Aaron v. City of Baltimore, 167

• Decision Date: 13 June 1955
• Docket Number: No. 167,167
• Citation: 207 Md. 401,114 A.2d 639
• Parties: Samuel J. AARON v. CITY OF BALTIMORE and Lillie M. Jackson and Florence L. Snowden, etc.
• Court: Maryland Court of Appeals

Page 401

207 Md. 401

114 A.2d 639

Samuel J. AARON v. CITY OF BALTIMORE and Lillie M. Jackson and Florence L. Snowden, etc.

No. 167.

Court of Appeals of Maryland.

June 13, 1955.

Jacob D. Hornstein, Baltimore (Howard L. Aaron and Albert G. Aaron, Baltimore, on the brief), for appellant.

Francis J. Valle, Asst. City Sol, Baltimore (Thomas N. Biddison, City Sol., Baltimore, on the brief), for City of Baltimore.

Juanita Jackson Mitchell, Baltimore, for Lillie M. Jackson and Florence L. Snowden.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from an order of the Baltimore City Court reversing two decisions of the Board of Municipal and Zoning Appeals (the Board).

On February 27, 1953, the appellant, Samuel J. Aaron, purchased the property at 1128 Druid Hill Avenue in Baltimore from one Ulysses Gray. Previous to March 31, 1953, in order to renovate and modernize the property, the appellant filed an application with the Buildings Inspection Engineer as a non-conforming use to use the front of the basement at 1128 Druid Hill Avenue as a retail store and to house four families in the building. This application was disapproved by the Buildings Inspection Engineer. Appellant then filed an appeal with the Board. It is admitted that the area was not such as to allow occupancy by four families under the zoning ordinance. There was sufficient area for three-family occupancy. Ordinance 1247 of Baltimore City, approved March 30, 1931, provided in Paragraph 28, Section J, as follows: 'Notwithstanding other provisions of this ordinance pertaining to the number of families per acre, nothing contained in this ordinance shall be construed to interfere with or restrict the number of families occupying buildings at the time of the passage of this ordinance.' There was no substantial change in this provision in revised Ordinance 711, Section 31K, approved May 21, 1953.

A hearing was held by the Board on this appeal on March 31, 1953, and on April 2, 1953, the Board passed a resolution denying appellant's application. Appellant then filed an appeal from the decision of the Board to the Baltimore City Court. On May 11, 1953, the Baltimore City Court passed an order remanding the case to the Board with instructions to take additional testimony, after due notice to all the parties in interest, and to render its decision. A second hearing was held on the remand by the Board on June 2, 1953. Additional testimony was taken. No protestants appeared at that hearing. The Board on June 11, 1953, passed a resolution reversing its action of April 2, 1953, and approving the application. It developed that the Board had failed to give notice to the original protestants of the hearing held on June 2, 1953, and this fact was brought to the attention of the City Solicitor of Baltimore. Thereupon, as a result of a petition filed by the City, the Baltimore City Court on July 15, 1953, again remanded the case to the Board with instructions to take additional testimony and evidence, after giving notice to all parties in interest. A third hearing was held before the Board on September 8, 1953, at which hearing protestants appeared. As a result of that hearing on September 10, 1953, the Board passed a resolution reaffirming its approval of appellant's application and finding that a non-conforming use had been established for four-family occupancy of the premises before March 30, 1931. Appeals were then taken by the protestants to the Baltimore City Court from the orders of the Board of June 11, 1953, and September 10, 1953, granting the application. A hearing was held before Judge Herman M. Moser of the Baltimore City Court on November 13, 1953, at which hearing the testimony before the Board was considered and additional testimony was taken. As a result of that hearing on December 16, 1953, Judge Moser signed a decree reversing the decision of the Board dated September 10, 1953, which reaffirmed its decision dated June 11, 1953, and denying the applications for the permit to house four families at 1128 Druid Hill Avenue. After further proceedings, not here pertinent, an appeal was taken to this Court.

In the briefs in this Court an attack was made on the statutory authority of the Baltimore City Court to remand the case to the Board for the taking of additional testimony. This point was abandoned in argument in this Court and it was agreed by all the parties that the Baltimore City Court had jurisdiction to pass the orders appealed from.

