Benner v. Tribbitt

• Decision Date: 19 February 1948
• Docket Number: 85.
• Citation: 57 A.2d 346,190 Md. 6
• Parties: BENNER et al. v. TRIBBITT et al.
• Court: Maryland Court of Appeals

57 A.2d 346

190 Md. 6

BENNER et al. v. TRIBBITT et al.

No. 85.

Court of Appeals of Maryland

February 19, 1948

Appeal from Circuit Court, Caroline County; Floyd J. Kintner, Judge.

Petition for mandamus by Otto James Benner and Sherwood Brothers Incorporated, against Sherman L. Tribbitt and others constituting the Commissioners of Denton, to require defendants to issue to petitioners a building permit for a filling station. From an order dismissing petition petitioners appeal.

Order reversed and writ of mandamus directed to be issued.

K. Thomas Everngam and Marvin H. Smith, both of Denton, (George B. P. Ward, of Baltimore, on the brief), for appellants.

J. DeWeese Carter and James A. Wise, both of Denton, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from an order dismissing a petition for mandamus to require defendants, the Commissioners of Denton, to issue to petitioners a building permit for a filling station on a lot at the southwest corner of Main (or Market) and Fifth Streets. The lot fronts 80 feet on Main Street and 300 feet on Fifth Street. Application for the permit was filed on December 17, 1946, was advertised for two weeks and was denied on February 5, 1947. In response to the public notice seventeen persons had filed objections to issuance of the permit. The petition for mandamus was filed on February 25, 1947. After a demurrer to the petition had been overruled, defendants filed an answer.

Denton is a town of about 2000 inhabitants. Main Street (which runs east and west) is its principal business street. Route 404 is the principal public highway from the Chesapeake Bay Ferry (about 30 miles from Denton) to the lower Eastern Shore and lower Delaware. Route 404 runs through Denton on Main Street from west to east and at Fifth Street (which runs north and south) turns south around the corner of the lot in question.

By the charter of Denton, P.L.L. 1930, Art. 6, sec. 139, Acts of 1914, ch. 730, sec. 86, the Commissioners have power to pass ordinances 'for controlling the erection and location of buildings, fences and stock enclosures,' to 'prevent and regulate the storage of gunpowder, oil or other combustible matter in such quantities and in such places as they may deem proper' and to provide 'for the good government and peace, health and welfare of the town and the inhabitants therein.' (Italics supplied.) Of the clauses quoted the first originated in 1884, the second and the words not italicized in the third in 1914, the italicized words in or before the Code of 1860, P.L. L. Art. 6, sec. 61. The charter, unlike the Baltimore City Charter since 1898, does not delegate plenary authority 'to have and exercise within the limits of the [town] all the power commonly known as the 'Police Power' to the same extent as the state has or could exercise said power within said limits.' Cf. Rossberg v. State, 111 Md. 394, 74 A. 581, 582, 134 Am.St.Rep. 626; Brown v. Stubbs, 128 Md. 129, 97 A. 227; Osborne v. Grauel, 136 Md. 88, 110 A. 199, with Bostock v. Sams, 95 Md. 400, 414, 52 A. 665, 59 L.R.A. 282, 93 Am.St.Rep. 394. The town has no zoning powers and has not attempted no pass any zoning ordinance. The general zoning act of 1927, Code, Art. 66B, secs. 1-9, is applicable only to cities and towns containing more than 10,000 inhabitants; the planning and zoning act of 1933, Art. 66B, secs. 10-37, is expressly inapplicable to Caroline County. Sec. 35 and amendatory acts of 1941, 1945 and 1947. An ordinance of 1907 makes it unlawful to build 'any dwelling house, barn, shed, stable, storehouse, warehouse, shop, porch or any other building * * * without first obtaining a permit from the Commissioners.' An ordinance of 1937 prohibits construction or repair of 'any building of any kind or description * * * without first submitting * * * plans and obtaining a permit from the Commissioners.' These charter provisions and building ordinances constitute sufficient grant and exercise of the police power to justify denial of a permit for a filling station when such action is 'reasonably necessary for the adequate protection of the public welfare, safety, health, comfort or morals.' Pocomoke City v. Standard Oil Co., 162 Md. 368, 380, 159 A. 902, 906.

