Nottingham Village, Inc. v. Baltimore County

Singley, J., delivered the opinion of the Court. Nottingham Village, Inc. (Nottingham) and The Rouse Company (Rouse) which are respectively the owner of a 930 acre tract located in Baltimore County (the County) and the lessee of a 150 acre parcel of the same tract, believing themselves aggrieved by a comprehensive Zoning Map adopted by the County Council on 24 March 1971, filed a bill of complaint in the County’s circuit court seeking declaratory and injunctive relief. From a decree dismissing the bill of complaint, Nottingham and Rouse have appealed. Both the facts of the case and the issues presented are enormously complex.

The crux of the controversy, however, lies in the fact that the Nottingham tract, zoned R-6 (detached residences, minimum lot size 6,000 square feet) except for 36 acres zoned RA (residential, apartment) was rezoned DR 5.5 (density residential, 5.5 dwelling units per acre) by the comprehensive rezoning adopted in 1971 by the County Council. Nottingham had sought RA zoning for 185 acres; BR (business, roadside) for 20 acres; BM (business, major) for 140 acres with a CT district (commercial, town-center core) superimposed thereon (BM-CT) and R-6 for the remaining 585 acres, in conformity with a development plan prepared by its consultants. THE FACTS Perhaps a clearer understanding of the background can be achieved by setting out the facts in chronological order: 28 April 1969: County Office of Planning and Zoning releases “1980 Guideplan,” a county-wide ³⁴² master plan in preliminary form. 2 June 1969: County Council passes Bill No. 72, directing Planning Board to prepare countywide zoning map or maps. Summer, 1969: Planning Board divides county into five sectors and prepares Master Plans and Comprehensive Zoning Maps for each.

Nottingham’s tract was in Northeast Sector. 14 October 1969: Public presentation by Planning Board of proposed Plan and Map for Northeast Sector. BM zone; increase in RA zone, remainder R-6 recommended for Nottingham tract. 4 November 1969: Public hearing before Planning Board on Northeast Sector Map. Nottingham requests RA, BR, BM-CT and R-6 zoning previously described. February 1970: Planning Board approves Map for Northeast Sector, granting portions of RA, BM and BR zoning requested by Nottingham.

January 1970-May 1970: Council delays consideration of Maps pending amendment of Zoning Regulations and adoption of procedure for consideration of Maps, by Reso- ³⁴³ Iution No. 3 and Bill No. 42, respectively. 3 August 1970: Passage of Council Bill No. 100, amending Zoning Regulations and of Bill No. 103, setting up procedure for adoption of Maps. 22 September 1970: Planning Board releases revised 1980 Guideplan, Sector Master Plan and Zoning Map for Northeast Sector. Nottingham tract classified DR 16 (residential, 16 dwelling units per acre, a statutory equivalent of RA) ; BR; BM-CT, and DR 5.5 (a statutory equivalent of R-6) ; apartment and business zones larger than those on February 1970 map. 8 October 1970: Public hearing on 1980 Guideplan for County, Sector Master Plan and Comprehensive Zoning Map for Northeast Sector. Nottingham requests CSA district (commercial, supporting area) for part of land zoned BR. November 1970: Planning Board submits final report and Zoning Maps to County Council.

Recommended for Nottingham tract were DR 16, 190 acres; BM-CT, 147 acres; MLR (manufacturing light, restricted), 77 ³⁴⁴ acres; BE, 18 acres, and DR 5.5, 498 acres. 18 January 1971: Public hearing on Zoning Map for Northeast Sector before County Council. Nottingham renews request for CSA district in part of BR zone. 17 March 1971: Second hearing before County Council on Zoning Map for Northeast Sector. For first time, two property owners protest against Nottingham zoning. 24 March 1971: Zoning Map for Northeast Sector, placing all of Nottingham tract in DR 5.5 zone, passed by County Council, Council Bill No. 31. THE ISSUES Nottingham and Rouse say that there are four reasons why the decree of the circuit court should be reversed: (i) Baltimore County failed to comply with the requirements of Bill No. 103 relating to notice; (ii) Baltimore County failed to comply with the requirements of Section 303 of the Charter and Bill No. 103 relating to meeting and voting on proposed changes in the Zoning Maps; (iii) The Zoning Map was not adopted in accordance with a comprehensive plan; and (iv) The court erred in permitting counsel for Baltimore County to use leading questions ³⁴⁵ in interrogating members of the County Council.

