# Hyson v. Montgomery County Council

> Court of Appeals of Maryland · March 29, 1966 · 242 Md. 55

URL: https://www.frixlaw.com/law-library/cases/9705718

## Case

- **Full name:** HYSON, Et Al. v. MONTGOMERY COUNTY COUNCIL, Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** March 29, 1966
- **Citations:** 242 Md. 55; 217 A.2d 578
- **Precedential status:** Published
- **Opinion:** Concurrence by Barnes
- **Judges:** Prescott, Hornby, Marbury, Barnes, McWieeiams
- **Cited by:** 79 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705718

## How later opinions describe it (automated extraction)

- stating that “when an administrative board or agency is required to hold a public hearing and to decide disputed adjudicative facts based upon evidence produced and a record made, that a reasonable right of cross-examination must be allowed the parties”
- holding that at least some right to cross-examination exists in Montgomery County zoning reclassification public hearings

## Opinion text

Barnes, J.,
filed the following concurring opinion.
I concur in the result in the case at bar and in all of the holdings set forth in the majority opinion. However, I cannot agree with the dictum indicating that the function of the Montgomery County Council, sitting as a District Council for the rezoning of two contiguous parcels of land, somewhat in excess of 4 acres located in the southeast quadrant of Georgia Avenue and Shorefield Road in Wheaton from the R-9G (single detached residential) zone to the C-l (light commercial) zone is, in part at least, a “quasi-judicial” function rather than a legislative function, restricted by the provisions of the applicable Act of Assembly.
The majority opinion, well written and persuasive on this point, makes the best possible case for this proposition, but it does not convince me that the proposition is sound. Indeed, I think it is quite unsound, and while not productive of any harm in the case at bar, it will result in grave harm in the future if in some later case, it ultimately ripens into a general holding by the Court.
My views on this proposition are not unknown. I filed my first caveat to it in my dissenting opinion in MacDonald v. Board *78 of County Commissioners of Prince George’s County, et al., 238 Md. 549, 586-588 , 210 A. 2d 325, 346-347 (1965). In that dissenting opinion I stated:
“Another reason for upholding the action of the legislative body here is that it is a legislative body, and not a mere administrative organ. Zoning and rezoning is legislative in character; it is not quasi-judicial, administrative, quasi-legislative, quasi-executive, or anything other than legislative. Rathkopf, The Law of Zoning & Planning (3d ed.), Section 27; Yokley, Zoning Law & Practice (2d ed.), Section 83, and cases collected therein; 101 C.J.S. Zoning, Section 1 and cases cited.” 1
This warning was not heeded by the majority of the Court in Woodlawn Area Citizens Association, Inc. v. Board of County Commissioners for Prince George’s County, 241 Md. 187 , 216 A. 2d 149 (1966). The majority in Woodlawn indicated that the rezoning function of the Board of County Commissioners for Prince George’s County, sitting as a District Council, was “quasi-judicial” to such an extent that the doctrine of res judicata was applicable to the prior rezoning actions by the District Council. In my dissent in Woodlawn I sought to point out that the prior decisions of the Court did' not require a holding that the rezoning function of the legislative body of the county, although beginning and ending as a legislative function by some mysterious means became “quasi-judicial” in the course of the exercise of that legislative function. On the contrary, it was, and is, my opinion, that Article IV, Section 1 of the Maryland Constitution and Article 8 of the Maryland Declaration of Rights of the Constitution and the prior Maryland cases, require a holding to the contrary. The reasons for this opinion are fully set forth in the dissent in Woodlawn, which contains an analysis of the apposite prior cases and those reasons and analysis need not be repeated here.
I am in agreement with the majority opinion that the General Assembly may place restrictions upon the exercise by the *79 District Council of its zoning and rezoning powers, within established constitutional limitations. In rezoning applications a hearing may be, and in Montgomery County is, required. I would not suppose, however, that this “hearing” is basically other than the usual legislative hearing which as a matter of general practice, legislative bodies conduct (although not constitutionally required to do so) in regard to legislation before them. The general practice of the General Assembly is to refer a bill to the proper committee which then gives notice of a public hearing on the merits of the proposed bill to which any member of the public is invited to attend. Although the testimony before such a legislative committee may be transcribed, the committee may allow cross-examination of witnesses, the committee may hear counsel for persons or groups either in favor or opposed to the proposed legislation, it has never been thought that these desirable procedural arrangements were other than matters of legislative grace and not matters of constitutional right. The same general