City of Bowie v. Board of County Com'rs for Prince George's County

• Decision Date: 14 December 1970
• Docket Number: No. 135,135
• Citation: 271 A.2d 657,260 Md. 116
• Parties: , 3 ERC 1345 The CITY OF BOWIE et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 116

260 Md. 116

271 A.2d 657, 3 ERC 1345

The CITY OF BOWIE et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.

No. 135.

Court of Appeals of Maryland.

Dec. 14, 1970.

Ferdinand J. Mack, Rockville (Shadoan & Mack, Rockville, on the brief), for appellants.

Richard W. Case, Baltimore (John T. Joseph and Smith, Somerville & Case, Baltimore, and Lionell M. Lockhart, County Atty., and Harry L. Durity, Deputy County Atty., Upper Marlboro, on the brief), for appellees.

Argued Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

McWILLIAMS, Judge.

We shall be concerned here with another skirmish, perhaps the last, in the revolt of the appellants (Bowie) against the proposed Prince George's County airport. In the court below Bowie sought to enjoin the appellees (County) from 'offering for sale or selling (the airport) bonds' and from 'acquiring * * * (and) clearing land * * * or taking any other action to develop or construct an airport' in the southwest quadrant of the intersection of U.S. Route 301 and State Route 214 (Central Avenue). We disposed of the bond question in The City of Bowie v. County Commissioners for Prince George's County, 258 Md. 454, 267 A.2d 172 (1970), by upholding the partial summary judgment entered by the chancellor, Digges, C. J. (now a member of this Court), that the bonds 'were lawfully authorized, sold, issued and delivered and (that they) constitute valid, legally binding and enforceable general obligations' of the County. ¹ The remaining issue, i. e., the one arising out of the prayer to enjoin the construction of the airport, came on for trial before Powers, J., on 10 March 1970. After three days of trial Judge Powers dismissed Bowie's amended bill of complaint after stating his reasons for so doing in a careful and comprehensive oral opinion delivered from the bench. It is from his order, dated and filed 19 March 1970, that Bowie has appealed.

The County proposes the construction of a runway 5,400 feet long on a course running N by W and, reciprocally, S by E. Plans for the future contemplate a 1,600 foot extension (to 7,000 feet) and the construction of a parallel runway 4,500 feet long. ² The airport will be what the Federal Aviation Administration (FAA) calls a 'larger than general utility airport,' designed to accommodate 'large business-type jets,' weighing 60,000 pounds and capable of carrying 24 passengers. In the beginning only operations ³ subject to Visual Flight Rules (VFR) will be allowed. It is expected, however, that in about three years operations subject to Instrument Flight Rules (IFR) will be possible. In 1975, it is said, there will be about 150,000 operations, 30,000 of which, give or take a few thousand, will be accounted for by heavy aircraft. If these hopes are realized there is no doubt that the airport will be a very busy place.

The north end of the runway will be 5,000 feet south of the city limits of Bowie which now has a population of about 36,000; by 1980, they say, the figure will be about 68,000. It is alleged that airctaft taking off from and landing at the airport 'will emit unusual, unreasonable, and unnecessary noise, vibration, dust, stench and filth * * * creat(ing) danger, fear, hurt, (and) inconvenience' and that they will 'make life unbearable' for the citizens of Bowie and deprive them 'of the use of their properties.'

I

In the Washington area there is an organization known as the Metropolitan Washington Council of Governments (COG). Code (1966 Repl.Vol.), Art. 25, § 26A. It consists of representatives of Prince George's County, Montgomery County, the cities of Washington and Alexandria, and the Virginia counties of Arlington and Fairfax. It is required by Section 204 of Public Law 89-754, 42 U.S. C. § 3334, that applications for federal funds be submitted to COG for review, and that its comments and recommendations shall 'be reviewed by the (pertinent) agency of the Federal Government (in this case the FAA) for the sole purpose of assisting it in determining whether the application is in accordance with the provisions of the federal law which governs the making of the loans or grants.' Judge Powers found that 'two preliminary applications of some sort involving the airport * * * (had been) submitted to COG for review, and (had been) reviewed by COG.' In respect of a third application, filed in January 1970, he had this to say:

'* * * It was acknowledged on February 3, and it was stated by the executive director of COG that the review would be made and transmitted to the county; but on February 25 the executive director wrote a letter to Mr. Aluisi, Chairman of the Board of Commissioners, Prince George's County, stating, 'As Mr. Francois requested, COG's review of the proposed Prince George's County Airpark will be deferred until the several hearings now in process have been completed. We will retain the materials previously submitted.

