Faulkner v. Town of Chestertown

• Decision Date: 30 April 1981
• Docket Number: No. 122,122
• Citation: 290 Md. 214,428 A.2d 879
• Parties: William A. FAULKNER et ux. t/a The Rendezvous Beauty Salon v. The TOWN OF CHESTERTOWN et al.
• Court: Maryland Court of Appeals

Page 214

290 Md. 214

428 A.2d 879

William A. FAULKNER et ux. t/a The Rendezvous Beauty Salon v. The TOWN OF CHESTERTOWN et al.

No. 122.

Court of Appeals of Maryland.

April 30, 1981.

Elise Davis, Chestertown, for appellants.

Paul M. Bowman, Chestertown, for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We are here involved with the interpretation and application of the historic zoning ordinance of Chestertown. ¹ We shall affirm the decree of the Circuit Court for Kent County (Rasin, C. J.).

Maryland Code (1957, 1978 Repl.Vol.) Art. 66B, §§ 8.01-8.15 authorizes, among others, "every municipal corporation, except the Mayor and City Council of Baltimore City" to establish historic zoning districts. Pursuant to that authority The Town of Chestertown, one of the appellees, set up two districts, one "consist(ing) of that land which constitutes the second survey of Chestertown made in the year 1730" and the other to "include part of the lands of Washington College, acquired by the Kent County Free School in the year 1723." The other appellee here, the Chestertown Historic District Commission (the Commission), was created by the Chestertown ordinance.

The ordinance is virtually a copy of the State's enabling act (the Act). The Act in § 8.07 and the ordinance in § i each provide that the historic district commission authorized by the Act and created by the ordinance "shall consider only exterior features of a structure and shall not consider any interior arrangements." Under § 8.05 of the Act "(b)efore the construction, alteration, reconstruction, moving, or demolition of any structure is made" within the historic area "if any changes are involved which would affect the exterior appearance of a structure visible or intended to be visible from an adjacent public way" in the historic district it is necessary to apply to the Commission "for permission to build, alter, reconstruct, move, demolish, or make the addition." A similar, but not identical, provision is found in § g of the ordinance.

Appellants, William A. Faulkner and Janice M. Faulkner, his wife, own the building located at 103 Cross Street, within one of Chestertown's two historic districts. They sought to improve the appearance of the building in which they operate a beauty parlor. Through their contractor they submitted an application to the Commission for permission to install "(d)ouble 4" vinyl siding, color green, no trim to be covered." The application was approved on February 7, 1979, "contingent upon siding being white or a light tan color" as specified in minutes of the Commission of the date the permit was issued. A later modification allowed use of green siding. The application for a permit made no mention of covering four second story windows which fronted on Cross Street. When the Commission met on May 2 the Town Manager reported that he had received complaints relative to the fact that these windows had been covered which had not been authorized by the permit. The Commission directed that the Faulkners "be notified that the siding be corrected to properly expose the windows to the previous state within 30 days, or the Commission w(ould) recommend to the (Town) Council that legal action be taken."

Counsel for the Faulkners met with the Commission on June 6 in an unsuccessful attempt to persuade the Commission to rescind its directive. True to the promise she made to the Commission, an action on behalf of the Faulkners against the Town and the Commission was filed promptly thereafter in the Circuit Court for Kent County. The bill sought, among other things, a temporary injunction restraining the defendants from prosecuting the Faulkners pending construction of the permit at issue; that a declaratory decree be entered construing the permit in question so that the Faulkners "m(ight) know what rights they had under the permit insofar as what they could or could not do to the building owned by them at 103 Cross Street"; that the court "declare illegal and ultra vires a rule, regulation or procedure of the Defendant Commission that prohibits the covering of any window or door on any building within the historic district irregardless of whether or not the building has any historical or architectural significance;" and that if the court construed the permit to have prohibited covering the windows that it order the "Commission to issue a permit to (the Faulkners) authorizing them to cover the windows as Defendant Commission's rule against such covering is arbitrary, capricious, illegal and ultra vires as it was applied to Plaintiffs."

