Mayor of Annapolis v. Anne Arundel County

Barnes, J., delivered the opinion of the Court. The principal questions presented to us for resolution in this appeal arise out of the construction and application of the provisions of Maryland Code (1957, 1970 Repl. Vol.) Article 66B, §§ 8.01 through 8.15, under the subtitle “Historic Area Zoning” and Chapter 22, Article XI, “Historic District,” Sections 22-226 through 22-236 of the Annapolis City Code, implementing in substantially the same basic language that which is contained in Art. 66B, §§ 8.01 through 8.15, insofar as these provisions relate to the Mt. Moriah African Methodist Episcopal Church (Mt.

Moriah), located on Franklin Street in the City of Annapolis and owned by Anne Arundel County. 1 Mt. Moriah was built in 1874 at its present location at 82-84 Franklin Street to the rear of the Courthouse in ²⁶⁸ Annapolis. The congregation, however, was organized in 1799 and consisted of free blacks rather than those held in slavery. The cornerstone of the present church building is dated 1816 and was the cornerstone of an earlier church structure built by the Mt.

Moriah congregation. As will be more fully developed later in this opinion, Mt. Moriah is a significant symbol of black society and of the accomplishments of free black persons surrounded, as it were, by conditions of chattel slavery and racial discrimination. Historic Annapolis, Inc., a private organization, conducted a survey in 1970 of historic structures in the City of Annapolis under the direction of duly-qualified specialists.

Their material was submitted to a “jury” of qualified architects and architectural historians and Mt. Moriah was given the highest rating of “outstanding.” 2 As a result of a nomination made by the State of Maryland, through the Governor’s Advisory Commission on Historic Preservation, Mt. Moriah was identified and placed on the National Register of Historic Places. The description in the nomination — accepted by the National Register of Historic Places, an agency of the Federal Government — stated, in part: “Mt.

Moriah Church is an exceptional example of small scale Victorian Gothic Ecclesiastical architecture, and is an important contribution to the architectural collection of Annapolis. . . . Mt. ²⁶⁹ Moriah is one of Annapolis’ hidden architectural treasures, is of paramount importance in black history, and should be preserved at all costs.” Although the exterior of the church building is in need of “some masonry (namely pointing) and window frame and cornice repair,” the building generally appeared to be in good condition. After negotiations with the Trustees of Mt. Moriah, it was purchased by the appellee, Anne Arundel County (the County), by a deed dated May 28, 1970, and duly recorded among the land records of Anne Arundel County.

At that time, Mt. Moriah was not included within the boundaries of the Historic District of the City of Annapolis, but was included in that District shortly after its purchase by the County. One of the appellants, the Mayor and Aldermen of the City of Annapolis, established the Historic District Commission of the City of Annapolis (the Commission), pursuant to Art. 66B, § 8.03, as well as the Historic District within the City of Annapolis in accordance with the “Historic Area Zoning” enabling act, Art. 66B, §§ 8.01 through 8.15. Article XI, “Historic District,” Sections 22-226 through 22-236 of the Code of the City of Annapolis, was submitted to a referendum of the voters in the City of Annapolis at the general election of 1969 and was ratified by the electorate.

On September 27, 1972, the Mayor and Aldermen of the City of Annapolis filed a suit in equity (Equity No. 21050) in the Circuit Court for Anne Arundel County, seeking to enjoin the County from awarding a contract for the demolition of Mt. Moriah and from demolishing it and also seeking a declaratory decree that the County must comply with the Historic District Ordinance of the City of Annapolis, Art. 66B of the Maryland Code, and the Building Code of the City of Annapolis. On June 7, 1973, the County did apply for a permit with the Building Inspector’s Office of the City to demolish Mt. Moriah.

