Ginn v. Farley

• Citation: 43 Md.App. 229,403 A.2d 858
• Decision Date: 16 July 1979
• Docket Number: No. 1407,1407
• Parties: Mary Elizabeth GINN et al. v. John A. FARLEY et al.
• Court: Court of Special Appeals of Maryland

Page 229

43 Md.App. 229

403 A.2d 858

Mary Elizabeth GINN et al. v. John A. FARLEY et al.

No. 1407.

Court of Special Appeals of Maryland.

July 16, 1979.

John H. Engel for one of the appellants pro se.

T. Bruce Hanley, Towson, with whom were Ridgely & Hanley, Towson, on the brief, for appellees.

Argued before GILBERT, C. J., MORTON, J., and BARRICK, SAMUEL W., Specially Assigned Judge.

GILBERT, Chief Judge.

If, as Alexander Pope ¹ wrote, "a little learning is a dangerous thing," ² then a little learning in law is particularly perilous.

This appeal, from an affirmance by the Circuit Court for Baltimore County of a zoning board decision, reaches us in an unusual posture. One of the appellants, Mary Elizabeth Ginn, is admittedly not an attorney, nor is she an aggrieved party. Yet, she authored the appellants' brief and appears on the record as one of the appellants.

We shall deal first with Ms. Ginn as a party appellant.

The Court of Appeals, in Bryniarski v. Montgomery County, 247 Md. 137, 230 A.2d 289 (1967), articulated a binomial test which must be met before a person may appeal, in a chartered county, from an administrative zoning board decision to the circuit court. The party appealing must have been a party before the administrative body and must be aggrieved by the decision. See also Slusher v. Hanson Road Joint Venture, 25 Md.App. 356, 333 A.2d 631 (1975), Cert. denied, 275 Md. 755 (1975); Largo Civic Association v. Prince George's County, 21 Md.App. 76, 318 A.2d 834 (1974).

There is usually no difficulty in ascertaining whether a person was a party before the zoning authority inasmuch as the record generally reveals that fact. ³ Ms. Ginn appeared before the County Board of Appeals where she testified, "I am not an aggrieved party. I am just here representing the neighborhood, and this property is within the neighborhood complex." Later, in response to a question by the Board's chairman, Ms. Ginn replied, "I am not aggrieved, not in the sense that the Court allows aggrievement." ⁴ Thus, the record makes unmistakable that Ms. Ginn satisfied the first prong of Bryniarski, appearance, but, at the same time, failed to meet the second prong, aggrievement. By her own admission she was not an aggrieved party within the meaning of the law; she possessed no right to appeal to the circuit court. ⁵ Bryniarski v. Montgomery County, supra; Jahnigen v. Staley, 245 Md. 130, 135, 225 A.2d 277, 280 (1967); Alvey v. Hedin, 243 Md. 334, 339, 221 A.2d 62, 64 (1966); DuBay v. Crane, 240 Md. 180, 185, 213 A.2d 487, 489-90 (1965); Slusher v. Hanson Road Joint Venture, supra; Largo Civic Association v. Prince George's County, supra.

The matter of Ms. Ginn's standing in the circuit court appears from the record to have been raised but not decided. In the trial court Ms. Ginn felt that she had standing, largely, we infer, because she was the designated spokesperson for the other appellants whose standing was not disputed. Moreover, Ms. Ginn was of the view that Md.Ann.Code art. 10, § 1 permitted her to represent the other appellants because she was not "performing the functions of an attorney for pay or reward either directly or indirectly." ⁶

Although Judge DeWaters did not address the issue of Ms. Ginn's standing, we have no hesitancy in holding that Ms. Ginn was not an "aggrieved party" within the meaning of Maryland law: she was not properly before the circuit court; and she should not have been heard. It follows from what we have said that the appeal, with respect to Ms. Ginn, should have been dismissed by the circuit court. We now Sua sponte dismiss it on the basis of lack of standing on the part of Ms. Ginn to maintain the appeal.

Prior to oral argument, the Clerk of this Court, at the Court's direction, notified Ms. Ginn that it would not allow her to appear and argue on behalf of the other appellants. While she disagreed with the Court's position, she, nevertheless, did not argue the case. One of the other appellants, John H. Engel, argued Pro se.

