City of Baltimore v. Cohn

• Decision Date: 24 May 1954
• Docket Number: No. 149,149
• Citation: 105 A.2d 482,204 Md. 523
• Parties: CITY OF BALTIMORE et al. v. COHN et al.
• Court: Maryland Court of Appeals

Page 523

204 Md. 523

105 A.2d 482

CITY OF BALTIMORE et al. v. COHN et al.

No. 149.

Court of Appeals of Maryland.

May 24, 1954.

Francis J. Valle, Asst. City Sol. Baltimore (Thomas N. Biddison, City Sol., Baltimore, on the brief), for City of Baltimore; Cal H. Lehmann, Jr., Baltimore (Joseph V. Reina, Baltimore, on the brief), for other appellants.

Southey F. Miles, Baltimore (Louis Silberstein and Moses Cohen, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This proceeding was brought in the Baltimore City Court by Benjamin R. Cohn and wife and Julius S. Peck and wife, owners of an eight-acre tract of land in the southwest section of Baltimore, and Truck Terminal, Inc., conditional purchaser of the tract, against the Mayor and City Council of Baltimore and Paul A. Cohen, Building Inspection Engineer, to review the action of the Board of Municipal and Zoning Appeals in refusing to grant a permit to erect two truck terminal buildings on the tract and to use the property as a truck terminal center.

The tract is located on the southeast side of the 2300 block of Washington Boulevard. It is irregular in shape; but, generally speaking, it is bounded on the northwest by Washington Boulevard, on the northeast by a line of the Western Maryland Railroad, on the southeast by an abandoned right of way of the railroad, and on the southwest by properties which face on Breitwert Avenue. A small portion of the tract along its northwest boundary line lies in a First Commercial Use District, while another portion along that line is in an Industrial Use District. All the rest of the tract, adjacent to the rear lines of the properties fronting on Breitwert Avenue, comprising about two-thirds of its entire area, is in a Residential Use District.

When the zone lines in the City of Baltimore were established by the original Zoning Ordinance, approved March 30, 1931, a portion of this tract along its southeast boundary line was placed in an Industrial Zone. After the lapse of twenty years, it was discovered that the zone line between the Industrial Zone and the Residential Zone continued southwesterly across Breitwert Avenue into a new residential development, putting a number of residences in an Industrial Zone. To rectify that situation, the Mayor and City Council passed an ordinance, approved March 29, 1951, changing the Zone line.

In January, 1953, an ordinance was introduced in the City Council, at the request of the owners of this tract, to change its classification entirely from Residential Use to Industrial Use. In February, 1953, the Baltimore City Planning Commission urged the City Council to adopt the ordinance with amendments. The Planning Commission made the following recommendation:

'The property is so situated that it does not lend itself readily for residential development because of the terrain and the existing commercial zone on Washington Boulevard and the industrial encroachments along the Western Maryland Railroad. The property along and near the railroad is highly desirable for industrial development, and the district line could be extended slightly to make the area more uniform. It is proposed that a street be opened and extended through the property, which would be a natural buffer for a lighter commercialization of the property to the west thereof. The property lying west of the proposed 60-foot street could then be developed commercially under a higher classification than the zone along the railroad. The Commission feels that a change in use would be reasonable for this particular property and location in accordance with the Planning Commission's recommendation, and suggests that the ordinance be so amended.'

No such ordinance, however, was passed. Consequently, as the zone lines are now established, one of the proposed buildings would be partly in a Residential Use District and partly in an Industrial Use District, while the other would be entirely in a Residential Use District. The Zoning Ordinance of Baltimore City provides that in a Residential Use District no building shall be constructed which is designed to be used for storage or sale of motor vehicles. Baltimore City Code, 1950 Ed., art. 40, par. 8.

Nevertheless the owners of the tract made an application to the Building Inspection Engineer on April 14, 1953, for a permit to erect two truck terminal buildings at an estimated cost of $45,000. That official disapproved the application because he had no discretionary power to permit an industrial use on any portion of the tract that is zoned residential.

The owners thereupon appealed to the Board of Municipal and Zoning Appeals, alleging that the zone lines are arbitrary and unreasonable, and that the Board should make a special exception as allowed by the Zoning Ordinance. The Board, after a hearing on April 28, 1953, sustained the action of the Building Inspection Engineer, holding that the truck terminal buildings would adversely affect neighboring properties and interfere with the comfort of residents in nearby dwellings.

From the action of the Board the owners and Truck Terminal, Inc., appealed to the Baltimore City Court. They alleged that the zone lines for this tract are arbitrary, unreasonable and invalid, because they deprive the owners of its most suitable use

Clarence Cavanaugh and wife and Wade H. Poole and wife, who reside on Breitwert Avenue, intervened in the case as parties defendant. The City, the Building Inspection Engineer, and the intervening defendants answered: (1) that the zone lines as established for the tract are reasonable and valid and do not unlawfully deprive the owners of a suitable use for it, and (2) that the owners failed to produce any evidence to warrant the Board in granting a variance.

The case was submitted to Judge Moser on the record. After reading the record and inspecting the tract and the surrounding locality, the judge entered an order reversing the decision of the Board and directing the Building Inspection Engineer to issue the permit. The City, the Building Inspection Engineer, and the intervening defendants appealed here from that order.

At the outset the technical argument was made that the present owners of the tract do not intend to build thereon, and that Truck Terminal, Inc., has not yet acquired the legal title to the tract, and therefore no party has any right to obtain a permit. Apparently the owners sold the tract to the corporation under a conditional contract of sale, by which the corporation is required to fulfill the contract only in the event that the City will issue a permit for the construction of the terminal buildings. If the present owners are entitled by law to a permit to use the tract for industrial purposes, there is no reason why the Board of Municipal and Zoning Appeals should not grant the permit to them for the use of the corporation as the conditional purchaser of the tract.

As we stated in Anne Arundel County Com'rs v. Ward, 186 Md. 330, 46 A.2d 684, 165 A.L.R. 816, there is no fundamental objection to zoning laws...