Air Lift, Limited v. Board of County Com'rs of Worcester County

• Decision Date: 03 June 1971
• Docket Number: No. 442,442
• Citation: 262 Md. 368,278 A.2d 244
• Parties: AIR LIFT, LTD. v. BOARD OF COUNTY COMMISSIONERS OF WORCESTER COUNTY, Maryland et al.
• Court: Maryland Court of Appeals

Page 368

262 Md. 368

278 A.2d 244

AIR LIFT, LTD. v. BOARD OF COUNTY COMMISSIONERS OF WORCESTER COUNTY, Maryland et al.

No. 442.

Court of Appeals of Maryland.

June 3, 1971.

Lance W. Billingsley, Hyattsville, for appellant.

Lee W. Bolte and Raymond D. Coates, Berlin, for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

The Circuit Court for Worcester County (Prettyman, J.) issued a temporary injunction on July 17, 1970, and, after a hearing on the merits, issued a permanent injunction on July 22, 1970, enjoining the appellant, Air Lift, Ltd., a Maryland Corporation, one of the defendants below (Air Lift), as well as other defendants, from conducting a rock festival or concert on land near the Town of Berlin in Worcester County on July 25, 1970.

Two bills of complaint were filed praying for injunctive and other relief. One, No. 9044 Chancery, was filed on July 17, 1970, by the Board of County Commissioners of Worcester County (County Commissioners) and property owners whose land was in the immediate vicinity of the site of the proposed rock concert against G. Hale Harrison, Jr. and others who owned the site, the tenant of the site, Air Lift, and two alleged sponsors of the contemplated 'Rock Festival,' i. e., Tom Curtis and Fred B. Norris. The other bill of complaint, No. 9045 Chancery, was also filed on July 17, 1970, by the Board of Education of Worcester County (Board of Education) against Air Lift and the owners of the site. Both bills of complaint were fully verified. They were consolidated for hearing before the Chancellor.

The principal questions before us are in regard to the sufficiency of the evidence to support the issuance of the temporary and permanent injunctions, certain rulings of the Chancellor on the admissibility of evidence, the fairness of the trial, and the form of the permanent injunction. We have concluded that there was sufficient evidence to support the issuance of the injunctions, that there were no prejudicial rulings by the Chancellor on the evidence, that the trial was fair, but that the language of paragraph 2 of the order of July 22, 1970, for a permanent injunction was improper, requiring a reversal on this ground, but an affirmance so far as the first three questions are concerned.

Although both bills of complaint prayed for 'Ex Parte' injunctions, the Chancellor-having been made aware on July 16, 1970, of the intended application for those injunctions-made arrangements for the defendants to appear on Friday, July 17, at 9:00 A.M. to be heard pursuant to the provisions of Maryland Rule BB 72 a. The Chancellor, in view of the importance and gravity of the requested injunctions, requested Dr. Fred S. Waesche, Deputy State Health Officer for Worcester County, and Lt. Col. Paul J. Randall, Chief of Operations of the Maryland State Police, to appear as experts and to advise the Chancellor in regard to the matters under consideration. Counsel for the parties and other interested persons were duly notified and those who wished to appear at the hearing did appear including, of course, counsel for the parties. The hearing on July 17 began at 9:20 A.M. and continued until 3:30 P.M. In addition to Dr. Waesche and Lt. Col. Randall, other witnesses-appearing at Lt. Col. Randall's request-were heard by the Chancellor, who at the end of the hearing granted the 'Ex Parte' or temporary injunction and dictated his reasons for this action. Counsel for Air Lift then requested an immediate hearing on the merits to determine whether the injunction should be made permanent or dissolved. The Chancellor granted this request and assigned the cases for such a hearing on the merits for the following Monday, July 20, at 10:00 A.M., having cleared the Court calendar of scheduled criminal cases in order tod have the hearing.

The hearing on the merits began at 10:00 A.M. on Monday, July 20, and continued until 7:40 P.M. on that day, recessing to the following morning, July 21, at 10:00 A.M. The hearing continued on July 21, from 10:00 A.M. to 5:45 P.M. During a recess at 4:30 P.M. on July 21 all counsel requested the Chancellor to state his opinion orally at the conclusion of the hearing, the Chancellor to file a written opinion and order the following day, Wednesday, July 22, at 11:00 A.M. This schedule was carried out. The Chancellor, on July 21, announced that the injunction would be made permanent and, on July 22, filed a written opinion, with findings of fact and conclusions of law, together with an order making the injunction permanent and providing for other matters.

