Appendix — Smith v. Maryland National Capital Park & Planning Commission
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. \
'y) Supreme Court, U.S
— PFEIELED
92 1041 DEC 2 2 1997
No. OFFIQE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997
MAENETTE B. SMITH, et vir.,
Petitioners,
MARYLAND-NATIONAL CAPITAL
PARK AND PLANNING COMMISSION, et ai.,
Respondents.
ON WRIT OF CERTIORARI TO
THE COURT OF SPECIAL APPEALS OF MARYLAND
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
=
JESS JOSEPH SMITH
(Counsel of Record)
P.O. Box 1995
14518 Church Street
Upper Marlboro, MD 20772
(301) 627-8200
Attorney for Petitioners.
Washington, D.C. © THIEL PRESS © (202) 328-3286
(t)
Page
TABLE OF CONTENTS
Appendix A — Opinion (1st Court of Special
Amepenis), UMAR POTENE. oo 5 eee cee la
Appendix B — Mandate of Court of Special
eh kk Odie 05 S6 No Ve Fee ss 13a
Appendix C — Judge Johnson’s Memorandum and
ee ee Eee ec Ee eee eee eee 15a
-Appendix D — Opinion (2nd Court of Special
ce PETC EE TC Tee eee eee 24a
Appendix E — Petition for Writ of Certiorari
to the Court of Appeals of Maryland............ 3la
Appendix F — Denial of Certiorari............... 62a
Appendix G — Petition for Extraordinary
ck 6a 65 ORR R eae eC Re eed a seen ee 63a
Appendix H — Denial of Petition for Extraordin-
SE Ciao pt wee eas GhSea hee es oe ese 92a
Appendix I — Questions Presented & Statement
of Facts from Appellants’ Brief before 2nd
Court of Special Appeals of Maryland........... 93a
Appendix J — Letter, dated 10/6/96, from
Clerk, Court of Appeals of Maryland........... 105a
Appendix K — Brief Summary of Each Case
Relating to the Development of the
ia 6 6 Fae ke Shine ee scien 106a
Appendix L — Partial Listing of the Literature
Relating to Unreported/Unpublished
ere ee a a ee 113a
Appendix M — Transcript of Judge’s Opinion
in subdivision case (12/11/86)................ 116a
(tt)
Page
Appendix N — Order in Subdivision ee 124a
Appendix O — Plat approved and referred to
in Order in subdivision case (reduced I 126a
Appendix P — Board of Appeals Decision
re: building ite: oy sioun Oe Oe 128a
Appendix R — Excerpts from Brief Of Appellees,
Prince George’s County & MNCPPC in lst
Court of Special Si bate 137a
Appendix § — Excerpts from zoning map originally
Netiiitelatin:: oa 140a
Appendix T — Handwritten notice of denial
Seiten l4la
Appendix U — Notice of denial of building per-
mit from Prince George’s _.. Sg 142a
Appendix V — Constitutional and Statutory
Provisions:
— U.S. CONST.
NEE ME™ hah t wai dninn ns erot eh oc ak 143a
* WY MES Sec cucaee ee 143a
~ ES iianes coupe ct 144a
— CONST. MD.., art. eas} cate ee 144a
— MD. DECL. OF RIGHTS
~ SE Pv n.n wniteaeegn hives aie ies 145a
RIOD 8 hn tase ihamawanien cura. aaeen 146a
— MD. ANN. CODE art. 28
DE a 5 i eee 146a
~ GRE 1. os niceetwegmrate SE ene
arene
— ee ee
, PAA a ott Refi
Page
ESSE FRESE Ge aaa a 150a
EN a Sa ea Gis be ois 0 0» 6 0 2 90s 6 153a
ES ar ee a ee 157a
cog aE SESE SES RS ge l6la
— MD. RULES, Vol. I
a be WRG miss $s 4 a 0 6b <5 06 4 0 8 162a
esa Wop eee eee ue aes 162a
IS Ue oliw acs 6 ees sess 163a
— Standards for Publication of Judicial
EG I Se 165a
a ce cecccaeunver 168a
la
APPENDIX A
UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1430
September Term, 1991
MAENETTE B. SMITH, et vir
v.
MARYLAND NATIONAL CAPITAL
PARK & PLANNING COMMISSION, et al
Bishop, Bloom, Davis, JJ.
Per Curiam
Filed: April 28, 1992
Jess Joseph Smith Jr. and his wife, Maenette B.,
appeal from a judgment of the Circuit Court for Prince
George’s County (Bowling J.). The circuit court granted
the motions to dismiss filed by each of the three appel-
lees, the Maryland National Capital Park and Planning
Commission (MNCPPC), Prince George’s County (the
County), and the Prince George’s County Council, sitting
as the District Council, (District Council), because appel-
lants failed to exhaust administrative remedies.
ISSUES PRESENTED
Appellants present four issues, which we have condensed
to three:
2a
I. Whether the trial court erred in dismissing the case
for failure to exhaust administrative remedies?
Il. Whether appellants were entitled to hearing on dis-
positive motions when requested?
III. Whether the trial court erred in not granting appel-
lants’ motion for summary judgment?
FACTS
This case involves two concurrent proceedings that
result from the denial of appellants’ application for a
building permit: an administrative proceeding, and circuit
court Case No. CAE 89-24602. This appeal is from the
judgment of the circuit court dismissing Case No. CAE
89-24602 for failure to exhaust administrative remedies.
We refer to the administrative proceedings and Case No.
CAE 89-24602 separately to avoid confusion.
The Administrative Case
Appellants are the owners of approximately one acre
of land in Upper Marlboro, Maryland known as Lot One -
“Marlborough House” and Lot One - “Content.” Part of
the property is zoned CSC (Commercial Shopping Cen-
ter) and part is zoned R-80 (One - Family Detached Resi-
dential). The property was originally one lot, but was
subidived after the circuit court reversed a decision by
MNCPPC that denied appellants’ subdivision application.
Appellants seek to recreate on the property the historic
Marlborough House which was demolished in 1957. In
November 1989, appellants filed an application for a
building permit with the Prince George’s County Depart-
ment of Environmental Resources (“DER”). On January
24, 1990, DER recommended denial of appellants’
building permit application because, according to DER,
a
3a
the property was in a “‘split zone’’, i.e. part in a CSC zone
and part in an R-80 zone. Construction of the project
was impermissible in an R-80 zone. Appellants appealed
to the Prince George’s County Board of Appeals (the
“Board”). The Board overruled MNCPPC’s recommenda-
tion and granted appellants’ building permit application.
MNCPPC appealed the Board’s decision to the circuit
court, and appellants filed a cross appeal. We are told by
appellants in their brief that the circuit court has dis-
missed MNCPPC as not being a proper aggrieved party
and that the case is presently on appeal and cross appeal
on the sole issue of whether MNCPPC had a right to
appeal the decision of the Board.
Circuit Court Case CAE 89-24602
Before DER acted on appellants’ building permit appli-
cation, appellants, on December 28, 1989, filed a com-
plaint for Declaratory Judgment and Other Relief against
MNCPPC in the Circuit Court for Prince George’s County.
The complaint was amended twice and now also includes
as defendants the County and the District Council. By
the time appellants’ Second Amended Complaint was
filed, on November 16, 1990, DER had denied appellants’
building permit application. In their Second Amended
Complaint appellants alleged that all of Lot One - Marl-
borough House is in the CSC zone and that MNCPPC and
the District Council have “rezoned” the property. In
their Second Amended Complaint Appellants stated:
Defendant, District Council, along with the Defend-
ant, MNCPPC, have rezoned a portion of the prop-
erty subject to this lawsuit without notice, hearing,
or other procedural due process and that such rezon-
ing of your Plaintiffs’ property in such a manner is
ultra vires, that the Defendants MNCPPC and the
District Council are totally without power or auth-
4a
ority to do what they have done in rezoning or
attempting to rezone your Plaintiffs’ property by
changing the zoning map of the subject property,
and that their conduct amounts, inter alia, to an
unlawful taking of your Plaintiffs’ property and
otherwise violate[s] your Plaintiffs’ constitutional
rights.
That . .. MNCPPC, without notice or public hear-
ing, changed, as aforesaid, the zoning maps of the
subject property on two occasions, once on 8-22-
88 and once on 3-16-90[.]
In support of these allegations, appellants further alleged
that MNCPPC, in connection with the subdivision pro-
ceedings, stated in its resolution denying the subdivision
application that ‘Marlborough House” was in, the CSC
zone and stated in a Memorandum of Law that *‘Marl-
borough House” was zoned CSC. Appellants also alleged
that the County issued, “without lawful reason,’’ a “stop
cutting order” forbidding appellants from cutting trees
on their property. Appellants contended “that such an
interference with the lawful use of property amount[ed]
to a taking or deprivation of property, even for a tempor-
ary period of time.” Finally, appellants alleged the Town
of Upper Marlboro delayed the processing of their build-
ing permit in order to subject them to the new county
ordinance, effective January 1, 1990, that substantially
changed the side yard requirements for properties devel-
oped next to historic sites, and which made appellants’
project impossible to construct.
Appellants’ prayer for relief requested that the court
enjoin appellees from “applying or using any zoning map
. other than the zoning map adopted and approved by
the County” and that the court enjoin appellees from
“applying or using the zoning, zoning laws, and other
laws, ordinances, rules, and regulations . . . other than
BAe VESnmBURas ohne Sty MRR TNE ah Si AS ab
OR es aad ah a
SA Nee. CE Ni ee a A 8 Re
Diwali Breen Daten dict
5a
the ... laws .. . that were in effect on 8/22/88, the date
the MNCPPC first changed the zoning map of the subject
property without notice or hearing.” Appellants also
requested judgment against appellees in the amount of
$2,000,000 plus costs, interest, and attorneys fee[s] .
MNCPPC, the County, and the District Council all filed
motions to dismiss appellants’ complaint. Appellants
filed a motion for summary judgment. On April 19,
1991, the circuit court issued an Opinion and Order in
the case. The Order was unclear, therefore, on July 16,
1991, the circuit court struck its previous Order and
issued another that clearly granted the motions to dis-
miss filed by all three appellees. The circuit court
explained its reason for dismissing appellants’ com-
plaint as follows:
A reading of the Maryland Code reveals that the
administrative steps needed for the Plaintiffs to
obtain a building permit are exclusive: A permit
may not be given except in conformity with the
provision of this article and of the regulations
enacted by the respective district councils. Md.
Ann. Code Art. 28, Section 8-119 (1990). Because
the administrative steps to obtain a building permit
are exclusive, the administrative remedy is primary.
When an administrative remedy is primary, all
administrative remedies must be exhausted before
invoking ordinary court jurisdiction. Md. Nat’
Cap. P & P Comm'n v. Crawford, 307 Md. 1, 511
A.2d 1079 (1986). The Plaintiffs’ administrative
case is presently proceeding by appeal and they
must exhaust that remedy before invoking ordi-
nary court jurisdiction. . . . Because a party seek-
ing a building permit must exhaust their adminis-
trative remedies before they can file for mandamus
relief, it follows that Plaintiffs must exhaust their
administrative remedies before invoking ordinary
court jurisdiction.
6a
DISCUSSION
1.
Exhaustion of Administrative Remedies
Appellants contend that the circuit court erred in dis-
missing Case No. CAE 89-42602 because appellants were
not required to exhaust administrative remedies. On
appeal to this Court, appellants requested that we remand
“to the circuit court for the court to retain jurisdiction
pending the final determination of the administrative
appeal[.]” For reasons that we will explain, we hold
that the circuit court erred in dismissing appellants’ com-
plaint; it should have retained jurisdiction over Case No.
CAE 89-42602 pending the outcome of the adminintra-
tive case.
In their bref, appellants characterize their Second
Amended Complaint as a claim pursuant to 42 U.S.C.
§1983. Because the requirements for exhaustion in
§ 1983 cases are different from the requirements in other
cases, see Patsy v. Florida Board of Regents, 457 U.S.
496 (1982) (cited in Maryland Nat'l Capital Park and
Planning Comm'n v. Crawford, 307 Md. 1, 12 (1986)),
it is crucial to appellants’ argument that they have pre-
sented a claim under §1983. It is appellees’ position
that appellants’ Second Amended Complaint only
“vaguely referred to constitutional violations and alleged
a civil rights violation” and that appellants “never alleged
a violation of, nor sought relief under 42 U.S.C. § 1983.”
The Civil Rights Act of 1871, 42 U.S.C. §1983, pro-
vides, in pertinent part, as follows:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United
fa
States or other person within the jurisdiction there-
of to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress.
The elements of a §1983 action are defined by federal
law. Ritchie v. Donnelly, 324 Md. 344, 353 (1991). To
state a claim for relief under §1983 a plaintiff must
allege that he or she was deprived of some night, privi-
lege, or immunity secured by the Constitution or laws of
the United States by a person acting under color of state
law. 42 U.S.C. §1983; Ouzts v. Maryland Nat’ Ins. Co.,
470 F.2d 790, 792 (1972), aff'd, 505 S.Ct. 547 (1974)
(en banc), cert. dented, 421 U.S. 949 (1975). Local
governments are “persons” under §1983. Ritchie, 324
Md. at 356; Monell v. Dep’t of Social Servs., 436 U.S.
658, 690-95 (1978). When pleading a case in Maryland,
the pleader need “only [make] such statements of fact
as may be necessary to show the pleader’s entitlement
to relief[.]”” Md. Rule 2-303. Generally, any plain state-
ment of facts necessary to constitute ground of action is
sufficient, without reference to mere form. Shipley v.
Meadowbrook Club, Inc., 211 Md. 142, 151 (1956). The
substance, not the form, of the pleading is the controlling
consideration. Lapp v. Stanton, 116 Md. 197, 199 (1911).
In the case sub judice, appellants’ Second Amended
Complaint did not specifically state that appellants were
proceeding under §1983. The complaint did, however,
allege the following:
MNCPPC, Prince George’s County, and the District
Council, their officers, agents, and employees, acting
in their capacity of and color of law and authority
as officers . . . deprived the Plaintiffs of their nghts,
8a
privileges and immunities guaranteed to the Plain-
tiffs as citizens of the United States and the State of
Maryland under the Federal and State Constitutions
by, inter alia, rezoning the subject property without
notice or hearing and by unlawfully prohibiting the
Plaintiffs from cutting trees on their property all
thereby taking your Plaintiffs’ property without due
process and depriving your Plaintiffs of their prop-
erty, rights, privilegs, and immunities guaranteed
to the Plaintiffs as citizens of the United States and
the state of Maryland under the Federal and State
Constitutions.
The language in the complaint tracks the language of
§ 1983 and is sufficient to allege a cause of action under
§ 1983, even though the complaint did not state on its
face that appellants were proceeding under §1983.
Appellants have alleged constitutional violations and sup-
porting facts. Appellants alleged that an unconstitutional
taking occurred and that their due process rights were
violated. In support of these allegations, appellants
alleged that appellees illegally “rezoned” their property
“without notice or public hearing [by] chang[ing] the
zoning maps of the subject property .. . on 8-22-88 and
once on 3-16-90” and that appellees prohibited them
from cutting trees on their property. Moreover, it is
obvious from the language of the complaint, ze. “color
of law,” “privileges and immunities guaranteed . . . under
the . . . Constitution,” and the relief requested, ie.
injunction and damages, that appellants were asserting a
cause of action under § 1983. Finally, appellants made it
clear to appellees and the court that they were proceed-
ing under §1983 when they stated in their answer to
MNCPPC’s and the District Council’s motions to dismiss
that they were making “a claim clearly comprehensible
under 42 U.S.C. § 1983.”
9a
No Maryland court has yet decided whether exhaus-
tion of administrative remedies is a prerequisite to bring-
ing a §1983 action in a state court. The Court of Ap-
peals did discuss exhaustion of administrative remedies
in a §1983 case in Crawford, supra. In Crawford, an
employee of MNCPPC, Mrs. Crawford, filed a §1983
action in circuit court alleging racial discrimination while
her appeal to the Merit System Board was pending.
MNCPPC argued that the circuit court case should be dis-
missed because Mrs. Crawford had not exhausted her
administrative remedies. Relying on Patsy v. Flonda
Bd of Regents, supra, Mrs. Crawford argued that she need
not exhaust administrative remedies. MNCPPC attempt-
ed to distinguish Patsy arguing that it was inapplicable
in state court §1983 actions, as opposed to federal
§1983 actions. With regard to exhaustion of adminis-
trative remedies in §1983 actions the Court of Appeals
said:
In Patsy v. Florida Board of Regents, supra, the
Supreme Court flatly held as follows: “we con-
clude that exhaustion of state administrative reme-
dies should not be required as a prerequisite to
bringing an action pursuant to §1983.” 457 U.S.
at 516, 102 S.Ct. at 2568. While Patsy involved a
§ 1983 action brought in a federal court, the major-
ity of state court decisions since Patsy have taken
the position that the Patsy holding is applicable to
a state court § 1983 action.
Crawford, 307 Md. at 12. (Citations omitted). The
Court never reached the question of whether the Patsy
holding was applicable to state court §1983 actions,
however, because it determined that the employee had
exhausted her administrative remedies. Jd. at 15. The
Crawford Court did offer, however, some guidance with
10a
regard to exhaustion of administrative remedies in state
court § 1983 actions. The court stated:
[W]here there is doubt about the necessity of
exhausting administrative remedies, as in this Case,
one court of action which has been recognized
under some circumstances is for the trial court to
require exhaustion while also retaining jurisdiction
of the matter. This avoids the necessity of com-
mencing the civil action over again should the ad-
ministrative remedy fail to resolve the dispute.
* * x
[1] n situations . . . where there is both an adminis-
trative remedy and an independent judicial remedy
(2¢., a special judicial remedy exists other than
judicial review of the administrative decision), where
the administrative agency may have primary juris-
diction, and where the plaintiff invokes the judicial
remedy prior to exhausting the administrative pro-
cedures, it has been held that the trial court may
retain jurisdiction pending exhaustion of the admin-
istrative procedures. Once the administrative pro-
cedures are exhausted, the trial court may proceed;
the plaintiff whose case is meritorious may be entit-
led to whatever relief is available under either the
independent judicial action or the administrative/
judicial review remedy.
Crawford, 307 Md. at 171-18. (Citations omitted).
For the circuit court to require exhaustion while re-
taining jurisdiction over appellants’ § 1983 action is a par-
ticularly suitable solution in the case sub judice. Here,
the Board has determined that appellants are entitled to
a building permit. Thus, at least for the time being,
appellants have won. MNCPPC has appealed the Board’s
decision. If the decision of the Board is ultimately
reversed, appellants may want to proceed with their
re eR EES tes tote «
Wei Labbe! nad SORE ARO | oo yal roe
lla
§1983 claim. Should appellants choose to do so, the
circuit court could take up the case again at that time.
If, however, the decision of the Board is affirmed, appel-
lants will have obtained some of the relief they sought
via their § 1983 action, and they may choose not to pur-
sue their § 1983 claim any further.
Il.
At oral argument, counsel for appellants stated he was
waiving his argument with regard to appellants’ right to
a hearing on motions to dismiss and appellants’ motion
for reconsideration. Therefore, we will not discuss this
issue.
III.
