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Town of Berwyn Heights v. Rogers

Decided: April 10, 1962.

TOWN OF BERWYN HEIGHTS
v.
ROGERS



Appeal from the Circuit Court for Prince George's County; Parker, J.

Henderson, Hammond, Prescott, Horney and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

The appellant, a municipal corporation, brought suit in the Circuit Court for Prince George's County to enjoin the construction, by the appellee, of a dwelling being erected by him on a lot located in the Maryland-Washington Regional District (District) on the ground that such construction violated certain provisions of the Zoning Ordinance for the District.

There is little, if any, dispute concerning the facts. The appellee, a builder of dwellings, on or about May 7, 1961, began construction of a residence on a corner lot, known as Block 34, Lot 40, in Berwyn Heights, bearing a residential zoning classification of R-55. Appellant's Exhibit No. 1 shows that the lot, 50' X 200' fronts on Edmonston Road and abuts on Pontiac Street along its side street line, and that the rear lot adjoining Lot 40 fronts on Pontiac Street. Exhibit No. 1 further shows that the appellee established a side building line and side yard of 17 feet. The dwelling is 24 feet wide. Construction was begun only after appellee had received building permits from both the appellant's and the county's building inspectors, and construction was in conformity with said permits.

However, appellant concluded that a mistake had been made in the issuance of said permits, and placed a stop work order on further construction. Appellant then wrote the County Commissioners, who referred its letter to the Administrator, Department of Licenses and Permits. The Administrator wrote the appellant that the appellee had complied with the zoning regulations, and "has approval of all required agencies." This suit followed.

I

The first question involved is whether the trial court had jurisdiction to entertain the suit for injunction. The appellant relies upon the provisions of Sec. 99 of Ch. 780 of the Acts of 1959, which, after making the construction of any building in violation of any of the provisions of "this subtitle," or of any of the provisions of any regulation enacted under said sub-title unlawful, states:

"In addition to all other remedies provided by law, * * * [the] public officials of any municipality or political sub-division within the Regional District, * * * may institute injunction, mandamus, or other appropriate action or proceeding to prevent such unlawful construction, * * * or use. Any court of competent jurisdiction has jurisdiction to issue restraining orders and temporary or permanent injunctions or mandamus or other appropriate forms of remedy or relief."

The appellee acknowledges the statute, which, of course, he must, but argues that irrespective thereof, the appellant could not avail itself of relief thereunder until it had exhausted its administrative remedies, such as the right to appeal to the Board of Zoning Appeals under Section 29.5 of the Zoning Ordinance.

It is a well-established general rule, to which there are exceptions, that where an administrative remedy is provided by statute, such remedy must usually be exhausted before a litigant may resort to the courts. Maryland cases to this effect are collected in 1 M. L. E., Administrative Law and Procedure,

§§ 5, 6 and 7. But in the instant case, we think the Legislature, by clear and forceful terms, showed an intention to create alternate and additional remedies to the administrative ones named in the statute and those created by regulations authorized by the statute. The words, "in addition to all other remedies provided by law" are plain and unambiguous, and must be given the import that the Legislature intended them to have. Where administrative remedies are not exclusive but merely cumulative to or concurrent with a judicial remedy, the rule that administrative remedies must be exhausted before resort is had to the courts does not come into play. 42 Am. Jur., Public Administrative Law, §§ 199, 252, and 255; 73 C.J.S. Public Administrative Bodies & Procedure, § 41, p. 354; Scripps Memorial Hospital v. California Emp. Com'n, 151 P. 2d 109, 112 (Cal.); City of ...


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