Sullivan v. Northwest Garage & Storage Co.

• Decision Date: 08 December 1960
• Docket Number: No. 70,70
• Citation: 165 A.2d 881,223 Md. 544
• Parties: Joecephas SULLIVAN, Dorothy Sullivan and National Association for the Advancement of Colored People, v. NORTHWEST GARAGE & STORAGE COMPANY, Inc., Kirby & McGuire, Inc., and City of Baltimore
• Court: Maryland Court of Appeals

Page 544

223 Md. 544

165 A.2d 881

Joecephas SULLIVAN, Dorothy Sullivan and National

Association for the Advancement of Colored People, v. NORTHWEST GARAGE & STORAGE COMPANY, Inc., Kirby & McGuire,

Inc., and City of Baltimore

No. 70.

Court of Appeals of Maryland.

Dec. 8, 1960.

Juanita Jackson Mitchell and Archie D. Williams, Baltimore (Williams & Murphy, Baltimore, on the brief), for appellants.

Lawrence A. Kaufman and Nathan Patz, Baltimore (Harrison L. Winter, City Sol., and John A. Dewicki, Asst. City Sol., Baltimore, on the brief for City of Baltimore), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The individual appellants, Mr. and Mrs. Joecephas Sullivan, appeal from a dismissal of their bill for (1) a declaratory decree that the approval by the Board of Municipal and Zoning Appeals of Baltimore of the construction of a commercial building across from their home on Whittier Avenue by the Northwest Garage and Storage Commpany, Inc., an appellee, be declared null and void because not given at a public meeting of the Board; and (2) in the alternative, for a permanent injunction restraining Northwest from erecting the building with an entrance and exit for trucks on Whittier Avenue. ¹

Northwest owned an unimproved parcel of land in Baltimore between Elgin Avenue on the south and Whittier Avenue on the north. The Elgin Avenue frontage to a depth of about 100 feet toward Whittier Avenue is zoned second commercial. The Whittier Avenue frontage for a depth of some 65 feet toward Elgin Avenue is zoned residential, but had the status of a nonconforming use for the storage of trucks and commercial vehicles and for the exhibition and selling of used cars.

Northwest applied for a permit for the construction of a building to house foodvending vehicles such as retail ice cream trucks. The building was to be of two-story height with an exit and entrance for the vehicles on the first floor on Elgin Avenue, and a one-story elevation, with the contested entrance and exit on Whittier Avenue for the vehicles on the second floor (the floor approximately level with Whittier Avenue).

The Board of Municipal and Zoning Appeals held a duly called and advertised public hearing on June 23, 1959, attended by protesting neighbors, including the individual appellants. At the conclusion of the hearing the five members of the Board retired to its offices in the Municipal Building, conferred, and then unanimously approved the issuance of the permit. The minutes of the Board of June 23rd note the action of the Board and the vote taken, and the decision was immediately available as a public record to all who inquired. All interested parties were notified in writing of the Board's decision and action on June 29, 1959.

An appeal was entered to the Baltimore City Court on July 29, 1959. Judge Oppenheimer, whose knowledge and opinion as to the requirements of administrative proceedings are entitled to great respect, held that the provision that meetings of the Board shall be open to the public found in the State Zoning Enabling Act 'clearly pertains only to meetings in the nature of hearings where opposing parties and their counsel can present evidence and arguments to the Board.' He went on to say: 'These meetings are open to the public. It is fundamental in the requirements of fair procedure and due process of law that there shall be public hearings in adversary proceedings. However, this requirement of the law, in my judgment, does not apply to deliberations of an Administrative Board after testimony is taken and arguments heard. All proceedings of a court are open to the public--that is essential under our system of government. However, deliberations of judges, even of the Court of Appeals, are not open to the public under constitutional or any other requirement.'

Judge Oppenheimer further held that the thirty-day period for appeal to court from the action of the Board ran from the day of the decision and not from the date of notification of the parties (Code (1957), Art. 66B, Sec. 7(j), and State Housing, Inc. v. City of Baltimore, 215 Md. 294, 298, 137 A.2d 708), and dismissed the appeal as filed too late. There was no appeal to this Court from the order, which followed Judge Oppenheimer's opinion, dismissing the appeal to the Baltimore City Court.

On November 25, 1959, the bill for declaratory relief and injunction which is before us was filed in the Circuit Court No. 2 of Baltimore City. The appellees' answer denied that the Board had to deliberate in public, claimed that the point was res judicata, and asserted that the allegations that the opening for the ingress and egress of trucks in the proposed building on Whittier Avenue would constitute a nuisance were speculative and that the lawful action of the zoning authorities in approving the building containing the opening could not be attacked collaterally.

After hearing testimony, Judge Sodaro adopted the decision of Judge Oppenheimer in the prior proceeding in the Baltimore City Court as to the need of public deliberation by the Board, saying: '* * * the contentions of the complainants in this regard are without merit, without the necessity of adjudicating at this time whether or not the order of Judge Oppenheimer is resjudicata in the instant case.'

We think Judge Oppenheimer was right, finding strong indication in the statute that he read it correctly.

Subsection (c) of Section 7, which requires public 'meetings,' says that the chairman may compel attendance of witnesses and administer oaths which points to legislative contemplation of the word meeting as synonymous with hearing. The same subsection directs the Board to keep minutes of its 'proceedings,' which gives the impression that the Board is to function outside of a meeting or hearing, particularly since there is the further language that the Board shall keep records of its 'examinations' and 'other official action.' All of these things, the minutes, the records of the examinations and the records of other official actions are stated to be public records.

Subsection (f) of Section 7 directs the Board to fix a reasonable time for the hearing of an appeal from a lower administrative zoning official, to give public notice thereof, as well as due notice to the parties in interest and to 'decide the same within a reasonable time.' There can be no doubt that under the language last quoted the decision need not be made at the hearing, and certainly it would be unreasonable to require the calling of a new hearing or meeting, duly advertised and with notice to the parties, to announce a decision reached after private deliberations and irrational to require the Board to convene to announce its decision to an empty room. The Baltimore City Charter (Flack, 1949), Sec. 136, implements the statute and gives hint of its true meaning by directing the Board to give reasonable notice of its decisions by mail to all parties in interest as revealed by its records.

The weight of such authority as there is supports our conclusion that the hearings of the Board must be public but that the deliberations of the Board after the hearing...