Appellants’ final contention is that the circuit court
erred when it refused to grant appellants’ motion for
summary judgment. A motion for summary judgment
may be granted if there is no dispute as to any material
fact and the movant is entitled to judgment as a matter
of law. Century I Joint Venture v. United States Fidelity
& Guaranty Co., 63 Md. App. 545, 552 cert. denied, 304
Md. 297 (1985). Appellant was not entitled to summary
judgment in this case because material facts were in dis-
pute. Appellants alleged that appellees “rezoned” their
property without notice and a hearing. Appellees, on the
other hand, responded that they did not “rezone” appel-
lants’ property and that the zoning lines were never
changed. What happened, appellees contend, is that
appellants made a mistake when they subdivided their
property: appellants did not draw the new boundary
lines to coincide with the existing zoning lines, and the
“split” zoning resulted. Whether a “rezoning” has occur-
12a
red is a disputed question of material fact. Appellants
were not, therefore, entitled to summary judgment.
JUDGMENT REVERSED. CASE
REMANDED TO THE CIRCUIT
COURT FOR PROCEEDINGS
CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID
BY APPELLEES.
NN Ce Lande eae
13a
APPENDIX B
MANDATE
COURT OF SPECIAL APPEALS
No. 1430, September Term, 1991
Maenette B. Smith et vir
v.
Maryland National Capital Park &
Planning Commission et al.
JUDGMENT: April 28, 1992: Per Curiam filed. Judg-
ment reversed. Case remanded to the cir-
cuit court for proceedings consistent with
this opinion. Costs to be paid by ap-
pellees.
May 18, 1992: Motion to Reconsider to
Permit Discovery on Remand filed by
appellants.
May 26, 1992: Opposition to Motion to
Reconsider to Permit Discovery on Re-
mand filed by counsel for the appellee.
June 16, 1992: Motion to Reconsider to
Permit Discovery on Remand denied.
June 22, 1992: Mandate issued.
STATEMENT OF COSTS:
In Circuit Court: for PRINCE GEORGE’S COUNTY
CAE89-24602 7
* Total * 269.00 *
l4a
In Court of Special Appeals:
*
Filing Record on Appeal................... 50.00
Printing Brief for Appellant................ 147.60
MON is has nhs kk c kone ces nn 43.20
Portion of Record Extract — Appellant. ..... 2199.60
* Total * 2440.40 *
Printing Brief for Appellee ................ 158.40
* Total * 158.40 *
STATE OF MARYLAND, Sct:
I do hereby certify that the foregoing is truly taken
from the records and proceedings of the said Court of
Special Appeals. In testimony whereof, I have hereunto
set my hand as Clerk and affixed the seal of the Court of
Special Appeals, this twenty-second day of June A.D.
1992
/s/ Leslie D. Gradet
Clerk of the Court of Special Appeals
COSTS SHOWN ON THIS MANDATE ARE TO BE SETTLED
BETWEEN COUNSEL AND NOT THROUGH THIS OFFICE.
ene RIES Ai Ce 8 Ree ae Leg A Ais 2g ele a he
inte OER, le.
15a
APPENDIX C
[Filed April 17, 1996]
IN THE
CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY, MARYLAND
CAE89-24602
MARNETTE SMITH, et vir.
Plaintiffs
~
V.
MARYLAND NATIONAL CAPITAL PARK
AND PLANNING COMMISSION, et al.,
Defendants
MEMORANDUM AND ORDER OF COURT
This case comes before the Circuit Court for Prince
George’s County for a hearing on the Plaintiffs’ Motion
for Partial Summary Judgment on the Issue of Liability.
The defendants in this matter have also submitted indi-
vidual cross-motions for summary judgment. Plaintiffs
Maenette Smith and Jess J. Smith (the Smiths) ask this
Court to rule favorably on their motion and to find all
defendants, the Maryland National Capital Park and
Planning Commission (the M-NCPPC), the Prince
George’s County Council, sitting as the District Council
(the District Council), and Prince George’s County,
Maryland (the County), liable for damages.
I.
In 1986, the Smiths purchased an undivided parcel of
land near Church Street in Upper Marlboro, Maryland,
l6a
which was zoned part R-80 residential and part C-S-C
commercial. In 1987, the Smiths subdivided the parcel
into Lot 1-Content and Lot 1-Marlborough House. Lot-]-
Content, zoned all residential, has the Smiths’ private
residence on it and is not part of this action. Lot ]-Marl-
borough House, on the other hand, was dual-zoned at the
time this action was instituted and is the subject of the
proceedings before the Court.
In 1989, the Smiths applied to for a building permit
to develop Lot 1-Marlborough House. Their application
was forwarded to the M-NCPPC for review and recom-
mendation. The M-NCPPC reviewed the plats and found
that part of the land was zoned C-S-C commercial and the
other was zoned R-80 residential. The agency requested
the Smiths to correct the dual-zoning. The Smiths took
no remedial measures to alleviate the dual zoning so the
M-NCPPC recommended that Department of Environ-
mental Resources (the DER) deny the application for a
building permit.
In January 1990, the DER advised the Smiths in writ-
ing of the M-NCPPC’s recommendation to deny their
building permit application and encouraged them to con-
tact the M-NCPPC about correcting the dual-zoning of
Lot 1-Marlborough House. Rather than contacting the
M-NCPPC to remedy the dual-zoning as directed, the
Smiths filed this lawsuit in December 1989 seeking dam-
ages and other relief. Therein the Smiths claimed that the
M-NCPPC rezoned Lot 1-Marlborough House without
notice or hearing. In an amended complaint, the Smiths
claimed that M-NCPPC’s actions constituted a govern-
ment taking of Lot 1-Marlborough House.
In June 1993, however, the Smiths made a written
request for the M-NCPPC to include Lot 1-Marlborough
House in the Sectional Map Amendment process so that
l7a
the lot could be rezoned entirely C-S-C commercial. In
May 1994, the County Council adopted the proposal for
Lot 1-Marlborough House and rezoned the Smiths’ prop-
erty entirely C-C-C commercial. The plaintiffs were sub-
sequently issued a building permit for their property.
Il.
On March 4, 1996, this Court heard the movants’ argu-
ment in favor of Partial Summary Judgment as to Liabil-
ity. Mr. Smith argues that there is no genuine dispute as
to any material fact in this case and therefore the plain-
tiffs are entitled to judgment as a matter of law. Namely,
he asserts that the M-NCPPC changed certain base maps
and rezoned the Smiths’ property without authority to
do so and without public notice and hearing. By acting in
this unauthorized manner, the M-NCPPC caused the
Smiths’ building permit to be significantly delayed and
caused the Smiths to incur damages in developing their
property. He also asserts that such delay constitutes a
government taking.
Last, Mr. Smith argues that the issue of whether Lot
1-Marlborough House was zoned completely C-S-C com-
mercial is res judicata because the matter has already
been litigated in one of the many related cases.
The Court also heard argument from the M-NCPPC
opposing the Plaintiffs’ Motion for Partial Summary
Judgment as to Liability and in favor of its own Cross-
Motion for Summary Judgment. The thrust of the
agency’s argument is that it has the authority to update
base maps which it maintains, including any map which
may have affected the plaintiffs’ real property. Mainte-
nance of base maps may not be construed as arbitrary
rezoning of property without hearing or notice. If the
plaintiffs did sustain any damage as a result of the zoning
18a
designation of their property, the M-NCPPC is not liable
for such damages.
The M-NCPPC likewise argues that the actions of the
agency did not constitute a government taking. Rather,
the Smiths harmed themselves by failing to remedy zon-
ing discrepancies for their property. The Smiths’ own
actions, not those of the M-NCPPC, caused significant
delay in them being issued a building permit. The agency
reviewed the plaintiffs’ record plats for Lot 1-Marlbor-
ough House and recommended denial of the building
permit application to the District Council because of
dual-zoning. Such recommendation was not arbitrary but
based solely on the agency’s authority to render such
recommendation.
Il.
Preliminarily, the District Council and the County are
dismissed as defendants in this matter. Neither had any
substantive role in the current zoning dispute sub judice.
The M-NCPPC, however, remains as a defendant for the
purpose of disposition of summary judgment.
Having reviewed the facts of this case, the Court
declines to grant the Smiths’ Motion for Partial Summary
Judgment as to Liability. However, the Court does grant
the M-NCPPC’s Cross-Motion for Summary Judgment.
The Court’s reasoning is set out below.
A.
Summary judgment may be granted where the movant
meets the burden of demonstrating that there is no genu-
ine dispute as to any material fact. Md. R. Civ. Proc.
2-501; Willis v. Allstate Ins. Co., 88 Md. App. 21, 25, 591
A.2d 896 (1991) (citations omitted). Upon review of all
the pleadings and affidavits, and upon hearing the argu-
ments presented, this Court finds that the Smiths have
19a
not met that burden with regard to their Motion for Par-
tial Summary Judgment as to Liability and are not enti-
tled to judgment as a matter of law.
Namely, where the Smiths contend that it is an undis-
puted fact that the M-NCPPC rezoned Lot 1-Marlborough
House without authority, the Court finds that this asser-
tion is based on a misstatement of the facts. The Court
rejects the plaintiffs’ contention that by virtue of the
M-NCPPC updating certain base maps, the agency over-
stepped ics authority and somehow caused the Smiths’
property to be dual-zoned. It is clear that the M-NCPPC
is authorized to maintain and update base maps for prop-
erty in Prince George’s County, Maryland. Md. Ann.
Code art. 28 §7-111.
Upon examination of the facts, it seems that the
M-NCPPC updated certain base maps of the property to
reflect subdivision and other changes. However, the
agency acted well within its authority to update base
maps and simply carried out its duty in this regard. Con-
trary to the Smiths’ representations regarding the effect
of the M-NCPPC updating base maps, the Court finds that
the agency did not cause Lot 1-Marlborough House to be
dual-zoned.
The Court finds that the M-NCPPC has demonstrated
that there is no genuine dispute as to any material fact.
Therefore, the defendant is entitled to judgment as a
matter of law. The Smiths assert that the M-NCPPC
rezoned their property without authority by updating
certain base maps. However the M-NCPPC has shown that
the agency has complete authority to update those maps
because one of the several functions of the agency is to
update maps for all property in Prince George’s County.
Md. Code Ann. art. 28 §7-111. Moreover, merely updat-
QC ev
20a
ing these maps does not result in unauthorized rezoning
of property by the agency.
For the Court to deny the M-NCPPC summary judg-
ment, the Smiths must show that there is indeed a genu-
ine dispute as to any material fact and that such evidence
would likely be admissible into evidence. See Beatty v.
Trailmaster, 330 Md. 726, 737, 625 A.2d 1005, 1010-11
(1993) (citations omitted). However, the Smiths have not
met that burden in any respect. Rather, the Smiths’ argu-
ments are based only on misstatements and misleading
permutations of the facts.
Contrary to the Smiths’ assertions, the Court also
declines to find that there has been a government taking.
The plaintiffs allege that because of certain delays in
being granted a building permit, they have been the vic-
tims of a government taking. However, the pleadings,
affidavits, and arguments presented do not support this
allegation.
For there to be a government taking, the complaining
landowner mi st have been deprived of all beneficial use
of his or her land. Cider Barrel Mobile Home Court v.
Eader, 287 Md. 571, 580, 414 A.2d 1246 (1980); Secur-
ity Management Corp. v. Baltimore County, Md., 104
Md. App. 234, 243, 655 A.2d 1326 (1995). That is not
the case here. The Smiths were not deprived of all bene-
ficial use of their land merely because they were denied a
building permit to construct commercial buildings on Lot
_1-Marlborough House. Denial of the permit resulted only
in the Smiths not being able to use the land as they
intended, not that they could not use the land at all.
Moreover, when the M-NCPPC recommended denial of
the Smiths’ application for a building permit, the agency
was merely executing its charge to make such recom-
2la
mendations to the DER and nothing more. The Smiths’
property was dual-zoned and did not conform with cer-
tain of the County’s plans and policies. Therefore, no
building permit could be granted unless they took cor-
rective measures to have it uniformly zoned.
The Court also fails to find that a taking occurred
merely because the Smiths experienced a delay in obtain-
ing a commercial building permit. A crucial element of
a government taking is that the property owner is
deprived of the use of his or her land. Jd. However, to
equate self-imposed delay with deprivation at the hands
of the government is wholly disingenuous. As the facts
of this case show, although the Smiths were prompted
by the M-NCPPC to correct the dual zoning on their land
shortly after applying for a building permit in 1989, they
failed to take any such remedial measures. Rather, the
Smiths chose to file a lawsuit and as such experienced
significant delay awaiting a judicial hearing on the matter.
Moreover, the Smiths waited nearly four years to sub-
mit a request to the M-NCPPC that their land be rezoned.
Such request was later adopted by the County Council
and a building permit was issued. If the Smiths were
somehow deprived of the use and enjoyment of their land
during this delay, it was not because of any unauthorized
rezoning by the M-NCPPC but because of the Smiths’
own acts in failing to correct the dual zoning on their
property.
C.
Neither is the Court persuaded that the zoning desig-
nation of the Smiths’ property is res judicata. In order
to raise res judicata properly, it must be shown that
there was final judgment on the merits in the initial
action. Warner v. German, 100 Md. App. 512, 518, 642
22a
A.2d 239 (1994). Moreover, the party to the case must
also have been able to appeal the judgment. Jd. at 521.
The Smiths rely on one of the many cases related to the
one sub judice, and its antecedent Board of Appeals case,
to illustrate that the C-S-C commercial zoning designa-
tion of Lot 1-Marlborough House is res judicata. Mary-
land Nat’l Capital Park and Planning Comm'n v. Smith,
333 Md. 3, 11, 633 A.2d 855 (1993). However, the
requisite elements to properly assert res judicata are
absent. In the appellate case, the Court dismissed the
M-NCPPC as a party because the agency had no standing
and did not reach the merits of the dispute. Jd. Because
the zoning designation of the property was never liti-
gated, res judicata as to that issue may not be properly
asserted.
THEREFORE, it is this 10th day of April, 1996, by
the Circuit Court for Prince George’s County, Maryland,
ORDERED, that the Plaintiffs’ Motion for Partial
Summary Judgment be, and it is hereby, DENIED;
IT IS FURTHER ORDERED that the Maryland
National Capital Park and Planning Commission’s Motion
for Summary Judgment be, and it is hereby, GRANTED;
AND THAT Prince George’s County, Maryland and the
Prince George’s County Council sitting as the District
Council, are DISMISSED as defendants in these proceed-
ings.
/s/ G.R. Hovey Johnson
Judge
23a
Copies sent by the Court to:
Jess Joseph Smith, Jr., Esq.
Eric S. Slatkin, Esq.
Joyce Birkel Nichols, Esq.
Isaac H. Marks, Esq.
J. Michael Dougherty, Jr., Esq.
Assignment Office - Civil Division
/s/ Charlotte S. Hagen
Exec. Administrative Aide
April 10, 1996
RRG:rrg:csh
24a
APPENDIX D
UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 927
September Term, 1996
MAENETTE B. SMITH, et vir.
v.
MARYLAND NATIONAL CAPITAL
PARK AND PLANNING COMMISSION, et al.
Wenner, Davis, Eyler, JJ
Per Curiam
Filed: April 14, 1997
Appellants, Maenette B. and Jess Joseph Smith, Jr. (the
Smiths), appeal from an order of the Circuit Court for
Prince George’s County, granting summary judgment in
favor of appellee, Maryland National Capital Park and
Planning Commission (MNCPPC) and dismissing appel-
lees, Prince George’s County (the County), and the Prince
George’s County Council sitting as the District Council
(Council). On appeal, the Smiths present us with a pano-
ply of issues, which we have consolidated and rephrased
for clarity:
(1) whether the circuit court erred in granting
MNCPPC’s motion for summary judgment;
25a
(2) whether the circuit court erred in denying the
Smiths’ motion for summary judgment; and
(3) whether the circuit court properly dismissed
the County and the Council as defendants.
Finding no error, We shall affirm the judgment of the
circuit court.
Facts
The present appeal is the culmination of nearly a
decade of disputes between the Smiths and the County’s
various agencies dealing with zoning matters. We will
discuss such disputes as necessary. The Smiths own 4a
parcel of land consisting of two lots, designated as 14520
Church Street in Upper Marlboro. Until 1986, the parcel
was zoned both R-80 (residential) and C-S-C (commer-
cial).
In 1987, the Smiths subdivided the parcel into two
lots. The one designated as Lot 1-Content, was zoned
R-80.! The other, designated as Lot 1-Marlborough
House (the Property), was purportedly zoned C-S-C. The
subdivision was recorded by MNCPPC on the base maps
maintained by it pursuant to Art. 28 §111.?
In 1989, the Smiths applied to the County’s Depart-
ment of Environmental Resources (DER) for a building
permit, intending to construct an office building on the
Property. Pursuant to Section 27-255 of the Prince
George’s County Zoning Ordinance (Ordinance), the
application was referred to MNCPPC for review.
1 Lot 1-Content is not involved in this appeal.
2a base map consists of geographical data such as property
boundary lines, streets and roads, while a zoning overlay map con-
sists of land use zones and zoning boundary lines. A combined zon-
ing base map and a zoning overlay map create a zoning map.
26a
Upon reviewing the Smiths’ application, MNCPPC real-
ized that a portion of the Property was zoned R-80 and
a portion was zoned C-S-C.5 Consequently, MNCPPC
advised the Smiths to apply for a special exception to
permit parking on the portion of the Property zoned
R-80 (residential). MNCPPC also advised the Smiths that
issuance of a building permit could not be recommended
until an application had been submitted. Accordingly,
MNCPPC recommended denial of the building permit.
In 1990, MNCPPC offered, at its expense, to have the
Property surveyed in order to correct its zoning status,
but the Smiths declined MNCPPC’s proposal. There were
two methods to correct the Property’s zoning. One was
to file a zoning map amendment pursuant to section 27-
143 of the Ordinance. The other was to file a sectional
map amendment pursuant to section 27-220 of the Ordi-
nance.
The Smiths eventually chose the second method. As
a result, the Property was zoned CS-C, effective 24 May
1994.
The Smiths’ application for a building permit was
then approved both by MNCPPC and DER. Nonetheless,
damages were sought by the Smiths for what they per-
ceived to be a taking of the Property during the period
they were unable to obtain a building permit. All parties
moved for summary judgment. Following a hearing, the
Smiths’ motion was denied, and that of MNCPPC was
granted. The County and the Council were dismissed as
defendants. This appeal followed.
5 Apparently, this split zone was the result of an incorrect
subdivision by appellants, as appellants failed Properly to subdivide
the property along the zoning line. As a result, a portion of the
Marlborough lot continued to be located in the R-80 zone, and
not entirely in the C-S-C zone as appellants had desired.
27a
Standard of Review
The Smiths principally contend that the circuit court
erred in denying their motion for summary judgment and
granting that of MNCPPC. According to the Smiths, the
circuit court improperly determined that the Property
was zoned both R-80 and C-S-C upon applying for a
building permit. According to the Smiths, MNCPPC had
improperly changed the zoning map. We disagree.
“The standard for appellate review of a trial court’s
grant of a motion for summary judgment is simply
whether the trial court was legally correct.” Beatty v.
