Board of Appeals v. Marina Apartments, Inc.

Levine, J.,

dissenting:

Finding myself in disagreement with the majority, I respectfully dissent. My reasons for doing so follow.

*702At the outset, it can not be said — as the court below found, and the majority holds — that the Board of Appeals exceeded its jurisdiction because, in effect, it reversed the WSSC’s decision to issue the sewer connection permit. On the contrary, the Board actually said:

“Although it is clear that the WSSC permit must be obtained before a building permit can be issued, the Board finds no applicable state or local regulation which prohibits the building inspector from exercising his independent judgment in fulfilling his obligations under Montgomery County Code, Section [85-88], which requires that plans for adequate provision for disposing of waste, sewage and drainage be presented the building inspector having jurisdiction. Although the Building Inspector may not validate or invalidate the action of the WSSC, he and he alone has the final authority for his own decision to issue a building permit or not,. . . .” (emphasis added).

Elsewhere, the Board said:

“Neither the Building Inspector nor the Montgomery County Board of Appeals has authority to review the WSSC clearance in order to take action having legal effect on the WSSC. It is important to keep clearly in mind the distinction between such an administrative review and an inquiry intended to serve as a basis for an independent decision whether or not a building permit should be issued.” (emphasis added).

Thus the Board found:

“. .. that the building inspector, in issuing the permits, arbitrarily and capriciously failed to carry out his responsibility for ascertaining that the project was in conformity with applicable laws and regulations, and, although he had notice of the sewer moratorium, he failed to require that plans be presented to him for adequate provisions for *703disposing of the waste, sewage and drainage of the proposed structure. . . .”

In revoking the building permit, therefore, the Board did not reverse the WSSC’s issuance of the sewer connection permit, but merely reviewed the building inspector’s issuance of the building permit in light of the building code requirement that he issue such a permit only if “satisfied that the proposed work conforms to the requirements of the Basic Code and all laws and ordinances applicable thereto, ” and that if “the application or the plans do not conform to the requirements of all pertinent laws, he shall reject such application . . . .” (emphasis added). Marina concedes, as I think it must, that the provision in § 85-88 for “disposing of the waste, sewage, and drainage from the building” is not to be read so narrowly as to mean only disposal from the actual building, but rather that it means removal to an effective treatment location. In any event, the Board merely limited itself, as required by section 8-54 of the County Code, to a determination of whether “such decision or order was made in accordance with the provisions of this chapter [the building code] and other applicable laws....” (emphasis added).

I do not agree that the Board exceeded the power conferred upon it by Art. 25A, § 5 (U). The Board acted within the framework of local law, section 8-54 of the County Code, which limits the Board to decisions “made in accordance with the provisions of this chapter [the building code] and other applicable laws.. . . ” (emphasis added). Furthermore, it was engaged in reviewing the action of the building inspector whose approval of building permits, as previously noted, may be granted only when the application or plans “conform to the requirements of all pertinent laws,” and who must reject those which do not conform to “the requirements of the Basic Code and all laws and ordinances applicable thereto. ” (emphasis added).

The question which then arises under this contention is whether the terms, “other applicable laws,” “all pertinent *704laws,” and “all laws . . . applicable thereto” necessarily refer only to local laws, consistent with the limitations in Art. 25A, § 5 (U), or whether they may also be read to embrace a specific law, such as section 85-88, which, although contained in a comprehensive statutory enactment held to be public general law, is itself applicable solely to Montgomery County. Clearly, I think, the local legislative body, in specifying the jurisdiction of the Board and the building inspector, intended to include such a law if it otherwise met the test of pertinency and applicability, even though it might not qualify as a “local law.”

Without attempting to decide what other public general law this might include, if any, in my view it is sufficient to hold that a law which applies solely to Montgomery County, although falling within the category of public general law, and otherwise “pertinent” or “applicable,” must be considered by the building inspector in the discharge of his responsibilities under the building code. And for the Board to review his compliance vel non with that requirement is not a circumvention of its jurisdictional limitation in § 5 (U).

It must be borne in mind that since the Regional District Act is a public general law, relating in part to the same subject matter as § 5 (U), i.e., building permits, and neither being inconsistent with the other, both should be construed together so that they will harmonize with each other and be consistent with their general object and scope. Bd. of Fire Comm’rs v. Potter, 268 Md. 285, 300 A. 2d 680 (1973); Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A. 2d 721 (1972); Valle v. Pressman, 229 Md. 591, 185 A. 2d 368 (1962); May v. Warnick, 227 Md. 77, 175 A. 2d 413 (1961); see Prince George’s Co. v. McBride, 263 Md. 235, 282 A. 2d 486 (1971); Balto. Transit v. Mezzanotti, 227 Md. 8, 174 A. 2d 768 (1961). This is so even though they wefe passed at different times and contain no reference to each other. Bd. of Fire Comm’rs v. Potter, supra; Subsequent Injury Fund v. Chapman, 11 Md. App. 369, 274 A. 2d 870 (1971), aff'd mem., 262 Md. 367, 277 A. 2d 444 (1971); May v. Warnick, supra. Cf. Bowie v. Wash. Sub. San. Comm’n, 249 Md. 611, 241 A. 2d 396 (1968), *705where we read the Sanitary Commission law in pari materia with relevant provisions of Code Art. 43.

I see no inconsistency or conflict between the legislative determination that the WSSC shall have exclusive jurisdiction over the approval and issuance of sewer connection'permits and a local statutory scheme which precludes the building inspector from issuing a building permit “unless adequate provision is made for disposing of. . . w’aste, sewage, and drainage.” The fact that the General Assembly has seen fit to delegate to the WSSC sole authority for issuance of sewer connection permits does not place the county regulatory scheme, applicable to building permits, in conflict with public general law, cf. Pr. George’s Co. v. Md.-Nat’l Cap., 269 Md. 202, 306 A. 2d 223 (1973); nor can the Sanitary Commission Act be viewed as a legislative determination that Montgomery County may not, by local law, require adequate sewerage in regulating the issuance of building permits. See City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A. 2d 376 (1969) and the cases cited therein; cf. Vermont Fed. S. & L. v. Wicomico Co., 263 Md. 178, 283 A. 2d 384 (1971).

For these reasons, I believe that the circuit court erred in ruling that the Board lacked jurisdiction to entertain the appeal from the granting of the building permit. Since the remaining questions raised on appeal from the Board’s decision were neither reached by the circuit court nor adequately briefed and argued in this Court, I would remand the case for consideration of the remaining questions without affirmance or reversal.

Judge Eldridge authorizes me to state that he concurs in the views expressed herein.