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 *189area 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 *190recommended 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*191ing 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*193ferences, 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*194fuse 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 *195change 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 conditions constituting “good cause.”

Whatever view may be taken of the applicability of the principles of the doctrine of res judicata to administrative or quasi-judicial determinations or actions of an agency, the text writers and the courts are in general agreement that the judgment or order of a court, including a trial court, which affirms or reverses such determinations or actions, ordinarily is. 2 Davis, op. cit. supra § 18.11, pp. 623-24 ; 2 Am. Jur. 2d Administrative Law § 499. See also annotation in 71 A. L,. R. 2d 1362, “Judgment denying permit for use of premises under zoning regulations as bar to subsequent application.” This Court has taken the position that in zoning cases principles of res judicata do apply, both where the first determination was as to an immutable fact or condition, Baltimore v. Linthicum, 170 Md. 245, and Bensel v. City of Baltimore, 203 Md. 506, and where changes, were possible but had not occurred, Whittle v. Bd. of Zoning Appeals, 211 Md. 36. In Whittle the appeal was from an affirmance by the Circuit Court for Baltimore County of an order of the Board of Appeals granting a special permit in 1954 for a funeral home in a small residential area on York Road. Some five years earlier, in 1949, the Board had granted a similar permit but the Circuit Court had then reversed because of the residential character of the neighborhood. In affirming the grant of the second permit, Judge Barrett rejected the contention of res judicata because an additional filling station had been added to> several in existence in the area in 1949 and a new record had been before the Board and was before him.

*196We reversed. Judge Brune, for the Court, noted that the Linthicum and Bensel cases dealt with unchangeable facts while the case then at hand required a determination of whether changes in circumstances which would warrant reconsideration had taken place. He pointed out (a) that the fact that the first judicial decision was by the Circuit Court and not an appellate court •“* * * does not prevent the operation of the rule of res judicata” (p. 44) ; (b) that the decisive factor in this regard in Maryland under Knox (and Dal Maso, it may be added), on the one hand, and Liwthicum and Bensel, on the other, is between a decision by a court of record and one by an agency of the Legislature; and (c) that provisions in a zoning ordinance setting a time after rejection of an application within which a new application may be filed do not dispense with the rule of res judicata. He then said at page 45:

“The general rule, where the question has arisen, seems to be that after the lapse of such time as may be specified by the ordinance, a zoning appeals board may consider and act upon a new application for a special permit previously denied, but that it may properly grant such a permit only if there has been a substantial change in conditions. * * * This rule seems to rest not strictly on the doctrine of res judicata, but upon the proposition that it would be arbitrary for the board to arrive at opposite conclusions on substantially the same state of facts and the same law.”

The changes in circumstances alleged to have occurred between 1949 and 1954 were then considered. These were: (1) increased commercialization of the area; (2) increased population of Baltimore County; (3) decreased opposition; (4) additional safeguarding conditions attached to the granting of the permit. There had been two changes in the immediate neighborhood—a stone church to replace a wooden one and a third filling station where there had been two, all some four hundred feet to the south on York Road. Considerable commercial development had come into being on York Road in the five intervening years, both north and south of the property, but none was shown to have had any effect “upon the residential char*197acter of the neighborhood where the protestants live” (p. 46). Of the new filling station we said:

“* * * one new fiiijng station, some four hundred feet to' the south on a busy highway, at or near an intersection already having two filling stations does not, in our judgment, show any substantial change or increase in commercialization between 1949 and 1954.” (p- 46)

The increased population of Baltimore County and the need for new funeral homes to care for their needs had been testified to in the first case. On this point it was stated:

“In the second case, they offered testimony to show a further increase in population and hence a greater need for a new funeral home. Testimony on this phase of the case was more detailed in the second case than in the first, but the issue was the same and the testimony in the present case does not, in our estimation, show a materially different situation from that prevailing in 1949.” (p. 46)

Neither neighborhood sentiment nor the slight distinction created by the additional restrictions were deemed to amount to a substantial change in circumstances. In conclusion we held:

“Because essentially the same facts appeared in the second case as appeared or as could have been shown in the first case, the appellees are barred by res judicata, and their petition should have been denied.” (pp. 49-50)

We think Whittle is dispositive of the case before us. No substantial or significant change in fact or law was shown to have occurred between the 1961 application and its disposition in 1962, and that in 1963 and its disposition in 1964. The Board heard testimony as to, and Judge Parker considered as important in showing change between the two applications, four matters. The first was the proposed East-West Highway tentatively scheduled to run along one side of the property in question if and when built. That same road was alleged as a change *198in 1961 and considered in the disposition of the first application, and it was as indefinite in becoming a reality in 1963 and 1964 as in 1961 and 1962, perhaps more so because by the time of the second application the Capital Beltway, which roughly parallels its tentative route, had been completed and was serving the needs and purposes the latter would have served. The second was the terrain and its relative suitability for single homes and apartment houses; this Judge Parker found had been considered in 1961-62 and obviously was unchanged. The third was the need for apartments—this was considered in 1961-62 and the lack of specific testimony in the record as to any greater need in 1963-64 than in 1961-62 and of land already zoned for apartment use and unavailed of, leads us to the view we held in Whittle as to the insubstantiality of the reliance on the population increase in Baltimore County between 1949 and 1954 and the alleged increased need for undertakers—“* * * the issue was the same and the testimony in the present case does not, in our estimation, show a materially different situation from that prevailing in * * * [1961-62]” (at p. 46 of 211 Md.). The fourth was eight changes in classification from R-55, the zoning of the subject property and the zoning which surrounds it for extended distances (except for the two nearby schools and a patch of R-35 zoning, both of which were in being in 1961->62) to R-18. It was not shown that these eight reclassifications were made after 1962 nor whether they were still on paper or actually had been made use of (except that some of them at least had not been developed), but what was much more important was shown, namely, that all of them were of pieces of land which were on the far side of wide, busy highways and a long distance from the subject property and the protesting neighbors. Three of these reclassifications involved small contiguous tracts about 4100 feet from the land involved here and across Route 450. Another is also across Route 450' some 6800 feet distant. Three others are from 6400 to 7200 feet away across Route 450, and the eighth is about 3300 feet away across Riverdale Road.

