Anne Arundel County Com'rs v. Ward

• Decision Date: 12 April 1946
• Docket Number: 112.
• Parties: COUNTY COM'RS OF ANNE ARUNDEL COUNTY v. WARD.
• Court: Maryland Court of Appeals

46 A.2d 684

186 Md. 330

COUNTY COM'RS OF ANNE ARUNDEL COUNTY v. WARD.

No. 112.

Court of Appeals of Maryland

April 12, 1946

Appeal from Circuit Court for Anne Arundel County; James Clark Judge.

Mandamus proceeding by Herbert S. Ward against the County Commissioners of Anne Arundel County, a body corporate, to compel the granting of a building permit. From an order, the defendants appeal.

Order reversed and petition dismissed.

Benjamin Michaelson, of Annapolis, for appellants.

Herbert S. Ward, pro se.

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

HENDERSON Judge.

On May 7, 1945, a petition for a writ of mandamus was filed against the appellants in the Circuit Court for Anne Arundel County, alleging that the appellee was the owner of two lots in a subdivision of Bay Ridge, having a frontage of 200 feet on Bay Drive and 243 feet on Upsher Ave.; that he made application on April 28 1945 for a building permit to erect on the rear of his lots give rustic, 16' X 16' cabins at a cost of $300 per cabin, and one rustic central service building, 16' X 32', to cost $600; that the permit was refused on May 1 1945; that the refusal was 'arbitrary, unlawful and unjust and in violation of the plaintiff's rights'.

An answer was filed to the petition setting up certain zoning regulations, adopted by the County Board on January 30, 1945, pursuant to authority conferred by chapter 551 of the Acts of 1943. The petitioner demurred to the answer, and the case was submitted to the trial court upon an agreed statement of facts.

It is conceded that the application for permit complied in all respects with the building Code then in force, but it is also conceded that it violated the applicable zoning regulations, which called for 'one-family residences; no apartments', not more 'than one residence on a lot with a fifty (50) foot front', and no house 'to contain less than 3,200 cubic feet' or 'cost less than $2,500.'

Bay Ridge is a peninsula located at the mouth of the Severn River, about four miles by road from Annapolis. Where not surrounded by water, or bordered by water, the area is bordered by privately owned farm land. The area contains about 300 acres and was surveyed and laid out in building lots about 1920; since that time it has been maintained as a residential community, with the exception of about 12 acres developed as a bathing beach and summer resort. Most of this acreage is covered with timber and unimproved. There are about 200 private residences, most of which are suitable for year-round habitation. Building restrictions substantially identical with the zoning restrictions were incorporated in the original deeds, but these expired in 1935. The petitioner purchased his lots subsequent to 1935. The proposal to zone was presented to the County Commissioners August 2, 1944, by Bay Ridge Civic Association, a body corporate. Several public hearings were held thereon, after due notice, and the regulations were finally adopted, with amendments, on January 30, 1945.

The enabling Act, chapter 551 of the Acts of 1943, effective May 4, 1943, read as follows:

'Zoning.

'516. For the purpose of prompting health, safety, morals, and the general welfare of the community, the County Commissioners of Anne Arundel County are hereby empowered to designate residence areas within said County and to regulate, restrict or prohibit the location and use of buildings, structures and land for trade, industry, other commercial enterprises and residences or other purposes within said areas. Such regulations shall be made in accordance with a comprehensive plan. They shall be designed to reduce congestion in the roads, streets and alleys; to promote safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land and to avoid undue concentration of population; to facilitate adequate provision for schools, parks, water, sewerage, transportation and other public requirements, conveniences and improvements, including such public utility buildings, structures and facilities as may be required in each district for the storage and/or distribution of gas and electricity.

'For all or any of said purposes the County Commissioners of Anne Arundel County may designate within the County certain residence districts or divisions of such number, shape and area as may be deemed best suited to carry out the purposes of this sub-title, and within such districts they may regulate and restrict the erection, construction, reconstruction, alteration, repair and use of buildings, structures and land. All such regulations shall be uniform for each class or kind of building or structure throughout each district but the regulations in one district may differ from those in other districts.

