# Appendix — Smith v. Maryland National Capital Park & Planning Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1951%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1021 ## Text . \ '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of the ia 6 6 Fae ke Shine ee scien 106a Appendix L — Partial Listing of the Literature Relating to Unreported/Unpublished ere ee a a ee 113a Appendix M — Transcript of Judge’s Opinion in subdivision case (12/11/86)................ 116a (tt) Page Appendix N — Order in Subdivision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 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 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, such Deed of Agreement being petitioners Exhibit #41 at the Board of Appeals and filed in the instant pro- ceedings, see footnote 6, infra. a 108a — 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 plat, plan, document, or 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. The subdivision case was not appealed further by either party. Il. ’89 case — DAMAGES CASE — CAE 89-24602. The instant case* started as a Declaratory Judgment case. This case was filed on December 27, 1989, after the peti- tioners had been informed that their building permit application would be denied based on a zoning map that had been changed by the MNCPPC without notice or hearing. The case was later amended for injunctive relief and later to its present posture for damages only with jury demand. This case was originally dismissed by the trial judge for, inter alia, failure to exhaust administrative remedies and was later reversed and stayed by the Mary- land Court of Special Appeals in No. 1430, Sept. Term 1992, in an unreported opinion filed April 28, 1992 (‘Ist CSA”). This case was then remanded to the trial court pending the disposition of the administrative appeal case, the then pending 91 case, and for a factual deter- mination of whether or not the MNCPPC had changed the zoning map of the petitioner’s property, a question of disputed material fact, since at that time the admin- istrative appeal case was not final. Since the petitioners obtained their building permit (which has subsequently *For a more complete statement of this case, see the State- ment of the Case, supra. i iii 109a expired) they are no longer seeking injunctive relief but are seeking damages under 42 U.S.C. 1983 with jury trial. On remand, the 2nd trial court, Judge Johnson, dismissed Prince George’s County as a party, granted Summary Judgment for the MNCPPC, and denied petitioners Motion for Partial Summary Judgment on liability. In an unreported opinion filed April 14, 1997, No. 927, Sept. Term 1996, the Maryland Court of Special Appeals (“2nd CSA”), affirmed the 2nd trial court. The Mary- land Court of Appeals denied certiorari in Petition Docket No. 178, Sept. Term 1997 on August 22, 1997. The petitioners filed a Petition for Extraordinary Relief with the Maryland Court of Special Appeals that was denied on November 10, 1997. In the first appeal of the damages case, i.e., the lst CSA case, both MNCPPC and Prince George’s County took the same legal position in the case and submitted the same Appellee’s Brief? III. "90 case - MANDAMUS CASE — Maenette B. Smith, et vir v. Prince George's County, Maryland, in the Circuit Court for Prince George’s County, Maryland, CAL 90-30619. This case was filed to compel the issu- ance of the building permit after the Board of Appeals decided the administrative appeal in the favor of the petitioners and after Prince George’s County stated that they would not issue the building permit without court order. 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, filed July 22, 1992. The Maryland Court of Appeals denied cer- >The title page and the last two pages of the Appellee’s Brief are at infra, 137a-139a. 110a tiorari in Petition Docket No. 431, Sept. Term 1992 on December 9, 1992. IV. "91 case — ADMINISTRATIVE APPEAL CASE — 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 B. Smith, et vir, CAL 91-00205. The denial of the building permit by Prince George’s County was appealed by the petitioners to the Board of Appeals for Prince George’s County, Md. (‘Board of Appeals”). The 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®. The MNCPPC and Prince George’s County, as well as the petitioners’ , appealed the decision to the Court of Special Appeals, the trial court having dis- missed the MNCPPC as a party. The Maryland Court of Appeals® , sua sponte, granted certiorari and affirmed the trial court’s dismissal of the MNCPPC as a party to the Sat the Board of Appeals, evidence was presented that the northern boundary of the subject property had been the subject of a boundary dispute that had been settled and that a Deed of Agree- ment was recorded thereby fixing the northern boundary of the subject property. The Deed of Agreement was obtained from the records of the MNCPPC. The copy of the deed obtained from the MNCPPC records indicates that the deed was recorded in 1968, from the files of the MNCPPC and, thus, there was no need to employ a surveyor to determine the boundary line of the subject property. The petitioners appealed, inter alia, to preserve the issues that had been raised but not decided by the Board of Appeals, namely the issues with respect to detrimental reliance on the proper governmental official, estoppel