Appendix — Pritchard v. Board of Commissioners

-

88-253 FILED

FILED

AUG & 1983

JOSEPH F. SPANIOL, UR.

5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

No.

DENZIL PRITCHARD, et ux.

Appellants

Ve

BOARD OF COMMISSIONERS OF

CALVERT COUNTY, et al.

Appellees

APPENDIXES TO

STATEMENT OF JURISDICTION FOR APPEAL

FROM THE COURT OF

APPEALS OF MARYLAND

GOLDSTEIN AND SHER, P.A.

GARY A.GOLDSTEIN,

Attorney of Record

CHARLES E. HALLER

Attorneys for Appellants

1709 Charles Center South

36 South Charles Street

Baltimore, Maryland 21201

(301) 727-5400

APPENDIZ A

IN THE COURT OF APPEALS OF MARYLAND

No. 114

September Term, 1987

BOARD OF COUNTY COMMISSIONERS

OF CALVERT COUNTY, MARYLAND

et al.

Vv.

DENZIL PRITCHARD, et ux.

Eldridge

Cole

Rodowsky

McAuliffe

Adkins

Blackwell,

Orth, Charles E., Jr.

retired (specially assigned),

JJ.

Opinion by Rodowsky, J.

Filed: May 9, 1988

In this case owners whose land

was downzoned before they acquired

any vested rights in the prior

zoning classification argue that the

downzoning violates procedural due

process. The argument succeeded in

the Court of Special Appeals but, as

hereinafter explained, does not

succeed here.

Respondents, Denzil and

Elizabeth Pritchard (the

Pritchards), own a tract of 21.569

acres in the northeast quadrant of

the intersection of Maryland Route 4

and Brickhouse Road in the Third

District of Calvert County (the

Site). On May 8, 1984, a

comprehensive rezoning of Calvert

County was adopted, effective May 9,

1984, at which time new county wide

zoning maps and the text of a new

Calvert County Zoning Ordinance

(Ord.) became legally operative.

See Ord. Sections 1-2, 2-1 and 7-8.

Under the 1984 rezoning the Site was

Classified rural commercial, a

district "created to provide a

zoning classification for existing

commercial enterprises located

outside Town Centers and Marine

Commercial Districts at the time of

the 1984 Comprehensive Rezoning."

Ord. Section 3-1.05.+ commercial

1 section 3-1.05 further provides

in relevant part:

Additional Rural Commercial Zoning

will be considered comprehensively

at least every fc 14r years (Cont. )

-2-

retail uses are permitted uses in

the rural commercial zone. Ord.

Section 3-2.03.

On May 8, 1984, the Site was

undeveloped. * With respect to

undeveloped property zoned rural

commercial on the date of adoption

of the comprehensive rezoning Ord.

Section 7-4.02 B provides:

i (Cont.) and will be based on a

comprehensive evaluation of the need

for and appropriateness of

additional commercial zoning outside

Town Centers and Marine Commercial

Districts. In order to help ensure

highway traffic safety and to

promote the public welfare,

additional Rural Commercial Zoning

shall not be approved on a parcel of

land which adjoins a minor arterial

or which requires direct access onto

a minor arterial.

Zon April 18, 1984, the Calvert

County Planning Commission had

approved a plan for a (Cont. )

-3-

Undeveloped Rural Commercial

properties outside Town

Centers as identified on the

Zoning Maps will be allowed

to retain commercial zoning

for a period of two years

from the adoption of this

Ordinance. At that time,

those properties with an

approved site plan will

have an additional two

years to complete substantial

construction of their

buildings. Those properties

2 (Cont.) convenience food store on

the property on the condition that

the only access be to Brickhouse

Road. The Pritchards, aggrieved by

the condition, appealed to the

Circuit Court and "also sought to

enjoin the enactment of [the 1984)

zoning ordinance because its site

plan review procedure expressly

authorized the denial of access to

Route 4, thereby rendering the

appeal moot." Pritchard v. Calvert

County Planning Comm’n, Court of

Special Appeals of Maryland, No.

136, September Term, 1985, filed

October 15, 1985 (unreported). The

Circuit Court denied the injunction

and affirmed the agency. The Court

of Special Appeals affirmed the

circuit court. [d.

-4-

without an approved site plan

shall be automatically zoned

consistent with the zoning in

the area after the first two

year period. Those properties

with approved site plans which

have not completed substantial

construction of their principal

buildings within the additional

two year period referred to

above, shall be automatically

zoned consistent with the

zoning in the area. Only those

portions of properties which

‘can demonstrate substantial

construction of their principal

buildings within the additional

two year period shall retain

commercial zoning. Any residue

shall be zoned consistent with

the zoning in the area.

On August 2, 1988, a contract

purchaser from the Pritchards,

Compson Development Company

(Compson), caused to be submitted

to the Calvert County Planning

Commission (the Commission) a

preliminary subdivision plan which

proposed a shopping center on the

site. The Commission granted

preliminary approval of the plan at

its regular meeting on October 16,

1985, subject to conditions. One of

the conditions permitted access only

to Brickhouse Road. The

Commission’s secretary notified

Compson of the preliminary approval

and of the specific conditions by

letter dated November 1, 1985.

There was no appeal from this action

of the Commission. 3

On May 7, 1986, when two years

from the effective date of the 1984

3 on November 12, 1985, Compson

submitted a sketch plan to the

Commission reflecting access only to

Brickhouse Road. The Commission, by

letter to Compson dated December 20,

1985, pointed out that it was "not

the Planning Commission’s normal

procedure to take official (Cont. )

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ordinance had nearly expired, the

Pritchards, acting in their own

names, submitted for review plans

under which the site would be

utilized as a shopping center. The

plans were identical to those for

the shopping center previously

3 (Cont.) action on the Sketch

Plans and no site plan ha[{d] been

submitted." Because of Compson’s

"specific request for action upon

the Sketch Plan as submitted," the

Commission at a meeting on December

4, 1985, disapproved the sketch plan

for two reasons. First, it called

for a tratftic Aight at the

intersection of Route 4 and

Brickhouse Road which was not

consistent with the comprehensive

plan. Second, the septic field

serving the shopping center was

required to be located within the

boundaries of the commercial zone

but the sketch plan showed the

septic field on adjacent,

noncommercially zoned land.

Thereafter Compson’s involvement

with the Site seems to have ended.

@-Jo

proposed by Compson. At a regular

meeting held on May 21, 1986, the

Commission unanimously disapproved

those plans because the property

"was rezoned from Rural Commercial

to Rural on 5/8/86" so that the site

plan was “not consistent with the

proper zoning." 4

The Pritchards appealed to the

Circuit Court which affirmed the

Commission. That court reasoned

4 It is immaterial in this case

whether “two years from the adoption

[on May 8, 1984]," expired on May 8,

1986, as the Commission stated, or

on May 9, 1986, by computing time in

the same manner as that prescribed

in Md. Code (1957, 1985 Repl. Vol.),

Art. 94, Section 2. For the sake of

consistency with the Commission, we

shall utilize May 8, 1986.

