Poe v. Mayor and City Council of Baltimore

Oppenheimer, J., delivered the opinion of the Court. This zoning appeal turns on the right of owners of property in Baltimore City to attack the constitutionality of the City’s 1931 Zoning Ordinance as applied to their property under the Uniform Declaratory Judgments Act, without first exhausting their administrative remedies. The bill brought against the May- or and City Council of Baltimore alleges that, under the 1931 ordinance, (Baltimore City Code (1950) Art. 40) the appellants’ property was zoned residential and that the classification has not been changed; that there has been a substantial change in conditions; that, at the time of the passage of the ordinance and at the time of the filing of the bill, the classification of the property was unreasonable and arbitrary and resulted in a taking of the property without due process of law; and that the ordinance, insofar as it attempts to restrict the appellants’ property to residential use only, is unconstitutional and invalid. The City demurred to the bill and the Chancellor sustained the demurrer without leave to amend.

The appellants contend, first, that under the ordinance, they had no effective administrative remedy before the Baltimore Board of Municipal and Zoning Appeals (the Board) ; and, second, that, in any event, where a constitutional issue is involved, the aggrieved litigant, if he shows sufficient interest, has the right to have a court of equity consider and pass upon the issue. I The provisions of the Baltimore City Zoning Ordinance have ³⁰⁶ been before this Court in a number of cases. Many of the zoning appeals have involved actions of the Board in granting or denying applications of property owners for special exceptions. In Mayor and City Council of Baltimore v. Seabolt, 210 Md. 199, 205-06 , 123 A. 2d 207 (1956), discussed infra, Chief Judge Bruñe, for the Court, set forth the authority for and scope of the zoning provision on exceptions as follows: “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 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 in 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.” In reviewing orders of the Board, the lower court and this Court on appeal often rule on whether the refusal by the Board of an application for a special exception amounted to an uncon ³⁰⁷ stitutional taking of the property involved. The test is whether the zoning from which an exception is asked, under the circumstances involved, imposes such restrictions that the property cannot be used for any reasonable purpose.

Mayor and City Council of Baltimore v. Borinsky, 239 Md. 611, 622 , 212 A. 2d 508 (1965) and cases therein cited. Under this procedure, we have held in some cases that the Board’s action in refusing the application amounted to an unconstitutional taking, e.g. Mayor and City Council of Baltimore v. Sapero, 230 Md. 291 , 186 A. 2d 884 (1962); Frankel v. Mayor and City Council of Baltimore, 223 Md. 97 , 162 A. 2d 447 (1960); City of Baltimore v. Cohn, 204 Md. 523 , 105 A. 2d 482 (1954). In other cases, we have held that the Board’s denial of the application did not amount to an unconstitutional taking, e.g.

Borinsky, supra; Sapero v. Mayor and City Council of Baltimore, 235 Md. 1 , 200 A. 2d 74 (1964) and Marino v. Mayor and City Council of Baltimore, 215 Md. 206 , 137 A. 2d 198 (1957). The appellants contend that they had no effective remedy before the Board, because the Board is an administrative agency, not a court, and only a court can decide a question of constitutional law. This argument overlooks the fact that Section 40 of the Zoning Ordinance provides for an appeal from the Board’s action in denying an application for a special exception to the Baltimore City Court, and, from the decision of that court, to this tribunal. As Chief Judge Bond, for the Court, pointed out in Ellicott v. Mayor and City Council of Baltimore, 180 Md. 176, 180 , 23 A. 2d 649 (1942), “it was the design of the statute and the ordinance that this question [the validity of the ordinance] along with others arising in the application of the zoning law should be litigated in one proceeding, at the suit of all persons feeling aggrieved, taxpayers and others.” It is particularly within the expertise of an administrative body such as the Board to marshal and sift the evidence presented in a hearing upon an application for a special exception and to make an administrative finding as to whether, on the evidence, the application of the ordinance to the property involved deprives the owner of any reasonable use of it.

Such a finding is subject to court review on the question of constitu ³⁰⁸ tionality, as a matter of law. Borinsky, supra, at 624 ; Pallace v. Inter City Land Co., 239 Md. 549, 558 , 212 A. 2d 262 (1965). We held in Seaibolt that the statutory remedy was full and adequate. We re-affirm that holding.