'517. The County Commissioners shall determine the manner in which regulations and restrictions, and the boundaries of such districts, shall be established and enforced, and from time to time amended, supplemented and changed. Before determining the boundaries of the proposed districts and the regulation to be enforced therein, they shall hold a public hearing or hearings thereon, giving at least fifteen days notice in a newspaper of general circulation throughout the County, of the place and time of the beginning of such hearing or hearings. The County Commissioners shall have power to amend, supplement or repeal the regulations or restrictions adopted by them, provided that before doing so they shall follow the same procedure with respect to notice and public hearings as is herein provided for the original regulations and restrictions.

'518. The County Commissioners are hereby vested with such duties and powers as may be necessary and advisable for the proper administration of this sub-title and of such zoning regulations as they may adopt under the provisions of this sub-title, including the power to make general exceptions to permit continuance of existing uses and to permit limited trade or commercial uses of designated streets or blocks within residence areas, and including the power to summon and compel the attendance of witnesses.

'519. Any person, persons, taxpayer, officer, department, board or bureau of the County, jointly or severally aggrieved by any decision of the County Commissioners of Anne Arundel County, may, within thirty days after the filing of such decision in the office of the County Commissioners, appeal to the Circuit Court for Anne Arundel County.

'The said Court shall hear all such appeals de novo and shall have power to affirm the decision of the County Commissioners of Anne Arundel County, or reverse the same, in whole or in part, and may remand any case for the entering of a proper order or for further proceedings, as the Court shall determine.

'All issues in any proceeding under this sub-title shall have preference over all other civil actions and proceedings.

'520. The County Commissioners shall keep in a separate took all rules, regulations and restrictions adopted by them from time to time under the authority of this sub-title, and any amendments or supplements thereto, and shall cause copies to be printed and made available for general distribution. Any such printed copy, together with any amendments and supplements, when certified as accurate by the Chief Clerk of the County Commissioners, shall be deemed prima facie evidence thereof in any judicial proceeding in the State.

'521. Any violation of regulations and restrictions adopted pursuant to this subtitle shall be a misdemeanor, punishable by a fine not to exceed One Hundred Dollars ($100.00), or by imprisonment not to exceed thirty days, or both fine and imprisonment. Any person who shall violate such regulations and restrictions shall be deemed guilty of a separate offense for every day that such violation shall continue. Any person whose property is affected by any violation, including abutting and adjacent property owners, whether specially damaged or not, may maintain an action in the Circuit Court for Anne Arundel County for an injunction, enjoining the erection, construction, reconstruction, alteration, repair or use of buildings, structures and land in violation of regulations and restrictions adopted pursuant to this sub-title.

'522. The County Commissioners of Anne Arundel County are hereby vested with full authority and power to levy on the assessable property in each zone created under the provisions of this Act, such amounts as may be necessary to effect the proper administration of this Act.'

The regulations adopted read as follows:

'1. The entire area of Bay Ridge is to be strictly residential as per the duly recorded plat of Bay Ridge. It shall be limited to one family residences; no apartments. This shall not apply to the erection of a Community Club House and Pier to be erected by the residents of Bay Ridge.

'2. No Building shall be erected in Bay Ridge nearer to the avenue, street or drive on which it fronts, as now laid out on the plats of Bay Ridge Realty Corporation, than forty (40) feet, measuring on the center of the frong lot line, or five (5) feet from the rear or side line. Any separate garage shall be erected on the rear part of lots and not less than seventy five (75) feet from the front Building line.

'3. There shall not at any time be more than one residence on a lot with a fifty (50) foot frontage. No building shall be erected on a lot having an average width of less than fifty (50) feet, or an area of less than 5,000 sequare feet.

'4. No house shall be constructed on any lot fronting the Severn River, the Chesapeake Bay, Sands Avenue, Lake Drive from Sands Avenue, to Decatur Avenue, Decatur Avenue, Barry...