Woodlawn Area Citizens Ass'n v. Board of County Commissioners

Hammond, J., delivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 201, infra. Nearby homeowners in a presently relatively rural suburban ¹⁸⁹ area in Prince George’s County are appealing the action of the District Council in changing some forty-seven acres of undeveloped and, for the most part, heavily wooded land surrounded by individual homes and schools from its present zoning for detached houses for one family, a status it has had since the last comprehensive zoning of that part of the County in 1949, to land zoned for garden apartments so as to permit some eight hundred families to occupy the forty-seven acres rather than some two hundred, if the zoning remained unchanged.

This is the third time the neighbors have entered the lists to defend the character of their environment. In 1955 the owners of the property under consideration sought its reclassification from R-55 (single family detached homes) to R-35 (two attached single family residences). AVhen opposition to the change loomed strong, the owners sought to withdraw the application for change. The District Council chose not to acquiesce in the withdrawal but to dismiss the application.

In October 1961 the owners tried again to secure the right to use their land to house more families than the zoning in effect permitted, asking for reclassification from R-55 to R-18, which would have then permitted some nine hundred fifty so-called garden type apartments on the forty-seven acres. This application was recommended for disapproval by the Technical Staff of the Maryland-National Capital Park and Planning Commission on the grounds that there had been neither original error nor substantial change, but the Planning Board rejected the recommendation and approved the application. The District Council dismissed the application after a hearing at which neighboring owners protested, and the owners appealed to the Circuit Court for Prince George’s County. On October 9, 1962, Judge Loveless sustained the action of the District Council, necessarily holding in so doing that it was supported by sufficient evidence that there had been neither mistake in the original zoning nor a change in the character of the neighborhood.

No appeal was taken to this Court. In the Spring of 1963 the owners of the property renewed their efforts to have it rezoned for garden apartments. Again the Technical Staff recommended denial of the application for the same reasons it gave in 1961. Again the Planning Board ¹⁹⁰ recommended approval and this time, after a hearing on June 19, 1964, the District Council without giving any reasons or bases for its decision granted the reclassification to R-18 on September 15, 1964.

At the hearing the District Council refused to accede to the motions of the protestants that the 1962 affirmance by the Circuit Court of the action of the Council in refusing rezoning in 1961 was res judicata and settled the status of the land either as of the date of the Council’s action in 1961 or the court’s affirmance in 1962, and announced that it would not receive in evidence the record of the 1961 hearing (which the protesting neighbors proffered), and that it would consider all changes since 1949 and the other factors it customarily took into account in deciding whether to rezone without particular reference to what had happened in 1961-62. On appeal, Judge Parker found the principles of res judicata to be the law that controlled but decided that certain changes in classification after 1961-62 justified the action of the Council, despite its lack of revelation of the basis of its decision and despite the fact that the record before the Council did not show when the changes he relied on had occurred or whether they were paper or actual changes. The appellants, the protesting neighbors, appealed Judge Parker’s order of affirmance and urge upon us a number of errors, each of which they argue justifies reversal, including procedural errors of the Council such as its failure to state findings of fact and conclusions of law and its receipt of and reliance upon unsworn testimony. We find it unnecessary to discuss or decide the various contentions because we conclude that the principles of res judicata were controlling and find in the record no evidence of significant change in the neighborhood of the property between 1961 and 1964, which means that the action of the Council in rezoning in 1964 on essentially the same facts and conditions it found insufficient to permit rezoning in 1961 was arbitrary, capricious and illegal.

The District Council has no inherent power to zone or rezone. These powers are entirely delegated by grant of the General Assembly, as we pointed out in Perry v. Board of Appeals, 211 Md. 294 . At the time the matters now under review were taking place, Code (1957), Art. 66B, §§ 21-37, the basic zon ¹⁹¹ ing enabling act for municipal governments other than towns and cities with a population over 100,000, applied to Prince George’s County, but § 35 said explicitly that these sections supplemented the system of planning and zoning in the Regional District of Montgomery and Prince George’s Counties as spelled out by Ch. 992 of the Laws of 1943, as amended, and directed that within the District the respective Boards of County Commissioners acting as a district council should exercise zoning powers, and then provided “* * * that in so far as the provisions of this subtitle may be inconsistent with or contrary to the provisions of Chapter 992 of the Laws of Maryland of 1943, as amended; such provisions shall have no application within the Maryland-Washington regional district The provisions of Ch. 992 and other planning and zoning provisions applicable in Prince George’s County were repealed by Ch. 780 of the Laws of 1959, which enacted new sections on these subjects, which were in effect in 1961 and 1964, including §§ 78 and 79 and codified in the Code of Public Local Laws of Prince George’s County (1963) and which delineated the extent and character of the right to rezone an individual piece of property and imposed limitations on that right. 1 Section 59-83 of the Code of Public Local Laws of Prince George’s County (1963) provided two prerequisites to rezoning: submission of the proposed change to the Planning Commission (now the Planning Board) for its approval, disapproval or suggestions, and a public hearing after appropriate public notice. Section 59-85 (a) made mandatory a stenographic transcript of each such hearing.

