Martin and Burch v. Mayor and Aldermen of Annapolis

Barnes, J., delivered the opinion of the Court. The three appeals and cross-appeals, Nos. 64, 65 and 66, September Term, 1967, consolidated for briefing pursuant to the order of the Court, and argued together, represent the three last legal battles in a campaign by various property owners and of Historic Annapolis to prevent the construction by Hospitality House of Annapolis, Inc. (Hospitality House), one of the appellees, of a hotel with restaurant and parking facilities on waterfront land on Annapolis harbor on the east side of Compromise Street at the foot of St. Mary’s Street. Another aspect of the controversy was before us in Martin v. Mayor and Aldermen of Annapolis, 240 Md. 579 , 214 A. 2d 800 (1965). For convenience, we will refer to No. 66 as the “Zoning Appeal Case,” to No. 64 as the “Height Case” and to No. 65 as the “Hotel Case.” We will consider them in that order in this opinion.

The Zoning Appeal Case (No. 66) The hotel site involved in the litigation is on waterfront land in the City of Annapolis on the east side of Compromise Street at the foot of St. Mary’s Street. It is leased by Hospitality House from The Yacht Basin Company, a Maryland corporation. It is located within that portion of Annapolis zoned as a Maritime District. It is also within the Historic Area of Annapolis established by Section 6-13 of the Annapolis City Code (1960 Edition).

This Historic Area covers a section of the downtown and harbor area of Annapolis. A Board of Review was authorized by that section of the Code “to review the appropriateness of exterior architectural features of buildings and structures” thereafter erected in the Historic Area and to make recommendations thereon. Much of the same area has been designated as a National Historic Landmark. ⁵⁵⁴ The original building permit was issued on May 22, 1964, to Hospitality House for the construction of a hotel on the site in question. Filed with the application were plans for a proposed seven-story hotel with 137 rental units and a one-story restaurant located in the northeastern part of the site.

On the southwestern part of the site a portion of the parking area for guests of the hotel was proposed to be provided by an elevated parking deck. There were also additional parking spaces at ground level on the northwestern portion of the site, adjacent to the hotel, but separate and apart from the elevated deck. There were a total of 140 parking spaces. Hospitality House was notified on May 27, 1964, by the May- or of Annapolis and the City Engineer that the Mayor and Aldermen of Annapolis (the Council) had adopted a resolution “cancelling” the permit.

This cancellation of the permit resulted from the failure of the City Engineer to submit the plan to a Board of Review in accordance with Sections 6-33 to 6-40 of the City Code. All of the terms of the members of the Board of Review had expired in 1960, and no new members had been appointed. The City Attorney ruled that the Board of Review could still act and the Board of Review advised the Mayor that it disapproved the plans. Section 6-39 of the City Code, however, provides that disapproval by the Board of Review shall not be cause for the denial of the permit if the application otherwise complied with the provisions of the City Code.

Captain William A. P. Martin, his wife, and other residents and taxpayers, the appellants, on June 1, 1964, filed two administrative appeals; one to the Zoning Board of the City setting up certain alleged violations of the zoning ordinances in the issuance of the permit, and the other to the City’s Board of Appeals (the “Building Board”) established under Section 107.1 of the National Building Code (the National Building Code is incorporated by reference into the City Code by Section 6-13 of the City Code) stating certain reasons why the application allegedly did not comply with provisions of the City’s Building Code. Among other things, it was alleged in the appeal to the Zoning Board that the use as a hotel and certain other facilities shown on the plans was not permitted in the Maritime Dis ⁵⁵⁵ trict, that the building exceeded the height limitations and that there were insufficient parking spaces. After a hearing, the Zoning Board on August 3, 1964, ruled that the application should have been denied because it found that the application contemplated certain commercial uses, not accessory to a hotel, which were not permitted in the Maritime District and the building permit should not have been issued until an accessory parking permit was issued. The Zoning Board, however, also indicated that hotels and accessory restaurants were permitted uses in the Maritime District and that in all respects, other than those noted, the application complied with the Zoning Code.

