Salisbury Bd. of Zoning Appeals v. Bounds, 41

• Decision Date: 02 December 1965
• Docket Number: No. 41,41
• Citation: 214 A.2d 810,240 Md. 547
• Parties: SALISBURY BOARD OF ZONING APPEALS et al. v. Edward G. BOUNDS et al.
• Court: Maryland Court of Appeals

Page 547

240 Md. 547

214 A.2d 810

SALISBURY BOARD OF ZONING APPEALS et al. v. Edward G. BOUNDS et al.

No. 41.

Court of Appeals of Maryland.

Dec. 2, 1965.

Victor H. Laws, City Sol., Salisbury, for appellants.

Hamilton P. Fox, Salisbury (Hearne, Fox & Bailey, Salisbury, on the brief), for appellees.

Before HAMMOND, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

The matter to be determined in this case is whether appellees will be allowed a variance to permit the use of a house, located at the southeast corner of West William Street and Park Avenue in Salisbury, Maryland, to be used as a four family dwelling instead of a three family dwelling, the latter being permitted without the necessity of obtaining a variance. Under the Salisbury Zoning Ordinance, before making any structural changes in a building, a permit must be obtained from the city's building inspector. The applicable sections of the Zoning Code provide that the request for such a permit must be made on a form supplied by the building inspector and signed by the applicant or his agent. The building inspector is then to determine whether the proposed changes will conform to the city's Zoning Code. If the requirements of the Code are met the building inspector is authorized to issue the building permit. In the instant case the appellees did not comply with the formal requirements of the Zoning Code, and as a result a series of misunderstandings ensued which resulted in four apartment units being built within the old house without the necessary building permit being issued. The appellees contend that the financial hardship which has resulted from these misunderstandings are the special circumstances upon which a variance should have been granted.

Edward G. Bounds and S. Norman Holland, Jr., appellees, in Jury or early August, 1964, purchased the subject property which contained some 8,500 square feet of land, and was improved by an old, three story, frame house which had been used as a single family dwelling. Prior to the purchase one of the appellees, Edward G. Bounds, together with Joseph B. Pettus, Jr., then building inspector for the city of Salisbury, visited the subject property in order to ascertain whether the house when converted into four, or possibly five apartment units would comply with the density requirements of the Zoning Ordinance. The Salisbury Zoning Code requires a minimum of 2,500 square feet of land per family for a frame building in a residential C district in which the house is located. Measurements were made by Bounds and Pettus at this time on the incorrect assumption that the property extended to the curb line of the street instead of to the edge of the sidewalk nearest the house, which was the actual boundary. It is presently uncontroverted that even with the curb line being used as the boundary, the subject property would encompass something less than the 10,000 square feet required for four apartment units.

Thinking that the property contained 'approximately 10,000 square feet,' Pettus advised Bounds that five apartment units would not be allowed without a variance, but that four apartment units could be constructed by merely obtaining a building permit. Appellee Bounds advised the building inspector that he was going to Arkansas for a few days and told Pettus the name of his partner (co-appellee herein), the name of his attorney, and stated: 'if you'll take care of it [obtaining a permit], I'll appreciate it.' Pettus apparently agreed to make the necessary arrangements for the building permit, and did in fact issue a plumbing permit but he neglected to take any action with respect to the informally requested building permit.

When Bounds returned from his trip, he observed a building permit tacked to a tree on the property and he assumed, without examining, that it was the one he had requested Pettus to issue. Actually this permit was one granted some four years earlier which merely athorized a former owner to make minor repairs. Without further consultation with city officials, the appellees began making the structural changes necessary to convert the building into four apartment units. After eight-five to ninety per cent of these changes had been made, the appellees discovered that they did not have a building permit. Appellees then made a formal application for the permit and the acting building inspector, Joe T. Hearn, issued a building permit on October 19, 1964, albeit authorizing only three apartment units. At this time the appellees had completed substantially one hundred per cent of the work on four apartment units.

When the acting building inspector refused to issue a building permit or a certificate of occupancy for the fourth family unit, Bounds and Holland applied to the Salisbury Board of Zoning Appeals to grant them a variance so as to allow the fourth apartment. The Board, after a hearing, refused to grant such a variance on the grounds that the applicants were responsible for obtaining a valid permit and had demonstrated no hardship other than financial, which was legally insufficient.

The appellees here then appealed the Board's decision to the Circuit Court for Wicomico County. In their order for appeal the appellees failed to set forth the error committed by the agency from which the appeal was taken and this information was not supplied within ten days, as allowed by Maryland Rule B2 e. The appellants here filed a timely motion to dismiss the appeal, setting forth the failure to specify the alleged error committed by the Board as the reason for the motion. Bounds and Holland then attempted, some forty days after filing their order for appeal, to correct the deficiency by filing a petition 'in accordance with Rule B2 e' alleging numerous grounds for appeal. Rule B5. Dismissal of Appeal, states:

'If the appellant shall fail to file his order for appeal within the time prescribed by Rule B4 (Time for Filing) or any order issued pursuant thereto, or shall fail to file his petition within the time prescribed by section e of Rule B2 (How Appeal Taken), the court shall dismiss the appeal unless cause to the contrary be shown.'

The motion to dismiss the appeal was argued before Judge Taylor on February 1, 1965. The appellees argued that the cause to the contrary shown for failing to state reasons why the Board should be reversed was that they did not have the transcript of the Board's proceedings until the date on which the metion to dismiss was filed. The trial court reserved ruling on the motion until after hearing the case on its merits. On March 1, 1965, Judge Taylor heard arguments of counsel as to he merits of the case. He then denied the motion to dismiss the appeal, and on March 4, 1965, issued an order reversing the decision of the Board of Zoning Appeals and ordering the director of the Bureau of Inspections to issue a building permit to the applicants (appellees herein), which as well had the effect of granting the variance for which...