Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co.

• Decision Date: 24 January 1979
• Docket Number: No. 6,6
• Parties: The MAYOR AND ALDERMEN OF the CITY OF ANNAPOLIS et al. v. ANNAPOLIS WATERFRONT COMPANY et al.
• Court: Maryland Court of Appeals

Page 383

284 Md. 383

396 A.2d 1080

The MAYOR AND ALDERMEN OF the CITY OF ANNAPOLIS et al. v. ANNAPOLIS WATERFRONT COMPANY et al.

No. 6.

Court of Appeals of Maryland.

Jan. 24, 1979.

Eugene M. Lerner, City Atty. and Richard G. Anderson, Asst. City Atty., Annapolis, for appellants.

Ronald A. Baradel, Annapolis (Hartman & Crain, Annapolis, on the brief), for appellees.

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

COLE, Judge.

The seeds of this controversy were sown when the General Assembly enacted Chapter 26 of the Laws of Maryland of 1785 which vested in the Port Wardens of the City of Annapolis the power and responsibility to regulate the construction of wharves in the port of that city. Chapter 26 provided that the Port Wardens were to determine and regulate all matters relating to (1) the erection or building of wharves in the port, (2) the distances the wharves extended into the water, and (3) the materials of which the wharves were to be constructed and the manner and form of such construction, always keeping in view the preservation of the navigation of said port. It provided that a failure to procure a license from the Wardens prior to construction of a wharf would be punishable by a fine. It also provided a right of appeal to the Mayor and Aldermen by any citizen aggrieved by the decision of the Port Wardens.

These provisions were incorporated into the city charter as Sections 36 through 40 inclusive and remained unchanged until the City amended its charter in 1970 allowing the Wardens to consider in deciding whether to issue a license "the effect of the proposed wharf and its uses on marine life, wildlife, conservation, water pollution and erosion." ¹

In 1974, the General Assembly (by Chapter 835 of the Laws of Maryland of 1974) amended Maryland Code (1957, 1973 Repl.Vol.), Article 23A, § 2, dealing with the authority of municipal corporations. By that Act, the Legislature added subsection (23A) to Article 23A, § 2 ² which encompassed the pre-1970 authority of the Port Wardens as set forth in the charter of the City of Annapolis but did not include the language of the 1970 charter amendment.

This was the state of the law on February 6, 1975 when the Annapolis Waterfront Company (the Company) applied to the Port Wardens of the City of Annapolis (the Wardens) for permission to build 42 additional ³ slips for The Point Condominium (the Point). A public hearing was held before the Wardens on December 10, 1975. On January 14, 1976 the Wardens denied the application by a unanimous decision, on the grounds that the proposed improvements would create pollution in Spa Creek, adjoining the Point; that the project would result in more congested navigation; and that there would be an adverse effect on traffic conditions in the area of the Eastport Bridge.

The Company and the Council of Unit Owners of the Point (Council) ⁴ then appealed to the Mayor and Aldermen, pursuant to § 40 of the Annapolis City Charter. The Mayor and Aldermen held a De novo hearing on February 17, 1976. At that hearing the Company and Council offered the following testimony. Mr. Paul N. Pearson testified that the slips should be constructed to stop erosion on the shoreline near the Point. Mr. Richard McClelland testified that the proposed slips would not interfere with navigation and would not cause hazards for boat traffic, citing a 1975 United States Army Corps of Engineers Report on Spa Creek, which was then introduced into evidence. McClelland also was of the opinion that there was a great demand among unit owners for additional slips. Mr. C. Godfrey Garvey, Mr. Steven Kaplan, and Mr. William J. Smith, Jr., owners of condominium units in the Point, spoke in favor of the additional slips. The Company and Council also introduced into evidence certain documents relating to the Wardens' decision and the plans for construction of the additional slips.

Several people then spoke in opposition to the project. Mr. Malcolm Smith, counsel for the opposition, questioned the number of unit owners who really wanted boats. He argued that there were still vacancies among the slips already constructed at the Point and that additions would further congest Spa Creek. Captain Thomas M. Adams testified that he had made a statistical study of boat ownership in three residential complexes in Annapolis, which showed that 42 slips already in existence were sufficient to accommodate the Point. Representatives of Annapolis community groups stated that their members opposed the project. Several unaffiliated property owners concurred in this position.