No further proceedings have been taken in that suit. ²⁷⁰ The demolition permit filed by the County was sent by the Building Inspector to the Commission in accordance with the provisions of the Historic District Ordinance and the established practice. The Commission thereafter gave the usual notice of the filing of the application by the publication of its standard advertisement for a public hearing on the application. The County appeared at the public hearing on June 20, 1973, and was represented at that hearing by Robert Strott, Director of Administration for the County. At the June 20 hearing, substantial testimony was taken and documentary evidence was submitted by a number of individuals and organizations in opposition, including two of the appellants, the Maryland Historical Trust and the Maryland Commission on Negro History and Culture.

This testimony and supporting documents detailed the historical and architectural merits of Mt. Moriah and its particular relevance to the black community. There was also evidence submitted indicating alternative methods for the construction of the proposed parking facility without demolishing Mt. Moriah.

The County, however, offered no evidence concerning the historical or architectural merit of Mt. Moriah or its relevance to the black community. Mr. Strott testified in regard to the proposed use of the site on which Mt. Moriah is located for a parking structure and possible expansion of the courthouse and related facilities now in the courthouse.

Since the County’s testimony clearly indicated that it had developed only preliminary plans, it was impossible to state whether the site occupied by Mt. Moriah would be used for parking facilities, an addition to the courthouse, or a combination of both. It was stated that if the Commission were to grant the demolition application, the County would use the site in question,for a temporary parking area until such time as the County could devise final plans for the utilization of the space. Mr. Strott testified that Mt.

Moriah was, in his opinion, an obstacle to the construction of the courthouse complex; that it would be expensive to move Mt. Moriah; and, that Mt. Moriah was not an appropriate structure for use in the courthouse complex. ²⁷¹ During the June 20 hearing, Mr. Strott frequently referred to an “Avtech Report,” which, he said, discussed the needs of the County for expanded courthouse facilities. At that time, Mrs. John Symonds, the chairwoman of the Commission, asked Mr. Strott if he would make the Avtech Report available to the Commission, whereupon counsel for the various parties indicated that if that report were introduced into evidence — Mr. Strott not having the report with him at the hearing — they desired an opportunity to cross-examine Mr. Strott on the contents of the report.

Mrs. Symonds testified that, during a break in the hearing, she asked Mr. Strott if he would extend the hearing to a later date for the purpose of discussing and reviewing the contents of the full Avtech Report and Mr. Strott agreed to this. At the conclusion of the June 20 hearing, a motion was made and passed to continue the hearing to a later date. Mr. Strott, after the conclusion of the June 20 hearing, did furnish the Commission with a full copy of the Avtech Report. Mrs. Symonds, prior to advertising the resumed hearing date, telephoned Mr. Strott and they arrived at a mutually agreeable date for the resumption of the June 20 hearing, namely, July 25, 1973.

At the resumed hearing on July 25, Mr. Strott again represented the County, together with Randolph Rozencrantz, Central Services Officer for the County, both of whom testified on behalf of the County. The County again asked for permission to demolish Mt. Moriah. The Commission, on August 7, 1973, issued its unanimous, written decision denying the County’s application to demolish Mt.

Moriah, as follows: “Pursuant to a public hearing held before the Historic District Commission of the City of Annapolis on June 20, 1973, on the application of Anne Arundel County, Maryland, for a permit to demolish Mt. Moriah Church at 82-84 Franklin Street, Annapolis, said public hearing being continued at a further public hearing on July 25, 1973, by the agreement of the applicant and the Commission, and after reviewing all of the exhibits, ²⁷² testimony, and evidence on file in the case, the Commission finds as follows: “(1) the Commission finds and deems the structure, Mt. Moriah Church to be valuable according to studies performed for the Historic District of Annapolis and for this particular building and to have significant historical and architectural value in and of itself and in relation to the surrounding area. “(2) the Commission further finds that the demolition of the structure would be a great loss, to the City of Annapolis, to the State of Maryland and the United States of America, and therefore, must be guided by the provisions of § 22-231 (f) (1) of the Historic District Ordinance. “(3) the Commission further finds that while the record in this case discloses several alternative plans or proposals which were suggested as feasible alternatives to the demolition of Mt. Moriah Church, the applicant, Anne Arundel County, did not indicate or show any serious consideration for any suggested alternative plans or proposals to preserve the structure. “(4) the Commission further finds that the structure sought to be demolished, Mt.

