Poe v. City of Baltimore

• Court: Court of Appeals of Maryland
• Citation: 241 Md. 303,216 A.2d 707
• Docket Number: No. 150,150
• Parties: Philip L. POE et ux. v. CITY OF BALTIMORE.
• Decision Date: 04 February 1966

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241 Md. 303 216 A.2d 707 Philip L. POE et ux.
v.
CITY OF BALTIMORE. No. 150. Court of Appeals of Maryland. Feb. 4, 1966.

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Joseph S. Kaufman, Baltimore (Harry D. Kaufman and Melnicove, Asch, Greenberg & Kaufman, Baltimore, on the brief), for appellants.

S. Leonard Rottman, Asst. City Sol. (Joseph Allen, City Solicitor, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, OPPENHEIMER and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

This zoning appeal turns on the right of owners of property in Baltimore City to attack the constitutionality of the City's 1931 Zoning Ordinance as applied to their property under the Uniform Declaratory Judgments Act, without first exhausting their administrative remedies. The bill brought [216 A.2d 708] against the Mayor and City Council of Baltimore alleges that, under the 1931 ordinance (Baltimore City Code (1950) Art. 40), the appellants' property was zoned residential and that the classification has not been changed; that there has been a substantial change in conditions; that, at the time of the passage of the ordinance and at the time of the filing of the bill, the classification of the property was unreasonable and arbitrary and resulted in a taking of the property without due process of law; and that the ordinance, insofar as it attempts to restrict the appellants' property to residential use only, is unconstitutional and invalid. The City demurred to the bill and the Chancellor sustained the demurrer without leave to amend.

The appellants contend, first, that under the ordinance, they had no effective administrative remedy before the Baltimore Board of Municipal and Zoning Appeals (the Board); and, second, that, in any event, where a constitutional issue is involved, the aggrieved litigant, if he shows sufficient interest, has the right to have a court of equity consider and pass upon the issue.

I

The provisions of the Baltimore City Zoning Ordinance have

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been before this Court in a number of cases. Many of the zoning appeals have involved actions of the Board in granting or denying applications of property owners for special exceptions. In Mayor and City Council of Baltimore v. Seabolt, 210 Md. 199, 205-206, 123 A.2d 207, 209 (1956), discussed infra, Chief Judge Brune, for the Court, set forth the authority for and scope of the zoning provision on exceptions as follows:

'Turning to the Enabling Act and to the Zoning Ordinance (as amended), we find that Section 7(g) of the former empowers a Board of Zoning Appeals (the Baltimore 'Board of Municipal and Zoning Appeals' being such a Board) to hear and decide special exceptions to the ordinance upon which it is required to pass and to authorize upon appeal in specific cases such variance from the terms of the ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done. The Zoning Ordinance, as amended (Ord. No. 711, approved May 21, 1953), by Section 35(g) repeats the provisions of Section 7(g) of the Enabling Act above mentioned, and by paragraph (j) of the same Section undertakes to prescribe standards to be followed in determining whether exceptions or variances should be granted. Section 36, which incorporates by reference the standards specified in Section 35(j), empowers the Board to make special exceptions in all cases where the Ordinance provides that the approval of the Board is required and in other cases, among which are those when there are 'practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any provision' of the Ordinance.

'The validity of the Zoning Ordinance as applied to a particular property may be raised on appeal from the Zoning Board.'

In reviewing orders of the Board, the lower court and this Court on appeal often rule on whether the refusal by the Board of an application for a special exception amounted to an unconstitutional

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taking of the property involved. The test is whether the zoning from which an exception is asked, under the circumstances involved, imposes such restrictions that the property cannot be used for any reasonable purpose. Mayor and City Council of Baltimore v. Borinsky, 239 Md. 611, 622, 212 A.2d 508 (1965) and cases therein cited. Under this procedure, we have held in some cases that the Board's action in refusing the application amounted to an unconstitutional taking, e. g. Mayor and City Council of Baltimore v. Sapero, 230 Md. 291, 186 A.2d 884 (1962); Frankel v. Mayor and City Council of Baltimore, 223 Md. 97, 162 A.2d [216 A.2d 709] 447 (1960); City of Baltimore v. Cohn, 204 Md. 523, 105 A.2d 482 (1954). In other cases, we have held that the Board's denial of the application did not amount to an unconstitutional taking, e. g. Borinsky, supra; Sapero v. Mayor and City Council of Baltimore, 235 Md. 1, 200 A.2d 74 (1964) and Marino v. Mayor and City Council of Baltimore, 215 Md. 206, 137 A.2d 198 (1957).

The appellants contend that they had no effective remedy before the Board, because the Board is an administrative agency, not a court, and only a court can decide a question of constitutional law. This argument overlooks the fact that Section 40 of the Zoning Ordinance provides for an appeal from the Board's action in denying an application for a special exception to the Baltimore City Court, and, from the decision of that court, to this tribunal. As Chief Judge Bond, for the Court, pointed out in Ellicott v. Mayor and City Council of Baltimore, 180 Md. 176, 180, 23 A.2d 649, 651 (1942), 'it was the design of the statute and the ordinance that this question [the validity of the ordinance] along with others arising in the application of the zoning law should be litigated in one proceeding, at the suit of all persons feeling agrieved, taxpayers and others.'

It is particularly within the expertise of an administrative body such as the Board to marshal and sift the evidence presented in a hearing upon an application for a special exception and to make an administrative finding as to whether, on the evidence, the application of the ordinance to the property involved deprives the owner of any reasonable use of it. Such a finding is subject to court review on the question of constitutionality,

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as a matter of law. Borinsky, supra, 239 Md. at 624, 212 A.2d 508; Pallace v. Inter City Land Co., 239 Md. 549, 558, 212 A.2d 262 (1965).

We held in Seabolt that the statutory remedy was full and adequate. We re-affirm that holding.

II

The appellants contend that, even though there be an administrative remedy, a court of equity may intervene and act when a constitutional question is involved. They recognize the relevance of Seabolt to the situation here presented, but seek to restrict the authority of that case to the precise facts there presented.

In support of their argument, the appellants cite general statements from some of this Court's prior opinions which, taken apart from the actual decisions involved, tend to support their contention. For example, in Schneider v. Pullen, 198 Md. 64, 68, 81 A.2d 226, 228 (1951), Chief Judge Marbury, for the Court, said: 'We have, however, been careful to point out that where constitutional questions are involved, the litigant has the right to raise them in a court of equity, and such court has the right to consider them,' and in Kracke v. Weinberg, 197 Md. 339, 343, 79 A.2d 387, 389 (1951), Chief Judge Marbury said, for the Court: 'It has been, of course, well settled that where a constitutional question is involved, equity may intervene and enjoin action by an administrative body, although this is not favored where there are statutory remedies which permit the raising of such a question.'

There are few absolutes in the law, and the rule that an...