(i) Baltimore County Code (1968, as amended) (the County Code) Title 22, § 22-21 provides, in part: 1 “Sec. 22-21. Action by county council on adoption of zoning regulations and zoning maps. “(a) After the county council has received a final report of the planning board recommending adoption of any zoning regulations or zoning maps, the county council shall hold one or more public hearings thereon, giving at least twenty days’ notice thereof in at least two newspapers of general circulation in the county. During such twenty-day period, the final report of the planning board with accompanying maps and supporting exhibits, if any, together with any minority report and maps from any dissenting members of the planning board shall be shown and exhibited in the county office building, in each councilmanic district, and at such other public place as the county council may designate for public inspection. After the expiration of such period of notice, and following the public hearing or hearings, the county council may by an ordinance adopt such regulations or maps subject, however, to such changes or amendments therein as the county council may deem appropriate. “(b) Any change or amendment to be made in a zoning map as proposed by the planning board shall, before final adoption of such map, be brought to further public hearing, advertised and held in the same manner as provided above in subsection (a).

If further changes or ³⁴⁶ amendments to such map shall then be proposed in the county council, a final public hearing, limited to such further changes or amendments, shall be advertised and held in the same manner as provided above before final action on such map is taken by the county council.” In Swarthmore Co. v. Kaestner, 258 Md. 517, 531-532 , 266 A. 2d 341 (1970), Judge Barnes, speaking for the Court, construed Title 22, § 22-21 of the County Code which, at the time, was not significantly different from that contained in subsection (a) : “It is clear from the language of this section of the . . . [Code] that the County Council is required to have a hearing on the recommendations of the planning board for changes in the zoning regulations or zoning maps, but that after the expiration of such period of notice (20 days) the County Council may adopt the recommended regulations or maps but it may also make ‘such changes or amendments therein as the county council may deem appropriate.’ In short, the County Council need not follow the recommendations of the planning board and need not have any further or additional hearing in regard to the changes or amendments the County Council may see fit to make. We have held that the County Council is not required to follow the recommendations of the Planning Board. Miller v. Abrahams, 239 Md. 263, 272 , 211 A. 2d 309, 314 (1965). We have also indicated that a substantial change may be validly made in a proposed comprehensive zoning map after the public hearing has been held on the originally proposed comprehensive zoning map and no additional notice or hearing was required by statutory language quite similar to that used in Sec. 22-21 of the Baltimore County . . . [Code].

Hewitt v. County Commis ³⁴⁷ sioners of Baltimore County, 220 Md. 48, 56 , 151 A. 2d 144, 148 (1959). Indeed, in Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 3 , 246 A. 2d 220 (1968) we sustained a change made by the County Council in that case on a proposed comprehensive zoning map requested on the same day the ordinance was passed, where there had been no prior discussion, proposal or a request for the change made at the hearing on the proposed comprehensive zoning map and, of course, no notice or prior hearing in regard to the requested change.” (Emphasis in original) Nottingham and Rouse say that the enactment of Council Bill No. 103, less than two weeks after the decision in Swarthmore v. Kaestner, supra, was intended to fill the void recognized in that case. Whether or not this is true, the court below found as a fact, and we agree, that the requirements of subsection (a) were complied with. As regards compliance with subsection (b), the court found that the notice given prior to the second hearing on the Northeast Sector Map clearly showed, by means of a “sticker” placed on the Zoning Map and the entries made on the “log of issues” that the Council proposed to consider the zoning of the Nottingham tract within five specified classifications: DR 5.5, BM-CT, BR, DR 16, and MLR: “* * * There is no doubt that the sticker applied to the plat showed only that the Council was considering as proposed changes in the Board's recommendations for [the Nottingham] tract . . . five . . . separate zoning classifications for the property in question, and did not delineate separate areas for their application.

