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Aberle v. Mayor and City Council of Baltimore

Decided: May 8, 1962.

ABERLE ET AL.
v.
MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.



Appeal from the Baltimore City Court; Prendergast, J.

Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

The decision in this case turns on the applicability of Maryland Rule B4 a (formerly Rule 1101 d 1) to appeals from the Baltimore Board of Municipal and Zoning Appeals to the Baltimore City Court.

The Building Engineer denied an application of Purdue Apartments, Inc., for a permit to erect an apartment building to house more families than the area requirements permitted. The applicant appealed to the Board and a hearing was held on June 13, 1961, at which the appellants appeared as protestants. At the conclusion of the hearing, the Chairman of the Board announced that the matter would be considered further and that the parties would hear from the Board. Later the

same day the Board approved the application and, by a notice dated June 16 and mailed in an envelope postmarked June 19, notified the protestants of record of the action taken on June 13. The protestants filed notice of appeal in the Baltimore City Court on July 14 and within ten days thereafter filed the petition required by Maryland Rule B2 e, setting forth the action appealed from, the error alleged to have been committed, and the relief sought. The Mayor and City Council demurred on the ground that the appeal was taken too late, in that it had not been taken within thirty days of the day the Board decided the matter. Purdue Apartments, Inc., intervened and filed a motion to dismiss the appeal, based on the same grounds.

At a hearing before Judge Prendergast, the protestants argued that Maryland Rule B4 a had superseded Code (1957), Art. 66B, Sec. 7 (j), which this Court held in State Housing, Inc. v. Baltimore, 215 Md. 294, 296, was applicable to zoning appeals in Baltimore City and required the appeal to be taken within thirty days from the day upon which the Board decided the matter. Rule B4 a provides:

"An order for appeal shall be filed within thirty days from the date of the action appealed from, except that where the agency is by law required to send notice of its action to any person, such order for appeal shall be filed within thirty days from the date such notice is sent, or where by law notice of the action of such agency is required to be received by any person, such order for appeal shall be filed within thirty days from the date of the receipt of such notice."

Judge Prendergast decided that it made no difference whether the statute or the rule controlled because he found no requirement in law for notice to the protestants of any action taken by the Board and, therefore, no basis for measuring the period for appeal from the "date * * * notice is sent." The appeal to this Court is by the protestants from the dismissal of their appeal.

We find the Rule to have complemented Sec. 7 (j) of Art.

66B. Their provisions are the same in effect in requiring an appeal generally to be taken within thirty days of the action complained of, but the Rule adds the exceptions that where the law requires the agency to send notice of its action or that notice be received, the thirty days begin to run from the sending or the receipt, as the case may be.

Subtitle B of Ch. 1100 of the Maryland Rules was clearly intended to apply to appeals from all administrative agencies as defined therein. Rule B1 a says that the subtitle shall apply to the review of any final action of an administrative agency by a court "where such review is specifically authorized by statute." Rule B1 b defines administrative agency to mean, inter alia, "any board * * * of the State or of a county or local government, whether appointed or elected, whether legislative, ...


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