By reason of a demurrer which was overruled, the time for the filing of a cross-claim by the Town expired under Maryland Rule 314 d 2 on August 27. On August 30 the Town filed a cross-claim. Among other things it sought that the Faulkners "be ordered to remove the siding from around the second story, front windows of their ... structure at 103 Cross Street." Because of this tardiness the Faulkners filed a motion ne recipiatur. On the same day the Town sought leave to file the cross-claim. This was granted nunc pro tunc as of August 30.

Ultimately an amended bill of complaint was filed contending that § g of the ordinance is "void for vagueness and hence unconstitutional in its application to (the Faulkners)."

A full trial was held. Chief Judge Rasin filed a comprehensive and well-reasoned opinion. A decree was signed in accordance with that opinion denying the relief sought by the Faulkners and directing that they "remove the siding from around the second story, front windows of their premises located at 103 Cross Street ... within 60 days from the date of th(at) Decree." The Faulkners appealed to the Court of Special Appeals. Ex mero motu we issued a writ of certiorari prior to consideration of the appeal by that court.

The Faulkners contend (1) that the trial court erred in permitting the filing of the cross-claim over their objection "after the time specified in Rule 314"; (2) that since their "building was without known historical or architectural significance," the Town and the Commission were without "authority to thereafter control and restrict the changes desired and undertaken by (the Faulkners)"; (3) that a historic commission acting pursuant to Art. 66B, § 8.01 et seq. may not "arbitrarily establish rules or personal attitudes and opinions with respect to what will or will not be permitted by way of alteration, including trim, color, windows and doors, particularly when a building has no known architectural or historical significance"; (4) that "(i)f the Court was correct in holding that a permit specifically allowing covering of windows was necessary (it) should ... have ordered Appellees to issue such a permit"; and (5) that the local ordinance is unconstitutionally vague and therefore void.

i The filing of the cross-bill

The Faulkners rely upon Hardy v. Brookhart, 252 Md. 107, 249 A.2d 148 (1969), in support of their contention that the trial judge erred when he permitted the filing of the cross-claim after the date specified in the rule. They say that "(t)he facts of this case are analogous to those in Hardy ... wherein (we) upheld the trial court's denial of a motion to file a late Counter-claim." What they overlook is that Judge McWilliams said for the Court in Hardy, "Here we are concerned only with the question whether, in the circumstances, Judge Weant's denial of Hardy's motion amounts to an abuse of discretion." Id. at 114, 249 A.2d 148. After a careful review the Court concluded that there was no evidence that the trial judge "abused his discretion and without such evidence we shall not disturb his ruling." Id. at 115, 249 A.2d 148. In A & P Co. v. Royal Crown, 243 Md. 280, 285, 220 A.2d 598 (1966), Judge Hammond said for the Court, "The fact that the cross claim was not filed within fifteen days from the expiration of the last day for filing the responsive pleading to the claim to which the cross claim is addressed, as Rule 314 d 2 requires, would not prevent it being filed later by permission of the trial judge." See also Rule 309 b.

The basis for review is whether the chancellor abused his discretion. We find no abuse ii Commission's authority

It is the contention of the Faulkners that their building has no "known architectural or historical significance" and that once this is determined the Commission is without authority to control their property. In support of their position they cite City of Annapolis v. Anne Arundel Co., 271 Md. 265, 316 A.2d 807 (1974), stating:

City of Annapolis, supra, analyzed Maryland's statute section by section. Judge Barnes came to the conclusion that the statute only applied to buildings having architectural or historical merit: "historic area zoning ... is directed only at the preservation of the exterior of buildings having historic or architectural merit", City of Annapolis, supra at 291, (316 A.2d 807); "historic area zoning is directed at the preservation of the exterior of certain buildings", City of Annapolis, supra at 291, (316 A.2d 807); "the historically or architecturally valuable building", City of Annapolis, supra at 292, 316 A.2d 807.

They have misconstrued that case.

The Act begins in § 8.01(a)(1) by stating, "The preservation of structures of historic and architectural value together with the appurtenances and environmental settings is a public purpose in this State." (Emphasis added.) Its express purposes as set forth in § 8.01(b) are

(1) to safeguard the heritage of the county or municipal corporation by preserving the district therein which reflects elements of its cultural, social, economic, political, or architectural history; (2) to stabilize and improve property values in such a district; (3) to foster civic beauty; (4) to strengthen the local economy; and (5) to promote the use and preservation of historic districts for the education, welfare, and...