Port Wardens of Annapolis v. Maryland Capital Yacht Club

• Decision Date: 09 February 1971
• Docket Number: No. 289,289
• Citation: Port Wardens of Annapolis v. Maryland Capital Yacht Club, 273 A.2d 102, 261 Md. 48 (Md. 1971)
• Parties: , 2 ERC 1215 PORT WARDENS OF ANNAPOLIS et al. v. MARYLAND CAPITAL YACHT CLUB.
• Court: Maryland Court of Appeals

Page 48

261 Md. 48

273 A.2d 102, 2 ERC 1215

PORT WARDENS OF ANNAPOLIS et al. v.MARYLAND CAPITAL YACHT CLUB.

No. 289.

Court of Appeals of Maryland.

Feb. 9, 1971.

Eugene M. Lerner, City Atty., Annapolis, for appellants.

C. Edward Hartman, II, Annapolis (Hartman & Crain, Annapolis, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

This appeal involves an application by the appellee, Maryland Capital Yacht Club, a non-profit corporation of the State of Maryland, plaintiff below (Yacht Club), to erect a bulkhead, piers, breakwater, pilings and related structures and to dredge and fill, in the Severn River, in Annapolis, contiguous to its property.The Port Wardens of Annapolis, one of the appellants and one of the defendants below, after a hearing, denied a portion of the application for 100 slips, limiting the number to 56 slips.On appeal to the Mayor and Aldermen of Annapolis, the other appellant and defendant below, after a hearing at which, in addition to the record before the Port Wardens, additional evidence was introduced, the decision of the Port Wardens was affirmed.The Yacht Club then filed a bill of complaint in the Circuit Court for Anne Arundel County, in equity, for a declaration that the resolutions of and Port Wardens and the Mayor and Aldermen were null and void; that the Port Wardens grant the full application of the Yacht Club; and, that the Mayor and Aldermen issue the building permit in accordance with the application.The Chancellor, Judge Childs, filed a written opinion and by a decree of July 20, 1970, granted the relief prayed for in the bill of complaint.A timely appeal was taken from this decree.

Two principal questions are presented to us:

1.Was there sufficient evidence before the Port Wardens to support the denial of the portion of the application for the 44 slip area?

2.Was the proceeding before the Mayor and Aldermen an appeal confined to the record of proceedings before the Port Wardens or was it a hearing de novo?

The Yacht Club owns a tract of land in Annapolis in the Eastport area.It is bounded generally on the north by Murphy Street, on the west by First Street, on the south by Chesapeake Avenue and on the east by the Severn River.

On December 10, 1968, the Yacht Club filed its application to construct a bulkhead across the 345 foot water frontage of its land, consisting of approximately two and one-half acres and bounded as already set forth.The application also asked permission to dredge material in front of that bulkhead, to fill behind it and then to construct 100 boat slips in the dredged area to be protected by a breakwater.It was further proposed to dredge an access channel, 60 feet wide and 6 feet deep, from the slip area to the natural six foot deep water approximately 600 feet away.

The existing bulkhead extends into the Severn River from the end of Chesapeake Avenue, a distance of 180 feet.The new proposed bulkhead would be erected toward the river from the end of Murphy Street 265 feet to intersect the 345 foot section.Outboard of the 345 foot bulkhead, there would be two mooring slip areas enclosed on the east and on the south by timber breakwaters.The inboard slip area was designed for 56 slips; the outboard area was to accommodate 44 slips-a total of 100 slips, as we have indicated.Inasmuch as the existing depth of water in the immediate vicinity would limit navigation to boats drawing only a few inches of water, it was proposed that the 60 foot channel be dredged to the one fathom line of the Severn River.

The piers would extend 251 feet out from the bulkhead and the entire project, including the filled area and piers would extend 300 feet from the shore line at the Chesapeake Avenue edge of the subject property and 250 feet from the end of the existing jetty.It would be 1040 feet from the nearest channel as delineated by the Army Engineers and 3150 feet from the Severn River Channel.

The materials to be used for this construction were to be pressure-creosoted wood secured with mild steel galvanized bolts and guys.No question has been raised in regard to the designs, the method of dredging or the fill material.