An appeal to the Circuit Court was granted by § 59-85 (e) to “* * * any person aggrieved by a final decision of the district council * * On the appeal, to be heard without a jury, the trial judge under § 59-85 (i) could affirm or remand for further proceedings or could reverse or modify “the decision” if the appellant’s substantial rights had been prejudiced : ¹⁹² “* * * because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional provisions; or (2) in excess of the statutory authority or jurisdiction of the agency; or (3) made upon unlawful procedure; or (4) affected by other error of law; or (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted; or (6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency; or (7) arbitrary or capricious.” Thus it is clear that the General Assembly imposed definite conditions and restrictions on the power and the right of the District Council to rezone in individual instances. The Council does not act as a plenary legislative body, it acts as an adjudicatory agency in large part. It must follow statutory authority and procedure, it must act lawfully, it must find support for its action in competent, material and substantial evidence adduced at a public hearing of which a transcript is made, and it must not act arbitrarily or capriciously. When the General Assembly enacted Ch. 780 of the Laws of 1959, the repeated decisions of this Court had clearly established that to justify a deviation from comprehensive zoning a change must be supported by evidence either of error in the original zoning or of a substantial change in the character of the neighborhood.

The General Assembly is deemed to have known of this established rule and to have meant, in enacting Ch. 780 of the Laws of 1959, that unless the competent, material and substantial evidence at the hearing before the District Council fairly permitted a finding of error or change, a rezoning would be “affected by * * * error of law” or would be “arbitrary or capricious.” Although it has been said that the action of the District Council in rezoning in individual cases is ultimately legislative, it is clear that in performing this delegated and restricted function it acts largely as an administrative or adjudicatory agency. In Board v. Levitt & Sons, 235 Md. 151, 158 , Judge Prescott, after noting that the General Assembly called the District Council of Prince George’s County, acting in its function of rezoning, an agency, and referring to its administrative findings, in ¹⁹³ ferences, conclusions or “decisions” (emphasis added), said for the Court: “We have repeatedly held that the action of zoning or reclassification of zoning is a function that is legislative in nature. However, this does not prevent the Council from making administrative findings of fact, drawing administrative inferences, and arriving at administrative conclusions and decisions, when hearing an application for rezoning, and the statute clearly anticipates such action. * * * After making its administrative findings of fact, etc., the Council is then in a position to exercise its legislative function of granting or denying the petition for reclassification.” In light of the administrative procedures and adjudications which the District Council is required to follow and make in the process of rezoning, the principles of public policy which underlie the rule of res judicata logically would seem to be applicable to its actions in this respect. See 2 Davis, Administrative Law Treatise, Ch. 18 (1958); 2 Cooper, State Administrative Law, Ch.

XV, §§ 1 and 4 (1965); 2 Am. Jur. 2d Administrative Law §§ 496-97 (1962); Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 , 20 (1964); Hollywood Circle v. Department of Alcoholic Bev. Con. (Cal., In Bank), 361 P. 2d 712, 714 ; Evans v. Monaghan (N. Y.), 118 N. E. 2d 452, 458 (“Any general relaxation of the rule of res judicata is inadmissible even in strictly administrative matters”).

Our predecessors took a contrary view. In Knox v. City of Baltimore, 180 Md. 88 , they held that since the Board of Zoning Appeals was not a judicial tribunal its prior resolution that a property enjoyed a non-conforming use status at the time of the enactment of the zoning ordinance was not res judicata as to whether the lot owners held a non-conforming use at a later date. Dal Maso v. County Commrs., 182 Md. 200, 205 , held that all administrative boards and officials are legislative in character and “* * * are not judicial at all * * *” so that a rezoning of a particular lot was not res judicata as to its status and the District Council could later rescind its action and re ¹⁹⁴ fuse to rezone. Professor Davis, op. cit. supra, Ch. 18 (§§ 18.02, 18.03 and 18.08 in particular), finds it completely clear on principle that “* * * the reasons behind the doctrine of res judicata as developed in the court system are fully applicable to some administrative proceedings” and that “the courts generally follow this sound view * * He finds Dal Maso to have been based on a clear misunderstanding that an agency can never perform a function sufficiently judicial for the principles of res judicata to become applicable.

Although he finds the result in Dal Maso to have been right on the theory there had been a change in conditions, Professor Davis says of the case in Sec. 18.08 of Volume 2 of his work on Administrative Law at pp. 601-02: “Worst of all is what the Maryland court has done —to lump together all agencies, to say that they are ‘arms and instrumentalities of the Legislature and are not judicial at all,’ and to conclude that therefore administrative action can never be res judicata. The unfortunate results of this type of thinking are rather clearly brought out in the Maryland zoning cases. * * * Happily, however, the Maryland court has seemingly retreated from its extreme position, for it has specifically acknowledged that ‘innumerable controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry.’ ” (citing Hecht v. Crook, 184 Md. 271, 277 .) See also Schutze v. Montgomery Co. Bd., 230 Md. 76 , in which we held that the Board, in determining compliance of a subdivision plan with the subdivision regulations in the Montgomery County Code, exercised a quasi-judicial function and .could not disapprove a final plan after it had approved an identical plan, absent the development of new facts in the meantime, since this constituted a mere change of mind and was therefore arbitrary and capricious conduct. The Court said also that in prior cases such as Mettee v. County Comm., 212 Md. 357, 365 , and Kay Const. Co. v. County Council, 227 Md. 479, 486, 489, it had been held that in rezoning adjudications a mere ¹⁹⁵ change of mind was insufficient to justify a reversal of previous action.

Kay equated “good cause” in a statute authorizing the District Council to change a rezoning determination for good cause shown to (apart from fraud or surprise) “ * * a change in conditions or other considerations materially affecting the merits, intervening since the former decisions,’ ” in adopting the language of St. Patrick’s Church Corporation v. Daniels (Conn.), 154 Atl. 343 (at 345). It was held that the Council’s claim of error of judgment “* * * was in reality a mere change of mind, a shift of majority opinion occasioned by the substitution of a councilman of one conviction for a councilman of another conviction,” and that this was not a change in