legislative body shall make findings of fact in each specific case including, but not limited to, the following matters: population change, availability of public facilities, present and future transportation patterns, ²⁷ compatability with existing and proposed development for the area, the recommendation of the planning commission, and the relationship of such proposed amendment to the jurisdiction’s plan; and may grant the amendment based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification.” § 4.05(a). Ill This case presents a number of questions concerning the proper interpretation of the above statutes. First, what procedure may be used to challenge combined annexation and zoning enactments?

Second, who can challenge such enactments? Third, what process must a municipality use when it simultaneously annexes and