author: Moore, J.,

text:
    JAMES ARTHUR CALHOUN v. STATE OF MARYLAND
    [No. 1438,
    September Term, 1979.]

      Decided September 8, 1980.

      The cause was submitted on briefs to Morton, Moore and Mason, JJ.
    Submitted by Thomas J. Saunders, Assistant Public Defender, and Alan II. Murrell, Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph A. Dugan, Assistant State’s Attorney for Prince George’s County, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Defendant-appellant, James Arthur Calhoun, pleaded guilty in the Circuit Court for Prince George’s County (Blackwell, J.) to two counts of robbery with a deadly weapon and two counts of use of a handgun in the commission of a crime of violence, arising from two separate grocery store robberies in 1978. Pursuant to Md. Ann. Code, art. 27, § 643B (1979 Cum. Supp.), he was sentenced to a total of fifty years without the possibility of parole.

After an appeal was taken by the defendant to this Court, the State noted a cross-appeal as authorized by Md. Cts. & Jud. Proc. Code Ann. § 12-401 (1980), challenging the sentences imposed upon the defendant. The issues before us relate to:

1) The trial- court’s acceptance of defendant’s guilty pleas pursuant to Md. Rule 731;
2) The trial court’s refusal to allow defendant to withdraw his guilty pleas;
3) The legality of consecutive sentences for the crimes of robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence, when both crimes arise from the same incident;
4) The applicability of the enhanced sentencing provisions of Md. Code Ann., art. 27, § 643B (1979 Cum. Supp.) to this case; and
5) The legality, under the provisions of Md. Ann. Code, art. 27, § 643B (1979 Cum. Supp.), of the sentences imposed upon defendant.

I

According to the statement of facts in support of the guilty pleas, the defendant, armed with a sawed-off shotgun, robbed a grocery store in Prince George’s County of $1,663.94 on May 17,1978. Eight days later, armed with two pistols, defendant robbed another grocery store in the county of $4,200.00. During the course of the second robbery one of the guns discharged but no one was injured.

Indictments were handed down on August 16, 1978 and November 15,1978 charging the defendant in the robberies. Warrants were issued for defendant’s arrest. On May 7,1979 the State requested temporary custody of defendant from the Lorton Reformatory where he was incarcerated for a District of Columbia conviction. Defendant was returned to Maryland, and on June 21, 1979 he confessed to both robberies.

The State filed a notice of mandatory sentencing pursuant to Md. Rule 734 (c) alleging that defendant had prior convictions for crimes of violence and at least one term of confinement in a correctional institution and, therefore, that it would seek the maximum mandatory sentence without the possibility of parole or suspension under Md. Ann. Code, art. 27, § 643B (1979 Cum. Supp.), supra n. 1. On August 7,1979 the defendant withdrew his not guilty plea and pleaded guilty to two counts of robbery with a deadly weapon and two counts of use of a handgun in the commission of a crime of violence.

Prior to sentencing, defendant filed a motion to withdraw his guilty pleas. On October 11, 1979, the court considered and denied the motion. The court then sentenced defendant to twenty years for each of the robberies and five years for each of the handgun offenses; the sentences were all to run consecutively for a total of fifty years. In an amended commitment record it was recited that the sentences had been imposed under § 643B (c) and, therefore, were without possibility of suspension or parole. The sentences were made concurrent with a fifteen year to fife sentence the defendant was serving in the District of Columbia.

II

In the first of a two-pronged attack on his guilty plea, the defendant asserts that the trial court did not comply with Md. Rule 731 because the record does not show that his pleas were "fully voluntary where the questioning only concerned promises or threats made in order to obtain his guilty plea.”

The record of the August 7,1979 proceedings, in which the pleas were entered, discloses that defendant, in a lengthy colloquy with the court, acknowledged that he was pleading guilty because he was, in fact, guilty; that no promises or threats had been made as an inducement for the pleas; that he could not be required or forced to plead guilty; and that he was voluntarily entering his pleas of guilty. The defendant also related that his education included two years of college and that he understood the nature and consequences of his pleas. Nothing in the record remotely suggests that the guilty pleas were anything but intelligently and voluntarily entered in accordance with Md. Rule 731. Davis v. State, 278 Md. 103, 118, 361 A.2d 113, 121 (1976); McCall v. State, 9 Md. App. 191, 195, 263 A.2d 19, 23 (1970).

Ill

Defendant cites Fontana v. State, 42 Md. App. 203, 399 A.2d 950 (1979), in support of his contention that the trial court erred by denying his motion to withdraw his guilty pleas. In Fontana, we held that "the right to withdraw a guilty plea is a discretionary matter which will not be overturned unless abused.” Id. at 205, 399 A.2d at 951. The Rules permit the court to allow the withdrawal of the plea "when justice requires.” Md. Rule 731 (f) (1).

At the hearing on defendant’s motion, he testified that "[bjrutality and inhumane conditions at the Prince George’s County Jail” had prompted him to enter his pleas of guilty. The court found "no real evidence” to support defendant’s assertion. Upon our review of the record, we conclude that the court did not abuse its discretion in denying the motion.

IV

Defendant’s next contention, that it is improper "to enhance punishment twice because of the single factor of use of a weapon,” need not long detain us. He recognizes in his brief that the issue was pending before the Court of Appeals. In the interim the Court has spoken. Whack v. State, 288 Md. 137, 416 A.2d 265 (1980). There the Court said:

"The Legislature’s concern about the use of a weapon to intimidate a robbery victim, and its additional concern when that weapon is a handgun, is certainly not unreasonable. When it expressly shows an intent to punish, under two separate statutory provisions, conduct involving those aggravating factors, the Fifth Amendment’s double jeopardy prohibition has not heretofore been regarded as a bar.”

Id. at 150, 416 A.2d at 271. In light of Whack there was no error in the imposition of consecutive sentences for the robbery and handgun offenses of which defendant was convicted. See Stevenson v. State, 43 Md. App. 120, 131-32, 403 A.2d 812, 819 (1979), aff'd, 287 Md. 504, 413 A.2d 1340 (1980).

V

When a defendant has two prior convictions for crimes of violence and has served at least one term of confinement in a correctional institution as a result of such a conviction, then the State may seek mandatory sentencing under Md. Ann. Code, art. 27, § 643B (c) (1979 Cum. Supp.). See n. 1, supra. After due notice filed by the State, defendant was sentenced under the provisions of § 643B (c) to a total of fifty years without the possibility of parole. He now contends that the State did not establish a sufficient predicate for the mandatory sentencing because one of the prior convictions relied upon by the State, the third conviction listed below, was obtained under the Federal Youth Corrections Act (F.Y.C.A.), 18 U.S.C. §§ 5005-5026 (1976). He asserts that such adjudications of guilt are not "convictions” under § 643B.

At the sentencing hearing the State submitted records to prove that defendant had prior convictions for crimes of violence, as follows:

1) Robbery; January 4, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010 (c) (1976).
2) Attempted robbery; April 27, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010 (c) (1976).
3) Robbery with a deadly weapon; January 19, 1973; Superior Court of the District of Columbia; 10 years under 18 U.S.C. § 5010 (c) (1976).
4) Robbery; August 12, 1971; Circuit Court for Montgomery County; 6 years — suspended and probation; reimposed for violation of probation on May 23, 1974; and
5) Robbery with a deadly weapon; aggravated assault; two counts of carrying a pistol; April 25, 1979; Superior Court of the District of Columbia; 15 years to life for armed robbery; 3-9 years for assault, consecutive; 2-6 years on weapons offenses, concurrent with each other but consecutive to other sentences.

The court disregarded the most recent conviction because it was on appeal at the time of sentencing. In addition, the State concedes on appeal that the District of Columbia robbery and attempted robbery convictions are not necessarily crimes of violence as defined by § 643B (a) because robbery in the District of Columbia includes "crimes accomplished by stealth and which do not involve violence or putting the victim in fear.” See D.C. Code § 22-2901 (1973); Butler v. State, 46 Md. App. 317, 323, 416 A.2d 773, 776 (1980). Defendant does not deny that the Montgomery County conviction for robbery is a prior conviction of a crime of violence for which he served a term of incarcertation in the Maryland State Penitentiary.