and res judicata of the sub- division case. 8where the MNCPPC, Prince George’s County, and the Prince George’s County Council, Sitting as the District Council (later dismissed as a party) each took the same legal position in the case and filed the same brief signed by all counsel, infra at 136a. —O ——— llla proceedings, although the MNCPPC was not an ‘aggrieved party’ with right to appeal, and decided no other issues in a reported opinion, Maryland National Capital Park & Planning Commission, et al. v. Maenette B. Smith, et vir, 333 Md. 3, 633 A.2d 855 (1993), filed December 8, 1993. The MNCPPC appeared and vigorously defended its position before the Board of Appeals and all courts. This case then went back to the Circuit Court for trial® but was dismissed before trial by Order dated March 14, 1995, after the building permit was issued and the newly enacted Sectional Map Amendment!? showed the en- tirety of the subject property as zoned CSC. The build- ing permit was issued on October 26, 1994, and it has now expired.!!, This administrative appeal case was final when dismissed thereby affirming or leaving the order of the Board of Appeals as the only effective order in the administrative appeal case. Although the MNC- PPC was not an aggrieved party with right to appeal the Board of Appeals decision and order, this appeal took * 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 ent- ered his appearance as co-counsel for Prince George’s County individually using the MNCPPC address. 10The only disputed factual evidence in this case is whether or not the petitioners applied for a Sectional Map Amendment or whether they were notifying the MNCPPC and County that the use of the bogus zoning maps with the error in zoning would cause damages relating to the development of the subject property. The term “bogus zoning map’ is used to describe any zoning map that is not adopted and approved by the District Council, that statutory body who is the only governmental authority that can change zon- ing maps of any property in Prince George’s County and then only with notice and a hearing. the building permit expired October 16, 1997. 112a over six (6) years from the denial of the permit in Decem- ber, 1989, until the dismissal of this administrative appeal case in March, 1995. V. '93 case — U.S. DISTRICT COURT — Maenette B. Smith, et vir v. Maryland National Capital Park & Plan- ning Commission, et al., Case No. MJG 93-742, in the Federal District Court in Baltimore. This was a case by your petitioners for damages under 42 U.S.C. 1983 and was dismissed without prejudice on September 28, 1993, by then counsel for the petitioners. 1l3a APPENDIX L PARTIAL LISTING OF THE LITERATURE RELATING TO UNREPORTED/UNPUBLISHED DECISIONS | Black, Hide and Seek Precedent: Phantom Opinions in Ohio, 50 CINN. L. REV. 477 (1981). Brilmayer, Wobble, or the Death of Error, 59 S. CAL. L. REV. 363 (1986). Carrington, Crowded Dockets and the Courts of Appeals: the Threat to the Function of Review and the Na- tional Law 82 HARV L. REV. 542 (1969). P. CARRINGTON, D. MEADOR & M. ROSENBERG, JUSTICE ON APPEAL, (1966). 9A, D. Coquillette, L. Schrieber, G. Joseph, J. Solovy, & G. Vairo, MOORE’S FEDERAL PRACTICE (3rd ed. 1977) 4 3974, 467, n. 10. DIRECTORY OF STATE COURT CLERKS & COUNTY COURTHOUSES, Want Publishing Co., (1998 ed.), Trends in State Court Litigation, p. 357. Douglas, Stare Decisis, 49 COLUM. L. REV. 735 (1949). Dunn, Unreported Decisions in the United States Courts of Appeals, 63 CORNELL L. REV. 128 (1977). Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV. 757 (1995). Foa, A Snake in the Path of the Law: The Seventh Cir- cutt’s Non-Publication Rule, 39 U. PITT. L. REV. 309 (1977). Gardner, Ninth Circuit’s Unpublished Opinions: Denial of Equal Justice?, 61 A.B.A.J. 1224 (1975). ll4a Gunn, “Unpublished Opinions Shall Not Be Cited As Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(:), 24 ST. MARY’S LJ. 115 (1992). Joiner, Limiting Publication of Judicial Opinions, 56 JUDICATURE, 195 (1972). Leflar, Some Observations Concerning Judicial Opin- ions, 61 COLUM. L. REV. 810 (1961). Leventhal, Appellate Procedures: Design, Patchwork, and Managed Flexibility, 23 UCLA L. REV. 432 (1976). McCoid, II, Jnconststent Judgments, 48 WASH. & LEE L. REV. 487 (1991). Monaghan, Stare Decisis and Constitutional Adjudica- tion, 88 COLUM. L. REV. 723 (1988). Newbern & Wilson, Rule 21: Unprecedent and the Dts- appearing Court, 32 ARK L. REV. 37 (1978). POSNER, THE FEDERAL COURTS, CRISIS AND REFORM (1985). POSNER, THE FEDERAL COURTS, CHALLENGE AND REFORM (1996). Prince, Law Books, Unlimited, 48 A.B.A. J. 134 (1962). Reynolds, The Court of Appeals of Maryland: Rules, Work and Performance — Part I, 37 MD. L. REV. 1 (1977). Reynolds & Richman, An Evaluation of Limited Pub- lication in the United States Courts of Appeal: The Price of Reform, 48 U. CHI. L. REV. 573 (1981). Reynolds & Richman, The Supreme Court Rules for the Reporting of Opinions: A Critique, 46 OHIO ST. L.J. 313 (1985). Rubin, Views From the Lower Court, 23 UCLA L. REV. 448 (1976). ll5a Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). Shuldberg, Digital Influence: Technology and Unpub- lished Opinions in the Federal Courts of Appeals, 85 CAL. L. REV. 541 (1997). Silverman, The Unwritten Law: The Unpublished Opin- ton in California, 51 CAL. STATE BAR J. 33 (1976). Smith, The