Levy v. Seven Slade, Inc.

• Decision Date: 11 March 1964
• Docket Number: No. 221,221
• Citation: 198 A.2d 267,234 Md. 145
• Parties: Lester S. LEVY et al. v. SEVEN SLADE, INC.
• Court: Maryland Court of Appeals

Page 145

234 Md. 145

198 A.2d 267

Lester S. LEVY et al. v. SEVEN SLADE, INC.

No. 221.

Court of Appeals of Maryland.

March 11, 1964.

Frank A. Kaufman and Leonard E. Cohen, Baltimore (Philip Heller Sachs and Fred Kelly Grant, Baltimore, and J. Elmer Weisheit, Jr., Towson, on the brief), for appellants.

Kenneth C. Proctor, Towson (Proctor, Royston & Mueller, Towson, on the brief), and by Joseph Sherbow, Baltimore (James J. Doyle, Jr., and Sherbow, Shea & Doyle, Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The Zoning Commissioner of Baltimore County denied an application for a change in classification and a special exception to permit the building of a high rise luxury apartment house on the south side of Slade Avenue, east of Reisterstown Road, and on appeal to the County Board of Appeals the hearing was held before two of the three members, the third being disqualified. The Board divided one to one, and on the applicant's appeal to the Circuit Court for Baltimore County, Judge Turnbull, noting the problems caused by the split in the Board, felt there was no presumption of correctness of the denial of the application which resulted and that it therefore became incumbent on the Circuit Court to make its own independent determination of the facts as the record disclosed them. Having done this, Judge Turnbull's view was that there had been a change in the neighborhood since the adoption of the comprehensive zoning map in 1957 and that the use of the land for the proposed apartment house would not offend any of the six requisites to the granting of a special exception imposed by Sec. 502.1 of the Zoning Regulations of Baltimore County. ¹

At the threshold we must determine the effect of the even division of the County Board of Appeals. It is clear that one effect was to leave the denial of the application by the Zoning Commissioner in force, and to make the Board's order appealable to the Circuit Court. ² Montgomery County v. Walker, 228 Md. 574, 581, 180 A.2d 865 et seq., and cases cited; Mayor & City Council of Baltimore v. Biermann, 187 Md. 514, 522, 50 A.2d 804.

The right of appeal from the Board to the Circuit Court stems from Code (1957), Art. 25A, Sec. 5 (granting express powers to a chartered county). By Paragraph (U) of Sec. 5 such a county has power to establish a county board of appeals provided that 'any decision by a county board of appeals' may be appealed by an aggrieved party to the circuit court for the county 'which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision * * *.' Sec. 501.4 of the Zoning Regulations of Baltimore County, providing for appeals from the Board to the Court, uses the exact language of Sec. 5(U) of Art. 25A of the Code, in describing the functions of the Court in deciding an appeal from the County Board of Appeals.

It is our view that the Circuit Court, on appeal from a split decision of the Board, cannot make its own independent findings of fact but, rather, must decide only, as it must in appeals where there has been a unanimous or majority decision by the Board, whether, in the words of Art. 25A of the Code and Sec. 501.4 of the Baltimore County Zoning Regulations, the decision of the Board is or is not 'in accordance with law.' See Montgomery County v. Ertter, Md., 197 A.2d 135, 137, where we said, in reference to the statute which granted an appeal and gave power to reverse if the decision was not 'in accordance with law,' the following:

'We think it clear that under this section the function of the reviewing court is limited. That court may set aside, as not in accordance with law, action of the district council which is arbitrary, illegal or discriminatory. It may thus set aside action of the district council which is not founded upon any substantial evidence, but the court may not substitute its own judgment on the facts for that of the district council.'

In performing this task where there has been a split decision below, the court does not, it is true, have the advantage of the Board having made determinations of fact or of the expertise the law considers the Board to have in the solution of the current zoning problem to the same extent it usually does. In the Biermann case, cited above, the applicable statute required the concurring vote of four of five members of the Baltimore Board for the granting of a permit for a filling station in a residential zone. Three members of the Board voted to grant the permit and two voted to the contrary. The Baltimore City Court reversed the Board and directed the permit to be issued. This Court reversed and reinstated the action of the Board, saying at p. 522 of 187 Md., at page 808 of 50 A.2d:

'We are inclined to agree that where disapproval rests upon a mere failure to obtain the concurring vote of four out of five members, the action cannot properly be described as that of a fact-finding body. In such circumstances it would be more accurate to say that approval is prevented by the exercise of a veto power. And negative action of this sort is clearly not entitled to the same weight, in considering the merits of a controversy, as a positive determination. But on the other hand, the statute requires concurrence as a condition precedent to the issuance of the permit, and failure to concur cannot be deemed as illegal action, even though it may defeat or qualify the other requirement of the statute that the Board act as a fact-finding body. It is our duty to reconcile conflicting provisions of the statute so as to give effect to both, where possible. * * * We hold that although the Board was precluded, by the adverse vote, from acting as a fact-finding body, this fact did not render its action a nullity, or open the question to unlimited review. The question before us is not whether there was substantial evidence before the Board to support a minority finding, but whether there was a reasonable basis in fact to support the refusal as an exercise of the police power. * * *

'Considering the action of the Board as an exercise of delegated legislative, or quasi legislative, power, the scope of review is different and in some respects more limited than where the action is quasi judicial e. g., the court must find that the result of the action is beyond the police power and deprives the applicant of property without due process of law. On this question the property owner has the heavy burden of overcoming the presumption of constitutionality of legislative action, even if the legislative body acted without evidence at all.'

The Biermann holding was followed in the Walker case to which we referred earlier. The Courts of New Jersey, where statutes spelled out what the cases have made the law of Maryland, have come to the conclusions reached in Biermann and Walker. See Miller v. Boonton Tp. Bd. of Adjustment, 67 N.J.Super. 460, 171 A.2d 8, 13, where the Court said:

'In view of the legislative judgment, it follows that unless we accord the same presumption of validity to a 'statutory denial' as we would accord a denial resulting from a majority vote, the legislative purpose would be defeated. The result would be that the Superior Court would review the denial of a variance without giving sufficient weight to the expertise of the local board.

* * *

* * *

'It must be concluded that the usual presumption of validity attaches to a 'statutory denial' of a variance. In other words, the presumption must be accorded the veto of the minority member. Consequently, the question on this appeal is whether the action of the minority member in voting against a variance was arbitrary, capricious or patently unreasonable.'

Griggs v. Zoning Bd. of Adjustment, Princeton, 75 N.J.Super. 438, 183 A.2d 444, 447, reiterated the rule, saying:

'The general rule enunciated by our courts is that the decision of a local board of adjustment is presumptively correct and should not be set aside unless shown to be arbitrary, capricious or patently unreasonable. * * * Incidentally, the presumption of validity is given the same legal effect by the reviewing court whether the decision is by a majority of the board members or is the result of a statutory denial.'

As the case before...