Johnson v. Board of Zoning Appeals of Baltimore County
| Decision Date | 16 November 1950 |
| Docket Number | 58. |
| Citation | 76 A.2d 736,196 Md. 400 |
| Parties | JOHNSON et al. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY et al. |
| Court | Maryland Court of Appeals |
C. Arthur Eby, Baltimore (William P. Bolton, Towson, on the brief), for appellants.
Alfred P Ramsey, Baltimore (Paul S. Clarkson, Baltimore, Cornelius V Roe and John Grason Turnbull, both of Towson, on the brief) for appellees.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ. DELAPLAINE, Judge.
This appeal is from an order of the Circuit Court for Baltimore County partly reversing an order of the Board of Zoning Appeals of Baltimore County. The case originated on an application of Consolidated Gas, Electric Light and Power Company of Baltimore for a special permit to construct an electric light and power transmission line on steel towers from its line on the Texas-Padonia Road to its electric substation at Mount Washington.
The transmission line extends more than seven miles through Green Spring Valley in the Metropolitan Zone of Baltimore County. Protesting property owners brought suits to enjoin construction of an overhead line, contending that it would impair the beauty of the countryside and decrease property values. In February, 1948, the Court dismissed the bills of complaint on the ground that the zoning regulations were inapplicable. In July, 1948, the Court of Appeals reversed the decrees and remanded the cases for the passage of a decree enjoining the company from proceeding with the construction of its line until it had obtained the necessary permit from the Zoning Commissioner. Kahl v. Consolidated Gas, Electric Light & Power Co., Md., 60 A.2d 754.
Upon the company's application for a permit for overhead construction on steel towers, the Zoning Commissioner granted a permit for such construction through the northern and southern sections of the route, but denied a permit for overhead construction over the middle section, a distance of more than two miles and a half, across property suitable for development. The company appealed from that decision to the Board of Zoning Appeals; and in July, 1949 the Board affirmed that part of the order which granted a permit for an overhead line in the northern and southern sections, but reversed that part which denied a permit for an overhead line in the middle section, ordering however that this section of the line be constructed on wooden or steel poles, instead of on steel towers. In January, 1950, the Court on certiorari reversed that part of the order which required construction on poles, and permitted construction on towefin accordance with the company's application. From that order the protestants entered this appeal.
The question now presented is whether the protestants have a right of appeal from the order of the Circuit Court acting as an appellate court in reviewing an order of the Board of Zoning Appeals. It is, of course, an accepted principle that the Court of Appeals will not entertain an appeal except when prescribed by law, and before it undertakes to review the proceedings of a subordinate tribunal, the authority must be shown. The general statute authorizing appeals from courts of law provides: 'From any judgment or determination of any court of law in any civil suit or action or in any prosecution for the recovery of any penalty or fine or damages, any party may appeal to the Court of Appeals * * *.' Code 1939, art. 5, sec. 2. We construe this statute to mean that an appeal can be taken from any judgment or determination of a court of law entered in an action originating therein, but an appeal cannot be taken from a decision of the court when sitting as an appellate tribunal or when exercising a special statutory jurisdiction, unless an appeal is authorized by statute. Crockett v. Parke, 7 Gill 237, 240; Baltimore & Havre de Grace Turnpike Co. v. Northern Central Ry. Co., 15 Md. 193; Stephens v. City of Crisfield, 122 Md. 190, 89 A. 429; Board of County Com'rs of Harford County v. Jay, 122 Md. 324, 327, 89 A. 715; Montgomery Ward & Co. v. Herrmann, Md., 58 A.2d 677; Berlinsky v. Eisenberg, 190 Md. 636, 59 A.2d 327; Robb v. State, 190 Md. 641, 60 A.2d 211.
So, we specifically hold that no right of appeal exists to review a decision of the Circuit Court sitting as an appellate court in a zoning case, unless the Legislature has authorized an appeal. Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 499, 165 A. 703; Board of Com'rs of Anne Arundel County v. Snyder, 186 Md. 342, 46 A.2d 689.
In 1927 the Maryland Legislature authorized zoning in the City of Baltimore and in cities and incorporated towns containing more than 10,000 inhabitants. Laws of 1927, ch. 705, Code, art. 66B, secs. 1-9. In 1933 the Legislature authorized zoning by any county, town, village or other incorporated political subdivision. Laws of 1933, ch. 599, Code 1939, art. 66B, secs. 10-37. Neither Act authorized appeals to the Court of Appeals. The 1927 Act was amended to authorize such appeals. Laws of 1935, ch. 448, Code 1939, art. 66B, sec. 7. But the 1933 Act has never been so amended.
The Baltimore County Zoning Act, which was enacted by the Legislature in 1941 and amended in 1945, directs the County Commissioners of Baltimore County to appoint a Zoning Commissioner and a Board of Zoning Appeals, and provides that any person aggrieved by any decision of the Board of Zoning Appeals may present to the Circuit Court a petition setting forth that the decision is illegal, in whole or in part, specifying the ground of the illegality. Upon such petition the Court may allow a writ of certiorari to review the decision of the Board. Laws of 1941, ch. 247, Laws of 1945, ch. 502, Baltimore County Code, 1948 Ed., sec. 366. This local law, however, does not contain any provision for appeals from decisions of the Circuit Court. Hence, it is clear that the Legislature has not authorized any appeals from decisions of the Circuit Court for Baltimore County in zoning cases.
It is contended by appellants, however, that the Board of Zoning Appeals exceeded its power when it granted the permit for the construction of the overhead line across the middle section of the route. They assert that they are complaining, not merely that the Board failed to use good judgment in weighing the evidence, but that it ignored five of the factors which have been prescribed by the zoning regulations for the guidance of the Board in granting special pemits. Hence, they contend, the order of the Board is void. The regulations, which have been confirmed and validated by the Legislature, Laws of 1947, ch. 915, provide that within the Metropolitan Zone, electric light and power transmission lines charged with electricity at 5,000 or more volts shall be located under ground in cables or conduits, except within areas which are designated as light or heavy industrial zones, and except on public highways. The regulations further provide, however, that the Zoning Commissioner, or the Board of Zoning Appeals on appeal, shall have the power to make special exceptions to these regulations when convinced by affirmative testimony that such lines or portions thereof may be carried overhead on towers or poles without impairing the public health, safety or general welfare.
The regulations further provide that in determining any such special exception, the Zoning Commissioner, or the Board of Zoning Appeals on appeal, shall consider and be guided by six factors, the first five of which are as follows: (a) the crossing of much traveled highways or streets; (b) the proximity of the line to any school, church, theatre, club museum, fair ground, race track or other place where persons may congregate; (c) the probability of extensive flying over the area and its general nearness to any airport or airports; (d) any fire hazard or interference with firefighting equipment due to the location and construction of the proposed line; and (e) the future conditions to be reasonably anticipated in each such area as a result of the normal course of...
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