type of hearing was intended by the General Assembly in zoning and rezoning matters which, as I have indicated, are legislative in character. The enabling legislation did make a hearing, notice and other procedural matters mandatory, but cross-examination of witnesses was not among those requirements. The District Council, as the local legislative body, may itself provide by ordinance, possibly by regulation or by permission pro hac vice in the particular proceeding, for these procedural matters but the procedural requirements only exist by virtue of the legislation, regulation or permission and not by virtue of any constitutional mandate. In the case at bar there simply is no legislative or other requirement that cross-examination of witnesses be permitted by the District Council and, in my opinion, no such requirement exists. The District Council did see fit to invite cross-examination on a limited basis and I agree that the issue of the requirement of cross-examination of witnesses is not raised in the case at bar, but I cannot see how any constitutional issue of due process of law can be raised in any case if the District Council should decline to permit it. 2
*80 After referring to dicta in Schultze v. Montgomery County Planning Board, 230 Md. 76, 79, 185 A. 2d 502 (1962) and in Kay Construction Co. v. County Council for Montgomery County, 227 Md. 479, 486, 177 A. 2d 694 (1962) stating that the County Council in Montgomery County in rezoning cases *81 does exercise a “quasi-judicial function”, I stated in the dissent in Woodlawn:
“In my opinion this is unfortunate language, unnecessary to the decisions in those cases, which gives rise to the notion that the holding in Dal Maso has been somewhat impaired but not overruled. As I see it, in both cases the County Council was exercising a ‘restricted legislative junction,’ not a ‘quasi-judicial junction.’ It has been my observation that when the prefix ‘quasi’ is appended to a well-defined word, distinctions are blurred, fuzzy thinking is invited and error often results. Its use should be avoided. If the restrictions placed upon the exercise of legislative power are those usually associated with the exercise of judicial functions, one may inquire if the characterization of the function as ‘quasi-judicial’ really does any harm if the suggested difference in characterization is not merely a semantic exercise? I think not. These are quite different concepts and result in different applications of the requirements of due process of law, depending upon whether a function is ‘legislative,’ on the one hand, or ‘judicial’ on the other. If the function is legislative, due process of law does not require a hearing, the opportunity for counsel, the taking of testimony (under oath or otherwise), the right of confrontation or cross-examination and other time-honored safe guards associated with the exercise of a judicial function. The only limitations upon the exercise of the legislative power are those specifically set forth in the Constitution, as for example, the prohibition against the taking of private property other than for public use and upon the payment of just compensation, and that the legislation be not unreasonable, arbitrary and capricious and thus a denial of due process of law. When the legislative power is delegated by the General Assembly to a local legislative body the grant is unlimited, except as limited by the statute making the grant of legislative power, subject, of course, to the constitutional limitations mentioned. In short, the *82 power of review of a court, either upon an original proceeding or upon appeal, is limited to the constitutional limitations mentioned and such limitations as the statute imposes.” (Pages 208-209 of 241 Md.; page 162 of 216 A. 2d).
I am more firmly convinced than ever of the correctness of those observations.
Chief Judge Bruñe put it well for the Court in Overton v. Board of County Commissioners of Prince George’s County, 223 Md. 141, 146 , 162 A. 2d 457, 460 (1960) involving a rezoning application from R-R (rural residential) to C-O (commercial-office building), when he stated:
“As to the matter of cross-examination of witnesses and inspection of documents, the appellants cite two Maryland cases, Board of Zoning Appeals v. McKinney, 174 Md. 551 , 199 A. 2d 540 , and Heath v. Mayor and City Council of Baltimore, 187 Md. 296 , 49 A. 2d 799 , as setting out the requirements for such hearings. Both cases are inapplicable to the instant case, because they involve administrative bodies acting in quasi-judicial roles, whereas here we have the County Commissioners acting in their legislative capacity. In addition, both of the above cited cases, in discussing the requirements of a hearing before the administrative bodies, state only that a public hearing implies the right to present testimony, but no mention is made of the right to cross-examine witnesses or inspect documents.”
As is pointed out in the majority opinion the actual holding in Overton—as in the case at bar—was that the appellants did not request the right to cross-examine. Chief Judge Bruñe stated “and there is no showing whatever that it would have been denied them had it been requested”—thus indicating that the legislative body may, but is not constitutionally required to grant the right to cross-examine.