Trailmaster Prods., Inc., 330 Md. 726, 737, 625 A.2d
1005 (1993). Maryland Rule 2-501(e) provides that:
the court shall enter judgment in favor of or against
the moving party if the motion and response show
that there is no genuine dispute as to any material
fact and that the party in whose favor judgment is
_entered is entitled to judgment as a matter of law.
Not only is one opposing a motion for summary judg-
ment entitled “to have the facts viewed in light most
favorable to it but also to all reasonable inferences which
may be drawn from those facts . . . (citations omitted).
The inferences-the non-moving party seeks to draw, how-
ever, must be ‘reasonable’. . . .” In other words, “the
party opposing the motion is to be given the benefit of
all reasonable doubts in determining whether a genuine
issue exists.” Clea v. Mayor of Baltimore, 312 Md. 662,
678, 541 A.2d 1303 (1988). In determining whether
material facts are in dispute, neither the “‘mere existence
of a scintilla of evidence in support of the plaintiff’s
claim” nor “general allegations which do not show facts
in detail and with precision” are sufficient. Beatty, 330
Md. at 738.
———
28a
With these principles firmly in mind, we now turn to
the issues before us.
‘
We agree with the Smiths and MNCPPC that there are
no material facts in dispute. What is in dispute, however,
is whether the Smiths’ are entitled to damages. In the
Smiths’ view, the delay in receiving a building permit
- entitles them to damages. The Smiths advance two theo-
ries in support of their position.
a.
The first is that their delay in obtaining a building
permit resulted in a taking of the Property, because they
were unable during this period to erect an office building
on the Property. We see it somewhat differently.
“While all government regulations affecting private
property restrict the owner’s use and enjoyment to some
extent, not all such regulations result in a “taking” in the
constitutional sense. (Citations omitted.) It is not enough
for the owner to show that the regulations cause a dimi-
nution in value or other hardship. If they leave the owner
in substantial enjoyment of the property, they do not
constitute a “taking.” (Citations omitted.) Thus, regula-
tions which restrict the use and enjoyment of property,
but which nonetheless permit an existing use to continue,
generally do not constitute a “taking” because they leave
the owner with some beneficial use of the property.
(Citations omitted.) Regulations generally constitute a
“taking” only if the owner affirmatively demonstrates
that the restrictions imposed deprive him of essentially all
beneficial use of the property.” Cider Barrel Mobile
Home Court v. Eader, 287 Md. 571, 580, 414 A.2d 1246
(1980) (citations omitted). That is not what has occurred.
29a
Although the Smiths were unable during this period to
erect an office building on the Property, they were not
deprived of all use of the Property. As the Property was
zoned R-80 during the course of the dispute, the Prop-
erty could have been employed as property zoned R-80.
Thus, the Smiths’ assertion that the period during which
they were denied a building permit constituted a taking is
without merit. Moreover, the Smiths’ have presented no
evidence of their assertion that the delay was the result
of any wrongdoing by MNCPPC.
b.
The Smiths also contend they are entitled to damages
because of MNCPPC’s failure to approve the granting of a
building permit. According to the Smiths, they were
denied a building permit because MNCPPC improperly
changed the base maps and rezoned the Property with-
out authority to do so and without a hearing. To be sure,
MNCPPC updated the base map which includes the Prop-
erty, but Art. 28, §7-111 grants jt authority to do so.
Thus, MNCPPC’s failure initially to approve the Smiths’
building permit was neither improper nor entitled the
Smiths to damages.
As the trial court said in its order denying the Smiths’
motion for summary judgment and granting that of
MNCPPC, MNCPPC had neither acted improperly nor
beyond its authority in denying the Smiths’ building
permit.!
lathe Smiths believe\ Prince George's County v. Maenette
Smith, CAL 91-00205, renders this issue res judicata. This asser-
tion is misplaced, however, as MNCPPC had merely updated the
base maps. As we have said, Art. 28, §7-111 granted MNCPPC
authority to do so, and it doing so does not entitle the Smiths to
damages for any delay which may have resulted.
30a
Before being updated by MNCPPC, the Property was
zoned both R-80 and C-S-C. Hence, it was incumbent
upon the Smiths to correct the zoning if they desired
to obtain a building permit. We have earlier noted that,
although it was not obligated to do so, MNCPPC endea-
vored on several occasions to assist the Smiths in obtain-
ing a building permit, even offering to have the Property
surveyed at its own expense, to correct the zoning prob-
lem. The Smiths, however, rebuffed all of MNCPPC’s
attempts to resolve the matter diplomatically, choosing
instead to proceed in the courts. Consequently, it seems
disingenuous for the Smiths to claim damages from
MNCPPC for the delay in obtaining a building permit.
There was no error.
Il.
Finally, the Smiths contend that the circuit court erred
in dismissing the County and the Council as defendants.
We again disagree. MNCPPC has authority in the County
to prepare and maintain zoning maps. In sum, it was
appropriate for the circuit court to dismiss the County
and the Council as defendants.
JUDGMENT AFFIRMED.
COSTS TO BE PAID
BY APPELLANTS.
ae ee
3la
APPENDIX E
[Filed May 27 1997]
IN THE COURT OF APPEALS OF MARYLAND
Petition No. 178
September Term, 1997
MAENETTE B. SMITH, et vir
Petitioners,
VS.
MARYLAND NATIONAL CAPITAL
PARK AND PLANNING COMMISSION, et al.
Respondents.
PETITION for WRIT of CERTIORARI
COMES NOW the Petitioners, Maenette B. Smith,
et vir, by and through their attorney, Jess Joseph Smith,
Jr., and file this Petition for Writ of Certiorari, and say,
with reference, seriatim, to Maryland Rule 8-303:
1. The reference to the action in the lower court by
name and docket number: In the Circuit Court for Prince
George’s County, Maryland, Maenette B. Smith, et vir
v. Maryland National Capital Park <nd Planning Commis-
sion, et al, CAE 89-24602; In the Court of Special
Appeals, Maenette B. Smith et vir v. Maryland National
Capital Park and Planning Commission, et al., No. 927,
September Term 1996.
2. The case has been decided by the, Court of Special
Appeals (herein ‘CSA’) with that Court’s opinion at-
tached hereto.
32a
3. The Circuit Court has adjudicated all claims in the
action in their entirety, and the rights and liabilities of
all parties to the action by way of Summary Judgment.
4. The date of the judgment sought to be reviewed in
the Circuit Court was April 10, 1996, and the date of the
Mandate of the Court of Special Appeals was May 14,
1997.
II.
III.
5. The questions presented for review are:
WHETHER OR NOT A LAND USE APPELLANT
IS DENIED DUE PROCESS OR EQUAL PROTEC.
TION UNDER THE U.S. CONSTIT UTION, THE
MARYLAND CONSTIT UTION, OR THE MARY.
LAND DECLARATION OF RIGHTS WHERE THE
ISSUE OF LAW DETERMINED DOES NOT
APPLY EQUALLY TO ALL SIMILARLY SIT-
UATED LAND USE APPELLANTS OR LITI-
GANTS?
WHETHER OR NOT A LOCAL GOVERNMENT’S
CHANGING THE ZONING MAP OF A LAND-
OWNER’S PROPERTY WITHOUT NOTICE OR
HEARING, WHEN SUCH NOTICE AND HEARING
IS REQUIRED BY LAW TO CHANGE ANY ZON-
ING MAP, AND THE LOCAL GOVERNMENT’S
SUBSEQUENT RELIANCE ON THE CHANGED
ZONING MAP TO DENY A BUILDING PERMIT
TO THE PROPERTY OWNER CREATES LIABIL-
ITY FOR DAMAGES UNDER 42 U.S.C. 1983?
WHETHER OR NOT THE LOWER COURT ER-
RED IN FINDING THAT THE PRIOR F INAL AD-
JUDICATION OF THE SUBDIVISION OF THE
SUBJECT PROPERTY AND THE FINAL DECI-
SION OF THE ADMINISTRATIVE APPEAL
CASE RELATING TO THE BUILDING PERMIT
V.
V1.
Vil.
33a
DENIAL OF THE INSTANT CASE WERE NOT
RES JUDICATA AS TO THE MATERIAL ISSUES
ON LIABILITY PURSUANT TO 42 U.S.C. 1983?
WHETHER OR NOT THE LOWER COURT ER-
RED IN FINDING THAT A PROPERTY OWNER
MUST BE DEPRIVED OF ALL BENEFICIAL USE
OF HIS PROPERTY OR THAT THE DENIAL OR
DELAY OF A BUILDING PERMIT FOR A PER-
IOD OF TIME OF APPROXIMATELY FIVE (5)
YEARS WAS NOT A GOVERNMENTAL TAKING
OF PROPERTY, A DENIAL OF PROCEDURAL
DUE PROCESS, OR A DEPRIVATION OF ANY
RIGHTS, PRIVILEGES, OR IMMUNITIES SE-
CURED BY THE CONSTITUTION AND LAWS
AND CREATES LIABILITY FOR DAMAGES
UNDER 42 U.S.C. 1983?
WHETHER OR NOT THE LOWER COURT ER-
RED IN GRANTING THE CROSS-MOTION
FOR SUMMARY JUDGMENT FILED BY THE
MNCPPC?
WHETHER OR NOT THE LOWER COURT ER-
RED IN DENYING THE PETITIONERS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT?
WHETHER OR NOT THE LOWER COURT ER-
RED IN DISMISSING, WITHOUT REASON,
PRINCE GEORGE’S COUNTY AS A PARTY?
6. A reference to pertinent constitutional provisions,
statutes, ordinances, or regulations: U.S. CONSTITU-
TION, 14th Amendment; 42 U.S.C. 1983; MARYLAND
DECLARATION OF RIGHTS, Articles 23, 24; ANNO-
TATED CODE of MARYLAND, Article 28, §§7-111,
8-101, 8-104, 8-106, 8-119; MARYLAND RULE 8-114;
PRINCE GEORGE’S COUNTY CODE, §27-255(a)(1).
34a
7. A concise statement of the facts material to the
consideration of the questions presented:
THESE FACTS ARE NOT IN DISPUTE:
A.The Petitioners were the owners of property on
B.
Church Street in Upper Marlboro, Maryland since 1997.
The only zoning map that was adopted and approved
by the District Council at the time of filing this case
and at the time of filing of the application for building
permit was the zoning map dated 7/12/77.
- When the Petitioners acquired the subject property, it
was undivided with part of the property in the CSC
zone and part in the R-80 zone and the Petitioners
desired to subdivide the property to construct a small
office building solely on the CSC zoned portion of
their property.
D.Since the zoning map of the subject property, dated
7/12/77, was not clear with respect to zoning lines,
one of the Petitioners took the zoning map to the
appropriate official at the MNCPPC to clarify the map
and to get direction with respect to subdividing the
property so that the small office building could be
constructed on the parcel of property that would be
all in the CSC zoned portion of the property to be
subdivided.
. The official of the MNCPPC advised the Petitioner how
the lot should be subdivided, making notes on the zon-
ing map that is in evidence in this case, and the advice
was followed by the Petitioners, so that the newly
created subdivision, Lot One, Marlborough House,
would be all in the CSC zone.
F.The Petitioners relied on the representation of the
MNCPPC official and spent a substantial amount of
35a
money in preparing a preliminary subdivision plat to
submit to the MNCPPC showing the boundaries and
zoning of the entirety of the subject property.
G.The zoning of the property to be subdivided is an issue
in the subdivision process. It is a requirement of the
MNCPPC that the property boundaries and the zoning
of the subject property be included on the prelimin-
ary subdivision plat (submitted with the written
application for subdivision approval) because, among
other reasons, it determines the amount of the fee for
processing the plat as well as the internal processing
and review of the preliminary subdivision plat by the
MNCPPC and the preliminary subdivision plat is
assigned a specific number designation by the MNCPPC.
H.The MNCPPC denied the subdivision request for,
among other reasons, that the property was next to
a house on the National Historic Register and that the
Petitioners failed to donate or give some of their prop-
erty to the widening of Church Street; notwithstanding
there was no plan in existence or contemplated to
widen Church Street.
I. The Circuit Court for Prince George’s County, upon
appeal of the subdivision denial to that court, granted
the subdivision of the Petitioners specifically noting
in the Order the specific number designation of the
preliminary plat that was approved by the Court that
had the boundaries of the subject property fixed
thereon and the designation showing that all of the
property was in the CSC zone. This case was not
appealed by either party.
J. The subdivision plat, as approved by the Circuit
Court, was approved by the MNCPPC on 2/18/88,
and was recorded among the land records of Prince
George’s County at Liber 137, Plat 54.
36a
K.That in further reliance on the appropriate govern-
mental official of the MNCPPC, the Petitioners ex-
pended in excess of $100,000.00 cash out of pocket
of their own money in the subdivision and develop-
ment of the subject property for architect, engineering,
surveying, soil borings, financing, bonds, and other
miscellaneous expenses, to get to the position of ob-
taining a building permit by complying with all of the
requirements of Prince George’s County for a build-
ing permit.
L. That on 8/22/88 and on 3/16/90, subsequent to the
building permit application, the MNCPPC, without
notice or hearing, changed the zoning map of the sub-
ject property thereby making part of the subject prop-
erty, that is, Marlborough House, Lot One, in the CSC
and R-80 zones.
M. That the MNCPPC reviewed the building permit appli-
cation of the Petitioners and recommended denial of
the permit based on the zoning map of 8/22/88, since
the newly created lot, Marlborough House, Lot One,
was partially in the CSC zone and partially in the
R-80 zone. At the hearing before the Board of Ap-
peals, the representative of the MNCPPC testified that
the denial of the building permit was based on the
zoning maps of 8/22/88 and 3/16/90.
The Denial of the building permit application was
not based on any adopted and approved zoning map,
nor was the denial based on the 7/12/77 zoning map.
O.That the instant lawsuit was filed shortly after the
Petitioners found out that the MNCPPC had changed
the zoning map and was recommending denial of the
building permit application based on the changed zon-
ing map of 8/22/88 that was changed without notice
or hearing.
— - Eee ———_ ae moes
37a
P. That the denial of the building permit was appealed by
the Petitioners and the Board of Appeals for Prince
George’s County, Md., (Board of Appeals) found that
the MNCPPC had changed the boundaries of the sub-
ject property thereby creating more than one zone for
the subject property.
Q. That, at the hearings before the Board of Appeals, the
MNCPPC was the principal party other than the Peti-
tioners and the MNCPPC submitted all of the evidence
against the Petitioners at the Board of Appeals hearing.
That the MNCPPC and the Petitioners appealed the
decision of the Board of Appeals and the MNCPPC was
dismissed as not being an ‘aggrieved party’. After
being dismissed from the case, counsel for the
MNCPPC continued as the attorney for Prince George’s
County over objection of the Petitioners.
R.That on 11/16/90, the Chief, Permit Section, Con-
struction Standards Division, Department of Environ-
mental Resources, Prince George’s County, Maryland,
certified under affidavit that the Petitioners had com-
plied with all of the requirements of the County Code
for the issuance of a building permit except for the
approval of the MNCPPC.
. That prior to the Circuit Court Order approving the
preliminary subdivision plat application showing the
boundaries of the property and the CSC zoning of the
subject property of the Petitioners, there was not a
single piece of paper in the files of the MNCPPC or
elsewhere that showed or indicated that the subject
property, Lot, One, Marlborough House, was in any
zone other than all in the CSC zone.
T. That there has not been a single reported Maryland
case from the Court of Special Appeals or the Court
38a
of Appeals since the inception of the MNCPPC in
1927 that permits or authorizes the MNCPPC to
change a zoning map, nor any case that permits a
change in a zoning map without notice or hearing.
U.That a zoning map in Prince George’s County is com-
posed of a ‘base map’ and a transparent ‘zoning over-
lay’ that contains only zoning boundaries. That the
zoning overlay is placed over the base map and cop-
ied thereby forming a zoning map.
V.That the only governmental body in Prince George’s
County that is empowered to adopt, approve, and
make any changes to a zoning map is the District
Council (the County Council for Prince George’s
County, Maryland, sitting as the District Council
[District Council]) and then only after notice and
hearing.
W. That the MNCPPC is not empowered or authorized to
make any changes to zoning maps in Prince George’s
County.
X.There is no evidence or reference to any fact in evi-
dence presented in this case relating to the MNCPPC
assisting the Petitioners in obtaining the requested
building permit or asking to re-survey the Petitioners’
property or permit the MNCPPC to do so without
expense except that, after one of these cases had been
on appeal and during an argument before the Circuit
Court, Counsel for the MNCPPC offered to have the
property re-surveyed without cost to the Petitioners
and the Petitioners declined since the property had
been surveyed previously, that the Circuit Court had
previously approved the subdivision of the subject
property showing the boundaries of the subject prop-
erty and all of the subject property being in the CSC
39a
zone, that the MNCPPC had approved such subdivi-
sion in writing after Court Order, the plat was recorded
among the land records of Prince George’s County, and
that there was a deed recorded among the land records
of Prince George’s County certifying the boundary
between the property to the north of the subject
property and the subject property that settled a
boundary dispute between a previous owner of the
subject property and the property to the north of the
subject property, and that the Petitioners had spent a
substantial sum of money in relying on the represen-
tation of the proper governmental official of the
MNCPPC in subdividing their property.
Y.That the building permit for the subject property was
granted on 10/26/94 after the SMA was enacted by
the District Council showing all of the subject property
in the CSC zone.
Z. The MNCPPC made changes to the base maps and zon-
ing maps that effect the subject property.
THESE FACTS ARE IN DISPUTE:
A.Whether or not the Petitioners applied for a rezoning
of their property by way of the SMA.
BRIEF SUMMARY of EACH CASE RELATING to the
DEVELOPMENT of the SUBJECT PROPERTY, Exhibit
‘A’, attached.
8. A concise argument in support of the petition.
BACKGROUND!
This case could be titled: ‘More Than You Ever Wanted to
Know About Base Maps and Zoning Maps.” or “The Case of the
Bogus Zoning Maps.”’.
40a
Both the Circuit Court? and the Court of Special
Appeals® have erroneously assumed, as a matter of fact,
that the subject property was zoned in a dual zone when
this case was filed and when the building permit appli-
cation was filed. The uncontradicted facts are to the con-
trary. That the MNCPPC changed the zoning map with-
out notice or hearing has never been is dispute — the
MNCPPC (also as found by the Board of Appeals) has
stated that they changed the base map thereby changing
the zoning map of the subject property when the zon-
ing overlay transparency was put over the changed base
map thereby creating a new and changed zoning map.
Also, there is no dispute that there was no notice or
hearing prior to the changing of the zoning map by the
MNCPPC. It is the clearly the law that the MNCPPC does
not exercise zoning authority, Art. 28, §§ 8-101, 8-104,
8-106. See also, West Montgomery County Citizens
Assoc., et al. v. Maryland-National Capital Park and Plan-
ning Commission, et al., 309 Md. 183, 522 A.2d 1328
(1987).
Certainly, if you make the assumption that the subject
property was dual zoned when the building permit was
applied for, then there is no other factual determination
that needs to be made and the case is then decided as
the trial court and the CSA have decided it.