Selective Publication of Opinions: One Court’s Experience, 32 ARK. L. REV. 26 (1978). STANDARDS FOR PUBLICATION OF JUDICIAL OPINIONS, FEDERAL JUDICIAL CENTER RE- SEARCH SERIES NO. 73-2, STATE COURTS WORK- IN-PROGRESS SERIES, PUBLICATION NO. NCSC W0004 (Aug. 1973). STANDARDS OF JUDICIAL ADMINISTRATION, VOL. Ill. STANDARDS RELATING TO APPELLATE COURTS, SEC. 3.37, A.B.A. JUD. ADMIN. DIV. (1994). Stevens, Address to the Illinois State Bar Association’s Centennial Dinner, 65 ILL. B.J. 508, 510-14 (1977). Thompson, Legitimate and Illegitimate Decisional Incon- sistency: A comment on Brilmayer’s Wobble, or the Death of Error, 59 S. CAL. L. REV. 423 (1986). von Moschzisker, Stare Decisis in Courts of Last Resort, 37 HARV. L. REV. 409 (1924). Weaver, The Precedential Value of Unpublished Judicial Opinions, 39 MERCER L. REV. 477 (1988). Wood, Selective Publications of Case Law, 39 S. CAL. L. REV. 608 (1966). Williams, Survey of State Court Opinion Writing and Publication Practices, 83 LAW LIBR. J. 21 (1991). 1l6a APPENDIX M IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND CAL 86-12679 MAGNETTE B. SMITH, et al, Plaintiffs VS. MARYLAND NATIONAL CAPITAL PARK & PLANNING COMMISSION, Defendant. REPORTER’S OFFICIAL TRANSCRIPT OF PROCEEDINGS (ORAL ARGUMENTS) Upper Marlboro, Maryland Thursday, December 11, 1986 BEFORE: HONORABLE JOHN HANSON BRISCOE, Asso- ciate Judge APPEARANCES: For the Plaintiffs: JESS JOSEPH SMITH, JR.., ESQ. For the Defendant: THURMAN H. RHODES, ESQ. NANCY E. TOLER Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland, 20772 117a [2] PROCEEDINGS THE DEPUTY CLERK: Civil Action Law 86-12679, Smith, et al, versus Maryland National Capital Park & Planning Commission. THE COURT: For the record, gentlemen, if you will just state your presence and who you represent. MR. SMITH: If the court please, my name is J. J. Smith. I represent the plaintiffs in this case, being Mag- nette B. Smith, et vir. MR. RHODES: Thurman Rhodes representing Mary- land National Capital Park & Planning Commission. THE COURT: All, right, gentlemen, we are here today, the court has heard the matter of the appeal from the Maryland National Capital Park & Planning Commission hearing. It was the Park & Planning Commission, I believe, Mr. Rhodes. Is that a correct description of the body that heard this? MR. RHODES: Actually, it was the Prince George’s County Planning Board. THE COURT: All right. It is an appeal from that board. It all comes under the famous multi-county Mary- land National Capital Park & Planning Commission. In any event, the petition is, in this case, Magnette B. Smith and husband, Joseph Smith, took an appeal from a decision by the board, which decision denied the appli- cation [3] for approval of subdivision of the property owned by the petitioners. The court heard from counsel on the record and both attorneys, both sides presented very comprehensive and very exhaustive memoranda and summaries of facts that were presented before the board at the July 10, 1986 meeting, at which time the planning board denied the subdivisions of Mr. and Mrs. Smith. The court’s responsibility is to look at the record and to determine whether or not the testimony and evidence 118a that was presented at that hearing was sufficient, was debateable and that the conclusions that the board came up with in this case, the denial, were based upon suffi- cient facts that did not render their decision arbitrary, capricious, illegal or discriminatory, because this courts responsibility is not to substitute its judgment for that of the administrative body, not to interpret the facts in its own way in substitution of that of the administrative body, only to make sure that the body had before it suf- ficient evidence to come to its conclusions. The court has read very carefully, more than once, all of the testimony that was presented to the board on July 10, 1986. The court finds that the commission was duly organized, it had sent out appropriate notices and that all parties were present who were entitled to be present, and particularly, of course, the petitioner in this case, Mr. [4] Smith and Mrs. Smith. The court found the hearing to be conducted in a manner which certainly pro- vided due process to both sides and the parties were given ample opportunities to be heard. The court finds that as a fact, but once we leave those facts, that I think everybody agrees .0, then the court has a different out- look on the conclusions. The two issues specifically this court has to look at, and those are the two issues that the board decided against the petitioner on, number one, was the failure to provide street widening along Church Street in accord- ance with and as counsel for the board refers to the sec- tion of the code Zoning Ordinance that provides that there be sufficient roadways or at least a fifty foot right of way or street for secondary subdivision. Now, the court in looking at that one issue, to decide whether the board had sufficient evidence before it and testimony and laws and rules to come to the conclusion that that is one reason why the failure to provide for 119a street widening along Church Street was one of the rea- sons to justify the denial of the subdivision, the court looks at the whole picture. First of all, it looks at a simi- lar situation just down the street to the comer, Maryland National Bank