"When appropriate, please instruct me by letter to proceed with the review.'

'While it is true that the review involved here is a prerequisite under the law to the county's obtaining a federal grant in connection with the development of the airport, it is not a legal requirement for the construction of the airport. It is only a requirement with respect to receiving a federal grant. There is no indication that the reviews could not be obtained, and the court concludes that this should not be such a barrier as to justify injunctive relief.'

We see no reason to suppose the COG, which found 'no conflict with metropolitan planning' in the preliminary applications, would do otherwise than comment favorably on any subsequent application. Even if its comments should turn out to be unfavorable it is unlikely the federal grant would be withheld. We agree with the conclusion reached by Judge Powers.

II.

Bowie insists that the County has not obtained the approval of the State Aviation Commission. ⁴ Not so, says the County. Code (1968 Repl.Vol.), Art. 1A, § 14(b), provides, in part, as follows:

'No municipality in this State * * * shall submit to the Administrator of Civil Aeronautics of the United States (now the Federal Aviation Administration) a project application under the provisions of * * * the 'Federal Airport Act' * * * unless the project has first been approved by the Commission (after 1 July 1971 'the Secretary of Transportation of Maryland'). No such municipality shall directly accept, receive, receipt for or disburse any funds granted by the United States under the Federal Airport Act, but it shall designate the Commission (after 1 July 1971 the 'Administration') as its agent and in its behalf to accept, receive, receipt for and disburse such funds.'

Bowie argues that the Project Ap plication was never approved by the Commission but it will be observed that the statute requires the approval of the project rather than the application for federal funds. The County points out that the Airport Layout Plan was signed by Charles B. Allen, the Chairman of the Commission, suggesting the approval of the Commission, and that, on 6 February 1968, the County and the Commission entered into the agency agreement required by § 14(d) of Art. 1A. supra. David B. Snyder, the Director of Aeronautics, testified that while the minutes of the Commission do not, in fact, indicate an approval of the project, the signature of Mr. Allen 'on any drawing of any project of an airport in the state * * * will indicate that the * * * Commission has given * * * (its) approval to that project.' Mr. Allen testified the Commission did approve the project. In respect of the absence of any record of its action in the Commission's minutes he said the 'director, the late Rudolph A. Drennan, was (at the time) seriously ill * * * (and that he) was having difficulty getting around.' Mr. Allen recalled the meeting at which the County's project was considered; he thought all of the members had been present, and that the vote to approve the airport had been unanimous. Although Judge Powers did not make a flat finding of approval by the Commission he did find, and we agree,

'that whatever defect exists here * * * results from the untidy condition of the Commission's records (which) is not fatal, can be corrected if necessary, and would not be such as to warrant enjoining the project.'

III.

Bowie offered to prove that facilities entirely adequate for Prince George's County aircraft already exist, that the airport would be a 'financial catastrophe' in that by 1994 it 'will have operated at a deficit of $5,456,000.' and that there are available more suitable sites where the same facilities could be constructed for less money. Judge Powers sustained, correctly we think, the County's objection to the proffer.

It may indeed be true that the proposed airport is not a necessity and that the County can get along quite well without it. There may indeed be other sites which would serve as well and which, if used, would require the expenditure of less money. And it may turn out that Bowie has underestimated the 1994 'deficit.' But those matters are not our concern. Judge Powers, in his opinion, said 'the courts cannot review the wisdom of projects which elected bodies undertake, nor can courts substitute their judgment for the judgment of the people in authority who make the decisions.' We think his statement reflects the settled law. A & H Transp. Inc. v. Mayor and City Council of Baltimore, 249 Md. 518, 240 A.2d 601 (1968); McBriety v. Mayor and City Council of Baltimore, 219 Md. 223, 148 A.2d 408 (1959); Connor v. Board of Supervisors of Elections of Baltimore County, 212 Md. 379, 129 A.2d 396 (1957).

IV.

Bowie's next and apparently principal contention is that the proposed airport is a prospective nuisance which equity can and ought to enjoin. Judge Powers put the issue in this fashion:

'The allegations of the bill focusing on the prospective nuisances of vibration, dust, stench, filth, or...