Byrne v. Maryland Realty Co.

• Decision Date: 23 June 1916
• Docket Number: 44.
• Citation: 98 A. 547,129 Md. 202
• Parties: BYRNE, Inspector of Buildings, v. MARYLAND REALTY CO.
• Court: Maryland Court of Appeals

98 A. 547

129 Md. 202

BYRNE, Inspector of Buildings, v. MARYLAND REALTY CO.

No. 44.

Court of Appeals of Maryland

June 23, 1916

Appeal from Baltimore Court of Common Pleas; James M. Ambler, Judge.

"To be officially reported."

Mandamus by the Maryland Realty Company against James J. Byrne Inspector of Buildings of Baltimore City. Ordered that the writ of mandamus issue, and respondent appeals. Order affirmed.

Robert F. Leach, Jr., Asst. City Sol., of Baltimore (S. S. Field City Sol., of Baltimore, on the brief), for appellant.

Harry E. Karr, of Baltimore (Benson & Karr and John D. Nock, all of Baltimore, on the brief), for appellee.

BURKE J.

It was provided by section 1 of chapter 693 of the Acts of 1912:

"That no dwelling house shall be erected within that section of Baltimore city embraced within the following lines: Beginning at the intersection of the western city boundary and Forest Park avenue, and running thence easterly along Forest Park avenue to Garrison avenue; thence southerly along Garrison avenue to Duvall avenue; thence westerly along Duvall avenue to the western city boundary, and thence northerly to the place of beginning, unless the same is constructed as a separate and unattached building; and if such dwellings are of frame construction they shall be at least twenty feet apart, and if of stone or brick construction they shall be at least ten feet apart."

The Maryland Realty Company, a body corporate and the appellee on this record, is the owner of a lot in fee, for which it paid $15,000, lying within the limits described in the act. The lot has a frontage of 259 feet and 3 inches on the west side of Garrison avenue between Dalrymple avenue and Bonner road with an average depth of from 100 feet to 167 feet and 3 inches to a 10-foot alley. The appellee desired to improve its lot by the erection thereon of semidetached two-story slag roof, brick dwellings, and, after securing a permit from the appeal tax court, it filed with James J. Byrne, the inspector of buildings of Baltimore city, plans and specifications showing the character of buildings it proposed to erect subject to the supervision of the building inspector and in conformity with the building laws of Baltimore city. Mr. Byrne, the inspector of buildings, refused to issue a permit for the erection of the proposed buildings. The appellee thereupon filed a petition for mandamus in the court of common pleas of Baltimore city against him to compel the issuing of the permit for the erection of the buildings shown on the plans and specifications filed with him. Mr. Byrne, the inspector, showed that he refused to issue the permit for the following reasons set out in his answer:

"That the granting or refusing of said permit, as asked for, involves the question of the construction of a class of improvements which, under all the circumstances, would be highly detrimental to one of the largest, most beautiful and artistically developed suburban communities, constituting the suburbs of the city of Baltimore, as is evidenced by resolution of the Forest Park Improvement Association, passed on the 22d day of June, 1915, a copy of which is filed herewith, and prayed to be taken as a part of this answer, and marked 'Respondent's Exhibit A'; that, further answering, this respondent shows that, aside from the question of policy and wisdom, your respondent could not grant the permit applied for in the premises, because the buildings and improvements contemplated by the petitioner violate the provisions of chapter 693 of the Acts of the General Assembly of Maryland for the year 1912, and this respondent is advised that said act is in full force and effect and is valid and constitutional."