Subdivision, which, some one and a half to two years previous to this application was indeed approved. That Church Street, which everybody in, | think the County of [5] Prince George’s agrees, includ- ing the town of Upper Marlboro, is, was and always will be a thirty foot street and will not be widened and there- fore, the board felt that the Maryland National Bank could place its building in a way that not only initially would have violated the setback lines, but made no requirement of the Maryland National Bank subdivision to be bothered about the fact there was no fifty foot street there because if they, indeed, wanted to use that as a reason for either granting or not granting, they should have required the Maryland National Bank to ded- dedicate at least twenty feet of its property for future widening, if, indeed, that was ever to be an issue. Appar- ently, it was an issue with Mr. Smith’s application. The court finds great similarity in both applications, yet finds a very large degree of discrimination in that the Maryland National Bank was not only granted a setback variation, but in no way was required to dedicate any of its property for future widening of the thirty foot street known as Church street, and this court is familiar with the particular area and finds if there was ever any place that we want that street widened, which is probably one of the most congested areas in Upper Marlboro, it would be there, as opposed to the subdivision in question, which is a half a block away, up in a less congested area, and the petitioners desires and intentions that are clearly [6] of record as to what the petitioner wants to do with the Property, he is going to create, in this courts opinion, a «+ ~ ete er a 120a desirable commercial establishment, which is zoned com- mercial now already by this very county, will be not only more desirable but will create a lot less traffic than the previously approved Maryland National Bank. In fact, the Maryland National Bank is now located, if the street was ever to be widened to fifty feet, the bank would lose some of its building, because the building is almost — I don’t know, but there are very few feet between that street and the building, itself. The court finds, and it has reviewed the record very carefully to make sure it was not straining its opinion in stating, there is, indeed, a very, very high degree of dis- crimination here. The court finds no rules, laws, regula- tions or facts that could justify and create a fairly debate- able issue on the bank approval versus the approval before this court, so that part of their decision, the court finds there was not sufficient evidence, taking everything that was there at face value in opposition to this peti- tion, the court finds no facts that could create a debate- able situation that could permit any reabonable body or reasonable group of people hearing these facts to come to the conclusion that they should deny this petition because of a violation or a failure to be able to provide for street widening. [7] The court also finds that Mr. Smith, the petitioner and his wife, were alleged to have not agreed to or refused to go along with even the possibility of the Church Street widening, and the court does not find that to be a fact. It is untrue, if the court is to believe the transcript of the record. I think Mr. Smith and his wife showed total flexibility to all of the reasonable sugges- tions of compromise and conditions for the approval of these subdivisions and the allegation that they were arbi- trary or adamant about not doing so, is simply not true. The facts don’t support it. They are not there. So the l2la court feels that issue no. 1, of the reasons why this peti- tion was, or these subdivisions were not accepted, the court finds there was no evidence, facts written or oral, that could lead any reasonable person fairly debated, to come to a conclusion there is a reason for denying the application. The second issue of the fact that there would be an adverse impact on the National Historic Register prop- erty if this proposal by Mr. and Mrs. Smith were to be borne into fruition, the court, again, looking at the entire record, finds it totally void of any such evidence by the appropriate people or organizations that did, in fact, create an atmosphere of fear on the part of the administrative body that this property would definitely have a very serious adverse effect on historic property and the historic register. The court finds [8] in the record nothing but some conjecture, some speculation that if, indeed, Mr. and Mrs. Smith went into this property and would not allow excavation of an adjoin- ing yard for artifacts, and if they put up a building that was an eyesore, that it could even, at that, it could only possibly adversely effect property on the National His- toric Register when, in fact, Mr. and Mrs. Smith, in their testimony before the board, did not say that archeology could not take place. Any property they had control over for historic purposes would not be and they would not agree to that. Further, the county has certainly a great deal of control at a future time over the kind of building, the height, the building permit, building code and all of the other myriad of regulations a person has to go through to build in this county, so the suggestion that Mr. and Mrs. Smith, what they want to do with