Further, no issue has been

raised in the case now before(Cont.)

1 PRT WRF

that once the two-year period under

Ord. Section 7-4.02 B expired the

property was no longer in a district

which permitted the shopping center

use proposed on the site plan.

The Pritchards appealed to the

Court of Special Appeals which

reversed in an unreported opinion.

The court recognized that the intent

of Section 7-4.02 B was to adopt a

"use it or lose it” rationale but

thought that the procedural steps

were unclear, saying:

The language used in Section 7-

4.02 B is ambiguous in that it

4 (Cont. ) us concerning the

Commission’s conclusion that a

reclassification to rural was

"consistent with the zoning in the

area after the first two year

period."

does not specifically address

or define the effect on the

automatic rezoning provision of

the timely submission of a site

plan application; it does not

answer the question whether the

automatic rezoning will occur

immediately upon the expiration

of the period notwithstanding

that prior to that time an

application for site plan

approval had been filed.

The court considered Logan v.

Zimmerman Brush Co., 455 U.S. 422,

102 S. Ct. 1148, 71 L. Ed. 2d 265

(1982) to be a relevant precedent.

That decision held that due process

required a hearing on a claim under

an Illinois anti-discrimination

statute which provided a statutory

entitlement to certain remedies. In

the case at hand the Court of

Special Appeals, although conceding

"that no property rights exist in

zoning absent vested rights," said

-10-

that such rights may be

bestowed upon a property owner

in the zoning ordinance itself

and, once bestowed,

constitutionally may not be

removed without appropriate

procedural safeguards. This is

precisely the situation guyb

judice. By virtue of Section

7-4.02 B, (the Pritchards]) were

given an entitlement, for a

two-year grace period, in the

rural-commercial zoning of

their property. That

entitlement could be continued

and, in fact, was guaranteed

upon their obtaining of an

approved site plan. That

entitlement may not be

extinguished without adequate

and appropriate safe-guards.

(Citations omitted. }

The court then concluded that the

entitlement could not automatically

be terminated without a hearing,

particularly when the Pritchards

faced the "impossible" burden of

being required "to speculate" when

an application must be filed so as

-1il-

to allow sufficient time for the

Commission to act.

We granted Calvert cCounty’s

petition for certiorari. 5

I

The Pritchards present here, as

they did in the intermediate

5 The Pritchards had also filed, on

April 22, 1986, a complaint for a

mandamus ordering the Commission to

approve a site plan attached as

Exhibit 1 to that complaint. That

site plan exhibit called for access

to Route 4. The circuit court

entered judgment for the defendants

in the mandamus’79 action. The

Pritchards appealed to the Court of

Special Appeals from the denial of

mandamus and that appeal was

consolidated with their appeal from

the Commission’s disapproval of the

site plan submitted on May 7, 1986.

The Court of Special Appeals

affirmed the circuit court’s denial

of mandamus and we denied the

Pritchards’ petition for certiorari

from that affirmance.

-12-

appellate court, a ground of

decision which does not require

deciding whether their due process

rights were violated by the

Commission. They submit that, as a

matter of statutory construction,

one complies with Section 7-4.02 B

by submitting a site plan in

“approvable" form within two years

from May 8, 1984, without regard to

when the plan is approved. The text

simply does not permit’ that

interpretation. After providing

that undeveloped rural commercial

properties outside town centers

“will be allowed to retain

commercial zoning for a period of

two years from " May 8, 1984, the

ordinance reads that "[(ajt that

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time, those properties with an

approved site plan will have an

additional two years to complete

substantial construction of their

buildings." The phrase, "({ajt that

time" refers to the time when the

two years expire. A site plan which

meets the condition is one which is

“approved” at that time. The last

day of the two-year period is the

last day by which the condition must

be satisfied, not the beginning of a

period of site plan review during

which rural commercial zoning

continues.

In addition, the argument that

“approvable" should be, in effect,

substituted for "“approved" is of no

ultimate benefit to the Pritchards

-14-

unless “approvable" is taken to mean

"“approvable" in some form into which

the site plan might evolve from the

form in which it was submitted on

the day before the end of the two-

year period. This is because the

site plan actually submitted by the

Pritchards was identical to a plan

previously submitted by Compson

which the Commission would not

unconditionally approve. It is not

the purpose of the two-year

provision in the ordinance to mark

the beginning of a period of

negotiation over the features of the

project.

When Section 7-4.02 B is viewed

in the light of prior Maryland

downzoning cases, it is clear that

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the two-year provision is a matter

of legislative grace. "(Ijn order

to obtain a vested zoning status,

there must be construction on the

ground[.]" Washington Suburban

Sanitary Comm’n v. TKU Assocs., 281

Md. 1, 23, 376 A.2d 505, 516 (1977).

Thus, we have sustained zoning

amendments which prevented or

substantially altered a project

when, prior to construction but in

anticipation of the continuation of

the prior zoning, an owner:

expended $1,500,000 and dedicated

$800,000 worth of land in planning a

900,340 square foot retail and

office complex, id.; expended nearly

$260,000 on plans for a refinery and

obtained a building permit, Steuart

-16-

Petroleum Co. v. Board of County

Comm’rs, 276 Md. 435, 347 A.2d 854

(1975); expended $1 million in

planning an apartment development

and obtained a building permit for

420 units, County Council for

Montgomery Co. v. District Land

Corp., 274 Md. 691, 337 A.2d 712

(1975); and obtained from a board of

appeals, pursuant to an adjudication

by this Court, a special exception

for a concrete batching plant

followed by preliminary approval of

a site plan, Rockville Fuel & Feed

Co, v. City of Gaithersburg, 266 Md.

117, 291 A.2d 672 (1972). See also

Richmond Corp. v. Board of County

Comm’rs, 254 Md. 244, 255 A.2d 398

(1969); Marathon Bldrs.. Inc. vy.

-17-

Planning Comm’n, 246 Md. 187, 227

A.2d 755 (1967); Bogley vy. Barber,

194 Md. 632, 72 A.2a 17 (1950);

Mayor and City Council of Baltimore

vy. Shapiro, 187 Md. 623, 51 A.2d 273

(1947). Under the principle

established by these cases the

County Commissioners of Calvert

County could have placed the Site in

a rural zone, effective as of May 8,

1984, despite plans the Pritchards,

or one claiming under them, might

have had for a shopping center at

the Site.

Inetead, the County

Commissioners enacted a saving

Clause for properties zoned rural

commercial which were undeveloped as

of May 8, 1984. Owners of that

Class of land were given two years

within which to obtain an approved

site plan and an additional two

years within which to complete

substantial construction of their

principal buildings. The

legislative body concluded that two

years was a reasonable period within

which to prepare, submit and obtain

approval of the site plan for any

size project utilizing rural

commercial zoning. Indeed, the

validity of that legislative

conclusion is demonstrated by

Compson’s experience in obtaining

the response of the Commission

within several nonths after

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ii iii Sei Ae IED be

Compson’s submission. Unlike the

Court of Special Appeals, we do not

discern an ambiguity in Section 7-

4.02 B arising from its lack of

express provisions dealing with the

effect on the automatic

reclassification of a pending but

unapproved site plan as of May 8,

1986. Under the subject ordinance

the initial benefit of the saving

Clause is achieved only by site plan

approval and the ordinance is not

concerned with the effect of site

plan submissions, as such.

