Benner v. Tribbitt

Markell, J., delivered the opinion of the Court. This is an appeal from an order dismissing a petition for mandamus to require defendants, the Commissioners of Denton, to issue to petitioners a building permit for a filling station on a lot at the southwest corner of Main (or Market) and Fifth Streets. The lot fronts 80 feet on Main Street and 300 feet on Fifth Street. Application for the permit was filed on December 17, 1946, was advertised for two weeks and was denied on February 5, 1947.

In response to the public notice seventeen persons had filed objections to issuance of the permit. The petition for mandamus was filed on February 25, 1947. After a demurrer to the petition had been overruled, defendants filed an answer. Denton is a town of about 2000 inhabitants.

Main Street (which runs east and west) is its principal business street. Routé 404 is the principal public highway from the Chesapeake Bay Ferry (about 30 miles from Denton) to the lower Eastern Shore and lower Delaware. Route 404 runs through Denton on Main Street from west to east and at Fifth Street (which runs north and south) turns south around the corner of the lot in question. ⁹ By the charter of Benton, P. L. L. 1930, Art. 6, set. 139; Acts of 1914, ch. 730, sec. 86, the Commissioners have power to pass ordinances “for controlling the erection and location of buildings, fences, and stock enclosures”, to “prevent and regulate the storage of gunpowder, oil or other combustible matter in such quantities and in such places as they may deem proper” and to provide “for the good government and peace, health and welfare of the town and the inhabitants therein.” (Italics supplied.) Of the clauses quoted the first originated in 1884, the second and the words not italicized in the third in 1914, the italicized words in or before the Code of 1860, P. L. L., Art. 6, sec. 61. The charter, unlike the Baltimore City Charter since 1898, does not delegate plenary authority “to have and exercise within the limits of the [town] all the power commonly known as the Police Power to the same extent as the state has or could exercise said power within said limits.” Cf.

Rossberg v. State, 111 Md. 394 , 74 A. 581, 582 , 134 Am. St. Rep. 626 ; Brown v. Stubbs, 128 Md. 129 , 97 A. 227 ; Osborne v. Gravel, 136 Md. 88 , 110 A. 199 , with Bostock v. Sams, 95 Md. 400, 414 , 52 A. 665 , 59 L. R. A. 282, 93 Am. St. Rep. 394 . The town has no zoning powers and has not attempted to pass any zoning ordinance.

The general zoning act of 1927, Code, Art. 66B, secs. 1-9, is applicable only to cities and towns containing more than 10,000 inhabitants; the planning and zoning act of 1933, Art. 66B, secs. 10-37, is expressly inapplicable to Caroline County. Sec. 35 and amendatory acts of 1941, 1945 and 1947. An ordinance of 1907 makes it unlawful to build “any dwelling house, barn, shed, stable, storehouse, warehouse, shop, porch or any other building * * * without first obtaining a permit from the Commissioners”. An ordinance of 1937 prohibits construction or repair of “any building of any kind or description * * * without first submitting * * * plans and obtaining a permit from the Commissioners”.

These charter provisions and building ordinances constitute sufficient grant and exercise of the police power to justify denial of a permit for a ¹⁰ filling station when such action is “reasonably necessary for the adequate protection of the public welfare, safety, health, comfort, or morals”. Pocomoke City v. Standard Oil Co., 162 Md. 368, 380 , 159 A. 902, 906 . Petitioner Benner, owner of the lot, has contracted to sell it to petitioner Sherwood. The sale is conditioned upon grant of the permit.

The petition for mandamus alleges that Sherwood “has planned to erect a suitable, modern and beautiful building thereon (costing at least $25,000), and to landscape and beautify the said lot with shrubs, grass and hedges (which would effectively conceal the service station from adjoining residence), and to so arrange the same, as to conform to all architectural, safety and health standards.” Defendants’ answer admits that so far as such plans are Ijnown to them, they meet defendants’ “physical and visual requirements” for the erection of buildings. In an effort to appease objectors petitioners agreed to donate sufficient land at the corner of the streets, “so that a curve would replace the present corner”, and also to donate to the town “the land necessary for a public library or building”, at the south end of the lot, fronting on Franklin Street (parallel to Main Street) and Fifth Street, “all of which proposed donations met with said Commissioners’ stated approval”. The petition alleges that defendants on numerous occasions (between December 17, 1946, and February 5, 1947) advised petitioners “that after consideration they believed the aforesaid plans were entirely proper, and the proposed use was in the best interests of the town * * *, and would not in any way affect the public health, comfort, safety or welfare of said town or the adjoining property owners, and that said Commissioners believed the adjoining property owners were misguided in their objections”. The answer alleges that “the individual members of the Board did state personally and individually that they saw no objection to the physical plans for the building itself, and also stated that they personally saw no objection to the proposed use of the property, but emphatically deny that they ¹¹ officially said that the proposed use would not in anywise affect the public health, comfort, safety and welfare of the town or the adjoining properties, or that said property owners were misguided in their objections. * * * any statements made by any individual members of the Board to [petitioners] were an expression of the personal and tentative thought of the members at that time before full consideration of the matter had been given by them as Commissioners * * *, and were not intended in any manner as a forecast of what their official determination of the application would be after full consideration of the application with regard to the public safety, welfare, comfort, morals and health of all the inhabitants of said town”.