Section 26-40 of the City Code gives any aggrieved party a right to appeal to the Circuit Court for Anne Arundel County from a decision of the Zoning Board, but none of the parties appealed from its decision. On August 4, 1964, the Building Board dismissed the companion appeal on the ground that it was “moot” in view of the decision of the Zoning Board on August 3 and again none of the parties appealed. On August 10, 1964, Hospitality House reapplied for a building permit and in its new application stated that it was “not making application for any commercial facilities on the subject property, except for a hotel or motor inn and restaurant.” On the same date, Hospitality House also applied to the Council for a parking permit “as an accessory use to the hotel or motor inn to be erected.” The issuance of the parking permit by the Council was attacked in an equity suit and this permit was the subject matter of the prior appeal in Martin v. Mayor and Aldermen of Annapolis, 240 Md. 579 , 214 A. 2d 800 (1965), supra. A new building permit was issued to Hospitality House on October 6, 1964, and on October 14, 1964, the same persons who had instituted the prior administrative appeals filed two new appeals to the Zoning Board and to the Building Board, alleging as grounds for the respective appeals substantially the same grounds as those alleged in the prior appeals.

At the second hearing before the Zoning Board the appellants offered as their only evidence the transcript of the first hearing together ⁵⁵⁶ with certain exhibits introduced by them at the first hearing and the new application. The Zoning Board on December 31, 1964, rendered its decision affirming the issuance of the permit, stating, inter alia, that it “adheres to its prior decision that a hotel or motel is permitted in a maritime zone,” and that the “building falls within the height exceptions set forth in Section 26-32 of the City Code and is therefore not subject to the height regulations provided in Chapter 26.” Section 26-32 of the City Code provided that “fireproof hotels” were excepted from the 50 foot height limitation otherwise applicable to buildings in Maritime Districts and under Section 26-31. An appeal was taken from the decision of the Zoning Board to the Circuit Court. Prior to the decision of the Zoning Board the Council on December 14, 1964, amended Section 26-32 of the City Code to provide that no building in the Historic Area could exceed 45 feet in height but that the ordinance “shall not apply to any construction for which application has been made for a building permit prior thereto, and further shall not apply to any proposed construction currently the subject of appeal to administrative agencies of the City of Annapolis or to the Circuit Court for Anne Arundel County, such construction to be subject to ordinance relating to height in effect at the time of such appeal.” The Building Board in a decision rendered on March 8, 1965, upheld the issuance of the permit as having been properly issued under the provisions of the City Building Code.

No appeal was taken from this decision of the Building Board. At the time of the decision of the Zoning Board on December 31, 1964 (and also on August 3, 1964) Chapter 26 of the City Code in regard to zoning provided that the City of Annapolis was divided into nine use classifications in descending order: Residential, Educational and Cultural, Civic, Community Shopping Center, Personal Service, Retail Business, Commercial, Industrial and Maritime. The system of classification adopted was to list in a separate section the “permitted uses” in each district followed by another section setting forth the “prohibited uses” within the same district. Section 26-6 provides that the uses listed in the sections setting forth the “per ⁵⁵⁷ mitted uses” within a district are “known by the names opposite the respective sections and items” for purposes of reference throughout the Chapter.

To illustrate how this system of classification operates, the “residential uses” in the Chapter are those listed in items 1 through 22 of Section 26-10. This section begins by stating: “In all residential districts, land and buildings shall be used, and buildings shall be arranged, intended and designed to be used for one or more of the following specified uses.” Then follow the items of residential use including dwellings, apartment houses, churches, etc. These “residential uses” are then referred to in other sections of the City Code as “residential uses” for purposes of identification. For example, in Section 26-19(a) 1 it is provided that a residential use is prohibited in a Personal Service District and Section 26-26(1) provides that residential uses are prohibited in an Industrial District. Maritime Districts are established by Sections 26-27 and 26-28.

Section 26-27 provides, in relevant part, as follows: “Maritime districts — Permitted uses. In all maritime districts, land and buildings shall be used and buildings shall be arranged, intended or designed to be used, for any one or more of the following specified uses: 1. Boat anchorage 2. Boat building 3.

