Gingell v. Board of County Commissioners

Marbury, J., delivered the opinion of the Court. This appeal from the Circuit Court for Prince George’s County is concerned with the validity of a zoning classification placed on part of the appellant’s property included in a 1949 comprehensive zoning ordinance. The subject property, known as 8510 Baltimore Avenue, College Park, Prince George’s County, Maryland, is situated in the Twenty-first Election District of Prince George’s County. It is a rectangular lot approximately 125 feet by 300 feet and contains 37,500 square feet.

The plaintiff-appellant is fee simple owner of the property as surviving widow of L. C. Gingell, deceased. The zoning classification complained of does not include the entire lot but only a portion in the rear, being about 75 feet by 125 feet in area. In January of 1928, the plaintiff’s husband filed a petition to have the entire lot zoned “Commercial D”, the equivalent of the present C-2 (General Commercial) classification. In January of 1929 this petition was approved.

On November 29, 1949, the defendant-appellee adopted a comprehensive zoning ordinance that, among other things, changed the classification of the above described portion of the appellant’s property from C-2 to R-R (Rural Residential). On March 3, 1967, the appellant filed a bill of complaint seeking to have the Circuit Court, under Code (1957), Article 31A declare the 1949 zoning to be “an unlawful taking of Plaintiff’s private property for public use” and also to issue an injunction against the defendant, “restraining said Defendant from interfering with the use by Plaintiff of the westerly portion of the subject property, measuring 75 feet by 125 feet, as property zoned for the C-2 (Gen ³⁷⁶ eral Commercial) use.” The appellee demurred to the bill of complaint for the reason, inter alia, “That Plaintiff has failed to avail herself of current administrative remedies provided by statute in zoning matters.” A hearing on the demurrer was held before Judge Powers, who subsequently issued an opinion and order sustaining the demurrer and dismissing the bill of complaint. It is from that order that this appeal was taken. In her brief and oral argument the appellant recognizes the rule enunciated in the recent case of Poe v. Baltimore City, 241 Md. 303, 308 , 216 A. 2d 707 (1966) where this Court said: “There are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them.

However, an analysis of our decisions shows that, while the principle may not bar court action under certain circumstances, the rule generally applies where the constitutional issue raised goes, not to the validity of the zoning ordinance as a whole, but to its application in a particular case, and where the administrative remedy is adequate.” In this case, as in Poe , the validity of the ordinance as a whole is not attacked but only its validity as applied to the appellant’s property. The appellant, however, attempts to