Both the Circuit Court* and the CSA° erroneously
2? Memorandum and Order of Court (top of page 2 of its
Order), Under paragraph ‘I’, in the first paragraph, last sentence,
of the Court stated, “. .. Lot 1 - Marlborough House, on the other
hand, was dual-zoned at the time this action was instituted and is
the subject of the proceedings before the Court.”.
Sat footnote 3, page 2, and at page 6, first sentence of the
last paragraph.
tar page 6, first full paragraph, last two sentences.
Sat page 6, first two full paragraphs.
4la
equate the power to maintain and update base maps
under Art. 28, §7-111, with the power to make any
changes to zoning maps under Art 28, § §8-101, 8-104,
and 8-106.
It is submitted that this is the first case in Maryland
where the Courts have sanctioned the MNCPPC chang-
ing a zoning map clearly contrary to Art. 28, § §8-101,
8-104, and 8-106. It is also submitted that this is a
case of first impression in the State of Maryland where
MNCPPC changed a zoning map without notice or hear-
ing. It is further submitted that this is a case of first
impression where a zoning map that has been changed
without notice or hearing by the MNCPPC contrary to
Maryland law has been used to deny a building permit.
3
WHETHER OR NOT A LAND USE APPELLANT IS DEN-
IED DUE PROCESS OR EQUAL PROTECTION UNDER
THE U.S. CONSTITUTION, THE MARYLAND CONSTITU-
TION, OR THE MARYLAND DECLARATION OF RIGHTS
WHERE THE ISSUE OF LAW DECIDED DOES NOT
APPLY EQUALLY TO ALL SIMILARLY SITUATED
LAND USE APPELLANTS OR LITIGANTS?
Maryland residents and litigants are entitled to the
equal protection of the laws of the state and the laws of
the land through Art. 14 of the U.S. Constitution and the
Art. 24 of the Maryland Declaration of Rights. Kirsch,
et al. v. Prince George’s County, Maryland, 331 Md. 89,
626 A.2d 372 (1993), cert. denied, — U.S. —, 114 S.Ct.
600, 126 L.Ed.2d 565 (1963).
Equal protection means treating litigants equally
unless there is some rational or reasonable basis for
classifying or distinguishing between them. Avery v.
State, 15 Md. App. 520, 537, 292 A.2d 728 (1972),
citing Eggleston v. State, 209 Md. 504, 121 A.2d 698
(1956).
42a
Where grouping or classification is without reasonable
basis or entirely arbitrary, it is forbidden, Potomac Sand
and Gravel Co. v. Governor of Maryland, et al., 266 Md.
358, 376, 293 A.2d 24] (1972), rephrasing the Sup-
reme Court in Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61, 55 L.Ed. 369 (1911).
Maryland Rule 8-114, it is submitted, is just such a
forbidden classification of litigants with no reasonable or
rational basis for the classification and, thus, is a denial
of equal protection for the litigants who are unlucky
enough to have their case ‘unreported’.© The absence of
any classification renders the noted Maryland Rule
unconstitutional as a violation of an appellant’s equal
protection. The noted Rule contains no basis whatso-
ever for determining the class of reported or unreported
decisions and is, thus, in a constitutional sense, an arbi-
trary classification.
In the instant case, the decision of the CSA is unre-
ported and, as such pursuant to Maryland Rule 8-114, it
is not authority for this or any other land use appellants
or litigants. The Petitioners are treated differently from
other similarly situated land use appellants who have
reported opinions in their disputed cases.
In the sense that Rule 8-114, as applied to the facts
of this case’ , denies these land use appellants equal treat-
Counsel could find no rules or guidelines for determining
when a case would be ‘unreported’ and a telephone call to the
Clerk of the CSA confirmed that there are no written rules or pol-
icy other than the Maryland Rule. It is significant to note that the
Petitioners have had three (3) ‘unreported’ opinions in the develop-
ment of their land.
The Petitioners recognize that there are appropriate cases
for unreported opinions, among others, juvenile cases, national and
state security interests, etc., but there is no such classification that
Petitioners could find.
bi ha ais ee eee
43a
ment with other land use appellants, it is unconstitu-
tional. The net effect of the instant case is to change the
law of Maryland with respect to changing zoning maps
but have it only applicable to one person, your Petition-
ers. It is submitted that such single application is a viola-
tion of the Petitioners’ due process or equal protection.
The Court of Special Appeals, by its unreported opin-
ion. sanctions or permits the MNCPPC changing the zon-
ing map of a landowner’s property after the landowner
had expended more than $100,000.00 in reliance on a
proper governmental representative and notwithstanding
the clear language of Art. 28, §§8-101, 8-104 and 8-
106, that provide that only the District Council can make
‘any’ change to a zoning map and then only after notice
and a hearing. The Court, by its unreported opinion,
then sanctions or permits the governmental agency to
use the changed zoning map to deny a building permit
application.
There are a large number of other land use applicants
for building permits in Maryland where such Jand use
building permit applicants have had their cases heard and
determined in reported opinions® while the instant liti-
gants have not been so lucky.
To decide some land use cases in reported opinions
and some land use cases in unreported opinions does not,
it is submitted, provide equal treatment of the two simi-
larly situated land use litigants, particularly where there
are no rules or regulations determining whether or not
an opinion is ‘unreported’.
8 There appear to be thirty-one (31) such reported cases
involving “building permit denial zoning” as determined from the
CD-ROM of Maryland Cases as provided by Michie, attached as
Exhibit ‘B’. There are innumberable reported land use cases
relating to zoning.
44a
If the CSA is going to change the land use law of the
state of Maryland, it is submitted that then the Petition-
ers and other landowners are entitled to rely on the
changed law; however, the unreported opinion does not
permit the instant or other landowners to do so in other
cases, because the instant opinion is ‘unreported’,
Further, permitting the trial court to make a deter-
mination of the facts of this case is? , it is submitted, a
violation of the Petitioner’s due process rights secured by
Art. 23 of the Maryland Declaration of Rights, that pro-
vides that issues of fact in civil proceedings shall be
determined by a jury°,
Il,
WHETHER OR NOT A LOCAL GOVERNMENT’S CHANG.
ING THE ZONING MAP OF A LANDOWNER’S PROP.
ERTY WITHOUT NOTICE OR HEARING, WHEN SUCH
NOTICE AND HEARING IS REQUIRED BY LAW TO
CHANGE ANY ZONING MAP, AND THE LOCAL GOv.
ERNMENT’S SUBSEQUENT RELIANCE ON THE
CHANGED ZONING MAP TO DENY A BUILDING PER-
MIT TO THE PROPERTY OWNER CREATES LIABILITY
FOR DAMAGES UNDER 42 U.S.C. 1983?
The Annotated Code of Maryland, Art 28, §8-104,
clearly requires a notice and hearing before any changes
are made to a zoning map. Counsel for the MNCPPC has
repeatedly stated that the MNCPPC does not have the
power to change zoning maps notwithstanding the facts
of this case.
* Principally by assuming or otherwise determining that the
subject property was dual zoned at the outset of the case, that is,
whether or not the MNCPPC changed the zoning of the subject
property.
101+ iis respectfully pointed out to the Court that this case
was stayed and remanded to the Circuit Court for a determination
of whether or not the MNCPPC changed the zoning map.
45a
It is submitted that the witness who was designated
by the MNCPPC to testify before the Board of Appeals
for Prince George’s County (herein Board of Appeals)
concerning the MNCPPC recommended denial of the
Petitioner’s building permit application testified that the
zoning maps were changed and that the changed zoning
maps were used to recommend denial of the building
permit application. Likewise, the Clerk of the District
Council testified that the only adopted and approved
zoning map (at that time) was the zoning map of 7/12/77.
There was no notice or hearing of such change. 42
U.S.C. 1983 is clearly applicable to the counties, and
such conduct as not following procedures outlined in the
law is clearly compensible under 42 U.S.C. 1983. A
property owner, under 42 U.S.C. 1983, has the right to
procedural due process before his property may be
rezoned, Harris v. County of Riverside, 904 F.2d 497
(CA 9 Cal) (1990).
The principal of substantive due process protects
property owners in zoning dispute cases from arbitrary
or irrational zoning actions under 42 U.S.C. 1983, like
that involved in the instant case, Brady v. Colchester,
883 F.2d 810 (CA 9 Cal) (1989).
Ill.
WHETHER OR NOT THE LOWER COURT ERRED IN
FINDING THAT THE PRIOR FINAL ADJUDICATION OF
THE SUBDIVISION OF THE SUBJECT PROPERTY AND
THE FINAL DECISION OF THE ADMINISTRATIVE AP-
PEAL CASE RELATING TO THE BUILDING PERMIT
DENIAL OF THE INSTANT CASE WERE NOT RES
JUDICATA AS TO THE MATERIAL ISSUES ON LIA-
BILITY PURSUANT TO 42 U.S.C. 1983?
The first case between the Petitioners and the
MNCPPC, the subdivision case, Maenette B. Smith, et
46a
vir v. Maryland National Capital Park & Planning Com-
mission, CAL 86-12679, in the Circuit Court for Prince
George’s County, Maryland, is now final. It is submit.
ted that the issue of the zoning and boundaries of the
lot in question, the Marlborough House, Lot One, has
been determined and is res judicata at least between the
MNCPPC and its privy, Prince George’s County, and the
Petitioners.
The administrative appeal case, Prince George’s Coun-
ty, et al. v. Maenette B. Smith, et vir, CAL 91-00205,
was an appeal of the Board of Appeals decision find-
ing that the MNCPPC had changed the zoning map of
the subject property and finding that all of the subject
property was in the CSC zone!!. It is significant to
note that the date of the dismissal of the administrative
appeal case was some three (3) years after the unre.
ported decision in the instant case on April 28, 1992,
because that case, the administrative appeal case, did not
become final, and thus res judicata, until after it was
dismissed on March 14, 1995. The Board of Appeals
decision relating to the development of the subject
property from which the administrative appeal was
taken became final, and thus res judicata as to Prince
George’s County, and its privy the MNCPPC.
As pointed out in Warner, et ux. v. German, et al.,
100 Md.App. 512, 642 A.2d 239 (1994), the prior
adjudication is binding on parties and their privies — here
Prince George’s County and the MNCPPC whose legal
positions were, and are, the same and they were ulti-
mately represented by the same counsel.
The doctrine of res judicata is clearly applicable to
administrative agencies, Chatman Corporation v. Belt-
1] Finding #12 of the Board of Appeals decision attached
hereto.
47a
ram, 243 Md. 138, 220 A.2d 589 (1966), as here, where
the original subdivision case, Smith, ’86 case, supra,
related to the drawing of boundary lines as does the
instant case and to the administrative agency, the Prince
George’s County Board of Appeals (that statutory body
charged with the expertise to hear and decide these type
cases), found that the MNCPPC had, in fact, changed
the adopted and approved zoning map of the subject
property. See also, Singer v. Steven Kokes, Inc., 39
Md.App. 180, 384 A.2d 463 (1978), for the proposition
that the previous decision between the same parties is
final as to all matters that were raised or could have
been raised. In accord, Howard County v. Eberhart,
58 Md.App. 407, 473 A.2d 509 (1984).
IV.
WHETHER OR NOT THE LOWER COURT ERRED IN
FINDING THAT A PROPERTY OWNER MUST BE DE-
PRIVED OF ALL BENEFICIAL USE OF HIS PROPERTY
OR THAT THE DENIAL OF A BUILDING PERMIT FOR A
PERIOD OF TIME APPROXIMATELY FIVE (5) YEARS
WAS NOT A GOVERNMENTAL TAKING OF PROPERTY,
A DENIAL OF PROCEDURAL DUE PROCESS, OR A
DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
IMMUNITIES SECURED BY THE CONSTITUTION AND
LAWS AND CREATES LIABILITY FOR DAMAGES
UNDER 42 U.S.C. 1983?
This action by MNCPPC and the County is clearly
an unwarranted interference with the beneficial use
and enjoyment of the Petitioners’ property amounting
to a taking, and, although the taking may be of a tempor-
ary nature or partial nature, it is, nevertheless a taking.
First Evangelical Lutheran Church of Glendale v. Los
Angeles, 107 S.Ct. 2378 (1987). Donohoe v. MNCPPC,
398 F. Supp. 21 (1975). Keystone v. DeBenedeictis,
a ee
ria aati
48a
107 S.Ct. 1232 (1987). Shapiro v. Chapman, 70 Id.
App. 307, 520 A.2d 1330 (1987).
A taking may occur even though the owner is not
deprived of substantially all beneficial use of the prop-
erty as the Court of Special Appeals held in, QC Corp.
v. Maryland Port Admin., 68 Md.App. 181, 510 A.2d
1101 (1986). And conditioning a use of property (as
here in requiring the Petitioners to rezone the subject
property to CSC to put all of the subject property in the
CSC zone as a condition precedent to getting their
building permit) which does not further a governmental
purpose is not permitted and is a taking in the constitu-
tional sense, Nolan v. California Coastal Com n., 107
S.Ct. 3141 (1987). See also, the 14th Amendment, Sec-
tion 1, to the U.S. Constitution and Article 24 of the
Maryland Declaration of Rights, and Corn v. City of
Lauderdale Lakes, 771 F. Supp. 1557 (S.D. Fla. 1991);
Westbrough Mall, Inc. v. City of Girardeau, MO, 953
F.2d 345 (8th Cir. 1991); Herrington v. County of
Sonoma, 79 F. Supp. 909 (N.D. CA 1991); and Front
Royal and Warren County Industrial Park v. Town of
Front Royal, 749 F. Supp. 1439 (W.D. VA 1990). Even
temporary regulatory taking of property rights are com-
pensible in a 42 U.S.C. 1983 action, Wheeler v. Pleasant
Grove, 833 F.2d 267 (CA 11 Ala) (1987).
Fe
WHETHER OR NOT THE LOWER COURT ERRED IN
GRANTING THE CROSS-MOTION FOR SUMMARY
JUDGMENT FILED BY THE MNCPPC?
As stated above under ‘Background’, both the lower
court and the trial court have erroneously assumed that
the property was dual zoned when the building permit
was applied for and, therefore, there is no need for the
Courts to do anything else except to find for the
49a
MNCPPC and the County. There are also statements that
the Petitioners have failed to take any action to correct
their zoning problem and that their delays are self-
imposed. It is submitted that such statements go only
to the issue of damages and not to the issue of liability
under 42 U.S.C. 1983 and reduces the Petitioners’ dam-
ages because the building permit has now been issued.
It is respectfully pointed out that the zoning power
and the power to change or amend zoning maps in Prince
George’s County is exercised exclusively by the County
Council for Prince George’s County, Maryland, sitting as
the District Council, as outlined in the Annotated Code
of Maryland, Article 28, as outlined below: Article 28,
Annotated Code of Maryland (1995 Replacement Vol-
ume) [emphasis added]
§8-101. Powers generally.
(a) Designation of district councils; bi-county district
council. — The County Councils of Montgomery
County and Prince George’s County are each individ-
ually designated, for the purposes of this article, as the
district council for that portion of the regional district
lying within each county, respectively. .. .
(vb) Grant of zoning power. —
... (2)... each district council, respectively, in
accordance with the conditions and procedures speci-
fied in this article, may by ordinance adopt and amend
the text of the zoning ordinance and may by resolu-
tion or ordinance adopt and amend the map or maps
accompanying the zoning ordinance text to regulate,
in the portion of the regional district lying within its
county,... ...and (vi) the uses of land,...
* * * * *
50a
§8-104. Amendments to zoning regulations —
Generally.
(a) Authorized procedure. —
(1) After duly advertised public hearing each dis-
trict council from to time may amend its regulations
or any regulation, including the maps Or any map, in
accordance ith procedures established in the respective
zoning ordinances. . . .
* *e* Kk &
§8-106. Same — Hearings and appeals in Prince
George’s County.
-- + (d) Definitions for sections. — for Purposes of this
section and § §8-104 and 8-105 of this article herein,
the word “amend” or “amendment” shall be deemed
The language of the Statute is clear and unambiguous,
Richmond v, State, 326 A.2d 257, 262, 604 A.2d 483
(1992), and, it is submitted, and requires notice and a
hearing of any change in zoning map.
V1.
WHETHER OR NOT THE LOWER COURT ERRED IN
DENYING THE PETITIONERS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT?
In addition to the reasons stated above in ‘Back-
ground’, the following reasons are submitted to the Court.
5la
CLAIM or ISSUE PRECLUSION
The issue of the zoning of the subject property was
clearly an issue in the consideration of the preliminary
subdivision plat and in the subdivision case, as testified
to by the Mr. Hirsch, Head of the Subdivision Office of
the MNCPPC. It would seem that re-litigating that issue
would be precluded at least by the doctrine of claim or
issue preclusion, Kent County Bd. of Educ., et al. v. Bil-
borough, 309 Md. 487, 489-490, 525 A.2d 232 (1987).
DIRECT or COLLATERAL ESTOPPEL
The liNCPPC and Prince George’s County cannot now
come into Court to contest a matter that was, or could
have been, raised in the previous cases between the same
parties, that is, the zoning map and building permit
issues in the Board of Appeals case (Maryland National
Capital Park & Planning Commission, et al. vs. Maenette
B. Smith, et vir, 333 Md. 3, 633 A.2d 855 (1993), same
case as Prince George’s County, et al. v. Maenette B.
Smith, et vir, CAL 91-00205, in the Circuit Court for
Prince George’s County, Maryland), Klein v. Whithead,
40 Md.App. 1, 389 A.2d 374 (1978). See also Beatty
v. State, 56 Md.App. 627, 468 A.2d 663 (1983), where
the court indicated that the doctrine of collateral estop-
pel applies where the second case is between the same
parties but on different causes of action as here the
Smith, 86 case, supra, relating to the MNCPPC denial
of the subdivision request and the °91 case relating to
the appeal of the denial of the building permit applica-
tion as cited in this paragraph above.
Likewise, it would be inequitable to permit the Appel-
lees to now repudiate their prior representations where
the Petitioners have relied on that conduct much to their
detriment, Realty Improvement Association, et al. v.
52a
Sycamore Realty Co., Inc., 105 Md. App. 701, 661 A.2d
182 (1995). See also, County Council of Prince George’s
County, Maryland v, Offen, 334 Md. 499, 639 A.2d
1070 (1994), and Washington Suburban Sanitary Com-
mission, et al. v. TKU Associates et al. v, Montgomery
County, Maryland, et al., 281 Mad. 1, 376 A.2d 505
(1977).
It is submitted that when Mr. James H. Carr, Chief,
Permit Section, Construction Standards Vivision, Depart-
ment of Environmental Resources, Prince George’s
County, Maryland, gave his affidavit on 11/16/90 that
the Petitioners had then fully complied with all require-
ments for a building permit, except for the known bogus
zoning maps that were relied on by the MNCPPC and the
County in the denial of the building permit, the build-
ing permit should have been granted since the Peti-
tioners had, at that time, satisfied ALL of the statutory
requirements for a building permit.
