Mayor of Baltimore v. Seabolt

Brune, C. J., delivered the opinion of the Court. This is an appeal by the City of Baltimore and by intervening property owners from a declaratory decree of the Circuit Court No. 2 of Baltimore City passed in a suit instituted by the appellees determining that the Zoning Ordinance of that City is “invalid, ineffective and unenforceable insofar as it attempts to restrict to residential use only” a tract of land owned by the appellees. The appellees, Seabolt and Suhr, co-partners, trading as Roland Investment Company (sometimes referred to below as “Roland Investment”), are the owners of the tract in question which is about two acres in area and very irregular in shape. It lies south of 34th Street and slightly east of Roland Avenue and consists of an aggregation of lots which the appellees bought at tax sales over a period of about two years.

Since the passage of the Baltimore Zoning Ordinance (Ordinance No. 1247, approved March 30, 1931), this area ²⁰² has been zoned as residential. The appellees were aware of this when they purchased the properties and they bought them with the intention of seeking a change in their zoning classification. They initiated ordinances closing streets running through the tract, which existed mostly on paper, in the beds of some of which were located sanitary and storm water sewers. Under these ordinances the City reserved easements for all then existing utilities.

Roland Investment also sought the passage of an ordinance changing the zoning classification of its tract, but abandoned it in the face of protests of persons residing in the neighborhood. Next, Roland Investment applied first to the Buildings Engineer and on appeal to the Board of Municipal and Zoning Appeals for a special exception permitting a commercial use of this property in a residential use district. The application sought permission to construct a Post Office garage and facilities on part of the land. After a hearing the Board denied the application on October 19, 1954.

Roland Investment did not avail itself of the right to appeal within thirty days from the decision of the Board to the Baltimore City Court, in accordance with Code (1951), Article 66B, Section 7, which is a part of the State Zoning Enabling Act, and the Zoning Ordinance. Both the Act and the Ordinance also allow appeals from the City Court to the Court of Appeals. Instead of following this procedure, Roland Investment on October 24, 1954 filed its bill in this case against the City for a declaratory decree to the effect that the Zoning Ordinance, as originally enacted and as since amended, was “unconstitutional and invalid” insofar as it attempted to restrict Roland Investment’s property to residential use only. The bill alleged both that the Zoning Ordinance when enacted was arbitrary and unreasonable in classifying this property as residential and that there had been a subsequent and substantial change in conditions as a result of which the existing restrictions and zoning regulations as applied to this tract were unreasonable, arbitrary and contrary to Section 3 of the Enabling Act and resulted in a taking of Roland Investment’s property without due process of law. ²⁰³ The City, and later the intervenors, demurred to the bill, and their demurrers were overruled.

At the hearing on the merits Roland Investment adduced the testimony of a number of witnesses to show that the property could not be used for residential purposes. The property is undeveloped and rather rough; it has a fairly steep grade and lies in an area which is close to some commercial or industrial concerns. There are also residences in the immediate neighborhood, and the tract lies in what may be called something of a borderland area. The Chancellor found that the evidence was not sufficient to sustain the appellees’ claim that the original zoning was confiscatory, but that the deterioration of some of the adjoining property and the complete change of use of other parts of the adjoining property had so changed the neighborhood that the present restriction on the use of the appellees’ property precluded its use for any purpose for which it was reasonably adapted.

He accordingly held that (1) the Zoning Ordinance resulted in a taking of the appellees’ property without compensation (citing City of Baltimore v. Cohn, 204 Md. 523 , 105 A. 2d 482 ) and (2) that it was not necessary to follow the statutory procedure for appeal where a constitutional question was involved. In support of the second proposition he cited Hoffman v. City of Baltimore, 197 Md. 294 , 79 A. 2d 367 , and Kracke v. Weinberg, 197 Md. 339 , 79 A. 2d 387 . He further held, on the authority of these cases, that the complainants were entitled to declaratory relief, though he expressed reluctance to grant it “in view of the deliberate failure to appeal to the Baltimore City Court the decision of the Board of Municipal and Zoning Appeals refusing to grant an exception.” The first question, and the only one which we think it necessary to decide, is whether or not the appellees are entitled to declaratory relief. The pertinent statutory provisions appear in Article 31A of the 1951 Code, and in the preamble to Chapter 724 of the Acts of 1945, which re-enacted Article 31 A, and in the Enabling Act and the Zoning Ordinance.

