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Badian v. Hickey

Decided: April 17, 1962.

BADIAN
v.
HICKEY ET AL.



Appeal from the Circuit Court for Montgomery County; Shure, J.

Henderson, Hammond, Prescott, Horney and Sybert, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

The principal question presented is whether the thirty-day period for appeal from a decision of the County Council of Montgomery County, sitting as the District Council for that part of Montgomery County within the Maryland-Washington Regional District on a zoning application, ran from the date when the Council at a public meeting announced its decision and the vote of its members or from the date of a subsequent meeting at which the transcribed minutes of the Council reciting the prior decision and the vote were approved by the Council. The judge below held, in dismissing the applicant's appeal, that the earlier date was the starting point of the statutory period of appeal.

On November 11, 1960, Samuel M. Badian filed with the Montgomery County Council an application for reclassification of some two acres of his land from residential to apartment classification. A hearing on the application was held before the Council on March 13, 1961, and on April 25, 1961, a decision was rendered denying the requested reclassification. Subsequently, on May 15, 1961, Mr. Badian filed with the Council a petition for reconsideration of his application.

Then, on June 13, 1961, the Council, at a regular public meeting, adopted a resolution denying the petition for reasons set forth in an opinion accompanying the resolution. The resolution and opinion, it would appear, had been prepared by the County Attorney at the direction of the Council and were in written form when adopted. The stenographer of the Council recorded its proceedings, including the votes of the members of the Council on the question.

Although the record fails to disclose whether or not Mr. Badian or his counsel was present at the June 13 meeting of the Council, it does reveal that Mr. Badian received written notice on June 19, 1961, that his petition had been denied.

On June 20, 1961, the Council again met. At this meeting, the minutes of the June 13 meeting, having been transcribed by the stenographer in the meantime, were read and approved.

Finally, on July 20, 1961, Mr. Badian filed an order for

appeal in the Circuit Court for Montgomery County; and the appellees, the members of the Council, moved to dismiss the appeal as having been filed too late. The trial judge held that June 13 was "the governing date" and dismissed the appeal because Mr. Badian, when he filed on July 20, was "clearly beyond the legal limitation."

There are two relevant statutes in the case. The first, Ch. 780, Sec. 1 [78A] of the Laws of 1959, now codified as Montgomery County Code (1960), Sec. 72-85 (a public local law relating to that part of Montgomery County within the Maryland-Washington Regional District), states:

"In Montgomery County, a final decision of the district council on any application for a map amendment may, within 30 days after the decision is rendered by resolution of the council, or within 30 days after the final decision of the council on a petition for reconsideration, be appealed by any person aggrieved by the decision to the circuit court for the county * * *."

The second, Montgomery County Code (1960), Sec. 104-41, an ordinance relating to that part of the County ...


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