Washington County Taxpayers Ass'n v. Board of County Commissioners

Smith, J., delivered the opinion of the Court. This case is a challenge to the adoption of the comprehensive plan for Washington County. The attack is based upon contentions of inadequate notice of a public hearing and of an improper public hearing by the Washington County Planning and Zoning Commission. We agree with the trial judge that the plan was properly adopted.

We suspect that a part of the problem in this case may be some confusion relative to the terms planning and zoning. On this subject 101 C.J.S. Zoning § 4 (1958), states: “While ‘zoning’ and ‘planning’ have been considered so closely akin as to constitute a single concept, and there is a definite and harmonious relationship between them, they do not cover identical fields of municipal endeavor, and the terms are not synonymous or interchangeable, although they are sometimes used interchangeably. They are not identical in concept, although closely related therein and there is a distinction, as well as ⁴⁵⁶ a difference, between them, zoning being concerned primarily with the use of property. “So, zoning may not entirely exclude planning; planning embraces zoning, in a general way, but the converse is not true, municipal ‘planning’ being a term of broader significance than ‘zoning.’ ” Id. at 671-72. See also E. Yokley, Zoning Law and Practice § 1-2 (3rd ed. 1965), and Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 149 , 198 A. 225 (1938), where it is said that planning “connotes a systematic development contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power,” or State v. Ohio Power Co., 163 Ohio St. 451 , 460, 127 N.E.2d 394 (1955), stating that planning “embraces the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly included within the police power.” Most of the counties of Maryland, including Washington County, have had the power to set up planning commissions and to adopt county plans since the passage of Chapter 599 of the Acts of 1933.

Pursuant to the authority of what is now Code (1957, 1970 Repl. Vol.) Art. 66B, § 3.01, Washington County proceeded to appoint such a commission. By § 3.05 it became “the function and duty of the commission to make and approve a'plan [to] be recommended to the [County Commissioners of Washington County] for adoption .'. . .” Upon adoption the plan would “serve as a guide to public and private actions and decisions to insure the development of public and private property in appropriate relationships . ...” As a minimum it was required to contain “[a] statement of goals and objectives, principles, policies, and standards [to] serve as a guide .for the development and economic and social well-being of [Washington County],” a land use element, a transportation plan element, a community facility plan element, and .an element containing the planning commission’s recommendations for land ⁴⁵⁷ development regulations to implement the plan. In the preparation of its plan the commission was mandated by § 3.06 to “make careful and comprehensive surveys and studies of present conditions and future growth of the jurisdiction, and with due regard to its relation to neighboring territory . . . with the general purpose of guiding and accomplishing the coordinated, adjusted, and harmonious development of the jurisdiction, and its environs which [would], in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including among other things, adequate provisions for traffic, the promotion of public safety, adequate provision for light and air, conservation of natural resources, the prevention of environmental pollution, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements.” Unless overruled as provided in § 3.08, once the plan is adopted “as a whole or for one or more geographic sections or divisions of the jurisdiction, no street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether public or privately owned, shall be constructed or authorized in the jurisdiction or major geographic section thereof until the location, character, and extent of such development shall have been submitted to and approved by the commission as consistent with the plan . . . .” Sec. 3.07 provides that “[b]efore recommending the adoption of the plan . . . 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 jurisdiction.” Unlike the provisions relative to zoning where § 4.04 requires a hearing by the local legislative body (the county commissioners in this instance) before adoption of a zoning ordinance, no hearing by the County Commissioners of Washington County was mandated. ⁴⁵⁸ Appellants Julian Oliver and Edgar W. King (taxpayers and residents of Washington County) and the Washington County Taxpayers Association, Inc., sued the County Commissioners of Washington County and the Washington County Planning and Zoning Commission seeking a declaratory judgment that the plan adopted by the County Commissioners of Washington County on October 12, 1971, was invalid, unconstitutional and unenforceable, together with an injunction against acting, administering, or enforcing or applying the provisions of the plan “to the Petitioners or their property.” The challenge is based upon a contention that the notice of public hearing was not legally adequate and that the hearing did not “afford the public the opportunity to speak against the plan and to oppose the concept of and the need for the same,” believed by them to be mandated under § 3.07.

They particularly refer in their objections relative to notice to the reference to “preliminary report” appearing in the notice. This was an obvious inadvertence or oversight since that terminology is found in § 3.05 (d) relative to the procedure for the adoption of zoning. The other contentions relative to the hearing are tied in with the appellants’ second point, a claim that at the hearing they were not permitted to voice their objections to the adoption of any plan and that they were limited to an argument of three minutes per person. They say they take “the position that the purpose of a public hearing is to permit the public to state their positions for and against the issue under consideration, and to criticize as well as recommend, to present objections as well as approval and to protest.” The notice of public hearing read as follows: “PUBLIC HEARING October 6, 1971 7:00 P.M. Court Room No. 1 Court House, Hagerstown, Maryland “Pursuant to the provisions of Article 66B of the Code of Public General Laws of Maryland, entitled ⁴⁵⁹ Maryland Planning and Zoning Enabling Act, a preliminary report and proposed plan for Washington County, Maryland has been compiled for the Washington County Planning and Zoning Commission by William C. McDonnell Consultant, Baltimore, with Baker-Wibberly and Associates, Hagerstown, Maryland.

The preparation of this report was financially aided through a federal grant of the Department of Housing and Urban Development, under the Urban Planning Assistance Program authorized by Section 701 of the Housing Act of 1954, as amended. Said report was also administered by the Maryland Department of Planning. “Copies of said report and proposed plan for Washington County are on file with the County Commissioners, Washington County Planning and Zoning Commission and with all State and local planning agencies; and said report and proposed plan is available for inspection; and same is incorporated herein and made a part hereof by reference. “Notice is hereby given that pursuant to the aforesaid statutory provisions that a public hearing will be held in Court Room No. 1 in the Court House, Hagerstown, Maryland on Wednesday, October 6, 1971, at 7:00 P.M. with reference to said preliminary report and proposed plan for Washington County, Maryland. WASHINGTON COUNTY PLANNING & ZONING COMM. By: Donald R. Frush, Chairman COUNTY COMMISSIONERS FOR WASHINGTON COUNTY By: W. Carlton Parsley, Clerk” At the hearing the chairman of the planning commission announced that slips would be passed out, stating, “We ask ⁴⁶⁰ all that are here tonight to sign the little form that the secretaries have so that I don’t miss anyone if you want to be heard.” After noting that “four public information meetings on the Plan” had been held subsequent to its tentative approval by the commission and that 97 meetings had been held to gather the “views, comments and desires” of the Washington County community, the chairman referred to the procedure for adoption of a plan and the content of the then proposed plan itself.

He then said: “The Commission has established rules for this hearing. Each speaker will be allocated three minutes to present their opinion on the ‘Plan for the County.’ No speaker will be allowed to take any greater time at this hearing as there are others who may want to speak. At this public hearing, all statements will be recorded on tape recorder and transcribed. Each