The sole question, therefore, under § 643B (c) is whether appellant’s District of Columbia conviction on January 19, 1973 for armed robbery pursuant to the F.Y.C.A., 18 U.S.C. § 5010 (c) (1976), qualifies as a predicate "prior conviction.” He contends that "[a] juvenile 'conviction’ cannot be used as a basis for enhanced punishment.”

Under federal law a "juvenile” is "a person who has not attained his eighteenth birthday,” or for the purpose of proceedings and disposition as a juvenile, one "who has not attained his twenty-first birthday” and who committed a violation of the criminal law of the United States prior to his eighteenth birthday. Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 (1976). Commitment shall not extend beyond the juvenile’s twenty-first birthday. 18 U.S.C. § 5037. The adjudication of delinquency is not a criminal conviction. See Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963).

A youthful offender subject to the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1976), on the other hand, is a person "under the age of twenty-two years at the time of conviction.” 18 U.S.C. § 5006 (d). The purpose of the F.Y.C.A. is to provide separate facilities for offenders under the age of twenty-one in order that they may be segregated from older, hardened criminals, thus improving their prospects of rehabilitation. 18 U.S.C. § 5011. See generally Dorszynski v. United States, 418 U.S. 424, 431-36 (1974). Courts are authorized to impose indeterminate sentences wherein the parole commission determines the actual length of incarceration. 18 U.S.C. 5010 (b), (c), and (e). The statute does not otherwise change the legal status of a "committed youth offender.” 18 U.S.C. § 5006 (e). He is still convicted of a crime. United States v. Ashley, 569 F.2d 975, 978 (5th Cir.), cert. denied, 439 U.S. 853 (1978).

In construing an habitual offender statute and whether or not a conviction under the F.Y.C.A. may be used as a basis for sentencing, the United States Court of Appeals for the Second Circuit has reasoned:

"No purpose of the youth offender statute would be served by refusing to treat appellant as a second offender. Section 5010 is designed to afford an opportunity for rehabilitation. Appellant did not take advantage of that opportunity. There is thus no rational basis for disregarding his previous conviction.”

United States v. Wilson, 404 F.2d 531, 534 (2d Cir. 1968), cert. denied, 394 U.S. 1003 (1969).

Here, the defendant was tried as an adult and convicted of armed robbery. The rationale of Wilson is compelling. We find no error in the trial court’s consideration of defendant’s District of Columbia conviction for armed robbery as a prior conviction of a crime of violence under § 643B. To conclude otherwise would contravene the Legislature’s express intention to punish third offenders more severely. See State v. Temoney, 45 Md. App. 569, 414 A.2d 240 (1980).

VI

The trial court sentenced defendant to twenty years on each of the robbery counts and five years on each of the handgun counts, and made the sentences consecutive, and without the possibility of parole under § 643B (c). Both the defendant and the State have appealed, alleging that the trial court committed error in interpreting the statute and in imposing the sentences. Subsection (c) provides:

"(c) Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 3 IB, § 11.”

The State in its cross-appeal argues that § 643B (c) mandates that a twenty-five year sentence be imposed for each of the four separate crimes of violence as defined in § 643B (a), i.e., two "robberies with a deadly weapon” and two "uses of a handgun in the commission of a crime of violence.” As stated in its brief:

"The State contends that this clause requires that the trial court impose the maximum sentence allowed by law for each subsequent conviction of a violent crime, but that a sentence of at least twenty-five years must be imposed when the maximum sentence allowed by law is less than twenty-five years.”

In the State’s view the defendant is subject to the imposition of sentences aggregating 100 years without the possibility of parole. It does concede, however, that nothing in the section "appears to prohibit the imposition of concurrent terms for those offenses.”

Defendant argues that the statute "is meant to be applied once;.. . [that] it simply provides a minimum sentence for a third conviction of a crime of violence;” and that nothing in the section mandates the imposition of a sentence beyond the twenty-five year minimum. In other words, it is defendant’s position that only a single penalty of twenty-five years without parole or probation may be imposed.

Of course, in construing the statute we must observe its plain meaning and the "natural import of its language....” State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942 (1976). The interpretation of this provision must be accomplished " 'without resorting to subtle or forced construction....’ ” Howell v. State, 278 Md. 389, 393, 364 A.2d 797, 799 (1976), quoting from Cearfoss v. State, 42 Md. 403, 407 (1875). In construing a penal statute and in resolving a dispute over the severity of the penalty, a presumption arises in favor of the lesser penalty over the greater one. Wright v. State, 24 Md. App. 309, 319-20, 330 A.2d 482, 488 (1975). Finally, internal consistency between the various provisions of a statute must be maintained, and subsections must, therefore, be interpreted in the context of the entire statutory scheme. Clark v. State, 2 Md. App. 756, 761, 237 A.2d 768, 770 (1968), cert. denied, 394 U.S. 1001 (1969).

Applying these standards to § 643B (c), it is apparent that the subsection mandates the imposition of one, and only one, sentence of not less than twenty-five years upon proof of the requisite prior convictions arising from separate incidents and proof of a prior period of incarceration resulting from a crime of violence. We reach this conclusion for several reasons. First, the plain language of the section does not purport to cover third or subsequent offenses. Compare Md. Ann. Code, art. 27, § 293 (1976) dealing with multiple offenders of the laws governing controlled dangerous substances: that section provides for an enhanced punishment for a "second or subsequent offense” (emphasis added). Second, § 643B (b) provides for a mandatory life sentence for the fourth conviction of a crime of violence, if the defendant has served three prior and separate terms of confinement. Common sense dictates that the sentence under § 643B (c) should be less severe than the mandatory life sentence under § 643B (b) wherein the predicates are more stringent. Yet, under the State’s interpretation of the statute, the defendant here must be sentenced to four twenty-five year terms, which could be made to run consecutively to each other for a total sentence of 100 years without the possibility of parole, i.e., a life term could be achieved without meeting the prerequisites of § 643B (b), an obviously illogical result.

In imposing sentence, the trial court viewed the armed robbery and related handgun offense as arising out of the same incident and, therefore, subject to the statutory minimum of § 643B (c). Defendant received consecutive sentences totalling twenty-five years under each of the two indictments, for an aggregate sentence of fifty years without the possibility of parole. This was error. Instead, the trial court should have sentenced defendant to a twenty-five year term without the possibility of parole under § 643B (c) only on the count in the first indictment of robbery with a deadly weapon, defendant’s third qualifying conviction of a "crime of violence.” Normal sentences with the possibility of parole under the appropriate statutory authority should have been imposed on the remaining three counts. Of course, the sentences could be made to run consecutively to each other as was done below.

In sum, our holding is that § 643B (c) permits the imposition of only one mandatory sentence without the possibility of parole. The draftmanship of the statute is patently inartful. Any change, however, must be left to the legislature.

Convictions affirmed; sentences vacated; case remanded for resentencing in accordance with this opinion; costs not to be reallocated as part of the judgment of this court pursuant to Md. Rule 1082 (f).

      . Section 643B reads:
      "§ 643B. Mandatory sentences for crimes of violence.
      "(a) 'Crime of violence’. — As used in this section, the term 'crime of violence’ means abduction; arson; kidnapping; manslaughter, except involuntary manslaughter; mayhem; murder; rape; robbery; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; and assault with intent to rape.
      "The term 'correctional institution’ includes Patuxent Institution and a local or regional jail or detention center.
      "(b) Mandatory life sentence. — Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted of a fourth time of a crime of violence, to life imprisonment without the possibility of parole. Regardless of any other law to the contrary, the provisions of this section are mandatory.
      "(c) Third conviction of crime of violence. — Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.
      "(d) Compliance with Maryland Rules. —• If the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender.”
      Md. Ann. Code, art. 31B, § 11 (1979 Cum. Supp.), referred to in § 643B (c), allows limited parole for those who are confined in the Patuxent Institution.

