Filed April 3, 2007. Opinion by Judge Peter B. Krauser.
On appeal from the grant of Hagerstown's motion for summary judgment in a case involving a challenge to Hagerstown's Adult Businesses Ordinance, the Court AFFIRMED the decision below.
Appellant ("104") owns and operates Hagerstown's only "adult" establishment, selling books, magazines, videos, lingerie and novelties and providing booths for customers to view adult videos. Reports of drug and sexual activities prompted the police and health departments to take action against the facility, and in 2002 the Mayor and City Council of Hagerstown passed an Adult Business Ordinance (the "ABO"), to regulate the time, place and manner in which Hagerstown's adult businesses could operate.
In 2003, 104 filed a complaint against Hagerstown and its police chief, seeking declaratory and injunctive relief. After a brief removal to the United States District Court, the case was heard by the Circuit Court for Washington County. Several amendments were made to the ABO during the pendency of the case to conform with developing case law, and the trial court eventually granted Hagerstown's motion for summary judgment.
On appeal, 104 claimed the ABO violated the First Amendment to the federal constitution, and Article 40 of the Maryland Declaration of Rights, arguing that the ABO was not "narrowly tailored to serve a significant government function", since there was no "pre-enactment evidence" in the legislative record, and thus the supplemental materials submitted in support cannot sustain the regulation.
The Court, in applying the Renton test, found neither the federal nor the state constitutions require pre-enaction evidence, and that indications of the "negative secondary effects" were before the legislators when the ABO was being enacted. Further, the Court noted that there is no constitutional requirement that the least restrictive means be employed in addressing the problem and 104's objections to the form and timing of certain affidavits submitted to the trial judge in support of Hagerstown's summary judgment motion were found to not be well grounded.
The Court also found little merit in 104's argument that, because the ABO does not contain provisions allowing for judicial review, it constitutes an unconstitutional prior restraint on free speech, since the issue was not raised below, and in any event, ordinary judicial review would be adequate in this case. Finally, the Court found that the ABO did not permit arbitrarily withholding a license, but only for the violation of the statute.
The opinion is available in PDF format.
Showing posts with label Judge Krauser Peter. Show all posts
Showing posts with label Judge Krauser Peter. Show all posts
Tuesday, April 3, 2007
Sunday, April 1, 2007
City of Annapolis v. Bowen et al. (Ct. of Special Appeals)
Decided March 30, 2007—Opinion by Judge Peter Krauser
Retired firefighters and police officers sought declaratory and injunctive relief requiring the City of Annapolis (“City”) to increase their pension payments in tandem with reclassification of the positions of their active-duty counterparts. The Circuit Court for Anne Arundel County agreed that Annapolis City Code § 3.36.150A1 required that the retirees receive pension increases commensurate with wage increases received by active-duty personnel. The City appealed, contending that pension increases under ACC § 3.36.150A1 were limited to cost-of-living adjustments.
The retirees first argued that Maryland Code (1974, 2006 Repl. Vol.) § 12-302 of the Courts and Judicial Proceedings Article barred the City’s appeal. Reasoning that circuit court had been exercising mandamus jurisdiction below, the Court of Special Appeals found that it had jurisdiction to hear the City’s appeal.
On the merits, the retirees argued that their interpretation of ACC § 3.36.150A1 was supported by “similar legislation” in DC. The “similar” DC provision contains an explicit “equalization provision” granting retired police officers and firefighters increases in their pension when active-duty counterparts receive wage increases. The Court of Special Appeals held that the DC provision was not a cost-of-living provision like ACC § 3.36.150A1, and was in fact created to compensate for the absence of such a provision in DC. Thus the Court reversed the lower court’s decision.
The opinion is available in PDF.
Retired firefighters and police officers sought declaratory and injunctive relief requiring the City of Annapolis (“City”) to increase their pension payments in tandem with reclassification of the positions of their active-duty counterparts. The Circuit Court for Anne Arundel County agreed that Annapolis City Code § 3.36.150A1 required that the retirees receive pension increases commensurate with wage increases received by active-duty personnel. The City appealed, contending that pension increases under ACC § 3.36.150A1 were limited to cost-of-living adjustments.
The retirees first argued that Maryland Code (1974, 2006 Repl. Vol.) § 12-302 of the Courts and Judicial Proceedings Article barred the City’s appeal. Reasoning that circuit court had been exercising mandamus jurisdiction below, the Court of Special Appeals found that it had jurisdiction to hear the City’s appeal.
On the merits, the retirees argued that their interpretation of ACC § 3.36.150A1 was supported by “similar legislation” in DC. The “similar” DC provision contains an explicit “equalization provision” granting retired police officers and firefighters increases in their pension when active-duty counterparts receive wage increases. The Court of Special Appeals held that the DC provision was not a cost-of-living provision like ACC § 3.36.150A1, and was in fact created to compensate for the absence of such a provision in DC. Thus the Court reversed the lower court’s decision.
The opinion is available in PDF.
Thursday, March 8, 2007
Rodeheaver v. State (Ct. of Spec. Appeals)
Filed March 6, 2007. Opinion by Judge Peter B. Krauser.
John Ellwood Hinebaugh devised a large parcel of land to the Sebolds provided they, among other things, did not alienate their interest in the property and continued to farm it. If they did not comply with the terms and conditions of the devise or disclaimed the devise, the property was to pass, under the Will, to the State of Maryland subject to the same conditions and covenants. The Will did not provide for a reversion should the State not comply with the terms and conditions.