Moriah Church, is valuable for the period of architecture it represents and is important to the neighborhood within which it exists, and that there was insufficient evidence to support a finding that retention of the Church would be a deterrent to any major improvement program of the applicant, which would be a substantial benefit to the City of Annapolis; and that there was insufficient evidence to support a finding that retention of the Church would cause undue financial hardship to the , .applicant, but, on the contrary, there was sufficient testimony and other evidence to ²⁷³ support a finding that retention of the Church would be in the best interest of the majority of the community in which it is located. “THEREFORE, the application of Anne Arundel County for the demolition of the Mt. Moriah Church at 82 and 84 Franklin Street, be and the same is hereby denied.” On the same day, Mr. Strott sent a letter by certified mail to Mrs. Symonds, stating that it was the County’s position that, inasmuch as the Commission had taken no action on the County’s application within the 45-day period set forth in Art. 66B, § 8.12 of the Maryland Code and in Section 22-233 of the Historic District Ordinance, approval of the application had “been rendered by operation of law” and that the County was “proceeding with its plans accordingly.” The City of Annapolis and the Commission on August 15, 1973, filed a bill of complaint in the present case (Equity No. 21582), seeking a temporary and permanent injunction restraining the County and Joseph W. Alton, Jr., the County Executive, from demolishing or damaging Mt. Moriah, unless and until approval had been granted by the Commission; an order that the County Executive notify any contractors, agents, servants, or employees accordingly, and other relief. The Circuit Court for Anne Arundel County (Childs, J.) granted a temporary restraining order on August 15, 1973, and the City posted the required $75,000.00 bond on August 17.

On August 17, 1973, the State of Maryland, acting on behalf of the Maryland Historical Trust and the Maryland Commission on Negro History and Culture, petitioned for leave to intervene as a party plaintiff and such permission was granted the same day. In its answer, the County alleged that it was not subject to the jurisdiction of the Commission and that, even if it were, the application for demolition of Mt. Moriah had not been acted upon by the Commission within the period of time required by the Historic District Ordinance and the application was thus automatically approved. The County ²⁷⁴ filed a cross bill of complaint, alleging that it had an investment of $175,000.00 in the Mt.

Moriah site for the purposes of expanding the courthouse facilities and that the continued interference with this objective constituted continuing damages in the amount of 1% per month as long as such interference continues. It prayed for a monetary award of $1,750.00 a month for each month the County was delayed in beginning construction, beginning with June 7, 1973, and for other relief. The plaintiffs duly filed an answer to the County’s cross-bill on August 20, 1973, denying its allegations, and alleging that the County had no plans and that the damages were speculative. A hearing on the merits was heard by the Circuit Court for Anne Arundel County (Weant, J., specially designated) on August 20, 1973.

After taking testimony, receiving various documents into evidence, and hearing the arguments of counsel for the respective parties, he rendered his written opinion and filed an order on September 5, 1973, ruling in favor of the County, dissolving the temporary injunction, granting leave to the County to pursue the damages alleged in its cross bill, if it had any, and requiring the plaintiffs to pay the costs. In his opinion, Judge Weant concluded that although the City was correct in regard to the 45-day issue, the County was not subject to the jurisdiction of the Commission. The City of Annapolis filed a petition for a stay of the decree of September 5, 1973; and this stay was granted on September 7. After an additional hearing in the circuit court, the City and County entered into a stipulation that no supersedeas bond would be required to stay the operation of the decree of September 5.

