Clarke v. County Commissioners

311 A.2d 417, 270 Md. 343, 1973 Md. LEXIS 689
CourtCourt of Appeals of Maryland
DecidedNovember 27, 1973
Docket[No. 86, September Term, 1973.]
StatusPublished
Cited by17 cases

This text of 311 A.2d 417 (Clarke v. County Commissioners) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarke v. County Commissioners, 311 A.2d 417, 270 Md. 343, 1973 Md. LEXIS 689 (Md. 1973).

Opinion

Levine, J.,

delivered the opinion of the Court.

This appeal arises out of a bill in equity for declaratory and injunctive relief brought by appellants (the Clarkes and the Bays) in the Circuit Court for Carroll County. Initially, the defendants (appellees) named in the suit were the county commissioners, the Planning and Zoning Commission (the commission) and Dr. Raymond T. Murphy, whose filing of a preliminary plan of subdivision and record plat precipitated this dispute. Several other parties intervened as defendants, but the chancellor dismissed the suit against them and Dr. Murphy after sustaining their demurrers to the bill of complaint. Following a hearing on the merits, the chancellor ruled in favor of appellees. This appeal is from that ruling and the earlier dismissal of the suit against Dr. Murphy.

Since the case was tried pursuant to a stipulation, the material facts are undisputed. Dr. Murphy and his wife (the Murphys), own an irregularly-shaped parcel of 237 acres fronting on Uniontown, Frizzleburg, Hahn’s Mill and Jasontown Roads in Carroll County. The Clarkes *345 own a parcel of 4‘/2 acres, and the Bays own 67.55 acres, both located on Uniontown Road. The land owned by the parties is classified in the “A” Agricultural District under Article 6 of the Carroll County Zoning Ordinance. One of the many “principal permitted uses” listed in the “A” Agricultural District is the following:

“(d) Dwellings (detached), single-family and two-family.”

On or about February 8, 1972, the Murphys submitted to the commission, for its approval, a preliminary plan of subdivision (the plan) for the residential development of their property known as “The Meadows.” The plan divided the 237 acres into 40 lots ranging in size from 2.6 to 17.9 acres. The commission considered the plan at a number of meetings, and then approved it on April 19, 1972. Although that action was taken over the objection of the Clarkes and Bays, no public hearings were held since they are not required by the county’s subdivision regulations. As we shall observe later, it is not contended that the plan failed to conform in any respect with those regulations. After gaining approval, the Murphys recorded a plat showing a portion of the lots on the plan. It appears that the commission has previously approved other subdivision plans for land situated in the same zoning classification, eventually leading to the development of such property into residential lots.

Accompanied by a request for appropriate declaratory and injunctive relief, these contentions have been advanced by appellants both in the trial court and on appeal:

1. That the zoning ordinance reflects an intent to restrict the “A” Agricultural District to agricultural uses only; and does not permit the development of residential subdivisions, which must be confined to one of the “R” districts.

2. That this intent is borne out by the preamble or “purpose” clause to Article 6:

‘The purpose of this District is to provide for continued farming activity, individual homes where no public water and sewerage facilities are *346 generally available, and the many uses which do not require such facilities and which may be more suitably located outside of the urban-type growth of the larger communities of the county. While several smaller communities may appear in this District, it comprises, generally, for the most part, the rural portions of the county.”

3. That the action of the commission in approving the plan constitutes “illegal” zoning, since its functions are limited to the planning process, and rezoning applications are required to be heard and decided by the county commissioners.

4. That, insofar as the commission’s action did actually constitute a rezoning, it was “illegal” for the additional reason that the correct procedure for rezoning applications, found in Maryland Code (1957,1970 Repl. Vol.) Art. 66B, §§ 4.04, 4.05 and in certain provisions of the county zoning ordinance, was not observed.

5. That among the requirements prescribed for zoning applications is that there be a public hearing, and none was granted here.

Following the hearing on the merits, the chancellor held the matter sub curia, and then filed a thoroughly-considered opinion and order which answered affirmatively the single question submitted to him by agreement of the parties:

“ ‘Is land such as “The Meadows,” zoned “A” Agricultural District as provided in Article 6 of the Carroll County Zoning Ordinance susceptible to subdivision without a reclassification or rezoning to an “R” Residential District?’ ”

Appellants present the identical question as the principal issue to be decided on this appeal, and we also shall answer it affirmatively.

As we view this case, the determinative question presented for our consideration is whether the action taken by the commission actually amounted to the legislative function of rezoning, in which event it was clearly illegal; or *347 whether it correctly fell within the planning role of the commission. If it was the latter, as the chancellor in effect held, then its action in approving the plan was proper. Since we are in agreement with the chancellor’s decision on this basic issue, it is unnecessary for us to discuss the many subsidiary questions into which appellants have fragmented their argument.

Nor is it necessary for us to review the numerous decisions — of this and other courts — and the treatises, which both sides have presented in defining “zoning” and “planning.” As we have already suggested, the answer here does not lie in distinguishing between those two functions in the abstract, but turns on whether approval of the plan had the result of allowing in the “A” Agricultural District a use not provided for in the zoning ordinance. If it did, the commission acted incorrectly, and thus, in effect, engaged in zoning, which is clearly a legislative function, Prince George’s Co. v. McBride, 268 Md. 522, 528, 302 A. 2d 620 (1973); Scull v. Coleman, 251 Md. 6, 246 A. 2d 223 (1968); Ark Readi-Mix v. Smith, 251 Md. 1, 246 A. 2d 220 (1968), that is committed to local legislative bodies and municipalities, and not to planning commissions, Prince George’s Co. v. McBride, supra.

Sections 5.02 et seq. of Art. 66B expressly provide that county planning commissions shall have jurisdiction over subdivision plans and plats, which are to be approved by them in accordance with validly enacted regulations. Such regulations have been adopted for Carroll County pursuant to the enabling provisions of Art. 66B, and are a part of the record before us. No contention is made by appellants that the plan in controversy here failed to comply with the subdivision regulations in any respect.

In sum, therefore, approval of subdivision plans is unquestionably in the commission’s province; hence, subject to our decision on the main issue, to which we now turn, what the commission did here plainly did not constitute an invasion of the zoning function delegated by § 4.01 of Art. 66B to the county commissioners as the body properly entrusted with that legislative task.

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Bluebook (online)
311 A.2d 417, 270 Md. 343, 1973 Md. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-county-commissioners-md-1973.