Consequently, absent a site

plan approved within two years from

May 8, 1984, Section 7-4.02 B of the

ordinance operated to reclassify the

Site into a rural zone. The

-20-

question then becomes whether

constitutional arguments advanced by

the Pritchards, particularly

procedural due process, prevent the

ordinance from having that operation

and effect.

If

A

There is no procedural due

process violation. The hearing

which the Court of Special Appeals

considered to have been denied to

the Pritchards was a hearing before

the Commission on the site plan

submitted May 7, 1986. Underlying

that analysis is the concept that

the submission stayed the automatic

rezoning so that the site plan

should have been considered under

-21-

the rural commercial zoning. The

Court of Special Appeals seems to

consider that result

constitutionally required in order

to cure the ordinance’s vagueness as

to a deadline for submission of the

site plan, although that court did

not articulate its reasoning in

those terms.

The Supreme Court stated the

guidelines governing aie facial

challenge on due process grounds to

Claimed vagueness of a statute in

Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455

U.S. 489, 102 S. Ct. 1186, 71 L. Ed.

2d 362 (1982). Under attack in that

case was a municipal ordinance which

required, under penalty of criminal

-22-

fines, licensing of, and

recordkeeping by, persons selling

“any items, effect, paraphernalia,

accessory or thing which is designed

or marketed for use with illegal

cannabis or drugs[{.]" Id. at 492,

102 S. Ct. at 1190. In that context

the Court said:

The degree of vagueness that

the Constitution tolerates--as

well as the relative importance

of fair notice and fair

enforcement--depends in part on

the nature of the enactment.

Thus, economic regulation is

subject to a less. strict

vagueness test because its

subject matter is often more

narrow, and because businesses,

which face economic demands to

plan behavior carefully, can be

expected to consult relevant

legislation in advance of

action. Indeed, the regulated

enterprise may have the ability

to clarify the meaning of the

regulation by its own inquiry,

or by resort to an

administrative process. (Id.

at 498, 102 S. Ct. at 1193

-23-

(footnotes omitted). }

In the case now before us the

Pritchards were on notice on

May 8, 1984, that their property

would be downzoned in two years

absent an approved site plan.

The ordinance identifies the

reviewing agencies which must

approve a site plan before a

building permit will be issued. 6

Because the size and complexity

of a specific project will affect

the length of time required for

agency review, prudence dictates

that one who owned undeveloped

rural commercial land as 6 loof

May 8, 1984, would inguire of

6 an applicant submits a completed

application form, the (Cont. )

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the appropriate Calvert County

officials as to how far in

advance of the automatic

downzoning a site plan for a

6 (Cont.) appropriate fee and the

site plan to the Division of

Inspections and Permits. Ord.

Section 6-1.04 A. The Chief of

Inspections and Permits refers the

permit to the appropriate agencies

for review. Section 6-1.04 C.

Pursuant to Section 6-1.05 the

following agencies review plans:

A. Division of

Inspections & Permits;

B. Department of Planning &

Zoning;

Cc. Planning Commission, which

reviews for conformity with,

inter alia, the zoning

ordinance;

D. Engineering Division;

E. Soil Conservation Service;

F. County Health Department;

G. State Fire Marshall;

H. County Water & Sewer;

Division; and

I. State Highway

Administration.

-25-

specific type of project should

be submitted in order to obtain

approval within the two-year period.

Due process does not require greater

specificity as to the timing of an

application than that provided in

Section 7-4.02 B.

The Court of Special Appeals

considered that the grace period

provided by the saving clause was in

some way extended by the Pritchards’

last minute filing, and considered

that the function of the Commission

was to review the tendered site plan

for conformity with rural commercial

zoning. Thus, the court concluded

that this case was controlled by

principles involving procedural due

process Aas applied to the

-26-

arse eet Te oe eT ea — LWA OR lm I Sea _ race : nee me » £ meat MADRE LRT, IY REI OPN RN NS

deprivation of statutory

entitlements. We do not agree.

Assuming that the saving clause had

conferred a statutory entitlement on

the Pritchards, that entitlement was

lost by the terms of the ordinance

two years after May 8, 1984, and was

not extended by the filing on May 7,

1986. When the Commission reviewed

the Pritchards’ site plan at its

regular meeting on May 21, 1986, the

downzoning had taken effect and the

Commission could not approve a site

plan for a shopping center in a

rural use district.

In this respect the case at

hand is like Board of Regents v.

Roth, 408 U.S. 564, 92 S. Ct. 2701,

33 L. Ed. 2d 548 (1972) where a

-27-

en

university decided, for unstated

reasons, not to renew on its

expiration the one-year contract of

a teacher who needed three more

years to be eligible for tenure.

Reversing lower court holdings that

the teacher had been denied

procedural due process the Court

held that the teacher’s "property"

interest in employment at the

university

was created and defined by

the terms of his appointment.

Those terms secured his

interest in employment’ up to

June 30, 1969. But the

important fact in this case

is that’ they specifically

provided that the ([teacher’s}]

employment was to terminate

on June 30. (Id. at 578, 92

S. Ct. at 2709.)

The Court held that under those

circumstances the teacher "did not

-28-

have a property interest sufficient

to require the University

authorities to give him a hearing

when they declined to renew his

contract of employment." 1. eat °

578, 92 S. Ct. at 2710.

Consequently, Logan. Ve

Zimmerman Brush Co... supra, is not

on point. The Illinois anti-

discrimination statute involved in

that case placed an obligation on

the agency administering the statute

to convene a fact-finding conference

with 120 days after a charge of

discrimination was made by a

complainant. The agency, apparently

by oversight, scheduled the hearing

on Logan’s complaint for a date five

days after expiration of the

-29-

statutory period. 455 U.S. at 426,

102 S. Ct. at 1152. The Supreme

Court of Illinois held that the

failure to conduct the hearing

within the statutory period

terminated the clain. The United

States Supreme Court found a denial

of procedural due process. The

Illinois statute conferred on Logan

a state-created right to redress

discrimination. Whether Logan would

obtain redress under that statute

depended upon whether he was unable

to perform his duties as a shipping

clerk or whether he was

discriminated against because one of

his legs was shorter than the other.

The Court held that Logan’s claim

under the statute was a form of

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property of which he could not be

finally deprived without "‘gome form

of hearing.‘* Id. at 433, 102 S.

ct. at 1156 (quoting Board of

Regents v. Roth.supra, 408 U.S. at

570-571 n.8, 92 S. Ct. at 2704-5

n.8). Applying a standard under

which "the timing and nature of the

required hearing ‘will depend on

appropriate accommodation of the

competing interests involved,‘" 455

U.S. at 434, 102 S. Ct. at 1157

(footnote omitted) (quoting Goss v.

Lepez, 419 U.S. 565, 579, 95 S. Ct.