The State Zoning Enabling Act, Code, 1951, Article 66B, Section 7, as amended by Chapter 696, Section 3, of the Acts of 1953, provides that any person aggrieved by any decision of the Board may present to a court of record a petition setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality. The court, among other things, may reverse or affirm, wholly or partly, or may modify the decision brought up for review. The Baltimore City Zoning Ordinance, supra, paragraph 40, repeats the authorization and designates the Baltimore City Court as the court of record. It is well settled by many decisions in this State that the court will not substitute its discretion for that of the Board in zoning cases. The duty of the Board is to exercise the discretion of experts. The court, although it may not arrive at the same conclusion, will not disturb a decision of the Board on review, if the Board has complied with all legal requirements of notice and hearing and the record shows substantial evidence to sustain the finding. The decision of the Board here is reviewable by the Baltimore City Court and by this Court on appeal, not only when there has been an erroneous interpretation of the law but also where there has been a finding without substantial evidence to sustain it. It is arbitrary and unlawful for the Board to make an essential finding without supporting evidence. Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 304, 49 A.2d 799; Mayor and City Council of Baltimore v. Biermann, 187 Md. 514, 521, 50 A.2d 804; Hare v. Mayor and City Council of Baltimore, 200 Md. 477, 483, 90 A.2d 217; City of Baltimore v. Weinberg, 204 Md. 257, 261, 103 A.2d 567; Oursler v. Board of Zoning Appeals, 204 Md. 397, 404, 104 A.2d 568.

The question, therefore, for our decision is whether the finding of the Board was without substantial evidence to sustain its finding that the property at 1128 Druid Hill Avenue was occupied by four families before March 30, 1931, the date of the adoption of the original Zoning Ordinance.

Previous to the revision of Ordinance 1247 and the adoption of Ordinance 711 on May 21, 1953, 'family' had not been defined in the Zoning Ordinance. By Ordinance 711, supra, Section 48(v), a family is defined as 'A person living alone, or two or more persons living together as a housekeeping unit, with separate identity from other persons or groups in the same structure, having cooking facilities as a part of the area designated for his or their use. * * *' In the case of Suwalski v. Mayor and City Council of Baltimore, decided in Circuit Court No. 2 of Baltimore City on April 22, 1948, Judge Sherbow adopted the definition of 'family' from Black's Law Dictionary, Third Edition, page 752, which defines a 'family' as 'a collective body of persons who live in one house * * * and under one head or management (thereby including domestic servants, lodgers, boarders, guests, etc.).' He also adopted the definition from Webster's New International Dictionary, Second Edition, Unabridged, 1936, page 916, which gives one of the definitions of 'family' as 'the body of persons who live in one house, and under one head or manager; a household, including parents, children, and servants, and, as the case may be, lodgers or boarders.' Judge Sherbow there concluded that in determining a family 'the real test is whether they constitute a separate household maintaining separate housekeeping facilities.' He there concluded that if one takes in roomers or boarders, who do not have separate housekeeping facilities, such roomers or boarders do not constitute a 'family'. That case was not appealed to this Court.

At the hearing before the Board on March 31, 1953, the appellant testified that when he bought the property in 1953 there were four families living in the house and it was then registered with the O.P.A. for four families. Of course, registration with the O.P.A. did not exist until long after 1931. Mr. Arthur N. Rogers, the real estate agent, who sold the property for the Grays to the appellant, testified that Mrs. Gray was a personal friend of his and that he went to the house once or twice a week before 1931. At that time there were two families on the second floor, one family on the third floor and the Gray family on the first floor. The Grays also used the basement. There was one bathroom in the house and there was a complete kitchen with a stove and sink in the basement which is still there. He said Mrs. Gray died in November, 1952, and that Mr. Gray was living in New Jersey with his daughter. Four witnesses, including Mrs. Snowden, testifying in opposition to the application, said that the property had never been occupied by four separate families but that the Grays merely rented furnished rooms to various roomers, who also used Mrs. Gray's kitchen. As a result of that hearing the Board found that the testimony was conflicting as to the previous occupancy of the premises and not sufficient to establish the occupancy as a four-family house at the time of the passage of the Zoning Ordinance. At the second hearing before the Board on June 2, 1953, when no protestants appeared, the appellant withdrew that part of the application asking for permission for the store in the basement, but continued his application for the four apartments. The only additional testimony there...