author: Wilner, J.,

text:
    WHEATON MOOSE LODGE NO. 1775 et al. v. MONTGOMERY COUNTY, MARYLAND
    [No. 602,
    September Term, 1978.]

      Decided February 8, 1979.

    The cause was argued before Morton, Wilner and Couch, JJ.

      Garland E. Lowe for appellants.

      Sue Levin, Assistant County Attorney for Montgomery County, with whom were Richard S. McKernon, County

      Attorney, and Richard E. Frederick, Deputy County Attorney, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The Montgomery County Council (sitting as the District Council for the Maryland-Washington Regional District) rejected appellant’s application to rezone certain property from R-60 (one family, detached residential) to C-3 (highway commercial). The Circuit Court for Montgomery County affirmed that decision, and appellant has appealed.

Appellant states the “question presented” in this appeal as whether the action of the County Council was “arbitrary, capricious, discriminatory and confiscatory of Appellant’s rights ... by depriving it of its property without due process of law”. It breaks this rather general issue down into three subsidiary questions: (1) whether potential traffic problems standing alone were sufficient to deny the application; (2) whether, because C-3 is a “floating” zone, appellant was required to show that all permitted uses in that zone were compatible with the surrounding neighborhood; and (3) whether there was sufficient evidence to render the conclusions of the authorities fairly debatable. We shall consider appellant’s contentions in the context of the three subsidiary questions upon the premise that the resolution of them will also resolve the broader “due process” claim.

Under the Montgomery County Zoning law, a C-3 zone is a “floating”, or “non-Euclidian” zone; and a great deal of controversy in this case concerns the characteristics of and the procedural and substantive requirements for obtaining such zoning. It may be helpful, therefore, to consider initially what a “floating” zone is and how it differs from a “Euclidian” zone.

“Euclidian” and “Floating”Zones

The traditional zoning law divides the community into specific, territorial districts and prescribes the uses that are permitted (or not permitted) in each district. The boundaries of these districts are fixed by law, usually by reference to a map. Thus, in comprehensive zoning, every square foot of the community is within some fixed zone and is subject to the predetermined set of land use restrictions applicable to that zone. This is “Euclidian” zoning, and, until fairly recently, it was the only type of zoning that the law countenanced.

When the first zoning ordinances were enacted some 60 years ago, “Euclidian” zoning was a practical method of categorizing land uses in terms of their relative offensiveness to each other, and of protecting existing uses within a community from those which the law declared to be discordant and harmful to them. With the constitutional limitations placed upon “spot” zoning, however, this type of fixed-district zoning suffered from a rigidity that became increasingly apparent as rural and suburban areas began to undergo extensive and rapid development in order to accommodate the outward migration following World War II. At the same time that the exodus to the suburbs created a greater demand there for multi-family dwelling units and nearby commercial and industrial enterprise necessary to provide convenient shopping and employment opportunities, more sophisticated design and planning techniques made many of these previously discordant uses more compatible with a residential setting. Careful land use planning thus made possible the location of aesthetically pleasing commercial establishments and garden-type apartment developments in close proximity to residential areas. But, under “Euclidian” zoning, the process for achieving this planned balance became quite cumbersome, especially when dealing with the planned development of rather large areas.

To resolve some of the impediments arising from the inflexibility of fixed-district “Euclidian” zoning, municipal planners experimented with a number of new techniques, one of which was the concept of the “floating” zone. This consists of a prescribed set of permissible land uses that are not attached, in advance, to any particular geographic district, but are, instead, permitted to “float” over the entire area until located upon specific property at the petition of the property owner. The Court of Appeals described the difference this way in Bigenho v. Montgomery County, 248 Md. 386, 391 (1968):

“A floating zone is differentiated from a so-called ‘Euclidean’ zone, in that while the latter is a specific area defined by boundaries previously determined by the zoning authority, the former has no such defined boundaries and is said to ‘float’ over the entire area of the district or zone where it may eventually be established.
“The floating zone is different from the establishment of an Euclidean zone in that it is initiated on the instigation of a land owner within the district rather than that of the legislative body.”

Following the lead of the New York Court of Appeals in Rodgers v. Village of Tarrytown, 96 N.E.2d 731 (1951), the Maryland Court of Appeals first sustained the “floating” zone concept against an attack that it constituted illegal “spot” zoning in Huff v. Bd. of Zoning Appeals, 214 Md. 48 (1957). Without ever using the term “floating zone”, the Court considered the unlocated zone at issue before it to be “analogous to a special exception” and thus concluded, at page 62:

“[T]he rules which are applicable to special exceptions would apply, not the general rules of original error or change in conditions or the character of the neighborhood, that control the propriety of rezoning. This is because, as in the case of a special exception, there has been a prior legislative determination, as part of a comprehensive plan, that the use which the administrative body permits, upon application to the particular case of the specified standards, is prima facie proper in the environment in which it is permitted. This prior determination and the establishment of sufficient standards effectively refute the claim of improper delegation of legislative power.”

This approach has been reiterated and followed by the Court of Appeals on a number of subsequent occasions. See Costello v. Sieling, 223 Md. 24 (1960); Beall v. Montgomery County, 240 Md. 77 (1965); Bujno v. Montgomery Co. Coun., 243 Md. 110 (1966); The Chatham Corp. v. Beltram, 243 Md. 138 (1966); Board v. Turf Valley, 247 Md. 556 (1967); Bigenho v. Montgomery County, supra, 248 Md. 386. In each of these cases, the Court specifically reaffirmed the analogy to a special exception. In Bigenho, for example, at page 391, it concluded that:

“[T]he floating zone is subject to the same conditions that apply to safeguard the granting of special exceptions, i.e., the use must be compatible with the surrounding neighborhood, it must further the purposes of the proposed reclassification, and special precautions are to be applied to insure that there will be no discordance with existing uses.”

The C-3 Zone

The characteristics, and conditions, of the C-3 zone are set forth in the Montgomery County Code, §§ 59-C-4.71 through 59-C-4.77. Section 4.71 describes the purpose of the C-3 zone thusly:

“. . . It is the intent of this zone to provide a method for the orderly grouping and spacing of commercial development on properties which abut or front on, and have access to, heavily travelled major highways with a planned or existing pavement of at least six lanes, or on properties which are recommended for such zoning on approved and adopted master plans or which are adjacent to properties previously or concurrently zoned C-3. This zone is intended to provide sites for commercial activities that may require large land areas and do not depend upon adjoining uses for reasons of comparison shopping and pedestrian trade; and sites for commercial facilities which are related to the traveller and highway user. At the same time, it is the intent that the frequency, design and location of points of direct access to the highway be controlled by restricting development to service road access, thereby minimizing interference with through traffic movements. The fact that an application complies with all specific requirements and purposes set forth herein shall not be deemed to cr eate a presumption that the application is, in fact, compatible with surrounding land uses, and, in itself, shall not be sufficient to require the granting of any application.”

Section 59-C-4.0, dealing with land uses within all the commercial zones, sets forth the permissible uses within the C-3 zone. There are 54 such uses (plus 7 more permitted by special exception) ranging from newspaper and printing shops to a variety of automobile services (parking lots and garages, tire and parts stores, indoor and outdoor sales, repairs, car washes) to bowling alleys to drive-in banks to golf driving ranges to funeral parlors to restaurants (including drive-ins) and theatres. Gasoline stations (automobile filling stations) are permitted only by special exception. See former Code (1972), § 59-58 (C); current Code, § 59-C-4.0 (p. 1766).

Sections 59-C-4.72 through 4.76 prescribe what are termed “Development Standards” for the C-3 zone. These relate to building height, setbacks, green area, roads, and off-street parking. Section 59-C-4.77, captioned “Development Procedure” states that the procedure for site plan approval shall be as set forth in division 59 1)3.

The Record in this Case

On May 31, 1972, appellant filed its application for a local map amendment to the county zoning ordinance, by which it proposed to have a 20,000 square foot lot at the southwest corner of Georgia Avenue and Weisman Road reclassified from R-60 to either C-2 or C-3. The application did not specify (and was not required to specify) any particular use that was to be made of the property, and no indication was given on the application that the ultimate desired use would or might require a special exception.

In accordance with local procedure, the matter was advertised, and set for hearing on October 4, 1972. Prior to the scheduled hearing, the technical staff of the Maryland-National Capital Park and Planning Commission and the county planning board submitted a report to the Hearing Examiner recommending that the application be denied for the reasons that (1) the proposed reclassification to either C-2 or C-3 would be contrary to the Kensington-Wheaton Master Plan, (2) it would jeopardize the “well-established residential character of the neighborhood”, (3) there was an insufficient change in the neighborhood to warrant the more intensive commercial development allowed under C-2 or C-3 zoning, and (4) the reclassification would not comply with the “stated and implied purpose” of the C-3 zone. No one appeared in opposition to the application at the hearing. For some unexplained reason, however, appellant asked permission to withdraw its application without prejudice. The District Council denied this request and remanded the case back to the Hearing Examiner to conduct another hearing.

Upon remand, a second hearing was scheduled, and held, but for personal reasons, appellant temporarily lost interest in the matter, and, as a result, failed to comply with the required pre-hearing procedures and did not attend the hearing. Indeed, no one representing appellant attended the hearing. The only evidence in the case, therefore, consisted of the aforementioned reports from the technical staff and the planning board; and for that reason, the Hearing Examiner recommended that the application be dismissed with prejudice. The District Council followed that recommendation and, on February 20, 1973, dismissed the application. Pursuant to a request from appellant, however, the Council reconsidered that resolution, and that matter was once again referred back to the Hearing Examiner.