729, 738-39, 42 L. Ed. 2d 725, 737

(1975)), the Court concluded that

the Illinois statute presented "an

unjustifiably high risk that

meritorious claims will be

-3l1-

terminated" and that "the State’s

interest in refusing Logan’s

procedural request is, on this

record, insubstantial." 455 U.S. at

435, 102 S. Ct. at 1157.

Logan was concerned with a

hearing at which the agency, acting

in a quasi-judicial capacity, would

have determined adjudicative facts.

Professor Davis says that

adjudicative facts are facts

about the parties and their

activities, businesses and

properties. They usually

answer the questions "of who

did what, where, when, how,

why, with what motive or

intent" while legislative facts

"do not usually concern the

immediate parties but are

general facts which help the

tribunal decide questions of

law and policy and discretion."

f

, 280 Md. 686,

712, 376 A.2d 483, 497 (1977),

cert. denied, 434 U.S. 1067, 98

8S. Ct. 1245, 55 L. Ed 2d 769

(1978) (quoting 1 Davis,

-32-

Section 7.02 (1958)).]

Here, unlike the problem in

Logan, the Pritchards’ property was

not downzoned as a result of any

determination of adjudicative facts

by the Commission. The downzoning

was legislative action embodied in

the ordinance of May 8, 1984, with

the downzoning delayed for the two-

year grace period. In City of

Eastlake v. Forest City Enterprises,

inc., 426 U.S. 668, 96 S. Ct. 2358,

49 L. Ed. 2d 132 (1976), the owner

of property which had _. been

reclassified by the town council to

permit a high-rise apartment lost

the rezoning in a municipal

referendum called for by the town

charter. The owner claimed that the

-33-

referendum effected a standardless

delegation of legislative power, but

the Court held that the citizens of

the municipality acted legislatively

in exercising a power reserved by

the people themselves. 426 U.S. at

672, 96 S&S. Ct. at 2361. The Court

further stated:

If {the owner] considers the

referendum result itself to be

unreasonable, the zoning

restriction is open to

challenge in state court, where

the scope of the state remedy

available to [the owner] would

be determined as a matter of

state law, as well as under

Fourteenth Amendment standards.

That being so, nothing more is

required by the Constitution.

(Id. at 677, 96 S. Ct. at 2363-

64 (footnote omitted). ]

The only finding made by the

Commission in the case before us was

that the site plan proposed a

-34-

shopping center on property in a

rural zone which does not permit

that use. The Commission

essentially reached a legal

conclusion on undisputed facts. Any

due process requirement for judicial

review of that legal conclusion is

more than satisfied by the appeal to

the Circuit Court for Calvert

County, followed by appeal as of

right to the Court of Special

Appeals, and by the discretionary

review by this Court.

B

The Pritchards argue that the

downzoning violates their equal

protection rights. They rely, once

again, on Logan v. Zimmerman Brush

Co... supra, but, for the instant

-35-

argument, on the positions espoused

by six justices in two concurring

opinions. Those justices believed

that the Illinois anti-

discrimination statute created two

Classes of claimants, those whose

Claims were processed by the agency

within the 120-day time limit and

those whose claims were not timely

processed. The six justices

concluded that there was no

reasonable basis for the

Classification because it depended

wholly on a factor beyond the

control of the claimant.

The County Commissioners of

Calvert County in implementing the

saving clause made site plan

approval the criterion for

-36-

qualifying for continued rural

commercial zoning and fixed two

years as the period within which

that qualification must be attained.

Unlike Logan, whether a property

owner satisfies the criterion by the

time limit is a matter over which

the property owner can exercise

control, where, as here, there is no

question as to the good faith of the

administrative review. Those who

submit their site plans for review

early in the two-year grace period

enjoy a greater likelihood that the

process will be completed and any

approval granted than do those who

goles until late in the process or

who, as did the Pritchards, delay

until the last moment. "It is

-37-

evident from the circumstances of

this case that approval of a site

plan was impossible on May 7[,

1986)." Respondents’ Brief at 16.

Rewarding diligence bears a

reasonable relation to the saving

provision’s objective of striking a

balance between the economic hopes

or expectations of property owners

and achieving the comprehensive

plan’s goal of reducing commercial

uses outside of town centers.

Cc

Finally, the Pritchards contend

that the downzoning violated the

State enabling Act, specifically,

Md. Code (1957, 1988 Repl. Vol.),

Art. 66B, Section 4.05(a). In

relevant part it provides:

-38-

Such regulations, restrictions,

and boundaries may from time to

time be amended, supplanted,

modified, or repealed. Where

the purpose and effect of the

proposed amendment is to change

the zoning classification, the

local legislative body shall

make findings of fact in each

specific case . . . and may

grant the amendment based upon

a finding that there was a

substantial change in the

character of the neighborhood

where the property is located

or that there was a mistake in

the existing zoning

Classification.

The automatic downzoning at the end

of the grace period of undeveloped

rural commercial property for which

a site plan had not been approved

was part of the comprehensive 1984

rezoning of Calvert County. "The

so-called ‘change or mistake‘ rule

applicable to piecemeal zoning cases

is not controlling in comprehensive

zoning cases, and the plan is

-39-

entitled to the same presumption of

correctness as an original zoning."

Scull v. Coleman, 251 Md. 6, 12, 246

A.2d 223, 226 (1968). And see

Montgomery County v. Woodward §&

Lothrop, Inc., supra, 280 Md. at 703

n.8, 376 A.2d at 493 n.8.

JUDGMENT OF THE COURT OF

SPECIAL APPEALS REVERSED.

CASE REMANDED TO THAT

COURT FOR THE ENTRY OF A

JUDGMENT AFFIRMING THE

JUDGMENT OF THE CIRCUIT

COURT FOR CALVERT COUNTY.

COSTS TO BE PAID BY THE

-40-

|

IN THE COURT OF SPECIAL APPEALS

No. 1435

September Term, 1986

DENZIL PRITCHARD, et ux.

Ve

BOARD OF COMMISSIONERS OF CALVERT

COUNTY, MARYLAND,et al.

Bell, Rosalyn B.

Karwacki

Bell, Robert M.

JJ.

PER CURIAM

Filed: June 26, 1987

#

Denzil and Elizabeth Pritchard,

the owners of land located at the

intersection of Md. Route 4 and

Brickhouse Road in Calvert County,

entered into a contract for the sale

of that land to Compson Development

of Virginia, Inc. (Compson). The

sale was contingent upon the

purchasers obtaining site approval

and building permits for development

of the land as a commercial shopping

center. When the contract was

entered into, the land was zoned

rural commercial permitting retail

development of more than 5,000

square feet. It was also subject to

Article 7, Section 7-4.02 B of the

Calvert County Zoning Ordinance,

which provides:

Undeveloped Rural Commercial

properties outside Town Centers

as identified on the Zoning

Maps will be allowed to retain

commercial zoning for a period

of two years from the adoption

of this Ordinance. At that

time, those properties with an

approved site plan will have an

additional two years to

complete substantial

construction of their

buildings. Those properties

without an approved site plan

shall be automatically zoned

contingent [sic] consistent

with the zoning in the area

after the first two year

period. These properties with

approved site plans which have

not completed substantial

construction of their principal

buildings within the additional

two year period referred to

above, shall be automatically

zoned consistent with the

zoning in the area. Only those

portions of properties which

can demonstrate substantial

construction of their principal

buildings within the additional

two year period shall retain

commercial zoning. Any residue

shall be zoned consistent with

the zoning in the area.

