Kahl v. Consolidated Gas, Elec. Light & Power Co. of Baltimore

• Decision Date: 20 July 1948
• Docket Number: 202.
• Citation: 60 A.2d 754,191 Md. 249
• Parties: KAHL et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE. CASSELL et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

60 A.2d 754

191 Md. 249

KAHL et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

CASSELL et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

No. 202.

Court of Appeals of Maryland

July 20, 1948

Dissenting Opinion July 26, 1948.

Appeals from Circuit Court, Baltimore County; John B. Gontrum, Judge.

Actions by Christian H. Kahl and others and by W. Barry Cassell and others against Consolidated Gas, Electric Light & Power Company of Baltimore, to enjoin construction of an overhead power transmission line. From adverse orders, complainants appeal.

Orders reversed and case remanded.

HENDERSON and DELAPLAINE, JJ., dissenting.

Alfred P. Ramsey and Paul S. Clarkson, both of Baltimore (Edward M Sturtevant, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, and HENDERSON, JJ.

MARBURY, Chief Judge.

This is the latest of several cases resulting from the attempt of the appellee to construct an overhead power transmission line through Baltimore County to the Mount Washington sub-station. The purpose of the line is to provide additional electric power, said to be urgently needed, in the Baltimore area. The earlier cases reaching this Court were Johnson v. Consol Gas. Elec. Lt. & Power Co., Md., 50 A.2d 918, 170 A.L.R. 709 (a condemnation case), an appeal from the dismissal of the original bill filed in the instant case, which on motion, agreed to by all parties, was remanded without affirmance or reversal and without opinion, and an appeal from an order refusing a preliminary injunction in this case which we held premature. Kahl v. Consol. Gas., Elec. Lt. & Power Co., Md., 57 A.2d 331. The present appeal is from orders dismissing the amended and supplemental bills of complaint, passed after extended hearings and the taking of voluminous testimony.

The proposed power line is to traverse the Metropolitan District of Baltimore County for a distance of about eight miles. It is carry a load of 110,000 volts, and is to cross the Green Spring Valley in the vicinity of Rockland. It has been opposed from the beginning by a group of property owners who have contended that the overhead structures would destroy or impair the beauty of the countryside and would lower property values in a high class residential community. They suggest and offer competent testimony to show that the line can be placed underground at a cost not excessive in view of the circumstances. This question, however, we do not consider is properly one for the court to consider, at least in the present state of the record. The proposed construction, it may be added, has been approved, after protests and a subsequent investigation, by the Chief Engineer of the Public Service Commission, who said that the cost of underground construction would be prohibitive.

The original bill in this case was filed by the landowners. After amendment, to permit the raising of new issues in view of the passage of certain amended Zoning Regulations in 1946, the trial was had on these issues, which were also raised by the bill filed by the County Commissioners of Baltimore County on February 10, 1947. The cases were heard together. As presented below, and to us, they raise a number of questions. The more important of these are the validity vel non of the Zoning Regulations as applied to the appellee, and the right of the court to pass upon the issues raised in advance of an application for a permit to the Zoning Commissioner.

The Zoning Regulations, first adopted January 2, 1945 (pursuant to a special enabling act, Acts of 1941, Ch. 247, amended Acts 1943, Ch. 877) and subsequently amended November 15, 1946, exempt electric light and power lines on public highways or lines carrying less than 5000 volts on poles. For other electric light and power lines special permits are required. Standards are made applicable to the grant of such special permits. Within the Metropolitan Zone, created to conform to the boundaries of the Metropolitan District, transmission lines, such as the one contemplated by the appellee, are required to be located underground, but the Zoning Commissioner is given power to make special exceptions 'when convinced by affirmative testimony * * * that such lines * * * may be carried overhead * * * without impairing the public health, safety or general welfare'. In determining any special exception the Commissioner, or the Board of Zoning Appeals on appeal, shall be guided by certain factors enumerated, including the crossing of much travelled highways or streets, the proximity of the line to schools, churches, or other places where persons congregate, the probability of extensive flying over the area, and its nearness to airports, fire hazards or interference with fire-fighting equipment, and future conditions to be reasonably anticipated in view of the normal course of development. Comparative costs of overhead and underground construction may also be considered, but the excess in cost is not, of itself, to be deemed sufficient cause for the issuance of a permit for overhead construction. The General Assembly confirmed and validated these provisions by the Act of 1947, Ch. 915, after the trials of the present cases began.

