Walker v. Board of County Commissioners

COLLINS, J., delivered the opinion of the Court. This is an appeal from a decree denying the relief prayed in plaintiffs’ bill of complaint. Pursuant to Code, 1951, Article 66B, the County Commissioners of Talbot County, (the Commissioners), on May 16, 1953, adopted a zoning ordinance, (the Zoning Ordinance). The plaintiffs, appellants here, five property owners, as property owners filed an amended bill of complaint on February 21, 1955, against the Commissioners, the Planning and Zoning Commission, (the Commission), and the Appeal Board for the Commission, ⁷⁸ (Appeal Board), asking for a declaratory decree declaring the aforesaid Zoning Ordinance invalid and unconstitutional in its entirety; in the alternative that the-Zoning Ordinance be declared invalid and unconstitutional insofar as it affects the property of the plaintiffs; that the defendants be enjoined from enforcing .said Zoning Ordinance in the use of their properties for industrial purposes; and for other and further relief.

The-.decree declared that the Zoning Ordinance-was valid, constitutional and in full force and effect; that the Commission is legally constituted and entitled to function under the provisions of Code, 1951, Article 66B, supra; that the Appeal Board was legally created and is legally constituted and entitled to function as such under the provisions of Article 66B, supra; and requiring appellants to pay the costs of the proceedings. From that decree appellants appeal here. The bill of complaint alleges and the appellants ciaim that the Commission was hot legally created. Article 66B, supra, Section 12, provides in part; “(Personnel of the Commission.) The Commission shall consist .of five members, namely, a member of the Council and four persons' who shall be appointed by the mayor, and confirmed by the council, if the mayor be an elective officer, otherwise by such officer as council may in the ordinance creating the Commission designate as the appointing power.

All members of the Commission shall, serve, as such without compensation. The term of the ex-officio member shall correspond to his official tenure. The term of each member shall be five years or until his successor takes office, except that the respective terms of the five members first appointed shall be one, two, three, four, and five, years.” By Article 66B, supra, Section 10, “mayor” is defined as “the chief executive of the political subdivision,, whether the official designation of his office be Mayor, City Manager or otherwise.” “Council” is defined as “the chief legislative body of the political subdivision.” On August 14, 1951, the Commissioners unanimously passed ⁷⁹ Planning and Zoning Ordinance No. 1 creating the Commission and appointed five members: One, (Mr. Norman W. Harrington), for a term of one year; one for a term of two years; one for a term of three years; one for a term of four years; and one for a term of five years. They failed to name a member of the Commissioners to this Commission.

It is conceded by the appellees that the Commission was originally improperly constituted. However, failure to appoint a proper Commission would not invalidate the Ordinance as a whole. Cf. Bostock v. Sams, 95 Md. 400, 418 , 52 A. 665 .

Insofar as the Ordinance authorized the appointment of a Commission it could take effect at once, subject to the filling of vacancies by subsequent action of the “Mayor” and “Council”. On February 13, 1952, Mr. Harrington, one of the original members of the Commission, upon entering military service was forced to resign. At that time it was discovered that a member of the Commissioners was not included on the Commission. The Commissioners then unanimously appointed Mr. Omer Dulin, the President of the Commissioners, to the Commission.

Mr. Dulin was appointed to fill the unexpired term of Mr. Harrington, whose term being for one year, expired on August 14,1952. Mr. Dulin served on the Commission as a holdover member until his term expired as County Commissioner in 1954, when he was again re-elected a County Commissioner. He has continued to serve as a holdover member up to the time of the hearing below. His term from his original appointment on February 13, 1952, has in fact corresponded with his official term as a member of the Commissioners since that time.

In Benson v. Mellor, 152 Md. 481 , 137 A. 294 , a case involving the tenure of office of a County Commissioner, it was held that in the absence of a contrary intention incumbents in office rightfully hold over and perform the duties of their offices until the qualification of their successors, although there may be no express provision in the law for it. We must, therefore, hold that the legislative intent that a member of the Commissioners be a ⁸⁰ member of the Commission was complied with on February 13, 1952. Appellants contend that the appointments should have been made by the President of the Commissioners and confirmed by the Commissioners under Article 66B, Section 12, supra, and that under the Constitution of Maryland, Article 11 A, Section 3, the President of the Commissioners is the chief executive officer of that body. The appointments were made and approved by the Com-, missioners when all members were present.

If the President of the Commissioners had not agreed to those appointments, it is reasonable to assume that his disapproval would have been a matter of record. There is no record of his disapproval. From February 13, 1952, Mr. Dulin served with the other members of the Commission which is an indication of his approval of those members. We are of opinion that this was a sufficient compliance with the Enabling Act.

