City of Baltimore v. National Ass'n for Advancement of Colored People

• Decision Date: 22 January 1960
• Docket Number: No. 87,87
• Citation: 157 A.2d 433,221 Md. 329
• Parties: CITY OF BALTIMORE, Schneider Bedding Company et al. v. NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE et al.
• Court: Maryland Court of Appeals

Page 433

221 Md. 329

157 A.2d 433

CITY OF BALTIMORE, Schneider Bedding Company et al. v. NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE et al.

No. 87.

Court of Appeals of Maryland.

Jan. 22, 1960.

Marvin Mandel and Stanford H. Franklin, Baltimore (Mandel & Franklin, Harrison L. Winter, City Sol., Ambrose T. Hartman, Deputy City Sol., James B. Murphy, Asst. City Sol., Baltimore, on the brief), for appellants.

Linwood G. Koger, Jr., and Charles J. Josey, Sr., Baltimore (Juanita J. Mitchell, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This is another zoning appeal. In this instance, when the Circuit Court No. 2 of Baltimore City declared Ordinance No. 1612 of the Mayor and City Council of Baltimore (the City)--approved December 19, 1957--null and void and enjoined the Schneider Bedding Company (Schneider) and others from utilizing the property rezoned by the ordinance for any use not permitted immediately prior 'to the enactment of the ordinance,' the City and Schneider appealed.

Ordinance No. 1612 (the ordinance) purported to amend Sheet No. 45 of the Use District Map [Baltimore City Code (1950), Art. 40, entitled 'Zoning,' as revised by Ordinance No. 711, approved May 21, 1953], by changing the property known as 511-519 Wilson Street (the rezoned property), from a 'Residential Use District' to a 'Second Commercial Use District.' While it was pending before the City Council, the ordinance, as required by law, was referred to the City Planning Commission (the Commission) and the Board of Municipal and Zoning Appeals (the Board) for their reports and recommendations. The Board recommended passage of the ordinance on the ground that the proposed change of use 'could not adversely affect the neighboring properties.' On the other hand, the Commission unanimously disapproved the ordinance on the ground that to allow a second commercial use in the residential use district in question 'would not be to the best interest of the community and would be to the sole benefit of one property,' and urged that 'this spot use change' be not adopted. The City Council, after a hearing on the legislation, disregarded the recommendation of the Commission and adopted the report of the Board. The Mayor approved the ordinance passed by the Council.

Alleging damage to their respective properties and seeking declaratory and injunctive relief, this proceeding was instituted by a group of property owners in the neighborhood of the rezoned property as residents, citizens and taxpayers of the City of Baltimore. The National Association for the Advancement of Colored People (N.A.A.C.P.) and a residential protective association were also joined as parties in the bill of complaint. While it seems clear that these associations were not proper parties, no objection was raised below and we shall not consider it here since there are several parties plaintiff who are property owners. See Southland Hills Improvement Ass'n of Baltimore County v. Raine, 1959, 220 Md. 213, 151 A.2d 734.

The evidence shows that prior to the passage of the ordinance the rezoned property was subject to a lawful non-conforming use in a residential zone. It had been used as a repair shop and garage for the storage of trucks, gasoline and oil for over thirty years. Surrounding the rezoned property there are a number of other nonconforming uses. In the same block as the rezoned property there is a coal yard, an automobile repair shop and a manufacturing plant, all of which are second commercial uses, and a laundry, a restaurant, a bar and a funeral home, which are first commercial uses. The entire frontage on the north end and south side of the 500 block of Wilson Street is 655 linear feet, of which 414 feet is used commercially. Since the original zoning, the Board [of Zoning Appeals] has permitted a change of non-conforming use and granted an exception with respect to 514-516 Wilson Street, which is directly opposite the rezoned property, and had been used as a photography school. Recently a special exception was granted to use the same premises as a plant for the processing, finishing and assembling of precision parts, which is a second commercial use. The property immediately to the rear of the rezoned property is zoned first commercial. Pennsylvania Avenue, approximately one block away, is entirely zoned for second commercial use.

In addition to the above undisputed facts, there was also testimony by real estate experts, on behalf of the City and Schneider, to the effect that the rezoning would not adversely affect the surrounding properties or cause deterioration of the neighborhood because the area was already heavily commercialized, and that any change in use would be an improvement since the rezoned property could not be used for residential purposes. But there was no evidence of error in the original zoning or of a substantial change in the character of the neighborhood since the original zoning other than the granting of the special exception. On the contrary, although they produced no expert witnesses, there was testimony by the protesting property owners to the effect that they had consistently endeavored to preserve the residential character of the neighborhood, that the rezoning would seriously affect the enjoyment and value of their properties for future residential use, and that the restricted and actual use within the residential use district--despite the existing non-conforming uses and the sole special exception--was still predominantly residential as it has always been since the inception of zoning in Baltimore City.

The City and Schneider contend (i) that the lower court was without authority to substitute its judgment for that of the legislative body since the question of validity was fairly debatable and the protesting property owners had presented insufficient evidence to overcome the presumption of validity; (ii) that the property...