Petitioner Benner, owner of the lot, has contracted to sell it to petitioner Sherwood. The sale is conditioned upon grant of the permit. The petition for mandamus alleges that Sherwood 'has planned to erect a suitable, modern and beautiful building thereon (costing at least $25,000), and to landscape and beautify the said lot with shrubs, grass and hedges (which would effectively conceal the service station from adjoining residence), and to so arrange the same, as to conform to all architectural, safety and health standards.' Defendants' answer admits that so far as such plans are known to them, they meet defendants 'physical and visual requirements' for the erection of buildings. In an effort to appease objectors petitioners agreed to donate sufficient land at the corner of the streets, 'so that a curve would replace the present corner,' and also to donate to the town 'the land necessary for a public library or building,' at the south end of the lot, fronting on Franklin Street (parallel to Main Street) and Fifth Street, 'all of which proposed donations met with said Commissioners' stated approval.' The petition alleges that defendants on numerous occasions (between December 17, 1946, and February 5, 1947) advised petitioners 'that after consideration they believed the aforesaid plans were entirely proper, and the proposed use was in the best interests of the town * * *, and would not in any way affect the public health, comfort, safety or welfare of said town or the adjoining property owners, and that said Commissioners believed the adjoining property owners were misguided in their objections.' The answer alleges that 'the individual members of the Board did state personally and individually that they saw no objection to the physical plans for the building itself, and also stated that they personally saw no objection to the proposed use of the property, but emphatically deny that they officially said that the proposed use would not in anywise affect the public health, comfort, safety and welfare of the town or the adjoining properties, or that said property owners were misguided in their objections. * * * any statements made by any individual members of the Board to [petitioners] were an expression of the personal and tentative thought of the members at that time before full consideration of the matter had been given by them as Commissioners * * *, and were not intended in any manner as a forecast of what their official determination of the application would be after full consideration of the application with regard to the public safety, welfare, comfort, morals and health of all the inhabitants of said town.' The petition alleges that on February 1, 1947 defendants advised petitioners 'that they were going to hold a public meeting of the protestants of said application, solely in order to listen to their complaints and to explain to them the advantages of said building and landscaping, in place of the present weed and filth infested lot * * * but advising that the said permit and application was going to be granted.' The answer denies that defendants stated that the sole purpose of the meeting was to explain to the protestants the advantage of the proposed building and landscaping, or that the permit and application was going to be granted, and says the purpose of the meeting was to give the protestants an opportunity to be heard in explanation of their previous written objections filed.

The petition alleges that on February 5, 1947, before the meeting was called to order defendants announced that they had decided to 'turn down' the permit and application and dismissed the meeting, and when questioned advised that the permit and application were 'turned down' solely because the majority of the property owners in the immediate vicinity objected to any service station, or any other similar building of a commercial nature there, as they wanted to keep the neighborhood residential; and again advised that they personally favored the application but 'had to live with the objectors and therefore had to deny' it. The answer alleges that 'practically all of the seventeen protestants were present at the meeting, but it was not deemed necessary to hear explanations of their protests previously filed, for the reason that [defendants] had prior to the meeting, and after full consideration of the matter, * * * determined that the proposed use of the lot * * * would not promote the general welfare, safety, health morals and comfort of all the inhabitants of the town'; that as petitioners 'had been fully and exhaustively heard respecting the merits of the application and no public hearing of the matter was required by law' and 'it had been already determined to grant the objectives of the protestants, it was not deemed necessary to conduct the scheduled hearing'; that defendants 'have no recollection that either of them stated to any one their reasons for refusing the application,' and 'while the objection of the majority of the property owners and residents in the immediate vicinity to a service station being operated in that locality was one of the factors which was considered' by defendants in their 'determination to refuse the application, such factor was by no means the sole and only basis of [defendants'] determination and that the decision to refuse the application was based on a determination by [defendants] that the proposed use of the property would not promote the general welfare, safety,...