Following the Sebolds disclaiming the devise, the State filed a complaint for declaratory judgment in the Circuit Court for Garrett County requesting the alienation provision of the Will be declared invalid and the farming provision unenforceable. Mr. Sebold, as the executor of the Will, and Shelley Rodeheaver, a residuary beneficiary whose request to intervene was granted, opposed the State’s action. The circuit court then granted the State’s subsequent motion for summary judgment. Rodeheaver acquiesced in the court’s ruling that the alienation provision was invalid but maintained on appeal that the circuit court erred in finding the condition that the property continue to be farmed was unenforceable, and if the State failed to farm the property the property would devolve to her and the other residuary beneficiaries.
In affirming the lower court’s decision, this Court reasoned that although a grantor, under Maryland law, can place conditions and restrictions on the use of the granted property, such conditions and restrictions are disfavored because the law favors the free transfer of land. So disfavored are these conditions that the Court of Appeals has declared that a will shall not be construed to create an estate on condition [subsequent] unless the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated, i.e., the testamentary language purporting to create such a condition must clearly state that the grant is void if the condition is not carried out. Otherwise, the grant merely expresses the grantor’s confidence that the grantee will use the property so far as may be reasonable and practicable to effect the purpose of the grant.
The Will did not include language indicating that, if the State did not comply with the farming provision, the grant to the State would become void and revert to Hinebaugh. Without such language, the property would not revert to the estate even if the original beneficiary failed to comply with the stated condition. Because, under the Will, there can be no reversion to Hinebaugh’s estate even if the State ceased to farm the property, the property cannot devolve, through a reversion, to Rodeheaver and the other residuary beneficiaries, and because there is no one else to whom, under the terms of the will, the property can devolve, the farming provision is unenforceable.
The full opinion is a available in PDF.
John Ellwood Hinebaugh devised a large parcel of land to the Sebolds provided they, among other things, did not alienate their interest in the property and continued to farm it. If they did not comply with the terms and conditions of the devise or disclaimed the devise, the property was to pass, under the Will, to the State of Maryland subject to the same conditions and covenants. The Will did not provide for a reversion should the State not comply with the terms and conditions.
Following the Sebolds disclaiming the devise, the State filed a complaint for declaratory judgment in the Circuit Court for Garrett County requesting the alienation provision of the Will be declared invalid and the farming provision unenforceable. Mr. Sebold, as the executor of the Will, and Shelley Rodeheaver, a residuary beneficiary whose request to intervene was granted, opposed the State’s action. The circuit court then granted the State’s subsequent motion for summary judgment. Rodeheaver acquiesced in the court’s ruling that the alienation provision was invalid but maintained on appeal that the circuit court erred in finding the condition that the property continue to be farmed was unenforceable, and if the State failed to farm the property the property would devolve to her and the other residuary beneficiaries.
In affirming the lower court’s decision, this Court reasoned that although a grantor, under Maryland law, can place conditions and restrictions on the use of the granted property, such conditions and restrictions are disfavored because the law favors the free transfer of land. So disfavored are these conditions that the Court of Appeals has declared that a will shall not be construed to create an estate on condition [subsequent] unless the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated, i.e., the testamentary language purporting to create such a condition must clearly state that the grant is void if the condition is not carried out. Otherwise, the grant merely expresses the grantor’s confidence that the grantee will use the property so far as may be reasonable and practicable to effect the purpose of the grant.
The Will did not include language indicating that, if the State did not comply with the farming provision, the grant to the State would become void and revert to Hinebaugh. Without such language, the property would not revert to the estate even if the original beneficiary failed to comply with the stated condition. Because, under the Will, there can be no reversion to Hinebaugh’s estate even if the State ceased to farm the property, the property cannot devolve, through a reversion, to Rodeheaver and the other residuary beneficiaries, and because there is no one else to whom, under the terms of the will, the property can devolve, the farming provision is unenforceable.
The full opinion is a available in PDF.
Monday, March 5, 2007
People's Counsel for Baltimore County, Maryland v. Elm Street Development, Inc. (Ct. of Special Appeals)
Filed March 2, 2007. Opinion by Judge Peter B. Krauser.
In a case so replete with procedural issues specific to Baltimore County subdivision ordinances that it almost defies synopsis, the Court of Special Appeals upheld the decision of the Circuit Court for Baltimore County approving a red-lined revised subdivision plan pursuant to applicable sections of the Baltimore County Code and consistent with applicable regulations.
In affirming that decision, the Court of Special Appeals held that while the County Board of Appeals must find "substantial evidence" that a subdivision development plan approved by several County departments meets the requirements of applicable ordinances and regulations before affirming that approval on administrative appeal, those agencies need not state "facts and reasons" justifying those regulatory approvals for the Board of Appeals to affirm such a development plan. The Court of Special Appeals noted that the more rigorous "facts and reasons" requirement may apply in many zoning appeals as distinguished from subdivision development plan appeals.
The opinion is available in PDF format.
In a case so replete with procedural issues specific to Baltimore County subdivision ordinances that it almost defies synopsis, the Court of Special Appeals upheld the decision of the Circuit Court for Baltimore County approving a red-lined revised subdivision plan pursuant to applicable sections of the Baltimore County Code and consistent with applicable regulations.
In affirming that decision, the Court of Special Appeals held that while the County Board of Appeals must find "substantial evidence" that a subdivision development plan approved by several County departments meets the requirements of applicable ordinances and regulations before affirming that approval on administrative appeal, those agencies need not state "facts and reasons" justifying those regulatory approvals for the Board of Appeals to affirm such a development plan. The Court of Special Appeals noted that the more rigorous "facts and reasons" requirement may apply in many zoning appeals as distinguished from subdivision development plan appeals.
The opinion is available in PDF format.
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