Kahl v. Consolidated Gas, Electric Light & Power Co. ( 1948 )

I am unable to concur in the conclusion of a majority of the court, that the case should be remanded for further proceedings before the Zoning Commissioner. The appellants initiated these proceedings in March, 1946, to enjoin the construction of the overhead power line as proposed, and by amended and supplemental bills raised the issue of noncompliance with regulations adopted while the original suit was pending. Voluminous testimony was offered on both sides, and it is unlikely that any new light could be thrown on the problem in a new hearing. To hold that the defense on constitutional grounds, raised by the answers, is not available at this stage of the case serves no useful purpose, and will unduly delay a final decision on the merits and the construction of a vital public facility. I think the authorities support the assumption of jurisdiction by the chancellor under the circumstances.

The doctrine that where a statutory remedy is provided, by way of appeal from the action of an administrative body, such remedy is exclusive, is essentially a doctrine of convenience. With due regard to the legislative prerogative of denying or limiting appeals to the courts, or to this court, we have held that the jurisdiction of equity to review arbitrary or illegal action is inherent. Hecht v. Crook, 184 Md. 271, 40 A.2d 673, Heaps v.Cobb, 185 Md. 372, 45 A.2d 73; Gianforte v. Board of LicenseCommissioners, 190 Md. 492, 58 A.2d 902. This is particularly true where property rights are involved, and there is a general attack upon the constitutionality of an Act (Jones v. Gordy,169 Md. 173, 180 A. 272), or its constitutional validity as applied to a particular person or class. Buck Glass Co. v.Gordy, 170 Md. 685, 185 A. 886. See also Prince George's Countyv. Northwest Cemetery Co., 160 Md. 653, 154 A. 452; MarylandTheatrical Corp. v. Brennan, 180 Md. 377, 24 A.2d 911, and AnneArundel County v. English, 182 Md. 514, 35 A.2d 135, 150 A.L.R. 842. If, however, the solution of the question depends, in whole or in part, upon findings within the expert knowledge of the administrative tribunal, relief in equity will be denied. Compare Oursler v. Tawes, 178 Md. 471,13 A.2d 763 and Tawes v. Williams, 179 Md. 224, 17 A.2d 137, 132 A.L.R. 1105. Likewise, where a statutory remedy is invoked but not pursued as contemplated by statute, equity will not intervene. Stark v. State Board of Registration, 179 Md. 276,19 A.2d 716; Anne Arundel County v. Snyder, 186 Md. 342,46 A.2d 689. In the instant case the contentions raised by the appellee challenge the constitutional validity of all the amendments to the existing regulations, adopted November 15, 1946, and assert a total lack of power in the Zoning Commissioner to refuse a special permit under the facts shown in the record. The amended regulations are directed solely at the appellee, and at no other utility. There is no suggestion that any other power line is in prospect. The regulations are carefully tailored to fit the particular case. No permit is required for the erection of power lines along public highways, or anywhere except on private rights of way in residential districts. Nor is a permit required for overhead lines of less than 5,000 volts. The whole record supports the chancellor's finding that "the real issue is the question of the protection of the scenic beauty of a small section of the Green Spring Valley".

It is quite true that zoning looks to the future, and has as one of its principal objects the preservation of property values in residential districts by prohibiting or restricting the establishment of new commercial or industrial enterprises in particular areas. The unsightliness of particular structures may also be considered as one of the factors affecting property values. But there is a vast difference between restrictions upon private undertakings and those which are clothed with a public interest and must have access to the centers of population if they are to perform their public function. In weighing the reasonableness of the particular restriction here in question, the harm to property owners in the immediate vicinity of the line must be balanced against the benefits to all the users of electric power in the whole urban area.

