Harbor Island Marina, Inc. v. Board of County Com'rs of Calvert County, Md.

• Decision Date: 07 November 1979
• Docket Number: No. 10,10
• Citation: 407 A.2d 738,286 Md. 303
• Parties: HARBOR ISLAND MARINA, INC. v. BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY, MARYLAND.
• Court: Maryland Court of Appeals

Page 303

286 Md. 303

407 A.2d 738

HARBOR ISLAND MARINA, INC. v. BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY, MARYLAND.

No. 10.

Court of Appeals of Maryland.

Nov. 7, 1979.

Thomas G. Axley, Prince Frederick (Axley & Crum, P.A., Prince Frederick, on the brief), for appellant.

Robert L. Gray, Prince Frederick (Allen S. Handen and Handen & Singerman, Prince Frederick, on the brief), for appellee.

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

DIGGES, Judge.

Concerning as it does, the use of Maryland's vast body of navigable water, the land which it covers, and the many miles of shoreline connected with it, ¹ the present appeal presents a question of great importance which has not yet been addressed by this Court whether the authority to enact zoning ordinances granted to Maryland's political subdivisions by the General Assembly in section 4.01 of Article 66B of the Maryland Code (1957, 1978 Repl.Vol.) encompasses the power to regulate in that manner the use of these valuable natural resources. ² However, we may only consider this issue if we first conclude that there exists no procedural impediment to our doing so. Although these legal inquiries involve considerable analysis, the factual background of the case can be stated with facility.

The present controversy emanates from an amendment on November 30, 1976, by the Board of County Commissioners of Calvert County, to Article 15 and Zoning Map 21A of that county's zoning ordinances. As expressed in its opening section, the purpose of this enactment is "(t)o provide . . . for the orderly development of the waterfront areas within the County beginning with Map No. 21 entitled, the 'Solomon's Harbor Lines.' " Calvert County, Md., Zoning Ordinance, Art. 15, § 15.01 (1976). It enumerates those marine facilities permitted within the "useable waterway area", ³ such as piers, mooring piles and floats, and establishes the location of harbor, shore and lateral lines so that, as the parties agree, one-fourth of the width of the channel would be available to riparian owners for development. Id. at §§ 15.04, .09-. 11. The new ordinance also prohibits certain structures in the useable waterway area, and provides set-back limitations, construction details, and fire, parking and sanitary strictures. Id. at §§ 15.06, .11, .13-.16. Additionally, the enactment states that its requirements shall supplement "existing Federal and State regulations governing the same matters and . . . (that) (t)he more restrictive regulation shall take precedence." Id. at § 15.02.

The petitioner, Harbor Island Marina, Inc., is a riparian landowner within the Solomon's Harbor map area whose property is partially developed for water associated commercial use. Initially, the riparian proprietor filed an application with the county commissioners for a zoning revision, claiming that the establishment of the harbor lines at one-quarter of the available width of the channel ⁴ was an arbitrary act that did not promote the public health, morals, safety and welfare of the county. Upon denial of its revision application, Harbor Island sought judicial redress by way of an appeal to the Circuit Court for Calvert County (Bowen, J.). Md.Code (1957, 1978 Repl.Vol.), Art. 66B, § 4.08. There, the petitioner contended that the power to regulate navigable waters and the land beneath them was not delegated to the county by either Article 25 of the Maryland Code (1957, 1973 Repl.Vol., 1979 Cum.Supp.) (establishing the general powers of non-chartered counties) or Article 66B of the Code, and that, therefore, the enactment of the zoning amendments constituted a misuse and abuse of power. With that appeal still pending, Harbor Island instituted this Declaratory Judgment Act proceeding, Md.Code (1974), Courts Art., §§ 3-401 to 415, in the circuit court, requesting a determination of the county's power to zone and regulate tidal waters and wetlands within its borders.

On January 20, 1978, Judge Perry G. Bowen, Jr. entered an order declaring that "Article 66B of the Annotated Code of Maryland gives the County Commissioners power and authority to enact Article 15 of the Calvert County Zoning Ordinance and Zoning Map 21." Harbor Island sought review of this order in the Court of Special Appeals and, at the same time, dismissed its appeal from the administrative agency's denial of its application for a zoning revision. ⁵ The intermediate appellate court, without addressing the substantive issue raised, reversed the trial court's decision because it determined that the circuit court lacked authorization to entertain the present declaratory judgment action. This Court granted certiorari, and since, for the reasons next stated, we conclude that a Declaratory Judgment Act proceeding was available here, we will address the merits of the issue sought to be litigated by the institution of this action.

