Stevens v. City of Salisbury

• Decision Date: 03 December 1965
• Docket Number: No. 442,442
• Citation: Stevens v. City of Salisbury, 240 Md. 556, 214 A.2d 775 (Md. 1965)
• Parties: Richard L. STEVENS et al. v. The CITY OF SALISBURY.
• Court: Maryland Court of Appeals

Page 556

240 Md. 556

214 A.2d 775

Richard L. STEVENS et al. v.The CITY OF SALISBURY.

No. 442.

Court of Appeals of Maryland.

Dec. 3, 1965.

Concurring Opinion Dec. 8, 1965.

Raymond S. Smethurst, Jr., and John B. Robins, Salisbury (Charles J. Potts, Adkins & Potts, and Robins & Robins, salisbury, on the brief) for appellants.

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

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

PRESCOTT, Chief Judge.

Interesting and important principles of law are involved in this appeal, some of which are fundamental and novel in nature.The case has been ably briefed and argued by counsel on both sides.

Appellants, the owners of three corner properties (the Stevenses, the Hostetters, and Miss Hopkins), located within the boundaries of the City of Salisbury, challenge the validity of § 42 of the Zoning Regulations of that city, which reads as follows:

'The City of Salisbury, Maryland,

OrdinanceNo. 789

August 3, 1959

Sec. 42.Obstruction of view at intersections.

As an aid to freer safe movement of vehicles at and near street intersections and in order to promote more adequated protection of the safety of children, pedestrians, operators of vehicles and for property, for proposed construction hereafter:

1.There shall be limitations on the height of fences, walls, gateways, ornamental structures, hedges, shrubbery and other fixtures, construction and plantings in all districts where front yards are required on corner lots.

2.Such barriers to clear unobstructed vision at corners of intersecting streets shall be limited to a height of not over three feet above the established elevation of the nearest curb, for a distance of twenty-five feet along both the front and side lot lines, measured from the point of intersection, of the said intersecting lot lines.

3.Within the isosceles triangle formed as required in item 2, by connecting the ends of the respective twenty-five foot distances, all the fixtures, construction, hedges, shrubbery and other plantings shall be limited to a height not over three feet above the elevation of the curb level at the said intersecting streets.

4.Within the said triangle, and in cases where front yards are terraced, the ground elevation of such front yards shall not exceed three feet above the established curb elevation at the said intersecting streets.

5.Within two years from passage of this ordinance all barriers, except buildings and tree trunks cleared of limbs hanging below a distance of eight feet above the established curb elevation, to clear unobstructed vision within the area specified above, shall be removed.'

The Stevenses own a corner lot (fronting about 93 feet on one of the intersecting streets and some 175 feet on the other) which has a natural elevation one foot in excess of the 3 foot elevation permitted by § 42 and it is supported by a masonry retaining wall covered in part by ivy.The lot is otherwise improved by several large shrubs and trees.Miss Hopkins is the owner of a corner lot having frontage on Lehigh Avenue of about 159 feet and on Philadelphia Avenue of about 137 feet.Within the triangle mentioned in the ordinance there are ornamental posts constructed of brick and stone, and hedges, shrubbery and trees or other plantings in excess of the height of 3 feet above the established elevations of the nearest curbs.The Hostetters are the owners of a lot at an intersection with frontages of about 60 feet and 102 feet on the intersecting highways.Within the triangle mentioned in the ordinance there are shrubbery and fences in excess of a height of 3 feet about the established curb elevation.

The photographic exhibits clearly disclose the hazardous nature of the respective intersections involved, and it is not denied that the barriers mentioned in all three of the cases obstruct vision within the triangular areas mentioned.The appellee, in its bills of complaint, conceded 'that some or all of the aforesaid plantings and structures on the defendants' property existed prior to August 3, 1959 * * * and * * * did not violate any law or ordinance at the time same were constructed or planted.'No attempt was made in the proof to show that any of the barriers had been erected or planted after the effective date of the ordinance; hence we shall assume that all of such barriers were in place prior to such effective date.