      . At trial, the State asked for a total sentence of seventy years without the possibility of parole. It computed this figure by adding up the normal maximum sentences for all four crimes; i.e., twenty years for each of the two robberies and fifteen years for each of the two handgun offenses. The State then applied the § 643B (c) twenty-five year minimum to the aggregate of seventy years and concluded that seventy years without the possibility of parole was required by the statute. On appeal, the State has abandoned this approach in favor of applying the twenty-five year minimum separately to each of the counts.
      Since we conclude that both interpretations urged by the State are incorrect, we do not decide what, if any, impact the State’s change of position should make.

      . The subsection requires that a defendant within its ambit be sentenced "to the term allowed by law, but, in any event, not less than 25 years.” § 643B (c). The State argues that "this clause requires that the trial court impose the maximum sentence allowed by law for each subsequent conviction of a violent crime, but that a sentence of at least twenty-five years must be imposed when the maximum sentence allowed by law is less than twenty-five years.”
      In response to this argument, defendant contends that the State "requires that one ignore the plain meaning of the words and supply a meaning not provided in the language of the statute.” He views the statute as providing only a minimum sentence for a third conviction of a crime of violence, and nothing more.
      We need not decide the question in this appeal because the twenty-five year minimum sentence is the only possible sentence under § 643B (c), the normal maxima for the offenses all being less than twenty-five years.

      . Of course, there is one situation where a life sentence without the possibility of parole could be imposed under § 643B (c). When the "term allowed by law” for the offense is life imprisonment and the subsection’s predicates have been satisfied, then a defendant could receive a legal no-parole life sentence under the subsection.

      . Although not urged upon us by defendant, we note that an absolutely literal reading of § 643B (c) would prevent the imposition of its mandatory sentence if the State were to prove more than two prior convictions for violent crimes. Such an interpretation of the section is unrealistic and not required by the declared legislative intent. Instead, we think that § 643B (c) is applicable upon proof of two prior convictions for violent crimes and the requisite term of confinement without regard to the existence of other equally qualifying convictions.
      In addition, we note that unless a defendant’s two prior convictions occur on “two separate occasions” the predicates of § 643B (c) have not been satisfied. This is true even when the two prior convictions arise from totally separate incidents. Thus, a defendant who is convicted at one trial of several crimes of violence may escape the mandatory sentence of § 643B (c). In contrast, however, the mandatory life sentence provision, § 643B (b), requires only "three separate convictions.” It does not require that the convictions be obtained on separate occasions. These discrepancies and variations are indicative of the need for legislative clarification of this statutory enactment. See McLee v. State, 46 Md. App. 472, 418 A.2d 1238 (1980).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    MONTGOMERY COUNTY, MARYLAND v. FREDERICK L. HORMAN, JR. et al.
    [No. 1648,
    September Term, 1979.]

      Decided September 8, 1980.

    The cause was argued before Thompson, J., and M. Albert Figinski, Associate Judge of the Eighth Judicial Circuit and Stanley Klavan, Associate Judge of the District Court of Maryland for District 6, specially assigned.

      Henry C. Clarke, Jr., Assistant County Attorney for

      Montgomery County, with whom were Paul A. McGuckian, County Attorney for Montgomery County, and Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, on the brief, for appellant.

      Harry W. Lerch, with whom were Robert G. Brewer, Jr., and Lerch, Early & Roseman, Chartered on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Montgomery County, the appellant, appeals from a judgment of the Circuit Court for Montgomery County reversing the zoning action by the County Council of Montgomery County (Council) insofar as it involved land of the appellees, Frederick L. Horman, Jr. and Russell Coleman, Trustee, appellees. The trial judge made findings of fact which we accept and with moderate editing adopt as our own.

Appellees purchased approximately 124 acres of land northwest of the town of Boyds, Maryland, in 1966. The property is bounded on the west by the Chessie System railroad tracks and on the south by Bucklodge Road. When the appellees purchased the property, 89 acres were zoned as 1-1, and 35 acres were zoned R-R (now the R-200 zone; 1/2 acre residential). The industrially zoned portion had been so classified by the Council by local zoning map amendments in 1958 and 1963.

In 1973, the Montgomery County Planning Board (Board) and the Council proposed the Rural Zone Sectional Map Amendments. The studies preceding this action identified in detail certain areas to be downzoned, while recommending that other property be retained in existing zoning categories because of attributes such as proximity to railroad tracks and access to existing commercial areas. The planners recommended retention of the 1-1 zoning of appellees’ 89 acres of 1-1 zoned property in accordance with this policy. On August 20, 1974, the Council effectuated the Rural Zone Map Amendments in Resolution 7-1909, thereby retaining the 1-1 status of 89 acres of appellees’ land. The Maryland Court of Special Appeals affirmed Resolution 7-1909 in an unreported decision, W.C. & A.N. Miller Development Co. v. Montgomery County, Maryland (No. 1107, Sept. Term, 1977, filed August 8, 1978).

In 1976, while the appeals of the Rural Zone Sectional Map were still pending, the Board began work on a new master plan for the Boyds area. As required by Md. Code, Art. 66D, § 7-108 (1957), the boundaries of the Boyds Master Plan were described with particularity. These boundaries indicate that the Boyds Master Plan includes 99.6 acres of the appellees’ land, but excludes 24.4 acres of appellees’ 1-1 zoned land. On December 2, 1977, a "Final Draft” of the Boyds Master Plan was released and submitted to the Council. The boundary continued to exclude approximately 24.4 acres of appellees’ property. In this version of the Boyds Master Plan, the Board recommended retention of the 1-1 zoning of the 89 acres of appellees’ property, with the suggestion that further comment on the retention of 1-1 zoning be pursued at the public hearing on the final draft plan. In another "Final Draft” of the Boyds Master Plan, dated March 31,1978, the proposals of the earlier (December 2) draft were substantially revised to recommend that the amount of 1-1 zoned land on appellees’ site be reduced to 5-0-75 acres. Public hearings were held prior to both drafts. On April 6, 1978, the Board accepted the revised language proposing downzoning to 50-75 acres of 1-1 land. However, upon presentation of the final "Final Draft” of the plan to the Council on April 11, 1978, the Council further reduced the 1-1 acreage on appellees’ land from 50-75 to 10-35. On May 9, 1978, the Council approved this final form of the Boyds Master Plan, recommending that the 89 acres of appellees’ 1-1 zoned land be reduced to 10-35 acres.

On May 22,1978, the Board transmitted rezoning application number G-119, known as the Boyds Sectional Map Amendment, to the Council. This rezoning application requested, inter alia, the downzoning of approximately 69 acres of appellees’ property from the 1-1 zone to the rural zone, reducing appellees’ 1-1 zoned property from 89 acres to 20 acres. Included within the downzoning requested in the application G-119 were 24.4 acres of appellees’ 1-1 zoned land which lay outside the boundaries of the Boyds Master Plan. The Technical Staff of the Montgomery County Planning Board, in a report dated June 26, 1978, recommended approval of the Boyds Sectional Map Amendment. The rationale offered in this report, based upon projected traffic levels in the area was as follows: "While the theoretical capacity of the local roads may be higher, it is the opinion of the staff that the traffic levels recommended here are consistent with the rural nature of the Boyds area.” On July 12, 1978, at a public hearing held by the Board, concerns related to industry-generated traffic and its impact on safety were voiced by the president and vice president of the Boyd Civic Association and by individual citizens. On October 10, 1978, the Council, sitting as the District Council for that /portion of the Maryland-Washington Regional District located in Montgomery County, by Resolution 8-2217 (as amended on October 31,1978) granted application G-119 for a sectional map amendment reclassifying 1019.56 acres including 89 acres of appellees’ property, 24.4 of which lay outside the designated boundaries of the Boyds Master Plan. As stated in the Resolution, the Council’s decision to downzone 69 of the 89 acres of appellees’ 1-1 zoned land was based upon the concerns with respect to traffic conditions and their effect on rural character of the Boyds area voiced at the public hearing and in the Board’s technical staff report.