While what constitutes a neighborhood for the purpose of determining change under the law governing rezoning is not and should not be precisely and rigidly defined, but may vary from *199case to case, we think that prima facie the properties just referred to which were reclassified from R-55 to R-18 should not be considered to be within the neighborhod of the subject property and the homes of the protestants, and the record offers no reason why this prima facie conclusion is not correct in this case or why the properties would, if developed in actual use under their new classifications, have any real effect upon or make any real change in the character of the neighborhood as one of individual family homes.

In DuBay v. Crane, 240 Md. 180, 185, 186, three protestants of a reclassification from one and two family use to garden apartments were held to live too far away to be aggrieved in that they could not show special effects or damage. One lived 1500 feet away across the Baltimore Beltway but, said the Court: “* * * his property is on the opposite side of the Beltway, which, if not a complete shield against the apartments to be constructed, will serve as an adequate barrier.” Of the other two protestants we said: “* * * both reside a considerable distance (more than four-tenths of a mile) and possibly out of sight of the proposed apartments. And, * * * none * * * were able to show that the value of their respective property would be adversely affected.” We think that if persons as close as 1500 feet across a superhighway and nine-tenths of a mile in one case and four-tenths in another were not within the neighborhood, so to speak, for the purpose of protesting rezoning changes, that without specific evidence of why the general rule should be different, reclassifications as far away as 3300 to 7200 feet and across major highways are not within the neighborhood and do not constitute changes therein. In DePaul v. Board, 237 Md. 221, 224, we said: *200See Kaslow v. Rockville, 236 Md. 159, 166 (“Important highways may serve to divide areas from each other for zoning purposes; Hewitt v. Baltimore County, 220 Md. 48, 60, 151 A. 2d 144; Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 272, 192 A. 2d 502”). In Stocksdale v. Barnard, 239 Md. 541, 548, this idea was restated:

*199“These changes have been numerous on both sides of Landover Road, and include reclassifications for apartments as well as commercial zones. None of these changes, however, is closer than approximately a half-mile to the property here involved, except for one lot which the aerial photographs show is undeveloped. The area immediately surrounding the appellant’s property is zoned R-55 for single family homes.”
*200“He [the trial judge] based his decision on the fact that several zoning changes had been granted in the area. But, an examination of the record shows that all except one of these changes were on the opposite, west side of York Road from applicants’ property. We have held in past cases that a street or road may be a natural boundary line between two zones. Sapero v. M. & C. C., 235 Md. 1, 200 A. 2d 74. In Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 192 A. 2d 502, we held that the existence of apartment uses on one side of the street does not alter the use of the land on the opposite side, and therefore the street is an appropriate line of demarcation.”

Finally, the Council heard testimony as to, and Judge Parker considered, the rezoning of a shopping center area beyond the school site from the instant property from C-l to C-2 and the rezoning to commercial of two small roadside areas along Annapolis Road. The shopping center area had been rezoned to C-l and was under construction when the first application was filed (it seemingly had been finished before the Circuit Court decision in 1962) and the change from C-1 to C-2 (to permit an automobile showroom, it was suggested at the argument) would not seem to have changed the character of the neighborhood between 1961-62 and 1963-64 anymore than the added filling station and the more distant increased commercialization in Whittle. One of the two small areas rezoned C-2 is at one end and the other at the other end of a small strip of land which was zoned and used as C-2 before the first application. The rationale of Whittle to the small extension of existing commercialization there applies to these rezonings here.

The appellees argue that the law has been altered since 1961-*20162 in that the definition of an R-18 zone was changed thereafter and before 1964 so as to make the R-18 zone in Prince George’s County analogous to the R-H (“floating”) zone considered in Beall v. Montgomery County, 240 Md. 77. The point was not raised before or considered by either the District Council or the Circuit Court. The new definition was not formally put before us but the appellees concede that it is like the former one except that the density in an R-18 zone is decreased slightly —under the former density limitations perhaps 950 apartments could have been built on the subject tract in contrast to from 800 to 850 under the new. We think this is not such change in the law as would dispense with principles of the doctrine of res judicata. R-18 zoning permitted garden apartments in 1961-62 and it permitted them in 1963-64. Earlier there could have been built on the forty-seven acres here being dealt with approximately four and three-quarter times as many apartment living units as individual homes, later perhaps four and one-quarter, a difference not in kind and, we believe, not legally significant in degree.

The Council erred in granting rezoning without considering change between its first and second considerations of the matter, and would have erred if it had undertaken such consideration and granted rezoning on the testimony before it, since on that testimony substantial or significant change could not reasonably have been found by reasoning minds to have occurred, and the order of the Circuit Court affirming the Board must be reversed.

Order reversed, with costs.

. Amendments to the provisions as to zoning and rezoning in the Regional District in Prince George’s County as enacted by Ch. 780 of the Laws of 1959 were made by Chapters 634, 854, 873 and 898 of the Laws of 1965.