Cassel v. Mayor and City Council of Baltimore

• Court: Court of Appeals of Maryland
• Citation: 73 A.2d 486,195 Md. 348
• Decision Date: 11 May 1950
• Docket Number: No. 172,172
• Parties: CASSEL et ux v. MAYOR & CITY COUNCIL OF BALTIMORE et al.

Page 348

195 Md. 348 73 A.2d 486 CASSEL et ux
v.
MAYOR & CITY COUNCIL OF BALTIMORE et al. No. 172 Court of Appeals of Maryland. May 11, 1950.

Page 352

[73 A.2d 487] C. Arthur Eby, Baltimore, for appellants.

Hamilton O'Dunne, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., and Edwin Harlan, Deputy City Sol., on the brief), for appellees Mayor and City Council of Baltimore and Paul A. Cohen.

W. Frank Every, Baltimore, for appellees E. Armacost and wife.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

This suit in equity was instituted by seven residents of the Howard Park section of Baltimore (1) to annul Ordinance 632, approved April 1, 1949, which amends the Baltimore City Zoning Ordinance by reclassifying the property at 5118 Gwynn Oak Avenue, owned by Ellsworth Armacost and his wife, from residential to first commercial use district for the purpose of permitting them to conduct a funeral home on the premises, (2) to direct Paul A. Cohen, Buildings Engineer, to revoke the permit issued to them to use the property as a funeral home, and (3) to restrain them from using the property as such.

One complainant died prior to the trial. Four withdrew from the case. The remaining two, R. Vernon Cassel and his wife, appealed here from the Court's decree dismissing the bill of complaint.

Page 353

It is an established rule that a court of equity has the power to restrain [73 A.2d 488] the enforcement of a void statute or ordinance at the suit of a person injuriously affected. Spann v. Spann v. Gaither, 152 Md. 1, 136 A. 41, 50 A.L.R. 620; Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417; Davis v. State, 183 Md. 385, 37 A.2d 880. It is also held that a court of equity has jurisdiction to grant injunctive relief against the violation of a zoning ordinance on the complaint of an individual sustaining special damage as a result of such violation. Fitzgerald v. Merard Holding Co., 106 Conn. 475, 138 A. 483, 54 A.L.R. 361; Stokes v. Jenkins, 107 N.J.Eq. 318, 152 A. 383; Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30; Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852.

Appellants reside on Fernpark Avenue less than 100 feet from the property in dispute, which is situated on the northeast corner of Gwynn Oak Avenue and Fernpark Avenue. Though appellants cannot see the front of the funeral home, they can see the garage in the rear. As they are property owners residing within the residential use district in which the property in dispute was originally classified, they are proper parties to a suit attacking the validity of the amending ordinance and praying for an injunction against the use of the property as a funeral home.

Zoning is permissible only as an exercise of the police power of the State. When this power is exercised by a city, it is confined by the limitations fixed in the grant by the State and to the accomplishment of the purposes for which the State authorized the city to zone. These purposes are set forth in the State Zoning Enabling Act, which demands that zoning regulations shall be made in accordance with a comprehensive plan and designed 'to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage,

Page 354

schools, parks, and other public requirements.' Laws of 1927, ch. 705, Code 1939, art. 66B, secs. 3, 21.

The test of invalidity of a zoning ordinance is whether it is arbitrary, unreasonable and discriminatory, and has no substantial relation to the public health, safety, morals, or general welfare. Mayor and City Council of Baltimore v. Byrd, Md., 62 A.2d 588; Wilbur v. City of Newton, 302 Mass. 38, 18 N.E.2d 365; Strain v. Mims, 123 Conn. 275, 193 A. 754. It is unquestioned that the City Council has the power to...