The Examiner conducted another hearing (the third) on May 21, 1973, which opened with appellant’s announcement that it was withdrawing its request for C-2 zoning, and would proceed solely upon the request for C-3 zoning. One witness appeared in opposition — Alfred Blumberg, of the Maryland-National Capital Park and Planning Commission, who testified with respect to the technical staff and planning board report. Most of Mr. Blumberg’s testimony amounted merely to a reaffirmation of what was contained in the staff report (which was admitted into evidence), although he acknowledged that (1) his fears about the difficulty of making turns to and from the northbound lane of Georgia Avenue (one of the concerns expressed in the report), arose from his personal observations rather than a formal traffic study, and (2) the conclusion in the report that commercial development of the site would jeopardize the residential character of the neighborhood related to C-2, rather than C-3 zoning. In this regard, however, he testified that many of the multitude of uses permitted under C-3 zoning would also be incompatible with the nearby residential areas, although he could not say that every such permitted use would be incompatible.

Following Mr. Blumberg was Harry Simms, appellant’s owner. Mr. Simms said that, based upon oral conversations with representatives of three financial institutions, he did not believe that he would be able to obtain financing for residential development of the subject property, but that he might be able to obtain financing for commercial development. He acknowledged that he had made no formal applications for residential financing, and thus had received no formal rejection; but he expressed the belief that although not impossible, it was not economically feasible to build houses on the lots.

The final witness — Mr. Bohorfoush — was a real estate manager for B P Oil Co. It was from his testimony that the record first reveals the actual proposed use of the property if the C-3 zoning were granted — a “gas and go” service station. Mr. Bohorfoush said that market studies made by BP indicated that this would be a good spot for a service station, in part because there were few such stations along the west side of Georgia Avenue. He acknowledged that one of the reasons for this was that there was very little commercial zoning on that side of Georgia Avenue.

The hearing was then adjourned until June 20, 1973, at which time a number of additional documents were admitted into evidence, and appellant’s expert — George Bushby — testified. One of the documents was a letter from Mr. Blumberg stating, among other things, that the site “is developable in the C-3 zone.” Another was a memorandum from the county Department of Transportation concluding, with respect to this property:

“Traffic Generation of an auto service station is minimal when compared to current peak hour volumes. Operational difficulties would only be experienced in relation to northbound left turns operating without benefit of a left turn storage lane. Although a service station at this location is not likely to generate much northbound traffic it is possible that other uses permitted under C-3 zoning would. Some examples are:
a) car wash
b) drive-in banks
c) recreational facilities
d) theaters
e) etc.
“Any land use that is likely to ‘back up’ traffic in the manner of the above listed uses could cause severe operational difficulties at this location.”

Mr. Bushby, a land surveyor, testified that (1) he was familiar with the neighborhood, (2) he examined the property in question, and (3) he was aware of appellant’s intent to construct a gasoline station and examined the site solely with that in mind. He concluded that development of the property as a service station could be handled from an engineering point of view, if properly designed and constructed, and that “that use” would have no adverse effect on the community.

The essence of Mr. Bushby’s testimony was that a service station would be compatible with the character of the neighborhood, as he defined it, and also with the purpose of C-3 zoning. By taking into account the commercial development on the other (east) side of Georgia Avenue (a 6-lane highway divided by a median strip), Bushby concluded that C-3 zoning on this site would permit an orderly grouping and spacing — i.e., a clustering — of commercial uses, which is consistent with the intent of the C-3 zone. In answer to the Hearing Examiner’s inquiry as to whether such compatibility could be assured with respect to any other C-3 use (any use other than a service station), Mr. Bushby indicated that such a determination could be made in the context of later site-plan approval.

Upon all of this, the Hearing Examiner again recommended that the District Council reject the application. He concluded first that reclassification of this property would not be compatible with C-3 zoning. The Code language speaking of grouping and spacing of commercial development referred, he thought, to development on the site itself in conjunction with those properties abutting it — not in relation to uses across such a formidable barrier as Georgia Avenue. He agreed with the technical staff report that the size and location of the subject site militated against compliance with the purpose of C-3 zoning; not only would commercial development of this property fail to minimize interference with through traffic movements, but it might encourage a string of small commercial developments along the west side of Georgia Avenue. The essence of his conclusion was that the property was too small to permit the type of clustering of commercial uses envisioned by C-3 zoning, and that a service station, in any case, was more of a “free standing” use that did not lend itself to being incorporated into other types of clustered commercial uses.

Also in connection with the issue of compatibility, the Hearing Examiner rejected Mr. Bushby’s definition of the relevant “neighborhood”. He felt that Bushby had been much too restrictive, excluding the nearby residential areas to the west and south of the property (on the west side of Georgia Avenue) but including the commercial developments on the east side of that artery. In view of the close proximity of single family dwellings, the Examiner did not believe that site-plan review would suffice to screen the effects of commercial development of this site, and thus concluded that the proposed reclassification would not be harmonious with existing and planned land uses in the surrounding area.

A second basis for the Examiner’s recommendation was that the proposed reclassification would be inconsistent with the Kensington-Wheaton Master Plan. Acknowledging that the plan was a “dated” one — it was adopted in 1959 — and that there had been many deviations from it, the Examiner noted that most of those deviations were on the east side of Georgia Avenue, and that the west side of the street had been developed in conformance with the Plan. Moreover, he observed that, based upon more recent planning guidelines adopted by the County Council (the most recent having been in 1968), the 1959 Master Plan still had vitality.

Finally, although acknowledging that a service station would not likely cause significant traffic problems, the Examiner noted that the evidence (particularly the letter from the Department of Transportation) showed that other C-3 uses could cause such problems. Thus, he cautioned:

“It is perhaps appropriate to once again express the caveat that the question of traffic impact should be judged not from any specific development proposed by the applicant but the nature, character and potential intensity of a reasonable cross section of development which would be permitted under the C-3 Zone. To do otherwise may well place an unwarranted aura of conditional zoning which is an impermissible consideration.”

Upon this basis — i.e., considering a “cross section” of the possible uses permitted in a C-3 zone and not just a service station — he concluded that such zoning, with its “myriad of vehicular oriented business uses” would not be in the public interest.

The Hearing Examiner’s report was sent to the District Council which, after “reviewing the evidence of record”, agreed with his findings, conclusions, and recommendations. Specifically, by Resolution adopted November 20, 1973, the Council concluded that the reclassification would not be compatible with the “purpose clause provisions of the C-3 Zone”, or with existing and planned land uses in the area. It determined, as well, that the rezoning would not be in conformance with the Kensington-Wheaton Master Plan (noting, in that regard, that those parts of the plan pertaining to the residential character of the area west of Georgia Avenue “have, with minor exception, been effectuated and maintained”) and that it would not be in the public interest “due to potential problems of traffic safety and congestion.”

Appellant challenged each of these findings — incompatibility with the purpose of C-3 zoning, with the neighborhood, and with the Master Plan and the potential traffic problems — in its appeal to the Circuit Court. Upon a plethora of pleadings and after a hearing in open court, the court concluded that the matter should be remanded “for further evidence in connection with the traffic study that was conducted”, noting that the evidence “in this regard is confusing, conflicting, and inclusive [sic, inconclusive]”. As a result, it stated:

“Based upon this record, the Court cannot conclude, as did the County Council, that the requested reclassification would not be in the public interest because of potential traffic safety problems. Having concluded as we have, it is not necessary that the Court consider the other contentions raised by the Appellant in this Appeal. ” (Emphasis supplied.)

The case thus wound up, once again, before the Hearing Examiner, who conducted what amounted to the fourth hearing — the second at which testimony was taken. Two witnesses testified — Stephen Lawlor, a Senior Transportation Planner with the Maryland-National Capital Park and Planning Commission, and Stephen Petersen, a traffic planning engineering consultant. Lawlor identified, and supported, a written report prepared by him on behalf of the Commission which recommended denial of the application because:

(1) The C-3 zoning would permit “certain high trip generating uses, such as a drive-in bank, a carwash, a drive-in restaurant, a theater, et cetera” and that “[t]rip volume activities of this type would be highly undesirable at this location”;

(2) The lack of a northbound left turn storage lane at the intersection coupled with the presence of a “high trip generating activity” would “significantly reduce the northbound Georgia Avenue traffic flow capacity”; and

(3) The proximity of the Weisman and Shorefield Road intersections, the lack of signalized control at Weisman Road, and the high percentage of westbound left turns from Shorefield Road combine to produce a hazardous situation for northbound left turn movement into Weisman Road, and an increase in the number of vehicles making this maneuver (to get onto the subject property) “would magnify the safety problems at this intersection.”

Mr. Lawlor stated that, in doing a traffic study for purposes of zoning, as opposed to site-plan approval, the Commission is required to investigate the possibility of any of the permitted uses to which the property may be put — “you really don’t have at that point, any commitment, any specific proposals in regard to zoning.”

