Prince George's County v. Bahrami

Menchine, J., delivered the opinion of the Court. On July 25, 1969, Bahram Bahrami (Bahrami or appellee) applied to the District Council for the Maryland-Washington Regional District in Prince George’s County, Maryland (District Council) 1 for the rezoning of 0.97 acres of land on the northwest side of St. Barnabas Road. On April 30,1975, the District Council, acting after a granted motion for reconsideration of a previously granted conditional reclassification, denied the application for rezoning. Events occurring before the District Council in the intervening years were the causes of the timely and successful appeal by Bahrami to the Circuit Court for Prince George’s County.

The trial court’s reversal had the effect of restoring a prior order of the District Council that had granted conditional rezoning. Prince George’s County, Maryland ("County) now has appealed to this Court. County and Bahrami both question, for widely differing reasons, the issues that are available to the litigants in the appeal from the District Council’s order of April 30,1975. County contends that “the appellee should have taken action to terminate the reconsideration process in 1971.

He ⁶⁴⁶ cannot now come before the court and attack the reconsideration. An appeal [to the circuit court] could only be taken from the subsequent decision of the District Council denying the requested rezoning, and not from the Council’s original action granting the petition for reconsideration.” Alternatively, the County contends that the trial court’s restoration of the prior order of the District Council that had granted the requested rezoning with conditions, was erroneous. County argues that the trial court’s action resulted from a misinterpretation of the zoning ordinance’s time limitation upon the District Council’s exercise of the right to reconsider. Otherwise stated, County also is contending: (1) that the motion for reconsideration, filed on March 4, 1971, was timely; (2) that the District Council’s action on April 8,1971, in voting to reconsider its prior grant of the zoning reclassification to the subject property was a lawful and timely exercise of the authority conferred by the zoning ordinance; and (3) that the trial court’s restoration of the District Council’s previously granted conditional reclassification was erroneous.

Bahrami contends that the petition filed on March 4,1971, seeking reconsideration by the District Council of its prior order granting conditional reclassification, was without legal effect: (1) because of the alleged failure to serve the same upon two individuals claimed to have been parties to the original hearing; (2) because it lacked a required affidavit; and (3) because it was not acted upon within the time prescribed by law. We reject, as did the trial court, County’s first contention that Bahrami could not in 1975 appeal from the 1971 reconsideration order of the District Council. In Kay Constr. Co. v. County Council, 227 Md. 479 , 177 A. 2d 694 (1962), it was said at 489-90 [700]: “Moreover, this Court has construed statutory provisions for appeal from decisions of administrative agencies as applicable only to orders that are final in nature, and not to preliminary ⁶⁴⁷ procedural or interlocutory orders.

Celanese Corp. v. Bartlett, 200 Md. 397 , 90 A. 2d 208 (1952); Bogley v. Barber, 194 Md. 632 , 72 A. 2d 17 (1950). The resolution of the County Council granting reconsideration was not an order final in nature from which an appeal could be taken. Appellant was thus entitled, upon appeal from the subsequent unfavorable decision of the Council after the rehearing, to a review of the legality of the recons ideration. ” We reject the first two contentions of Bahrami because: as to (1) the individuals allegedly unserved with a copy of the petition for reconsideration are not shown by the record to have been parties to the cause in the original hearing before the District Council, and as to (2) the petition for reconsideration recites compliance with the provisions of the ordinance and bears the signature and seal of a notary public, plainly implying that the document was under oath as required thereby. In our view, the basic question on appeal is: Was the motion for reconsideration of the grant of reclassification with conditions acted upon within the time prescribed by ordinance?

If the answer to that question is “No,” then the reconsideration action of the District Council was a nullity and the decision of the trial court restoring the prior order granting reclassification with conditions must be affirmed. If the answer to that question is “Yes,” then the action taken by the District Council to reconsider was validly made and the decision of the trial court to the contrary must be reversed. In the latter case the cause must be remanded for determination whether the final action by the District Council in denying reclassification was reasonably debatable. What we conceive to be the pertinent parts of the Prince George’s Zoning Ordinance, bearing upon or controlling our decision in the subject case, are these: ⁶⁴⁸ “30.4 District council action on proposed amendment.

No action shall be required by the district council on any proposed zoning map amendment at the time of public hearing. The district council shall announce its decision granting, denying, modifying, or deferring the proposed zoning map amendment within thirty (30) days of the date of public hearing. Deferred applications, upon which no decision is rendered within ninety (90) days of the date of deferral, shall be considered denied. 30.41 REVISORY POWER OF DISTRICT COUNCIL. (a) For a period of thirty (30) days after the date of mailing the notice of the action or final decision of the district council on any application for a zoning map amendment, or thereafter pursuant to a petition for reconsideration filed within such thirty (30) day period, the district council shall have revisory power and control over such action or final decision.