The dictum in- Overton is a strong one, addressed to the very propositions under discussion. It has not, in my opinion, been impaired in any way by Chief Judge Brune’s statement in *83 Severn v. City of Baltimore, 230 Md. 160, 172 , 186 A. 2d 199, 205 (1962), which was not a zoning case as the majority observed, but, on the contrary, was an administrative proceeding before the board of trustees of the retirement system of Baltimore City to determine on the facts before it whether a fire fighter’s death was not caused by a heart attack which had occurred while fighting a fire, so that his widow was not entitled to an accidental death benefit. Chief Judge Bruñe stated:
“Since our holding is based on waiver, it is not to be taken as implying our approval of any administrative practice in contested cases which would involve hearing a witness without the presence of, or notice to, the claimant or would deprive the claimant of the opportunity for cross-examination of a witness or of an expert whose report may serve as the basis for administrative decision.”
It will be observed that the proceeding was in no way a legislative one and Overton is not mentioned.
Nor, in my opinion, may the majority take any comfort from the dictum in Temmink v. Board of Zoning Appeals for Baltimore County (the “first Temmink case”), 205 Md. 489, 497 , 109 A. 2d 85, 89 (1954), in which Judge Delaplaine, for the Court, in remanding a rezoning case to the Circuit Court for Baltimore County, stated:
“In reviewing the action of the zoning board, the court on appeal considers the board’s action, not the opinion of its members. We will therefore reverse the order appealed from and remand the case for further hearing when the report of the Planning Commission may be introduced in evidence, and the parties may produce any further evidence and have the right of cross-examination. On certiorari directed to the Board of Zoning Appeals, the Circuit Court has the power to affirm the Board’s decision or reverse it in whole or in part, and may remand any case for the entering of a proper order or for further proceedings as the Court shall determine.”
*84 As the majority has pointed out, cross-examination is permitted before the Board of Appeals of Baltimore County, and there is no suggestion in the opinion in first Temmink , that this practice would be denied by the Board, or that cross-examination was a constitutional right.
In my opinion, the opinion in Overton correctly states the applicable law. We should approve and follow it.
. Page 586 of 238 Md., page 346 of 210 A. 2d.
. In the majority opinion it is stated: “We note in passing that Montgomery County seems to be the only jurisdiction in *80 the State whose zoning authorities are required to decide adjudicative facts, which does not provide for cross-examination.” It should be pointed out, however, that in Baltimore City zoning and rezoning are within the control of the City Council of Baltimore City and have not been further delegated to the Board of Municipal and Zoning Appeals. There is nothing in the Zoning Enabling Act, Code (1957), Article 66B, §§ 1-9, as amended (Act of 1927, Chapter 705, as amended) which requires that the testimony before the City Council be transcribed, that witnesses be sworn or that cross-examination be required. In fact none of these things occur. A rezoning ordinance is referred to the Zoning Committee of the City Council and the usual legislative hearing is conducted by that Committee. A report—either favorable or unfavorable—is then made to the City Council in regular course. The Zoning Enabling Act, as amended, does require a very specific notice to be given by publication, by posting and by mail to all persons whose names appear on the tax records as the owners of the property proposed to be changed. Code (1957), Article 66B, § 4. If more than 20% of the property owners in the area to be changed or within 100 feet of the perimeter of the change object to the proposed rezoning, a then favorable vote of all members of the City Council is required for the passage of the rezoning ordinance. Code (1957), Article 66B, § 5. The City Council makes no findings of fact, gives no reasons for its final action and preserves no records. Witnesses are not sworn and cross-examination is not permitted at the hearing. The only questions permitted or asked a witness at the rezoning hearing are those asked by the members of the Zoning Committee present. As I participated in many of these hearings as counsel when at the bar both on behalf of proponents and opponents, respectively, to various proposed rezoning ordinances, it never occurred to me that the procedure used was otherwise than constitutional and lawful and, indeed, the only practical method for the conducting of such hearings, Professor Davis to the contrary notwithstanding.
In administrative hearings before the Board of Municipal and Zoning Appeals of Baltimore City in connection with special exceptions or variances, or even in hearings involving the original jurisdiction exercised by that Board, there is no statutory or other requirement that there be cross-examination but the Board generally permits reasonable cross-examination by counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705718. Public record. Not legal advice.