City of Baltimore v. Charles Center Parking, Inc.

• Decision Date: 13 November 1970
• Docket Number: No. 113,113
• Citation: 271 A.2d 144,259 Md. 595
• Parties: CITY OF BALTIMORE v. CHARLES CENTER PARKING, INC.
• Court: Maryland Court of Appeals

Page 595

259 Md. 595

271 A.2d 144

CITY OF BALTIMORE v. CHARLES CENTER PARKING, INC.

No. 113.

Court of Appeals of Maryland.

Nov. 13, 1970.

Simon Schonfield, Asst. City Sol., Baltimore (George L. Russell, Jr., City Sol., Baltimore, on the brief), for appellant.

Jonathan A. Azrael, Baltimore (Azrael & Gann, Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

Within the decade just past the block in downtown Baltimore bounded by Baltimore Street, Lombard Street, Charles Street and Hopkins Place has undergone an almost incredible transformation, not the least facet of which is the vast masonry cavern which lies beneath its surface and in which as many as 800 motor vehicles can be parked. Its owner, the appellee (Parking), calls the business it carries on therein the 'Down Under Parking Garage.' As one might expect, the movement of traffic in this area has some relevance. Vehicles are allowed to move south on Hopkins Place; they may not cross Lombard and since Lombard accommodates eastbound traffic only, all traffic must turn east on Lombard. Hanover Street, since about 1967, is for southbound traffic only. The main entrance of the garage, on Lombard, looks directly down Hanover and Parking finds provoking the fact that Hanover is now available only to motorists moving away from its garage whereas before 1967 it brought northbound traffic to its entrance. It is also upset because motorists southbound on Hopkins Place, who must turn left on Lombard, quite often go past the entrance before realizing it is the entrance. To abate this undersirable situation Parking rented space on the brick wall of a nearby building belonging to Hertz Corporation on which it proposed to paint a sign (90 feet by 15 feet) visible to motorists southbound on Hopkins Place. The sign, painted after the decision of the trial judge, Joseph L. Carter, J., tells motorists they can 'PARK DOWN UNDER-KEEP IN LEFT LANE.' To emphasize the 'down under' aspect of the garage there as also a black line drawing of an ebullient maternal kangaroo, peeping from whose marsupial pouch is a brash, precocious looking junior kangaroo. Within a large arrow, pointing east, are the words 'ONE BLOCK.' The application for a permit to paint the sign, filed with the Bureau of Building Inspection in May 1967, was denied. A second application, filed 11, December 1967, was also denied.

The denial in both instances was based on Section 1(e)(4) of Baltimore City Ordinance No. 663, approved 1 November 1965 (now Baltimore City Code (1966 ed.), Art. 1, Sec. 39(e)(4)) which provides generally for the regulation of 'commercial signs, billboards, and other advertising structures and devices' within a specifically delineated area of downtown Baltimore. It also created a 'Commission on Signs' to administer the ordinance and such rules and regulations as might be promulgated by the Commission. Specifically, Section 1(e) provides that:

'It shall be unlawful, within the area described (which includes the Hertz building) * * * (4) for any commercial sign, billboard, or other advertising structure or device to be painted on any exterior wall of a building except as a substitute for a sign on the primary facade of said building.' (Emphasis added.)

In respect of billboards and posterboards the ordinance provides as follows:

'(i) Nothing in this ordinance shall be construed to apply to any billboard or posterboard with respect to which the Board of Municipal and Zoning Appeals has original jurisdiction under Section 37 of the Baltimore City Zoning Ordinance.

'The Board of Municipal and Zoning Appeals

shall submit drawings, plans, painted bulletins and specifications and any other data concerning the application for such a billboard or posterboard within the area covered by this ordinance to the Commission on Signs for investigation, recommendation and report.'

Parking filed suit against the Mayor and City Council of Baltimore in the Circuit Court of Baltimore City seeking a declaration that Ordinance 663 is 'invalid, unconstitutional and null and void,' and to enjoin the City from enforcing the ordinance. Judge Carter elected to consider only one of the several issues raised by the parties. He noted that the section in question prohibited painted signs in an area where billboards and posterboards were clearly allowed (subject to zoning regulations), and he concluded 'that there is absolutely no reasonable basis for this distinction * * *.' Thus Section 1(e)(4) was held invalid as being 'so arbitrary and discriminatory as to exceed the bounds of governmental regulation permitted by Article 23 of the Declaration of Rights of the Maryland Constitution and the Fourteenth Amendment to the Constitution of the United States.' We agree.

The City argues that Parking has failed to overcome the presumption in favor of the validity of legislative enactments. That such a presumption exists is clear. Gino's of Maryland v. Mayor and C.C. of Baltimore, 250 Md. 244 A.2d 218 (1968); A & H Transp. Inc. v. Mayor and City Council, Baltimore, 249 Md. 518, 240 A.2d 601 (1968); Pitts v. State Board of Examiners of Psychologists, 222 Md. 224, 160 A.2d 200 (1960); McBriety v. Mayor and C.C. of Baltimore, 219 Md. 223, 148 A.2d 408 (1958). But we think the testimony produced by Parking and the absence of any showing by the City that the ordinance was not arbitrary or unreasonable in its classification suggest that the presumption has been overcome. In any event, we seem unable to conceive of the existence of any state of facts which would sustain such a classification. Gino's, supra at 637.

Bernard Willemain's expertise in the field of planning and land use was conceded by the City but, at trial, his qualifications to give expert testimony in respect of the facts of this case were challenged. Judge Carter allowed him to testify and his ruling in this regard is not an issue here. Willemain testified, in part, as follows:

'* * * The thing I find most striking, your Honor, is that this specific prohibition in this ordinance, which is the reason why this case is before you today, doesn't prevent or modify the esthetics of the signs that could be put on the same billboards in the same location. The only difference is this matter of construction and procedure to be followed.'

'Q. (By Mr. Azrael) What is you opinion on the distinction in this ordinance which is based solely on the material which is used to construct the sign?'

'A. Certainly if there is any justification for esthetic control alone, then this is not taken care of with this ordinance which would permit a billboard or posterboard, but not the painting directly on the wall, which is a mechanical consideration, not one of affording esthetics. In fact, it is my opinion that the painting in this particular case would be more esthetic than erecting the billboard because the steel structure would not be exposed that has to be shown with a billboard.'

Willemain's testimony does constitute evidence challenging the validity of singling out painted signs for regulation. The City, as we have said, failed to produce testimony that the distinction between painted signs and billboards was rational in this context.

The City argues that since we have recognized the distinction we should not now deny that it exists. It cites Grant v. Mayor and C.C. of Baltimore, 212 Md. 301, 129 A.2d 363 (1957), and Grebow v. Mayor and C.C. of Baltimore, 217 Md. 333, 142 A.2d 554 (1958), in support of its argument. In Grant, upholding the constitutionality of a statute providing for the removal, over a five year span, of all billboards and posterboards in certain residential areas of the City, we observed that the preamble to the ordinance contained the legislative finding that the blighted appearance and depreciated values created by the billboards did so affront the health,...