Opinion
[No. 542, September Term, 1966.]
Decided October 11, 1967.
ZONING — Montgomery County Council's Deletion Of Permitted Use From Zoning Ordinance Text Was An Amendment To Text Of Zoning Ordinance And Not To Zoning Map And Not Appealable To Circuit Court. p. 573
R.H.
Decided October 11, 1967.
Appeal from the Circuit Court for Montgomery County (MOORE, J.).
Appeal to Circuit Court of Montgomery County from enactment by Montgomery County Council, acting as the District Council, of ordinance deleting apartment hotels from uses permitted in C-2 zones, by appellants Arthur J. Hilland, and Dorothy S. Hilland, his wife. From an order dismissing their appeal, appellants appeal.
Order affirmed; costs to be paid by appellants.
The cause was argued before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER, McWILLIAMS, FINAN, JJ., and RUTLEDGE, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.
Robert T. Gaston, with whom were Ferdinand J. Mack and James E. Hogan on the brief, for appellants.
H. Christopher Malone, Assistant County Attorney, with whom was David L. Cahoon, County Attorney, for appellee.
Arthur Hilland and his wife (the Hillands) are the owners of 4531 and 4611 High Street in Chevy Chase, Montgomery County. They acquired 4531 in 1957; 4611 in 1960. In September 1964 the appellee, the County Council acting as the District Council (the Council), reclassified a part of their property from R-60 (Residential) to C-2 (Commercial). Apartment hotels had, for some years, been a permitted use in C-2 zones. In January 1966 the Council enacted an ordinance (No. 5-146) creating a new zoning classification (R-CBD) in which apartment hotels were declared to be a permitted use. The ordinance also provided that the construction of apartment hotels in any other zone would be prohibited unless preliminary plans were on file with the Department of Inspection and Licenses on or before the effective date of the ordinance (25 January 1966), "provided, however, that the final working plans of such proposed apartment hotel * * * are on file with said Department on or before April 25, 1966." The Hillands failed to comply with the requirement in respect of "working plans." On 26 April 1966 the Council adopted another ordinance (No. 5-162) the effect of which, among other things, was to delete apartment hotels from the uses permitted in C-2 zones. The Hillands, claiming to be aggrieved persons under the provisions of Sec. 70-90 of the Montgomery County Code (1965) (Laws of Maryland, 1959, Chap. 780, Sec. 1, Par. 78A), noted an appeal to the Circuit Court for Montgomery County from the Council's enactment of ordinance No. 5-162. Contending the ordinance accomplished only a text amendment and that Sec. 70-90, supra, allows appeals from map amendments only, the Council moved, pursuant to Maryland Rule 323 a (1), to dismiss the appeal. The Hillands have appealed to this Court from the order of the trial judge dismissing their appeal from the action of the Council.
The Hillands argue that while the ordinance may be, in form, an amendment to the text, it is in substance, at least as to their property, an amendment to the map. The Council, they point out, instead of substituting a new symbol for the one on the map has given the existing symbol a new meaning. This change in the meaning of the map, they urge, is in fact a map amendment. In our judgment the applicable statutes and ordinances compel a contrary conclusion.
Sec. 70-90, supra, provides in part as follows:
"* * * [A] final decision of the district council on any application for a map amendment may * * * be appealed by any person aggrieved by the decision to the circuit court * * *." (Emphasis supplied.)
An examination of the ordinances of the Council found in the Montgomery County Code (1965) makes apparent the clear distinction between "map amendments" and "text amendments." Excerpts therefrom are set forth below:
"Application for amendment of this chapter may be either proposals for amendment of the text of this chapter or proposals for amendment of the zoning map." Sec. 111-38. (Emphasis supplied.)
"Proposals for amendment of the zoning map may be made only by any governmental agency or by a person with a financial, contractual or proprietary interest in the property to be affected by the proposed amendment. Proposals for amendment of the text of this chapter may be made by any interested person or governmental agency." Sec. 111-39. (Emphasis supplied.)
"An application for a local map amendment shall not be accepted for filing by the department if the application fails to conform to any of the applicable requirements of sections 111-38 through 111-50 of this Code * * *." Sec. 111-40. (Emphasis supplied.)
"After acceptance for filing, an application for a map amendment shall not be modified or amended as to the area proposed to be reclassified or as to the class of zone requested." Sec. 111-40. (Emphasis supplied.)
"In case of an amendment to the text of this chapter, the application therefor shall set forth new text to be added and existing text to be deleted." Sec. 111-42. (Emphasis supplied.)
"(a) Notice of hearing:
(1) Upon accepting any application under section 111-38 of this Code for filing, the department shall set the application for hearing at a specified date, time and place, and shall cause to be published once in at least two weekly newspapers of general circulation published in the county a notice of the public hearing on such application, stating the application number, date, time and place of hearing and containing the following:
a. A summary of the amendment if a text amendment.
b. The location of the property, its area, name of owner, change of classification or two alternative classifications applied for, and application number if a local map amendment." Sec. 111-47. (Emphasis supplied.)
"(a) An application for a map amendment shall be decided on the basis of the evidence of record.
(b) An application for a map or text amendment shall be either approved or denied on the merits, or denied for want of a majority as provided in section 111-49 of this Code * * *." Sec. 111-48. (Emphasis supplied.)
"The decision of the district council of any application for a map or text amendment shall be final; except, that the district council on its own motion may, within thirty days thereafter, reconsider its decision on any application. The adoption of a resolution on such a motion to reconsider shall stay the time within which an appeal may be filed in the circuit court pursuant to section 70-90 of this Code." Sec. 111-50. (Emphasis supplied.)
Judge Moore in his opinion observed the absence of any citations of authority for the "proposition that the deletion of a permitted use from the zoning ordinance text operates as a map amendment with respect to any property or properties in the zoning classification thus affected." There were in the briefs and arguments before us no citations supporting such a proposition nor has our own research revealed any. We agree with Judge Moore that the "conclusion is inescapable that the action of the County Council in this matter was an amendment to the text of the Zoning Ordinance and not to the Zoning Map."
The Hillands concede that this appeal does not reach the merits of their quarrel with the Council and that its only purpose is to obtain a determination of "the proper appellate route to be used in obtaining a review of [their] complaints." Indeed, as Judge Moore noted, they have filed a bill in equity "seeking the identical relief prayed for in the instant appeal. * * * They are pursuing both remedies simultaneously `out of an abundance of caution.'" The Council's demurrer, we are told, has been overruled and the case is still pending.
Order affirmed.
Costs to be paid by the appellants.