The petition alleges that on February 1, 1947 defendants advised petitioners “that they were going to hold a public meeting of the protestants of said application, solely in order to listen to their complaints and to explain to them the advantages of said building and landscaping, in place of the present weed and filth infested lot * ^ * but advising that the said permit and application was going to be granted.” The answer denies that defendants stated that the sole purpose of the meeting was to explain to the protestants the advantage of the proposed building and landscaping, or that the permit and application was going to be granted, and says the purpose of the meeting was to give the protestants an opportunity to be heard in explanation of their previous written objections filed. The petition alleges that on February 5, 1947, before the meeting was called to order defendants announced that' they had decided to “turn down” the permit and application and dismissed the meeting, and when questioned advised that the permit and application were “turned down” solely because the majority of the property ownérs in the immediate vicinity objected to any service station, or any other similar building of a commercial nature there, as they wanted to keep the neighborhood residential; and again advised that they personally favored the application but “had to live with the ¹² objectors and therefore had to deny” it. The answer allegés that “practically all of the seventeen protestants were present at the meeting, but it was not deemed necessary to hear explanations of their protests previously filed, for the reason that [defendants] had prior to the meeting, and after full consideration of the matter, * * * determined that the proposed use of the lot * * * would not promote the general welfare, safety, health, morals and comfort of all the inhabitants of the town”; that as petitioners “had been fully and exhaustively heard respecting the merits of the application and no public hearing of the matter was required by law” and “it had been already determined to grant the objectives of the protestants, it was not deemed necessary to conduct the scheduled hearing”; that defendants “have no recollection that either of them stated to any one their reasons for refusing the application”, and “while the objection of the majority óf the property owners and residents in the immediate vicinity to a service station being operated in that locality was one of the factors which was considered” by defendants in their “determination to refuse the application, such factor was by no means the sole and only basis of [defendants’] determination and that the decision to refuse the application was based on a determination by [defendants] that the proposed use of the property would not promote the general welfare, safety, morals and health of the inhabitants of the town”. It is alleged and admitted that defendants had recently issued a permit (without public notice) for the construction of a large nearby garage, for a then member of the Commissioners, on Fifth Street, and also a permit for a large warehouse on Franklin Street, both within seventy-five yards of petitioners’ property and “within a short half block thereof”.

The petition alleges that the “arbitrary and capricious action” on defendants’ part in denying the building permit and approval of the plans “was due to no objection to said building plan for a service station, nor to any determination that the same constituted a menace to the public health, comfort, safety ¹³ or welfare, but was solely an unwarranted attempt to enforce zoning”, and avers that the denial was “arbitrary, capricious, illegal and wrongful” and also denied petitioners the equal right to use their property guaranteed by the constitution and laws of the state and the United States. The answer denies these allegations and says that defendants’ decision to refuse the permit “was based on a determination that the proposed use would not’promote the general welfare, safety, comfort, morals and health of all the inhabitants” of the town. The answer alleges that the factors considered by defendants in arriving at their decision to refuse the application were, the extent to which the proposed use (a) would probably further congest vehicular traffic at the corner, (b) would create a hazard to pedestrian traffic passing the location, including school children, (c) would create a fire hazard to inhabitants and property owners, particularly residents and owners of frame houses in the immediate vicinity, the extent to which noise and gases incident to the proposed use would be detrimental to the health of the inhabitants of the town, whether there was any public necessity for the proposed use, the extent to which such use would depreciate the value of' surrounding residences or affect their use as dwellings, and “whether the proposed use would promote the general welfare, safety, morals and health of all the inhabitants of said town”. Petitioners’ replication traverses allegations in the answer, substantially reiterating allegations in the petition and expressly denying (1) that defendants based their refusal to grant the permit on the ground that it would adversely affect, or (2) that (in fact) it would adversely affect, the public health, morals, safety and welfare of the town.