REPRESENTATION by |
GOVERNMENTAL EMPLOYEE }
It is unquestionably the law of the State of Maryland
that an individual may rely on the representation of a
governmental official where, as here, the governmental
official was the proper person to make such representa-
tion. Gontrum v, Mayor and City Council of Baltimore,
182 Md. 370, 35 A.2d 128 (1943). See also, White v.
County Commissioners of Washington Co., 227 Md. 573,
177 A.2d 905 (1962).
53a
Vil.
WHETHER OR NOT THE LOWER COURT ERRED IN
DISMISSING, WITHOUT REASON, PRINCE GEORGE’S
COUNTY AS A PARTY?
It is difficult to state the reasons for the trial court dis-
missing Prince George’s County since Prince George’s
County is the party who denied the building permit, par-
ticularly, since the lower courts did not give any reasons
for their decision.
In Prince George’s County, the County itself is the
governmental body that controls the issuance of building
permits pursuant to Article 28, §8-119 and the County is
required to refer the review of the permit applications to
the MNCPPC pursuant to the Prince George’s County
Code, §27-255(a)(1).
9. All of the documents required by Maryland Rule
8-303(b)(2) are attached hereto.
10. It is Desirable for this court to hear this case by
certiorari for the following reasons: The appellate courts
of the State of Maryland have decided important ques-
tions of federal law that have not been, but should be
decided; The appellate courts of the State of Maryland
have decided an important federal question in a way
that conflicts with relevant decisions of the U.S. Sup-
reme Court.
11. It is In the Public Interest for this court to hear
this case by certiorari for the following reasons: Similarly
situated land use litigants should be able to rely on the
established law of the state of Maryland: Similarly situ-
ated land use litigants should be able to rely on all of the
opinions of the Appellate Courts of the State, not just
the reported ones; To instill confidence in the Judicial
system of the State by treating all similarly situated
appellants with the same law and rules.
54a
CONCLUSION
THIS IS REALLY A VERY SIMPLE CASE EVEN
THOUGH IT TAKES UP REAMS OF PAPER AND
MANY FILES. YOUR PETITIONERS WOULD BF
FORTUNATE TO HAVE THE COURT ADDRESS.
AND GIVE A REPORTED OPINION ON, ONLY ONE
ISSUE: WHETHER OR NOT THE MNCPPC CHANGED
THE ZONING MAP OF THE SUBJECT PROPERTY
WITHOUT NOTICE OR HEARING?!? (THIS IS THE
ISSUE FOR WHICH THE CASE WAS REMANDED TO
THE CIRCUIT COURT IN THE FIRST PLACE.) IF
THE MNCPPC DID NOT CHANGE THE ZONING MAP
WITHOUT A NOTICE OR HEARING, THEN THE
CASE SHOULD BE DISMISSED. IF THE MNCPPC
DID CHANGE THE ZONING MAP OF THE SUBJECT
PROPERTY WITHOUT NOTICE OR HEARING, THEN
THE CASE SHOULD BE REVERSED AND RE.
MANDED TO THE CIRCUIT COURT FOR A JURY
TRIAL ON DAMAGES.
FOR THE FOREGOING REASONS, IT IS RESPECT.
FULLY REQUESTED THAT THE COURT GRANT
THIS PETITION FOR WRIT OF CERTIORARI.
/s/ Jess Joseph Smith, Jr.
Jess Joseph Smith, Jr.
P.O. Box 1995
Upper Marlboro, MD 20773
(301) 627-8200
[Certificate of Service Omitted in Printing]
12 It is respectfully pointed out that the Petitioners are not
withdrawing or abandoning any other issues raised herewith but are
merely suggesting to the Court an casy way to resolve all of the
issues by looking at a single set of uncontradicted facts in this case.
[EXHIBIT 1]
BRIEF SUMMARY of EACH CASE RELATING
to the DEVELOPMENT of the SUBJECT PROPERTY
I. 1/14/87 — ’86 case — SUBDIVISION CASE — This
case related to the denial of the subdivision of the prop-
erty by the Maryland National Capital Park & Planning
Commission (IMNCPPC), and is referred to as the ‘sub-
division case’ and the ’86 case’! This case was resolved
favorably to the Plaintiffs (Petitioners here) in Mae-
nette B. Smith, et vir v. Maryland National Capital Park
& Planning Commission, CAL 86-12679, in the Circuit
Court for Prince George’s County, Maryland. The final
subdivision plats were approved by the MNCPPC on
2/18/88 for ‘Lot One, Marlborough House’ and was
recorded among the Land Records of Prince George’s
County, Maryland, at Liber NLP 137, Plat 54*. The
Court Order in the subdivision case expressly approved
the Preliminary Subdivision Plat No. 4-86100, ‘Lot One,
Marlborough House” showing the boundaries of the
property with the notation “Existing zone: CSC”’, that
is, all of the subject property was in the CSC zone. The
subdivision case was not appealed turther by either
party.
I1The denial was based, inter alia, on the subject property
being adjacent to a home that was on the National Historic Regis-
try and the failure of the Petitioners to give or donate property for
a widening of Church Street.
2The northern boundary of the subject property had been
settled in 1968 by a Deed of Agreement to Establish Boundary
Line and also recorded among the Land Records of Prince George’s
County, Maryland.
>The ‘Preliminary Subdivision Plat’ is the name of the plat
filed with the application for subdivison plat approval.
56a
Il. 12/27/89 — ’89 case - DAMAGES CASE — CAF
89-24602. The instant case started as a Declaratory
Judgment case with damages and jury damand. The
case was later amended for injunctive relief and later to
its present posture for only damages with jury demand.
This case was filed after the Petitioners had been notified
that their building permit application would be denied
based on a zoning map that had been changed by the
MNCPPC without notice or hearing. This case was dis-
missed by the trial Judge for, inter alia, failure to exhaust
administrative remedies and was reversed and stayed by
the Court of Special Appeals in No. 1430, Sept. Term
1992, in an unreported o ‘nion filed Apnil 28, 1992.
This case was remanded to the Circuit Court pending the
outcome of the Administrative Appeal case, the then
pending ’91 case, for a determination of whether or not
the MNCPPC had rezoned the Petitioner’s property, a
question of disputed material fact, since at that time the
administrative appeal case was not final. Since the Appel-
lants now have their building permit, they are no longer
se king injunctive relief but are merely seeking damages.
On remand, the trial court dismissed Prince George’s
County as a party, granted the Summary Judgment of
the MNCPPC, and denied the Summary Judgment of the
Petitioners. In an unreported opinion filed April 14,
1997, the CSA affirmed the trial court.
III. 12/27/90 — ’90 case - MANDAMUS CASE — Mae-
nette B. Smith, et vir v. Prince George’s County, Mary-
land, in the Circuit Court for Prince George’s County,
Maryland, CAL 90-30619. This case was filed to com-
pel the issuance of the building permit after the Board
of Appeals decided the administrative appeal in the favor
of the Petitioners and the County stated that they
would not issue the building permit without court order.
57a
This case was dismissed by the trial Court for failure to
exhaust administrative remedies since the administrative
appeal case was then pending. This case was affirmed by
the Court of Special Appeal in No. 1654, Sept. Term
1991, in an unreported opinion. The Court of Appeals
denied cert. in Petition Docket No. 431, Sept. Term
1992.
IV. 1/3/92 — ’91 case - ADMINISTRATIVE APPEAL —
This was an administrative appeal case and is referred to
as the ‘administrative appeal case’ and the ‘91 case’,
Prince George’s County, et al. v. Maenette 2B. Smith,
et vir, CAL 91-00205. This case was an appeal of the
Board of Appeals decision finding in favor of the Peti-
tioners that the MNCPPC had changed the zoning map of
the subject property. The case was appealed by all
parties here, namely the MNCPPC, Prince George’s
County, and the Petitioners. The Petitioners here appeal-
ed to preserve, inter alia, the issues of res judicata relat-
ing to the subdivision case and reliance on a governmental
official and direct or collateral estoppel in the adminis-
trative appeal case. This case went to © ~ Court of
Appeals that, sua sponte, granted certiorari » 3 affirmed
the trial Court in a reported opinion, Ma: yéand National
Capital Park & Planning Commission, et al. vs. Maenette
B. Smith, et vir, 333 Md. 3, 633 A.2d 855 (1993), filed
Dec. 8, 1993, and dismissed the MNCPPC as an appel-
lant inasmuch as the MNCPPC was not an aggrieved party
although the MNCPPC appeared and vigorously deferded
its position before the Board of Appeals and all courts.
This case~went back to the Circuit Court for trial‘
*Where counsel for the MNCPPC, although MNCPPC had
been dismissed as a party, nevertheless remained as co-counsel for
Prince George’s County, Maryland, over objection, and later
entered his appearance as co-counsel individually using the
MNCPPC address.
58a
and was dismissed before trial by Order dated March 14,
1995, when the newly enacted Sectional Map Amend-
ment showed the entirety of the subject property as
zoned CSC and since the building permit had been issued
on October 26, 1994. This administrative appeal case is
now final.
V. 3/11/93 — ’93 case — U.S. DISTRICT COURT-— This
was a case by your Petitioners for damages under 42
U.S.C. 1983 in the Federal District Court in Baltimore,
Case No. MJG 93-742. This case was dismissed by the
Petitioners on Sept. 28, 1993.
59a
[EXHIBIT ‘B’]
“BUILDING PERMIT DENIAL ZONING”
1 + 677 A.2d 102, 110 Md. App. 300 TOWN OF SYKES-
VILLE V. WEST SHORE COMMUNS, INC. (Ct. Sp.
App. 1996)
1 + 650 A.2d 226, 336 Md. 569 UPS V. PEOPLE’S
COUNSEL FOR BALTIMORE COUNTY (Ct. App.
1994)
1 + 639 A.2d 1070, 334 Md. 499 COUNTY COUNCIL
OF PRINCE GEORGE’S COUNTY V. OFFEN (Ct.
App. 1994)
2 + 633 A.2d 855, 333 Md. 3 MARYLAND-NATIONAL
PARK & PLANNING COMM’N V (Ct. App. 1993)
1 + 625 A.2d 424, 96 Md. App. 526 OFFEN V. COUN.
TY COUNCIL FOR PRINCE GEORGE’S COUNTY
(Ct. Sp. App. 1993)
1 + 622 A.2d 774, 95 Md. App. 607 ESSLINGER V.
BALTIMORE CITY (Ct. Sp. App. 1993)
2 + 611 A.2d 993, 93 Md. App. 59 UPS V. PEOPLE’S
COUNSEL FOR BALTIMORE CTY. (Ct. Sp. App.
1992)
1 + 571 A.2d 1270, 82 Md. App. 418 COUNTY COM.-
MRS. OF CARROLL CTY. V. ARUNDEL CORP.
(Ct. Sp. App. 1990)
1 + 428 A.2d 879, 290 Md. 214 FAULKNER V. TOWN
OF CHESTERTOWN (Ct. App. 1981)
1 + 331 A.2d 55, 273 Md. 486 CRIMINAL INJURIES
COMP. BD. V. GOULD (Ct. App. 1975)
2 + 314 A.2d 436, 271 Md. 42 LOGAN V. TOWN OF
SOMERSET (Ct. App. 1974)
1 + 291 A.2d 672, 266 Md. 117 ROCKVILLE FUEL &
FEED CO. V. CITY OF GAITHERSBURG (Ct. App.
1972)
|
60a
1 + 214 A.2d 810, 240 Md. 547 SALISBURY BD. OF
ZONING APPEALS V. BOUNDS (Ct. App. 1965)
1 + 212 A.2d 751, 240 Md. 77 BEALL V. MONTGOM-
ERY COUNTY COUNCIL (Ct. App. 1965)
4 + 198 A.2d 267, 234 Md. 145 LEVY V. SEVEN
SLADE, INC. (Ct. App. 1964)
1 + 182 A.2d 34, 229 Md. 142 REISKIN V. COUNTY
COUNCIL FOR MONTGOMERY CTY. (Ct. App.
1962)
1 + 172 A.2d 523, 226 Md. 204 CITIES SERV. OIL CO.
V. BOARD OF COUNTY COMM’RS OF (Ct. App.
1961)
1 + 151 A.2d 726, 220 Md. 263 KESELING V. MAYOR
OF BALTIMORE (Ct. App. 1959)
1 + 187 A.2d 708, 215 Md. 294 STATE HOUS., INC.
V. MAYOR OF BALTIMORE (Ct. App. 1958)
1 + 137 A.2d 198, 215 Md. 206 MARINO V. MAYOR
OF BALTIMORE (Ct. App. 1957)
1 + 126 A.2d 621, 211 Md. 172 HARDESTY V. BOARD
OF ZONING APPEALS OF BALTIMORE C (Ct. App.
1956)
1 + 123 A.2d 207, 210 Md. 199 MAYOR OF BALTI-
MORE V. SEABOLT (Ct. App. 1956)
1 + 114 A.2d 608, 207 Md. 424 HUTZLER V. MAYOR
OF BALTIMORE (Ct. App. 1955)
1 + 105 A.2d 482, 204 Md. 523 CITY OF BALTIMORE
V. COHN (Ct. App. 1954)
1 + 101 A.2d 826, 203 Md. 506 BENSEL V. MAYOR
OF BALTIMORE (Ct. App. 1954)
1 + 93 A.2d 74, 201 Md. 130 CARNEY V. CITY OF
BALTIMORE (Ct. App. 1952)
1 + 87 A.2d 589, 199 Md. 602 BRUNING BROS. V.
MAYOR OF BALTIMORE (Ct. App. 1952)
1 + 78 A.2d 765, 197 Md. 266 NUOVA REALTY CO.
V. MAYOR OF BALTIMORE (Ct. App. 1951)
eam
6la
1 + 75 A.2d 91, 196 Md. 77 FRANCIS V. MACGILL
(Ct. App. 1950)
1 + 60 A.2d 743, 191 Md. 171 NORTHWEST MER.-
CHANTS TERM., INC. V. O’ROURKE (Ct. App.
1948)
3 + 57 A.2d 346, 190 Md. 6 BENNER V. TRIBBITT
(Ct. App. 1948)
[For the following documents, see the pages listed:
— Judge Johnson’s Memorandum and Order of
Court, April 10, 1996 at 15a.
— Opinion (2d CSA), unreported, Filed April 14,
1997 at 24a.
— Opinion (1st CSA), unreported, Filed April 28,
1992 at la.
— Board of Appeals Decision re: Building Permit
Denied, Dec. 20, 1990 at 128a.]
LE eT OD
62a
APPENDIX F
IN THE
COURT OF APPEALS OF MARYLAND
Petition Docket No. 178
September Term, 1997
(No. 927, September Term 1996,
Court of Special Appeals)
MAENETTE B. SMITH et vir.
Vv.
MARYLAND NATIONAL CAPITAL
PARK AND PLANNING COMMISSION et al
ORDER
Upon consideration of the petition for a writ of cer-
tiorari to the Court of Special Appeals, and the answer
filed thereto in the above entitled case, it is
ORDERED, by the Court of Appeals of Maryland,
that the petition be and it is hereby, denied as there has
been no showing that review by certiorari is desirable
and in the public interest. :
/s/ Robert M. Bell
Chief Judge
Date: AUG 22 1997
63a
APPENDIX G
[ Filed October 15 1997]
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
September Term 1996
No. 927
MAENETTE B. SMITH. et vir
Appellants
VS.
MARYLAND NATIONAL CAPITAL
PARK & PLANNING COMMISSION, et al.
Appellees
PETITION for EXTRAORDINARY RELIEF
and
STATEMENT of GROUNDS and AUTHORITIES
Comes now the Appellants, Maenette B. Smith, et
vir, as tenants-by-entirety (referred to as the ‘Smiths) for
clarity because there are multiple cases referred to here-
in), by and through their attorney, Jess Joseph Smith,
Jr., and. pursuant to Maryland Rule 8-431, file this Peti-
tion for Extraordinary Relief and Statement of Grounds
and Authorities, and say:
JURISDICTION
1. This Court has jurisdiction of the instant matter.
and for the relief prayed, such jurisdiction being found in
the Maryland Constitution, Article IV. Section 1; the
Maryland Declaration of Rights, Article 5; the Annotated
Code of Maryland, Courts and Judicial Proceedings Art-
64a
icle, Section 1-501 and 12-308, the Common Law of the
State of Maryland; and the inherent power of the Courts
of Maryland. As the Court of Appeals said in Attorney
General of Maryland, et al. v. Waldron, 289 Md. 683,
691, 426 A.2d 929 (1981):
In order to accomplish the purposes for which
they are created, courts must also possess powers.
From time immemorial, certain powers have been
conceded to courts, because they are courts. Such
powers have been conceded, because without them
they could neither maintain their dignity, transact
their business, nor accomplish the purposes of their
existence. * * * “The inherent power of the court
is the power to protect itself; the power to admin-
ister justice. . . .; the power to promulgate rules for
its practice; and the power to provide process where
none exists. It is true that the judicial power of
this court was created by the Constitution, but,
upon coming into being under the Constitution, this
court came into being with inherent powers.”
[State v. Cannon, 196 Wis. 534, 221 N.W. 603,
603-04 (1928) (quoting In re Bruen, 102 Wash. 472,
~172 P. 1152 (1918).]
2. It is submitted that this Court clearly has continuing
jurisdiction over the cases it decides, for limited pur-
poses, as Judge Thieme of the Court of Special Appeals
observed with respect to the continuing jurisdiction of a
trial Court at footnote 1 in Pickett v. NOBA, Inc., 114
Md.App. 552, 691 A.2d 268 (1997):
1 This is a “final” judgment even though possibly
subject to revision on disposition of a post-judgment
motion because “[a] judgment is never final in the
absolute sense, since it is always subject to modifi-
cation under very restricted circumstances (such as
fraud, [or mistake], for example).” P. Niemeyer &
L. Schuett, Maryland Rules Commentary at 448.
65a
BACKGROUND of the CASE
3. The instant case relates to damages for the denial
of a building permit wherein a jury trial was prayed.
The instant case was originally before this Court after
dismissal by the trial Court. This Court reversed the trial
Court and remanded the case to the Circuit for further
proceedings consistent with this Court’s opinion, (lst
CSA), attached as Exhibit ‘A’. This Court found that
the issue of rezoning was an issue of disputed material
fact. The trial Court, on remand, then entered an Order
on April 10, 1996, on Cross-Motions for Summary Judg-
ment, attached as Exhibit ‘B’, granting the Motion for
Summary Judgment of the MNCPPC and denying the
Motion for Summary Judgment of the Smiths. Such
order was then appealed to the Court of Special Ap-
peals that rendred an opinion (2nd CSA), attached as
Exhibit ‘C’. A Petition for a Writ of Certiorari of the 2nd
CSA was denied by the Court of Appeals, attached as
Exhibit ‘D’.
4. In lst CSA, on the issues before the Court including
the issue of the propriety of the Smiths’ Motion for Sum-
mary Judgment, the CSA determined that the Smiths
properly pled a 42 U.S.C. 1983 claim and the case was
stayed pending the outcome of the administrative appeal
then pending. The administrative appeal case was deter-
mined and did not change the facts with respect to
whether or not there had been a rezoning of the subject
property in ’88 and ’90 but merely and arguably was a
determination on the law as applied to the facts. The
Ist CSA panel also found that the issue of “Whether a
‘rezoning’ has occurred is a disputed question of material
fact” (emphasis added — next to last sentence of the
opinion). The Court, lst CSA, then remanded the case
to the Circuit Court for proceedings consistent with its
opinion.