Article 6 of the Calvert County

Zoning Ordinance provides that an

approved site plan may be obtained

by submitting a site plan for review

and approval by a number of

agencies. Compson, having caused a

site plan of the property and a

traffic study to be prepared,

applied for an approved site plan

and the required submittals were

made to the appropriate county

agencies. Appellants were no«

parties to the application.

The Calvert County Planning

Commission, which "[{rjeviews plans

for conformance with the

comprehensive plan, zoning

ordinance, subdivision regulations,

town master plans, and design

standards. . -," Section 6-1.05C,

granted preliminary approval of the

plan subject to the condition that

the development would not access

onto Md. Route 4. Therefore a

sketch plan, modified to address the

Planning Commission’s concern

regarding the previously submitted

site plan, was drafted and submitted

to the Commission. The Commission

considered this draft plan at a

public hearing, in which appellant

Denzil Pritchard participated. At

the conclusion of the hearing, the

Planning Commission rejected the

sketch plan on two bases:

1. The proposed traffic

light at the intersection of

Maryland Route 4 and Brickhouse

Road is not consistent with the

Calvert County Comprehensive

Plan.

2. The proposed septic

-4-

area for the commercial use

must be contained within the

boundaries of the commercially

zoned property.

Following receipt of the Planning

Commission’s decision, Compson

neither submitted other plans nor

appealed the decision. And even

though a copy of the Commission’s

decision was forwarded to appellant

Denzil Pritchard, appellants did not

appeal either. Subsequently, four

months after the Planning

Commission’s decision, appellants

filed a complaint for mandamus in

the Circuit Court for Calvert County

to compel the County and its

agencies to approve the Compson’s

site plan.

As previously indicated, the

zoning on appellants’ land was

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. —

. = . s . . °

wy vm yw oT FG Uo my wef ey ce @ .® “4 ids a vy : he Me y+? ia on a all

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subject to the provisions of Section

7-4.02B. That section was adopted

on May 8, 1984. Consequently, the

Classification of appellants’ land

was to be automatically downgraded

to rural on May 8, 1986 unless on or

prior to that date a site plan had

been approved by the Commission. To

forestall this eventuality,

appellants filed, in their own

names, a site plan, identical to the

one originally filed by Compson with

the Planning Commission. This plan

was considered at the next reguarly

[sic] scheduled Planning Commission

meeting on May 21, 1986. The

Commission rejected the plan on the

basis that, as of the date of the

meeting, the property had been

-6-

reclassified to a rural zone and,

thus, proposed a use not permitted

in that zone. Appellants, who were

not notified that its site plan

application would be reviewed on May

21, 1986, were informed of the

denial of the application and the

reason for the denial, more than a

week later. They appealed to the

circuit court.

Appellee’s answer to

appellants’ mandamus action asserted

that mandamus was not the

appropriate remedy to obtain review

of the Planning Commission’s

decision and appellants moved to

strike that defense, presenting

squarely the issue whether mandamus

was available. Arguments on that

-J=

issue and on appellant’s

administrative appeal were presented

at a hearing held on September 22,

1986. The court denied appellants’

motion to strike appellees’ defense

and, upon motion of appellees,

dismissed the mandamus action. It

also affirmed the decision of the

Planning Commission, concluding

that:

the property not having met the

condition and the expiration

time having arrived, I think

the Planning Commission

appropriately denied the

application on the grounds that

the site plan applied for no

longer fit the zoning of the

property.

Appellants’ appeal from the

judgments thus entered presents two

questions:

ie Whether a complaint

for mandamus is the proper

remedy when the plaintiff below

had no clear right of appeal.

2. Whether a site plan

submitted pursuant to a zoning

ordinance which guarantees a

zoning designation until a

specific date must be evaluated

according to the zoning in

effect on the day of

submission.

For reasons set forth hereinafter,

we will affirm the judgment as to

the mandamus action, but reverse the

judgment as to the administrative

appeal.

1.

Mandamus is a most valuable and

essential remedy in the

administration of justice, but

it can only be resorted to to

supply the want of some more

appropriate ordinary remedy.

Its office, as generally used,

is to compel corporation,

inferior tribunals, or public

officers to perform their

functions, or some particular

duty imposed upon them, which,

in its nature, is imperative,

ied

and to the performance of which

the party applying for the writ

has a clear legal right. The

process is extraordinary, and

if the right be doubtful, or

the duty discretionary, or of a

nature to require tha exercise

of judgment, or if there be any

ordinary adequate legal remedy

to which the party applying

could have recourse, this writ

will not be granted. The

application for the writ being

made to the sound judicial

discretion of the court, all

the circumstances of the case

must be considered in

determining whether the writ

should be allowed or not; and

it will not be allowed unless

the court is satisfied that it

is necessary to secure the ends

of justice, or to subserve some

just or useful purpose.

Bovey _yv. Executive Director, Health

Claims, 292 Md. 640, 644 (1982),

quoting George’s Crk. C. £& I. Co. v.

Co. Com., 59 Md. 255, 259 (1883).

Thus, the writ of mandamus will lie

where th» party seeking the writ

demonstrates that "a public official

-10-

has a plain duty to perform certain

acts, that [the party) has a plain

right to have those acts performed,

and that no other adequate remedy

exists by which [the party’s) rights

can be vindicated." (citations

omitted) Prince George’s County v.

Carusillo, 52 Md. App. 44, 50

(1982). The writ will also lie

where there is no statutory

provision for review of the acts of

a public official, who is alleged to

have abused his discretion. Id.

See Cicala vy. Disability Review

Board, 288 Md. 254, 259 (1980).

Appellants contend that, since

they had "no clear right of appeal",

mandamus is the appropriate means of

obtaining judicial review of the

Planning cCommission’s decision.

They argue that Section 6-1.05 of

the Calvert County Zoning Ordinance

does not provide a right of appeal

since no "zoning action by the local

legislative body", as required by

Maryland Code Ann. art. 66B Section

4.08(a), has been taken. 1 They

further assert that they are unable

1 section 4.08(a) provides:

Any person or persons, jointly or

severally, aggrieved by any decision

of the board of appeals, or by a

zoning action by the locai

legislative body, or any taxpayer,

or any officer, department, board,

bureau of the jurisdiction, may

appeal the same to the Circuit Court

of the county, Such appeal shall be

taken according to the Maryland

Rules as set forth in Chapter 1100,

Subtitle 8B. Nothing in this

subsection shall change the existing

standards for review of any zoning

action.