The difficulty facing us is that the other appellants are aggrieved parties and did properly note an appeal, but the brief filed on their behalf is not by counsel or by any of them Pro se. Rather, it has been filed by Ms. Ginn as "Appellant and Spokesman for the Appellants." As we see it, Ms. Ginn's protestations to the contrary, what she did in this case constitutes the practice of law in violation of Md. Annotated Code art. 10. ⁷

This Court, in Lukas v. Bar Association of Montgomery County, 35 Md.App. 442, 371 A.2d 669, Cert. denied, 280 Md. 733 (1977), referred to Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A.2d 845 (1969) and said "what constitutes the practice of law is for the courts to determine." 35 Md.App. at 447, 371 A.2d at 672. We further stated, "The power to regulate and define what constitutes the practice of law is vested solely in the judicial branch of government and not the executive nor the legislative." 35 Md.App. at 447, 371 A.2d at 672.

It is hard to conceive that one would prepare the necessary appeal notice from the County Board, prepare a ten (10) page memorandum of law, complete with statutory and case citations, argue the case before the circuit court, note an appeal to this Court, prepare the necessary brief and record extract, complete with citations to prior decisions, and at the same time assert that they are not practicing law. Obviously, Ms. Ginn is of the erroneous belief that because she has not and will not receive "pay or reward either directly or indirectly" she is outside the ambit of the prohibition against lay persons practicing law. If the lack of payment or reward is the determining factor, then she could, based on her reasoning, perform brain surgery without compensation and successfully contend that she was not practicing medicine. As we see it, Ms. Ginn has transgressed the line between spokesperson and advocate, confidant and counsel, aider and attorney. Her appeal is dismissed. ⁸

We shall treat all other appellants, except Mr. Engel, as having submitted on the brief. Engel, as we have said, appeared and argued the case in his own behalf.

The record discloses that following the appellees ⁹ purchase of a property located at the northwest corner of Allegheny and Central Avenues in Towson, Baltimore County, Maryland, the County Council reclassified the area to that of a higher density, namely, DR. 16. An office use is permitted in such a zone by Special Exception. The appellees petitioned the Zoning Commissioner for Baltimore County for a "Special Exception and Area Variance" to permit office use. The area variance was requested because the structure located on the property violated the existing front and side yard setback requirements. The Zoning Commissioner granted the petition, subject to certain conditions. An appeal was taken to the County Board of Appeals.

At that hearing, a registered professional engineer testified that in his opinion the requested use would not be detrimental to the health, safety, or general welfare of the locality involved. The engineer foresaw no difficulty with traffic congestion nor overcrowding. Indeed, he believed that the granting of the sought-after use would lessen the burden that then existed. He founded his opinion on the fact that the property would be changed from three apartments to an office with one apartment. The witness did not perceive any violation of the letter or spirit of Baltimore County Zoning Regulations § 307. ¹⁰

An architect testified that in his opinion the office use would not offend the public safety, health, and general welfare, nor would it cause traffic congestion or create fire hazards. Similar testimony was produced by other witnesses called in behalf of the appellees.

The gist of the appellants' testimony was that they did not want to see any variance or exception granted. They felt that if the exception were to be granted it would be the beginning of a change in the whole block, and that traffic congestion would develop. The Board granted the appellees' petition subject to five (5) restrictions. ¹¹ The circuit court affirmed.

In this Court the appellants argue:

"I. The Board . . . rendered its opinion without the legally required showing of proof of practical difficulty or unreasonable hardship by the Appellees.

II. The Board . . . rendered its opinion without regard to the spirit and intent of the zoning regulations for Baltimore County.

III. The Board . . . committed major procedural error by permitting the appellees to introduce new evidence after the appellees had closed their case and after the appellants had closed their case.

IV. The Circuit Court committed error in holding that the evidence presented before the Board . . . was sufficient for them (the members of the Board) to rule in favor of a special exception."

We read the appellants first and second issues to be but one and that is that the evidence before the Board was insufficient to sustain its findings. There is no need to enter into a prolonged discourse in which we summarize the evidence. The testimony of the professional engineer was sufficient for the Board to rule as it did. All that is required by courts in reviewing a Board's determination is that the Board's decision be based on fairly debatable evidence. Gowl v. Atlantic Richfield Co., 27 Md.App. 410, 341 A.2d 832 (1975). The testimony of the engineer, by itself, was sufficient to trigger the "fairly debatable" standard. It is not the function of the courts to retry or second guess the Board. When there is fairly debatable evidence the courts must refrain from substituting their judgment for that of the Board. Commissioner, Baltimore City Police Department v. Cason, 34 Md.App. 487, 368 A.2d 1067 (1977); Gowl v. Atlantic Richfield Co., supra; von Lusch v. Board of County Commissioners of Queen Anne's County, 24 Md.App. 383, 330 A.2d 738 (1975).

We agree with Judge DeWaters that the...