(1)

A hearing on the Yacht Club application was held by the Port Wardens on November 20, 1969.After a full presentation by the Yacht Club of the details in regard to the project involved in its application, including testimony in regard to its location, the dimensions, the design, type of materials to be used and other relevant data, as well as evidence indicating that the proposal would not render navigation in the port of Annapolis too close and confined, only two witnesses testified in opposition to the granting of the application.One of these witnesses, Mrs. Parker Fairlamb, who resides at No. 1 Severn Avenue-between Murphy Street and Severn Avenue, near the subject property, and who, with her husband, owns two of the three houses between the two streets-stated that her principal concerns were (1) possible erosion resulting from the erection of the proposed bulkhead and (2) the possibility that the proposed construction would act as a 'trap for refuse.'When asked by one of the Port Wardens whether the proposed construction would impede her navigation, she replied:

'I don't think so.If I had a boat, I would go straight out.What it would impede is all the fishing and crabbing that goes on there.'

The other witness, Commander Horn, when asked by the same Port Warden whether the Commander thought that the pier extension would impede navigation in any way, replied 'Well, I can't see that it would conflict with navigation.The statement has been made that the water is not navigable.Then how can you interfere with navigation if the water is not navigable.'

The Port Wardens did not decide the case before them on the day of the hearing, but reassembled on Monday evening, November 24, 1969, to dispose of the matter.At this meeting, a motion to reject the application entirely was rejected by a vote of two in favor and three opposed.A motion was then made that the proposed piers 'be limited to 116 feet in length, and that the landfill and bulkhead be approved as submitted and that the slips be limited to 56 in number.'This motion passed unanimously.It was then stated in the minutes of this meeting:

'The Port Wardens felt that the piers should be limited as it could cause some interference to navigation to small boats and the Port Wardens restricted the decision to this.'

Thereafter, on December 19, 1969, the decision of the Port Wardens was appealed by the Yacht Club to the Mayor and Aldermen.The hearing on the appeal was held before the Mayor and Aldermen on January 26, 1970.The transcript of the proceedings before the Port Wardens was duly admitted into evidence and counsel for the Yacht Club stated to the Mayor and Aldermen that it was their 'duty to consider this appeal solely on the question of navigation, and solely on the record that is before you.'

Notwithstanding this statement by counsel for the Yacht Club, the Chancellor aptly described in his opinion what then occurred, as follows:

'It is apparent from reading the transcript of that meeting that it soon degenerated into a general animated discussion of zoning, parking problems, appeals to preserve the general ecology, discussion of legal theory, discussion of erosion and the implied impugning of the veracity of the witnesses.The Mayor and Aldermen entered wholeheartedly into the discussion of all aspects of these matters, some testifying as fully as any witness might.The result of the hearing was the affirmation of the Port Wardens' action.The resolution entered in the minutes of the regular meeting of the Mayor and Aldermen held on February 9, 1970 reads,

"Alderman Dignan said after long and due consideration, we have to come to conclusion that it is only just to uphold the Port Wardens.He so moved, the motion seconded by Alderman Whelan.Roll Call vote all in favor, motion adopted."

There was, however, some testimony taken before the Mayor and Aldermen which had some possible relation to the effect on navigation by the proposed construction.

Mrs. Parker Fairlamb, who had testified before the Port Wardens, as we have indicated, mentioned her testimony, already quoted, before the Port Wardens but then stated:

'All boats don't require the depth of water in the channel, and anyone who lives in that area knows that many small boats operate in that area all the time, spring, summer and fall.'

Lawrence Johnson, who stated that he sailed a small boat in and around Annapolis during the entire year, testified that he and other members of the Severn Sailing Association(with a membership of between 225 and 250) quite frequently sail within several hundred feet of the beach and the proposed bulkheads would extend past the area normally used by them for sailing.He was 'sure it will quite often impede our sailing.'* * * 'On several other occasions, we do sail under the shore line there.We don't get in much closer than that.'

Mr. Johnson later stated that he questioned 'the need for another club.'

Parker Fairlamb, the husband of Mrs. Fairlamb who had testified, as we have seen, both before the Port Wardens and the Mayor and Aldermen, testified that:

'We contend that the distance requested is excessive and will affect navigation and very substantially.'

He further stated:

'As to the accessibility of boats to that area, I would like to say and reinforce what Mr. Johnson said, as well as my wife, there's a very lively sailing of sailboats, very little in the way of large cruisers, thank God, in this area.I happen to own a fairly large cruiser.I could have brought it in to our bulkhead.My son owns a small cruiser which he brings in our bulkhead.Those boats have approximately two and a half to three foot drawings.The sailboats, however, are either keel boats...