I

Raising the issue Ex mero motu, the Court of Special Appeals, after observing in an unreported opinion that there existed a special statutory remedy under section 4.08(a) of Article 66B through which the questions presented for decision in this suit could have been adjudicated, concluded that section 3-409(b) of the Declaratory Judgment Act precluded resort to this type of action to resolve the underlying dispute. ⁶ We disagree.

In explaining our reasons, we initially recognize that when an administrative remedy is statutorily directed, the nature of the relief specified by the enactment must ordinarily be utilized as a prerequisite to court action. Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 594-95, 386 A.2d 1216, 1222 (1978); State Dep't of A. & Tax. v. Clark, 281 Md. 385, 403, 380 A.2d 28, 39 (1977). However, as we pointed out in Clark, " '(t)here are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them.' " Id. (quoting from Poe v. Baltimore City, 241 Md. 303, 308, 216 A.2d 707, 709 (1966)). The law pertaining to this issue was further explained in Clark :

(W)here there is a full opportunity . . . to protest . . . to administrative agencies and adequate provisions for judicial review of the agencies' action, a court shall not take jurisdiction unless the administrative remedies have been exhausted. This is so even though a constitutional issue has been raised, when that issue goes to the application of a general statute to a particular situation, As contrasted with a constitutional attack upon the validity of a general enactment as a whole, which is reviewable in any event. (Id. at 404, 380 A.2d at 39 (emphasis supplied).)

Although there is language in Soley v. St. Comm'n on Human Rel., 277 Md. 521, 527-28, 356 A.2d 254, 258 (1976) that arguably could be said to indicate otherwise, we here explain that the "constitutional exception" to which we have just alluded permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority (including whether it was validly enacted) of the legislative body to adopt the legislation from which relief is sought.

In the present declaratory judgment action, the basic attack being launched by the appellant is upon the power or authority Vel non of the Board of County Commissioners of Calvert County to adopt the ordinance of November 30, 1976, amending in the manner it did Article 15 and Zoning Map 21 of the Calvert County Zoning Ordinances. Since this clearly falls within the "constitutional exception," the power to enact is an issue that may be litigated in this Declaratory Judgment Act suit. See Poe v. Baltimore City, 241 Md. 303, 308, 216 A.2d 707, 709 (1964).

II

We now turn to the underlying substantive issue involved in this dispute whether Article 66B of the Code authorizes the county to regulate, through zoning, the navigable waters located within its boundaries. ⁷ In order to answer this question it is necessary for us to examine the regulatory authority of the Calvert County Commissioners, the legal and historical status of the navigable waters and the lands beneath them, and the nature of the property rights accruing to riparian landowners in this State.

We begin by recognizing that "a county may exercise (only) 'the authority with which (it has) been expressly, or as a reasonable implication, invested by law.' " Blumenthal v. Clerk of Cir. Ct., 278 Md. 398, 410, 365 A.2d 279, 286 (1976)(quoting from Montgomery County v. Met. District, 202 Md. 293, 304, 96 A.2d 353, 357 (1953)); Accord, Md.Const., Art. VII, § 1; Art. XI-A, § 3; Frederick County v. Page, 163 Md. 619, 631, 164 A. 182, 188 (1933). As with all legislative grants, the zoning authority is circumscribed by any limitations established by the General Assembly in the enactment or as otherwise may be validly imposed by law. See Cassel v. City of Baltimore, 195 Md. 348, 353, 73 A.2d 486, 488 (1950). Therefore, whether Calvert County may zone the area covered by the navigable waters found within its borders depends on the language of any statute which delegates or otherwise affects the county's authority to zone.

The basic zoning power, which has been legislatively granted to the political subdivisions of this State, is found in section 4.01 of Article 66B of the Code which provides:

§ 4.01. Grant of powers . . .

(a) For the purpose of promoting health, safety, morals, or the general welfare of the community the legislative body of counties and municipal corporations are hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, off-street parking, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, signs, structures and land for trade, industry, residence or other purposes.

(b) The local legislative body of a county or municipal corporation, upon the zoning or...