Zellinger v. CRC Development Corp.

Levine, J., delivered the opinion of the Court. We consider in this appeal the validity of Baltimore City Ordinance 137 of 1976 (Ordinance 137), a zoning enactment authorizing the construction and operation of a housing complex for the elderly (the York Road Project) at a site on York Road in northern Baltimore City. Asserting numerous challenges under state, local and constitutional law, appellants, who own property in the vicinity of the proposed project, petitioned the Baltimore City Court for appellate review of the zoning action of appellee, the Mayor and City Council of Baltimore City (the City), in enacting Ordinance 137. At the same time, appellants brought an action in the ⁶¹⁷ Circuit Court of Baltimore City to enjoin the remaining appellees, who are the owners and prospective developers of the York Road property, from proceeding with the construction of the housing project.

The two cases were subsequently tried before Judge Greenfeld who upheld the Ordinance and denied the requested injunction. Appellants then noted appeals to the Court of Special Appeals, but prior to consideration of the cases by that court, we granted appellees’ petition for certiorari. For reasons that follow, we affirm. Appellants assail Ordinance 137 on myriad grounds. 1 Their principal attack is directed against sections 4.5-ld and 4.0-2c of the Zoning Ordinance of Baltimore City, Baltimore City Code, Art. 30 (Everstine ed. 1966) (the Zoning Ordinance) from which the City derived its authority to enact Ordinance 137.

Appellants claim that §§ 4.5-ld and 4.0-2c are (a) ultra vires the State Zoning Enabling Act (the Enabling Act), Maryland Code (1957,1970 Repl. Vol., 1977 Cum. Supp.), Art. 66B, § 2.08; (b) violative of the uniformity mandate of Art. 66B, § 2.02; and (c) repugnant to the due process and equal protection guarantees of the Federal and State Constitutions. Secondly, appellants contend that in enacting Ordinance 137, the City Council exceeded its authority under the terms of the Zoning Ordinance itself, on the theory that the power to approve so-called conditional uses, such as housing for the elderly, is vested exclusively in the Board of Municipal and Zoning Appeals (the Zoning Board).

Finally, appellants argue that Ordinance 137 is invalid for the reason that in the ordination process, the City Council allegedly failed to comply with the procedures required for the passage of amendments to the Zoning Ordinance. ⁶¹⁸ (1) The York Road Project is to be built on a three-acre tract located in an R-5 general residence district in Baltimore City. The proposed complex would contain 166 one-bedroom apartments in a five-story building having an overall height slightly in excess of forty feet. The project would have a lot area density of 55 dwelling units per acre. According to § 4.5-la of the Zoning Ordinance, uses permitted as of right in an R-5 district include multiple family detached and semidetached dwellings.

Multifamily attached dwellings, however, are not permitted absent special approval from municipal authorities. Various “conditional uses” are authorized. Some of these, such as fire and police stations, swimming pools, cemeteries and day care centers, require the prior approval of the Zoning Board, § 4.5-lc, under procedures outlined in § 11.0-3c, 2 while others, including housing for the elderly and multifamily dwellings containing more than 100 units, must, under § 4.5-ld, be approved by ordinance of the Mayor and City Council, according to procedures specified in § 11.0-6d. 3 Maximum building height restrictions for R-5 zones are prescribed by § 4.0-2c which fixes the uppermost limitation at 40 feet for multiple family dwellings. That section, however, does permit the Mayor and City Council to alter these restrictions by ordinance in specific cases.

Appellants claim that the reservation of the powers in the ⁶¹⁹ City Council to approve conditional uses under § 4.5-ld and to alter height limitations under § 4.0-2c is void on the grounds that the power to approve special exceptions is lodged exclusively in the Zoning Board, pursuant to § 2.08 of the State Enabling Act. Article 66B, § 2.08 provides in relevant part: “(a) The mayor with the advice and consent of the city council may provide for the appointment of a board of zoning appeals. * * * “(c) The board of zoning appeals shall have the following powers: “(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.” (emphasis added). The Enabling Act defines the term “special exception” to mean: “[A] grant of a specific use that would not be appropriate generally or without restriction and shall be based upon a finding that certain conditions governing special exceptions as detailed in the zoning ordinance exist, that the use conforms to the plan and is compatible with the existing neighborhood.” Art. 66B, § 1.00. 4 See also Creswell v. Baltimore Aviation Serv., Inc., 257 Md. 712, 719 , 264 A. 2d 838 (1970); Maryland Planning and Zoning ⁶²⁰ Law Study Commission, Final Report — Legislative Recommendations 18 (1969). Despite the force of appellants’ argument, 5 we are unable to address the issue here, for, as appellees correctly observe, the court below was never given the opportunity to try and decide the contention that § 2.08 of the Enabling Act deprives the Mayor and City Council of all power to approve conditional uses.