-12-

to appeal pursuant to the provisions

of the Maryland Code Ann. art. 66B,

Section 4.08(f) 2 because they were

not parties to the application for

site plan approval. Moreover,

appellants deny that the possibility

of intervention before the circuit

court provides them with an adequate

remedy.

By its express provisions,

Section 4.08(f) authorizes an appeal

2 section 4.08(f) provides:

In addition to the appeal provided

in this section, a local legislative

body may provide for appeal to the

circuit court of any matter arising

under the planning and zoning laws

of the county or municipal

corporation, but in Cecil County an

appeal of a subdivision approval

shall first be taken to the board of

appeals. The decision of the

circuit court may be appealed to the

Court of Special Appeals.

-13-

procedure additional to that

provided in Section 4.08(a). 3 It

permits a local legislative body to

allow an appeal of “any matter

arising out of the planning and

zoning laws of the county," not

simply “zoning actions", to the

circuit court. Pursuant to that

authorization, the Calvert County

Council enacted Section 6-1.05 .C,

relating to the Planning

Commission’s review of site plans,

and provided that "Appeal may be

3 Urbana Civic Association, Inc. v.

Urbana Mobile Village, Inc., 260 Md.

458 (1971), on which appellants

rely, was decided prior to the

addition of Section 4.08(f) to Art.

66B in 1975. See Ch. 414, Laws of

1979. Consequently, that case is

inapposite.

-14-

made to the Circuit Court,

Courthouse, Prince Frederick,

Maryland - 535-1600." Patently, a

Clear right of appeal is provided

from decisions of the Planning

Commission with regard to site plan

reviews. Moreover, neither the

ordinance nor Section 4.08(f)

restricts, in any way the right of

appeal; neither provides, nor even

implies, that the appeal right is

limited to the parties to an

application before the Planning

Commission. In fact, not even

Section 4-08(a) is so restrictive.

The test of the right to appeal

is whether the person seeking to

appeal is aggrieved by the decision

of the administrative body. Section

-15-

4-08(a). A person is aggrieved if

his or her

{pjersonal or property rights

are adversely affected by the

decision of the [Commission].

The decision must not only

affect a matter in which the

protestant has ae specific

interest or property right but

his interest therein must be

such that he is personally and

specially affected in a way

different from that suffered by

the public generally.

Bryniarski v. Montgomery County, 247

Md. 137, 144 (1967). See Wier v.

Witney Land Company, 257 Md. 600,

610 (1970); Witney v. Major Realty,

251 Md. 63, 64 (1968); Gnau v.

Seidel, 25 Md. App. 16, 25 (1975).

Certainly appellants were aggrieved.

As the owners of the land, the

contract as to which required

reclassification as a precondition

-16-

to its sale, they were affected in a

way different than the public

generally. Moreover, appellants had

standing to appeal the adverse

decision of the Planning Commission

to the circuit court. Appellant

Denzil Pritchard was not only

present at the Planning Commission

proceedings at which he made

statements for the record but the

fact of his ownership interest in

the land under consideration was

also a part of that’ record.

"(A)bsent a reasonable agency rule

or regulations providing for a more

formal method of becoming a party,

anyone clearly identifying himself

to the agency for the record as

having an interest in the outcome of

-17<-

the matter being considered by that

agency, thereby becomes a party to

the proceedings." Morris v. Howard

Research and Dev. Corp., 278 Md.

417, 423 (1976). See Bryniarski,

247 Md. at 143 (testifying before

the agency is sufficient to render

one a party); Hertelendy v.

Montgomery County, 245 Md. 554, 557

(1967) (submitting a letter of

protest into evidence is

sufficient); DuBay v. Crane, 240 Md.

180, 184 (1965) (identifying oneself

on the record as a party to the

proceeding suffices). Thus,

appellant Denzil Pritchard was a

party to the proceedings. That Mrs.

Pritchard was not would not have

prevented the court from

entertaining the appeal. See Weir,

257 Md. at 614; Bryniarski, 247 Md.

at 147.

We hold, therefore, that, far

from erring in dismissing

appellants’ mandamus action, the

court was eminently correct in doing

so.

2.

Appellants’ appeal from the

Planning Commission’s decision

presents a more serious and

difficult issue. At its heart is

the question, whether the Commission

was required to evaluate appellants’

site plan application, filed prior

to the expiration of the two-year

period, in light of the zoning in

effect on the date of filing or in

light of the zoning in effect on the

date on which the application was

reviewed. The answer to this

issue requires that we determine

whether appellants had a_ vested

right to the zoning bestowed upon

its property by Section 7-4.02B.

This determination, in turn, depends

upon the interpretation of Section

7-4.02B to discover its true meaning

and intent of the legislative body.

In seeking to ascertain the

intention of the legislative body in

enacting the ordinance, we look to

the language of the enactment in its

natural and ordinary signification

and, if it is plain and unambiguous,

no further. City of Baltimore v.

Hackley, 300 Md. 277, 283 (1984).

-20-

If, however, the language of the

enactment is ambiguous, the

enactment must be interpreted so as

to further the legislative body’s

intent, State v. Berry, 287 Md. 491,

495 (1980), and in such a way as to

avoid an unreasonable result or one

that is inconsistent with common

sense. Frank v. Baltimore County,

284 Md. 655, 659 (1979). The

ordinance quite clearly provides

that certain undeveloped rural

commercial property "will be allowed

to retain commercial zoning for a

period of two years" after its

adoption and that, at the end of

that two-year period, "[(t]jhose

properties without an approved site

plan shall be automatically zoned

-21-

consistent with the zoning in the

area after the first two year

period.” This "use it or lose it"

rationale, see Colwell] _v. Howard

County, 31 Md. App. 8, 13 (1976),

has the obvious purpose of

permitting the owner of property in

a rural commercial zone to develop

that property so long as he does so

in an expeditious manner. Thus, the

ordinance balances appellants’ right

. to develop their property with the

right of the county to control

development in the county. It has,

then, "a rational relationship with

the purposes of zoning regulations

and is a reasonable exercise of the

police power." Colwell], 31 Md. App.

at i3.

-22-

Although the intent of the

zoning scheme is ciear, the

procedural steps necessary to its

accomplishment are not. The

language used in Section 7-4.02B is

ambiguous in that it does not

specifically address or define the

effect on the automatic rezoning

provision of the timely submission

of a site plan application; it does

not answer the question whether the

automatic rezoning will occur

immediately upon the expiration of

the period notwithstanding that

prior to that time an application

for site plan approval had been

filed. It is this aspect of Section

7-4.02B at which appellants

concentrate their attack and which

-23-

requires our interpretation. 4

Appellants, satisfied that that

portion of the ordinance allowing

their property to retain rural-

commercial zoning for a two-year

4 In this regard, it is interesting

to note that a similar situation was

present in Colwell. There, the

ordinance provided that any

amendment to the Howard County

Zoning map was subject to certain

conditions, including (1)

of a site development plan within

two years; (2) application for

building permits within one year of

site plan approval; and (3) within

three years of obtaining then,

completion of substantial

construction pursuant to building

permits. In the event of the

failure to comply with either of

these conditions, the property would

revert to its prior classification.

