Scrivner v. Mayor and City Council of Baltimore

• Decision Date: 17 June 1948
• Docket Number: 3.
• Citation: 60 A.2d 190,191 Md. 165
• Parties: SCRIVNER v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

60 A.2d 190

191 Md. 165

SCRIVNER v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 3.

Court of Appeals of Maryland

June 17, 1948

Appeal from Baltimore City Court; E. Paul Mason, Judge.

Appeal by Delancey B. Scrivner from the action of the Board of Municipal and Zoning Appeals in granting a permit to the Chesapeake & Potomac Telephone Company of Baltimore City opposed by the Mayor and City Council of Baltimore and by Telephone Company. From an order of the Baltimore City Court dismissing the appeal, DeLancey B. Scrivner appeals.

Order reversed.

Lester H. Crowther, of Baltimore (DeLancey B Scrivner, of Baltimore, on the brief), for appellant.

Hamilton O'Dunne, Asst. City Sol., of Baltimore (Thomas N Biddison, City Sol., of Baltimore, on the brief), appellees for Mayor & City Council.

R Dorsey Watkins, of Baltimore (Piper, Watkins, Avirett & Egerton, of Baltimore, on the brief), for appellee C. & P. Tel. Co.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

This appeal presents the single question whether the appeal of DeLancey B. Scrivner (appellant) from the action of the Board of Municipal and Zoning Appeals in granting a permit to the Chesapeake and Potomac Telephone Company, to make certain improvements to its building known as No. 3913 W. Coldspring Lane, Baltimore, Maryland, was taken within the time prescribed by law. The appeal was taken twenty-seven days after the resolution of the Board granting the permit was passed.

The zoning ordinance of Baltimore City, No. 1247, Paragraph 35(a) provides that an appeal from the Board may be taken by a petition presented to the Baltimore City Court 'within thirty days after filing of the decision in the office of the Board'. Article 66B, section 7, Code 1939, provides that such an appeal shall be 'presented to the court within 30 days after filing of the decision in the office of the board'. This article is a codification of the Laws of Maryland 1927, Chapter 705, which is statewide in its application and provides for zoning in Baltimore City and incorporated towns of the State containing more than 10,000 inhabitants. In 1946 Baltimore City adopted a new charter. By section 134 thereof, the duties of the Appeal Tax Court, the Commissioners for Opening Streets, and the Board of Zoning Appeals, were transferred to the Board of Municipal and Zoning Appeals, which was created, and absorbed the duties of those departments of the City government. Section 135 of the 1946 Charter provides: 'Unless appeals therefrom are otherwise provided for by Act of the General Assembly of Maryland, any person, * * * feeling aggrieved by any decision of the Board may, at any time within twenty days of a decision by the Board, appeal therefrom to the Baltimore City Court.'

The appeal from the Board, in this case, not having been taken until twenty-seven days after the decision of the Board, motions were made by the appellees, in the lower court, to dismiss the appeal. These motions were granted by the court, and from its rulings the case comes here on appeal.

The contention is made that before the passage of the Act of 1927, Chapter 705, providing for zoning throughout the State, and known as the Enabling Act, the City of Baltimore possessed the power to zone, and prior thereto had passed several zoning acts; and, that the Enabling Act, so far as the City is concerned, simply permits the City to do what it theretofore was empowered to do. It is argued, the Enabling Act being permissive as regards the City, and the City having had power to zone before the passage of that act, it need not use all the power that it is permitted to use by the act. Therefore the City had the power to limit the time for the taking of appeals in zoning cases to twenty days. A number of zoning cases decided by this court are collected in the brief of the appellees to sustain this contention. We think, however, that as to Baltimore City, the Act of 1927, Chapter 705, was an act to enable the Mayor and City Council to pass a comprehensive zoning law, and zoning Ordinance 1247 was passed by the Mayor and City Council on March 30, 1931, in conformity with the Enabling Act, and is a comprehensive zoning ordinance.

'Acting under the authority conferred by chapter 705 of the Acts of 1927, the mayor and city council of Baltimore on March 30, 1931, adopted Ordinance No. 1247, known as the zoning ordinance, * * *.' Jack Lewis Inc. v. Baltimore, 164 Md. 146, 164 A. 220, at page 148, 164 A. 220, at page 221.

'The title to Ordinance No. 1247 indicates a subject-matter in full conformity with the power in terms conferred by the General Assembly. The language of the ordinance is in close adaptation to that of the statute, and the provisions are of the specified and defined character authorized by the Legislature. So what the Legislature has distinctly declared may be done cannot be annulled by the courts because they may consider the thing, when so authoritatively done, to be unreasonable or against sound policy. (authorities cited) The rule is different if the ordinance had been passed under the incidental authority of the municipality or under a grant of power of a general nature.' [164 Md. 222, 164 A. 746.]

At page 231 of 164 Md., at page 747 of 164 A., the court said 'The comprehensive zoning ordinance now in...