While the efforts of the landowners may have had much to do with the adoptions of these amended Zoning Regulations, that, of itself, does not invalidate them or make them inapplicable to the proposed line of the appellee. They are general in their nature, effect the entire Metropolitan District, and are not unreasonable or unduly oppressive. The Metropolitan District of Baltimore County is, except for its different form of government, in all respects a city. In many places it is impossible to determine where the City of Baltimore ends, and where the District begins. One of the great problems of all cities is to keep the streets free of structures, such as poles and the accompanying wires, which interfere with their free use and passage. Baltimore City had that problem, and its solution was one of the benefits of the fire of 1904. It is by no means too early for Baltimore County to start to clear the streets of its constantly growing and developing Metropolitan District. The Zoning Regulations are a natural and accepted method of making such a beginning, and they appear in general to be a valid exercise of the police power.

Public bodies such as legislatures or county commissioners are frequently and rightly responsive to public opinion. The fact (if we so assume) that these Zoning Regulations were passed under the urging of certain persons who were vitally affected by the proposed construction, does not render them void. The first zoning acts were the result of increasing public pressure to prevent encroachment, in residential areas, of structures which damaged and injured the properties of those living there. A restrictive act may not be passed or a permit refused merely because the community wants it. But even if the community wants it, that does not invalidate the action of the authorities, if such action is beneficial to the community at large, and prevents the erection of structures inimical to the public health, welfare or safety. In the recent case of Benner v. Tribbitt, Md., 57 A.2d 346, we said that a permit to build a filling station could not be refused 'by a plebicite of neighbors'. But in that case the granting authorities themselves said the construction of the filling station was not against the public health, welfare or safety, and it was plain that the denial of the permit was because, and solely because, the neighboring residents did not want it granted. That was an improper exercise of the police power. In the more recent case of Northwest Merchants' Terminal v. O'Rourke, Md., 60 A.2d 743, we held that an amendment to the zoning ordinance of Baltimore which prevented the obviously appropriate use, for commercial purposes, of property adjacent to a railroad track was void because it bore no relation to the facts, was passed because the neighboring residents asked for it, and prevented the owner from the proper use of its property. Here again was the police power improperly invoked. But in the case of Anne Arundel County v. Snyder, 186 Md. 342, 46 A.2d 689, we upheld a zoning ordinance of Anne Arundel County, although it was obviously passed because adjacent property owners wanted to prevent a commercial boat plant with a marine railway and slips from being constructed in a section of the county, heretofore residential. We upheld that ordinance because it was passed for the benefit of the community as a whole, it was not apparent from the record that the action of the County Commissioners was arbitrary and they were acting within their authority, notwithstanding the impetus for that action came from interested parties. We look to the record to find whether the action taken is in the interest of the community as a whole. It is generally presumed that it is. The fact that the action is urged by a minority, by a majority, or by all of the community, neither brings the action within the police power, nor does it prevent it from being valid and constitutional.

The appellee contends that the area through which it proposes to construct its transmission line is rural and it not subject to the kind of regulation necessary in thickly settled communities. There is undoubtedly a difference, but it must be borne in mind that the Metropolitan District is a belt around the City of Baltimore, and the fact that this part of the belt is not yet as thickly settled as is the remainder does not prevent the Commissioners from anticipating what may soon happen. Zoning looks to the future, and attempts to preserve, rather than to uproot. In the case of Gordon v....