State Housing, Inc. v. Mayor of Baltimore

Henderson, J., delivered the opinion of the Court. The sole question presented in this appeal is whether an appeal, by an adjoining property owner, to the Baltimore City Court from a decision of the Board of Municipal and ²⁹⁶ Zoning Appeals of Baltimore City, was taken in time. It is conceded that there was a hearing before the Board on March 5, 1957, and on the same day the Board adopted a resolution approving an application by Dr. Vogel to erect an addition to his property 2601 E. Monument Street. The record shows that no protestants appeared at the hearing.

On March 7, 1957, a copy of the resolution, as adopted on March 5, 1957, typed upon blue paper and signed by the Director of Zoning, was sent to counsel for the applicant. Whether the decision of the Board was announced at the hearing, or just when the minutes were transcribed and entered in the minute book by the executive secretary, is not shown. Nor does the record show when the appellant learned of the Board’s action, although in its brief the appellant asserts that “he (sic) is a real estate broker who owns the property at No. 2603 East Monument Street”; that “the broker had had no occasion to visit either the property or the neighborhood. For this reason the appellant did not learn of any of these proceedings until April 4, 1957.” The appeal was entered on April 5, 1957.

The City and the applicant, intervening, moved to dismiss on the ground that the appeal was not taken in time. The trial court granted the motions and entered judgment for the appellees. Code (1957 Supp.), Art. 66B, sec. 7 (j), provides: “Appeal from board to court. — Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days from the day upon which the board decided the matter from which the appeal is taken.” (Italics supplied.) The sentence last quoted was written into the enabling act by Chapter 696, Acts of 1953, effective June 1, 1953.

Prior to that time the sentence read: “Such petition shall be presented to the court within 30 days after filing of the decision in the office of the board.” (Italics supplied.) On May 21, 1953, the Mayor approved Ordinance 711, ²⁹⁷ Article 40, Section 40(a) of which contained a provision identical with that of the enabling act as it stood prior to the amendment. In Md. Clothing Mfng. v. Baltimore, 207 Md. 165, 168 , we referred to both the provisions of the enabling act and the ordinance, but it was unnecessary to decide which was controlling. It may be noted that Section 40(a), Article 40 of Ordinance 711, followed exactly the language of the enabling act, as then in effect, as well as the language of the earlier ordinance, as set out in Article 40, Section 39(a) of the Baltimore City Code (1950). Cf.

Ordinance No. 1247 (1931), paragraph 35(a). An effort by the City to shorten the time of appeal to twenty days, by amendment of the Charter in 1946, was held to be ineffective in Scrivner v. Baltimore, 191 Md. 165 , both on the ground that the City lacked the power to shorten the period of appeal as fixed by the enabling act, and on the ground that the twenty day limitation was declared to be applicable only in the absence of provisions for appeal by the General Assembly. It would seem to follow that an amendment of the enabling act by the General Assembly would override the provisions of the City ordinance relating to appeal, particularly where the amendment to the enabling act took effect subsequent to the reenactment of the ordinance, as in the instant case. Cf.

Heubeck v. City of Baltimore, 205 Md.