66a
5. When the Circuit Court entered its opinion on the
Cross-Motions for Summary Judgment, Exhibit ‘B’, the
Circuit Court assumed that the property had, as a matter
of fact, been rezoned notwithstanding the dictates of the
Ist CSA that the issue of rezoning the subject property
was a disputed question of material fact. As the Circuit
Court said at page 2, last sentence of the first paragraph:
“Lot 1-Marlborough House, on the other hand, was dual-
zoned at the time this action was instituted and is the
subject of the proceedings before the Court.” Further,
the Court, at page 5, last sentence, through page 6, said:
“Contrary to the Smiths’ representations regarding the
effect of the MNCPPC updating base maps the Court
finds that the agency did not cause Lot 1-Marlborough
House to be dual-zoned.” Likewise, the Circuit Court
made a finding of fact that the Smith’s property was
dual-zoned when it said on page 7, next to last sentence
of the first full paragraph, “The Smiths’ property was
dual-zoned and did not conform with certain of the
County’s plans and policies.” — All notwithstanding the
Ist CSA that stated that the question of rezoning was a
disputed question of fact.
6. On appeal of this Court’s decision, the 2nd CSA
rendered its opinion, Exhibit ‘C’, on Cross-Motions for
Summary Judgment. This 2nd CSA opinion, likewise,
assumes or finds that the subject property was not re-
zoned, that is, it was in dual zones as a matter of fact.
As the 2nd CSA said at page 2, first sentence of second
full paragraph and footnote 3, “Upon reviewing the
Smiths’ application, MNCPPC realized that a portion of
the Property was zoned R-80 and a portion was zoned
C-S-C” (in accord is footnote 3 at page 2). Likewise
at page 6, first sentence of the last paragraph, “Before
being updated by MNCPPC, the Property was zoned
both R-80 and C-S-C.”
67a
7. The Smiths concede that if the subject property
was dual zoned when they applied for a building permit
then they should have applied for a special exception or
a sectional map amendment. However. as the Court
in lst CSA found and said, the issue of rezoning was a
disputed material fact. Once you find or assume that
the factual issue that the property was not rezoned
by the MNCPPC, that is, that the rezoning of the prop-
erty was not an issue of material fact, then you are free
to say, and probably should say, that the Smiths should
have done what they did not do.
MISTAKE or IRREGULARITY
8. Herein are listed some of the mistakes or irregu-
larities the Smiths contend entitle them to have this
matter set aside, the Mandate recalled, and the other
relief requested. Some of the items listed may, argu-
ably, be of lesser import than others.
9. Different panels of the Court of Special Appeals,
both in unreported opinions, have made opposite and
conflicting decisions relating to Cross-Motions for Sum-
mary Judgment based on the same material facts:
Ist CSA — the issue of rezoning the subject property
is a disputed issue of material fact.
2nd CSA — the issue of rezoning the subject property is
not a disputed issue of material fact.
lst CSA — acknowledged and treated the case as brought
under 42 U.S.C. 1983.
2nd CSA — not acknowledged or treated the case as
brought under 42 U.S.C. 1983.
Ist CSA — stayed pending outcome of administrative
appeal. (administrative appeal decided favorably
to the Smiths)
68a
2nd CSA — administrative appeal relating to zoning of
the subject property did not entitle Smiths to
damages.
After lst CSA — jury trial not denied.
After 2nd CSA — jury trial denied by findings incon-
sistent with lst CSA findings relating to the same
material facts.
10. Since the time of the zoning maps in question, the
°88 and 90 zoning maps, there were no additional or
changed facts relating to those two particular zoning
maps (that were changed some 7-9 years ago) that were
material to the rezoning of the subject property. It is
submitted that if rezoning is a disputed question of mat-
erial fact for the 1st CSA then it is, likewise, a disputed
question of material fact for the 2nd CSA. It is respect-
fully submitted that the facts, or disputed issue of mat-
erial fact, apply equally to both parties.
11. The trial Court’s son, Judge Johnson’s son, was
being considered for a job with one of the parties, MNC-
PPC, while the case was pending before Judge Johnson.
Judge Johnson’s son was employed by the MNCPPC
shortly after the Judge’s written decision in this case
thereby creating the appearance of impropriety, see
attachments (letters to opposing counsel), Exhibits ‘E’
and ‘F’. This is clearly a violation of the Canons of
Judicial Ethics, Canon 2, “A judge should behave with
propriety and should avoid even the appearance of
impropriety” (emphasis added). See also, Maryland
Constitution, Article IV, Section 7, and cases cited in
the Annotated Code.
12. The trial Court lacked jurisdiction and exceeded
its authority when it did not follow the dictates of the
lst CSA when the Court found that the subject property
69a
had been dual zoned when the Smiths applied for a build-
ing permit, clearly contrary to the finding in the lst CSA.
The trial Court, it is submitted, lacked jurisdiction to
make such a finding since the Court in the lst CSA had
already made a contrary finding and directed the trial
Court to proceed consistent with the lst CSA opinion.
It is submitted that such a jurisdictional error is clearly
grounds for this Court to exercise revisory power. Ellis
v. Ellis, 19 Md.App. 361, 311 A.2d 428 (1973), Johnston
v. Johnston, 297 Md. 48, 465 A.2d 436 (1983). Where
the trial Court does not follow the mandate, it effects
subject matter jurisdiction, McNeil v. State, 112 Md.App.
434, 685 A.2d 839 (1996), See also, Klopfer v. Wer-
ber, 264 Md. 419, 286 A.2d 776 (1972). Here the man-
date of the lst CSA stated: “Case remanded to the circuit
court for proceedings consistent with this opinion”. Of
course, Maryland Rule 8-606 provides that the lower
court shall proceed in accordance with its terms. For
the purpose of this argument, it is submitted that Judge
Johnson lacked subject matter jurisdiction (there was an
intervening administrative appeal on the issue of the
changes to the zoning map that was, arguably, res judt-
cata) to make the finding that he did on the disputed
issue of material fact relating to the rezoning of the sub-
ject property.
DUE DILIGENCE
13. This matter has not been submitted to the Courts
previously or to whatever body handles complaints
against Judges (although the undersigned counsel admit-
tedly should know what body), because Counsel for the
Smiths did not want to embarrass the trial Judge by
bringing up the Judge’s clear appearance of impropriety
and it was counsel’s experience that judicial errors at the
70a
trial level are corrected on appeal. While this case was
pending before the trial Judge, the Judge’s son was being
considered for a job with the MNCPPC, a party to this
litigation. While this case was pending before the trial
Judge, the Judge’s son was, in fact, employed by the
MNCPPC, that is, while the case was still pending before
the trial Judge after the written decision and including
that period of time from the date of the written deci-
sion until the case had been appealed. For all that is
known to the undersigned counsel, the Judge may have
had (counsel hope’s that this is not the case) a direct
financial interest in the employment of his son by the
MNCPPC. In any event, it is respectfully submitted that
the Judge’s son being hired or employed by one of the
parties while the case is pending before the Judge clearly
gives an appearance of impropriety.
14. Further, the undersigned counsel was an experi-
ienced appellate lawyer having handled more than twen-
ty-one (21) reported Maryland appellate decisions,
Exhibit ‘G’ attached and incorporated herein, plus a
large number of unreported decisions (including three
of which were involved in the instant land use case plus
one U.S. Court of Appeals appellate case, 981 F.2d 1326
[1993]). It is submitted that an experienced appellate
lawyer is entitled to rely on the Maryland Court of
Special Appeals to render consistent opinions based
on the same facts. It is further submitted that an exper-
ienced appellate lawyer is entitled to rely on the appellate
courts to correct any errors. It has been the experience
of the undersigned counsel that this is the first case he
has seen, heard of, or been involved in where two differ-
ent panels of the Court of Special Appeals have ren-
dered two opposite and conflicting opinions on a single
and vitally important issue, the issue of whether or not
7la
there had been a rezoning of the subject property (the
key finding in the whole case), where there has been no
change of material fact. Kindly note that counsel is not
here arguing the merits of the factual or law determina-
tion of the trial or appellate Courts. The conduct of the
Court of Special Appeals in 1st CSA and 2nd CSA do not
conform to what the undersigned lawyer has experienced
before this Court. These opposite and conflicting opin-
ions are clearly the type of mistake or irregularity, one
out of the ordinary and not in conformity with Court
practice, to which this Court has inherent revisory power
and to which Maryland Rule 2-535 is directed thereby
permitting the Circuit Court to reconsider its decision
(affirmance, reversal, or recusal). It is respectfully sub-
mitted that the Court of Special Appeals-and the Circuit
Court have the inherent power as well as that power con-
ferred in Art. IV, Section 1, of the Maryland Constitution
to grant the relief requested. It is further respectfully
submitted that this case is clearly not in conformity with
the usually consistent opinions from the Court of Special
Appeals. There is a long line of cases that say that
‘irregularity’ means “the doing or not doing of that. in
the conduct of a suit at law, which, conformable with the
practice of the Court, ought or ought not to be done.”
Bowen v. Rohnacher, etc., et al., 15 Md.App. 280, 285,
290 A.2d 560 (1972). See also, Mutual Benefit Society
of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d
868 (1970). It is submitted that it is the irregularity of
the two opposing opinions on the same issue from the
Court of Special Appeals, that are not in conformity with
the usual practice of the Court of Special Appeals —
clearly that type of irregularity that requires that the
2nd CSA opinion ‘ought’ to be changed.
72a
15. Kindly note that this matter is brought to the
attention of the Court within two months of being noti-
fied by the Court of Appeals that Cert. was Denied,
Exhibit “D’. This case is uniquely simple notwithstanding
all the papers filed herein -- did the MNCPPC change the
zoning map of the subject property without notice or
hearing?
16.In the final analysis, there is no harm in setting
aside the order entered by this Court other than the
expenditure of taxpayer (all parties other than the Smiths
are governmental entities) and the Smiths’ money (not an
inconsiderable amount) and time. Further, justice and
the appearance of justice will be better served by per-
mitting the trial Judge to consider this matter. Further.
this is an unreported opinion and, thus, pertains only to
the litigants here. Further, as stated previously, this is
really a very simple matter, that is, whether the MNCPPC
changed the zoning map without notice or hearing. not-
withstanding all of the papers filed by both parties that
have the effect of distracting the Court’s necessary focus
upon the only really important issue of the case (of
course, there are other important issues and the Smiths
are not waiving or conceding them by any position
stated herein.)
CONCLUSION
17. It is submitted that the Smiths have shown suf-
ficient mistake or irregularity, good faith, and due dili-
gence, to enable this Court to grant the relief requested
and that it is in the interest of the litigants and the
judicial system of Maryland to permit the trial Judge to
have the opportunity to consider this matter since it may
reflect adversely on the integrity of the judicial system.
It is respectfully requested that this Court look favorably
a
ee eee eee
73a
sé
on this Petition using its discretion “. . . liberally lest
technicality triumph over justice.” Eschelman v. Schef-
tel, 231 Md. 300, 301, 189 A.2d 818 (1963).
18. Attached hereto is a copy of the Plaintiffs’ Motion
to Set Aside Order, Recusal of the trial Judge, and
Motion to Stay Consideration filed concurrently with the
Circuit Court for Prince George’s County, Maryland. The
Exhibits there are identical to the Exhibits in this Peti-
tion and are not included as part of the copy of the Cir-
cuit Court Motion to conserve paper.
WHEREFORE, Your Petitioners pray:
1. That this Court recall its Mandate issued May 14,
1997.
2. That this Court set aside or vacate its Opinion filed
in this matter on April 14, 1997.
3. That this Court remand this case to the Circuit
Court for Prince George’s County, Maryland, for that
Court’s consideration of the Motion to Set Aside Order,
etc.. filed in those proceedings.
4. That the Circuit Court be directed to proceed con-
sistent with the Unreported Opinion in this matter, No.
1430, September Term, 1991, filed on Apmil 28. 1992,
in these proceedings.
74a
5. And for such other and further relief as the Court
may deem just and proper.
/s/ Jess Joseph Smith, Jr.
Jess Joseph Smith, Jr.
Counsel for Appellants
P.O. Box 1995
Upper Marlboro, MD 20773-1995
(301) 627-8200
[Certificate of Service Omitted In Printing]
[For the following documents see these listed pages:
— Opinion, (lst CSA), unreported, Filed Apmil 28,
1992 at la.
— Judge Johnson’s Memorandum and Order of
Court, April 10, 1996 at 15a.
— Opinion, (2d CSA), unreported, Filed Apnil 14,
1997 at 24a.
— Denial of Certiorari, Aug. 22, 1997 at 62a.]
1
:
i
[EXHIBIT ‘E’]
Law Office of
Jess Joseph Smith, Jr.
14518 Church Street
P.O. Box 1995
Upper Marlboro, MD 20773-1995
301.627.8200 — FAX 301.627.0396 — jj@jjs.com
April 11, 1996
Via FAX 952-3444 and mail:
Isaac Marks. Esq.
Associate General Counsel
MNCPPC, Room 4120, CAB
14741 Governor Oden Bowie Drive
Upper Marlboro, Maryland 20772
Re: Smith, et vir. v. MNCPPC, et al.
CAE 89-24602
Dear Mr. Marks:
You called me later yesterday afternoon to indicate to
me that Judge Johnson’s son had applied for a job as a
lawyer at the MNCPPC and that he was the best qualified
for the position.
You asked if I had any objection.
It would appear to me to be inappropnate for a litigat-
ing party to employ a judge’s son while there is a pending
case of one of the litigating parties before the judge —
just as I would consider it inappropriate for me to em-
plov the judge’s son.
It was my impression from talking to you that you
would convey my concerns to the judge’s son. Of course,
76a
I would likewise consider it inappropriate for you to con-
vey to the judge’s son my position on this matter inas-
much as it could prejudice the judge’s consideration of
this case since it would unquestionably get back to the
judge.
My experience over approximately 25 years is that
when a local attorney has a personal matter before the
local court that the case is set specially before an out of
county judge as it was before Judge Bowling retired. This
would seem a better solution and if you would consent
to doing that, I will prepare a request that the matter be
set down specially before an out of county judge. That
way there would clearly be not compromise of anyone’s
position and Judge Johnson’s son would have the job you
seemed to be saying that you were offering him but for
my Opposition.
If you have any questions in this regard, please do not
hesitate to contact me.
Respectfully,
/s/ Jess Joseph Smith, Jr.
Jess Joseph Smith, Jr.
JJS:db
cc: Enic S. Slatkin, Esq.
he! - ae,
ss ay 5 a . “
EERE
;
7a
(EXHIBIT F]
THE MARYLAND-NATIONAL CAPITAL
PARK AND PLANNING COMMISSION
14741 Governor Oden Bowie Drive
Upper Marlboro, Maryland 20772
TDD: [301] 952-3796
Legal Department
(301) 952-4501
(301) 952-3444 Facsimile
April 12, 1996
VIA FACSIMILE AND FIRST CLASS MAIL
Eric Slatkin, Esquire
Suite 202
15304 Spencerville Court
P.O. Box 660
Burtonsville, Maryland 20866
Jess Joseph Smith, Jr., Esq.
14158 Church Street
P.O. Box 1995
Upper Marlboro, Maryland 20773-1995
RE: Smith, et vir. v. M-NCPPC, et al.,
CAE-89-24602
Dear Messrs. Slatkin and Smith.
I am in receipt of the letter. dated April 11, 1996, from
J.J. Smith following my April 10 telephone call to both
of you regarding the Commission’s receipt of a resume’
from George Johnson. As you know, George Johnson is
the son of Judge Johnson. This matter now appears to
be moot in light of the court’s decision of April 10.
78a
I would like to clarify, however, that at the time of my
call. the Commission had not interviewed Judge John-
son’s son and had not contemplated doing so prior to
April 10. Further, the Commission has not spoken with
Judge Johnson’s son regarding this case nor does it plan
to do so.
With respect to Mr. Smith’s request to assign the case
to an out-of-county judge, again, I think such a request
is now moot. In any event, however the Commission
would object to same.
Please contact me if you have any questions regarding
this matter.
Sincerely,
/s/ Isaac H. Marks
Isaac H. Marks
Associate General Counsel
[EXHIBIT ‘G’]
2 + 633 A.2d 855, 333 Md. 3 MARYLAND-NATIONAL
CAPITAL PARK & PLANNING COMM’N V. (Ct.
App. 1993)
1 + 511 A.2d 527, 68 Md. App. 242 RYPMA V. STEHR
(Ct. Sp. App. 1986)
1 + 405 A.2d 301, 43 Md. App. 302 BURROUGHS V.
GARNER (Ct. Sp. App. 1979)
1 + 403 A.2d 1277, 43 Md. App. 99 LADY V. PRINCE
GEORGE’S COUNTY (Ct. Sp. App. 1979)
1 + 365 A.2d 343, 33 Md. App. 644 PRINCE GEORGE’S
COUNTY V. BAHRAMI (Ct. Sp. App. 1976)
2 + 360 A.2d 6, 32 Md. App. 256 ENTZIAN V. PRINCE
GEORGE’S COUNTY (Ct. Sp. App. 1976)
1 + 358 A.2d 258, 31 Md. App. 704 BUSADA V. RAN-
SOM MOTORS, INC. (Ct. Sp. App. 1976)
1 + 344 A.2d 171, 28 Md. App. 64 BADEN V. CASTLE
(Ct. Sp. App. 1975)
1 + 314 A.2d 118, 271 Md. 82 RADIO COMMUNICA-
TIONS, INC. V. PUBLIC SERV. COMM’N (Ct. App.
1974)
1 + 310 A.2d 205, 19 Md. App. 143 PASSMORE V.
HARRISON (Ct. Sp. App. 1973)
1 + 297 A.2d 683, 267 Md. 338 PRINCE GEORGE’S
CTY. V. M & B CONSTR. CORP. (Ct. App. 1972)
1 + 289 A.2d 581, 265 Md. 401 PRINCE GEORGE’S
CTY. V. ARUNDEL SUPPLY CORP. (Ct. App. 1972)
1 + 289 A.2d 585, 265 Md. 371 ARUNDEL SUPPLY
CORP. V. CASON (Ct. App. 1972)
1 + 287 A.2d 286, 264 Md. 562 BARRANCA V. PRINCE
GEORGE’S COUNTY (Ct. App. 1972)
1 + 285 A.2d 649, 264 Md. 148 PRINCE GEORGE’S
CTY. V. MEININGER (Ct. App. 1972)
80a
1 + 284 A.2d 203, 263 Md. 655 PRINCE GEORGE’S
COUNTY V. BLUE BIRD CAB CO. (Ct. App. 1971)
1 + 284 A.2d 5, 263 Md. 560 WAGNER V. BOARD OF
COUNTY COMM’RS FOR PRINCE GEORG (Ct. App.
1971)
1 + 284 A.2d 261, 13 Md. App. 497 MURPHY V.
BOARD OF COUNTY COMM’RS (Ct. Sp. App. 1971)
1 + 282 A.2d 491, 263 Md. 217 PRINCE GEORGE’S
COUNTY COUNCIL V. PRETWICK, INC. (Ct. App.