While it is true that they happen to be the same zoning classifications applied to the specific areas by the Planning Board, the notice made it crystal clear that the Council intended to give ³⁴⁸ consideration to zoning changes in the area within the listed classifications. * * * “* * * There is no doubt that the notice actually given informed the property owners and interested members of the public: (a) that it was the intent and purpose of the County Council to give further consideration to the nature of the zoning to be applied to the [Nottingham] tract. . ., and (b) that it would act within those 5 zoning classifications appearing under the heading: ‘Proposed County Council Resolution.’ There is nothing in the statute requiring notice of a precise suggestion or change by the Council.” The chancellor found apposite a paragraph from the opinion written for the Court by Chief Judge Brune in Hewitt v. Baltimore County, 220 Md. 48, 56 , 151 A. 2d 144 (1959) : “We do not think the statutory language could be construed as requiring the County Commissioners to state in advance (what they could hardly know) the exact nature of any action which they might take with regard to matters brought to their attention at the contemplated hearing. Indeed, it is difficult to see how (without either prejudgment or prophecy) the notice here given could have been much more explicit or informative than it was. The appellants certainly had no right to assume that the legislative body entrusted with the sole power to enact a comprehensive zoning or rezoning ordinance in Baltimore County was bound to adopt the proposals or recommendations submitted by the Zoning Commissioner.” The short answer is that no “further changes” were proposed at the second public hearing, with the result that the provision for a final hearing contemplated by subsection (b) never became applicable, as the chancel ³⁴⁹ lor found. The answer to the contention that the Council must set a final hearing on the specific zoning classification it ultimately adopted is found in the passage from the opinion in Hewitt , quoted above.

(ii) Nottingham and Rouse next contend that there was a failure to comply with Art. III, § 303 of the County’s Charter, and County Code, Title 22, § 22-21 (c). The Charter provides, in § 303: “. . . Action by Council. In all of its functions and deliberations, the county council shall act as a body and shall have no power to create standing committees or to delegate any of its functions and duties to a smaller number of its members than the whole.” This was further explained in the Reporter’s Note: “The manifest purpose of this section is to require the Council to act as a unit in all of its deliberations.

The Charter Board believed that a legislative body of only seven members could reasonably be required to transact its business without resort to the use of standing committees.” Title 22, § 22-21 (c) provides: “(c) Each change or amendment to be made in a zoning map as proposed by the planning board shall be voted upon individually by the county council, and each vote thereon shall be recorded in the council minutes.” What happened was essentially this. While the Council toured each of the five sectors by bus, it was decided that each councilman would be primarily responsible for zoning in his councilmanic district. After the first Council hearing, it became the councilman’s duty to recommend to the Council which issues should be “closed,” in ³⁵⁰ other words to identify those instances in his district where the Planning Board’s recommendation should be adopted, thus making unnecessary a second public hearing. It would seem that the Council members interacted as a group, but without formal vote, in the construction of the “log,” or list of issues recommended for consideration for the second hearing.

By this procedure the number of issues was reduced from some 700 to about 200. On 24 March 1971, the Council acted as a body in closing issues. As a practical matter, what was really done was to assign to each councilman responsibility for the ascertainment of facts in support of a recommendation which would form a basis for Council action. We find nothing in Art. III, § 303 of the Charter or in Title 22, § 22-21 which proscribes this.

The Council acted as a body in adopting Zoning Maps. The vote on the Northeast Sector Map was unanimous. We think that Judge Menchine had it just about right when he said: “More than a century ago in Board of School Commissioners v. County Commissioners, 20 Md. 449 [1864], it was