The trial judge quite properly found the zoning involved here was comprehensive rezoning but fell into error because he applied standards of review applicable to other types of rezoning and not applicable to comprehensive rezoning.

The Court of Appeals has set forth the function of Maryland courts in reviewing comprehensive rezoning legislation in Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 4, 246 A.2d 220, 221-22 (1968) as follows:

"Zoning is a legislative function, and when reviewing the acts of zoning authorities, the duty of the courts is to decide whether such action was arbitrary, discriminatory or illegal [citations omitted] .... When a comprehensive map designed to cover a substantial area is adopted, it is entitled to the same presumption of correctness as an original zoning [citations omitted]. Thus, persons attacking the correctness of the map’s classifications have a heavy burden of overcoming the presumption of their validity. This burden is heavier in the case of comprehensive zoning than in the case of a piecemeal reclassification [citations omitted].”

As this Court said in Stump v. The Grand Lodge of Ancient, Free and Accepted Masons of Maryland, 45 Md. App. 263, 269, 412 A.2d 1305 (1980):

"Zoning decisions which are made during a comprehensive rezoning process are strongly presumed to be correct. See Heller v. Prince George’s County, 264 Md. 410, 412, 286 A.2d 772 (1972); Iverson v. Zoning Bd., 22 Md. App. 265, 267-68, 322 A.2d 569 (1974). The reason for this strong presumption is that when engaged in comprehensive rezoning, the County Council is not considering individual properties on an isolated or piecemeal basis, but rather, it is considering the overall needs and development of the County as a whole. See McBee v. Baltimore County, 221 Md. 312, 316-17, 157 A.2d 258 (1960); Grooms v. La Vale Zoning Board, 27 Md. App. 266, 279, 340 A.2d 385 (1975).
"Comprehensive rezoning is a vital legislative function, and in making zoning decisions during the comprehensive rezoning process, a County Council is exercising what has been described as its 'plenary’ legislative power. The power is broad and is limited only by the constitutional restriction that the Council’s action 'bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare. ...’ Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66, 254 A.2d 700 (1969); Coppolino v. County Board of Appeals, 23 Md. App. 358, 370, 328 A.2d 55 (1974).”

It is apparent to us that the appellees did not meet the heavy burden on them to show that the Council’s actions did not bear a substantial relationship to public health, comfort, order, safety, convenience, morals or general welfare. We will, however, briefly answer the appellees’ arguments.

Appellees make the argument that there is no evidence to show a substantial relationship of the rezoning to the public health, comfort, order, safety, convenience, morals and general welfare. Once again, reliance upon piecemeal zoning cases such as County Commissioners of Anne Arundel County v. Fairwinds Beach Club, Inc., 230 Md. 569, 187 A.2d 845 (1963) is misplaced. The burden is upon the property owner to show that there is no substantial basis for the decision. Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 67, 254 A.2d 700 (1969).

Appellees next argue that the downzoning of the property constituted an impermissible "change of mind” by the appellant. In support of their argument, they cite Schultze v. Montgomery Co. Planning Board, 230 Md. 76, 185 A.2d 502 (1962) and Kay Construction Co. v. County Council for Montgomery County, 227 Md. 479, 177 A.2d 694 (1962) which involved piecemeal zoning, and Lambert v. Seabold, 246 Md. 562, 229 A.2d 116 (1967) and Polinger v. Briefs, 244 Md. 538, 224 A.2d 460 (1966) which involve the "change-mistake” rule.

Appellees next argue that the Council’s action in downzoning the property was arbitrary and capricious because of the absence of change. In making this argument, they concede under Coppolino v. County Board of Appeals, 23 Md. App. 358, 328 A.2d 55 (1974) the "change-mistake” rule does not apply to the comprehensive rezoning yet say that some change is necessary to prevent a rezoning from being arbitrary and capricious. In that case [23 Md. App. at 370], we specifically held "that the absence of a showing of either change or mistake prior to a comprehensive rezoning does not constitute error.” The appellees have misconstrued our holding in Coppolino. There was substantial evidence to support the Boyds Sectional Map Amendment as a whole. It was neither arbitrary nor capricious for the Council to conclude that the preservation of the rural and residential character of Boyds was a desirable end.

Appellees assert that the zoning action was arbitrary because it was based upon a plebiscite of the neighborhood citing the various "decisions to revise a number of acres of land there was to be permitted on the appellees’ property.” In comprehensive rezoning it is proper for the zoning authority to consider the opinions of the citizens. So long as there is any rational basis for legislative action, that action will be upheld by the courts. As we have stated it was reasonable for the Council to conclude that the desirability of preserving the rural and residential character of Boyds required the zoning changes.

Appellees further contend that the rezoning of the 24.4 acres of the land outside of the Boyds area was improper. They concede that under Chapman v. Montgomery County Council, 259 Md. 641, 271 A.2d 156 (1970), a Master Plan is only a guide for further development and has no mandatory legal effect. They, nevertheless, argue the plan does not support a legislative action outside the boundaries of the plan based upon recommendations contained within the plan. We agree. The Council’s reliance upon Montgomery County v. Woodward and Lothrop, Inc., 280 Md. 686, 703-04, 376 A.2d 483 (1977), cert. denied, sub nom. Funger v. Montgomery County, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 769 (1978) is misplaced. In that case the rezoned area was a small area within the Master Plan area.

Finally, relying upon Mayor and City Council v. Mano Swartz, Inc., 268 Md. 79, 299 A.2d 828 (1973), appellees argue that an ordinance based solely upon aesthetic considerations is invalid. They allege that the Council’s sole ground for the downzoning was aesthetic because it was based upon preserving the rural character of Boyds. It seems to us that the function of zoning is to preserve various types of neighborhoods, be they residential, industrial, commercial or historical, and it was quite a legitimate consideration for the Council’s zoning to preserve the rural character of the Boyds community. See, Mano Swartz, supra, 268 Md. at 92, 299 A.2d at 835, Norbeck Village, supra, 254 Md. at 65-66, 254 A.2d at 704, County Commissioners v. Miles, 246 Md. 355, 365, 228 A.2d 450, 455 (1967).

Judgment affirmed in part, reversed in part.

Case remanded for passage of order in conformity with this opinion. Costs to be equally divided.

      . The cases relied on by the trial judge, Dundalk Holding Co. v. Horn, 266 Md. 280, 292 A.2d 77 (1972) (which involved a special exception) and Hedin v. Board of County Commissioners, 209 Md. 224, 233, 120 A.2d 663, 667 (1956) and Offutt v. Board of Zoning Appeals, 204 Md. 551, 562, 105 A.2d 219, 224 (1954) (both of the latter cases involve piecemeal rezoning) are not comprehensive rezoning cases.


author: Couch, J.,

text:
    THE HOWARD RESEARCH AND DEVELOPMENT CORPORATION et al. v. HOWARD COUNTY, MARYLAND et al.
    [No. 1670,
    September Term, 1979.]

      Decided September 8, 1980.

      The cause was argued before Moore and Couch, JJ., and Jacob S. Levin, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      George P. Barker and Richard G. McCauley, with whom were Frank, Bernstein, Conaway & Goldman on the brief, for appellant Howard Research and Development Corporation. Thomas E. Lloyd, with whom were Lloyd, Kane & Wieder on the brief, for appellant BP Oil, Inc.

      Timothy E. Welsh, County Solicitor for Howard County, with whom were Pamela B. Sorota, Assistant County Solicitor for Howard County, and Paul T. Johnson, Assistant County Solicitor for Howard County, on the brief, for appellee Howard County, Maryland. Barbara Gold on the brief for appellee Concerned Citizens for the Columbia Concept.
   Couch, J.,

delivered the opinion of the Court.