Timely appeals from the decree of September 5 to the Court of Special Appeals were filed by the City of Annapolis, the Commission, the State of Maryland, and the Maryland Commission on Negro History and Culture; and a timely cross-appeal was filed by the County from that portion of the decree ruling against the County on the 45-day issue. On September 13, 1973, the County filed a petition for a writ of certiorari with this Court, pursuant to Maryland ²⁷⁵ Rule 811, to transmit the record in the case from the Court of Special Appeals to this Court because of the public importance of the case and the need for an early final decision. The City, the Commission, and the State also urged that we grant the County’s petition, which we did on September 21,1973. The three principal questions presented to us by the appeal and cross-appeal are: (1) Was the decision of the lower court in regard to the 45-day provision correct?

(2) Was the County subject to the jurisdiction of the Commission? (3) Was the Commission’s decision arbitrary or capricious as a denial of due process of law or as a taking of the County’s property without paying just compensation? We have concluded that the lower court ruled correctly in regard to the first question, but was in error in holding that the County was not subject to the jurisdiction of the Commission. We are also of the opinion that the Commission’s decision was not arbitrary or capricious, but, on the contrary, was properly reached on the record before it. 1.

In our opinion, the chancellor properly found from the facts that time for Commission action was extended by mutual agreement between the Commission and the County as contemplated by Article XI, § 22-233(d) of the Code of the City of Annapolis. The chancellor made a careful review of the facts in regard to this point and we adopt his findings and conclusions on this point as follows: “Article XI, § 22-233(d) of the Code of the City of Annapolis states: ‘(d) Failure of the Commission to act within forty-five days from the date an application is filed shall constitute approval unless an ²⁷⁶ extension is agreed upon mutually by the applicant and the Commission.’ “Article 66B, § 8.12 of the Annotated Code of Maryland states in part: ‘. . . The failure of the Commission to act upon an application within forty-five (45) days from the date the application was filed shall be deemed to constitute automatic approval of the proposed changes unless an extension of this forty-five day period is agreed upon mutually by the applicant and the Commission or the application has been withdrawn.’ “The transcript of testimony taken on June 20, 1973, reveals the following remarks as having been made while Mr. Strott was discussing the requirement for additional facilities for the Circuit Court for Anne Arundel County, at page 41: ‘MR. DEHART: When could we obtain copies of these reports and any updating data that’s available? ‘MR.

STROTT: I’ll give you a copy of these. These are going to be Xeroxed copies, because they are working documents. I can get them to you early next week, because I’ll be out of town, and I’ll have them started while I’m gone, a working copy of the central services officer responsible for space. You will see the changes that are required, because it’s precious, space. ‘MR.

MURPHY: Excuse me, I didn’t understand what reports these are, I’m sorry. ‘MRS. SYMONDS: Mr. Strott, would you briefly — ‘MR. STROTT: First of all, I submitted excerpts from three Grand Jury Reports which now the Commission has, which makes ²⁷⁷ reference to the crowded conditions of the courthouse. It makes reference to deplorable parking conditions.

T also made reference to an Avtech study report, which is what we call a space utilization report which we use as a tool. That report, which was a study document by Avtech in 1969, I think it was published in 1970, pointed out that the courthouse, plan for the courthouse development — I say that is a working document that is updated from time to time. ‘MR. MURPHY: Our position would be that we would have to have an opportunity to examine these documents and be able to question Mr. Strott on them. Our position is that there are a number of alternatives that have to be explored here. ‘We don’t question examining these documents, but it would be inappropriate to have them introduced after the hearing is over. ‘MR.

STROTT: Well, the county’s position is this is a matter of background. We’re an extension of the state and we have a responsibility to house the courts and we will proceed. ‘MRS. SYMONDS: This is a representative of the state. ‘MR. STROTT: Yes, and we have a disagreement.’ “At page 126 of the transcript of the same hearing the following appears: ‘MRS.

SYMONDS: ... I would like to say I think Mr. Strott has left. Maybe this a good time to say it. We discussed with him the possibility of continuing this hearing on the basis of a request for a chance to review the ²⁷⁸ reports and so forth upon which the county has based its plans for demolition, and he was agreeable to this.