The parties have considered the questions in regard to the sufficiency of the evidence to support the 'Ex Parte' and the permanent injunctions together in their briefs and at argument. This was proper inasmuch as the evidence produced through Dr. Waesche and Lt. Col. Randall and the other officers of the Maryland State Police at the hearing on July 17 in regard to the 'Ex Parte' injunction was largely duplicated in their testimony at the hearing on the merits on July 20. We will follow this same method in considering these questions.

The evidence shows that sometime in April or May, 1970, Air Lift, through its president, Thomas Curtis, began to make plans to hold a 'Rock Affair' in Worcester County and began looking for a site. There were negotiations with G. Hale Harrison, Jr. and other members of the Harrison family, who owned the 'Home Farm' containing 181 acres on the outskirts of the Town of Berlin, to lease the Home Farm for a rock festival of concert to be held on Saturday, July 25, 1970. Although the negotiations had progressed to the point of the submission, pursuant to an option to lease under certain conditions, of a proposed written lease for execution by the owners of the proposed site, the lease had not been executed on July 20 when the hearing on the merits was held.

The proposed site lies on the south side of U. S. Route 50. Substantially separating the Home Farm into two parcels is the tract of approximately 27 acres owned by the Board of Education and on which the Stephen Decatur High School has been erected. This high school serves the northern portion of Worcester County and contains 30 classrooms as well as other rooms, a gymnasium and cafeteria, all occupying approximately 100,000 square feet and serving approximately 1,000 students during the school year. There are athletic fields to the rear of the school buildings and a few trailers serving as temporary classrooms. The value of the school property is approximately $4,000,000.

The portion of the Home Farm lying to the west of the high school property has a frontage of about 1,300 feet on U. S. Route 50. We will refer to this portion of the site as the 'West Lot.' The remaining portion of the Home Farm lies to the east of the high school property and has a frontage of approximately 1,200 feet on Maryland Route 50. This will be referred to as the 'East Lot.'

The Home Farm is located in an area of residential and commercial development along U. S. Route 50 near its intersection with Maryland Routes 346 and 452 and a county road known as the 'Stephen Decatur High School Road.' The westerly boundary line of the last-mentioned county road is the only line of demarcation between the school property and the West Lot. U. S. Route 50 is the only east-west means of access by paved road to and from Ocean City, Maryland's popular ocean summer resort located in Worcester County on the Atlantic Ocean. Maryland Route 452 carries traffic to and from U. S. Route 50 to Delaware and the north; Maryland Route 346 carries traffic to and from U. S. Route 50 and U. S. Route 113 to Virginia and the south as well as local traffic between the Berlin area and Ocean City. Stephen Decatur High School Road is in fact an extension of Maryland Route 452 and carries traffic to and from the Berlin area to Maryland Route 376 leading to Assateague Island State Park and Assateague National Seashore.

The assessed value of the real and personal property of the 54 non-public plaintiffs in No. 9044 Chancery is $754,665. As indicated, the value of the high school property is approximately $4,000,000. In addition to the individual residences and lands of property owners near the proposed site, there is a service station at the northern intersection of U. S. Route 50 and Maryland Route 452; a furniture store on the southeasterly side of U. S. Route 50 adjoining the East Lot on the east, with a building supply firm adjoining the furniture store to the east; a used car dealership is directly across from the site on the northerly side of U. S. Route 50; and, an A & P Supermarket, serving the northern end of Worcester County (including Ocean City) to the west of the West Lot near the apex of a triangle formed by U. S. Route 50 and Maryland Route 346; and, to the west of the supermarket, there are a service station, trailer rental agency and a new automobile dealership. The site is a short distance from the town limits of the Town of Berlin.

All of the West Lot and most of the East Lot were zoned by the County Commissioners as A-1 for agricultural use. The northerly frontage of the East Lot, with a depth of approximately 100 feet, was zoned as B-2 for business use.

T. Howard Collins, for six years Inspector for Worcester County Planning and Zoning, testified at the hearing on July 20. After indicating his familiarity with the site and describing it and the applicable zoning, Mr. Collins identified the applicable zoning map which was introduced into evidence. Mr. Collins also testified that no one had obtained a permit from the zoning authorities to hold a Rock Festival on the site on July 25. He stated that when an application for a zoning permit was submitted to his office, the Department of Health was notified. Section 18.2 of the Worcester County Zoning Ordinance requires the obtention of a zoning certificate for...