Turf Valley Associates v. Zoning Board

Hammond, C. J., delivered the opinion of the Court. Turf Valley Associates, the appellant, owns some eleven hundred acres of land in Howard County which for years it has been attempting to have rezoned for combined intense residential and commercial uses. It was successful below but lost on appeal in Board v. Turf Valley, 2 47 Md. 556 . On its second effort, Judge Macgill found in November 1970 that the zoning authorities of Howard County had acted arbitrarily and illegally in denying a change in the classification of its land to Planned Community zoning (at the argument we were told that a Planned Community District would be the equivalent of a mini-City of Columbia).

We say “would be” because on March 9, 1971 the Zoning Board of Howard County deleted from the County’s comprehensive zoning ordinance Sec. 17A, the section that provided for planned communities. The present appeal by Turf Valley ⁶³⁴ is from an order of Judge Childs sitting in the Circuit Court for Howard County, holding the deletion to have been legally and effectively accomplished. Meanwhile, Howard County had appealed from Judge Macgill’s order in Turf Valley’s second effort. We heard argument in the second case on May 5, 1971, and, being then told by counsel that the present appeal was on its way to us, and that if we affirmed Judge Childs the appeal from Judge Macgill would become moot (see Mandel v. Board of County Commissioners, 238 Md. 208 ), it was agreed that we would defer decision until the present appeal was decided.

We have concluded that Judge Childs’ decision must be affirmed, and we will dismiss the appeal from Judge Macgill as moot. The agreed statement of facts shows the following. On July 9, 1968 the County Commissioners of Howard County added Sec. 17A—Planned Community (P.C.) Districts—to the County’s comprehensive zoning ordinance. Turf Valley is the first and the only applicant for reclassification of land to the new district.

In the general election of 1968 the voters of Howard County adopted the charter form of government. On January 22, 1969 the first County Executive and the first members of the County Council were elected, taking office six days later. Before Howard County became chartered, the power of the County Commissioners to zone was derived not from the basic state zoning enabling act codified as Code (1970 Repl. Vol.), Art. 66B, but from the special delegation granted by Ch. 19 of the Laws of the Extraordinary Session of 1948.

Section 1109 of the County Charter continued the existing comprehensive zoning ordinance of the County in full force and effect. The adoption of the Charter made the Express Powers Act, Code (1966 Repl. Vol.), Art. 25A, § 5 (X) the basis of the County’s power to zone. That section reads: “The following enumerated express powers are hereby granted to and conferred upon any ⁶³⁵ county * * * which shall hereafter form a charter under the provisions of said Article 11A of the Constitution * * * [t] o enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning.” The Howard County Charter in Art. II establishes the County Council as the legislative branch of the County government.

Section 202 says: “The legislative power of the County is vested in the County Council of Howard County which shall consist of five members who shall be elected from the County at large.” Section 204 provides that: “In all of its functions and deliberations, the 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.” The depth and extent of the law making power is spelled out in Sec. 207: “The Council is vested with the law making power of the County, including all such powers as heretofore have been exercised by the General Assembly of Maryland and transferred to the people of the County by the adoption of this Charter.” One of the first legislative acts of the Council was to pass Council Bill No. 3, 1969 (Bill 3). Bill 3 repealed certain existing zoning procedural provisions, and went on: “to provide for a legislative agency of the County Council consisting of the members of the County Council to be the Zoning authority of Howard County, to provide for the designation, establishment, adoption, modification, supplementation, enforcement, and repeal of zoning districts, boundaries, and regulations, to provide for the procedure of designation, establishment, adoption, amendment, modification, supplementation and repeal thereof, and to provide further for appeals from decisions of the Zoning Board, and, further declaring this Act to be an emergency measure.” ⁶³⁶ Section 16.200 of Bill 3 provides that the Howard County Zoning Board which the Bill creates shall be the zoning authority of the County and names the act the “Zoning Enabling Act of Howard County.” Section 16.201 states that the intention of the County Council is “to establish a legislative agency of the County Council” as the County’s zoning authority, and makes the five members of the County Council the five members of the Zoning Board and the chairman and the vice-chairman and the secretary of the Council the chairman, the vice-chairman and the secretary, respectively, of the Board. Section 16.202 of the Zoning Enabling Act provides: “For the purpose of promoting the health, safety, morals and general welfare of Howard County” the Zoning Board is empowered to regulate size and location and use of buildings, open spaces and density of population (the words are those generally used in § 4.01 (a) of Art. 66B of the Code (1970 Repl. Vol.) and in § 21 (a) of Art. 66B before it was superseded by Sec. 4.01 (a) in 1970).