So I think we probably will do that.’ “Again, at page 137 we find: ‘MR. DEHART: I would like to add before we adjourn that the comments — I suggested to Mr. Strott, to benefit the county’s case, that he should provide whatever material he can to the Commission to demonstrate the county’s needs for additional space, as well as the space for additional parking thank you. ‘MRS. SYMONDS: Would someone like to make a motion we continue the hearing? ‘MRS. HARDESTY: Mrs. Symonds, I would like to make this motion, that since we have many other problems to resolve, that we continue this hearing between the county and the Historic District Commission. ‘MRS.

SYMONDS: Would someone like to second the motion? ‘MR. DEHART: Second. ‘MRS. SYMONDS: Any discussion? ‘MR. CHRISTHILF: Mrs. Symonds, are we going to set a time for the continuance? ‘MRS.

SYMONDS: Mr. Strott is on his way to New York. I talked to him about it, so I don’t think we can set a date until — the public should know the reasons for it. I think we have to allow time for people to give the proper importance to the work. ‘MR. DEHART: I think one of the purposes for the continuance from my point of view is to allow Mr. Strott to provide evidence, as I have suggested, and I think as was brought out tonight, for anyone else, when he does provide ²⁷⁹ that information to review that material, as well as the material submitted tonight and for us during this period to consider the material submitted to us. ‘MRS.

SYMONDS: Anymore discussion on the motion? All those in favor? ‘(Meeting adjourned.)’ “The County provided the reports requested. Later by agreement between Mrs. Symonds and Mr. Strott the date of July 25, 1973, was established for the continuation of the June 20 hearing. The transcript of testimony taken at that meeting with Mr. Strott present reveals at page 140: ‘MRS.

SYMONDS: We will get on to the main reason this special meeting was called, a continuation of the meeting we had previously on Mt. Moriah Church. ‘This is a public hearing on the proposed demolition of the church by the Anne Arundel County government. If anybody more wants to testify, we will be glad to have them testify. Is there anymore testimony?

We have had extensive testimony at the last meeting. ‘Do any of the lawyers wish to proceed at this point? ‘MR. BLONDELL: Are you calling the opposition, Madam Chairman? ‘MRS. SYMONDS: Since the last meeting, Mr. Strott, director of administration for the county, has given us the report which was mentioned at the last meeting but not available. Since that time, those who wished to examine it have had that opportunity.

At this time, if no one wishes to give testimony, I will ask Mr. Strott if anyone from the county would like to come up and make a last statement on the project.’ ²⁸⁰ “The County did not object to this second session; on the contrary Mr. Strott participated. Subsequently at our hearing he testified that he had been unaware of the requirement for the Commission to render its decision within forty-five days of the filing of an application. He learned of this after the Commission hearings. We think that he also learned or suspected that the Commission was not going to rubber stamp the County’s request and decided to use the forty-five day limitation as a guarantee to victory.

We are also of the opinion that he would have agreed to a continuance albeit with the knowledge of the time limitation. “The record clearly indicates that the extension of the hearing was to accommodate the County. In addition, the Commission wanted more information about the plans and requirements of the County and the County agreed to provide it. There is no doubt in our mind that the continuance of the meeting was commutual. The fact that this arrangement was called a continuance instead of an extension seems to us to be of little moment as the effect was obvious to all.

This action cannot be said to have been hatched under a rose.” Not only are the chancellor’s findings and conclusions on this point not clearly in error, Maryland Rule 886, but they are fully supported by the great weight of the evidence. 2. In our opinion, however, the chancellor erred in holding that the County was not subject to the jurisdiction of the Commission in connection with demolition of Mt. Moriah. Basically, the resolution of this question turns upon the proper statutory construction of the provisions of the Act of 1963, Ch. 874, as amended, in regard to “Historic Area Zoning” and the provisions of the Historic District Ordinance of the City of Annapolis.