this property is going to have an adverse effect, the court finds that even assuming all of the facts to be true, what they are planning on doing can only be an improvement 122a and an asset to the environment and to the asthetics, and certainly, then, to make the National Historic Landmark people happy because that street is not in its entirety a pretty street. The worst part of the street is down where this very board approved the Maryland National Bank building next to a High’s store where, perhaps, some of you got tied up like I did for ten minutes this morning. [9] If the town of Upper Marlboro approved that, then I really suggest that perhaps they might want to set their priorities a little differently. The town of Upper Marlboro never really opposed this, they only suggested, and one of the members of the board suggested they would oppose it if certain things happened, but there never was oppo- sition to this application, just a lot of inuendo, specula- tion, conjecture and some conclusions that were not sup- ported by sufficient evidence in this court’s mind. There- fore, in considering all of these factors, on these two issues, the court finds that this is a classic case of an administrative body not having sufficiently debateable evidence before it to come to the conclusions they did. The court finds further that their decision was, in light of all that was in the transcript, was arbitary, it was capri- cious, and was discriminatory against the petitioners. The court therefore will reverse and overrule the planning board in their denial, their refusal to approve the subdivi- sions as applied for by Mr. and Mrs. Smith, and because of the courts failure to find hardly a scintilla of evidence there to support these findings, it would assess, and I will be glad to hear from counsel, if it is appropriate, or if it is not appropriate, but is legally possible to assess the costs of the appeal including the transcript to the appel- lees in this case. [10] MR. SMITH: I don’t desire that, Your Honor. THE COURT. You have no desire to do that? MR. SMITH: No, sir. 123a MR. RHODES: As a practical matter, I think those costs have already been absorbed by the agency. THE COURT: If you need an order, the court will sign an order to that effect. Thank you. The disposition date is January 5. (The proceeding was concluded at 10:30 a.m.) | 124a APPENDIX N [Filed Jan 14 1987] IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND CAL 86-12679 MAENETTE B. SMITH, et vir. Plaintiffs vs. MARYLAND-NATIONAL CAPITAL PARK & PLANNING COMMISSION Defendant JUDGMENT Upon consideration of the entirety of the record that was before the Planning Board of the Maryland-National Capital Park & Planning Commission, comprehensive Memorandum of Law filed by the Plaintiffs and Defend- ant and considered by the Court, counsel for both Plain- tiff and Defendant having argued in open court, it is this 14th day of January, 1987, by the Circuit Court for Prince George’s County, Maryland, ORDERED and ADJUDGED, that the decision of the Planning Board in denying Subdivision Plats 4-86100 and 4-86101 be, and is hereby REVERSED; and it is further : 125a ORDERED and ADJUDGED, that the Plaintiffs shall pay the costs of these proceedings. /s/ [Illegible] Judge 126a APPENDIX O MAENETTE B. SMITH, et vir., vy. MARYLAND- NATIONAL CAPITAL PARK & PLANNING COMMISSION, et al., CAE 89-24602, [ Filed, Nov. 16, 1990] Tid. HATIOMAL CAPITAL PARA & FLAMINS COMMISSION ACCEPTED FoR PROCESSING Siahe SUDCIVISLON REVIEW COLLIT DAVE Gar FILE NO. 4-2e/00 Mewes * AET EE Ak ao £44/AGDE * * ‘ - a Teale SEAT er eet re seria la omen ~ BESTA are NOTES -—— Z ownerr JESS seer, ye. ecut. . : . | MPIE wai STACET. ' . * GPELA MALLIAIA, M2RNVLAND COTA PSI® : : TELE Dane, NP CFB: GEL?-G2a0 . & LEGAL DESCHPTION: ~ ere aa pirat ‘aos F & EXISTING Tove: C3E-*. es . - W348 were AMCASS oe sewer s-/ : Wa vers a4-/ ° cebu 73a. : "6 arta: es! 3g. PR oa aaseeacae Z TIROARABHY: MANCE EMS ~~, ° a CONTOUR... ITER YELL: EPLEET .? - & Gcewluny BY BAOWN S2vrson 40, WO STIRM WATER RES, PRIEOSEO - i, NUMBLR OR LOTS: ONE GI - : . fae . od * a) 4 . * * ‘*. . ar Retard SPORES oe her t Walia ii -_ 4 ae hy a3 ral on sto oeqs g be eke obs iol» tp eo (ro an rs mann 1S Emm ae = 3% P ~-y-+y 4. ee, he zx Gave sev 70908 : SCALE /*0,20". . [suet ¢ oF. *. . St, t eeee 2 ».* oh P- 1964 ~ = oe. - ote YRS en hb BmIina tl. r ; AILABLE COPY 128a APPENDIX P MAENETTE B. SMITH, et vir., v. MARYLAND- NATIONAL CAPITAL PARK & PLANNING COMMISSION, et al., CAE 89-24602, [ Filed, Dec. 20, 1990] BEFORE THE BOARD OF APPEALS FOR PRINCE GEORGE’S COUNTY, MARYLAND Sitting as the Board of Zoning Appeals Petitioner: Jess Joseph Smith, Jr. and Maenette B. Smith Appeal No.: 10482 Heard: June 6, 1990; June 26, 1990; July 16, 1990; July 24, 1990; August 8, 1990 Decided: October 9, 1990 : Board Members Present and Voting: Melvin Tanchel, Chairman; Elsie Conway, Vice Chairman, Robert Zugby, Member ORDER OF THE BOARD This appeal was brought to the Board of Appeals for Prince George’s County, sitting as the Board of Zoning_ Appeals for the Maryland-Washington Regional District in Prince George’s County, Maryland, requesting an ap- peal from the inaction or denial by the Department of Environmental Resources on BUilding Permit Applica- tion No. 10708-89-CGU and the Notice issued by the Department of Environmental Resources stating that the permit for the construction of an office building with parking lot at 14520 Church Street, Upper Marlboro, Prince George’s County, Maryland, had been recom- mended for denial by The Maryland-National Capital Park and Planning Commission in Prince George’s County. 