Respess v. City of Frederick

BISHOP, Judge. Seeking to halt the City of Frederick’s construction and operation of a stadium, appellant James W. Respess (Respess) 1 filed suit in the Circuit Court for Frederick County against the City of Frederick and Baseball and Sports Associates, Inc., appellees. The complaint as amended sought relief under six counts. Count I alleged that the land where the stadium was to be built was burdened by a restrictive covenant.

Count II alleged that the erection of a stadium at this location violated the local zoning ordinance. Count III alleged breach of contract. Count IV alleged that the City’s actions were ultra vires. Count V alleged nuisance and Count VI requested a declaratory judgment.

In conjunction with the amended complaint, Respess filed a motion for summary judgment, or alternatively for an interlocutory injunction. Both the City and Baseball and Sports opposed these motions. Baseball and Sports filed a motion to dismiss the amended complaint. ²⁵⁶ The Circuit Court for Frederick County (Stepler, J.) 2 held a hearing on these motions and subsequently dismissed Counts I through V of the amended complaint and granted summary judgment against Respess on the final count (VI). Appellant Respess alone appeals this judgment.

ISSUES Appellant asks this Court: I. Whether the circuit court erred when it dismissed appellant’s contention that the construction of the stadium violated the City Zoning Ordinance on the ground that he failed to first exhaust administrative remedies.

II

Whether the City is exempt from the City Zoning Ordinance.

III

Whether the circuit court properly dismissed appellant’s challenge to the construction of a stadium on the' basis that the land is burdened by a charitable trust.

IV

Whether appellant has standing as a taxpayer asserting a common law right to challenge an ultra vires governmental action. V. Whether the Loats will imposes a charitable trust on the land that prohibits the construction or use of a stadium for professional baseball thereon.

VI

Whether the circuit court erred in failing to declare the rights of the parties. FACTS When John Loats signed and sealed his last will and testament on November 21, 1876 his generous bequests sowed the seeds for more than a century of conflict and litigation. The will established the Loats Female Orphan Asylum of Frederick City 3 [Asylum] so that female orphan ²⁵⁷ children “may be saved from want and protected from the snares of vice and may be properly taught educated and instructed and morally trained____” Loats devised the real property to his niece for her life or until she should marry and then to the Asylum. 4 A short synopsis of the consequences of this bequest is provided in Loats Female Orphan Asylum of Frederick City v. Essom, 220 Md. 11 , 150 A.2d 742 (1959). Between 1881 and September 1956 the Asylum operated the home described in the will.

On September 5, 1883, the “trustees” named in the second alternative devise executed, and later recorded, a deed of real estate to the corporation. For some years the Asylum admitted only “orphan” girls, in the strict sense of the word, but about twenty-five years ago it also began to admit girls from “broken homes.” By June 1955, it became apparent that the continued operation of the Asylum was impractical, for various reasons and the Asylum was closed in July, 1956. Id. at 17 , 150 A.2d 742 . Seeking to sell its real estate, the Asylum sought a decree that it had good and marketable title.

Id. at 14 , 150 A.2d 742 . That action eventually reached the Court of Appeals. The Court rejected claims by Loats’ heirs that the property reverted to them, and held that the Asylum could convey real estate as the purposes of the trust were broader than the literal operation of an orphanage. Id. at 24 , 150 A.2d 742 .

After the orphanage closed, the Asylum donated the income from its property to the Children’s Aid Society of Frederick. After the Society ceased to exist, the Asylum’s Board promulgated a plan to fund student services programs, scholarships and the nursery center of the Evangelical Lutheran Church. Financial aid was no longer re ²⁵⁸ stricted to female orphans between the ages of three and eighteen. Contending that the Asylum had completely abandoned its intended purpose, the heirs of John Loats filed an action in equity seeking title to the property.

Florence L. Essom, et al. v. The Loats Female Orphanage Asylum of Frederick City, in the County of Frederick, (Equity Action No. 22,813). The court disagreed with the heirs’ assertions and concurring with the Court of Appeals’ decision discussed supra found that the Board did not depart “from the objects designated by John Loats; and that the change is dictated by altered circumstances and new theories of treatment; that the broad purpose and intent of John Loats was to help children.” Further, the court found that no implied condition subsequent could be read into the will. Even if the will created such a condition, the court reasoned, it could not be breached unless the Board totally abandoned its purposes. The Asylum conveyed the Loats Asylum Farm property in fee simple to the City of Frederick on January 16, 1986.

There is evidence in the record that the City made a commitment to the trustees that the park, renamed John Loats Park, would operate with a concentration on youth activities. The City of Frederick has since operated the parcel as a park. Planning to construct a 4,200 seat baseball stadium on a portion of this land, the City entered into a lease agreement with Baseball and Sports Associates, Inc. Baseball and Sports owns and operates the Hagerstown Suns and the Frederick Keys. Both are minor league baseball teams affiliated with the Baltimore Orioles.

The corporation leases the stadium from the city for the Keys’ home games. Appellant Respess is a taxpayer and member of the Frederick Seventh Day Adventist Church which is located adjacent to the property in issue. The church operates a school and sponsors after-school and weekend activities for children. In addition to religious services, it sponsors community activities such as Alcoholic Anonymous meetings. ²⁵⁹ DISCUSSION I. Failure to Exhaust Administrative Remedies Count II of Respess’ amended complaint alleged that the construction of a stadium is in violation of the City of Frederick’s Zoning Ordinance because a stadium is not a permissible use of land which is zoned R-l and that the City is subject to and is in violation of its own zoning ordinance.

