Lunter v. Laudeman

Barnes, J., delivered the opinion of the Court. The principal questions in this case involve the scope of an appeal to the Mayor and Aldermen of the City of Annapolis (the City) from a decision of the Port Wardens of the City under Section 40 of the Charter of the City, and the sufficiency of the evidence presented to support the decision reached by them on such appeal. ²⁰⁵ James D. Laudeman, Jr., the appellee, (Laudeman) has legal title to a lot in the City of Annapolis which fronts on Weems Creek on the west side of the foot of Tucker Street, between Tucker Street and Annapolis Street. It contains 1.31 acres and is improved by a dwelling house which fronts on the west side of Tucker Street. The Weems Creek frontage was originally 159.36 feet at the natural shore line.

When the concrete bulkhead which the evidence showed was in the process of construction is completed, the Weems Creek frontage will be 184.82 feet. 1 The lot is zoned Residential C. On June 30, 1966, Laudeman filed an application with the Port Wardens to erect a pier 6 feet wide and 90 feet long, with mooring piles, extending into Weems Creek in a northwesterly direction at right angles to a portion of the concrete bulkhead. At the hearing before the Port Wardens on July 14, 1966, Laudeman, who resides at Glyndon, in Baltimore County, testified that there were three other persons who had an interest with him in the lot, Messrs. Frey, Forbes and Gavin, all of whom had sailboats, as he did, 35 feet in length. He made it clear that there was no intention to make the property or the proposed pier into a commercial marina, but that the 90 foot pier was needed so that he, his associates and the tenant on the property would have sufficient depth of water for their boats which draw approximately five feet of water.

He also indicated that he and his associates were seeking to improve the appearance of the property and in doing this, would add to the attractiveness of the neighborhood. There was testimony before the Port Wardens that the pier would have 11 or 12 slips for boats. There were several neighboring property owners who objected to the granting of the license (or permit) to Laudeman. After consideration, the Port Wardens, by a unanimous decision, approved a 62 foot pier with four permanent slips.

Laudeman did not appeal this decision by the Port Wardens pursuant to Section 40 of the Charter, but the protesting neighboring property owners did appeal to the Mayor and Aider-men of Annapolis. ²⁰⁶ Sections 36 and 37 of the Charter of the City provide for the appointment of not less than three nor more than five persons by the Mayor and Aldermen as Wardens of the port of the City. These Port Wardens are removable at the pleasure of the Mayor and Aldermen and take a prescribed oath that they “will discharge the trust of warden[s] of the port of the City of Annapolis to the best of my ability, without favor, affection or partiality.” Under Section 36, these Port Wardens were duly appointed and qualified. One of them is William R. Jackson, the City Engineer. Sections 38, 39 and 40 of the Charter are the important sections for this case and are as follows: Sec. 38 (Port Wardens) Powers generally. “The wardens, or a majority of them, shall home power to determine upon and regulate all nmtters relating to the erection or building of wharves in the said port, so jar as respects the distance said wharves may be extended into■ the water, and the materials of which they shall be constructed, and the manner and form of construction, always keeping in view the preservation of the navigation of said port by not permitting any wharf to be carried out in such manner as to render the navigation of the same too close and .confined, or to be built of such materials or constructed in such manner as may be deemed not sufficiently substantial and lasting.” Sec. 39.

Same—License to build wharf, etc. "No person holding lands on the waters of said port, nor any person whatever, shall build any wharf, or carry out any earth or other material for that purpose without license from said wardens, or a majority of them, to do the same; and if any persons shall offend against the provisions of this section, or if any person shall build any wharf a greater distance into the waters of said port, or in a different form, or of different materials than determined and allowed by the wardens, or a majority of them, he shall be subject to such fine as the mayor and aldermen may ordain.” ²⁰⁷ Sec. 40. Same—Appeals to mayor and aldermen. “In all differences that shall arise between any citizen of Annapolis and the said wardens, touching the discharge of their duty, an appeal shall lie to the may- or and aldermen(Emphasis supplied.) Two hearings on the appeal took place before the Mayor and Aldermen. One was held on August 29, 1966, at 8:00 p.m., at which extensive evidence was taken and arguments presented. The other hearing was held on September 12, 1966, at 8:00 p.m., and was, in effect, a continuation of the first hearing.

The vote of the Mayor and Aldermen was taken upon a motion to reduce the length of the pier to 55 feet with no more than two permanent slips. The motion was passed unanimously. Eaudeman, thereafter on October 13, 1966, filed a bill of complaint in the Circuit Court for Anne Arundel County praying for a declaration that the action of the Mayor and Aider-men in reducing the length of the pier and the number of slips be declared to be arbitrary, capricious, unreasonable, illegal, null and void and in excess of the power granted by Sections 36 through 40 of the Charter, for a mandatory injunction directing the Mayor and Aldermen and the Port Wardens to issue the permit for a 62 foot pier without restriction as to the number of permanent slips and for other relief. The appellants, Frank Lunter and Evelyn Eunter, his wife, nearby property owners, were permitted by the Chancellor to intervene as parties defendant.

