Applestein v. Osborne

• Decision Date: 16 November 1928
• Docket Number: 18. [a1]
• Citation: 143 A. 666,156 Md. 40
• Parties: APPLESTEIN ET UX. v. OSBORNE, INSPECTOR OF BUILDINGS, ET AL.
• Court: Maryland Court of Appeals

143 A. 666

156 Md. 40

APPLESTEIN ET UX. v. OSBORNE, INSPECTOR OF BUILDINGS, ET AL.

No. 18. ^[a1]

Court of Appeals of Maryland

November 16, 1928

Appeal from Baltimore City Court; George A. Solter, Judge.

Petition for mandamus by Harry Applestein and wife against Charles H Osborne, Inspector of Buildings and Zoning Commissioner of Baltimore City, and others. From an order dismissing their petition, petitioners appeal. Affirmed.

Wirt A Duvall, Jr., and William H. Maynard, both of Baltimore, for appellants.

Arthur L. Jackson, and Lindsay C. Spencer, Asst. City Sol., both of Baltimore (A. Walter Kraus, City Sol., of Baltimore, on the brief), for appellees.

OFFUTT J.

This appeal grows out of a protracted and bitter controversy over the location of a drug store and a grocery store in a building at the northwest corner of Gwynn Oak and Oxford avenues in Baltimore city, and involves the following facts:

The building is a two-story brick and tile structure, the first floor of which is adapted for store purposes, while the second story is divided into apartments. It is owned by Harry Applestein and Rena Applestein, his wife, who on November 8 1927, applied to the buildings engineer of Baltimore city, also referred to as the zoning commissioner, for permission to use the first floor of it for two stores, one a drug store and one a grocery store. In ordinary course the application was considered, approved, and a permit authorizing the location of the two stores on the property granted. Thereupon the Howard Park Improvement Association and Albert E. Barker appealed from the decision of the buildings engineer to the board of zoning appeals of Baltimore city. That body on December 13, 1927, without having heard any testimony, and without assigning any reason for its action, reversed the order of the buildings engineer and disapproved the permit. The applicants then filed in the Baltimore city court a petition for a writ of mandamus against the buildings engineer, and the mayor and city council of Baltimore, in which, after alleging the facts to which we have referred, they said:

"That the action of said board of appeals was arbitrary, unreasonable, and without any just basis, and that said board took such action without producing any witnesses to furnish any substantial reason for such action or without any evidence of any kind before it that would furnish the basis of such action, and that such action was in violation of said Ordinance 825."

Upon those facts they prayed the court to issue the writ of mandamus "against the defendants ordering and compelling them or any of them to issue to your petitioners a permit to use the property as requested in accordance with the terms of Ordinance No. 825 above referred to." Later the board of zoning appeals and Albert E. Barker, a protestant, were joined as defendants, a demurrer to the petition was filed and overruled, answers were filed by all the defendants but Barker, testimony was taken, the case was argued, and on March 31, 1928, the petition was dismissed. From that order this appeal was taken.

While the issue raised by the pleadings in the mandamus proceeding was simple and direct, to wit, whether the board of zoning appeals had arbitrarily and without any lawful reason denied appellants' application, the evidence adduced in the Baltimore city court took a wide range and covered many collateral and wholly irrelevant matters, such as the good faith of the applicant in procuring the introduction of a certain ordinance of the mayor and city council of Baltimore, the fact that his privies in title had made other applications of the same character for the same property, which had been refused, and whether the building itself had been erected in compliance with the permit issued therefor. To review all of this evidence would be quite idle, and reference will be made to only so much of it as is needed to indicate the nature of the controversy and explain the issues.

