Baylis v. City of Baltimore

• Decision Date: 18 February 1959
• Docket Number: No. 131,131
• Citation: 148 A.2d 429,219 Md. 164
• Parties: Lilla A. BAYLIS and Nellie Shaffrey, v. CITY OF BALTIMORE and Frederick B. Wippert et ux
• Court: Maryland Court of Appeals

Page 164

219 Md. 164

148 A.2d 429

Lilla A. BAYLIS and Nellie Shaffrey, v. CITY OF BALTIMORE and Frederick B. Wippert et ux

No. 131.

Court of Appeals of Maryland.

Feb. 18, 1959.

Jesse Spector, Baltimore (M. Jack Marshall, Baltimore, on the brief), for appellants.

Wilson K. Barnes, Baltimore (Hugo A. Ricciuti, Acting City Sol., Lloyd G. McAllister and Shirley B. Jones, Asst. City Sols., and Joseph Van Collom, Jr., Baltimore, on the brief), for appellees.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and W. LAIRD HENRY, Jr., J., specially assigned.

HENDERSON, Judge.

This appeal is from a decree of the Circuit Court of Baltimore City dismissing a bill by residents and property owners to declare a rezoning ordinance invalid and to enjoin the owners of 5205 Frederick Avenue, in Baltimore City, from using their property as a funeral home or undertaking establishment. The Ordinance, as originally introduced, proposed a change in classification from a 'Residential Use District' to a 'First Commercial Use District.' It was referred to the Board of Municipal and Zoning Appeals, and also to the City Planning Commission, for reports and recommendations. The Board recommended approval, provided certain restrictions be included so that the property in question could be used only as a funeral home. The Planning Commission recommended disapproval on the grounds that no neighborhood need was shown, that the Ordinance would be 'special privilege legislation', and that 'legislation should not be based upon trades or conditions.' After a hearing before the Council, certain amendments were made to the Ordinance to restrict the use of the property and reduce the area to be rezoned. In its final form, the Ordinance made the reclassification conditional upon the execution of an agreement, set out in the Ordinance, between the owners and the City, and the recording of such agreement among the Land Records of Baltimore City, so as to be binding upon the property owners, their successors, heirs and assigns.

The agreement provided that, in consideration of the rezoning, the owners would develop and maintain the property as a funeral home only, that the entrances and exits would be no Frederick Road, that adequate off-street parking facilities would be provided and maintained on the west side of the existing residence, and that all funerals would be formed on the property and not on the public streets. It was further provided that if said property should at any time not be used as a funeral home, the Ordinance would be 'abrogated and repealed' and the zoning classification 'automatically revert' to 'Residential Use District'; if a new ordinance should be required to change the property back to 'Residential Use District' (as the City Solicitor had advised), the property owners would not object to or oppose said Ordinance in any form.

The appellants contend that the Ordinance is invalid as 'spot zoning', and that it is arbitrary and discriminatory, and has no substantial relation to the general welfare. They also contend that the special conditions contained in the Ordinance are ultra vires, and that the agreement is unenforceable.

'Spot zoning' is a term used in many of the zoning cases, but as a descriptive term rather than a word of art. As Judge Hammond, for the Court, said in Huff v. Board of Zoning Appeals, 214 Md. 48, 57, 133 A.2d 83, 88, 'Such zoning may be invalid or valid. If it is an arbitrary and unreasonable devotion of the small area to a use inconsistent with the uses to which the rest of the district is restricted and made for the sole benefit of the private interests of the owner, it is invalid. Cassel v. City of Baltimore, 195 Md. 348, 355, 73 A.2d 486. On the other hand, if the zoning of the small parcel is in accord and in harmony with the comprehensive zoning plan and is done for the public good--that is, to serve one or more of the purposes of the enabling statute, and so bears a substantial relationship to the public health, safety, morals and general welfare, it is valid. [Citing cases.]' The Cassel case involved a funeral home in a long established and built up residential district, and we found, on the facts, that there was no substanial basis for the reclassification. Cf. Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 155, 159, 164 A. 220. It was noted in the Cassel case (195 Md. at page 357, 73 A.2d 846), that the rezoning Ordinance contained a proviso that the premises should be used only as a funeral home, although the reclassification was from Residential to First Commercial, but the validity of the restriction was not raised or decided.

If we assume, without deciding, that there were distinguishing features in the instant case, on the facts, from those of the Cassel case, we think it is clear that the second contention of the appellants is well-founded. If it be true, as the City suggests, that the City has made a practice of imposing similar restrictions, it is all the more important that we pass on their power to do so under the statute and basic ordinance, when the point is squarely presented for the first time.

As the City concedes, Baltimore City derives its zoning powers from the State Enabling Act, Code (1957), Art. 66B, and not from its Charter. Cf. Scrivner v. Baltimore, 191 Md. 165, 60 A.2d 190. Sec. 3 Provides that the regulation of uses by districts, authorized by Secs. 1 and 2, 'shall be made in accordance with a comprehensive plan.' The method of procedure for adopting such plan is set forth under Sec. 4. Sec. 5 provides that boundaries may be changed from time to time by the legislative body, after reports and recommendations by the Planning Commission and the Board of Zoning Appeals, and after study by those agencies of the proposed changes with respect to the master plan of zoning, and the need thereof. It is this section that applies in the instant case. It is clear that the City Council need not follow the recommendations. We are not here concerned with Sec. 7 of the Act or Sec. 35 of the Ordinance (1958 ed.), authorizing the appointment of a Board of Zoning Appeals, and delegating to it the power to make special exceptions or variances, for the simple reason that no such application was made to the Board, and there is no claim of practical difficulty or hardship. Cf. Marino v. City of Baltimore, 215 Md. 206, 215, 137 A.2d 198.

The City argues that because the Board, which recommended the conditions and restrictions, had the power to grant special exceptions, the City Council has the same power. But this does not follow. It seems clear that such power was not retained in the Council, but has...