129a The following testimony and evidence were presented to the Board for their consideration: ‘1. Petitioner filed for a building permit (No. 10708- 89-CGU) in November, 1989. 2. After receiving the permit application, the Permits Office of the Department of Environmental Resources transferred copies of that permit to agencies that are required to respond in the approval or denial process for the permit. The Maryland-National Capital Park and Planning Commission (hereinafter referred to as Park and Planning) is one of the agencies required to respond. 3. In reviewing the permit, Park and Planning located the site on their own copy of the zoning map of the area. This zoning map was dated August 22, 1988. 4. It was explained that this 1988 map was com- prised of a base map showing the outline of the prop- erties/lots on it with an overlay of the approved zoning map of the area on top of the base map. 5. The approved zoning map for this area was adopted and approved by the District Council in 1977. (Peti- tioner’s Exhibit No. 32) 6. The Clerk to the Council stated that the District Council is the body that is charged with the responsi- bility of adopting and approving zoning maps, that Park and Planning does not have the authority to adopt or approve zoning maps, that it is her responsibility as Clerk to the Council to maintain all of the records relat- ing to adopted and approved zoning maps in Prince George’s County, and that the map dated 7/12/77 (Peti- tioner’s Exhibit No. 32a) is the latest zoning map for the subject property and surrounding area of Upper Marlboro. 7. In comparing the building permit site plan with the Park and Planning August 1988 map, Park and Planning a ——— oe Ek a en et re EO 130a determined that a portion of Lot 1 - Marlborough House was located in the R-80 zone while the remainder of the lot was zoned C-S-C. Park and Planning then recom- mended denial of the building permit. 8. The Department of Environmental Resources was notified of the recommended denial. 9. The Department of Environmental Resources sent notice to the petitioner that the building permit appli- cation had been recommended for denial by Park and Planning. 10. The representative of the Department of Environ- mental Resources stated that they rely on Park and Planning to make recommendations and decisions on zoning matters, and that although the Department of Environmental Resources has overridden Park and Plan- ning on minor issues after receiving Park and Planning’s recommended denial, the Department of Environmental _ Resources has not overridden Park and Planning on major issues or items. The recommended denial by Park and Planning in the subject appeal is a major issue. 11. Park and Planning stated that it does not have the authority to approve or deny a building permit applica- tion, but that the Department of Environmental Re- sources is the agency charged with approving or denying the permit. Therefore, Park and Planning contends that the appeal should be dismissed, since they have not denied the permit. 12. The representative of the Department of Environ- mental Resources stated that their agency would not override the recommendation of Park and Planning and therefore, that recommendation would stand as the deci- sion of that agency. 13la 13. Park and Planning also questioned the jurisdic- tion of the Board to hear the appeal in that the Board did not have the authority to change a zoning map. 14. Lot 1 — Content and Lot 1 — Marlborough House were one parcel at the time of the 1977 zoning. At that time part of the property was zoned R-80 and part of it was zoned C-S-C. 15. Petitioner subdivided the property in 1987 into two lots, namely: Lot 1 — Content and Lot 1 — Marl- borough House. The record plat for Lot 1 — Content was recorded July, 1987. The record plat for Lot 1 — Marlborough House was recorded July, 1988. 16. Park and Planning contends that lot line between Lot 1 — Content and Lot 1 — Marlborough House and not the zoning line was not correctly located when the property was subdivided. 17. Park and Planning stated that the zoning line is located 400 feet from the center line of Water Street. This is correctly shown on County Exhibits No. 10 and 11, and Petitioner’s Exhibit No. 32. 18. The representative of the Permits division of Park and Planning stated that the subject lots were placed on the base map (County Exhibit No. 10) incorrectly, and that they were correctly placed on the base map in County Exhibit No. 11. 19. County Exhibit No. 10 is the August, 1988 Park and Planning map. County Exhibit No. 11 is the March 16, 1990 Park and Planning map. 20. Park and Planning stated that the base maps are updated at frequent intervals based on the best informa- tion available at that time. The base map for the area of the subject property was not updated from July 1977 at team pete 132a until August 1988. This was a result of the subdivision of the subject properties. 21. It was explained that the zoning on the properties of petitioner has not changed since July 1977. 