Mr. Petersen expressed his disagreement with many of Mr. Lawlor’s conclusions. Underlying much (though not all) of his disagreement was his belief that many of the potential problems pointed out by Mr. Lawlor could be resolved through the site-plan or subdivision approval process, and certain modifications to Georgia Avenue itself, and would therefore never become real problems. Much of the dispute related to whether the commercial development of the property under C-3 zoning would so increase the number of vehicles attempting to make left-hand turns from the northbound lanes of Georgia Avenue onto Weisman Road as to cause back ups on Georgia Avenue. At issue was whether the traffic signal at Shorefield Road, some 80-100 feet north of this intersection, would create sufficient gaps in the southbound traffic to allow the left turns to be made without creating a back up, or, if it did not, whether a left turn storage lane would be needed at Weisman Road.

Though taking issue with the court’s failure to consider the more fundamental reasons for the initial rejection of the application, the Examiner nevertheless again recommended rejection, solely upon the traffic issues. He concluded that the evidence failed to show that the signal at Shorefield Road would create a sufficient gap time to prevent safety and traffic flow problems “which would be inherent without a left turn storage lane at the Weisman Road intersection.” Thus, he said, “approval of the requested reclassification would not be in the public interest due to identified problems involving traffic safety, congestion and impediments to traffic circulation and flow....”

The matter was once again before the District Council, which again accepted the Examiner’s recommendation and rejected the application. Recalling not only the evidence presented at the most recent hearing, but also the studies prepared by the county Department of Transportation and the Park and Planning Commission that were presented at the earlier proceeding, the Council concluded that the evidence “appears to be not only substantial but overwhelming” that because of the various potential traffic problems found by the Examiner, the proposed reclassification would not be in the public interest.

Back again the matter went to the Circuit Court, but this time the court concluded that the traffic studies had been “exhaustive”, that the reasons assigned by the various expert witnesses were “logical and meaningful”, that the issue as to traffic safety was fairly debatable, that the record did not support the allegation that the Council’s action was arbitrary or capricious, and that the doubts had by the court with respect to the original traffic studies “have been totally abolished by the new evidence”. Thus, the court affirmed the Council’s action, without ever passing on anything but the traffic issue.

Status of the Case Vis-a-Vis Appellate Review

The District Council gave four independent reasons for denying the rezoning in November, 1973, and each of them was presented to and argued before the Circuit Court in the initial appeal. There is some confusion in the record, however, as to whether the court ever addressed and decided anything other than the fourth issue — that dealing with potential traffic problems. •

Appellant suggests, as a “fair reading” of the court’s action, that the court did, in fact, consider all four reasons cited by the Council and that it concluded that only one of them — the potential traffic problems — was supported by sufficient evidence to make the issue fairly debatable. Thus, it seeks to limit our review to that one issue, asking, as noted, whether these. potential traffic problems, standing alone, suffice to support the Council’s denial of the application. Although the record is somewhat confusing as to whether the court did or did not consider and decide the more basic issues — at one point the court stating that it would not consider them and at another point seeming to indicate that it had considered and decided them in appellant’s favor — it appears to us more reasonable to suppose that the court had, in fact, declined to consider the other three reasons, that its very brief subsequent comment was perhaps a careless inadvertence rather than the announcement or affirmation of a substantive decision on such important issues. In any event, for purposes of this appeal, it is quite irrelevant whether or not the court decided those issues.

Where multiple issues are properly presented to the trial court, the fact that the court rests its decision upon only one of those issues and declines to decide the others does not necessarily withdraw from appellate review the undecided issues. Maryland Rule 1085; Mont. Co. v. Md. Soft Drink Ass’n, 281 Md. 116, 122 (1977), and cases cited therein. This is especially true in a case such as this, where the relevant inquiry does not involve initial fact-finding by the court but only questions of law and of the sufficiency of evidence before an administrative tribunal. Thus, if, as the county contends and as we think the record as a whole indicates, the court did not decide these other issues of compatibility, that omission does not withdraw them from consideration on appeal. If, as appellant suggests, the court did decide those issues by concluding that there was insufficient evidence before the District Council to sustain its determination as to them, this appeal also presents for our review the correctness of that decision. Accordingly, in either case, we are not limited to a consideration solely of the traffic issue, but may, and shall, review the action of the District Council in terms of all of the findings and conclusions made by it and thus upon the record as a whole. For that reason, the first question, as framed by appellant, is an inappropriate one, and we shall not consider it as so framed.

Permissible Scope of Inquiry

The basic disagreement between the parties is over what burden appellant possesses at the zoning stage to establish that the zoning it seeks is a proper one to be granted. Appellant’s argument, essentially, is that: (1) in authorizing a “floating” zone, the legislative body has predetermined that the uses permitted in that zone are not legally or inherently incompatible with the environment in which they may be placed; (2) therefore, once an applicant has demonstrated a desire and ability to develop the property for any of the permitted uses, his application cannot be denied unless the zoning authority finds that there is an actual incompatibility with respect to that particular use or that such use does not comport with the purpose of the zone. In effect, appellant is saying that, because it desired to develop the subject property as a service station, it was only obligated to establish that that use is a compatible one, and was not required to prove that all other uses permitted in the C-3 zone are also compatible.

The county, on the other hand, recognizing its own ordinance forbidding conditional or contract zoning, contends that it could not have limited appellant to developing the property for a service station. Thus, if the C-3 zoning had been granted, subject only to subsequent site-plan approval, appellant, or its grantees, would have been entitled to develop the property for any use permitted by C-3 zoning. For that reason, it says, the zoning authorities must consider the question of compatibility in the context of all oí the permitted uses, and not just the one currently proposed by the applicant.

Under the law that existed at the time of these proceedings before both the District Council and the Circuit Court, it was not entirely clear what burden an applicant had to carry at the zoning stage. As noted earlier, C-3 zoning permits a wide variety of uses, some of which, notwithstanding their general or potential permissibility, would be wholly inapplicable to this property under any circumstance. This property — 20,000 square feet — could not, for example, be used as a stadium or a fair ground or an amusement park, or a golf driving range, all being permissible uses under C-3 zoning, even if the C-3 zoning were granted. But its potential for development under many of the other uses authorized in a C-3 zone certainly could not be foreclosed, at the zoning stage, solely because of the physical characteristics of the property itself.

Thus, on the one hand, it would be ludicrous to require an applicant to establish the compatibility of uses that, in fact, are incompatible and to which the property could never be put, as a condition of obtaining the zoning necessary to develop the property for a permitted use that is not incompatible. But, so long as the applicant is not (and could not be) bound to develop the property for any particular use, it was relevant, and necessary, for the District Council to consider the application in the light of all those uses to which the property could reasonably be put, and not just the one currently desired by the applicant. This is especially true in light of the fact that that particular use required a special exception and would not, therefore, have been authorized by the mere granting of C-3 zoning.

In the instant case, we find no error in the criteria applied by the Hearing Examiner and the District Council. They viewed the application in terms of those uses to which the property could reasonably have been put if the requested zoning were granted; and, in doing so, they imposed no unreasonable burden upon the applicant.

Appellant’s contention that the requirement of site-plan approval serves, in some way, to circumscribe the scope of relevant inquiry by the District Council in acting upon an application for rezoning is wholly without merit. Although there is obviously some overlap in terms of the relevant factors to be considered in each proceeding, the overlap is by no means complete. The fact that, in a proceeding for site-plan approval, the county planning board must consider whether the particular proposed use is compatible with the requirements of the zone and with the surrounding neighborhood does not limit the ability — indeed the responsibility — of the District Council, a superior legislative body, to consider the full potential effects of granting a zoning reclassification. The Council cannot predict what the planning board will do with respect to each of the many different types of site plans that could be proposed under C-3 zoning; and even if it could, it would have no power to delegate its own responsibility under the law to a subordinate administrative body to be exercised in. the context of a substantially different type of proceeding.

Accordingly, under the law governing these proceedings, the Council was entitled to consider, in the context of any of the uses to which this property could reasonably be put under C-3 zoning, whether such uses (and therefore such zoning) comported with the purpose of C-3 zoning, whether they would be compatible with the Master Plan and with the surrounding neighborhood, and whether they were in the public interest.

Sufficiency of the Evidence

Having concluded, in effect, that the issues raised and considered by the Council were properly before it, we look now to see if there was sufficient evidence in the record to make its resolution of those issues fairly debatable, that being the permissible scope of our inquiry. The question, then, is whether a reasoning mind could reasonably have reached the result the Council reached upon a fair consideration of the fact picture painted by the entire record. Agneslane, Inc. v. Lucas, 247 Md. 612 (1967), and cases cited therein.

Extended discussion is unnecessary. The testimony of Mr. Blumberg and Mr. Lawlor, coupled with the reports of the Commission’s technical staff and traffic division, the planning board, and the county department of transportation provided a clear and sufficient basis to support the findings of the Hearing Examiner, and thus of the District Council on all of the issues before the Council.

Although the law creating and describing the C-3 zone does not exclude lots of this size, the relatively small area of this property was certainly relevant to a determination of whether a reclassification would be consistent with the purpose of the C-3 zoning. While some of the potential uses, including that desired at the time by appellant, are “related to the traveller and highway user” and thus not wholly foreign to the intent of the C-3 zone, there was ample evidence before the Council from which it could reasonably have concluded that the requested reclassification would not “provide a method for the orderly grouping and spacing of commercial development” on properties abutting major highways or on properties recommended for such zoning in a master plan. Nor would the attachment of C-3 zoning on this property provide a site “for commercial activities that may require large land areas and do not depend upon adjoining uses____”

That commercial use of this property would be inconsistent with the applicable Master Plan was not seriously disputed, and, notwithstanding that the plan was somewhat dated, the Council (the body that adopted the plan) cannot be said to have erred in considering that part of the plan particularly applicable to this property to remain viable and in thus giving weight to the inconsistency. The Council was not obligated to accept Mr. Bushby’s restricted definition of the relevant neighborhood, but was entitled to consider the effect of any of the reasonably potential commercial uses upon the residential area to the west of Georgia Avenue, and to conclude from the evidence before it that some (or perhaps all) of those uses would, in this context, be discordant ones.