In Baltimore Ohio R. Co v. Waters, 105 Md. 396, 66 A. 685, 694, 12 L.R.A., N.S., 326, the legislature had passed an Act denying to the railroad company the right to build a connecting line through certain rural sections. In declaring the Act invalid, this court said: "The evidence in this case not only wholly fails to show that the interests of the public generally require the enactment of this law, but it satisfies us that it has been enacted in the interest of a particular class, viz., the property owners nearest the line of the road, whose property will undoubtedly be rendered less desirable by the construction and operation of the road * * *." In Public Service Commission v.Philadelphia, B. W.R. Co., 155 Md. 104, 141 A. 509, it was held that the Public Service Commission exceeded its powers in annexing to its permit for the relocation of a railroad line a proviso that a particular grade be used, to avoid an embankment which would obstruct the view of property owners. See alsoPublic Service Commission v. Williams, 166 Md. 277, 170 A. 517. It is suggested that these were not zoning cases, and that the zoning power is broader than that exercised by the Public Service Commission. However, the zoning power is only a special application of the police power, and its exercise can only be justified if, in fact, it promotes the public health, safety, convenience or general welfare, and not simply the interests of a particular class or group of property owners. Brenner v.Tribbit, 190 Md. 6, 57 A.2d 346; Northwest Merchants Terminalv. O'Rourke, 191 Md. 171, 60 A.2d 743. Compare Perellis v.Baltimore, 190 Md. 86, 95, 57 A.2d 341, 346. Conceding the broad scope of the zoning power, as laid down in the leading case ofEuclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016, the exercise of that power will always be scrutinized by the courts to determine its reasonableness in a particular case. Nectow v. Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842; R.B. Construction Co. v. Jackson, 152 Md. 671, 137 A. 278. Compare Anne Arundel County v. Ward,186 Md. 330, 46 A.2d 684, 165 A.L.R. 816. If the question is not "fairly debatable", the zoning cannot stand.

It is perfectly clear from the record that the erection of the power line on the route proposed will not affect the public safety. The appellants were unable to cite a single case, in Maryland or elsewhere, where a member of the public received a personal injury from a similar line. The chancellor found that the whole line of 7.17 miles would cross only 23 properties, which have an average area of 127 acres. Twelve are farms, five are vacant and unimproved, two are commercial. 58% of the line is through woodland, 28% through uncultivated fields, 14% through tilled fields. The average distance of the line from the houses on the properties crossed is 950 feet. The average distance of the houses of the Cassell complainants is 1826 feet.

In his report to the Public Service Commission on August 7, 1945, the Chief Engineer of that body recommended approval of the project. He said: "The proposed route is by far the best selection in the Northwest quadrant of the City and adjacent territory. In fact, there is no other feasible route north of Holsfield." He also stated that the cost of underground construction would be "prohibitive". In the previous appeal of the condemnation suit (Johnson v. Consolidated Gas ElectricLight Power Co., 187 Md. 454, 464-467, 50 A.2d 918, 923, 170 A.L.R. 709) we said that the company had not abused the discretion granted by its franchise "in determining the reasonable necessity of constructing the electric line * * * as an overhead line rather than underground", and pointed out that enhanced costs would "be reflected in higher electric rates to the public as consumers". The present record indicates, and the chancellor found as a fact, that the cost of placing underground the 3.27 miles of line across the Rockland area would be in excess of $700,000, as compared with an estimated cost of some $200,000 for the overhead line. The chancellor found that the additional annual charge to the consuming public would be "between $102,000 and $190,000." Cost is a necessary consideration in determining the reasonableness of an exercise of the police power (Lehigh Valley R. Co. v. Boardof Public Utility Com'rs, 278 U.S. 24, 49 S. Ct. 69, 73, L.Ed. 161, 62 A.L.R. 805) despite the provision in the regulations (4 F) that enhanced cost of underground construction "shall not in itself be deemed sufficient cause for the issuance of a permit for overhead construction." Moreover, practical and engineering difficulties were suggested, which might materially affect the quality of service. It was shown that underground transmission of electricity at the voltage required is a comparatively recent technical development, which has not been tried anywhere except in the vicinity of Detroit. The new line serving New York, crossing the exclusive Westchester district, was erected overhead with the approval of the Public Service Commission, despite strenuous protest by property owners. The New York courts have also held that municipalities could not block the construction of overhead lines or gas holders, in the exercise of a franchise power, by an attempted exercise of the zoning power. Long IslandLighting Co. v. Old Brookfield, 273 A.D. 856, 77 N.Y.S.2d 143;Long Island Lighting Co. v. Griffin, 272 A.D. 551,74 N.Y.S.2d 348.

If the Zoning Commissioner, after remand in the instant case, should refuse a permit, or attach conditions that would compel underground construction, the result would be to deprive the utility of its right to use property acquired or condemned prior to the adoption of the present regulations, and would limit the exercise of its franchise power to select the best and cheapest method of serving its customers. The additional cost to the general public would be of no benefit to the community at large, but only benefit a small group of property owners in the vicinity of the line, to the extent that the value of their property would not be impaired by the presence of unsightly structures. I think the record shows no substantial basis for the exercise of such a power, and that the chancellor's action in striking down the amended regulations should be affirmed. The confirmatory Act of 1947 cannot have the effect of validating regulations which transcend the limits of the police power.

I am authorized to say that Judge DELAPLAINE concurs in this dissent.