In Colwell, however, the ordinance

called for submission, as opposed to

approval of a site development plan;

thus, the issue presented here was

not before the Colwell] Court.

-24-

period gave them a vested right in

that zoning for that period, urge us

to construe the two-year grace

period as a kind of statute of

limitations for the submission of an

approvable site plan. That

construction, which would require

that a site plan submitted within

the period be evaluated in light of

the zoning existing on the date of

its submission, appellants assert,

would: comply with the due process

of the Fourteenth Amendment; give

effect to the legislative intent and

to their vested interest in the

zoning for the applicable period;

and avoid an absurd result. To do

otherwise, appellants contend, would

be to render illusory the rights

-25-

accorded them by the ordinance.

Appellants direct our attention to

Logan v. Zimmerman Brush Company,

455 U.S. 428 (1982).

In Legan, a handicapped worker

filed, within the time prescribed by

the statute, an employment

Giscrimination claim against his

employer with the Illinois Fair

Employment Practices Commission.

The statute required the Commission

to act within a specified time, 120

days, thereafter. When the

Commission failed to act timely, the

employer, relying upon that failure,

contended that the employee’s claim

had been extinguished. The Supreme

Court disagreed. It concluded, at

the outset, that Logan’s right to

file a claim under the Illinois Fair

Employment Practices Act, using its

adjudicatory procedures, was a kind

of property right, the deprivation

of which must accord with due

process. 455 U.S. at 428-431.

Then, acknowledging that it is

permissible to require that a claim

be filed within a specified time,

the Court made clear that the State

cannot, by reference to "a

procedural limitation on the

Claimant’s ability to assert his

rights, [as distinguished from) a

substantive element of the FEPA

Claim," 455 U.S. at 433, extinguish

potentially meritorious claims

without due process of law. This is

so because, in the Court’s words;

-27-

"(tjhe aGaquacy of statutory

procedures for deprivation of a

statutorily created property

interest must be analyzed in

constitutional terms." 455 U.S. at

432, quoting Vitek v. Jones, 455

U.S. 480, 490-91, n.6. The Court

held that due process in Logan

required a hearing to be held prior

to the final deprivation of Logan’s

property interest. 455 U.S. at 433.

In Legan, as here, the procedural

limitation on which attention was

focused was one over which Logan had

no control and with which he could

not cause compliance.

Appellees’ rejoinder focuses

principally upon the contention that

appellants did not acquire a

-28-

property right in the zoning of its

property. Their position is that:

"What the ordinance gave the

appellants was not a right, but an

opportunity to vest a right, an

opportunity they sat on until the

day before it expired." They

distinguish Logan on this basis as

well as on two others: unlike the

case sub judice, the limitation on

Logan’s rights was a procedural one

and the State’s interests there were

insubstantial compared to Logan’s.

Thus, they say, since appellants

were not deprived of a genuine

property right and all proper

procedures were followed in the

instant case, there was neither a

denial of due process nor equal

-29-

protection.

The critical inquiry is whether

Section 7-4.02B had the effect of

bestowing on appellants a property

right in the zoning of their

property. We think it did.

The zoning ordinance quite

Clearly allowed retention of the

rural commercial zoning for a two-

year period. Moreover, its

continuation for an additional two

years was guaranteed if, during the

initial two-year period, an approved

site plan were obtained. These

provisions are inseparable; one must

be read in light of the other and

the value of the two-year grace

period can be determined only by

reference to the continuation

-30-

provision.

"The hallmark of property, the

Court has emphasized, is an

individual entitlement grounded in

state law, which cannot be removed

except ‘for cause*‘". Legan, 455

U.S. at 430. Although we concede,

as do appel:iants, that no property

rights exist in zoning absent vested

rights, see Washington Suburban

Sanitary Commission _-v. .K.U.

Associates, 281 Md. 1, 22-23 (1977);

Offutt v. Board of Zoning Appeals,

204 Md. 551, 561-62 (1954), we note

that such rights may be stowed

upon a property owner in the zoning

ordinance itself and, once bestowed,

constitutionally may not be removed

without appropriate procedural

-3l-

safeguards. Logan, 455 U.S. at 432;

Vitek v. Jones, 455 U.S. at 490-91,

n.6. This is precisely the

situation gub judice. By virtue of

Section 7-4.02B, appellants were

given an entitlement, for a two-year

grace period, in the rural-

commercial zoning of their property.

That entitlement could be continued,

and, in fact, was guaranteed upon

their obtaining of an approved site

plan. That entitlement may not be

extinguished without adequate and

appropriate safeguards.

Critical to both the initial

entitlement to the zoning and the

continuation provision is the

"approved site plan", obtention of

which requires action by the

Planning Commission. Section 7-

4.02B. however, does not contain

procedures prescribing the time in

which the Commission must consider

and evaluate site plan applications.

It does not, for example, address

when an application for site plan

approval must be filed during the

grace period or when, or even

whether, the Commission must

consider such an application.

That the subject site plan

application was filed within two

years is not disputed. Rather, the

contention is made that the mere

filing of the application is

insufficient to entitle appellants

to continued rural-commercial

zoning; that only approval of the

site plan suffices. The failure to

obtain an approved site plan within

the two-year period, therefore, is,

in appellees’ view, dispositive.

This statement of the issue renders

patent the problem with the zoning

scheme: While appellants may apply

for site plan approval, they may not

and do not control the approval

process; only the Commission may act

on the application. And, as we have

seen, no time frame in which this

must be done is provided. This

being true, at some point during the

two-year period - that point after

which action by the Commission could

not have been taken before the

period expired - appellants’

entitlement to the rural-commercial

-34-

zoning and its continuation was

automatically terminated without a

hearing. In other words, the value

of appellants’ rights under Section

7-4.02B, depending as they do on

Commission action within the two-

year period, is totally at the mercy

of the Planning Commission. If the

Commission chooses not to act within

the period or, for some reason, is

unable to act within the period,

even though the application was

filed, albeit late, within the

period, the applicant’s entitlement

to continued rural-commercial zoning

is irretrievably lost. More

importantly, it is lost without the

benefit of a hearing.

Due process, at a minimun,

-35-

requires "some’ sort of hearing"

(emphasis in original), Board of

Regents v. Roth, 408 U.S. 564, 570-

Fis n.8 (1972), i.e., "an

opportunity. . ° granted at a

meaningful time and in a meaningful

manner for hearing appropriate to

the nature of the case". Mullane v.

Central Hanover Trust Company, 339

U.S. 306, 312-12 (1950). The

opportunity ordinarily must occur

before the termination of the

person’s property rights. No such

opportunity was afforded appellants,

a fact that eppetiecs do not

dispute. Moreover, interpreting

Section 7-4.02B, as appellees

propose, to require appellants to

both timely file a site plan

-36-

application and to obtain a timely

decision leads to an untenable

result. Under that interpretation,

appellants would be required to

speculate as to when it must file

the application so as to allow

sufficient time for the Commission

to act, or if need be, for them to

force it to act. Such a burden is

an impossible one.

