Baltimore Planning Commission v. Victor Development Co.

Citation261 Md. 387,275 A.2d 478
Decision Date08 April 1971
Docket NumberNo. 365,365
PartiesBALTIMORE PLANNING COMMISSION v. VICTOR DEVELOPMENT CO., Inc.
CourtMaryland Court of Appeals

Ambrose T. Hartman, Deputy City Sol., and John N. Spector, Asst. City Sol. (George L. Russell, Jr., City Sol., and Clayton A. Dietrich, Chief Asst. Sol., Baltimore, on the brief), for appellant.

John Martin Jones, Jr., Baltimore (Robert E. Young, Baltimore, on the brief) for appellee.

Argued before BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

McWILLIAMS, Judge.

In the spring of 1964 the appellee 1 (Victor) acquired a 12 acre parcel of land in a purlieu of Baltimore City known as Morrell Park both then and now zoned to permit the erection thereon of 40 residential apartment units to the acre. Just when the project to be known as the Morrell Park Apartments was conceived we are unable to say but it is clear that the planning stage was well along by late 1969. The 'Preliminary Plan' was approved by the Planning Commission (Commission) on 9 January 1970. 'Final development and subdivision plans,' filed on 2 February, received Commission approval on 6 February. Virtually essential to the financing of such a project is the procurement from the Federal Housing Administration (FHA) of a commitment that it will insure the repayment of money borrowed to construct the buildings. On 18 April the FHA issued its commitment to insure the repayment of a construction loan but only if Victor could obtain a building permit from the Department of Housing and Community Development on or before 24 September 1970.

In response to a request made by the Department of Public Works, Victor made some changes in its development plan and on 18 June it filed with the Commission a 'revised final development plan.' Approval followed on 10 July. On 5 August the 'revised final subdivision plan' 2 was filed. On 14 August the Commission rejected the 'revised final subdivision plan' and rescinded its prior approval of the 'revised final development plan.' The action of the Commission precluded the issuance of a building permit without which, of course, the FHA commitment would soon expire. The only reason given by the Commission was that 'construction and occupancy of the proposed * * * apartment would cause an increase in local school population, thus causing public schools in the area of the planned subdivision to become overcrowded.' 3

Although the record is silent in this regard it seems safe to assume that Victor went all out to persuade the Commission to recede from its position. Failing in this and spurred by the loom of the 24 September expiration date of the FHA commitment Victor, on 15 September, filed in the Baltimore City court its petition for the writ of mandamus claiming:

'That the Commission has no power or authority under the Baltimore City Charter, or under any other statute, charter, ordinance or rule of law, to refuse to grant approval of a final subdivision or development plan on the grounds that the development of a subdivision will have an adverse impact upon public schools in the area of said subdivision.

'That the actions of the Commission in refusing to approve Petitioner's revised final subdivision plan and in attempting to rescind its approval of Petitioner's revised final development plan are illegal, without justification, without authority, and hence arbitrary and erroneous for the reason that the revised final subdivision and development plans filed by the Petitioner comply in each and every respect with the requirements of the Baltimore City Charter (1964) Revision) and with all of the rules and regulations, lawfully adopted by the Commission under said Charter.'

The city solicitor, obviously uncomfortable at being thrust into the role of advocatus diaboli, answered the petition and prayed its dismissal. Victor, on 23 September, moved for a summary judgment. Following an informal hearing on 24 September the trial judge, Cardin, J., granted the motion and ordered the issuance of the writ of mandamus. The Commission's order for appeal was filed the same day. 4

It is entirely clear, we think, that the amendments of 24 April 1970 to the Rules and Regulations of the Commission were not offered in evidence, that they were not mentioned, directly or indirectly, by either of the parties, that they were not a factor in the discussions before the trial judge, and that counsel were unaware of their existence. Argument is hardly required to sustain the notion that they are no part of the case before us. Gordon v. State National Bank of Bethesda, 249 Md. 378, 239 A.2d 915 (1968).

We think it is clear, also, that the Commission can exercise only those powers granted to it by virtue of the Charter of Baltimore City (1964 Revision). Article VII, Section 78, empowers the Commission to

'* * * formulate and publish rules and regulations for the development of such subdivisions which will require that the development plans include adequate provision for all public improvements, enterprises and all public utilities, whether privately or publicly owned or operated; for the proper width, grade and arrangement of streets, and all uses of land for public transportation, and the relation thereof to public streets; for adequate and convenient open spaces for traffic and the access of fire-fighting apparatus; for proper drainage; and which will require that all such subdivisions and the owners thereof comply in all respects with any applicable Official Detailed Plan.' (Emphasis added.)