All of the defendants below demurred to the respective bills of complaint.The court below, relying upon our decision in Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, overruled the demurrers, and after a hearing, the court ordered the Stevenses to remove, at their own expense, the masonry corner posts and terrace or slope of land, together with all ivy, shrubbery, grass and other plants 'within said triangular area' to a height not exceeding 3 feet above the established elevation of the nearest curb.Miss Hopkins was ordered to reduce two masonry corner posts and all shrubbery and plantings (except tree trunks clear of limbs hanging below a distance of 8 feet above the established curb elevation) within 'said triangular area' to a height not exceeding 3 feet above the curb elevation, or in lieu of reducing such structures, etc., in height, by removing same from the triangular area.The Hostetters were ordered to reduce all pickets of their driveway gate to the same level as the adjoining fence pickets (being approximately 3 feet, 4 inches in height) and to remove from the triangular area all existing shrubbery and plantings exceeding a height of 3 feet above the established curb elevation (except for tree trunks clear of limbs hanging below a distance of 8 feet above the curb elevation), or in lieu of removing such shrubbery and plantings by reducing same to a height not exceeding 3 feet above the curb elevation.And the defendants, their heirs, successors and assigns were permanently enjoined 'to refrain thereafter from violating the said provisions of Section 42 * * *.'

The property owners appealed from the decree, and the City appealed from that portion thereof which permitted the Hostetters to retain their fence pickets at a height of 3 feet, four inches.

We stated at the outset that elementary and fundamental principles were involved in this appeal.They relate to the respective rights of individual owners and of government reasonably to regulate the use of property or to take the same under its power of eminent domain.After the close of the Revolutionary War, the ownership of property in this country has frequently been referred to as 'allodial' in nature or that the property is held by 'allodial tenure.'In its strict sense, 'allodium' means land owned absolutely, and not subject to any rent, service, or other tenurial right of an overlord; however, it has been, and is, uniformly recognized throughout this country that the ownership of property is subject to the rights of government to tax the property, to regulate reasonably its use and enjoyment under the police power of the States, and to take the same, upon payment of the value thereof, when needed for a public purpose.

All the parties recognize the above; however, the appellants insist that § 42 is an attempt to 'take' their property for public use without just compensation which is proscribed by Article 23 of The Declaration of Rights, Article III, § 40 of the Maryland ConstitutionandAmendment V of the United States Constitution, while the appellee earnestly contends that the Section is a mere 'regulation of the use of property,' for which no compensation need be paid.

As § 42 is obviously a zoning ordinance and is specifically so designated, it is apparent that its validity (as that of all zoning regulations) depends upon whether or not its promulgation was a proper exercise of the State's 'police power.¹ ' Many text-writers and able jurists have expressed themselves upon the meaning and extent of the police power of the States.Judge Cooley has collected many of such expressions and sets them forth in Chapter XVI of his thorough the splendid work.2 Cooley, Constitutional Limitations, Ch. XVI(8th ed.).No one seems to have attempted to formulate a comprehensive definition of the term 'police power,' and if it were possible to do so and were done, it would destroy the flexible nature of such power, which is essential to carry out and accomplish its purposes.There can be little doubt that the ever-growing complexities of our society will call, 25 years from now, for regulations under the State's police power not now thought of.

For present purposes, the following observations with reference to the police power will suffice.Such power is broad in scope; it is an inherent attribute and prerogative of sovereignty, and has been described as essentially 'no more than the power to govern.'Allied Amer. Mut. & Fire Ins. Co. v. Comm'r, 219 Md. 607, 150 A.2d 421.It has long been recognized in this State, as established by a long line of decisions of this Court, that the Legislature has an inherent right to prescribe, within constitutional limitations, reasonable regulations, which are necessary to protect the public health, comfort, order, safety, convenience, morals and general welfare.And this right may be delegated to the municipalities of the State.LaRoque v. County Commissioners of Prince George's County, 233 Md. 329, 196 A.2d 902.In the instant case, the regulation involved only attempts to regulate the use and enjoyment of private property.No attack is made upon the validity of the Zoning Enabling Act, Code (1957), Article 66B, but, as stated above, the challenge is to the validity of § 42 itself.

Many years ago, it was held by this Court that the constitutional proscriptions against the taking of private property for public use without just compensation were not intended to restrain the reasonable exercise of the police power.American Coal Co. v. Allegany...