Appellees also suggest that

there is no due process violation

because the procedure by which

Section 7-4.02B was enacted provided

appellants with abundant § due

process. This position is without

merit. In Cleveland Board of

Education v. Loudermill]l, 470 U.S.

532, 541 (1985), the Supreme Court

-37-

pointed out that "‘Property* cannot

be defined by -he procedures

provided for its deprivation any

more than life or liberty," and,

further, that the answer to the

question of what process is due

cannot be found in the legislative

enactment which is the subject of

5

review. Nor is the county’s

> Appellees posits [sic] that if

Section 7-4.02B had provided that

"rural-commercial properties will be

given a two-year period to vest

their rights. If unvested they will

be automatically zoned consistent

with the zoning in the area",

appellants would not be able to

raise due process or equal

protection issues. We think

appellees are mistaken. In that

case, as in the present situation,

the anomaly would still exist that

appellants were required to force

the appropriate authority to act if

it were to realize its property

rights.

-38-

interest, when considered in

connection with appellants’

competing interest, of a magnitude

to defeat appellants’ interest.

Contrary to appellees’ argument, the

record does not reflect that there

are a large number of persons in

appellants’ position or that to

require the Planning Commission to

consider the merits of appellants’

site plan application would be

unduly burdensome. See Logan, 455

U.S. at 435.

In conclusion, we hold that

Section 7-4.02B permits the

termination of appellants’ property

rights in the zoning of their

property without a prior opportunity

for a decision on the merits and,

-39-

therefore, denies appellants due

process of law pursuant to the

Fourteenth Amendment. Accordingly,

we reverse the circuit court’s

judgment in the administrative

appeal.

JUDGMENT IN THE MANDAMUS

ACTION AFFIRMED;

JUDGMENT IN THZ

ADMINISTRATIVE APPEAL,

REVERSED;

CASE REMANDED TO THE

CIRCUIT COURT FOR CALVERT

COUNTY FOR FURTHER

PROCEEDINGS CONSISTENT

WITH THIS OPINION.

COSTS TO BE PAID ONE-HALF

BY CALVERT COUNTY AND

ONE-HALF BY APPELLANTS.

APPENDIX C

IN THE COURT OF APPEALS OF MARYLAND

No. 114

September Term, 1987

BOARD OF COUNTY COMMISSIONERS

OF CALVERT COUNTY, MARYLAND

et al.

Vv.

DENZIL PRITCHARD, et ux.

NOTICE OF APPEAL

Denzil Pritchard and Elizabeth

Pritchard by and through their

attorneys, Goldstein and Sher, P.A.

and Gary A. Goldstein and Charles E.

Haller hereby note their appeal to

the Supreme Court of the United

States from the decision of the

Court of Appeals of Maryland filed

May 9, 1988 in the case of Board of

County Commissioners of Calvert

County, et al. v. Denzil Pritchard,

et _ ux., No. 114, September Tern,

1987 pursuant to 28 U.S.C. Section

1257(2), (1970).

GOLDSTEIN AND SHER, P.A.

Ls!

Gary A. Goldstein

S|

Charles E. Haller

1709 Charlies Center South

36 South Charles Street

Baltimore, Maryland 21201

(301) 727-5400

CERTIFICATE OF SERVICE

I, Gary A. Goldstein, hereby

certify that as a duly admitted

member of the Bar of the Supreme

Court of the United States that on

this crt day of August, 1988,

pursuant to Rule 28.3 of the Rules

of the Supreme Court of the United

States, I did serve three (3) copies

of this Notice of Appeal by first

Class mail, postage prepaid on Allen

S. Handen and Mary M. Krug, Handen

and Krug, P.O. Box 1130, Prince

Frederick, Maryland 20678,

attorneys of record for the Board of

Commissioners of Calvert County and

the Planning Commission of Calvert

County; on William Bowen, President

of the Board of Commissioners of

Calvert County, Court House, Prince

Frederick, Maryland 20678; and on

MacArthur Jones, Chairman of the

Planning Commission of Calvert

County, ~ Court House, Prince

Frederick, Maryland 20678.

|S |

Gary A. Goldstein

IN THE CIRCUIT COURT

FOR

CALVERT COUNTY

Case No.: CA-86-286

IN THE MATTER OF THE APPLICATION

OF DENZIL PRITCHARD AND ELIZABETH

PRITCHARD FOR SITE PLAN APPROVAL

BEFORE THE PLANNING COMMISSION

OF CALVERT COUNTY

SPR 86-22

NOTICE OF APPEAL

Denzil Pritchard and Elizabeth

Pritchard by and through their

attorneys, Goldstein and Sher, P.A.

and Gary A. Goldstein and Charles E.

Haller hereby note their appeal to

the Supreme Court of the United

States from the decision of the

Court of Appeals of Maryland filed

May 9, 1988 in the case of Board of

County Commissioners of Calvert

County, et al. v. Denzil Pritchard,

et ux., No. 114, September Tern,

1987 pursuant to 28 U.S.C. Section

1257(2), (1970).

GOLDSTEIN AND SHER, P.A.

\5\

Gary A. Goldstein

\s |

Charles E. Haller

1709 Charles Center South

36 South Charles Street

Baltimore, Maryland 21201

(301) 727-5400

CERTIFICATE OF SERVICE

I, Gary A. Goldstein, hereby

certify that as a duly admitted

member of the Bar of the Supreme

Court of the United States that on

this oth day of August, 1988,

pursuant to Rule 28.3 of the Rules

of the Supreme Court of the United

States, I did serve three (3) copies

of this Notice of Appeal by first

class mail, postage prepaid on Allen

S. Handen and Mary M. Krug, Handen

and Krug, P.O. Box 1130, Prince

Frederick, Maryland 20678,

attorneys of record for the Board of

Commissioners of Calvert County and

the Planning Commission of Calvert

County; on William Bowen, President

of the Board of Commissioners of

Calvert County, Court House, Prince

Frederick, Maryland 20678; and on

MacArthur Jones, Chairman of the

Planning Commission of Calvert

County, Court House, Prince

Frederick, Maryland 20678.

IS

Gary A. Goldstein

CERTIFICATE OF SERVICE

I, Gary A. Goldstein, hereby

certify that as a duly admitted

member of the Bar of the Supreme

Court of the United States that on

+

this I/ day of August, 1988,

pursuant to Rule 28.3 of the Rules

of the Supreme Court of the United

States, I did serve three (3) copies

of Appendixes for Statement of

Jurisdiction for Appeal by first

class mail, postage prepaid on Allen

S. Handen and Mary M. Krug, Handen

and Krug, P.O. Box 1130, Prince

Frederick, Maryland 20678,

attorneys of record for the Board of

Commissioners of Calvert County and

the Planning Commission of Calvert

County; on William Bowen, President

of the Board of Commissioners of

Calvert County, Court House, Prince

Frederick, Maryland 20678; and on

MacArthur Jones, Chairman of the

Planning Commission of Calvert

County, Court House, Prince

Frederick, Maryland 20678.

hcxfolile~

Gary ilies ces