Vestry of St. Mark's on Hill Episcopal Church v. Doub

Keating, J., by special assignment, delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for ³⁹⁰ Baltimore County dismissing a bill of complaint, filed by certain residents and landowners of an area adjacent to Pikes-ville, which attacked the validity of a resolution of the County Commissioners of Baltimore County (hereinafter called the County Commissioners) passed on January 16, 1957, by which the County Commissioners adopted a new Zoning Use Map for the Third Election District of the County, embracing the Pikesville area. The resolution and map changed the classification of defendant Doub’s property, along with other properties, from Residential (R-6) to Business Local (B-L). The appellants who own land and live nearby object.

The appellants assign three reasons for the invalidity of the resolution as it related to the property of the defendant Doub. Appellants first complain that § 532 (c) of the Baltimore County Code of Public Local Laws (1955 ed.), which sets out the procedure to be followed in adopting a new use map incident to a comprehensive plan, was not adhered to in that the requirement of this statute, that the Zoning Commissioner make an initial study, make a preliminary report and hold a public hearing thereon before submitting his final report to the Commissioners, was not properly carried out and base their assertion on the following uncontroverted facts as disclosed by the record: On June 25, 1956, the County Commissioners adopted a resolution (apparently not introduced into evidence) as to the advisability of changing some of the zoning district boundaries in the Third Election District and directing the Zoning Commissioner to make a preliminary report with respect to proposed amendments, supplements and changes of zoning districts and directing him to hold a public hearing thereon after public notice, and thereafter to submit to the County Commissioners his final report with respect thereto. He made such report and in it included some recommendations for changes, and accompanied the report with a map. In this preliminary report and first map the Doub property was shown as Residential-Apartment (rather than R-6 as previously).

The Doub property was actually an unimproved lot. Notice of a public hearing before the Zoning Commis ³⁹¹ sioner on this preliminary report was given by publication in all County papers for two weeks prior to July 16, 1956, and it referred to the map which was on file and open for inspection. On July 16, 1956, the Zoning Commissioner held his hearing as advertised. It was attended by appellants or their representatives, but because they did not object to the change in classification of the Doub property from R-6 to R-A there was no discussion or mention of the Doub property during the hearing.

Sometime later, and before the Zoning Commissioner prepared and submitted to the County Commissioners his final report and a map accompanying same, he changed the Doub property from R-A to Business Local—-B-L. On December 12, 1956, the County Commissioners, after giving a proper notice by advertisement in all County papers, held a hearing on the final report and map as submitted by the Zoning Commissioner. None of the appellants or their representatives attended this hearing although they knew it was to be held. The County Commissioners used the Zoning Commissioner’s final report and map as a basis for discussion at the hearing, and after further deliberation, on January 16, 1957, approved and authenticated an official zoning map of a portion of the Third Election District and the same day adopted the resolution approving the new zoning districts, etc. The new and authentic map and the resolution enlarged the particular B-L area in question to include not only the Doub property but some additional properties, including that of some of the appellants. It will be seen from the above facts that the appellants concede, as well they must, the holding of a hearing by the Zoning Commissioner on his preliminary report on July 16, 1956.

They contend, however, that because at that time no substantial change in classification of the subject property was proposed, the preliminary report and map were, as to that particular property, final and the Zoning Commissioner (and by inference the County Commissioners) had no right thereafter to make any changes in respect thereto except upon notice to those interested. With this strained interpretation of the statute we cannot agree for the following reasons: ³⁹² Rezoning by comprehensive plan is a legislative function and has been repeatedly so held. Such a function cannot be delegated except upon express authority. Baltimore County v. Missouri Realty, Inc., 219 Md. 155 .

Yokely, Zoning Law and Practice, § 61. It seems clear that the intent of § 532 (c), supra, was to provide that the County Commissioners should have the help of the Zoning Commissioner in this respect only for the purpose of preliminary study and advice by recommendation. This view is strengthened by the fact that the statute requires the County Commissioners themselves to hold a hearing on the final report and to give notice. This presupposes the right of the Zoning Commissioner to make changes after his preliminary report and before his final report.

Then too, if any proposal incorporated by the Zoning Commissioner in his reports could be enforced as an act of finality the very discretion which is lodged in the County Commissioners as the legislative body would be thereby nullified. A careful reading of the statute in question—§§ 532 (b) and (c) will, we believe, reveal the employment of exact language to support the intention which we attribute to it. The significant words of authority are [§ (b)] that the County Commissioners shall have power to “divide or subdivide Baltimore County * * *” and [§ (c)] that they “shall determine the manner” in which the boundaries, districts, etc., shall be established; whereas the statute also provides that it shall be the duty of the Zoning Commissioner “to recommend the boundaries” etc. While the precise function of these preliminary reports and hearings thereunder by the Zoning Commissioner has not heretofore been passed on by this Court, the appellate courts of some other states having very similar statutory provisions have given the matter consideration. The Supreme Court of Missouri in State v. Davis (Mo.), 259 S. W. 80 , in discussing this very question under a statute, almost exactly like § 532 (c), supra, requiring a planning Commission (instead of the Zoning Commissioner) to make preliminary reports, hold hearings, etc., had this to say at page 82 > ³⁹³ “To my mind these hearings are merely advisory to the Plan Commission, and the views obtained to be considered before the drafting of the final report.

The Commission itself is but an advisory body to the legislative body of the city. * * * It is not until the lawmaking body puts the final report into the shape of an ordinance that the rights of the citizen are touched.” And in the case of Whittemore v. Town Clerk of Falmouth (Mass.), 12 N. E. 2d 187 , a somewhat similar statute, requiring a planning board to hold hearings before making a final report and recommendations with respect to changing districts, or regulations, etc., was the subject of interpretations, albeit for reasons somewhat different from those concerned here. The Massachusetts Court indicated that the use of the word “recommendations” in the statute connotes advice based upon study and enlightenment elicited at the public hearing. It is significant that the word there emphasized is the one used in § 532 (c), supra, to indicate the duty of the Zoning Commissioner. And now we come to the fallacy in the appellants’ contention.

The Zoning Commissioner could not, under the law, act otherwise than as a fact finder and adviser in respect to any property embraced within the comprehensive plan. The appellants are presumed to know the extent or limitations of his authority. They had no right to assume that the Zoning Commissioner would, or could, make no change in his original proposal with respect to any property or that the County Commissioners were in any way bound to adopt, in detail, the proposals or recommendations of the Zoning Commissioner. The fact that they neglected to follow the matter through its final hearing before the County Commissioners, though they admittedly had notice and the opportunity to do so, does not serve to invalidate the action.

We now consider the second objection: That the County Commissioners acted arbitrarily and capriciously in zoning the subject property B-E in the new comprehensive map because, although the Baltimore County Code, § 532 (a), re ³⁹⁴ quires zoning regulations to be designed, in part, “to reduce congestion in the roads, streets and alleys,” the evidence in the case showed, according to the view of the appellants, that the question of traffic congestion was not considered, or if considered at all, was disregarded, and that the facts disclosed that traffic congestion was more likely to increase than decrease as a result of the change. Again we disagree. The provision respecting traffic congestion is only one of six general objectives of this statutory design. Some of these six general objectives have manifold purposes.

Hence the statutory mandate is one of many facets the reconciling of which, in some instances, might be difficult, if not impossible. It is our view, therefore, that in exercising their legislative discretion on the comprehensive rezoning, the County Commissioners were required to consider the question of traffic congestion at or near the subject property, but only in its relation to all of the other objectives. Appellants rely heavily on certain statistical evidence in the