Rule 885, Maryland Rules of Procedure. Appellants raise this issue for the first time in their brief on appeal, and even then they have given it only cursory treatment. A contention not raised below either in the pleadings or in the evidence and not directly passed upon by the trial court is not preserved for appellate review. Devereux v. Berger, 264 Md. 20, 31 , 284 A. 2d 605 (1971).

Furthermore, by deciding this issue, we would undermine a primary purpose of Rule 885, to prevent the trial of cases in piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation, Clayman v. Prince George’s County, 266 Md. 409, 416 , 292 A. 2d 689 (1972); Hewitt v. State, 242 Md. 111, 113-14 , 218 A. 2d 19 (1966). Resolution of this most interesting question must therefore await another day. (2) Appellants next contend that the City Council’s reservation of power to pass on conditional uses and to alter height restrictions violates the uniformity mandate of Article 66B, § 2.02. Section 2.02 empowers the Mayor and City Council to divide the municipality into districts in order to regulate the construction and use of buildings, structures and land.

It further provides that: “All such regulations shall be uniform for each class ⁶²¹ or kind of development throughout each district, but the regulations in one district may differ from those in other districts.” Basically, appellants’ theory seems to be that the absence of specific statutory standards to guide the exercise of its reserved powers under §§ 4.5-ld and 4.0-2c imbues the City Council with virtually limitless discretion to grant special exceptions, thereby creating the potential for the City Council to wield those powers in an arbitrary, discriminatory and, hence, non-uniform manner. This very contention was rejected by this Court over forty years ago in Kramer v. Baltimore, 166 Md. 324 , 171 A. 70 (1934). There the Mayor and City Council of Baltimore reserved the authority to approve by ordinance the location of gasoline filling stations in any part of the city from which they had not been expressly excluded by the City’s first Zoning Ordinance, Ordinance No. 1247, approved March 30, 1931. The plaintiffs, who sought to construct a service station on land owned by them, sued for a mandatory injunction to compel the city engineer to issue a permit for their property.

The engineer had refused the permit on the ground that the City Council had failed to enact legislation authorizing the special use. Plaintiffs claimed that the City Council’s reserved powers contravened the uniformity and comprehensiveness requirements of the Zoning Enabling Act of 1927 (Chapter 705, § 1, Laws of 1927), the precursor of present day Article 66B, §§ 2.02 and 2.03. Rejecting the plaintiffs’ challenge, the Court stated: “These requirements of uniformity and comprehensiveness for the regulations which the Zoning Ordinance might prescribe were not incompatible with the retention by the Mayor and City Council of the power to legislate separately with respect to the issuance of permits for filling stations in areas where, by the Zoning Ordinance, they are not definitely prohibited. The nature of that class of uses is such as to make them a proper subject of special municipal regulation____In reserving that ⁶²² function for its legislative action, the city government could not be held to have exceeded its authority.

The considerations affecting the comprehensive solution of such a municipal problem are clearly appropriate for the exercise of the city’s legislative judgment.” 166 Md. at 327-28 . We think that the rationale employed by the Court in Kramer is equally applicable to the matter at hand. The location of large-scale housing projects is certainly a matter upon which the local legislature might elect to exercise its legislative judgment and expertise. Appellants were unable to adduce any evidence tending to show that the City had abused its discretion, under §§ 4.5-ld and 4.0-2c, by acting inconsistently or unfairly in granting or denying other conditional use applications.

Absent such a showing, we cannot say that the mere retention of the power to pass on conditional uses and height and density restrictions derogates from the uniformity mandate of § 2.02. This is especially so in light of the fact that the Council’s power over conditional uses was applicable throughout all parts of each and every R-5 district in Baltimore City. Cf. City of Baltimore v. Mano Swartz, 268 Md. 79, 91 , 299 A. 2d 828 (1973) (striking down as non-uniform, ordinance which prohibited signs in only certain parts of commercial use districts).

For similar reasons, appellants’ constitutional challenge to §§ 4.5-ld and 4.0-2e is without merit. In essence, appellants urge that the reservation of the special exception power to the City Council without express standards or guidelines to control its discretion violates the Due Process and Equal Protection Clauses of the Federal and State Constitutions. Once again, appellants’ argument runs headlong into a prior decision of this Court in which this precise issue was resolved contrary to their position here. In Gino’s v. Baltimore City, 250 Md. 621 , 244 A. 2d 218 (1968), the plaintiffs contested the constitutionality of Baltimore City Ordinance 938, approved July 28, 1961, which gave the City Council sole power to approve any drive-in food establishment in the First Commercial District where food and drink were consumed in automobiles stationed on the restaurant parking lot.

It was ⁶²³ argued that the retention of this power by the local legislature was repugnant to Article 23 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States