After the expiration of such period the action or decision shall stand and be the final determination as to all matters considered under the application and no revisions thereof may be made except to correct mistakes or irregularities not amounting to a change of use permitted in the zoning expressed in the decision. (b) Reconsideration. The district council may, pursuant to a petition for reconsideration or upon its own motion, filed or acted upon within the time set forth in subparagraph (a) of this subsection, reconsider the application on such grounds as may be stated in the petition or motion. The petition, in addition to ⁶⁴⁹ setting forth grounds for reconsideration, shall have contained therein an affidavit that the same is not filed for the purpose of extending the time of appeal of the action or decision, that there is good and sufficient reason to support the petition and that a copy of it has been served by regular mail, postage prepaid, upon each party who appeared at the public hearing or his spokesman or counsel.

An opportunity will be given to the parties named in the record of the public hearing to be heard or to file a response if any member of the district council requests it before the petition or motion is acted on. The district council may act upon the petition for reconsideration with or without a hearing and shall act upon such petition or its own motion within sixty (60) days of the original decision or the same shall be deemed to be affirmed. 80.5 Conditional zoning. In approving any zoning map amendment, the district council may give consideration to and adopt such reasonable requirements, safeguards and conditions (hereinafter referred to as ‘conditions’), as may in its opinion be necessary to protect surrounding properties from adverse effects which might accrue from such zoning map. 80.51 The applicant may in his application consent to conditions believed to be desirable for the consideration of the planning commission and the district council. Conditions consented to by the applicant in the application, or in the evidence adduced before the district ⁶⁵⁰ council shall be binding if imposed by the district council.

Conditions adopted by the district council shall become a permanent adjunct to the zoning map amendment and shall be binding so long as the zoning category granted by the council shall remain in effect. 30.52 When a zoning amendment is approved subject to adopted conditions, the applicant shall have ninety (90) days from the date of approval to accept or reject the land use classification as conditionally approved. The district council’s action shall be final upon entry of an order incorporating the acceptance or rejection of the land use classification as conditionally approved. The applicant shall advise the council in writing within such period of the land use classification as conditionally approved. Failure to advise in writing within such period of such acceptance or rejection shall be deemed a rejection thereof.

Rejection shall have the effect of voiding the zoning amendment and reverting the property to its prior zoning classification, and such reversion shall be evidenced by the passage of a board order by the district council.” Understanding of the disparate contentions of the litigants requires a knowledge of the dates on which the District Council acted and the nature of the action taken thereon from the first to the final action taken by the District Council: Action Date Public Hearing September 9,1970 Action Deferred October 7,1970 ⁶⁵¹ DATE October 23,1970 Vote to Approve C-0 with conditions December 2,1970 Notice of October 23rd action sent December 28,1970 Acceptance of Conditions February 2,1971 Vote to Approve after acceptance February 10,1971 Notice of 2/2/71 decision sent March 4,1971 Petition for Reconsideration received April 8,1971 Vote to Reconsider April 30,1975 Denial of Reclassification after Reconsideration Appeal to Circuit Court for Prince May 28,1975 George’s County The litigants concede that Bahrami’s appeal from the final order of the District Council was taken within thirty (30) days of its passage and permitted consideration whether the order appealed from was lawfully within its power at the time of passage. The trial court held: (a) that the District Council vote to reconsider on April 8, 1971 was taken beyond the sixty day period provided by § 30.41 (b) of the ordinance and thus was beyond the lawful reach of District Council action, and (b) that the order passed by the District Council on February 2, 1971, granting conditional zoning reclassification was the final order of the District Council that fixes the zoning applicable to the subject property. County’s position on what we conceive to be the basic issue on this appeal is that February 10, 1971 2 is the beginning date for calculation of the sixty day period within which the District Council is authorized to reconsider a prior reclassification and that the vote to reconsider on April 8, 1971, was timely taken. Bahrami takes two alternative positions: 1. “[T]he ‘original decision’ of the District Council was on the October 23, 1970, date when the District Council originally or first decided to ⁶⁵² conditionally grant the requested rezoning, and is the date from which the sixty (60) days [of § 30.41 (b)] is measured, and that the action by the District Council in granting the Petition for Reconsideration on April 8, 1971 was beyond the sixty (60) day requirement.” 2. “[E]ven if the date of the District Council decision on February 2, 1971, in granting the approval of the rezoning after the conditions had been accepted is considered as the ‘original decision, the District Council still acted five (5) days beyond the sixty (60) day requirement when it acted on the Petition for Reconsideration on April 8,1971.” In Crozier v. Co. Comm.

Pr. George’s Co., 202 Md. 501 , 97 A. 2d 296 (1953), it was said at 506 [298]: “The requirements of the [zoning] ordinance are binding on the Commissioners sitting as a District Council and they may exercise their zoning powers only by following the