1971)
1 + 280 A.2d 901, 263 Md. 1 MONTGOMERY V.
BOARD OF COUNTY COMM’RS FOR PRINCE G
(Ct. App. 1971)
1 + 276 A.2d 661, 261 Md. 699 CASON V. BOARD OF
COUNTY COMM’RS FOR PRINCE GEORGE (Ct.
App. 1971)
RR TNE ROO ee IN ea a Ce
8la
IN THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY, MARYLAND
CAE 89-24602
MAENETTE B. SMITH, et vir
Plaintiffs
VS.
MARYLAND NATIONAL CAPITAL
PARK & PLANNING COMMISSION, et al.
Defendants
PLAINTIFFS’ MOTION to SET ASIDE ORDER,
RECUSAL of the TRIAL JUDGE,
STATEMENT of GROUNDS and AUTHORITIES
and
MOTION to STAY CONSIDERATION
Comes now the Plaintiffs, Maenette B. Smith, et vir,
as tenants-by-entirety (referred to as the ‘Smiths’ for
clarity because there are multiple cases referred to
herein), by and through their attorney, Jess Joseph
Smith, Jr., and, pursuant to Maryland Rules 2-535, and
2-311, and file this Motion to Set Aside Order State-
ment of Points and Authorities, and Motion to Stay
Consideration, and say:
JURISDICTION
1. This court has jurisdiction of the instant matter and
for the relief prayed, such jurisdiction being found in the
Maryland Constitution, Article IV, Section 1; the Mary-
land Declaration of Rights, Article 5; the Annotated
Code of Maryland, Courts and Judicial Proceedings Art-
icle, Sections 1-501; the Common Law of the State of
82a
Maryland; and the inherent power of the Courts of Mary-
land; and including Maryland Rule 2-535. As the Court
of Appeals said in Attorney General of Maryland, et
al. v. Waldron, 289 Md. 683, 691, 426 A.2d 929 (1981):
In order to accomplish the purposes for which
they are created, courts must also possess powers.
From time immemorial, certain powers have been
conceded to courts, because they are courts. Such
powers have been conceded, because without them
they could neither maintain their dignity, transact
their business, nor accomplish the purposes of their
existence. * * * “The inherent power of the court
is the power to protect itself; the power to admin-
ister justice . . . .; the power to promulgate rules for
its practice; and the power to provide process
where none exists. It is true that the judicial power
of this court was created by the Constitution, but.
upon coming into being under the Constitution, this
court came into being with inherent powers.”
[State v. Cannon, 196 Wis. 534, 221 N.W. 603,
603-04 (1928) (quoting In re Bruen, 102 Wash.
472.172 P. 1152 (1918).]
2. It is submitted that this Court clearly has continuing
jurisdiction over the cases it decides, for limited purposes,
as Judge Thieme of the Court of Special Appeals ob-
served with respect to the continuing jurisdiction of a
trial Court at footnote 1 in Pickett v. NOBA, Inc., 114
Md.App. 552, 691 A.2d 268 (1997):
1 This is a “final” judgment even though possibly
subject to revision on disposition of a post-judgment
motion because “[a] judgment is never final in the
absolute sense, since it is always subject to modifica-
tion under very restricted circumstances (such as
fraud, [or mistake], for example).” P. Niemeyer &
L. Schuett, Maryland Rules Commentary at 448.
83a
BACKGROUND of the CASE
3. The instant case relates to damages for the denial of
a building permit wherein a jury trial was prayed. The
instant case was originally before this Court on remand
from the Court of Special Appeals in an opinion (lst
CSA), attached as Exhibit ‘A’. This Court then entered
an Order on April 10, 1996. on Cross-Motions for Sum-
mary Judgment, attached as Exhibit ‘B’. Such order was
then appealed to the Court of Special Appeals that ren-
dered an opinion (2nd CSA), attached as Exhibit ‘C’.
A Petition for a Writ of Certiorari of the 2nd CSA was
denied by the Court of Appeals, attached as Exhibit
‘D’.
4. In lst CSA, on the issues before the Court includ-
ing the issue of the propriety of the Smiths’ Motion for
Summary Judgment, the CSA determined that the Smiths
properly pled a 42 U.S.C. 1983 claim and the case was
stayed pending the outcome of the administrative appeal
then pending. The administrative appeal case was deter-
mined and did not change the facts with respect to
whether or not there had been a rezoning of the subject
property in ’88 and ’90 (the zoning maps in question)
but merely and arguably was a determination on the law
as applied to the facts. The lst CSA panel also found
that the issue of “Whether a ‘rezoning’ has occurred is a
disputed question of material fact” (emphasis added —
next to last sentence of the opinion). The Court. lst
CSA, then remanded the case to the Circuit Court for
proceedings consistent with its opinion.
5. When this Court entered its opinion on the Cross-
Motions for Summary Judgment, Exhibit ‘B’, this Court
assumed that the property had, as a matter of fact, been
rezoned notwithstanding the dictates of the lst CSA
that the issue of rezoning the subject property was a
84a
disputed question of material fact, as this Court said at
page 2, last sentence of the first paragraph: ‘“‘Lot 1-
Marlborough House, on the other hand, was dual-zoned
at the time this action was instituted and is the subject
of the proceedings before the Court.” Further, the
Court, at page 5, last sentence, through page 6, said:
“Contrary to the Smiths’ representations regarding the
effect of the M-NCPPC updating base maps, the Court
finds that the agency did not cause Lot 1-Marlborough
House to be dual-zoned.” Likewise, this Court made a
finding of fact that the Smith’s property was dual-zoned
when it said on page 7, next to last sentence of the first
full paragraph, “The Smiths’ property was dual-zoned
and did not conform with certain of the County’s plans
and policies.” — All notwithstanding Ist CSA that
stated that the question of rezoning was a disputed
question of fact.
6. On appeal of this Court’s decision, the 2nd CSA
rendered its opinion, Exhibit ‘C’, on Cross-Motions for
Summary Judgment. This 2nd CSA opinion, likewise,
assumes or finds that the subject property was not
rezoned, that is, it was in dual zones as a matter of fact.
As the 2nd CSA said at page 2, first sentence of second
full paragraph and footnote 3, “Upon reviewing the
Smiths’ application, MNCPPC realized that a portion of
the Property was zoned R-80 and a portion was zoned
C-S-C”’ (in accord is footnote 3 at page 2). Likewise at
page 6, first sentence of the last paragraph, “Before being
updated by MNCPPC, the Property was zoned both
R-80 and C-S-C.”
7. The Smiths concede that if the subject property was
dual zoned when they applied for a building permit they
should have applied for a special exception or a sectional
map amendment. However, as the Court in lst CSA
85a
found and said, the issue of rezoning was a disputed
material fact. Once you find or assume that the factual
issue that the property was not rezoned by the MNCPPC,
that is, that the rezoning of the property was not an issue
of material fact, then you are free to say, and probably
should say, that the Smiths should have done what they
did not do.
MISTAKE OR IRREGULARITY
8. Herein are listed some of the mistakes or irregulari-
ties the your Movants contend entitle them to have this
matter set aside and the other relief requested. Some of
the items listed may, arguably, be of lesser import than
others.
9. Different panels of the Court of Special Appeals,
both in unreported opinions, have made Opposite and
conflicting decisions relating to Cross-Motions for Sum-
mary Judgment based on the same material facts:
Ist CSA — the issue of rezoning the subject property is a
disputed issue of material fact.
2nd CSA —the issue of rezoning the subject property is
not a disputed issue of material fact.
Ist CSA — acknowledged and treated the case as brought
under 42 U.S.C. 1983.
2nd CSA —not acknowledged or treated the case as
brought under 42 U.S.C. 1983.
Ist CSA — stayed pending outcome of administrative
appeal. (administrative appeal decided favor-
ably to the Smiths)
2nd CSA —administrative appeal relating to zoning of
the subject property did not entitle Smiths to
damages.
86a
After lst CSA — jury trial not denied.
After 2nd CSA — jury trial denied by findings inconsis-
tent with lst CSA findings relating to the
same material facts. :
10. Since the time of the zoning maps in question, the
’°88 and ’90 zoning maps, there were no additional or
changed facts relating to those two particular zoning
maps (that were changed some 7-9 years ago) that were
material to the rezoning of the subject property. It is sub-
mitted that if rezoning is a disputed question of material
fact for the lst CSA then it is, likewise, a disputed ques-
tion of material fact for the 2nd CSA. It is respectfully
submitted that the facts, or disputed issue of material
fact, apply equally to both parties.
11. The trial Court’s son, Judge Johnson’s son, was
being considered for a job with one of the parties,
MNCPPC, while the case was pending before Judge John-
son. Judge Johnson’s son was employed by the MNCPPC
shortly after the Judge’s written decision in this case
thereby creating the appearance of impropriety, see
attachments (letters to opposing counsel), Exhibits =
and ‘F’. This is clearly a violation of the Canons of Judi-
cial Ethics, Canon 2, “A judge should behave with pro-
priety and should avoid even the appearance of impro-
priety” (emphasis added).
12. The trial Court lacked jurisdiction and exceeded
its authority when it did not follow the dictates of the
lst CSA when the Court found that the subject property
had been dual zoned when the Smiths applied for a build-
ing permit, clearly contrary to the finding in the 1st CSA.
The trial Court, it is submitted, lacked jurisdiction to
make such a finding since the Court in the lst CSA had
already made a contrary finding and directed the trial
87a
Court to proceed consistent with the 1st CSA opinion.
It is submitted that such a jurisdictional error is clearly
grounds for this Court to exercise revisory power. Ellis v.
Ellis, 19 Md.App. 361, 311 A.2d 428 (1973), Johnston v.
Johnston, 297 Md. 48, 465 A.2d 436 (1983). Where the
trial Court does not follow the mandate, it effects sub-
ject matter jurisdiction, McNeil v. State, 112 Md.App.
434, 685 A.2d 839 (1996). See also, Klopfer v. Werber,
264 Md. 419, 286 A.2d 776 (1972). Here the mandate
of the lst CSA stated: “Case remanded to the circuit
court for proceedings consistent with this opinion”. Of
course, Maryland Rule 8-606 provides that the lower
court shall proceed in accordance with its terms. For the
purpose of this argument, it is submitted that Judge
Johnson lacked subject matter jurisdiction (there was an
intervening administrative appeal on the issue of the
changes to the zoning map that was, arguably, res judt-
cata) to make the finding that he did on the disputed
issue of material fact relating to the rezoning of the
subject property.
DUE DILIGENCE
13. This matter has not been submitted to the Courts
previously or to whatever body handles complaints
against Judges (although the undersigned counsel admit-
tedly should know what body), because Counsel for the
Smiths did not want to embarrass the trial Judge by
bringing up the Judge’s clear appearance of impropriety
and it was counsel’s experience that judicial errors at the
trial level are corrected on appeal. While this case was
pending before the trial Judge, the Judge’s son was being
considered for a job with the MNCPPC, a party to this
litigation. While this case was pending before the trial
Judge, the Judge’s son was, in fact, employed by the
MNCPPC, that is, while the case was still pending before
88a
the trial Judge after the written decision and including
that period of time from the date of the written decision
until the case had been appealed. For all that is known to
the undersigned counsel, the Judge may have had (coun-
sel hope’s that this is not the case) a direct financial
interest in the employment of his son by the MNCPPC.
In any event, it is respectfully submitted that the Judge’s
son being hired or employed by one of the parties while
the case is pending before the Judge clearly gives an
appearance of impropriety.
14. Further, the undersigned counsel was an experi-
enced appellate lawyer having handled more than twenty-
one (21) reported Maryland appellate decisions, Exhibit
‘G’ attached and incorporated herein, plus a large number
of unreported decisions (including three of which were
involved in the instant land use case plus one U.S. Court
of Appeals appellate case, 981 F.2d 1326 [1993]). It is
submitted that an experienced appellate lawyer is entitled
to rely on the Maryland Court of Special Appeals to
render consistent opinions based on the same facts. It is
further submitted that an experienced appellate lawyer is
entitled to rely on the appellate courts to correct any
errors. It has been the experience of the undersigned
counsel that this is the first case he has seen, heard of, or
been involved in where two different panels of the Court
of Special Appeals have rendered two opposite and con-
flicting opinions on a single and vitally important issue
(the issue of whether or not there had been a rezoning of
the subject property (the key finding in the whole case),
where there has been no change of material fact. Kindly
note that counsel is not here arguing the merits of the
factual or law determination of the trial or appellate
courts. The conduct of the Court of Special Appeals in
lst CSA and 2nd CSA do not conform to what the under-
89a
signed lawyer has experienced before this Court. These
opposite and conflicting opinions are clearly the type of
mistake or irregularity, one out of the ordinary that is
not in conformity with court practice, to which this
Court has inherent revisory power and to which Maryland
Rule 2-535 is directed. thereby permitting the Circuit
Court to reconsider its decision (affirmance, reversal, or
recusal). It is respectfully submitted that the Court of
Special Appeals and the Circuit Court have the inherent
power as well as that power conferred in Art. IV, Section
1, of the Maryland Constitution to grant the relief
requested. It is further respectfully submitted that this
case is clearly not in conformity with the usually consis-
tent opinions from the Court of Special Appeals. There is
a long line of cases that say that ‘irregularity’ means “the
doing or not doing of that, in the conduct of a suit at
law, which, conformable with the practice of the court,
ought or ought not to be done.” Bowen v. Rohnacher,
etc., et al., 15 Md.App. 280, 285, 290 A.2d 560 (1972).
See also, Mutual Benefit Society of Baltimore, Inc. v.
Haywood, 257 Md. 538, 263 A.2d 868 (1970). It is sub-
mitted that it is the irregularity of the two opposing opin-
ions on the same issue from the Court of Special Appeals,
that are not in conformity with the usual practice of the
Court of Special Appeals — clearly that type of irregu-
larity that requires that the 2nd CSA opinion ‘ought’ to
be changed.
15. Kindly note that this matter is brought to the
attention of the Court within two months of being noti-
fied by the Court of Appeals that Cert. was Denied, Ex-
hibit ‘D’. This case is uniquely simple notwithstanding
all the papers filed herein — did the MNCPPC change the
zoning map of the subject property without notice or
hearing?
90a
16. In the final analysis, there is no harm in setting
aside the order entered by this Court other than the
expenditure of taxpayer (all parties other than the Smiths
are governmental entities) and the Smiths’ money (not an
inconsiderable amount) and time. Further, justice and the
appearance of justice will be better served by permitting
the trial Judge to consider this matter. Further, this is an
unreported opinion and, thus, pertains only to the liti-
gants here. Further, as stated previously, this is really a
very simple matter, that is, whether the MNCPPC
changed the zoning map without notice or hearing, not-
withstanding all of the papers filed by both parties that
have the effect of distracting the Court’s necessary focus
upon the only really important issue of the case (of
course, there are other important issues and the Smiths
are not waiving or conceding them by any position stated
herein.)
CONCLUSION
17. It is submitted that the Smiths have shown suffi-
cient mistake or irregularity, good faith, and due dili-
gence, to enable this Court to grant the relief requested
and that it is in the interest of the litigants and the judi-
cial system of Maryland to permit the trial Judge to have
the opportunity to consider this matter since it may
reflect adversely on the integrity of the judicial system.
It is respectfully requested that this Court look favorably
on this Petition using its discretion “. . . liberally lest
technicality triumph over justice.” Eschelman v. Scheftel,
931 Md. 300, 301, 189 A.2d 818 (1963).
18. Attached hereto is a copy of the Petition for
Extraordinary Relief filed concurrently with the Court
of Special Appeals. The Exhibits there are identical to the
Exhibits in this Motion and are not included as part of
:
:
9la
the copy of the Court of Special Appeals Petition to con-
serve paper.
19. It is respectfully requested that this Plaintiffs’
Motion to Set Aside Order, Recusal of the Trial Judge,
and Motion to Stay Consideration be stayed pending the
Court of Special Appeals consideration of the Petition for
Extraordinary Relief filed in that Court.
WHEREFORE, Your Petitioners pray:
1. That this Court Reconsider its Order dated April
10, 1996.
2. That this Court set aside or strike its Order dated
April 10, 1996.
3. That this Court recuse himself from further pro-
ceedings in this case.
4. That this case be set down before an out of County
Judge in the same Judicial Circuit.
5. That the decision of this Court be stayed pending
the Court of Special Appeals review of the Petition for
Extraordinary Relief filed herewith.
6. And for such other and further relief as the Court
may deem just and proper.
/s/ Jess Joseph Smith, Jr.
Jess Joseph Smith
Counsel for Plaintiffs
P.O. Box 1995
14518 Church Street
Upper Marlboro, MD 20773-1995
(301) 627-8200
[Certificate Of Service Omitted In Printing]
92a
APPENDIX H
[SEAL]
COURT OF SPECIAL APPEALS
COURT OF APPEAL BUILDING
ANNAPOLIS, MD. 21401-1899
(410) 974-3646
WASHINGTON AREA (301) 261-2920
LESLIE D. GRADET KATHARINE M. KNIGHT
CLERK CHIEF DEPUTY
November 12, 1997
Jess Joseph Smith, Jr., Esquire
P.O. Box 1995
Upper Marlboro, Maryland 20773-1995
Re: Maenette B. Smith et vir vs. Maryland-
National Capital Park and Planning
Commission et al.
No. 927, September Term, 1996
Dear Mr. Smith:
On November 10, 1997, Appellants’ Petition for
Extraordinary Relief was denied by Chief Judge Murphy.
Very truly yours,
/s/ Leslie D. Gradet
Leslie D. Gradet
LDG:ls Clerk
cc: J. Michael Dougherty, Jr., Esq.
Isaac H. Marks, Esquire
i
;
t
t
=
.
*
ja RGAE PO te IIIS SO AEA NTN REC NG RD ER
ee tt aan t
93a
APPENDIX I
EXCERPTS FROM BRIEF OF APPELLANTS.
Court of Special Appeals,
No. 927, Sept. Term, 1996
[ Filed Sept. 23, 1996]
* * x*
QUESTIONS PRESENTED
WHETHER OR NOT THE TRIAL COURT ERRED
IN FINDING THAT THE PRIOR FINAL ADJUDI-
CATION OF THE SUBDIVISION OF THE SUB.-
JECT PROPERTY AND THE FINAL DECISION
OF THE ADMINISTRATIVE APPEAL CASE
RELATING TO THE BUILDING PERMIT DENIAL
OF THE INSTANT CASE WERE NOT RES JUDI-
CATA AS TO THE MATERIAL ISSUES ON LIA-
BILITY IN THE INSTANT CASE?
WHETHER OR NOT THE TRIAL COURT ERRED
IN GRANTING THE CROSS-MOTION FOR SUM.-
MARY JUDGMENT FILED BY THE MNCPPC?
. WHETHER OR NOT THE TRIAL COURT ERRED
IN DENYING THE APPELLANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT?
. WHETHER OR NOT THE TRIAL COURT ERRED
IN FINDING THAT A PROPERTY OWNER MUST
BE DEPRIVED OF ALL BENEFICIAL USE OF
HIS PROPERTY FOR A LOCAL GOVERNMENT
TO BE LIABLE UNDER 42 U.S.C. 1983?
