Cassel v. Mayor and City Council of Baltimore

• Decision Date: 11 May 1950
• Docket Number: 172
• Citation: 73 A.2d 486,195 Md. 348
• Parties: CASSEL et ux v. MAYOR & CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

73 A.2d 486

195 Md. 348

CASSEL et ux v. MAYOR & CITY COUNCIL OF BALTIMORE et al.

No. 172

Court of Appeals of Maryland.

May 11, 1950

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.

It is an established rule that a court of equity has the power to restrain 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, 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 amend its City Zoning Ordinance whenever there has been such a change in the character and use of a use district since the original enactment that the public health, safety, morals, or general welfare would be promoted by a change in the regulations. Whether an ordinance amending the original zoning ordinance is a valid exercise of the police power is a proper subject for judicial review. It is the duty of the Court to annul such an ordinance if it is clearly arbitrary, unreasonable and discriminatory. Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 616, 141 A.L.R. 688; Zahn v. Board of Public Works of City of Los Angeles, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074.

The State Zoning Enabling Act demands that all zoning regulations shall be uniform for each class or kind of buildings throughout each district, but the zoning regulations in one district may differ from those in other districts. Code 1939, art. 66B, secs. 2, 21. The regulations for the use of property within the various use districts are supported upon the basic theory that they apply equally and uniformly within the district affected. Invidious distinctions and discriminations in zoning cannot be allowed, for the very essence of zoning is territorial division according to the character of the land and the buildings, their peculiar suitability for particular uses, and uniformity of use within the use district. Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 494, 165 A. 703; Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799.

'Spot zoning,' the arbitrary and unreasonable devotion of a small area within a zoning district to a use which is inconsistent with the use to which the rest of the district is restricted, has appeared in many cities in America as the result of pressure put upon councilmen to pass amendments to zoning ordinances solely for the benefit of private interests. While the City Council has wide discretion in enacting zoning ordinances, it has no authority to place restrictions on one person's property and by mere favor remove such restrictions from another's property, unless there is reasonable ground for the discrimination. Moreover, increase in 'spot zoning' in course of time would subvert the original soundness of the comprehensive plan and tend to produce conditions almost as chaotic as existed before zoning. It is, therefore, universally held that a 'spot zoning' ordinance, which singles out a parcel of land within the limits of a use district and marks it off into a separate district for the benefit of the owner, thereby permitting a use of that parcel inconsistent with the use permitted in the rest of the district, is invalid if it is not in accordance with the comprehensive zoning plan and is merely for private gain. Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass. 128, 31 N.E.2d 436; Jersey Triangle Corporation v. Board of Adjustment, 127 N.J.L. 194, 21 A.2d 845; Polk v. Axton, 306 Ky. 498, 208 S.W.2d 497; Page v. City of Portland, 178 Or. 632, 165 P.2d 280.

On the other hand it has been decided that a use permitted in a small area, which is not inconsistent with the use to which the larger surrounding area is restricted, although it may be different from that use, is not 'spot zoning' when it does not conflict with the comprehensive plan but is in harmony with an orderly growth of a new use for property in the locality. The courts have accordingly upheld the creation of small districts within a residential district for use of grocery stores, drug stores and barber shops, and even gasoline filling stations, for the accommodation and convenience of the residents of the...