The Board of County Commissioners of Howard County, in May, 1965, amended the Howard County Zoning Regulations by adopting Section 17 which provided for the creation, organization and regulation of a floating zone known as a New Town (NT) District. This new section of the zoning regulations provided that the beneficial owner of any tract of land in Howard County meeting the requirements of Section 17.012 (NT District must contain total area of at least 2,500 contiguous acres) may petition the Board of County Commissioners to designate the property an NT District. A Preliminary Development Plan (PDP) must accompany the petition.

Howard Research and Development Corporation (HRD) submitted such a petition accompanied by a PDP for the placement of approximately 13,600 acres of land in what was to be known as the Columbia New Town District (Columbia). The petition and the PDP for Columbia were approved by the Board of County Commissioners in August of 1965. Following the approval of the PDP, HRD had the choice, under the zoning regulations, of either developing the entire NT District or developing the NT District in separate geographical segments. HRD chose the latter, more manageable course. The process of developing phases of the PDP involves submission of a Final Development Plan (FDP) for each geographical segment (phase) to the Planning Commission for its review and approval.

In November, 1968, a county charter was adopted by the citizens of Howard County. In that charter, the Planning Board was designated to succeed the Planning Commission with regard to matters involving New Town Districts. A Zoning Board was also created and, pursuant to the Zoning Enabling Act, Howard County Code §§ 16.200-210, the Zoning Board, in October, 1977, adopted the 1977 Zoning Regulations. § 119 of the new regulations, governing NT Districts and particularly Columbia, is virtually identical to § 17 of the 1961 Zoning Regulations.

The specific controversy in this case focuses upon Phase 36 of the Final Development Plan which was approved by the Planning Commission in April, 1968. Phase 36 involves approximately 139 acres of land located in a section of the Oakland Ridge Industrial Park in the Columbia New Town District. Approximately 57 acres (collectively, the "Base Parcel”) of Phase 36 were designated for development and given the land-use designation of "Employment Center — Industrial Area.” Having obtained the approval of the Planning Commission, the FDP Phase 36 map and accompanying "criteria” were recorded among the Land Records of Howard County.

The problem presented here deals with the specific implementation of the Final Development Plan — Phase 36. The FDP Phase 36 criteria provides as follows:

"F. Permitted Uses — Section 17.031 D (of 1977 Zoning Regulations)
B. Commercial uses ancillary to, or compatible with, permitted industrial uses are permitted including, but not limited to, all of the following:
d. Gasoline service station.”

Under Paragraph 6.A. of the FDP criteria — Phase 36, "All structures constructed upon lots included within this phase shall be constructed in accordance with a site development plan approved by the Howard County Planning Commission.” In accordance with the Phase 36 criteria, BP Oil, Inc. (BP), appellant and contract purchaser of approximately 1.297 acres, designated as lot 79 in Oakland Ridge Industrial Park, petitioned the Planning Board for the approval of a site development plan which proposed the installation of a gasoline service station on the lot. As noted previously, a gasoline service station is categorized as a permitted use by the Phase 36 criteria. No other gas station had been built on the Phase 36 parcel and BP apparently believed that such a use was permitted as of right and that the imprimatur of the Planning Board, without the requirement of a formal public hearing, was all that was necessary to proceed with development of the lot. The Planning Board felt otherwise. The Howard County Planning Board, pursuant to § 119 C. 15 of the 1977 Zoning Regulations and the Board’s own Final Development Plan Criteria Policy, concluded that a determination "in the nature of’ a special exception decision had to be made by the Planning Board relative to the proposed location of BP’s gasoline service station, because the use had not been assigned to a specified parcel under the recorded FDP Phase 36 criteria.

The Planning Board conducted the proceedings as upon a petition for special exception which requires a public hearing, notice, presentation of evidence and the issuance of a decision and order. The previously referenced policy of the Board required the Board to apply the standards of § 122 F.16 of the Zoning Regulations, which provides for special exceptions for gasoline stations, to BP’s application. The Board held a public hearing on the petition on July 31, August 23, and September 20, 1978 at which appellees, the Concerned Citizens for the Columbia Concept (Protestants) appeared to protest the placement of the gas station on property bordering their residential area. Using the standards delineated in § 122 F.16 for the grant of a special exception, the Planning Board granted BP’s application.

The protestants, uncertain of the route an appeal must take from the Planning Board, filed appeals to both the Circuit Court for Howard County and the Board of Appeals of Howard County. These proceedings are now pending and, although they precipitated the instant case, they are not directly involved here. The protestants’ appeals raised various original and appellate jurisdictional questions involving the administration of the NT District which cast obstacles in the path of the commencement of construction of the gas station. Accordingly, appellant BP filed the present declaratory judgment action in the Circuit Court for Howard County. Appellant HRD, the developer of the Columbia NT District, intervened.

BP’s petition for a declaratory judgment requested the Circuit Court to declare (1) that the Board of Appeals of Howard County has no jurisdiction or authority to entertain an appeal from a decision of the Planning Board granting BP permission to erect a gasoline station in a NT District, (2) that the Planning Board has no authority to grant special exceptions under the zoning regulations applicable to the NT District, (3) that the action of the Planning Board in approving BP’s site development plan was valid, and (4) in the alternative, if it were found that the Planning Board had the authority to grant a permit for the service station as a special exception in the NT District, that its action in approving the site development plan and granting a special exception was valid. A "counterclaim” was filed by the "Concerned Citizens for the Columbia Concept” and several of its individual members in which they requested several things, the most important of which was that the Circuit Court declare that (1) the Planning Board’s approval was illegal, and (2) that they have a right to appeal to the Board of Appeals from the decision of the Planning Board.

After a hearing on the various issues the circuit court issued, in November, 1979, its Memorandum Opinion and Decree and declared the following:

"(1) That § 119 C.15. of the Zoning Regulations of Howard County is invalid, and therefore the Planning Board [note 5, supra] of Howard County had no authority to grant to the Petitioner, BP Oil, Inc. a special exception for a gasoline service station on Lot 79 in Oakland Ridge Industrial Park, as shown on Phase 36 of the Final Development Plan for the New Town of Columbia, recorded in Plat Book 14, Folio 64.
(2) That since the Planning Board of Howard County had no authority to grant said special ■exception, no appeal to the Board of Appeals of Howard County lies from the decision and order of the Planning Board purporting to grant said special exception in Planning Board Case No. 123.
(3) That original jurisdiction to permit said special exception lies in the Board of Appeals of Howard County.
(4) That the gasoline service station for which a permit was sought by the Petitioner, BP Oil, Inc., falls within the definition of an Automobile Gasoline Service Station as set out in § 104 A. 11. of the Zoning Regulations of Howard County,...”

HRD petitioned for a rehearing, which was granted. A second Memorandum and Order denying HRD’s motion to revise the earlier decree was issued in February, 1980. The February, 1980 Order reinstated the November, 1979 Order. Thus our review shall center upon the November, 1979 Memorandum and Decree.

Appellants, HRD and BP, raise the following issues with respect to the circuit court’s disposition of the petition for declaratory judgment:

"I. Under the Howard County Zoning Regulations, are there uses in New Town Districts which are to be treated as Special Exception uses requiring the approval of the Howard County Board of Appeals before they may be installed in a New Town District?
II. Does the Howard County Board of Appeals have the authority and jurisdiction to hear appeals from decisions of the Howard County Planning Board involving the final development plan process in a New Town District?
III. Does BP Oil, Inc. have a 'vested right’ to construct a gasoline service station on the property?”

I

As shall be seen the question of whether there are special exceptions in a New Town zoning district is determinative of the jurisdictional issue raised in appellants’ second argument. On the one hand, if special exceptions are contemplated by the NT zoning regulations, then original jurisdiction rests with the Howard County Board of Appeals, Howard County Code § 16.301 (1977). If there are no special exceptions then original jurisdiction for the approval of BP’s site development plan rests with the Planning Board. The course of appeal from the Planning Board also presents a problem but we will chart it when we arrive at that point.

Our answer to appellants’ first question is quite simple. There are no special exceptions in a New Town zoning district as established in the 1961 and 1977 versions of the Howard County Zoning Regulations.