22. It was also stated that the County Council does not prepare zoning maps or any maps. They have charged the Park and Planning Commission with doing this. 23. The base map show property lines and street loca- tions. 24. Petitioner stated that when the property was sub- divided into two lots, the property was located on the July 1977 zoning map which was the official zoning map for the area (Petitioner’s Exhibit No. 32) and the lot line dividing the property into two lots was placed where the zoning line was located going through the property. After hearing all the testimony and reviewing the evi- dence presented, the Board finds that: 1. Petitioner applied for a building permit to construct an office building on Lot 1 — Marlborough House. The permit was referred to several agencies for review. One of the agencies that reviewed the permit application was Park and Planning. 2. In reviewing the permit application and comparing the submitted site plan to the August, 1988 base map with zoning overlay, a decision was made by a represen- tative of the Park and Planning Commission that a por- tion of the subject property was zoned R-80 while the remainder of the lot was zoned C-S-C. 3. As a result of this comparison, Park and Planning recommended denial of the requested building permit. 4. The Department of Environmental Resources was notified of this recommended denial. The department 133a then notified the petitioner of the decision of Park and Planning. 5. Section 27-229(a)(2) of the Prince George’s County Code authorizes the Board to hear and decide appeals where it is alleged that, in the administration of this Sub- title, there is error in the refusal of a building or use and occupancy permit, or in any other decision of the Depart- ment of Environmental Resources, the Planning Board, or any other person or body authorized to administer this Subtitle. Therefore, the Board has jurisdiction to hear this appeal. 6. The Board is not, in reaching a decision on this appeal, amending any of the Provisions of this Subtitle or the Zoning Map, but only deciding whether an error occurred. 7. The August, 1988 base map with zoning overlay was updated in March, 1990 by Park and Planning. When the building permit site plan was compared to this updated map, Park and Planning determined that more of the sub- ject property was located in the C-S-C zone and that there was less land in the R-80 zone. The angle of the lot lines also changed. 8. The official zoning map for the area is the 1977 zon- ing map kept in the Office of the Clerk to the Council. 9. A comparison of the official zoning map to the Aug- ust, 1988 and March, 1990 Park and Planning maps shows that not only the lot lines for the subject prop- erties (Lot 1 — Content and Lot 1 — Marlborough House) had been changed, but also the width of the other lots between the side lot line of Lot 1 — Content and Old Crain Highway on Church Street. 10. The western side lot line of Lot 1 — Content and therefore, the western side lot line of Lot ] — Mar!l- borough House are located closer to Old Crain Highway 134a on the August, 1988 and March 1990 Park and Planning maps then they are on the official zoning map. 11. By moving the lot lines on the base map prepared by the Mapping and Graphics Division of the Park and Planning Commission and then overlaying the official zoning map lines, the result creates more than one zon- ing classification on Lot 1 — Marlborough House. The Park and Planning map also locates the lot lines on an angle instead of perpendicular to Church Street. 12. A comparison of the official zoning map and the building permit site plan, locates all of Lot 1 — Marl- borough House in the C-S-C zoning category. 13. The zoning line on the official zoning map is 400 feet from the center line of Water Street. This line has not changed. 14. An error occurred in changing the lot lines for the properties along the northern boundary of Church Street, and in particular, the lot lines for Lot 1 — Content and Lot 1 — Marlborough House. THE BOARD THEREFORE RESOLVED, by major- ity vote (Mrs. Conway in the minority), that an error had occurred and the Notice issued by the Department of Environmental Resources stating that Building Permit No. 10708-89-CGU had been recommended for denial by The Maryland-National Capital Park and Planning Commission for the construction of an office building with parking at 14520 Church Street, Upper Marlboro, Prince George’s County, Maryland, is hereby OVER- RULED. BOARD OF ZONING APPEALS By /s/ Melvin Tanchel Melvin Tanchel, Chairman 135a APPENDIX Q [ Filed Jan. 30, 1995] IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, MARYLAND CAL 91-00205 Prince George’s County, Maryland Appellant and Cross-Appellee V. Jess Joseph Smith, Jr. and Maenette B. Smith, Appellees and Cross-Appellants. APPELLANT’S MOTION TO WITHDRAW APPEAL Comes now Appellant, Prince George’s County, Mary- land, by and through its undersigned counsel, to respect- fully withdraw its appeal in the instant matter. As grounds for said Motion, Appellant states as follows: 1. On or about December 9, 1994, Appellant filed a Motion to Dismiss the instant appeal as moot. 2. In response to said Motion, Appellees filed a Motion to Dismiss Appellant’s appeal as moot. Appellees’ Mo- tion also noted that Appellees have withdrawn their cross-appeal in the above-captioned matter. 