Finally, as to traffic, the Council had abundant evidence before it to establish that, absent construction of a left turn storage lane on Georgia Avenue, considerable traffic problems (both in terms of safety and possible obstructions) might develop from an increased frequency of left turns into this property. Appellant made no effort to show that such a left storage lane would, in fact, be constructed, and the Council was obviously not obliged to assume that it would be. The testimony of Mr. Bushby on the traffic question assumed development as a service station and did not take into account the other possible uses to which the property might be put if the application were granted. His testimony, therefore, was limited in scope and did not even address some of the concerns expressed by the public agencies.

From the record as a whole, we believe that the conclusions reached by the District Council that led it to reject the application were fairly debatable.

Judgment affirmed; appellants to pay the costs.

      . The owner of the property is (or was at the time of the application) Wheaton Moose Lodge No. 1775. The application for rezoning was filed by Simplex Land, Inc., a contract purchaser of the land. During the latter part of the proceedings (after the matter had been remanded to the District Council by the Circuit Court), Gerald Goldberg was substituted for Simplex Land, Inc., as both contract purchaser and applicant. So far as we are able to determine, Mr. Goldberg and Wheaton Moose Lodge are the real parties currently in interest. For purposes of simplicity, however, in this Opinion we shall use the term “appellant’’ in the singular as referring to Simplex for the period of time that it was the applicant, and thereafter to Goldberg. As used in the mandate, the plural term ‘‘appellants” refers to and includes all parties appellant.

      . For an excellent treatise on this subject, see Non-Euclidean Zoning: The Use of the Floating Zone, Russell R. Reno, 23 Md. L. Rev. 105 (1963); also Zoning Change: Flexibility rs. Stability, Herbert Goldman, 26 Md. L. Rev. 48, 57 (1966); 2 American Law of Zoning, Anderson, 2d ed., § § 11.06,11.07.

      . The term “Euclidian” comes not from the ancient Greek mathematician (at least not directly), but rather from the case of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), in which the Supreme Court first approved, against Constitutional challenge, a local zoning ordinance of the type described above.

      . See, for example, Ellicott v. City of Baltimore, 180 Md. 176, 181 (1942), quoting from a California case: “The whole value of zoning lies in the establishment of more or less permanent districts, well planned and arranged.” Also Heath v. M. & C. C. of Baltimore, 187 Md. 296, 305 (1946); Md. Annot. Code (1957 ed.) art. 66B, § § 2,4.

      . See, for example, Cassel v. City of Baltimore, 195 Md. 348 (1950); Huff v. Bd. of Zoning Appeals, 214 Md. 48 (1957).

      . See also Reno, supra, 23 Md. L. Rev. 105, 107:
      “In recent years a new device in zoning has developed which provides the machinery for the establishment of small tracts for use as a shopping center, a garden apartment or a light industry in accordance with a comprehensive plan for the entire municipality, and at the same time leaves the exact location of each tract to be determined in the future as demand for a shopping center, a garden apartment or a light industry develops in a specific area. This device is the creation of special use districts for these various uses, which at the time are unlocated districts, but which can be located by a petition of a property owner desiring to develop his specific tract for one of these special uses. Such unlocated special zoning districts are popularly referred to as ‘floating zones’, in that they float over the entire municipality until by application of a property owner one of these special use zones descends upon his land thereby reclassifying it for the special use.”'

      . These references are to the 1972 Code, as amended through June, 1978. The law in effect at the time the relevant administrative proceedings took place was substantially the same as it is now, although the Code references were different.

      . The relevant colloquy was as follows:
      “Now, your basic statement was pretty clear to me, Mr. Blumberg, that basically your opinion and the staff’s opinion was that any commercial use is incompatible with the rest of the neighborhood on that site property. I was very clear on that.
      “Now, do you specifically recall whether or not you went through each and every use within the C-3 zone and made a determination of compatibility, or did you — the way I read it, you just said that any commercial use at this property is incompatible and that’s all there is to it. That was the way I understood you. Now, am I correct or incorrect?
      “A I would have to say that you were correct, yes. We did not go down the list and make a determination on each of the 30, 40 uses in the C-3 zone which are permitted and make a determination for each of those.” (E. 66-67)

      . The relevant inquiry on this point was as follows:
      “EXAMINER ABRAMS: Now, you stated that you examined the site from the standpoint of only the operation of a service station, is that correct?
      “THE WITNESS: That’s correct.
      “EXAMINER ABRAMS: Now, you know that we don’t have conditional zoning in the county and we can’t advise the applicant to putting in a service station as opposed to a heavy equipment operation.
      “THE WITNESS: That’s right.
      “EXAMINER ABRAMS: Now, why did you examine it from the standpoint of the zone because we are not, today, in a special exception hearing for a gas station. We are looking at the uses within the zone. So how come you didn’t approach you [sic] analysis from that standpoint?
      “THE WITNESS: Because I was told by Mr. Lowe and BP that they wanted to buy the site, that they felt it was a good site for a service station and would I look at it from that point of view, and that is why I restricted it to the service station activity.”

      . Appellant draws some support for its contention from the following colloquy occurring at the commencement of oral argument before the court in the second appeal:
      “[MR. LOWE] I’m not exactly sure what posture we’re in, in that it occurred to me that perhaps Your Honor got over at the last hearing, got over those four hurdles and was concerned that the case had not been commented on by the Traffic Department at the Planning Commission.
      “THE COURT: Right.
      “MR. LOWE: Well, then I take it the sole surviving issue before Your Honor then is as it relates to the traffic question.”
      There was no response from the court to this last remark.

      . See Montgomery County Code, § 59-H-6.4: “No application for a local map amendment shall be approved conditionally for the erection on the land of a structure at a particular location, or within a particular time, or by a particular person, or of a particular type, or for the subdivision of the land in a particular manner or on any other condition.”

      . In June, 1978 — after the proceeding in the Circuit Court had been concluded — the District Council adopted an ordinance adding new § 59-H-2.4A to the County Code. This permits an applicant for a local map amendment in the C-3 zone to submit a “schematic Development Plan” limiting the applicant’s land use to “one or more” of the permitted uses in the zone, as part of the rezoning application. It provides further that approval by the Council “shall not be for a manner of development or use other than that for which has been applied.” This new ordinance, which supersedes the section of the Code prohibiting conditional zoning, would seem to permit an applicant to specify the use or uses he wants, and to permit the Council, in effect, to limit him to that which he requested. This would, in turn, permit the application to be considered solely in the context of the particular use or uses requested. This new ordinance, if valid, appears to resolve many of the uncertainties and problems that underlie the issues raised by appellant. Indeed, appellant may wish to take advantage of the new ordinance in any future proceeding with respect to the property.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    ELLWOOD LEUSCHNER v. STATE OF MARYLAND
    [No. 618,
    September Term, 1978.]

      Decided February 8, 1979.

      The cause was argued before Gilbert, C. J., and Liss and Couch, JJ.

      Gilbert H Robinette, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Richard D. Warren, State’s Attorney for Wicomico County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Ellwood Leuschner, the appellant, was charged with murder, sodomy, and related offenses in Wicomico County, Maryland. Trial was held in the Circuit Court for Garrett County before a jury, upon the request of appellant, which resulted in a finding of guilt of felony murder. Subsequently, appellant was sentenced to life imprisonment. From this conviction appellant appeals, presenting the following issues:

“1. Whether the trial court erred in admitting Appellant’s clothing and boots into evidence?
2. Whether the trial court erred in admitting Appellant’s hair samples into evidence?
3. Whether the trial court erred in admitting the knife recovered from Betty Larmore’s automobile into evidence?
4. Whether the trial court erred in admitting Appellant’s statement to Sergeant Leard into evidence?
5. Whether the trial court erred in allowing Dr. Fitzpatrick to testify as to the result of the hospital medical staff conference which he did not attend?”

Because of the nature of the issues raised, we shall only briefly set forth the facts giving rise to the charges against appellant. On October 29, 1977, a nine year old boy, Rusty Marine, Jr., disappeared from his residence in the Naylor Mill Mobile Village in Salisbury, Maryland. He was last seen with appellant, who lived in a trailer next door to the boy’s residence with a Betty Larmore. On October 31, 1977, the boy’s body was found in a shallow grave. The cause of death was described as multiple stab wounds to the back. The ensuing police investigation into the initial disappearance and subsequent discovery of the Marine boy’s body ultimately led to appellant’s arrest. Further facts will be supplied as necessary.

1 — 4

The Motions to Suppress

Appellant’s issues 1 — 4, inclusive, all deal with the denial by the trial court of his motions to suppress certain pieces of evidence and his statement. We shall address each issue sequentially.