At their regular meeting on March 8, 1976, the Mayor and Aldermen adopted Resolution R-11-76, which denied the application and affirmed the Wardens' decision. The Resolution contained certain findings of fact: that "no sufficient evidence was produced at the hearing to show that the piers will be built of such materials or constructed in such manner as may be deemed substantial and lasting;" that "the forty-two . . . slips would add to the already congested situation in Spa Creek;" that pollution in the creek would increase; and that emergency vehicles travelling over the Eastport Bridge would be hindered by the additional waiting time necessary to permit the additional boats on the creek to move past the bridge.

The Company and the Council then filed a bill of complaint in the Circuit Court for Anne Arundel County, praying for a mandatory injunction ordering the Mayor and Aldermen to grant the permits necessary for the construction of the additional 42 slips.

The circuit court, after making certain preliminary rulings, held that the provisions which grant powers to the Wardens under state law are in conflict with the powers conferred upon the Wardens under the Annapolis City Charter and that the general grant of power from the state to municipalities under Article 23A, § 2 did not authorize the city to expand upon the specific powers given the Wardens by the State. The court concluded that as to construction materials, navigation and, partly, traffic conditions, there was No evidence to support the findings of the Mayor and Aldermen; and that as to pollution and, partly, traffic conditions, there was "no substantial evidence" to support their findings. Therefore, the circuit court held that the actions of the Mayor and Aldermen were "arbitrary, capricious and unsupported by any competent supporting evidence." It granted the injunction.

The Mayor and Aldermen then appealed to the Court of Special Appeals, which affirmed the decision of the circuit court in an unreported per curiam opinion issued on January 26, 1978. We granted certiorari to review the circuit court's conclusion that the Wardens had no power to consider environmental effects of the proposed construction and to determine whether the circuit court was correct in ruling that there was no evidence to support their findings and no substantial evidence to support the denial of permission to construct the additional 42 slips.

According to § 3 of Article XI-E of the Constitution of Maryland, adopted in 1954:

Any . . . municipal corporation, now existing or hereafter created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, . . . .

The Mayor and Aldermen contend that § 3 of Art. XI-E thus enables the City of Annapolis to amend its charter as it relates to local government or affairs. They further contend Article 23A of the Code, enacted to implement the constitutional amendment, only established minimum requirements with respect to the operation of municipal corporations and thus does not prohibit them from establishing additional charter standards and safeguards in furtherance of the authority already delegated. They urge us to hold that the circuit court was in error as a matter of law.

On the other hand, the Company contends that Article 23A, § 2 of the Code conflicts with § 38 of the charter, as amended in 1970, and that the charter provision must yield to a state statute on the same subject. Neither party challenges the power of the City of Annapolis to amend its charter pursuant to Article XI-E, § 3 of the Maryland Constitution. See generally Moser, County Home Rule-Sharing the State's Legislative Power with Maryland Counties, 28 Md.L.Rev. 327, 334-36 (1968). Rather, the Company argues that since the 1974 enactment of Article 23A, § 2(23A) did not specifically empower the Wardens to consider environmental factors, the Mayor and Aldermen's decision in this case is a nullity because § 38 of the charter, as amended, which allowed consideration of such factors, was in conflict with subsection (23A) and was superseded by the state statute.

Several decisions of this Court have examined alleged conflicts between local and state laws, recognizing that one of the purposes of "home rule" was to allow local areas some independence in deciding questions of local concern, See City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376 (1969); State v. Stewart, 152 Md. 419, 137 A. 39 (1927). This Court has adhered to the rule of construction that when municipal ordinances are "enacted in pursuance of competent authority, they should be upheld by every reasonable intendment, and reasonable doubts as to the validity of an ordinance should be resolved in its favor." Tar Products Corp. v. Tax Commn., 176 Md. 290, 297, 4 A.2d 462, 464-465 (1939). The established principle of law in this state is that:

(O)rdinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance...