Jabine v. Priola

• Decision Date: 10 April 1980
• Docket Number: No. 2,No. 682,I,2,682
• Citation: 45 Md.App. 218,412 A.2d 1277
• Parties: William JABINE, II, et al. v. Roy PRIOLA, Guiseppe Priola, and Charles L. Crane, Jr., k/a Villa Romana Italian Restaurant,nc., etc.
• Court: Court of Special Appeals of Maryland

Page 218

45 Md.App. 218

412 A.2d 1277

William JABINE, II, et al. v. Roy PRIOLA, Guiseppe Priola, and Charles L. Crane, Jr., k/a Villa Romana Italian Restaurant, No. 2, Inc., etc.

No. 682.

Court of Special Appeals of Maryland.

April 10, 1980.

Richard G. Anderson, Asst. City Atty. for Anne Arundel County, with whom were Eugene M. Lerner, City Atty. and Richard T. Wright, Asst. City Atty., on the brief, for appellant Mayor and Aldermen of The City of Annapolis.

John R. Warren, Annapolis, for other appellants.

Steven R. Migdal, Annapolis, with whom were Manis, Wilkinson & Snider, Chartered, Annapolis, on the brief, for appellees.

Argued before MOORE, MELVIN and COUCH, JJ.

MOORE, Judge.

Roy Priola, Guiseppe Priola, and Charles L. Crane, Jr. (Priolas), operate the Villa Romana Italian Restaurant No. 2, Inc., a dining establishment in the heart of the City of Annapolis. Feeling that their business would be enhanced by the sale of beer and wine on the premises, they applied for a Class B "Beer and Light Wine License" and the requisite conditional use zoning permit. ¹

A public hearing was held on both applications before the Mayor and Aldermen of the City of Annapolis on April 17, 1978. ² The Priolas testified in support of their applications, and thirteen other individuals in the audience registered their approval. Eight citizens testified in opposition and another twenty-two registered their disapproval on the record. A decision was reached by the Mayor and Aldermen on May 8, 1978. In their capacity as the Board of Liquor License Commissioners for the City of Annapolis, they denied the application for the beer and wine license. As the City's zoning authority, they denied the conditional use application. ³ Each decision was appealed by the Priolas to the Circuit Court for Anne Arundel County on June 7, 1978.

Following the docketing of the appeal, the Priolas moved to have the two cases consolidated. Intervention in the cases as consolidated was sought by William Jabine, II, Mrs. William P. Stevens, and the City. On August 8, 1978, the circuit court (Thieme, J.) granted the motions to intervene and further ordered the City to "file its Answer or other responsive pleading . . . on or before thirty (30) days from the date of this Order."

After some procedural skirmishing, which shall be discussed infra, a hearing on the merits of the Priolas' appeal was held on February 8, 1979 before the Honorable Thomas J. Curley, Associate Judge of the District Court of Maryland sitting by designation. On May 9, 1979, Judge Curley reversed both decisions of the Mayor and Aldermen; he ordered them to grant the liquor license to the Priolas subject to certain conditions. By "Supplemental Revisory Memorandum" dated May 17, 1979, he ordered that the Priolas receive a conditional use permit allowing them to use the Class B, "Beer and Light Wine License." From the adverse determination of the circuit court, the City, Mr. Jabine, and Mrs. Stevens noted an appeal to this Court. They contend that the circuit court lost jurisdiction over the liquor license appeal because it did not decide the case or pass an order for extension within the thirty day period required under Md.Ann.Code, art. 2B, § 175(e)(3) (1976) and that the circuit court erroneously reversed the decision in the conditional use appeal. We are asked to reverse the circuit court and to reinstate the decision of the Mayor and Aldermen.

I.

In their brief the Priolas have urged us to dismiss the appeal because:

1) This Court has no jurisdiction to hear an appeal in a liquor license proceeding unless the circuit court has finally decided "a point of law at variance with any decision previously rendered by any other judge of the State on the same question . . ." and no such variance exists in this case; and

2) None of the intervenors has standing to bring an appeal to this Court in either the liquor license or conditional use zoning cases.

For the reasons that follow, we deny the motion to dismiss, finding that we have jurisdiction and that all intervenors have standing.

A. The Jurisdiction of this Court to Hear an Appeal Involving a Liquor License Application

Under the Code, the decision of the circuit court in a liquor license appeal "shall be final and effective at once." Md.Ann.Code, art. 2B, § 175(f) (1979 Cum.Supp.). ⁴ A limited appeal may be brought to this Court to decide a question of law determined below which is at variance with any decision previously rendered by another judge on the same question. Id. If the limited appeal is properly before us, we may decide only the question of law at variance, and we are expressly denied authority to pass upon "any question of fact." Id.

