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Relating to Unreported/Unpublished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

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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

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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

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§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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