Comm'rs of Cambridge v. Henry

Hammond, C. J., delivered the opinion of the Court. The City of Cambridge proposed to build in a waterfront park adjacent to a public marina, both owned by the City, a structure 40 x 24 feet, 22 feet high, of customary materials, to contain on the second floor living quarters for a resident dockmaster and on the first floor a small laundry room and men’s and women’s shower rooms and toilets (all for the primary convenience of boat slip lessees), and a small office in which the dock-master could handle the leasing of slips and the collection of rentals and other transactions incident to the marina, and a small storage area for marine supplies. When a permit for the construction of the structure was issued by the City engineer and approved by the town Commissioners, W. Laird Henry, Jr. (a former judge of the Circuit Court for Dorchester County) and several of his neighbors filed a bill to enjoin the proposed construction, claiming that (1) the selection of the site was an arbi ³⁷² trary and capricious exercise of administrative discretion (because it would impose on the complainants “an immediate substantial and irreparable injury”) ; (2) the proposed location and proposed use would be in violation of the Zoning Ordinance of Cambridge (Ordinance No. 310 adopted May 18, 1964 pursuant to the authority conferred by Art. 66B of the Annotated Code of Maryland as it stood in 1964) (because (a) the site was in an R-4 zone in which commercial uses are not permitted, (b) the matter should have been referred to the Board of Appeals, and (c) no offstreet parking was to be provided) ; (3) the proposed facility would create a public nuisance and safety hazard (because of the lack of parking space) ; and (4) the proposed facility would place an unreasonable burden on the complainants (because “it would depreciate the value” of their property and “unnecessarily interfere with their enjoyment of their said property as the same has been zoned and protected by the law”). Judge Mace enjoined the construction as prayed.

We think he erred in so doing. As we see it, the complainants offered no probative evidence that the selection of the proposed site was an arbitrary, capricious or unreasonable exercise of power or discretion or that the building or its uses would constitute a nuisance or, indeed, that the value of the properties of the complainants would be depreciated. The matter comes down to whether the building or its proposed uses would be in violation of the zoning ordinance, the question decided by Judge Mace in favor of the complainants. The zoning ordinance provides that such a question is to be decided initially by the Board of Appeals set up by Art. XXII of the ordinance, with statutory judicial review under Art. XXIII of the ordinance by the Circuit Court, if an appeal from the Board is noted, and a similar review by the Court of Appeals.

Article XXIV provides that before any building is constructed in Cambridge, an application supported by plans and specifications shall be submitted to the City Engineer and: “If the application conforms in all re ³⁷³ spects with the requirements of this Ordinance, the City Engineer shall approve and certify same to The Commissioners of Cambridge for the issuance of the permit.” The testimony seems to indicate that the practice of the Commissioners is to formally approve a permit in the same fashion as if they were enacting a law and that the practice was followed in this case. Section 2 (1) of Art. XXII of the ordinance gives the Board power: “to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this Ordinance.” Section 3 provides : “Appeals to the Board of Appeals may be taken by any person aggrieved, or by any officer, department, board or bureau of the municipality affected by any decision of the City Engineer. Such appeal shall be taken within a reasonable time, as provided by the rules of the Board, by filing with the City Engineer and with the Board of