The alleged variance in the instant appeal stems from a disputed interpretation of Md.Ann.Code, art. 2B, § 175(e)(3) (1976), which provides:

"The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local board's decision, unless the time has been extended by the court for good cause shown."

(Emphasis added.) The record in the instant case was filed with the circuit court on July 10, 1978. Thus, in order to preserve its jurisdiction over the liquor license appeal, it was incumbent upon the court to decide the appeal within thirty days or to pass an order within the thirty day period, based on good cause, extending the time for decision. See Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957); Pearce v. Board of Liquor License Commissioners, 228 Md. 515, 180 A.2d 651 (1962).

The City filed a motion to dismiss the liquor license appeal because thirty days had elapsed since the filing of the record without any order for extension having issued. A hearing was held on October 11, 1978, and the circuit court (Williams, J.) subsequently ruled that the "action properly was extended automatically, 'without special order . . .' " by virtue of a court order on August 8, 1978 allowing the City to intervene and affording it thirty days to file an answer. ⁵ Although the intervenors persistently sought to relitigate the issue in the subsequent proceedings, Judge Williams' decision remained undisturbed as the determinative ruling under § 175(e)(3). ⁶

The appellants-intervenors argue that Judge Williams' ruling is at variance with a prior decision by Judge Sachse in the case of Lederberg v. Mayor of Annapolis, Law No. C5724 (Cir.Ct. of Anne Arundel County, filed November 15, 1972). In that case, Mr. Lederberg argued that "when the Court asked for briefs and did not decide the case within the thirty days . . . , it was an automatic extension by implication. . . ." Further, he contended:

"(T)hat when the Court requested the City to submit a brief and took the matter under advisement, the matter was taken under control and was, therefore, privileged to consider the evidence in detail in order to resolve the complex question which in the interest of justice, the Court is privileged to do."

Judge Sachse rejected this argument and held that the failure of the court to act within the stated period deprived it of any further power to proceed in the case. Judge Williams, in the instant case, specifically found that Lederberg had applied § 175(e)(3) "somewhat overbroadly." He concluded that the court's order allowing the City to file an answer operated as an indefinite extension of the thirty day period.

We have little difficulty in finding a variance as to a point of law between the decisions. ⁷ Judge Sachse ruled that no automatic extension was permitted under § 175(e)(3), while Judge Williams held that the period in the instant case has been "extended automatically. . . ." Therefore, this Court has jurisdiction of the liquor license appeal to decide the point of law at variance. Before proceeding to a consideration of that issue, we will rule upon the Priolas' challenge to the standing of the intervenors.

B. The Standing of William Jabine, II and Mrs. William P. Stevens

The record indicates that Mrs. Stevens sought intervention in the circuit court because of her interest as a neighborhood property owner. Her petition to intervene was not opposed by the Priolas in the circuit court. The order granting intervention stated that Mrs. Stevens resided at 9 Cornhill Street in the City of Annapolis. At no time in these proceedings have the Priolas contradicted this evidence of Mrs. Stevens' property interest. Mr. Jabine did testify during the public hearing. He stated that he was a local property owner, and that he viewed the "beer and wine place" as "being a great detriment to my property. . . ." The evidence of his property ownership was unrefuted.

It is now argued by the Priolas that the "record is absolutely bare as to essential facts necessary to support the appeal of the individual (intervenors). . . ." In our view, the evidence record that the individual intervenors were affected property owners was sufficient to give them an interest in the proceedings. Permissive intervention, by virtue of Md.Rule 208(b), lies within the sound discretion of the circuit court, and on appeal may be reviewed only for an abuse of that discretion. Maryland Radiological Society, Inc. v. Health Services Cost Review Commission, 285 Md. 383, 402 A.2d 907 (1979). Mr. Jabine's and Mrs. Stevens' interests as affected property owners affirmatively supports the court's exercise of discretion permitting them to intervene. ⁸ Nyburg v. Solmson, 205 Md. 150, 156-57, 106 A.2d 483, 485-86 (1954); Md.Rule 208(b). Having correctly acquired the status of parties in the proceedings below, they properly could take any allowable appeal to this Court. ⁹

An appeal to this Court is permitted in a liquor license case by virtue of Md.Ann.Code, art. 2B, § 175(f) (1979 Cum.Supp.) if a variance exists, as we have found, supra, that it does. In a zoning case, an appeal to this Court is...