Our conclusion that there are no special exceptions in a NT District derives from a reading of the New Town zoning regulations in their entirety, Pumphrey v. County Comm’rs. of Anne Arundel County, 212 Md. 536, 130 A.2d 297 (1957), which is the better source for divining legislative intent as opposed to reference to any one part of the zoning regulations. See Mazor v. State Department of Correction, 279 Md. 355, 369 A.2d 82 (1977). While we are mindful of the admonishment that no section of a statute should be rendered surplusage, we do not believe that § 119 C.15, having reference to all "matters which may be deemed to be in the nature of variances and special exceptions,” plays a part in the submission to the Planning Board for their approval of BP’s site development plan.

Preliminarily we note that FDP Phase 36 endured rigorous oversight before finding its way into the land records of Howard County. The proposed use for the land was first submitted under the 1961 regulations as a preliminary development plan to the Planning Commission and then to the County Commissioners who rezoned the area to a New Town District. The PDP under the provisions of § 17.021 c (1961) was required to show the general location of both residential and employment uses. Under § 17.023 the County Commissioners were required to hold a public hearing on the PDP and examine the PDP in detail. Following the approval of the PDP all prior existing zoning controls over property within the NT District which were inconsistent with the PDP ceased. Howard County Zoning Regulations, § 119 B.6.c. (1977). The PDP then became the controlling blueprint for the NT District but actual development could not begin until the FDP gained approval from the Planning Commission. Chief among the Planning Commission’s considerations in the FDP approval process was the "impact of the proposed commercial and industrial uses on the residential uses within the NT District or adjacent thereto.” § 17.034 D (1961). Nowhere in this development process for a NT District is there mentioned a special exception. In fact, the major thrust of the New Town regulations seems to be to achieve a compatible mix of uses with a good deal of flexibility built into the development scheme which is overseen by both the Planning Commission (presently the Planning Board) and the County Commissioners (who have been replaced in the NT scheme by the Zoning Board).

Section 119 A. 10 of the 1977 Regulations provides:

"Anything in other sections of these Regulations to the contrary notwithstanding, there shall be no restrictions upon the use of, or on the erection of buildings and structures on, land within an NT District other than such as are provided in the various subsections of this Section or in such other Sections of these Regulations as are expressly stated to be applicable by the various provisions of this Section.”

If a gasoline service station is a special exception in an NT District it clearly must be found in the NT regulations or by express reference to other sections of the Howard County Zoning Regulations. Section 122 which governs special exceptions, and specifically gasoline service stations as special exceptions, is mentioned once in the NT regulations:

"All intended uses which by Section 122 of these Regulations are permitted, with specific approval, only in residential districts, or in some residential districts and some non-residential districts, may be included in the Final Development Plan, either in the residential areas or Employment Centers shown on the Preliminary Development Plan. All intended uses which by Section 122 of these Regulations are permitted, with specific approval, only in non-residential districts, shall be included in areas marked Employment Centers on the Preliminary Development Plan.”

§ 119 B.2, Howard County Zoning Regulations (1977). This section does not import the entirety of § 122 into the NT zoning regulations. It merely provides that those uses which are listed as special exceptions in § 122 and permitted in either residential or non-residential areas under the regulations applicable to other than NT Districts shall be included either in the residential or Employment Centers shown on the PDP. A gasoline service station is one of those uses to which § 119 B.2. refers and was appropriately placed by the PDP in an employment center which is now FDP Phase 36. From these regulations it is evident that those uses which are considered special exceptions meriting strict control by the provisions of § 122 have been afforded the same modicum of controls by virtue of the NT development process which requires careful oversight for all uses which may be placed in the NT District.

Of course, the real culprit which has created vast amounts of confusion in the administration of and regulation of the Columbia New Town District by the Planning Board is § 119 C.15 which states that "The Planning Board shall have jurisdiction to make decisions and determinations with respect to all matters which may be deemed to be in the nature of variances and special exceptions.” We have searched the NT regulations for some inkling as to whát the phrase "in the nature of special exceptions and variances” could possibly refer and have concluded that the phrase does not require the interpretation that the trial court placed upon it. The trial court arrived at its conclusion that BP’s application amounted to an application for a special exception by the following reasoning:

"Section 119A. 10. states, in part, that: 'Anything in other sections of these Regulations to the contrary notwithstanding, there shall be no restrictions upon the use of, or on the erection of buildings and structures on, land within a NT District other than such as are provided in the various subsections of this Section or in such other Sections of these Regulations as are expressly stated to be applicable by the various provisions of this section.’ Section 119 A.8. provides that: 'Subject to the more restrictive provisions of § 119Cld relating to specific uses, all provisions of these Regulations relating in B-l, B-2, SC and M-l Districts (except those restrictions relating to minimum lot size, height limitations, parking requirements, front, side and rear yard areas, set back provisions and coverage requirements, and to controls afforded by the Final Development Plan set forth herein being substituted therefor) shall apply to those areas in the NT District designated on the approved Final Development Plan for uses corresponding to those permitted in the aforesaid districts.’
The parenthetical portion of the last regulation quoted is grammatically incomprehensible but any interpretation of it, by recourse to § 17.017 of the prior zoning regulations or otherwise, would not seem to affect the conclusion that uses permitted in the B-l, B-2 and M-l Districts are subject to the restrictions elsewhere in the Regulations applied to them, except as to minimum lot size, etc. Section 122 F. of the Regulations provides that 'The Board of Appeals may grant Special Exception uses in the specified [underscoring supplied] districts in accordance with the following minimum criteria:... .....16. Gasoline Service Stations: 'A Special Exception may be granted in the B-2, S-C, M-l, M-2 and ID Districts for gasoline service stations.....’. This Court does not construe the provisions of § 119 B.2. to mean that, since uses permitted with specific approval by Section 122 are to be included in specified areas on the Preliminary Development Plan, such uses, by virtue of being included, are thereby permitted as a matter of right. The language used indicates where such uses are to be located, just as Section 122 indicates where such uses are to be located. The purpose of the Section appears to be to supplement or amplify the provisions of § 119 A.9, which provides that the New Town District must provide a certain percentage of B-l, B-2, SC and M-l uses. The uses permitted with specific approval in those districts are not listed under the sections of the regulations defining those districts and specifying the uses permitted therein as a matter of right. Absent the provisions of § 119 B.2, there could be some question as to whether uses permitted with specific approval under § 122 are allowed in the New Town District. The interpretation placed on the language in § 119 B.2. appears to be supported by the language of § 119 C.15 and 16.
Since the provisions of § 122 F.16. relate to B-2, S-C and M-l Districts, it seems reasonable to conclude that a gasoline service station in an Employment Center in an NT District must be treated as a special exception. By the terms of § 122F, however, the Board of Appeals can grant a special exception only in the districts specified. Nowhere in § 122 is the NT District specified. It should be pointed out that the confusion is confounded further by the fact that the Board of Appeals is vested with the authority to permit, as special exceptions, certain uses in any district, viz: cemeteries and mausoleums, country clubs and golf courses, day care centers, farm commercial uses, public utility uses, and others.
Section 119 C.15. of the Zoning Regulations provides that 'The Planning Board shall have jurisdiction to make decisions and determinations with respect to all matters which may be deemed to be in the nature of variances and special exceptions.’ [Underscoring supplied] It is not easy to understand just what the quoted words mean. The writer is reluctant to construe the provisions to mean that the Planning Board is given the discretion to determine what it thinks or 'deems’ is a special exception. However, § 119 C. 16, added as an amendment in 1978, reads in part: 'Any petition for a land use in a New Town District permitted under Section 122 (F) of the Zoning Regulations in any F.D.P. (Final Development Plan) which has been denied by the Planning Board.......’. This seems to indicate that the Planning Board, in the New Town District, is vested with the authority to entertain applications for all the applicable uses designated as special exceptions in § 122 (F) although, as it has been observed, many of the special exceptions therein specified are permitted in any district with the approval of the Board of Appeals.”