The resolution of the Forest Park Improvement Association filed with his answer states fully and clearly all the reasons which have been or can be urged in support of the refusal of the appellant to issue the permit. The material portion of the resolution is here inserted:

Whereas, Garrison avenue is the most attractive avenue in Baltimore city, being eighty feet wide and most of it more than four hundred feet above tide level, winding its way for more than two miles through the sections known as Beulah Villas, Mont Alto, Brookline, Forest Park and Lenox to West Arlington on the north, and on and near which avenue are located the finest frame cottage residences within the limits of Baltimore city, each situated within its own grounds and having beautiful and well-kept lawns, hedges, shrubberies and flowers, said avenue being under the especial care of the city forester, who has caused fine shade trees to be planted on each side of the avenue thirty feet apart; such avenue being as yet wholly free from this cheap, two-story development of congested dwellings, which, however proper they may be in the central section of the city, are very detrimental and undesirable in this northwest corner of the city, devoted as it is to cottage and parklike development, and which are particularly undesirable on beautiful Garrison avenue; and whereas it appears that the building inspector has refused to issue said permit because of an act of the General Assembly of Maryland, passed in 1912, and known as chapter 693, wherein it is provided that no such dwelling houses shall be erected within a certain area embracing this particular place where the said realty company contemplate erecting these cheap, two-story dwellings; and whereas said act of 1912 was passed at the solicitation of this association, the members of which called the attention of the members of the Legislature to the fact that the area embraced by the act seemed to be the only one in the vast area of many hundreds of acres unprovided with adequate building restrictions, and particularly called attention to the language used by your Court of Appeals in the case of Cochran v. Preston, 108 Md. at page 229, 70 A. at page 114, 23 L. R. A. (N. S.) 1163, 129 Am. St. Rep. 432, 15 Ann. Cas. 1048, which says: 'It may be that in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational value of the fine arts, as expressed and embodied in architectural symmetry and harmony, is so well recognized as to give sanction, under some circumstances, to the exercise of this power even for such purposes (the power referred to being the enforcement of a legislative conception of artistic beauty and symmetry), though it was also pointed out to the members of the General Assembly by the members of this association that this area, covered as it is by frame cottages and surrounded by hundreds of acres of other frame cottages, should be protected by the act from fire risk as much as possible, and also because of the lack of sewer facilities it should not be too closely built upon, and further, that there would be vast property loss and loss to the taxable basis to permit in this cottage neighborhood, these dreaded spots of the two-story house development; and whereas this association is anxious to impress the executive and judicial departments of our government, the same as it did the legislative branch, with the belief that in this section of Baltimore, at least, civilization has reached the point where the educational value of the fine arts as expressed and embodied in architectural symmetry and harmony and in the health-giving spaces of green grass and freedom from congestion and pollution from numerous cesspools and a lessened danger of fires, makes the act of 1912 a highly beneficial and salutary one."

Testimony was taken by the respective parties, and the case was argued and submitted. On December 31, 1915, the court ordered the writ of mandamus to issue as prayed, and from that order the present appeal was taken.

The record shows that the appellee's lot is bounded by Garrison avenue on the front and by Winfield avenue on the back, and by Bonner road on the south and Dalrymple avenue on the north. In the same square in which the appellee's lot is located there is erected a Sunday school building, constructed partly with concrete blocks and with wood and shingles. To the south of Bonner road facing the lot in question there are six inexpensive frame cottages. On the southwest corner of Winfield avenue and Dalrymple avenue there is a solid row of two-story brick houses of 21 feet front. On Dalrymple avenue between Winfield and Garrison avenue there have been erected 12 semidetached two-story brick front porch houses, with bay windows, and in close proximity of the lot there are a number of other two-story brick houses.

The character of houses which the appellee is asking to build upon his property is described by the witnesses as two-story brick, semidetached houses, with front and rear porches, bay windows on the front, heated by steam, and to cost about $2,500 each to build. It is stated that they would have ornamental fronts and would make attractive houses thoroughly modern and up-to-date, and would have a 10-year guaranteed slag roof, and that they would be equal, if not better, than the same character of houses already erected in the neighborhood. The houses would be semidetached, that is, would be built in pairs, with a distance of 8 feet between each pair of houses, and would front on Garrison...