Defendants joined issue on the replication. By agreement four issues were submitted to the jury: Did defendants (1) “officially state they believed that the proposed use of the lot of land mentioned in this case would not adversely affect the public health, comfort, ¹⁴ safety and welfare of the inhabitants of said town?”, (2) “on or before February 5, 1947, officially promise and agree to issue the building permit applied for in this case?”, (3) “refuse the building permit solely on the ground that the majority of the property owners in the immediate vicinity objected?”, (4) “is the vehicular traffic condition at the intersection of Main and Fifth Streets at present congested?” On each issue the jury’s verdict was “Yes”. Three additional issues proposed by petitioners were “refused” by the court: Would the proposed building and use of the land according to the evidence (1) result in an increased hazard to vehicular and pedestrian traffic, (2) provide reasonable safety to adjacent properties and to persons from fire hazards, or (3) adversely affect the public welfare, health, safety, and morals of the town? The trial lasted two days.

The jury’s verdict was rendered on May 16, 1947. On June 12, 1947 the court filed a carefully considered opinion and an order dismissing the petition for mandamus. In its opinion the court said: “Despite the fact that counsel have framed issues for the jury which they and the court as well considered to state the issues of fact made by the petition, answer and replication, I have reluctantly reached the conclusion that the findings of the jury by its special verdict are not material to the ultimate decision of this case”. The court also said: “It is apparent that what happened in this case is that when the commissioners were first approached they were of the opinion that the improvement of this lot by a filling station would not adversely affect the welfare of the town and being men in public office were anxious to please the applicants.

At that time they had no idea of the vigorous opposition which later developed. They went so far as to commit themselves to the project. Later as the matter became publicly known a strong, active and vociferous opposition developed. The Commissioners were then in a quandary.

As one of them said, ‘We have to live with these people’. Thereupon they felt required to reverse ¹⁵ their previous opinion. It is clear also that the petitioners knew they did not have final action in the matter right up to the evening of February 5, 1947, when they finally and definitely refused the permit. There is no evidence of fraud nor of any ulterior motive.

The actual situation is that the commissioners did not view and consider all of the relevant facts until a public controversy was generated. Under these circumstances I believe that the decision of this case depends upon whether there are sufficient facts in evidence to make the action of the com-; missioners reasonable. It seems to me that the main issue has been beclouded by the efforts of the petitioners to spell out from preliminary negotiations and commitments some binding obligation or at least some disqualifying conduct rendering the action of the commissioners illegal. Indeed some such notion was entertained by the Court and counsel on both sides in framing the issues and in the trial; but it now becomes clear to me that we were pursuing a collateral or even an irrelevant angle of the case.” In Maryland since the Act of 1858, Code, Art. 60, sec. 7, and apparently since (if not before) 1806, Art. 60, sec. 1; Eichelberger v. Sifford, 27 Md. 320, 329 , whenever under the Act of 1828, ch. 78, or the Statute of 9 Anne, ch. 20 any issue of fact could be tried on application for mandamus (Poe, Practice, 5th Ed., § 711), “such issue of fact shall be tried by a jury if either party desire it; but they may be heard or determined by the court if both parties agree”.

In the instant case it may be inferred that “both parties agreed” that any material or pertinent issues, other than those submitted to the jury by agreement (and those “proposed” by petitioners but “denied” by the court), not inconsistent with the jury’s verdict, might be “determined by the court”. It does not appear that “both parties agreed” that any other issues might be determined by the court. If any of the issues submitted to the jury were material or pertinent, the verdict (if supported by evidence) cannot be nullified- by contrary findings by the court. ¹⁶ We agree with the lower court that nothing in the preliminary negotiations created, or could create, any binding obligation to issue the permit. Unless “promise and agree to issue” can be construed in a non-contractual sense, e. g., as meaning “give assurance of their intention to issue”, the second issue submitted to the jury was immaterial and the verdict unsupported by evidence.

We are, however, unable to agree with the lower court as to the significance of the issues submitted or (in the light of the verdicts) of the evidence. The first issue, and the second (if construed non-contractually as suggested), are not decisive but are pertinent as evidentiary support on the third issue, and the verdicts are supported by evidence. The third issue is material and the verdict is contrary to the opinion of the lower court. We think the verdict is supported by evidence and (in connection with the undisputed facts and the verdicts on the other issues) establishes that defendants’ action in denying the permit was arbitrary and unlawful.

To determine the legal sufficiency of the evidence to support the verdicts it is not necessary to review in detail the voluminous testimony, since (1) in both the pleadings and the testimony the field of disputed facts is narrow and (2) where there is conflict, the testimony most favorable to the verdict must be accepted. Certain undisputed facts (averred in the petition or the answer but'not yet mentioned) were stipulated, and