1

The boots

On October 30, 1977, police officers went to the trailer where appellant and Betty Larmore lived. Appellant had been taken into custody prior to this because of information being received that appellant was wanted in California for a parole violation. It seems that both appellant and Larmore owned the trailer. During this visit the police asked Larmore if they could conduct a search of the trailer, advising her that she did not have to let them and that they could apply for a search warrant. She indicated she understood her rights and signed a consent form. Thereafter, Larmore gave the police some pants and a shirt belonging to appellant and, with her consent, they took a pair of his boots. Appellant argues that the court should have suppressed the clothing and boots because (1) there was no valid consent, and (2) there was no right to seize these items even assuming a valid consent. We disagree.

Appellant concedes that Larmore could give a valid consent to search those areas of the trailer held under common authority with appellant since they possessed common authority over the trailer generally. See Tate v. State, 32 Md. App. 613, 363 A. 2d 622, cert. den., 278 Md. 723 (1968). He claims that any consent given by Larmore was not voluntary, citing Whitman v. State, 25 Md. App. 428, 336 A. 2d 515 (1975). We think his reliance on Whitman is misplaced. In that case, it is clear that the consent was given only after a truck operator, suspected of transporting an illicit cargo of cigarettes, was told they (the police) were going to get a search warrant and that they could legally go in there with or without his consent. Beyond this, there was evidence that Whitman had been arrested initially without probable cause, followed by custodial prodding for his consent to a search and police representations that the issuance of a warrant would be practically automatic. We concluded in that case that under the totality of the facts the consent was coerced and thus not voluntary. In the present case we are persuaded otherwise. Larmore was not under arrest or even a suspect. She was not misled or cajoled, threatened, or interrogated at length, nor was she told they could search the trailer with or without her consent. There is no question but that she was told her rights and understood them. Furthermore, it appears that she actually gave the clothing to the police.

With respect to appellant’s second reason why the trial court erred, we likewise find no merit. Appellant argues that since the police did not have sufficient probable cause to obtain a search and seizure warrant, they could not legally seize his clothing and boots. This argument overlooks the fact that consent had been given. In Wiebking v. State, 19 Md. App. 226, 310 A. 2d 577 (1973), we held that a warrantless search, even without probable cause, is not constitutionally proscribed when there has been a valid consent to the intrusion. In Frazier v. Cupp, 394 U. S. 731, 89 S. Ct. 1420, 22 L.Ed.2d 684 (1969), the Supreme Court, in dealing with a similar question, stated:

“Petitioner’s final contention can be dismissed rather quickly. He argues that the trial judge erred in permitting some clothing seized from petitioner’s duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls and it had been left in Rawls’ home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search. During this search, the officers came upon petitioner’s clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court’s past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this ease.” Id. at 740.

See also Cleveland v. State, 8 Md. App. 204, 259 A. 2d 73, cert. den., 257 Md. 732 (1970), and Miller v. Warden, 16 Md. App. 614, 299 A. 2d 862 (1973). We see no error in denying appellant’s motion to suppress the clothing and boots.

2

The hair samples

Appellant next argues that the trial court erred in not suppressing certain hair samples the police had obtained from him on November 1,1977, since such samples were the “fruit of the poisonous tree”. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963); Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975). He contends that the samples were not obtained until after the State had obtained an inculpatory statement from him in violation of his privilege against self-incrimination and right to the assistance of counsel. Assuming, without deciding, that the samples were obtained following an invalid confession, we do not find that the trial court erred in denying appellant’s motion to suppress, under the circumstances present here. In Baker v. State, 39 Md. App. 133, 383 A. 2d 698 (1978), a case in which we dealt in part with the “fruit of the poisonous tree” doctrine, we stated:

“The Wong Sun Court went further and stated:
‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ (Citation omitted.) Id, at 140.

The three generally recognized exceptions to the application of the doctrine are: 1) where the evidence sought to be introduced has an independent source, or 2) the evidence would inevitably have been discovered, or 3) where “the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attentuated as to dissipate the taint”. 39 Md. App. at 140.

In the present case we conclude that circumstances warrant the application of the exception that the evidence would inevitably have been discovered. At the time the hair samples were requested of appellant (and we note he voluntarily obtained them himself and gave them to the police), the police were in possession of evidence from the grave site, appellant’s trailer, information as to his having been seen last with the victim, and of his movements which would have led police to him anyway. Once in custody, it is clear that the police would have been justified in obtaining the hair samples, even without appellant’s consent. See Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969) and Robinson v. State, 18 Md. App. 678, 308 A. 2d 734, cert. den., 269 Md. 765 (1973). We find no error on this issue.

3

The knife

Appellant argues further that the trial court erred in not suppressing a knife found on a second search of Larmore’s automobile since it was discovered after an invalid inculpatory statement. We find no merit in this contention. Again, we need not decide if appellant’s statement was invalid, triggering the “fruit of the poisonous tree” doctrine, simply because the search was obviously done with the consent of the sole owner of the automobile. In our view, appellant had no standing to object. See Rakas v. Illinois, U. S., 99 S. Ct. 421, 47 L. W. 4025, 4026, n. 1 (1978).

4

Testimony of undercover police witness

During the early stage of appellant’s incarceration in the Wicomico County Jail, and apparently after he had given the inculpatory statement, he made some statements to an undercover State police officer, who had been placed in appellant’s cell under a ruse. The trooper was supposed to have been held on an escape and murder charge from Ohio. The trooper gave uncontradicted testimony that he did not interrogate appellant during the time they were together, but there was an exchange of accounts of crimes each had been charged with in the past. Pertinent portions of the trooper’s testimony are as follows:

“A Leuschner and I discussed the fact that I was escaped and had a fugitive warrant on me from Ohio, and he talked about a fugitive warrant from California, and for about an hour, during breakfast, he discussed that fugitive warrant from California and said that he didn’t know what it was about, and that he had thought the warrant had been dropped months before as his running partner, as he put it, had been tried for the crime.
Q Did you ask him any questions at that time concerning the episode under investigation in Wicomico County?
A No sir, I did not.
Q ... After your conversation at breakfast, what if anything did Mr. Leuschner do?
A Mr. Leuschner then starting [sic] talking about the murders of the boys in Wicomico County.
Q What did he say?
A Just discussed them as third party, in general, at that time.
Q What do you mean by that?
A He was talking — he said, they’re trying to put a couple murders on me.
Q Did you ask him any questions?
A No sir, I did not.
Q All right. What if anything occurred ... in the cell that evening?
A We had supper, Leuschner and I, and he started talking about the conversation of past crimes in California and about murder in general and during the conversation, he would slip in the conversation about the homicides of the young boys in Salisbury area.
Q Did he give you any specifics as to the — what had happened to the boys in the Salisbury?
A Not at that time, no sir.
Q Did there come a time later on in the evening when he did?
A Yes sir.
Q Did you ask him any questions about what had happened to the boys?
A No sir.
Q What exactly did he tell you?
A When he started talking about the homicides in the Salisbury area, he indicated to me that the police were trying to link him up with any unsolved homicides on the east coast involving young boys. He said to me, the cops are trying to link me to any murder of any young boys in the past two or three years. He said, but they always do things like that, and he said at one point, they’re trying to get me for a Virginia murder and I haven’t even been in Virginia for twenty or eighteen years. He was very explicit about that, that he was not involved in the murder of a young boy in Virginia. He never indicated to me during any of the conversations that either homicide was sexually related.
Q Did he indicate how the boys had been killed?
A Yes, he stated the Marine boy had been stabbed because he had learned how to kill with a knife in Korea and was taught by the Army to do so. Further at one point, he told me when he was in Korea, he had learned to garrote. When he said he learned to garrote, he made his hands in a form of a choking garrote.
Q Did he say anything specifically as to what relevance that had to the crimes that were under investigation?
A At the time he was talking about stabbing, that he had stabbed — that one boy had been stabbed, he said, the other one, I learned to garrote too when I was in Korea. The army taught me how to do that.
Q Did he specifically say that he had done that to one of the boys?
A No, he didn’t.
Q Did you attempt to get him to clarify that in any manner? Did you ask him any questions about it?
A No, he talked about — when talking about the stabbing, he would say, not a point of fact that I stabbed him, he would say that boy was stabbed and then he said, the other one was choked, because I learned to garrote, but he didn’t say that I did the choking or the stabbing.
Q Did you make any effort to get him to say that?
A No, I did not.
Q Did you ask him any questions about what he was telling you?
A No. I would just say that I didn’t believe it, or something like that, and he would go further into the incident. He, at one time, indicated to me that he was scared of what the police would find, because they might get him for four or five, indicating four or five separate murders, and indicated to me during conversation that both boys were buried in close proximity, being the same area.
Q Did you make any effort to get him to reveal any of this information to you or steer the conversation towards that subject?
A No sir.
Q You did talk yourself to him?
A I did. I talked about crimes that I had supposedly done and talked about doing some armed robberies, something like that, and then he would talk about his crimes, not just these crimes, other crimes.”

Appellant urges that the trooper’s testimony should have been excluded because it amounted to a custodial interrogation and required the Miranda warnings, which were not given. We disagree. He concedes that volunteered statements are not within the ambit of Miranda, and that deceit may be used by the police in obtaining a confession. See Hopkins v. State, 19 Md. App. 414, 311 A. 2d 483 (1973), cert. den., 271 Md. 738 (1974). Appellant argues the error here is simply that he was in custody and interrogated in violation of Miranda. Although there is no doubt appellant was in custody, his statements were not made in response to interrogation. See Vines v. State, 40 Md. App. 658, 394 A. 2d 809 (1978); Howell v. State, 5 Md. App. 337, 247 A. 2d 291 (1968), cert. den., 253 Md. 734, cert. den., 396 U. S. 907. The holding of Miranda makes it explicit that interrogation is a critical element in determining whether appellant’s statements were compelled:

“. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Emphasis supplied). 384 U. S. at 444.