The court dismissed this count because appellant failed to submit a complaint to the Zoning Administrator under the City Zoning Ordinance: [Primarily I feel that the plaintiffs have failed to exhaust their administrative remedies. It’s under ordinance 21.05 that the zoning administrator shall promptly investigate any written complaint alleging violation of this ordinance and of course if they aren’t satisfied they may then take their appeal. ... I think it should also be dismissed because the construction of a stadium is a governmental act and is not subject to the city zoning ordinance. I don’t find it to be a proprietary act.

Appellant contends that this ruling is incorrect because he interprets the City’s Zoning Ordinance to permit direct appeal of a Planning Commission decision to the circuit court. We disagree. The City of Frederick Zoning Ordinance contains its own enforcement procedures. Frederick, Md., Zoning Ordinance § 21.05 (ordinance).

Any written complaint alleging a violation of the ordinance shall be investigated by a zoning administrator. Id. § 21.05(1). The zoning administrator’s decision may be appealed to the Board of Zoning Appeals within thirty (30) days. Id. § 19.14(1).

Individuals dissatisfied by the Board’s review of the decision may then appeal to the circuit court. Id. § 19.09. The integrity of any administrative scheme requires that the agency’s remedies must first be exhausted before a party can pursue a civil appeal. Ordinarily, to exhaust administrative remedies a party must pursue the prescribed ²⁶⁰ administrative procedures and await the final outcome.

Only after a final order may a party resort to the courts. Comm’n on Human Relations v. Baltimore Gas & Electric Co., 296 Md. 46, 50-52 , 459 A.2d 205 (1983). Accord, Comm ’n on Human Relations v. Mass Transit Auth., 294 Md. 225, 230-231 , 449 A.2d 385 (1982); Steuart Investment Co. v. Board of Comm’rs St. Mary’s County, 38 Md.App. 381, 390 , 381 A.2d 1174 (1978); Comm’rs of Cambridge v. Henry, 263 Md. 370, 373-374 , 283 A.2d 415 (1971). In Comm’rs of Cambridge v. Henry, supra, several private citizens sought to enjoin the City of Cambridge’s proposed construction of a waterfront park on the ground, inter alia, the construction violated a local zoning ordinance.

Though the circuit court enjoined the construction, the Court reversed and dismissed the bill of complaint holding that the action should have been brought before the Board of Zoning Appeals instead of the circuit court. Observing that Cambridge’s zoning ordinance provides that the issue be decided initially by the Board of Appeals with judicial review by the circuit court, Judge Henderson writing for the Court emphasized that: It is well established that a claimant ordinarily must seek to redress the wrong of which he complains by using the statutory procedure the legislature has established for that kind of case, if it is adequate and available, and that if he is unsuccessful and wishes aid from the courts, he must take judicial appeals in the manner the legislature has specified rather than by seeking to invoke the ordinary general jurisdiction of the courts. Id. at 373-374 , 283 A.2d 415 quoting Agrarian, Inc. v. Zoning Inspector of Harford County, 262 Md. 329, 332 , 277 A.2d 591 (1970). In the case sub judice Respess’ complaint stated that the proposed commercial stadium is not within the uses permitted in an area zoned R-l.

This allegation, that the use violates the area’s zoning ordinance, should have been brought before the zoning administrator for determination. The zoning administrator shall consult the ordinance’s table ²⁶¹ of permitted uses and decide whether any proposed use not specifically included in the table is permissible. See, Ordinance § 402(1), (2). Appellant submits that he properly brought the action before the circuit court pursuant to Ordinance § 6.10(2) which permits direct appeals from Planning Commission decisions on site plans to the circuit court.

This provision is inapposite. Though appellant’s complaint does allege that he objected to the proposed stadium before the Frederick County Planning Commission, the count as a whole complains that the zoning ordinance was violated by the City and not that the Planning Commission’s approval of the site plan was improper. As Respess was aggrieved by what he perceived to be the City’s violation of the zoning ordinance, that complaint should have been taken first before the zoning administrator. 5 Because we affirm the court’s dismissal of Count II, we will not address Respess’ contention in that count that the City is barred by its own zoning ordinance from constructing a stadium for commercial uses in an R-l zone.

II

Standing Respess alleged in Count I of the amended complaint that the property was still encumbered by the restriction of uses contained in the Loats will. Further, the use contemplated by the City of Frederick and Baseball and Sports was not in accordance with the charitable uses intended by the testator. Appellant requested an interlocutory and permanent injunction on the construction of the stadium and requested, inter alia, that the court impose a trust upon the property to carry out the charitable purposes. Similarly, Count IV alleged that the city’s acts were ultra vires in part because they violated the trust. ²⁶² The court found that Respess did not have standing to enforce the trust, and that the property was not impressed with a charitable trust: Now, what, in essence, Count I is seeking to do is enforce a trust, and under Maryland law the only persons having standing to enforce a trust for charitable uses or purposes are the Maryland Attorney General or certain other interested persons.

And this was defined in 1938 in the Mayor and City Council of Baltimore v. Peabody Institute of Baltimore,[ 6 ] and in that case the court said that only upon the instigation of the suit of The