Chayt v. Maryland Jockey Club of Baltimore City

• Decision Date: 05 March 1941
• Docket Number: 20.
• Parties: CHAYT et ux. v. MARYLAND JOCKEY CLUB OF BALTIMORE CITY et al.
• Court: Maryland Court of Appeals

18 A.2d 856

179 Md. 390

CHAYT et ux. v. MARYLAND JOCKEY CLUB OF BALTIMORE CITY et al.

No. 20.

Court of Appeals of Maryland

March 5, 1941

Rehearing Denied April 9, 1941.

Appeal from Baltimore City Court; J. Craig McLanahan, Judge.

Suit by Leon Chayt and Rose Chayt, his wife, against the Maryland Jockey Club of Baltimore City and others, to restrain the issuance of permit for use of property contrary to zoning ordinance, wherein an injunction was granted. From an order dissolving the injunction after a reclassification of the property involved, the complainants appeal.

Order affirmed.

Edward H. Burke and Robert R. Rowie, both of Baltimore (William Hoffenberg, of Baltimore, on the brief), for appellants.

William A. Grimes, of Baltimore (Ritchie, Janney, Ober & Williams, of Baltimore, on the brief), for appellees.

Argued before SLOAN, MITCHELL, JOHNSON, DELAPLAINE, and COLLINS, JJ.

JOHNSON Judge.

This is an appeal from an order of the Baltimore City Court vacating an injunction restraining the use of certain premises of the Maryland Jockey Club.

The appellants are the owners and occupiers of a house and lot on Rogers Avenue in Baltimore. To the south of the house owned by the appellants lies the race track of the Maryland Jockey Club. Immediately contiguous to the race track itself are several lots of ground indicated on the plat in evidence as lots 22-36. These lots had been acquired by the Jockey Club prior to 1929 and at a time when no zoning restrictions were imposed on the property in this locality and had been prior to 1939 used by the Jockey Club only as a parking ground for automobiles.

The lots had not been enclosed by the cyclone fence which surrounded the remainder of the race track proper. On September 13, 1938, the Jockey Club applied for a permit to construct a stable on these lots. At the suit of these appellants and on the ground that the property was zoned as a residential district and not subject to a non-conforming use this Court held that an injunction restraining the issuance of the permit should have been granted. Chayt v. Zoning Appeals Board, 177 Md. 426, 9 A.2d 747. The injunction was finally perfected June 26, 1940, after a second appeal to this Court. Chayt v. Board of Zoning Appeals, 178 Md. 400, 13 A.2d 614.

In the meantime on February 27, 1939, Ordinance No. 1430 to reclassify the property from residential to a first commercial use district was introduced in the City Council but expired with that particular council on May 2, 1939. On May 31, 1939, Ordinance No. 38 (later renumbered 110) was introduced, which was identical with Ordinance No. 1430. This ordinance was later amended so that at its final passage its effect was to reclassify only the lots of appellee there in dispute from residential to first commercial.

Ordinance No. 38 before its amendment was the subject of a public hearing on October 9, 1939, after public notice given by advertisement in the News-Post of September 22, 1939. As the result of certain opposition developed at this hearing, the ordinance was amended and on December 18, 1939, was reported favorably, substantially as described. A hearing on the amended ordinance was held on December 20, 1939, and was on that date passed and was approved by the Mayor on January 10 1940.

Following the passage of this ordinance, appellee petitioned the Court for the dissolution of the injunction against the issuance of a permit for the erection of a stable. From an order dissolving the injunction, this appeal is taken.

It is first urged by appellants that Ordinance 110 is invalid, since the hearing authorized by the statute, Code, Article 66B, Secs. 1-9, to be held on each ordinance was not properly had. It is conceded that a hearing was held on October 9, 1939, at which all interested parties were present and were given an opportunity to present their views. It is insisted, however, that this hearing was adjourned with the understanding that it would be reconvened after notice to the protestants, and that the proper notice of the second meeting was not in fact given. William Hoffenberg, Esq., appearing as counsel for these appellants, was notified on December 18 that a subsequent hearing would be held on December 20. We think under these facts the statute was sufficiently complied with. At the first hearing ample opportunity was given to each side to the controversy to air its views and protests were filed in writing. There is no requirement that each side be given all the time it feels it desires, provided it is given a reasonable time within which to presents its protests.

The ordinance is also attacked on the ground that it provides for 'spot' zoning. The lots which are here affected by the reclassification from residential to a first commercial use district lie between appellants' lands and Ingleside Avenue, which is immediately north of numerous other properties owned by the Maryland Jockey Club. For the most part the other properties were under the terms of the original Zoning Ordinance classified as a residential use district, but under the provisions of paragraph 11, Ordinance No. 1247, the Maryland Jockey Club continued to use its properties as previously, because they were subject to a non-conforming use. The question arises as to whether the reclassification of the properties on the north side of Ingleside Avenue is 'spot' zoning, which term, as usually defined, signifies a carving out of one or more properties located in a given use district and reclassifying them in a different use district. While it is true that in one sense this definition is gratified by the present ordinance, such an argument overlooks and disregards the fact that Pimlico, owned by the Maryland Jockey Club, was not disturbed by the passage of Ordinance No. 1247, because of the non-conforming use provisions of the Zoning Ordinance. It is thus seen that while that ordinance in general classified the property of the Maryland Jockey Club as a residential use district, yet the effect of paragraph 11 was such as to place it in a first commercial classification, and this being true we have the same result as if it had originally been classified as a first commercial use district. Upon these considerations, we conclude it unnecessary to express an opinion upon the validity of 'spot' zoning, because that question is not here presented.

It is also insisted that Ordinance No. 110 is invalid, because prior to its enactment it was not referred to the City Planning Commission in accordance with Section 264F of the Baltimore City Charter, which provides that amendments to the Zoning Ordinance introduced into the City Council be referred to the Commission for a report and recommendation. The section under consideration was by virtue of the provisions of the Constitution of Maryland, Article XIA, Section 5, adopted by the qualified voters of Baltimore City at an election held May 2, 1939, and under the same constitutional provisions did not become effective until June 2, in the same year, but the amendatory ordinance was originally introduced on May 31 before the effective date of the section referred to. In view of these considerations, it cannot be held that the ordinance is invalid for the reason stated, unless the section to which reference has been made be given a retroactive effect, and since from a consideration thereof no intention appears that it operate retrospectively, the contention in that behalf is without force. Clark v. Baltimore, 29 Md. 277, at 283; Hemsley v. McKim, 119 Md. 431, at 441, 87 A. 506; Vandiver v. Fidelity Savings Bank, 120 Md. 619, at 623, 87 A. 1086; Dryden v. Baltimore Trust Company, 157 Md. 559, at 563, 146 A. 752; Rowe v. Cullen, 177 Md. 357, 9 A.2d 585.

Finally the argument is presented that in order to support the validity of this ordinance it must be shown that it was passed in the valid exercise of the police power. It is unquestionably true that the validity of an ordinance imposing restrictions on land must be tested by the requirements of the police power. As this Court said in Lewis, Inc. v. Baltimore, 164 Md. 146, at page 152 164 A. 220, at page 223: 'As...