This Court in Cummings v. State, 27 Md. App. 361, 341 A. 2d 294, cert. den., 276 Md. 740 (1975), observed that there are two threshold inquiries which determine Miranda’s applicability: (1) was there custody; and (2) was there interrogation? Id. at 367. This second question must be answered in the negative. The appellant’s statements were made in “general conversation”; they were not given in response to questioning. See Bazzell v. State, 6 Md. App. 194, 199, 250 A. 2d 674 (1969). In Howell v. State, supra, a case somewhat analogous to this situation insofar as no questions were asked by police, this Court held that incriminating statements made after the reading of a codefendant’s confession implicating the defendant were not made in response to “interrogation” within the meaning of Miranda. See also Cummings v. State, supra at 385. In Hoffa v. U.S., 385 U. S. 293, 304, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966), the Supreme Court held that incriminating statements made in conversation with and in the presence of a government informer were wholly voluntary and that the element of compulsion required by the Fifth Amendment was absent. Miranda itself said the following with reference to voluntary statements:

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 384 U. S. at 478.

In light of the precedents and upon our independent review of the record, we cannot dispute the trial court’s ruling on the suppression motion, which we quote, in pertinent part, below:

“[The trooper] . . . did not initiate conversation relative to the crime in question. His testimony was that he conducted no interrogation, no questioning about the crimes about which he was attempting to find information, and in fact the only information that he was able to elicit was that the defendant knew where the bodies were buried. There is some further testimony about the defendant knowing how to kill in two different fashions but for what it’s worth, I find that it is voluntary and admissible, by the same preponderance of the evidence test.”

5

Dr. Fitzpatrick’s testimony

Appellant’s final contention is that Dr. Fitzpatrick should not have been allowed to testify as to the results of a staff conference at Clifton T. Perkins State Hospital which he did not attend. Dr. Fitzpatrick, a psychiatrist, had personally seen and examined appellant, who had been referred to the hospital by the Circuit Court for Wicomico County for a psychiatric evaluation following his filing a plea of insanity. During his direct examination the doctor was allowed to refer to the hospital record, which had previously been shown to have the qualities of a business record. As part of the record there was a filled-out form, referring to a staff conference, which reached a conclusion that while appellant did suffer a mental disorder he was competent to stand trial and the disorder did not prevent him from appreciating the criminality of his conduct or conforming his conduct to the requirements of the law. It is not entirely clear from the record whether an objection was properly preserved. Nevertheless, we find no error in allowing the doctor to read the results of the staff conference since he only read the diagnosis and not any opinion as to the ultimate issue, legal sanity or not. Appellant equates the instant case with Gregory v. State, 40 Md. App. 297, 391 A. 2d 437 (1978), wherein we reversed a conviction for false imprisonment and assault because we held the trial court had erred in admitting into evidence parts of psychiatric reports which recorded opinions as to the accused’s criminal responsibility; we did so because we found this violated the accused’s right to confront witnesses against him. We note that in Gregory there not only was an objection, constitutionally based, made to the full hospital record from Clifton T. Perkins, which was overruled, but that on cross examination of Dr. Adamo, a defense witness, he was allowed, over objection, to testify that other psychiatrists at the staff conference did not agree with his opinion that the accused was not responsible. He was not asked, however, what the opinions were of the other psychiatrists.

In the instant case the trial court sustained an objection to the admission of the Perkins’ report. The objection was specifically based on the fact that the report contained a police report, reference to reports of psychiatric evaluation from several hospitals in California, and many references to the fact that appellant was charged with the murders of two boys. Nevertheless, the trial court later allowed Dr. Fitzpatrick to refer to the hospital record and ultimately to read the staff diagnosis over objection. Our reading of the record persuades us that there was no error here. There was no reason given for this objection nor was any reason requested. While it is true that under Maryland Rule 522 d it is not necessary to state the grounds for an objection to evidence unless requested by the court, if, however, grounds are asked for or volunteered, that party will be limited on appeal to a review of those grounds and will be deemed to have waived any ground not stated. Von Lusch v. State, 279 Md. 255, 368 A. 2d 468 (1977). Thus it appears that appellant, under the circumstances present, may raise the confrontation ground on appeal. This is of little help to him, however, since we conclude he has waived this right in another respect. In Peisner v. State, 236 Md. 137, 202 A. 2d 585 (1964), cert. den., 379 U. S. 1001 (1965), it was pointed out that when evidence, similar to that upon which there was an original objection, is admitted later from another source, without objection, the original objection is waived. In the instant case there was evidence that appellant’s psychiatrist, in his testimony, referred to evaluations of appellant by other medical staffs which revealed a diagnosis quite similar to that contained in the Perkins’ report. We conclude appellant’s objection to this particular question to have been waived. With respect to the question asked of Dr. Fitzpatrick in regard to any opinion of criminal responsibility reached by the Perkins staff conference, we find no merit in appellant’s argument simply because there was no objection made at all. It is axiomatic that to preserve an issue for appeal some objection must be made or a party will be deemed to have waived an objection. See Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975). We find no error by the trial court in its ruling on this issue.

Judgment affirmed.

Costs to be paid by appellant.

      . Appellant was also charged with the murder of Troy Krause but that case was severed from the instant case at appellant’s request.

      . Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Anno. Code of Maryland, Art. 59, § 25 (1972 Repl. Yol.).


author: Gilbert, C. J.,

text:
    RAYMOND C. CORKRAN, etc. et al. v. ZONING COMMISSIONER FOR BALTIMORE COUNTY
    [No. 630,
    September Term, 1978.]

      Decided February 8, 1979.

      The cause was argued before Gilbert, C. J., and Liss and Couch, JJ.

      Walter I. Seif, Jr., with whom were Seif & Herzberger, P.A. on the brief, for appellants.

      Thomas J. Bollinger, Assistant County Solicitor for Baltimore County, with whom was J. Carroll Holzer, County Solicitor, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

“[T]he privilege of bringing every law to the test of the constitution [both federal and State] belongs to the humblest ■citizen, who owes no obedience to any legislative act, which transcends the constitutional limits.” The appellants in the instant case, firmly believing that they have erroneously been denied their right to put an ordinance of Baltimore County “to the test of the constitution,” have brought their cause to this Court. Here, they decry the dismissal by the Circuit Court for Baltimore County of their suit for a declaratory judgment, the goal of which was to have Ordinance 18-76, effective April 19,1976, adjudged to be null and void.

The appellants’ nar was met by a motion raising preliminary objection, Md. Rule 323 a (10). Without a hearing, the motion was granted and the case was dismissed. The judge observed that the appellants had set “forth no claim cognizable in Law.” We, however, have an entirely different view of the appellants’ claim. Because we think that the nar did recite a “claim cognizable in Law,” we shall reverse the order that granted the motion of the appellee, Baltimore County, and that dismissed the suit.

The declaration charged that Ordinance 18-76 was an unlawful “delegation of authority to the County trucking— facilities — development officials,” will result in a loss of use of appellants’ property which is akin to a taking of property without just compensation, a denial of the equal protection of the law, and a deprivation of property rights. The appellants requested the circuit court to declare Ordinance 18-76 unconstitutional. They further sought the issuance of “an injunction, both temporary and permanent ... ordering the Zoning Commission of Baltimore County to cease and desist the enforcing of Ordinance No. 18-76 until such time as there shall be a ruling on the constitutionality of said Ordinance.” We think it clear that the injunction that appellants sought was temporary in nature. If issued, it would have had a life span of no longer than the date of the ruling on the constitutionality vel non of the ordinance. Should the court have decided the ordinance to be constitutionally sound, there would have been nothing further to enjoin. On the other hand, had the court decided the ordinance was constitutionally infirm, there would have been no need to continue the injunction past the date of such declaration. Although the prayers for relief, as embodied in the nar, do express the thought that a “temporary and permanent” injunction was sought by the appellants, it is patent that the use of the adjective “permanent” is inconsistent with the expressed desires of the appellants.

The Maryland Uniform Declaratory Judgments Act, now codified in Courts and Judicial Proceedings Article §§ 3-401 to 3-415, inclusive, states its legislative purpose in section 3-402 thereof. That section provides that the act is remedial in nature. “Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. It shall be liberally construed and administered.” Courts Art. § 3-402. The Court of Appeals, in Himes v. Day, 254 Md. 197, 206, 254 A. 2d 181, 186 (1969), speaking through the late Judge Finan, said, “We think Judge O’Donnell’s observation in the court below, that declaratory judgment procedure is available at law as well as in equity is quite correct.” See also Fisher v. Tyler, 24 Md. App. 663, 668, 332 A. 2d 265, 268 (1975). “The determination of whether the action is properly at law or in equity,” Judge Thompson wrote for the Court in Fisher v. Tyler, supra, “must be made by an examination of the nature of the claim asserted and the relief requested.” 24 Md. App. at 668-69, 332 A. 2d at 268.

The case of Glorius v. Watkins, 203 Md. 546, 102 A. 2d 274 (1954) makes manifest that “[i]f the proceeding is of a legal nature, it does not become equitable when cast in the form of a demand for a declaratory decree; just as a remedy purely legal cannot be sought in an equity court merely by invoking .. .'[The Declaratory Judgment Act].” Put more graphically, “a wolf in sheep’s clothing” is yet a wolf. The veneer in which the suit is boxed is not the standard by which it is tested, rather it is the fabric from which the suit has been tailored that determines whether the action belongs in law or in equity.