II The appellants contend that, even though there be an administrative remedy, a court of equity may intervene and act when a constitutional question is involved. They recognize the relevance of Seabolt to the situation here presented, but seek to restrict the authority of that case to the precise facts there presented. In support of their argument, the appellants cite general statements from some of this Court’s prior opinions which, taken apart from the actual decisions involved, tend to support their contention. For example, in Schneider v. Pullen, 198 Md. 64, 68 , 81 A. 2d 226 (1951), Chief Judge Marbury, for the Court, said: “We have, however, been careful to point out that where constitutional questions are involved, the litigant has the right to raise them in a court of equity, and such court has the right to consider them,” and in Kracke v. Weinberg, 197 Md. 339, 343 , 79 A. 2d 387 (1951), Chief Judge Marbury said, for the Court: “It has been, of course, well settled that where a constitutional question is involved, equity may intervene and enjoin action by an administrative body, although this is not favored where there are statutory remedies which permit the raising of such a question.” 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. Where there is no adequate administrative remedy, or where that remedy does not provide for judicial review of the agency’s action, we have made it clear that recourse may be had to the ³⁰⁹ courts. Heaps v. Cobb, 185 Md. 372, 45 A. 2d 73 (1945); Hecht v. Crook, 184 Md. 271 , 40 A. 2d 673 (1945). See Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 , 35-38 (1964).

In zoning matters, when the property owner contends the action of the administrative body was an invalid taking and the zoning ordinance does not provide any remedy by way of appeal, we have held that the constitutional issue is properly presented by a bill in equity. England v. Mayor and City Council of Rockville, 230 Md. 43, 45 , 185 A. 2d 378 (1962). See also Congressional School v. State Roads Comm’n, 218 Md. 236, 243 , 146 A. 2d 558 (1958) and cases therein cited. One category in which the principle that an equity court may take jurisdiction over a dispute as to constitutionality may come into play comprises the cases involving constitutional attack upon the validity of a general statutory enactment as a whole (as contrasted with its application to particular facts).

Such cases are Schneider v. Pullen, supra, in which the statute attacked provided that private trade schools and certain other educational institutions must secure certificates of approval from the State Superintendent of Schools, and Oursler v. Tawes, 178 Md. 471 , 13 A. 2d 763 (1940), which involved the constitutionality of comprehensive amendments to the state income tax law. Another category of decisions in which that principle may be applied is where there is an attack upon the validity of a statute or ordinance not general in nature but enacted with particular reference to the property of the complainant. Here again, the attack is not upon the applicability of a general legislative enactment to the particular circumstances, but upon the validity of the legislation itself. Commissioners of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 337 , 64 A. 2d 151 (1949), involved not zoning but the validity of charter powers or franchises under a statute granting the appellant authority to construct or acquire an electric power distribution system.

Judge Henderson, for the Court, said that the rule that where an appeal from the action of an administrative body is provided by statute such remedy is exclusive, is “predicated upon the undesirability of by-passing administrative action, par ³¹⁰ ticularly where such action is within the expert knowledge of the administrative tribunal.” He found, however, that the Public Service Commission is essentially a regulatory body, and has no power to grant a franchise which is essentially a legislative function. Richmark Realty Co. v. Whittlif, 226 Md. 273, 173 A. 2d 196 (1961); Kracke, supra; and Northwest Merchants Terminal, Inc. v. O’Rourke, 191 Md. 171 , 60 A. 2d 743 (1948), all involved the constitutionality of amendments to the zoning law which, by legislative action, particularly affected the classifications of the properties involved. In Richmark, the opinion pointed out that the primary attack was on the validity of the challenged ordinance which waived the prohibition of the zoning law against establishment of a filling station within 300 feet of a public park. In Kracke and O’Rourke the Court found that property was being taken without compensation by legislative action under a rezoning ordinance.

Even in cases within the above categories, none of which involves the constitutionality of the application of general statutory regulations by an administrative agency to a particular property, the right of the property owner to resort to an equity court is not unqualified. See Kracke, supra. In Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 773-74 (1947), which involved the constitutionality of the First and Second Renegotiation Acts, Mr. Justice Rutledge, in delivering the Court’s opinion, said: “It is true that the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened on impending irreparable injury flowing from delay incident to following the prescribed procedure, has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention. But, without going