The first sentence of Section 1 (entitled “Scope”) of Article 31A states that: “Courts of record within their re ²⁰⁴ spective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Section 2 (entitled “Power to Construe, etc.”) provides in part that: “Any person * .* * whose rights, status or other legal relations are affected by a statute [or] municipal ordinance * * * may have determined any question of construction or validity, arising under the * * * statute [or] . ordinance * * * and obtain a declaration of rights, status or other legal relations thereunder.” Section 6 of Article 31 A, which is directly involved here, reads (so far as relevant) as follows: “6. (Discretionary.) Relief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy exists between contending parties, or in which the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or when in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving rise to the proceedings. When, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case in which the other essentials to such relief are present; * * *.” At this point, the preamble to Chapter 724 of the Acts ²⁰⁵ of 1945 should be noted. It recites that “The Court of Appeals of Maryland, in a series of recent decisions, has held that a proceeding for a declaratory judgment is not appropriate within the contemplation of the Uniform Declaratory Judgments Act, when there exists an immediate cause of action between the parties for which one of the common remedies at law or in equity is adequate and available, * * The next paragraph states that it is the sense of the General Assembly that “the real legislative intent” in the passage of the Uniform Act was to the contrary, and the third and final paragraph expresses the intent and desire of the General Assembly by the repeal and re-enactment of that Act “so to change the wording of the Act that it clearly and unmistakably expresses the intention which the General Assembly believes was sought to be expressed in the passage of the Act.” It is evident that this emphatic re-enactment of the statute is appropriate to the construction of provisions allowing declaratory relief in situations where “the common remedies at law or in equity” are “adequate and available” and amounts to a legislative reversal of decisions holding declaratory relief unavailable in such situations.

See Schultz v. Kaplan, 189 Md. 402 , 56 A. 2d 17 . It is equally evident that this preamble does not express any intention to modify either in terms or by construction, the explicit language of Section 6 which requires that “When * * * a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed.” Turning to the Enabling Act and to the Zoning Ordinance (as amended), we find that Section 7(g) of the former empowers a Board of Zoning Appeals (the Baltimore “Board of Municipal and Zoning Appeals” being such a Board) to hear and decide special exceptions to the ordinance upon which it is required to pass and to authorize upon appeal in specific cases such variance from the terms of the ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done. The Zoning Ordinance, as amended, (Ord. No. 711, approved May 21, 1953), by Section 35(g) repeats the provisions of Section 7(g) of the Enabling Act above mentioned, and by paragraph (j) of the same Section undertakes to prescribe standards to ²⁰⁶ be followed in determining whether exceptions or variances should be granted.

Section 36, which incorporates by reference the standards specified in Section 35(j), empowers the Board to make special exceptions in all cases where the Ordinance provides that the approval of the Board is required and in other cases, among which are those when there are “practical difficulties or unnecessary hardships iri the way of carrying out the strict letter of any provision” of the Ordinance. The validity of the Zoning Ordinance as applied to a particular property may be raised on appeal from the Zoning Board. Ellicott v. City of Baltimore, 180 Md. 176 , 23 A. 2d 649 ; Hoffman v. City of Baltimore, 197 Md. 294 , 79 A. 2d 367 ; City of Baltimore v. Cohn, 204 Md. 523 , 105 A. 2d 482 . The relief sought in the case last cited and the evidence offered in support thereof bear a strong resemblance to the present case though the method by which relief is now sought in this case differs from that followed in the Cohn Case.

In the light of these cases — particularly the Cohn Case and