We believe the trial court erred in viewing the reference to M-l Districts as requiring the conclusion that the present application be treated as a special exception. Once again, this section refers to the kinds of uses and their restrictions, not the method of their approval. The NT regulations replace § 122 insofar as that section provides certain protections before a specific use may be made of the area within the zone. BP’s site development plan presented a proposed use for the land which had been considered and approved by both the Planning Commission and the County Commissioners. To require the injection of the Board of Appeals, which has original jurisdiction over special exceptions, into this already lengthy process would serve the purpose of only rehashing the result which other bodies have reached after thorough consideration. Additionally, as previously noted, § 119 B.2. specifically directs the placement of those uses considered to be special exceptions in employment centers without resort to the procedural requirements of § 122.

The most important consideration, however, is the fact that the FDP Phase 36 criteria which has been promulgated according to the NT regulations and now has the full force and effect of a zoning regulation states that a gasoline service station is a permitted use for FDP Phase 36. The criteria must be considered on the same footing as all other NT regulations. Obviously, one cannot transform a permitted use sanctioned as a zoning regulation into a special exception simply by invoking the phrase "in the nature of a special exception”. We must construe § 119 C.15 so that it avoids an illogical result. The very use of the words "in the nature of indicates that the NT regulations do not contemplate the actual presence of a special exception but merely seek to resolve any potential jurisdictional conflict between the Planning Board and the Board of Appeals where the former considers a site development plan that proposes a use which would fall into the category and thus under the jurisdiction of the Board of Appeals were it not considered under the auspices of the NT regulations. Accordingly, we conclude that there are no special exceptions under the New Town zoning regulations. A reading of the zoning regulations in their entirety can only lead one to this conclusion.

Having negatively answered the question of whether there are special exceptions in a NT District, our remaining task becomes far easier. Appellants HRD and BP argue that the Howard County Board of Appeals has no authority and jurisdiction to hear appeals from decisions of the Howard County Planning Board involving the Final Development process. We note initially that the Howard County Board of Appeals has no original jurisdiction over BP’s petition since no special exception is involved. Section 122 F.16 of the 1977 Zoning Regulations, which gives the authority to the Board of Appeals to permit a gasoline station as a special exception, also limits the exercise of that authority to B-2, S-C, M-l, M-2 and ID Districts. No mention is made of an NT District in the grant of jurisdiction to the Board of Appeals. The Planning Board, however, clearly does have what may be termed original jurisdiction over the approval of BP’s site development plan, both by virtue of § 119 C.3.d and the FDP Phase 36 criteria. Paragraph 6. A. of the FDP Phase 36 states that "All structures constructed upon lots included within this phase shall be constructed in accordance with a site development plan approved by the Howard County Planning Commission.” Accordingly, we see no difficulty in leaving the approval of BP’s site development plan in the hands of the Planning Board.

With regard to the appropriate course of appeal from the Planning Board’s action concerning BP’s site development plan, we agree with appellee Howard County’s position that the Howard County Board of Appeals has the authority and jurisdiction to hear appeals from the Howard County Planning Board involving the final development process in a New Town District.

Howard County has been a "charter” county since 1968 and possesses the powers set forth in Article XI-A, § 2 of the Maryland Constitution and the Express Powers Act, Md. Ann. Code Art. 25A, § 5 (U) (1973 Repl. VoL, 1979 Supp.). Article 25A, § 5 (U) empowers charter counties to enact local laws establishing a county board of appeals. That section provides as follows:

"(1) for the establishment of a county board of appeals whose members shall be appointed by the county council; (2) for the number, qualifications, terms, and compensation of the members; (3) for the adoption by the board of rules of practice governing its proceedings; and (4) for the decision by the board on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; and the assessment of any special benefit tax: Provided, that upon any decision by a county board of appeals it shall file an opinion which shall include a statement of the facts found and the grounds for its decision. Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive.”

Howard County by Article V, Section 501 of its charter established the Howard County Board of Appeals and endowed it under § 501 (b) with the following authority:

"The Board of Appeals shall have and may exercise functions and powers relating to the hearing and deciding, either originally or on appeal or review, such matters as are or may be set forth in Article 25A, Section 5, subparagraph U of the Annotated Code of Maryland, excluding those matters set forth in Section 406(b) 13, hereof, including but not limited to, the following:
1. Appeals from orders relating to zoning.
2. Appeals from orders relating to licenses and permits.
3. Appeals from orders relating to building.
4. Appeals from executive, administrative and adjudicatory orders.”

Section 501 (f) of the Charter provides for furthering legislation:

"(f) Furthering legislation. The Council shall have the power to enact by ordinance furthering legislation not inconsistent with the provisions of this Article to implement and define the powers and functions of the Board of Appeals as herein specified. To the extent permitted by State law, the Council shall also have the power, by legislative act, to prescribe other appeals to be heard by the Board of Appeals in addition to thos [sic] specified in this Article.”

The furthering legislation enacted by the County Council is the vehicle for the appellants’ argument that the Board of Appeals has no appellate jurisdiction over the Planning Board’s actions with respect to site development approval in a New Town District. The Howard County Code, Subtitle 3, Section 16.301, enumerates the zoning powers of the Howard County Board of Appeals:

"The Howard County Board of Appeals shall have the following zoning powers:
(a) To authorize a variance or exception from the terms of the zoning regulations and the zoning districts....
(b) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by any administrative official in the application, interpretation or enforcement of this title or of any regulations adopted pursuant thereto.
(c) To authorize temporary uses of land,....
(d) To authorize such uses as the zoning regulations may provide from time to time.”

Appellants contend that this section, by the absence of specific mention of the Planning Board, or a general reference to it by inclusion of appeals from administrative boards in subsection (b), leaves a void in the appellate jurisdiction of the Board of Appeals which can be filled only by the County Council’s enactment of a new code provision.

We do not believe that the County Code by its silence deprives the Howard County Board of the jurisdiction expressly granted to it under both Art. 25A, § 5U, and the Howard County Charter. Article 25A, § 5U clearly states that local laws may be enacted which provide for decision by the Board of Appeals on review of the action of an administrative agency on matters arising from the "issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission ...” (emphasis supplied). Further, this method of appeal is made exclusive by Art. 25A, § 5U. Klein v. Colonial Pipeline Co., 285 Md. 76, 82, 400 A.2d 768 (1979). In Hope v. Baltimore County, 44 Md. App. 481, 409 A.2d 753 (1980), a jurisdictional dispute between Art. 25A, § 5U, and a Baltimore County Code provision purportedly vesting appellate jurisdiction over the Baltimore County Planning Board in the Circuit Court was addressed by this Court. We said:

"It is at once apparent that § 602 (d) of the county Charter provides that the Board of Appeals shall be the forum to hear and decide appeals 'from all other administrative and adjudicatory orders as may ... be provided by § 5 (U) of art. 25A. And it is equally clear that § 5 (U) envisions the establishment of a county Board of Appeals with exclusive authority to hear appeals from actions of administrative officers or agencies taken under the laws, ordinances or regulations of the county, where such actions involve 'the issuance, renewal, denial ... of any license, permit, approval ... or other form of permission. ...’55 (Emphasis added.)

Id. at 485. We also stated in that case that the "proper forum to hear initial appeals from decisions of the Planning Board approving or disapproving a subdivision plat” is the Board of Appeals. Id. at 486. We believe the same rationale applies to appeals from the Howard County Planning Board’s approval or disapproval of a site development plan submitted pursuant to any phase of a Final Development Plan. We also conclude that the Art. 25A, § 5U and the Howard County Charter unequivocally grant to the Howard County Board of Appeals the authority to entertain appeals of the sort presented in this case. The Howard County Charter’s clear and unambiguous statement that "The Board of Appeals shall have and may exercise functions and powers relating to the hearing and deciding ... on appeal or review, such matters as are ... set forth in Article 25A, § 5U...,” unequivocally grants jurisdiction to the Board of Appeals in this matter. The Howard County Code is not in conflict with the Charter — it is merely silent on the specific subject with which we are concerned. This Court does not understand that silence as prohibiting the exercise of appellate jurisdiction by the Board of Appeals in this case. Accordingly, we conclude that where the action of the Howard County Planning Board involves approval or disapproval of a site development plan filed pursuant to the New Town zoning regulations, an appeal will lie to the Howard County Board of Appeals.