We now turn to a consideration of these statutory provisions. The Act of 1963, Ch. 874 was the first legislative ²⁸¹ enactment in Maryland in regard to Historic Area Zoning. The title to that Act indicates that the sections added to the Code were to be under “the new sub-title ‘Historic Area Zoning’ ” and that these new sections made: “. . . provision for the preservation of structures of historic and architectural value in the several counties and municipal corporations of this state, establishing the procedures applicable to this power and the rights and duties of the officials of the counties and municipal corporations in relation thereto and relating generally to the preservation, maintenance and reconstruction of certain structures of historic and architectural value in this state . . . .” Governor Tawes approved the Act on May 6, 1963, and it took effect on June 1,1963. As originally passed, the Act was effective only in Anne Arundel, Carroll, Cecil, Charles, Frederick, Harford, Howard, Kent, Prince George’s, and St. Mary’s Counties.

By subsequent amendments, other counties were added to those in which the Act was originally effective and finally, by the Act of 1969, Ch. 471, the Act was made effective state-wide and so appears in the recodification of Article 66B of the Maryland Code by the Act of 1970, Ch. 672, effective January 1, 1971. 3 Certain other amendments were made by the Act of 1971, Ch. 440. It should be noted that the Act of 1968, Ch. 162 added a new Section 40A to Article 66B of Code (1957, 1967 Repl. Vol.) “to permit historic district Commissions to accept gifts and to acquire architectural easement[s].” The Act of 1968 added the last sentence to what now appears as § 8.03(a) of Article 66B in Code (1957, 1970 Repl. Vol.) and all of § 8.04 (formerly Section 40A) of that Article.

Section 8.01 of Art. 66B of Code (1957, 1970 Repl. Vol.) ²⁸² declares the State’s purpose in enacting this new concept. It reads as follows: “§ 8.01. Declaration of public purpose; power to regulate historic, etc., structures; purpose of ordinance or resolution; ‘structure’ and ‘appurtenances and environmental settings’ construed. “(a) The preservation of structures of historic and architectural value together with the appurtenances and environmental settings is a public purpose in this State.

The board of county commissioners or county council of every county in the State and the mayor and city council, by whatever name known, of every municipal corporation in this State and the mayor and city council of Baltimore City have power by ordinance or resolution to regulate the construction, alteration, reconstruction, moving and demolition of such structures, their appurtenances and environmental settings within their respective limits. Hereafter in this subtitle such counties and municipal corporations are referred to as ‘county’ or ‘counties’ or ‘municipal corporation’ as the case may be. . . . “(b) The purpose of an ordinance or resolution in any county or municipal corporation shall be (1) to safeguard the heritage of the county or municipal corporation by preserving the district therein which reflects elements of its cultural, social, economic, political, or architectural history; (2) to stabilize and improve property values in such a district; (3) to foster civic beauty; (4) to strengthen the local economy; and (5) to promote the use and preservation of historic districts for the education, welfare, and pleasure of the residents of the county or municipal corporation.” Section 8.02 grants the power to establish historic or ²⁸³ architectural districts. It provides that for the purpose of the subtitle: “ . . . each county and each municipal corporation may establish, change, lay out, and define districts which are deemed to be of historic or architectural value, following the procedure in such county or municipal corporation applicable to the establishment or change of areas and classifications of zoning.” Section 8.03 provides that a county or a municipal corporation “may create a commission to be called ‘the historic district commission.’ ” The commission shall have a membership of from three to seven persons, all of whom are residents of the county or municipality as the case may be. The terms and other data in regard to the commissioners are then given and it is provided that: “County or municipal authorities may consult private societies or agencies to request the names of possible members on a commission.

The commission shall have the right to accept and use gifts for the exercise of its functions.” As already indicated, § 8.04 is the provision in regard to permission to acquire architectural easements added by the Act of 1968, Ch. 162 and provides as follows: “The commission may purchase architectural easements in connection with structures located in or adjacent to the historic district. Such easement shall grant to the commission, the residents of the historic district, and the general public the perpetual right to have the exterior appearance of any