The appellee contends that the appellants asked for “a permanent injunction, which is not ancillary relief and within the authority of the law court.” We have previously pointed out that the use of the adjective “permanent” by the appellants in their declaration was obviously an incorrect usage of the word. Nevertheless, on its face, the declaration could not have meant that the requested injunction be permanent in nature, because in the same sentence, the appellants made clear that the sought after “temporary and permanent” injunction would have a short life. When the trial court ruled on the constitutionality of the ordinance, the so-called “temporary and permanent” injunction would expire. Ergo, irrespective of the manner in which appellants characterized the requested injunction, the injunction, if issued, would be no more than temporary, and temporary injunctions are available in declaratory judgment actions as ancillary relief. Md. Rules BF40, BF41, BF42, and BF43. Redding v. Board of County Commissioners, 263 Md. 94, 112, 282 A. 2d 136, 146 (1971).

The declaration was properly brought in the law court, as that court had jurisdiction to declare the relief requested, and it possessed the ancillary authority to enjoin temporarily the enforcement of Ordinance No. 18-76. We think the circuit court erred in dismissing the declaration. Even if the circuit court had not erred in its preliminary motion ruling, we would still be hard pressed to hold that the judge was correct in dismissing the appellants’ suit. The reason that we would find such a holding difficult is found in Md. Rule 515 a, which provides in pertinent part:

“Where it shall appear that the plaintiff is or may be entitled to some relief or remedy, but not in the particular court, or on the side of the court in which the action is brought or the relief is prayed, the plaintiff shall not on that account be nonsuited or the action dismissed; but the action shall be transferred by an order to such proper court or docket, either of equity or law, in the same county, as the nature thereof may require, or, if the action is within the exclusive jurisdiction of the District Court then to the District Court sitting in the same county and upon such terms as to the payment of costs as the court may order.”

The rule permits a trial court to transfer the case to the proper side of the court, if it has been instituted on the incorrect side. The court may take such action on motion by the plaintiff or on its own initiative. The rule places the utmost importance on preventing a plaintiff who appears to be entitled to some relief, from being denied that relief simply because he sought to invoke the aid of the wrong side of the court. The rule does not necessitate, as appellee suggests, that a motion for transfer to the proper forum originate with the plaintiff, or that failure by the plaintiff to so move constitutes a waiver of Rule 515. When the judge observes that the plaintiff may be entitled to some relief in the other side of the court from that in which the action was brought, he, in the interest of justice, at any time before the jury retires to consider its verdict, if the action be at law and there is a jury, or at any time before final judgment in an equity or non-jury trial, Md. Rule 515 b, shall order the cause transferred to the proper court or docket. Md. Rule 515 a. Thus, if the judge believed the suit to have been brought in the wrong side of the court, he should not have dismissed it but ordered it transferred to the proper side.

We believe the motion raising preliminary objection on the ground of lack of subject matter jurisdiction to have been improperly granted.

Order granting motion raising preliminary objection and dismissing appellants' declaration is vacated.

Case is remanded for further proceedings.

Costs to be paid by Baltimore County.

      . Joseph Story, Address to the Suffolk Bar, September 4, 1821 in The Miscellaneous Writings of Joseph Story (Boston: James Munroe and Company, 1835) p. 428.

      . The appellants are: Raymond C. Corkran and Maurice Robbins t/a Northpoint Terminals, Kenneth W. Branamen and Pearl Branamen, Russell Siegel, Eugene A. Davidson, Louis Petrovia, and Ernest D. Shiflett.

      . “Lack of jurisdiction over the subject matter.”

      . The adjective “permanent” is defined to mean: “1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or place____” The American Heritage Dictionary of the English Language (1970).

      . Judge O’Donnell later served on the Court of Appeals from April 29, 1974 until his death on April 2, 1976.

      . Aesop, c 550 B.C., The Wolf in Sheep’s Clothing.

      . Md. Rule BF40 provides that “[i]n an action at law a party either in his original pleading or at any time after the commencement of the action ... may claim ... that.. . a[nl . .'. injunction ... be issued.” :Md. Rule BF40 a. If, however, the case is at issue, “a claim for a writ of injunction ... shall be filed only after obtaining leave of court.” Md. Rule BF40 b.


text:
    LAWRENCE H. BARANSKI v. PRINCE GEORGE’S COUNTY, MARYLAND et al.
    [No. 632,
    September Term, 1978.]

      Decided February 8, 1979.

    The cause was argued before Gilbert, C. J., and Liss and Couch, JJ.

      Karl G. Feissner, with whom were Feissner, Garrity & Beckman on the brief, for appellant.

      Steven Gillman, Associate County Attorney for Prince George’s County, with whom were James C. Chapin, County Attorney, Michael O. Connaughton, Deputy County Attorney, and David E. Grover, Associate County Attorney, on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Promotion satisfies the hunger of ambition as drink quenches thirst, temporarily. Where the seeker of promotion is denied his goal, notwithstanding what he perceives to be his superior qualification, the hunger sometimes spreads throughout the body like a metastasizing cancer. When that occurs, nothing short of total a posteriori recognition will soothe the damaged ego.

The matter now before us was brought by Lawrence H. Baranski, a captain in the Prince George’s County Police Department, against the County and John W. Rhoads, the Chief of Police for the County. Baranski complains that the County’s merit system of promotion was violated by the County, acting through the Chief of Police, in not advancing Baranski from lieutenant to captain approximately thirteen (13) months earlier than the date that he was promoted. Patently, the later promotion did not soothe Baranski’s injured ego nor was any balm applied to it when Judge Jacob S. Levin of the Circuit Court for Prince George’s County denied Baranski’s plea that the captaincy be backdated to the time that Baranski believes he should have been promoted to that rank. Had Baranski prevailed in the circuit court, not only would he have gained the sought a posteriori recognition, but also the salary differential as well as seniority.

Although set back by Judge Levin’s ruling, Baranski refused to capitulate. Instead of abnegating what he apparently sees as properly his, Baranski brought an appeal to this court. Here Baranski asserts:

“I. The actions of the Chief of Police and Prince George’s County in not promoting the Appellant in his first promotional examination when he attained second on the promotional list was in violation of the Charter and Merit Regulations of Prince George’s County which require that personnel actions be based upon merit and fitness.
II. The conclusion of Appellee Rhoads, Chief of Police, that Appellant did not fit into his (Chief Rhoads’) organizational plans, that he (the Chief of Police) never looked at the promotional list, and that in the opinion of the Chief of Police the evaluation system isn’t worth the paper it is written on, is not a permissible criteria under a merit system plan for consideration of employees for upward mobility.”

THE FACTS

The record discloses that Baranski finished second in the January 31, 1975, examination for the position of police captain. At that time there were three vacancies to be filled in that particular rank. From the eligibility list, Chief Rhoads selected three persons who finished 1, 3, and 4 in the overall examination. Each of the three (3) who were promoted had attained a higher “supervisory rating” than Baranski. The Chief, in his answers to written interrogatories, said:

“I made my selections after considering the nature and requirements of each position and each of those persons certified as eligible and my reason for not selecting ... [Baranski] for promotion to the rank of Police Captain was that I did not have confidence in his command ability and other abilities necessary to carry out the duties and responsibilities of any of the three (3) unoccupied positions to my satisfaction.”

Baranski’s version of a conversation with Chief Rhoads concerning Baranski’s not being advanced to captain following the 1975 examination, not unexpectedly, differs materially from the Chief’s answer to the interrogatory. Baranski avers that he was told by Chief Rhoads, “Larry, you and I know that evaluation system isn’t worth the paper it’s written on.” Baranski also stated that the Chief “indicated to me [that] I didn’t fit into his organization plans at that time.”

Baranski was promoted to police captain after a February 27, 1976, examination. In that test, he obtained the third highest composite score. His “supervisory rating”'rose from 20.68 to 22.0, the same rating as each of the other five persons who had a final standing in the top six of all of those who took the examination.

I.

Underpinning Baranski’s suit are the Prince George’s County Charter and that County’s “Merit System Ordinance.” The Charter of Prince George’s County, Article IX, Personnel, Section 901. THE PERSONNEL SYSTEM, provides:

“Except for those in exempt positions, the Council shall provide by law for a personnel system governing the appointment and removal of employees, and other personnel procedures for employees in the County Government. The personnel system sháll insure that personnel actions are based upon merit and fitness, and that no employee or applicant for employment shall be discriminated against in any personnel action by reason of race, color, religion, creed, sex, political affiliation, or country of national origin.”

County police are not within the ambit of the exemptions specified in Charter, Article IX, section 902, as exempt from the personnel system. See also Prince George’s Code § 16-102 (27).