WHETHER OR NOT THE DENIAL OR DEIaY
OF A BUILDING PERMIT FOR A PERIOD OF
TIME OR APPROXIMATELY FIVE (5) YEARS
94a
WAS A GOVERNMENTAL TAKING OF PROP-
ERTY, A DENIAL OF PROCEDURAL DUE PRO-
CESS, OR A DEPRIVATION OF ANY RIGHTS,
PRIVILEGES, OR IMMUNITIES SECURED BY
THE CONSTITUTION AND LAWS AND DOES
NOT CREATE LIABILITY UNDER 42 U.S.C.
1983?
VI. WHETHER OR NOT A LOCAL GOVERNMENT’S
CHANGING THE ZONING MAP OF A LAND-
OWNER’S PROPERTY WITHOUT NOTICE OR
HEARING, WHEN SUCH NOTICE AND HEARING
IS REQUIRED BY LAW TO CHANGE ANY ZON-
ING MAP, AND THE LOCAL GOVERNMENT’S
SUBSEQUENT RELIANCE ON THE CHANGED
ZONING MAP TO DENY A BUILDING PERMIT
TO THE PROPERTY OWNER DOES NOT CRE-
ATE LIABILITY UNDER 42 U.S.C. 1983?
VII. WHETHER OR NOT THE TRIAL COURT ERRED
IN DISMISSING, WITHOUT REASON, PRINCE
GEORGE’S COUNTY AS A PARTY?
STATEMENT OF FACTS!
RELATED CASES
1. In addition to the instant case, there have been
other cases relating to the development of the sub-
ject property, known as the ‘Marlborough House’.
The first case between the parties related to the
1Throughout this brief, references are make to the exhibits
and transcript of proceedings before the Board of Appeals for
Prince George’s County, Maryland, that were under oath, a public
record (C&J §10-204), and filed in this case with the Affidavit of
Lois G. Burch (E.377) as part of paper #58. In most cases, only
the pertinent portions of these exhibits and transcript of those
proceedings have been reproduced. In some Cases, plats have been
reduced in size.
95a
denial of the subdivision of the property by the
Maryland National Capital Park & Planning Com-
mission (MNCPPC), referred to as the ‘subdivision
case’ and the “86 case.? That case was resolved fav-
orably to the Plaintiffs (Appellants here) in Mae-
nette B. Smith, et vir v. Maryland National Capital
Park & Planning Commission, CAL 86-12679, in the
Circuit Court for Prince George’s County, Maryland.
The Order and approved subdivision plats are at
E.97-99, 279-281. The final subdivision plats were
approved by the MNCPPC on 4/16/87 for ‘Content’
and on 2/18/88 for ‘Marlborough House’ which was
recorded among the Land Records of Prince George’s
County, Maryland, at Liber NLP 137, Plat 54°. The
Court Order in the subdivision case expressly ap-
proved the Subdivision Plat No. 4-86100, ‘Lot One,
Marlborough House’ with the notation “Existing
zone: CSC” (E.97, 98) that is, all of the subject
property was in the CSC zone (E.97, 98). The sub-
division case was not appealed further by either
party.
The second case, the instant case for damages and
injunction, with jury demand, was filed in 1989
after the Appellants had been notified that their
building permit application would be denied based
on a zoning map that had been changed by the
MNCPPC without notice or hearing. Since the
nh
2The denial was based, inter alia, on the subject property
being adjacent to a home that was on the National Historic Regis-
try.
3The northern boundary of the subject property had been
settled in 1968 by a Deed of Agreement to Establish Boundary
Line (E.379-381) and also recorded among the Land Records of
Prince George’s County, Maryland.
96a
Appellants now have their building permit, they are
no longer seeking injunctive relief but are merely
seeking damages.
The third case, an unreported decision of the Court
of Special Appeals, Maenette B. Smith, et utr v.
Prince George’s County, Maryland, No. 1654, Sep-
tember Term 1991, cert. denied, was a mandamus
action brought by the Appellants. That case was dis-
missed by the Court because an administrative
appeal was pending, the fourth case.
The fourth case, an administrative appeal referred
to as the ‘administrative appeal case’ and the “91
case’, Prince George’s County, et al. v. Maenette B.
Smith, et vir, CAL 91-00205, was an appeal of the
Board of Appeals decision finding that the MNCPPC
had changed the zoning map of the subject prop-
erty. The case was appealed by all parties here,
namely the MNCPPC, Prince George’s County, and
the Appellants (the Appellants here appealed to pre-
serve, inter alia, the issues of res judicata relating to
the subdivision case and reliance on a governmental
official and direct or collateral estoppel in the
administrative appeal case). The fourth case went to
the Court of Appeals and that Court, in a reported
opinion, Maryland National Capital Park & Planning
Commission, et al. vs. Maenette B. Smith, et vir,
333 Md. 3, 633 A.2d 855 (1993), dismissed the
MNCPPC as an appellant inasmuch as the MNCPPC
was not an aggrieved party although the MNCPPC
appeared and vigorously defended its position
before the Board of Appeals and all courts. This
fourth case went back to the Circuit Court for trial*
4where counsel for the MNCPPC, although MNCPPC had
been dismissed as a party, nevertheless remained as co-counsel for
| footnote continued]
97a
and was dismissed by Order dated March 14, 1995,
(E.378) since the building permit had been issued
on October 26, 1994.
There was a fifth case that was filed in the U.S. Dis-
trict Court for Maryland, Smith, et vir v. MNCPPC,
et al., MJG 93-742, under 42 U.S.C. 1983 and that
case was dismissed by counsel for the Appellants.
BACKGROUND
6. That the Appellants purchased the subject property
on Church Street in Upper Marlboro comprising
slightly more than one (1) acre in April of 1977, and
are the owners, as tenants-by-the-entirety. At the
time the property was purchased by the Appellants,
it was zoned approximately one-half in the R-80
zone and approximately one-half in the CSC zone.
That the Appellants filed a subdivision application
to develop their property inasmuch as part of it was
zoned as commercial (CSC) and part was zoned resi-
dential (R-80).
That the property was to be divided into essentially
equal parts with the line dividing the CSC zone and
the R-80 zone being selected as the boundary line.
The zoning map of the subject property (E. 404)
was unclear and it was taken to Mr. Art Tankersley,
the individual in the Maryland National Capital Park
and Planning Commission (MNCPPC) who was in
charge of the Sectional Map Amendment process
for the area that included the Town of Upper Mar!-
boro, so that the zoning line and the property line
between the newly created subdivisions would be
Prince George’s County, Maryland, [E400-401), over objection,
and later entered his appearance as co-counsel individually (E.401a,
401b) using the MNCPPC address.
9.
10.
Ba.
98a
co-located along the existing zoning line thereby
forming two (2) adjacent lots (E.50-63,176-178)
and that the scale of 1” = 200’ was written on the
map by Mr. Tankersley who measured off the di-
tance for the location of the property boundary line
as 140’ dividing the two lots and that notation was
placed on the zoning map by J. J. Smith (E.50-63,
404).
That the Appellants relied on this representation
and subdivided their property so that Content
would be 140’ on both the north and south boun-
daries (E.50-63) with the CSC zoned property being
designated as ‘Lot One, Marlborough House’ and the
R-80 zoned property being designated as ‘Lot One,
Content’ (E.98,99).
The Appellants planned to develop the property,
Lot One, Marlborough House, as shown on the land-
scape plan of the subject property (E.64).
That the Appellants have expended over $100,000.00
cash of their money for architect, engineering, sur-
veying, soil borings, financing, bonds, and other
miscellaneous expenses in reliance on the representa-
tions of the governmental official of the MNCPPC,
Mr. Tankersley, that the zoning line and the prop-
erty boundary line was at the location used by them
when their subdivision application was filed with
the MNCPPC (E.50-63,404).
SUBDIVISION PROCESS
12. The MNCPPC requires the listing of the zoning cate-
gory of the property being subdivided on the pre-
liminary subdivision plat and on the application for
subdivision of land in Prince George’s County, Mary-
land (E.74,98).
id,
14,
35.
16.
17.
99a
That, at the hearing before the Board of Appeals
where the Appellants contested the denial of the
building permit, a representative of the MNCPPC
testified that the zoning of a property is important
in their review of the preliminary subdivision plat by
the MNCPPC and that a subdivision applicant files
an application, pays a fee based on the size and zon-
ing of the subject property, and the MNCPPC,
through its staff, reviews the preliminary subdivision
application for, among other things, the proper zon-
ing of the property for the proposed use, Alan S.
Hirsch, head of the subdivision office of MNCPPC
(E.65-69).
The Subdivision Review Committee, a multi-govern-
mental committee, also reviews the preliminary plan
for application of the laws relating to subdivision of
property.
After the Subdivision Review Committee and the
MNCPPC staff review the preliminary plan of sub-
division, the matter is scheduled for hearing before
the MNCPPC.
At the time the Appellants filed the subdivision
application, the only zoning map that was adopted
and approved by the District Council for the subject
property was the map dated as ‘base map latest up-
date 7-12-77, zone map latest update 11-30-78, map
(E.100,104-120,404) and that such map was at that
time the only zoning map relating to the subject
property that was adopted and approved by the Dis-
trict Council (E.104-106,268-269).
That, on 7/19/86, the MNCPPC denied the subdivi-
sion application for both parcels by resolution and
stated that ‘Marlborough House (Lot 1)’ was zoned
CSC, and that ‘Content (Lot 1)’ was zoned R-80
(E.79-73).
€
100a
18. That at the time of the subdivision all of the files of
the MNCPPC relating to the subdivision of the sub-
ject property show that the subject property was
zoned CSC (E.74-81).
19. That the Memorandum of Law filed by the counsel
for the MNCPPC in the subdivision case in the Cir-
cuit Court, supra, stated that “Petitioners herein are
the Owners of a .5522 parcel of land known as
Marlborough House [the subject property] and
zoned in the C-S-C category ...’’, (E.81-96).
20. That the zoning of a property is an issue in the sub-
division process (E.180).
ZONING MAPS
21. That there are four (4) zoning maps that are mater-
ial to these proceedings and have been referred to
as:
The '77 zoning map, E.100, Approved by the Dis-
trict Council.
The ’88 zoning map, E.101, Not approved by the
trict Council.
The ’90 zoning map, E.102, Not approved by the
District Council.
The 94 zoning map, E.103, This is the current
version of the ’77 zoning map that
was approved by the District Coun-
cil by adoption of the Sectional
Map Amendment (SMA) for the
Upper Marlboro area on 5/24/94.
In Prince George’s County, a zoning map is com-
prised of two parts, a base map, for example, (E.121)
and a zoning overlay map, for example, (E.122) that
is placed over the base map and copied together
thereby forming the zoning map. That a base map is
that map encompassing the geographical area of the
ho
a)
23.
24.
25.
26.
10la
county showing property boundary lines, streets,
roads, streams, etc., (E.402,403) and that a zoning
overlay map is that map that encompasses a geo-
graphical area of the county showing land use zones
(E.123-137).
That, at the time of the building permit application,
the only zoning map that was adopted and approved
by the District Council was the ’77 zoning map
(E.147-165).
The District Council does not adopt or approve zon-
ing overlay maps or base maps individually (E.191-
192).
That property is not zoned or rezoned by the sub-
division process (E.193-194).
That MNCPPC does, however, prepare zoning maps
for approval of the District Council and a zoning
map that is adopted and approved by the District
Council may be amended only by the District Coun-
cil, and then only after public notice and a hearing
(E.104-106,166,252).
That subsequent to the noted decision in the sub-
division case, the MNCPPC, without notice or public
hearing, changed the zoning maps of the subject
property on two occasions, once on 8-22-88 and
once on 3-16-90, the later date was during the pen-
dency of this case (E.123-137,174-175). The base
maps for the 88 and ’90 zoning maps were changed
by MNCPPC (E.180-184).
The MNCPPC changed base maps in reliance on their
budget approved by the County Council for Prince
George’s County (E.215-217,255-264).
BUILDING PERMIT APPLICATION PROCESS
29. That the Department of Environmental Resources
(DER) of Prince George’s County, Maryland, is the
30.
31.
$2.
$5.
102a
County Department that handles the review of
building permits in Prince George’s County and the
affidavit of Mr. James H. Carr (E.138-139) shows
that your Appellants had, at that time, complied
with all of the requirements for the issuance of a
building permit except for the MNCPPC approval.
That building permit applications are referred to the
MNCPPC for review (E.203) and the building permit
will not be granted over the recommendations of the
MNCPPC (E.406-416).
Nothing in the County Code prevents the DER from
granting a building permit notwithstanding the
recommendation of the MNCPPC; however, the
County refused to grant the building permit until
October 26, 1994 (E.406-416).
That the Appellants applied for a building permit
and were denied a building permit by Prince George’s
County upon the recommendation of the MNCPPC
inasmuch as part of ‘Lot One, Marlborough House’
was notall in the CSC zone; denial of the Appellant’s
building permit application was based on the 88
and ’90 zoning maps (E.180-190). A building per-
mit application for Lot One, Marlborough House
was filed and was recommended for denial by the
MNCPPC (E.229).
That the recommended denial of the building permit
application by the MNCPPC was based on part of
Lot One, Marlborough House, being in the residen-
tial zone and was based on the zoning map that the
MNCPPC changed thereby putting part of the
Appellants property into the residential zone, ‘R-80’,
thus not complying with the setback and buffer
requirements (E.140-141).
103a
BOARD OF APPEALS DECISION
34.
35.
36.
38.
39.
40.
The Board of Appeals for Prince George’s County,
Maryland, an administrative body, is that statutory
body that is charged by law with the expertise to
hear and decide appeals from the denial of a build-
ing permit (Sec. 27-229, Prince George’s County
Code).
That the Board of Appeals of Prince George’s
County, Maryland, on December 20, 1990, deter-
mined that the MNCPPC had made an error in mov-
ing the lot lines on the base map of the subject
property and that all of the subject property was in
the CSC zone and that the zoning line remained at
400’ from the center line of Water Street (E.142-
146 [findings #1-14] ).
That, at the hearing before the Board of Appeals
wherein the Appellants contested the denial of the
building permit application, the representative of
Prince George’s County testified that the building
permit application was not granted by the County
because of the recommendation by the MNCPPC
(E.406-416).
MNCPPC does not adopt and approve zoning maps
(E.166-173).
That the zoning of a parcel is required to be listed
on the subdivision application and is required to be
placed on the preliminary subdivision plat (E.179).
Ruth Senes was the person designated to testify by
the Chairman, MNCPPC, and testified on behalf of
the MNCPPC at the Board of Appeals hearing
(E.195-196).
That the MNCPPC appeared in opposition to the
Appellants’ requested variance for the subject prop-
erty (E.197-198).
41.
104a
Mr. Tankersley was present at the Board of Appeals
hearing and did not present any testimony contra-
dictory of J. J. Smith (E.51).
SUBSEQUENT ACTION
42.
43.
44.
45.
That the Appellants sent a letter to the County and
MNCPPC relating to the then pending Sectional Map
Amendment affecting their property on June 16,
1993 (E.230).
That the District Council approved the Sectional
Map Amendment affecting the Appellants’ property
on 5/24/94 (E.103,282).
The building permit relating to the subject property
was granted on October 26, 1994.
Roscoe Tippett, Appellants’ surveyor, testified at his
deposition that he conducted a boundary survey of
the subject property with the intent of creating two
lots (E.389-392,396) and that he was not aware of
the zoning line traversing the subject property being
measured 400’ from the centerline of Water Street
since it was not shown on the zoning map (E.398).
x * ®
105a
APPENDIX J
COURT OF APPEALS OF MARYLAND
Robert C. Murphy Courts of Appeal Building
361 Rowe Boulevard
Annapolis, Md. 21401-1699
[SEAL]
October 6, 1997
Jess Joseph Smith, Jr., Esquire
14518 Church Street
P.O. Box 1995
Upper Marlboro, MD 20773-1995
Dear Mr. Smith:
In reply to your letter of October 6, 1997 please be
advised that I am not aware of any rules, policies, pro-
cedures or guidelines which the Court of Special Appeals
follows in determining whether to report or not report
its opinions.
Very truly yours,
/s/ Alexander L. Cummings
Alexander L. Cummings
Clerk
ALC:bmd
nee
seidinddinentiiene tie
106a
APPENDIX K
BRIEF SUMMARY
of EACH CASE RELATING
to the DEVELOPMENT of the SUBJECT PROPERTY
lL. '86 case — SUBDIVISION CASE — This case related
to the denial of the subdivision of the subject property
by the MNCPPC, and is referred to as the ‘subdivision
case’ and the °86 case’. The Head of the Subdivision
Office of the MNCPPC, testified in the administrative
appeal case, item IV, infra, that the zoning of a property
is an issue in the subdivision process; that when reviewing
a preliminary subdivision plat if the subdivision applica-
tion! had any incorrect information on it, corrective
action would be required. It is a requirement of the
MNCPPC that the property boundaries and the zoning
category of the subject property be included on the pre-
liminary subdivision plat (submitted with the written
application for subdivision approval) because, among
other reasons, it determines the amount of the fee for
processing the plat as well as the internal processing and
review of the preliminary subdivision plat by the MNC-
PPC. The preliminary subdivision plat is assigned a spec-
ific number designation by the MNCPPC, here no. 4-
86100. The subdivision application filed by the petition-
ers listed all of the subject property as in the CSC zone
and the preliminary subdivision plat that was submit-
ted, in item #3 under “NOTES”, indicated: “EXISTING
ZONE: CSC”*.
lThe written subdivision application that is required to be
submitted along with the Preliminary Subdivision Plat listed all
of the subject property as being in the CSC zone.
2 Infra at 126a-127a.
:
107a
The MNCPPC denied the subdivision application with
the minutes of the meeting denying the subdivision
application stating, with respect to the subject property,
“. .. and being zoned C-S-C’”’.
The denial was appealed to the Circuit Court for
Prince George’s County, Maryland, and resolved favor-
ably to the petitioners in Maenette B. Smith, et vir v.
Maryland-National Capital Park & Planning Commission,
CAL 86-12679, by order dated January 14, 1987. In its
brief in the Circuit Court, counsel for the MNCPPC
stated in his Memorandum of Law that “That petitioners
herein are the owners of a .5522 acre parcel of land
known as Marlboro House and zoned in the C-S-C cate-
gory . .. , such being the entirety of the subject prop-
erty.
The final subdivision plat was approved by the Chair-
man of the MNCPPC, pursuant to court order, on Feb-
ruary 18, 1988, for ‘Lot One, Marlborough House’, the
subject property, and was recorded among the Land
Records of Prince George’s County, Maryland, at Liber
NLP 137, Plat 54° over the Signature of the Chairman of
the MNCPPC. The Court Order in this case expressly
approved the Preliminary Subdivision Plat No. 4-86100,
‘Lot One, Marlborough House’ showing the subject prop-
erty as being all zoned CSC. In his oral opinion, the
court stated, “. . . he is going to create, in this courts
opinion, a desirable commercial establishment, which is
zoned commercial now already by this very county ...”’,
infra at 119a, 120a.
*The northern boundary of the subject prope
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