The land on which the building stands was formerly owned by one Haskel Feldman, who on January 27, 1926, filed an application in the office of the buildings engineer for a permit to erect on it a building to be used for a drug store and a grocery store. Residents of Howard Park protested against the issuance of the permit, and it was refused on March 20, 1926. On April 15, 1926, Feldman filed another application, which was substantially the same as the first. Again there was a protest, and again the permit was refused. He then appealed to the board of zoning appeals, which also refused the permit, and then to the Baltimore city court, which affirmed the action of the board of zoning appeals, and there the matter rested until October, 1926. During or shortly after that month Ordinance 896 was introduced in the city council of Baltimore authorizing Harry Applestein, Feldman's son-in-law, to erect a two-story brick building for use as an apartment house and store property on the lot formerly owned by Feldman at the northwest corner of Gwynn Oak and Oxford avenues, and that ordinance eventually was adopted, approved on November 20, 1926, and on December 1, 1926, the property was conveyed to Applestein and his wife by Ida Feldman, who had acquired it from her husband.

About the middle of December, 1926, Applestein began work on the building, which was immediately noted by officials of the Howard Park Improvement Association, who promptly procured the introduction of an ordinance to repeal Ordinance No. 896, which was also passed, and on February 5, 1927, approved. Applestein then filed a bill in circuit court No. 2 of Baltimore city to restrain the operation of the repealing ordinance, and that bill was dismissed on the ground that Feldman had induced a member of the council to introduce the ordinance by falsely informing him that there was no opposition to it, and had thereby committed a fraud. On March 30, 1927, Applestein applied for permission to use the property for four apartments, a permit authorizing that use was issued, and the work of erecting the building was resumed. During the progress of the work Applestein was continually harried by the Improvement Association, which complained that he was departing from the plans approved for the erection of an apartment house, and was actually constructing a building which could be used for stores. Their apprehensions were probably well founded, for on June 6, 1927, Feldman procured the introduction of still another ordinance in the city council to secure permission to use the property for store purposes. The council referred the matter to the zoning board "for advice," and, when that board disapproved the ordinance, it was defeated. There the matter again rested until the application involved in this appeal was filed.

It is apparent, from a reference to these many, intricate, and confused proceedings, extending over a period of nearly three years, and involving, as they do, the legislative, judicial, and administrative branches of the city government, that they have arisen from a determined effort on the part of the appellants to locate an ordinary chain grocery store and an ordinary drug store on their property on Gwynn Oak and Oxford avenues, and an equally determined effort on the part of certain residents of that neighborhood to prevent them from doing so. That they had the right to use their property for the purposes contemplated, so long as such use did not substantially menace the public health, security, or morals, or create hazards from fire or disease, is declared by the ordinance. The engineer of buildings and the board of zoning appeals, therefore, in dealing with appellants' application for a permit, were strictly limited, by the ordinance from which they derive such authority as they have, to determining whether the proposed use would create a hazard from fire or disease, or would menace the public security, health, or morals, and unless they affirmatively found, after a fair and actual consideration of all relevant facts, that it would have such an effect, the appellants were entitled to have the permit for which they applied issued to them.

As has been stated, appellants in their petition charge that the board of zoning appeals, in refusing the permit, acted arbitrarily, unreasonably, and without evidence of any kind before it, and in their brief they charge that the "real reason" for the board's action was an attempt to keep alive certain provisions of the zoning ordinance which were held by this court to be invalid. So that the major questions presented by the appeal are (1) whether, assuming that the board of zoning appeals did exceed its powers in refusing appellants' application, a petition for a writ of mandamus will lie in this case; and (2) whether in fact the act of the board was ultra vires and void.

It is fundamental that the writ will not lie if the appellants have any other adequate and convenient remedy, George's Creek Coal, etc., Co. v. Allegany County Com'rs, 59 Md. 255; Legg v. Annapolis, 42 Md. 203; Booze v Humbird, 27 Md. 1; State v. Graves, 19 Md. 351, 81 Am. Dec. 639; 38 C.J. 559; and it is generally held that the right to have the facts upon which the petition for the writ is based reviewed upon appeal is a sufficient remedy, and that one who fails to take advantage of it is not entitled to the writ of mandamus, 38 C.J. 565; State, etc., v. County Com., etc., 46 Md. 621. And while there is authority for the proposition that, where the remedy by appeal will result in unreasonable delay, or as a result of circumstances peculiar to the case will occasion substantial loss or damage, the writ may issue, it is inapplicable here, because the utmost relief that could be obtained through the remedy by mandamus would be to require the...