• Baranski, through his counsel, notified Chief Rhoads under date of November 30, 1976, of a complaint and grievance under the Provisions of section 13-105 of the “Merit System Ordinance.” That section provides in part that if an employee of the county is “dissatisfied” with his department head’s disposition of the employees complaint, the employee may carry his grievance, through the County Personnel Officer, to the County Merit Board. As one of its functions, that Board is empowered by Merit System Ordinance § 13-102 to “adjudicate appeals ... from the decisions of the Personnel Officer.” The appellate decisions of the Board are “final and ... exhaust all administrative appeal rights....” Once those rights have been exhausted, a further appeal is permitted to the circuit court, which appeal is to be “taken in the manner prescribed under Rule B [Appeals from Administrative Agencies] of the Maryland Rules of Procedure.” The Merit System Ordinance does not provide, however, for further appeal to this Court and, therefore, none is allowed. Prince George’s County v. Fahey, 28 Md. App. 312, 345 A. 2d 102 (1975). We said in Fahey:

“It is a fundamental principle of law that in those cases where a trial court exercises a special limited appellate jurisdiction, which has been conferred by statute, no appeal from the trial court to this Court is permitted absent a statutory provision authorizing further appeal to us. Sugar v. North Balto. M.E. Church, 164 Md. 487, 499, 165 A. 703, 707-08 (1933). See also Urbana Civic Ass’n v. Urbana Mobile Village, Inc., 260 Md. 458, 461, 272 A. 2d 628, 630 (1971).”

We reiterated that holding in American Ambulance & Oxygen Service v. City of Baltimore, 31 Md. App. 432, 356 A. 2d 580 (1976).

Following receipt of Baranski’s complaint, an associate county attorney responded that the office of County Attorney believed “that the proper recourse for Mr. Baranski is to go through the grievance procedures of the Labor Contract. This decision is based on the fact that Officer Baranski’s grievance arose at the rank of lieutenant, who [sic] in fact are [sic] covered by the provisions of the Labor Agreement.” We infer that this is a reference to a Labor Agreement between the county and Lodge 89, Fraternal Order of Police approved on February 25, 1976. See Prince George’s County Code § 16-233 (f) (2). The assistant county attorney suggested that “[i]f this is not a satisfactory solution to Officer Baranski’s complaint” that the County Attorney’s “office would be happy to discuss this with you in greater detail.” The record is silent as to whether Baranski’s attorney availed himself of that invitation. We observe that Judge Blackwell of the Prince George’s County Circuit Court ruled on May 3, 1977, in Bethel v. Prince George’s County (Equity No. E-929) that an aggrieved party who is covered by the provision of a collective bargaining agreement is not restricted to the grievance procedure set out in the Prince George’s County Labor Code § 13A-108 (b) as his “exclusive remedy. Thus, an aggrieved party must be afforded the right to pursue his remedy by way of the merit ordinance — even if he ultimately chooses not to exercise that right.” Judge Blackwell went on to state that the “aggrieved party is not authorized ... to pursue both available remedies.” He must elect to proceed under the Merit System or under the collective bargaining agreement.

Matters lay at rest until May 1977, when Baranski filed a Bill of Complaint for declaratory judgment in which he sought to have the circuit court decree that he should have been promoted to the rank of captain at the time he finished second on the eligibility list; that the court declare, in effect, that an appointing authority must appoint from the eligibility list in the order in which the applicants achieved standing; that he “receive credit for his retirement and ... back pay” from the time that he should have been promoted to captain.

The County promptly filed a motion raising preliminary objection on the ground that Baranski had not exhausted his administrative remedies. The motion was denied, apparently on the basis of Bethel. The order overruling the motion makes reference to the hearing judge’s “oral ruling” but that “ruling” is not part of the record. Eventually, the case was heard on its merits by Judge Levin, who, as we have noted, denied the declaratory relief and entered judgment in favor of the appellees.

The parties, in this Court, have addressed themselves to the proceeding before Judge Levin. The County, for reasons best known to itself, has not commented upon the preliminary objection ruling nor upon the exhaustion of administrative remedies.

THE LAW

As we see it, the County has provided to its merit system employees two methods of airing grievances. Being passed over for promotion is one such grievance covered by those means of redress.

The Merit System Ordinance spells out in clear and unambiguous terms the procedure that is to be followed by a merit system employee who believes he or she has been improperly denied promotion. Section 13-105. The ordinance directs the- Merit Board to conduct a hearing and make findings of fact. Section 13-102. Either party aggrieved by the decision of the Merit Board may appeal to the circuit court in accordance with Rule B of the Maryland Rules of Procedure. Section 13-103. No further appeal is sanctioned. Thus, the judgment of the circuit court is final. Prince George’s County v. Fahey, supra; American Ambulance v. City of Baltimore, supra.

There is a second road for the disappointed merit system employee to travel in order for him or her to seek redress for what the employee thinks is improper action by the appointing authority. The alternative method is available, however, only if the employee is included within the ambit of a collective bargaining agreement between the county and a union.

When, as here, the merit system employee is covered by the terms of a collective bargaining agreement, he or she is afforded an election of remedies. The employee may pursue the matter under the provisions of the Merit System Ordinance or under the County Labor Code, but the employee cannot have it both ways; that is to say that a person may not seek redress under the Merit System, and, if unsuccessful, invoke the Labor Code provisions. Once the election is made and carried to conclusion, no other grievance procedure methodology may be utilized. The complete use of one of the two alternative methods of grievance redress is the implicit waiver of the other.

What has happened in the case at Bar is the attempted creation of a third method of redress. If successful, it allows the aggrieved employee the review by this Court as a matter of right, and the opportunity of seeking certiorari to the Court of Appeals, thus, obtaining the appellate review that is denied any employee who proceeds administratively.

We think that because of the specific relief available to the appellant under either the County Merit System or the County Labor Code the motion raising preliminary objection should have been granted. The Declaratory Judgment Act, Maryland Courts and Judicial Proceedings Code Annotated §§ 3-401 to 3-415, inclusive, may not be employed in those specific cases where a special remedy is provided by statute or ordinance. Courts art. § 3-409 (b); Friendship Heights v. Funger, 265 Md. 339, 289 A. 2d 329 (1972); Hartman v. Prince George’s County, 264 Md. 320, 286 A. 2d 88 (1972); Gingell v. County Commissioners, 249 Md. 374, 239 A. 2d 903 (1968); Reiling v. Comptroller, 201 Md. 384, 94 A. 2d 261 (1953); Verkouteren v. Supervisor of Assessments, 38 Md. App. 216, 380 A. 2d 642 (1977); Poolesville v. County Council, 24 Md. App. 347, 330 A. 2d 711 (1975). The specific remedy is the form that “must be followed,” Friendship Heights v. Funger, supra; Hartman v. Prince George’s County, supra, when that remedy is intended to be exclusive. Maryland-National Capital Park & Planning Commission v. Washington National Arena, 282 Md. 588, 386 A. 2d 1216 (1978).

We view the alternative modes of redress provided by the Merit System Ordinance and the Labor Code as the special form of remedy to which reference is made in the Declaratory Judgment Act. See Lawrence N. Brandt, Inc. v. Montgomery County; 39 Md. App. 147, 383 A. 2d 688 (1978). Moreover, for the reasons previously discussed in this opinion, we believe those forms of redress were intended to be exclusive. See Maryland-National Capital Park & Planning Commission v. Washington National Arena, supra.

The Friendship Heights v. Funger Court said flatly that one “who has not exhausted his administrative remedies cannot seek a declaration.. . .” The Court there was dealing with a zoning ordinance, but the principle is the same. One who has not exhausted his administrative remedies may not obtain relief by way of a declaratory judgment or decree.

We do not interpret the assistant county attorney’s response to Baranski’s lawyer as a denial of the use of the Merit System procedure. The County’s answer suggested that the County Attorney’s office did not think the Merit System Ordinance was applicable, and it suggested Baranski follow the route drawn by the Labor Code. Even though that suggestion was made, the door for further discussion was left ajar. Had Baranski desired, he might have followed up on the invitation for discussion, or he could have insisted upon the Merit System appeal. Had the County refused, mandamus would have been the appropriate action to compel compliance with the terms of the Merit System Ordinance.

The Uniform Declaratory Judgments Act is not a panacea for every cause of action, whether substantive or visionary. It may not be utilized when a statute or ordinance “provides a special form of remedy for a specific type of case,” Courts Art. § 3-409 (b), which statutorily mandated remedy “shall be followed in lieu of a proceeding,” id., under the Declaratory Judgments Act.

The sum and substance of what we have herein stated is that the instant case was brought in the wrong forum, in the wrong way, at the wrong time, and wrongly allowed, over preliminary objection, to remain there. The controversy should not have been tried on its merits as the court did not have jurisdiction over the subject matter because of the specific remedies. We shall not decide the issues raised on appeal because the litigation does not belong in this Court anymore than it did the circuit court. That court had no jurisdiction to decide the case, and neither do we. We shall dismiss the appeal and vacate the judgment of the circuit court and remand to that court with instruction that it dismiss the bill. See Montgomery County v. One Park North Associates, 275 Md. 193, 338 A. 2d 892 (1975).

Appeal dismissed.

Judgment of the Circuit Court for Prince George’s County vacated and case remanded with instruction to dismiss the bill.

Costs to be paid by appellant.

      . “Some one must be the loser; it is part of the game of life; we have to pay in countless ways for the absence of prophetic vision.” Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 143.

      . Adopted by the voters of Prince George’s County on November 3,1970, as amended through November 1974.

      . Prince George’s County Merit System Ordinance § 13-3 indicates that the Personnel Officer is the appointed head of the County’s Department of Personnel.

      . It is not dear from the record whether persons holding the rank of captain are covered by the contract, but in light of the County Attorney’s reply, we infer that captains are not so covered.

      . Judge Levin was not the hearing judge that passed upon the motion.