As we have resolved the first issue and thus approved the final action but not the procedure of the Planning Board, it is not necessary to reach appellants’ third issue relative to whether BP has a vested right to construct a gasoline service station.

Decree reversed; case remanded for the passage of a decree consistent with this opinion.

Costs to be paid one-half by appellants and one-half by appellees, Howard County and the Concerned Citizens for the Columbia Concept.

      . The unique legal characteristics of New Town Districts and Planned Unit Districts were discussed by scholars before they were addressed by the courts. In determining that a planning commission was better qualified than a board of adjustment to handle large scale planning decisions, the Supreme Court of Pennsylvania relied on the expertise of Professor Krasnowiecki of the University of Pennsylvania. Cheney v. Village 2 at New Hope, Inc., 429 Pa. 626, 241 A.2d 81 (1968). See Krasnowiecki, Technical Bulletin 52, Urban Land Institute, 38 (1965), and Krasnowiecki, Planned Unit Development: A Challenge to Established Theory and Practice of Land Use Control, 114 U. Pa. L. Rev. 47 (1965).
      In Cheney the Pennsylvania Court upheld the planning commission’s approval of a planned self-contained community within a zoning district. The Court dismissed arguments that the community was the product of a special exception, finding instead the planned development complied with the zoning laws.
      The Court of Appeals has compared Cheney with its own support of delegated authority for comprehensive zoning. Montgomery County v. Woodward and Lothrop, 280 Md. 686, 718, 376 A.2d 483 (1977). See also Reno, Non-Euclidean Zoning: The Use of The Floating Zone, 23 Md. L. Rev. 105 (1963), and Mosher, The Floating Zone: Legal Status and Application to Gasoline Stations, 1 Tulsa L. Rev. 149 (1964).

      . "§ 17.012 — No NT District shall be created except by the procedure set forth in Section 17.02 hereof. Each NT District must contain a total area of at least 2,500 contiguous acres. Lands which are divided by streets, roads, ways, highways, transmission pipes, lines or conduits, or rights of way (in fee or by easement) owned by third parties shall be deemed to be contiguous for purposes of this Section 17. No NT District shall be established except upon land the beneficial title to which is in the person, firm or corporation executing the petition referred to in Section 17.021 thereof. The tenant under a lease having a term of not less than seventy-five years shall be deemed to be the holder of the beneficial title to the land covered by the lease for the purpose of this Section 17.”

      . A PDP is defined in § 17.021c of the Zoning Regulations as a "generalized drawing or series of drawings of the proposed New Town, with appropriate text materials, setting forth: (1) the major planning assumptions and objections....”

      . "Criteria” is defined in the present Howard County Zoning Regulations as "New Town text material accompanying map of Final Development Plan.” § 104 A. 25 (1977).

      . § 119 C.15 provides as follows:
      The Planning Board shall have jurisdiction to make decisions and determinations with respect to all matters which may be deemed to be in the nature of variances and special exceptions. [Emphasis added.]

      . That policy, adopted on January 1, 1979, states in pertinent part:
      “Specific uses permitted under the FDP Phase Criteria recorded prior to October 3, 1977, in the Land Records of Howard County, whether listed by name or by referenced section of the Zoning Regulations, which are only permitted as a Special Exception under the 1961 Zoning Regulations of Howard County outside of the New Town District, shall require Planning Board approval for the location of said uses except where a singular use has been assigned to a specific parcel under a recorded FDP Phase Criteria. In these matters the Planning Board of Howard County may refer to the specific considerations set forth under Section 19 of the Howard County Zoning Regulations (adopted May 16, 1961) 'Special Exceptions,’ for the evaluation and approval of applicable uses.”

      . All references shall be to the 1977 zoning regulations unless otherwise specified.

      . § 119 C.3.d provides: "At the time of the approval of a Final Development Plan, the Planning Board may provide for the subsequent approval by it of a site development plan pertaining to the property which is the subject matter of such Final Development Plan. Such subsequent approval shall not be a condition precedent to the approval and recordation of the Final Development Plan with respect to which a site development plan is to be submitted, but shall be in addition to any administrative approvals required by the Subdivision and Land Development Regulations.”


author: Lowe, J.,

text:
    WILLIE FREDERICK BRADY v. STATE OF MARYLAND
    [No. 1226 (On Remand),
    September Term, 1978.]

      Decided September 22, 1980.

      On remand before Gilbert, C. J., and Lowe and MacDaniel, JJ.
   Lowe, J.,

delivered the opinion of the Court.

On June 23, 1980, the Court of Appeals reversed our September Term, 1978 unreported opinion, No. 1226, wherein we had affirmed the conviction of Willie Frederick Brady. The reversal appears to have been predicated upon our "refusing to apply the normal balancing test triggered by the presumption of prejudice,” and substituting therefore a "single factor” approach. Brady v. State, 288 Md. 61, 69 (1980), Sl. Op. at 9.

The case was remanded for us to apply the balancing test of Barker v. Wingo, 407 U.S. 514 (1972). We are perplexed in that we thought we had. The length of delay we had found to be 14 months; the reasons for delay we had assessed entirely against the State weighed by its neglect (but neither purposefully, intentionally nor motivated by bad faith); the failure of the appellant to assert his right to a speedy trial we excused because, in this rather unique case appellant was not aware he was charged with the commission of the crime, and he asserted his right immediately upon being apprised of the charges against him.

In assessing prejudice we found that there was no "actual” prejudice averred, demonstrated or apparent. In light of the three interests identified in Barker v. Wingo, 407 U.S. at 532, which the speedy trial right was designed to protect, viz-.

"(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”,

any "presumed” prejudice we found to be "elusive” at best. There was neither incarceration nor could there have been anxiety or concern in the absence of knowledge. As to the third — impairment of defense — we noted that the trial judge had sought in vain for any suggestion that the defense had been impaired.

" 'COURT: Alright, I have a question, Mr. Legum. Any other prejudice?
MR. LEGUM [appellant’s trial counsel]: Well, Your Honor, the prejudice I think is just clear from the amount of time that has elapsed. Prejudice to the defendant is only one of the four parts of the balancing test —
COURT: I understand. All I want to know if there’s any other prejudice, any of his witnesses gone, dead?
MR. LEGUM: Not that we know of in that
COURT: Any of his witnesses not available
MR. LEGUM: Not in that sense, Your Honor.
COURT: Inability for him to obtain records?
MR. LEGUM: Not that we know of, Your Honor.
COURT: Transcripts or anything like that?
MR. LEGUM: No claim is made to that point of prejudice. What we have are the length of delay, the reasons for delay, which we would submit are entirely attributable to the State, and the fact that Mr. Brady being unaware of the fact that the indictment was even pending. He was therefore not informed of the charges so he was in no position to demand or request a speedy trial.’ ” (Emphasis added).

In our original analysis we appear to have misled the Court of Appeals by depicting impairment of defense as a facet of actual prejudice rather than that prejudice which is presumed. However categorized, we found prejudice nonexistent by virtue of that colloquy — whether negated as an element of actual prejudice or rebutted as an element of prejudice presumed. Wilson v. State, 281 Md. 640, 658 (1977).

We have, upon remand, again applied the balancing test as directed and it appears to us now, as it did then, that there was no actual prejudice and that any possible presumption of prejudice, i.e., impairment of defense, was that which had been expressly rebutted by that colloquy. Upon carefully scrutinizing the record again, we can find not the slightest hint that appellant had been harmed by the delay. Absent any harm — either actual or presumed — the deprivation of even a constitutional right hardly warrants so serious a sanction as dismissal. We reaffirm our former judgment.

Judgment affirmed.

Costs to be paid by appellant.