Section 80 of Article VII states the further provision:

'All plans for such subdivision of land shall be filed for record with the Commission, and no permits shall be issued by any department of the City for any work of any character whatsoever, to be done in such subdivision of land, until the plan thereof shall have been approved by the Commission as in conformity with the rules and regulations formulated and published by the Commission and with any applicable Official Detailed Plan.' (Emphasis added.)

It would be appropriate to observe at this point that there is no 'Official Detailed Plan' applicable to Morrell Park. Municipal agencies can exercise only so much of the police power as may be expressly granted or necessarily implied. If the action taken exceeds that power, the action is void. Baltimore County v. Security Mortgage Corp., 227 Md. 234, 175 A.2d 755 (1961); State v. Mott, 61 Md. 297 (1884). The power delegated to the Commission to formulate and publish rules and regulations is not a blank check; it cannot make ad hoc decisions which deny to a citizen the right to use his land lawfully. Not only must its rules and regulations be conformable with its grant of authority, it must itself be bound by those very same rules and regulations. We see nothing in Article VII, Section 78, dealing, even remotely, with schools or the school population. The city solicitor advised the Commission that 'there is neither an ordinance nor a regulatory code which provides a legal requirement or standard which relates local public school population to proposed private subdivision plans.' Since there was no disavowal of his statement we shall assume it is factually accurate.

The Commission argues, wistfully to be sure, that Section 78, supra, does permit a consideration of the extent to which Victor's project may put an additional burden on the schools in the vicinity, citing the clause 'and shall formulate and publish rules and regulations for the development of such subdivisions which will require adequate provision for all public improvements, enterprises and public utilities, whether privately or publicly owned and operated.' The observation which comes to mind immediately is that the excerpt from Section 78 does nothing more than empower the Commission to formulate and publish rules and regulations. We can infer that some rules and regulations have been formulated and published but this record does not tell us what they are. Obviously they do not deal with te impact of projects upon the schools, otherwise there would have been no reason for the purported 24 April amendments. Indeed, in light of the mention (in Section 78) of such specific items as 'the proper width, grade and arrangements of streets, * * * access for fire-fighting apparatus * * * (and) proper drainage,' there is some question that the Commission has the power to formulate a rule dealing with the effect of subdivisions upon schools. However, since it is not required of us we express no opinion in this regard.

There is little doubt that the developer can be required to deal with the...

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  • Associated Home Builders etc., Inc. v. City of Livermore
    • United States
    • California Supreme Court
    • December 17, 1976
    ...invalid in Michigan (Bristow v. City of Woodhaven (1971) 35 Mich.App. 205, 192 N.W.2d 322), Maryland (Baltimore Planning Com'n v. Victor Development Co. (1971) 261 Md. 387, 275 A.2d 478) and Connecticut (Beach v. Planning & Zoning Commission (1954) 141 Conn. 79, 103 A.2d In sum, I realize t......
  • Kelly v. City of Bethany
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    • Oklahoma Supreme Court
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    ...accordingly.7 See Yick Wo. v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).8 See Baltimore Planning Commission v. Victor Development Co., 261 Md. 387, 275 A.2d 478 (1971); Jeffrey v. Platting Board of Review of Town of South Kingston, 103 R.I. 578, 239 A.2d 731, (1968); National......
  • Lee v. Houser
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    • Alabama Supreme Court
    • December 20, 2013
    ...374 So.2d at 307 (citing E.C. Yokley, The Law of Subdivisions § 53 (1963 and Supp.1979)); see also Baltimore Planning Comm'n v. Victor Dev. Co., 261 Md. 387, 392, 275 A.2d 478, 481 (1971) (“Municipal agencies can exercise only so much of the police power as may be expressly granted or neces......
  • Lee v. Houser
    • United States
    • Alabama Supreme Court
    • September 27, 2013
    ...374 So. 2d at 307 (citing E.C. Yokley, The Law of Subdivisions § 53 (1963 and Supp. 1979)); see also Baltimore Planning Comm'n v. Victor Dev. Co., 261 Md. 387, 392, 275 A.2d 478, 481 (1971) ("Municipal agencies can exercise only so much of the police power as may be expressly granted or nec......
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