Boulden v. Mayor & Commissioners

MURPHY, Chief Judge. This case involves a claimed conflict between two legislative enactments, each purporting to govern the right of appeal to a circuit court from decisions of a board of appeals. One enactment is a public general law, codified as Maryland Code (1957, 1983 Repl. Yol.), Article 66B, § 4.08(a), which provides: “Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals, or by a zoning action by the local legislative body, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, may appeal the same to the circuit court of the county.

Such appeal shall be taken according to the Maryland Rules as set forth in Chapter 1100, Subtitle B.” The other enactment, § 4 of Article 4 of the Town of Elkton Zoning Ordinance, limits the right of appeal to those, including taxpayers, who are “aggrieved” by the decision of the board of appeals. 1 I David W. Boulden is a taxpayer and property owner in Elkton, Maryland. Roland Baltazar, Eugene Herman, and Roger Meldrom are also property owners in Elkton. During December 1985 and the early months of 1986, Baltazar, ⁴¹³ Herman, and Meldrom, in separate applications, requested variances for their properties under the Elkton zoning ordinance. At each hearing before the Elkton Board of Appeals on the variance applications, Boulden appeared and spoke in opposition.

The Board granted all three variances. Boulden appealed to the Circuit Court for Cecil County, contending, inter alia, that the Board improperly relied on past illegal variances to justify its actions. Asserting that Boulden lacked standing to appeal because he was not “aggrieved,” as required by the Town’s zoning ordinance, Baltazar, Herman, and Meldrom each moved to dismiss the respective appeals. The court (Rollins, J.) granted the motions.

Relying largely on Bryniarski v. Montgomery Co., 247 Md. 137 , 230 A.2d 289 (1967), it reasoned that the more stringent provision governing the right to appeal contained in the Elkton ordinance prevailed over the public general law, Article 66B, § 4.08(a). Since the ordinance required aggrievement as a condition of the right to appeal, and because Boulden had not demonstrated that he was “aggrieved,” dismissal was held proper. 2 The Court of Special Appeals, in an unpublished opinion, affirmed the judgments. We granted certiorari to consider whether, in light of the public general law, the Town of Elkton, by ordinance, may so restrict the right of appeal. II The Municipal Express Powers Act, Maryland Code (1957, 1987 Repl.Vol.), Article 23A, provides in § 2 that the legislative body of every incorporated municipality in this State “shall have general power to pass such ordinances not ⁴¹⁴ contrary to the Constitution of Maryland, public general law ... [or] public local law as they may deem necessary____” Resolution of the present controversy requires that we first determine whether § 4.08(a) gives to a taxpayer the right of appeal from a board of appeals notwithstanding lack of aggrievement.

If it does, the question becomes whether § 4 of Article 4 of the Elkton ordinance is contrary to § 4.08(a) and thus in violation of Article 23A, § 2. (A) In interpreting § 4.08(a) we seek to ascertain and effectuate legislative intent, the primary source of which is the language of the statute itself. In Re Ramont K., 305 Md. 482, 484 , 505 A.2d 507 (1986). This language must be given its natural and ordinary signification, bearing in mind the statutory aim and objective.

Kaczorowski v. City of Baltimore, 309 Md. 505 , 525 A.2d 628 (1987). Section 4.08(a) enumerates, in the disjunctive, those who have standing to appeal a decision of the board. Aggrievement is required of only one of the enumerated alternatives, namely, “[a]ny person or persons.” All others, including the alternative “any taxpayer,” are set forth without this requirement. Quite recently, construing a similar disjunctive phrase, we emphasized that the word “or” serves to establish a contrasting or opposing relationship and to set apart the described alternatives.

Carolina Freight Carriers Corp. v. Keane, 311 Md. 335 , 534 A.2d 1337 (1988). Hence, giving the language of § 4.08(a) its natural and ordinary meaning, no conclusion is possible other than that the legislature intended to give a taxpayer standing to appeal notwithstanding lack of aggrievement. The Court of Special Appeals has twice had occasion to interpret § 4.08(a) and in both cases held, as we now hold, that this section does not require that a taxpayer be aggrieved in order to maintain an appeal. See Clise v. Phillips Coal, Inc., 40 Md.App. 609, 613 , 392 A.2d 1177 (1978); Stephans v. Board, ⁴¹⁵ 41 Md.App. 494, 498 , 397 A.2d 289 , rev’d on other grounds, 286 Md. 384 , 408 A.2d 1017 (1979). 3 (B) It is, of course, axiomatic that a municipality may be given power to legislate concurrently with the General Assembly.

Rossberg v. State, 111 Md. 394 , 74 A. 581 (1909). In cases of conflict, however, the public general law must prevail, a rule we enunciated in Rossberg at 116, 74 A.2d 581 (quoting 28 Cyc. 701) to determine when conflict in fact exists: “ ‘Such ordinances must not directly or indirectly contravene the general law. Hence ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void....”’ The alleged conflict in Rossberg was between a public general law that forbade the sale of cocaine and a City of Baltimore