Appellants also complain because Mr. Norman Howeth resigned from the Commission on March 5, 1953, and his successor was not appointed until May 26, 1953. There is nothing in the record to show that the Commissioners did not act with reasonable promptness, under the circumstances, to fill the vacancy. Appellants further allege and contend that the Appeal Board was not legally created. Code, 1951, Article 66B, supra, Section 22, provides in part: “ (Board of Appeals.) The council shall provide for the appointment of a Board of Appeals, * * *.

The Board of Appeals shall consist of three members.” The minutes of the Commissioners show that on September 8, 1951, the Commissioners appointed three members to the Appeal Board. The appellants contend that because these appointments were not made by the President of the Commissioners alone, the Appeal Board was not validly constituted. The testimony shows that all the Commissioners agreed to these appointments. Therefore, the President of the Commissioners agreed to the appointments and they were confirmed by the council.

As stated by the chancellor, it ⁸¹ seems clear from the minutes of the Commissioners that each additional appointment was to replace a retiring member. There is no evidence that appellants ever appealed to this Appeal Board. The appellants further contend that there was no preliminary report thereon by any Planning Commission prior to a final report by such Commission nor has there been any final report by any Planning Commission prior to the enactment of the Zoning Ordinance and that there were no hearings thereon. Code, 1951, Article 66B, supra, Sections 21(d) and 21(f) provide: “21(d) (Method of Procedure.) The council shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed.

However, no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen (15) days’ notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. * * * 21(f). In order that the municipality may avail itself of the zoning powers conferred by this sub-title, it shall be the duty of the Planning Commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such Commission shall make a preliminary report and hold public hearings thereon before submitting its final report and the council shall not hold its public hearings or take action until it has received the final report of such commission.” Mr. Dulin testified that the Commission, of which he was a member, had a meeting on April 6, 1953, and on April 7th Mr. Voshell, a member of the Commission, appeared before the Commissioners and reported to them about the meeting of the Commission on the previous evening.

Mr. Voshell in his testimony read the following from the minutes of the meeting of the Commission of April 6, ⁸² 1953: “The Commission reviewed the revised draft of the Ordinance of Talbot County, including the maps which had been prepared at the request of the ‘Citizens Committee for Talbot County Development.’ The Commission tentatively approved these drafts, subject to further consideration when a public hearing is planned.” He testified that he went before the Commissioners the next day and informally presented to them what the Commission thought desirable to present at the public hearing. He said that on April 7th he went over in complete detail with the Commissioners the proposed Ordinance, the maps and what the maps showed, and the Commissioners agreed that this would be presented at the public meeting. He told them when he thought this public meeting should be held and asked their concurrence. We are of opinion that the maps and proposed Ordinance showing the tentative zoning constituted the necessary preliminary report to the Commissioners.

The Enabling Act, Section 21(f), supra, requires the Commission to recommend the boundaries of the districts and the appropriate regulations to be enforced therein. This preliminary report is to be submitted before a public hearing is held. We can find no provision for formal action of the Commissioners on that preliminary report or as to the form of that report. The maps and proposed Ordinance submitted appear to have been sufficient.

Through the newspaper advertisement, which was published as hereinafter stated, and the reference therein to the maps and draft of the Ordinance, which were open for public inspection at the office of the Commission, the requirement for submitting the preliminary report to the public was met in that it was thus presented in usable, written form and served as a proper and adequate basis for discussion at that public meeting. The exhibit shows that “once in each of one week beginning the 4th day of April, 1953,” a notice of public hearing was published in the Easton Star-Democrat of Easton, Talbot County. This was a notice that a public hearing would be held in the Easton High School in ⁸³ Easton on Monday, April 27, 1953, “* * * for the purpose of presenting a draft of a master plan and zoning ordinance for all of Talbot County, prepared to meet specifications of the five-point program advanced by the Citizens Committee for Talbot County Development. This hearing is called at the request of the Citizens Committee for the purpose of presenting this plan to the County, and determining if the county is ready to support it.

All interested persons are hereby notified of said hearing and are invited to attend. A draft of the ordinance and maps are available for inspection at Planning and Zoning Commission’s office in the County Building, Easton.” The minutes of the Commission show that this public hearing was held as advertised on April 27, 1953, that an estimated five hundred people attended, and that a special meeting of the Commission was held immediately following the public hearing. It was the opinion of the Commission, Mr. Dulin voting in agreement, “that a very great majority of those attending the open meeting were in favor of the plan presented and those attending represented the great bulk of the County.” The Commission therefore voted to recommend the plan as presented at the public hearing to the Commissioners. Appellants’ objection to the meeting of April 27th seems to be that it was conducted by the Citizens Committee for Talbot County rather than by the Commission.