Section 16.203 authorizes the Zoning Board to divide the County into districts and make regulations uniform in each district and provides that such district boundaries and regulations shall be made “in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets [etc.].” There follow other standard designs, the precise words being those generally used in zoning enabling acts, as for example in § 4.03 of Art. 66B of the Code (1970 Repl. Vol.) and in § 21 of Art. 66B of the Code (1957). Section 16.204 provides that: “Zoning regulations, districts, boundaries and restrictions may from time to time be amended, supplemented, changed, or repealed by the Zoning Board” after notice and hearing in manner specified and after receiving and considering the report of the Planning Board before final decision. Section 16.206 requires that: “All public hearings on zoning matters shall be conducted in accordance with the rules of procedure adopted by the Zoning Board insofar as they do not con ⁶³⁷ flict with the rules of administrative procedure promulgated by law.” Section 16.207 provides for judicial review, granting any aggrieved person or officer, department, board or bureau of the County or State an appeal to the Circuit Court “in accordance with the Maryland Rules of Procedure providing for appeals from administrative agencies.” The court, without a jury, may affirm, remand or reverse or modify the decision if the substantial rights of the appellant have been prejudiced because the Board’s findings or decisions violate constitution or charter, or statute, were made upon unlawful procedure, were fraudulent, grossly erroneous to the point of bad faith, arbitrary or illegal or “unsupported by competent, material and substantial evidence in view of the entire record as submitted.” 1 During the political campaign of 1970 in Howard County most of the twelve candidates for the County Council promised to support an amendment to the County’s comprehensive zoning ordinance that would delete the Planned Community District from the ordinance and the sole candidate favoring retention of the P.C. classification was not elected.

Councilman Charles E. Miller, who was campaigning for reelection, petitioned the Zoning Board (pursuant to Sec. 16.205 of the Zoning Enabling Act which permits “any duly * * * elected * * * County * * * official [to] petition the Zoning Board for an amendment, supplement, addition, repeal, or a change to the zoning regulations * * *”) to eliminate the Planned Community districts before the election but the Board refused to act. After Mr. Miller was reelected he insisted on action on his petition. Due notice was ⁶³⁸ given of a hearing that began on January 26, 1971, and was continued to February 10. The Zoning Board heard testimony and received other evidence, considered the report of the Planning Board (which recommended denial of the petition but suggested refinements and improvements in the regulations relating to Planned Communities) and on March 9 deleted from the comprehensive zoning ordinance Sec. 17A (P.C.), the Planned Community provisions.

Turf Valley appeared before the Zoning Board in opposition to Councilman Miller’s petition. It objected first on the ground that the zoning regulations as they existed prior to the passage of Bill 3 permitted only the County Commissioners to amend regulations (and presumably that after the Charter took effect only the County Council could legislate as to zoning) and, second, to the participation in the proceedings of Councilmen Miller and Jones on the ground that they had demonstrated by their public and private statements that they would vote to delete Sec. 17A come what may. Both councilmen refused to withdraw and both voted. 2 Turf Valley took an appeal to the Circuit Court. It alleged that the decision to delete Sec. 17A was illegal, unconstitutional and void for all of the reasons that the appeal section of the Zoning Enabling Act (Sec. 12.607) authorizes the Circuit Court to reverse or modify a decision of the Zoning Board.

It alleged further that the action of the Zoning Board was tainted fatally by the participation therein of Councilman Miller and of other councilmen who in what amounted to a sham hearing recorded for the record the vote they had announced before the hearing began. Turf Valley makes two contentions here. First, it says, the County Council did not legally and effectively delegate all zoning powers to the Zoning Board as it pur ⁶³⁹ ported to do. Essentially, this argument is that even if it be assumed that a right to so delegate could constitutionally and legally have been bestowed on the Council, the Howard County Charter did not bestow it, and, in any event, the Council by passing the Administrative Procedure Act made the Zoning Board an administrative agency, and legislative powers cannot be delegated to an administrative agency.

Second, it argues that the bias and prejudice of Messrs. Miller and Jones against Turf Valley made void the action of the Zoning Board. We think there is no fundamental barrier to conferring on the legislative branch of a chartered county the right to constitute itself a zoning body and that the Howard County Charter permitted the Council of that County to act as it did in this regard. There is no present need to go beyond this holding.

The governmental processes of zoning early were recognized as best exercised locally and the legislature permitted such exercise by adding Art. 66B to the Code by the passage of Ch. 705 of the Laws of 1927, the first basic zoning enabling act, which granted zoning powers to cities and incorporated towns of more than 10,000 inhabitants and Ch. 599 of the Laws of 1933, which generally provided the zoning power for counties and all incorporated areas. The validity of this delegation cannot now successfully be challenged if ever it could have been. Bradshaw v. Lankford, 73 Md. 428, 430 ; Rossberg v. State, 111 Md. 394, 412-415 ; Gordon v. Montgomery County, 164 Md. 210, 213 ; Carney v. City of Baltimore, 201 Md. 130, 135 . Article XI-A of the Constitution, § 3 provides that upon adoption of a charter the County Council of a County has, subject to the Constitution and Public General Laws of the State, “full power to enact local laws of said * * * County including the power to repeal or amend local laws * * * upon all matters covered by the express powers granted [pursuant to § 2].” Section 2 directs the General Assembly to provide a grant of express powers for chartered counties.

The General ⁶⁴⁰ Assembly complied by the passage of Art. 25A of the Code and § 5 (X) of Art. 25A gives the chartered county power to enact local laws “relating to zoning and planning.” Section 4 of Art. XI-A of the Constitution provides that after adoption of a charter “no public local laws shall be enacted by the General Assembly for said * *