3. Inasmuch as Appellees have withdrawn their cross- appeal, Appellant also withdraws its above-captioned appeal. 4. Hence, the above-captioned appeal should respect- fully be dismissed. 136a WHEREFORE, Appellant respectfully request that the Court dismiss the instant appeal in that both parties have now withdrawn their respective appeals. Respectfully submitted, PRINCE GEORGE’S COUNTY, MARYLAND Michael P. Whalen County Attorney By: /s/ Albert J. Lochte / JMD Albert J. Lochte Deputy County Attorney By: /s/ J. Michael Dougherty J. Michael Dougherty, Jr. Associate County Attorney Office of Law County Administration Building 14741 Gov. Oden Bowie Drive Upper Marlboro, Maryland 20772 (301) 952-4124 /s/ Isaac H. Marks Isaac H. Marks, Esquire 6600 Kenilworth Avenue Riverdale, Maryland 20737 (301) 699-2577 Co-counsel with Appellant POINTS AND AUTHORITIES 1. The record herein. [Certificate of Service Omitted in Printing] oyce Birkel Nichols, Esquire Elizabeth M. Hewlett, laurene Epps, Esquire Isaac H. ffice of the County Council MNCPPC ounty Administration Buildin pper Marlboro, MD 20772 01) 952-4278 137a APPENDIX R [Filed Feb. 28, 1992} IN THE COURT OF SPECIAL APPEALS OF MARYLAND September Term No. 1430 Maenette B. Smith, et vir. Appellants Vv. Maryland-National Capital Park & Planning Commission, et al. Appellees Appeal from the Circuit Court for Prince George’s County George W. Bowling, Judge BRIEF OF APPELLEES — Attorneys for Appellees — Esquire Marks, Esquire 6600 Kenilworth Avenue Riverdale, MD 20737 (301) 699.2577 Michael] Dougherty, Esquire ounty Attorney’s Office 00m 512] 138a County Administration Building Upper Marlboro, MD 20772 (301) 952-4124 * * * Therefore, Appellees respectfully request that the Cir- cuit Court’s order dismissing Appellants’ complaint be affirmed. Respectfully submitted, PRINCE GEORGE’S COUNTY COUNCIL, SITTING AS THE DISTRICT COUNCIL /s/ Joyce B. Nichols (NE) Joyce Birkel Nichols Principal Counsel to the District Counsel /s/ Maurene Epps Maurene Epps Deputy Counsel to the District Counsel County Administration Building Upper Marlboro, MD 20772 (301) 952-4278 PRINCE GEORGE’S COUNTY, MARYLAND Michael P. Whalen County Attorney /s/ J. Michael Dougherty J. Michael Dougherty Associate County Attorney County Attorney’s Office Room 5121 County Administration Building 139a Upper Marlboro, MD 20772 (301) 952-4124 THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION Ronald D. Schiff General Counsel /s/ Elizabeth M. Hewlett Elizabeth M. Hewlett Associate General Counsel /s/ Isaac H. Marks Isaac H. Marks Associate General Counsel 6600 Kenilworth Avenue Riverdale, MD 20737 (301) 699-2577 [Certificate of Service Omitted in Printing] 140a APPENDIX S MAENETTE B. SMITH, et vir. v. MARYLAND- NATIONAL CAPITAL PARK & PLANNING COMMISSION, et al., CAE 89-24602, [Filed, Nov. 16, 1990] N-102 R-R 207 SE 13 ORIGINAL BASE MAP LATEST UPDATE _7-!2-77 COPY ZONE MAP LATEST UPDATE _!!-30 76 297 SF 14) l4la APPENDIX T MAENETTE B. SMITH, et vir. v. MARYLAND. NATIONAL CAPITAL PARK & PLANNING ~ COMMISSION, et al., CAE 89-24602, [Filed, Nov. 16, 1990] 14540 Chuich pl IBY 1070? &7-CGU 41. Npciol ta cken ) Larkur a de pririal ; A U3 g Lie wb thes Mus Mmaruel navi of thaptien ADA Lenlerw the Lambie « ANAu.al pea CB ae" a “; boaskin genet Sys ancl goat . 0 tales FLEE shaun 5 i mala” of Xe om, i fe pec Fable W prage 57). 7 at Cet mrp , oe He ten dec Yy.y Ehechie Trang Ove, Nox amuat dcrewnel fer the “ue dec. js ee do} J. dmith 12990 142a APPENDIX U Q Z. K > o 2] > = 2) eq _ > i _~ Z. oo G Zz oO = eo O q. ZN Zo jo en gy é2) 4 = Zs eRe) bh O < Z. 06/52/10 ‘| 9S%9-ZS6( TOE) aa te ears gaan 200« NOISIAIG SQWVYONVIS NOILINWISNOD GA fait. CoALISY NOILD3S SLIWW3d *433IHD WV °H S3NVE . *NOLAVMYOSNI ONTLLINGNS WO *39T10N 2402 Ok O¥OI¥YH waden SIHL ANORY SNIWINCNI N3HA (*°ON so? xog 0 4 : t3¥) W3GWNN ZAOSY 3HL 35M SAVAT 4 ; @ 31L3N3MH 2 wee SSar*HiIWS © 4 t ' $6EE-7S6 . --SNOTLVIIIdd¥ W3IHIO TV bO%$-256 | --SNOLLVDIdY ADNYEN220 OY 350 __. ; LOL$-256 --SNOJAVIIIddY NOISIAIOGNS ¥O TvID¥aWWOD ‘ONTOVED :ONlOUWvoay | STE¥L30 WO4 VIYD AWW MOA |ADNZDV LVHL LDVANOD MOA LV O3ONIHWODIIY ST LI f *NOISSIWSNS W21d¥ SHLNOW (9) XIS B¥IdKa TIM NOLAVIITdeY WNOA BIKIS *OTLIINENS AVIN3D3¥ MOA MDTHM LIWW3d ONY NOTLYNINVX3 HYId WOS NOTIVIIWEY BHA 4O INDO | i 3ON3WHOI3¥ SVH wane te QNINNY 1d ONY X¥¥d TYNOJIYN ONYTANYW 3HL i 22202 OVOV WYN w3IddN, r | is * " HI¥NHI, OZS91 = =NOTLVI07 00 M92-68-8OL0T *ON 23¥i} ‘ 3 F 2 $22¥YNNS 3U VWAN3WNOWI ANZ. JO IN3ML¥Vd30--ALNNOD $1394U39 JINIVG 3 143a APPENDIX V CONSTITUTIONAL AND STATUTORY PROVISIONS U.S Constitution Amendment V No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself. nor be deprived of life, liberty, or Property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its Jurisdiction the equal protection of the laws. UNITED STATES CODE (1994) TITLE 42 144a § 1983. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, 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 States or other person within the jurisdiction thereof 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, For the purpose of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. MARYLAND CONSTITUTION (Michie 1997 Repl. Vol.) Article IV Section 18. Powers and duties of Chief Judge of Court of Appeals; assignment of judges; rule-making power of Court of Appeals. (a) The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1951%3A2. Public record. Not legal advice.