Boat houses * * * 9. Cabinet working 10. Carpenter shops 16. Plumbing shops 21.

Welding 23. Seafood processing. “Sec. 26-28 Same — Prohibited Uses. In a maritime district, land and buildings shall not be used and buildings shall not be arranged, intended ⁵⁵⁸ or designed to be used for any one or more of the uses prohibited in industrial districts, items 5 to 32.” Turning to Section 26-26, the Prohibited Uses in an Industrial District, we find the following: “1. Residential uses 2.

Educational and cultural uses 3. Community shopping centers 4. Personal service uses 5. Abattoir or stockyard 6.

Acetylene gas manufacture 7. Acid manufacture * =1= 31. Tannery * * *.” (Emphasis supplied). A “Hotel” is listed as a permitted “personal service use” in ■Section 26-19 (c) 2.

Section 26-8 provides as follows: “In any case where it is not clear from the provisions of this chapter that a proposed use is intended to be prohibited in a district, the provisions of that section setting forth the uses permitted in that district shall prevail and if the proposed use is not one in the list of those permitted, it shall be prohibited as though it were included in the prohibitions. The method of naming the uses permitted in a district, followed immediately by naming the uses prohibited in that district, is intended for clarity and to promote the definitive application of the regulations.” While the appeal from the Zoning Board decision of De'cember 31, 1964, was pending in the Circuit Court, the Council ■on November 15, 1965, enacted the following amendment to ..Section 26-27 (Maritime districts — permitted uses) : “WHEREAS, the Mayor and Aldermen of the City of Annapolis have been advised that some question has been raised as to whether or not a hotel or motel ⁵⁵⁹ is a permitted use in a Maritime District under Section 26-27 of the Code of the City of Annapolis. “WHEREAS, the Mayor and Aldermen of the City of Annapolis believe that a hotel or motel is a permitted use within such a Maritime District under the existing provisions of the Code of the City of Annapolis, and the purpose of this Ordinance is to dispel any doubt or clarify any ambiguity which may have existed prior to the passage of this Ordinance by specifically naming a hotel or motel as a permitted use within such a district, subject to the limitation hereinafter provided; and “WHEREAS, the Mayor and Aldermen of the City of Annapolis further desire by the passage of this Ordinance to restrict or limit those types of hotel or motel structures which may be erected or constructed in a Maritime District to those structures which have 100 rooms or more as it is believed that such structures will more adequately serve the public convenience and necessity for hotel or motel accommodations and will more nearly promote the public welfare as such types of hotels or motels are generally modern, fire-proof structures which more adequately serve the public interest. “SECTION I: BE IT ESTABLISHED AND ORDAINED BY THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS that Section 26-27 of the Code of the City of Annapolis (1960 Edition), title ‘Zoning’, subtitle ‘Maritime districts— Permitted uses’ is hereby amended by adding Paragraph 24 to follow immediately after Paragraph 23 of said Section, and to read as follows: Section 26-27 Maritime districts — Permitted uses. “24. Hotels or motels having 100 or more rooms together with uses accessory thereto such as a restaurant and a swimming pool.” ⁵⁶⁰ The Zoning Board held that a hotel use was permitted in a Maritime District and Chief Judge Macgill in the Circuit Court filed a carefully considered opinion and affirmed the Zoning Board’s decision holding that the purpose of Section 26-28 was to prohibit in Maritime Districts only those uses which were prohibited in Industrial Districts by items 5 to 32 in Section 26-26. We agree and will affirm the lower court’s order of October 7, 1966, affirming the Zoning Board.

The Annapolis Zoning ordinance, as we have seen, follows the usual form in setting forth the zoning districts on a descending scale. It begins with the most restricted district — Residential — and proceeds through Institutional, various classes of Commercial, then to Industrial and ends with the Maritime District. The Personal Service District precedes the Maritime District in the listing of districts, so that it is reasonably concluded that the Personal Service District was considered to be a lighter use district than