Mr. Voshell, a member of the Commission, testified that he conducted the public hearing of April 27th. Offered in evidence was a letter to the Commissioners from Mr. Voshell, temporary chairman, stating that the Commission voted unanimously to recommend the plan presented at the public hearing of April 27th and that a great majority of those present at the meeting were in favor of the plan. The letter further stated: “Please therefor consider this our formal recommendation of the attached plan and the maps dated, April 28, 1953.” The Commissioners by advertisement printed in the Easton Star-Democrat once in each of three successive weeks before the fifteenth day of May, 1953, gave notice ⁸⁴ of a public meeting to be held in the Easton Armory-on May 16, 1953, for the purpose of a discussion of the enactment of an ordinance, including a map of a master plan for the zoning of Talbot County. In addition to the notice of this meeting, the full text of the proposed Ordinance was published for two successive issues in the Easton Star-Democrat.

At the public meeting in the Armory on May 16th approximately one thousand people were present. The large majority of those present were in favor of the proposed Ordinance. It therefore appears that the necessary' public hearings were held on the Zoning Ordinance. Code, 1951, Article 66B, supra, Section 17, provides in part: “Before the adoption of the plan or any such part, amendment, extension, or addition the Commission shall hold at least one public hearing thereon, notice of the time and place of which shall be given by one publication in a newspaper of general circulation in the municipality.” The testimony shows that after this second public meeting the Commissioners met and made certain very minor changes in the Ordinance.

Appellants contend that the Commissioners had no power to change the Ordinance after the public meetings and that it should have been adopted in exactly the same form as there presented. Of course, the object of the public hearings was to give the public an opportunity to criticize and recommend changes in the Ordinance. It could hardly be contended that, if the Commissioners decided to make minor changes in the Ordinance, public meetings would have to be continuously held until the Ordinance was submitted in its exact final form. It is evident that these minor changes were not substantial and did not violate the intent of the Enabling Act.

The same contention was made in the case of Town of Burlington v. Dunn, (Mass., 1945), 61 N. E. 2d 243 . It was there said: “There is nothing in the státute requiring another hearing whenever, as the result of one hearing, the board decides to amend what ⁸⁵ had previously been proposed. The amendments were not of a fundamental character.” Appellants further contend that the zoning maps are uncertain, indefinite, self-contradictory and irreconcilable. It is admitted that there are some slight errors in these maps where certain lines over-lap and minor areas contain wrong colors.

The zones are “reasonably capable of comprehension.” Mallett v. Village of Mamaroneck, 123 N. Y. S. 2d 249; Auditorium, Inc. v. Board of Adjustment, (Del.), 91 A. 2d 528 . However, none of these defects in any way affect appellants’ property. These errors could be corrected by administrative action of the Commissioners. Article 66B, supra, Section 21(e), provides in part: “(Changes.) Such regulations, restrictions and boundaries may from time to time be amended, supplanted, changed, modified or repealed.” Such minor irregularities will not vitiate zoning ordinances.

Speroni v. Board of Appeals of City of Sterling, 368 Ill. 568 , 15 N. E. 2d 302 . There is no claim here that anyone had difficulty in determining the zoning of his property. As to the contention that the Zoning Ordinance as finally adopted did not provide for an Appeal Board arid for appointment of its members, Section IX of the Zoning Ordinance provides for the powers and duties of the Appeal Board and the procedure of that Board. As hereinbefore decided, the Appeal Board was legally appointed prior to the adoption of the Zoning Ordinance on May 16, 1953.

As hereinbefore stated, the Commissioners legally created the Appeal Board. There is no requirement in Article 66B, Section 22, supra, that the Appeal Board be created by ordinance. Appellants interpret the first sentence of Article 66B, Section 21(d), supra, to require the issuance of permits and provisions for enforcement of the Ordinance and claim that there are no such provisions in the Ordinance. The section relied on says nothing about permits and provides that the Commissioners may prescribe the manner in which the regulations may be enforced.

Pursuant ⁸⁶ to Article 66B, supra, Section 84, Section XIV of- the Zoning Ordinance provides penalties for its violation. Of course, as contended by the appellants, powers granted to county commissioners should be strictly construed. Barnett v. Co. Commissioners for Charles Co., 206 Md. 478 , 112 A. 2d 492 . Judge Hammond said for this Court in the case of Crozier v. Co. Commissioners of Prince George's Co., 202 Md. 501 , 97 A. 2d 296 : “The power of the County Commissioners of Prince George’s County to zone or rezone is one that they have only by statutory delegation and can be exercised only to the extent and in the manner the legislature has said that it may be. * * * The requirements of the ordinance are binding on .the Commissioners sitting as a District Council and they may exercise their zoning powers only by following the procedure specified; this is implicit, .if not explicit, in Sections -985 and 988 of the Prince George’s County Code and Sections 4 and 5 of Article 66B of the Code (1951 Ed.).

The cases spell out the necessity of substantially complying with legislative procedural and substantive prerequisites as to notice and hearings if the action of zoning authorities is to be valid. Heath v. Mayor & C. C. of Baltimore, 187 Md. 296 , 49 A. 2d 799 ; Louisville & Jefferson County