After answers were filed and a hearing was held, the Chancellor (Sachse, J.) filed a well considered opinion indicating that the action of the Mayor and Aldermen was null and void and the action of the Port Wardens was proper. On September 27, 1966, the Chancellor passed a final decree in accordance with his opinion, directing that the license for the 62 foot pier with four permanent slips be issued by the Port Wardens and requiring the costs to be paid one-half by Eaudeman and one-half by the intervening defendants. Mr. and Mrs. Eunter took a timely appeal to this Court from this decree. Eaudeman took no cross appeal.

In our opinion (1) the Mayor and Aldermen were confined to a review of the decision of the Port Wardens within the scope ²⁰⁸ of the powers, granted to the Port Wardens by Section 38 of the Charter and (2) there was no legally sufficient evidence to support the action of the Mayor and Aldermen in reducing the length of the pier and the number of slips. The Chancellor’s decree will be affirmed. (1) Section 38 of the Charter of the City confers power on the Port Wardens to determine upon and regulate all matters (1) relating to the erection or building of wharves in the port; (2) the distance the wharves extend into the water; and (3) the materials of which the wharves are constructed and the manner and form of such construction. All of these powers are subject to the overriding purpose of the grant of power, i.e., keeping in view (a) the preservation of the navigation of the port by not permitting any wharf to render navigation too close and confined or (b) to be built of such materials and constructed in such a manner as will be deemed not sufficiently substantial and lasting.

This is the scope of the grant of power by the General Assembly to the Port Wardens. In Section-29 of the Charter, granting general powers to the Mayor and Aldermen, power is given to “enact all laws and ordinances necessary to preserve the health of the city; * * * to provide for the appointment, and define the duties of city commissioner, police officers * * * hcurbor masters * * * and all other officers whom they may create, and to define their duties and compensation; * * * to cause a survey * * * of the city, its harbor, streets * * * to be made; * * * to declare and adjudge as nuisances any encroachments on the streets, lanes and alleys, and cause the same to be removed at the expense of the person offending; * * * and generally for promoting and securing the good government of the city.” (Emphasis supplied.) There is no general grant of powers in regard to the Port Wardens, whose powers and duties are governed by Sections 36 to 40 of the Charter. 2 1 Section 40 grants the right of appeal from the decisions of the Port Wardens to the Mayor-and Aldermen. The language ²⁰⁹ of this somewhat unusual provision in regard to an appeal is of importance in this case. The scope of the appeal is set forth in Section 40 where it provides “In all differences that shall arise between any citizen of Annapolis and the said wardens, touching the discharge of their duty, an appeal shall lie to the Mayor and Aldermen.” (Emphasis supplied.) This language limits the appeal to the duties imposed upon the Port Wardens by Section 38, which, as we have indicated, are three in number subject to two overriding purposes.

There is no attempt by Sections 36 to 40 to invest the Port Wardens with the exercise of any portion of the police powers other than that specifically granted and this would appear to be a logical arrangement, as the exercise of other portions of the police power is granted to other officials specially qualified to exercise those other powers, as we shall point out. The Port Wardens do not have any power to enforce or construe any applicable zoning laws or regulations. These zoning ordinances appear in Chapter 26 of the Code of the City and have an entire and complete system of enforcement entirely apart from any power exercised by the Port Wardens. Appeals under the zoning ordinances of the City must be taken to the Board of Appeals as provided for in Sections 26-38 and 26-39 of the Code.

This Board of Appeals was created pursuant to a specific grant of legislative power by the General Assembly in the Act of 1933, Chapter 599 (Code (1957), Art. 66B, Secs. 10-37). Section 26-38(a) of the City Code recites that the Board of Appeals is created in accordance with that Act. We, and our predecessors, have held that the zoning powers of municipal corporations are derived from the State Enabling Acts and not from any general grant of the State’s police power to municipal corporations. See Gino’s, Inc. v. Mayor and City Council of Baltimore, 250 Md. 621, 630-31 , 244 A. 2d 218, 223-24 (1968) and Maryland cases cited therein.

The enforcement of the police powers in regard to health is provided for in Chapter 14 of the Code of the City. This enforcement power is given to the health officers and no part of that power is given to the Port Wardens. It is apparent to us that the provisions of the Charter clearly define the scope of the powers and duties of the Port Wardens ²¹⁰ and thus confine such powers and duties to those set forth. They were not intended to include the exercise by the Port Wardens of any other police powers of the City.

Section 40, effectively, by its terms, confines the scope of the appeal to the Mayor and Aldermen to “differences * * * touching the discharge of their duty” and the Mayor and Aldermen may not lawfully go beyond that scope of appeal. We do not reach or decide whether by appropriate charter amendment or otherwise, the scope of appeal could be broadened. Our construction of Sections 38 and 40 of the Charter is fortified by a consideration of the legislative history of these sections. Sections 38 and 40 as well as Sections 36, 37 and 39 were first passed by the General Assembly by the Act of 1785, Chapter 26.

The language of Section III of the Act of 1785 is identical in all relevant respects to the present language of Section 38 as is the language of Section VIII of that Act with the present language of Section 40. 3 The Act of 1785, Chapter 26 contains the following preamble : “Whereas the dispatch and ease of vessels in taking and discharging their lading depends to a considerable degree upon the convenience afforded by proper wharfs; And Whereas certain rules and regulations are necessary to enable the