Colati v. Jirout

• Decision Date: 20 June 1946
• Docket Number: 156.
• Parties: COLATI v. JIROUT et al.
• Court: Maryland Court of Appeals

47 A.2d 613

186 Md. 652

COLATI v. JIROUT et al.

No. 156.

Court of Appeals of Maryland

June 20, 1946

Appeal from Baltimore City Court, W. Conwell Smith, Chief Judge.

Proceeding by Marie Jirout to review a decision of the Board of Zoning Appeals of the City of Baltimore granting a permit to Silvestero Colati to construct a building for a non-conforming use, wherein John Jenesek and Elizabeth Jenesek, his wife, intervened. From an order modifying decision of Board of Zoning Appeals, Silvestero Colati appeals.

Affirmed.

Z. Townsend Parks, Jr. and Joseph O. Kaiser, both of Baltimore, for appellant.

Deeley K. Nice, of Baltimore (Max Sokol and Dickerson, Nice & Sokol all of Baltimore, on the brief) for appellees.

Argued before MARBURY, C.J. and DELAPLAINE, COLLINS, GRASON HENDERSON, and MARKELL, JJ.

DELAPLAINE, Judge.

On November 1, 1945, John W. Christopher, a building contractor made application to the Buildings Engineer of Baltimore City for a permit to build for Silvestero Colati a two-story building on his corner lot at 2510 McElderry Street, for the purpose of a cafe and lunch room, after a one-story cafe building and garage now on the lot shall have been removed. The Buildings Engineer disapproved the application, and the contractor thereupon appealed to the Board of Zoning Appeals. At a public hearing on November 13, Mrs. Marie Jirout, who resides next to the cafe at 2512 McElderry Street, protested against the construction of a two-story building further back than the rear wall of her residence on the ground that it would cut off her air and light; but on November 14 the Board adopted a resolution approving the application.

Mr Jirout then filed a petition in the Baltimore City Court alleging that the action of the Board was illegal. Her landlords, John Jenesek and his wife, were subsequently granted permission to intervene in the case. Under paragraph 35 of the Baltimore City Zoning Ordinance (Ordinance 1247, approved March 31, 1931), any person aggrieved by a decision of the Board of Zoning Appeals may present a petition to the Baltimore City Court setting forth that the decision is illegal in whole or in part, and specifying the grounds of the illegality. The Court may reverse or affirm, wholly or in part, or may modify the decision brought up for review. On January 11, 1946, the Court passed an order modifying the decision of the Board by restraining the applicant for the permit from erecting any buildings on Colati's lot, from a point at the rear end of the wall of the residence at 2512 McElderry Street to the rear of the lot, to a height greater than the first story of that residence. From that order Colati appealed to this Court.

It appears that the property in question is a non-conforming use in a residential use district. Paragraph 8(38) of the Baltimore City Zoning Ordinance prohibits the use of any building in a residential use district for the sale of alcohol or alcoholic drinks. But the Zoning Ordinance does not prevent the continuance of any non-conforming use existing at the time of the passage of the ordinance. Non-conforming buildings existing when the Zoning Ordinance went into effect are allowed to stand, and non-conforming uses are allowed to continue. Zoning seeks to stabilize and protect, not to destory; it seeks to safeguard the future with anticipation that time will repair the mistakes of the past. However, paragraph 11 contains the following prohibition: 'A non-conforming use may not be extended, except as hereafter provided, but the extension of a use in any portion of a building, which portion is now arranged or designed for such non-conforming use, shall not be deemed to be an extension of a non-conforming use.' This Court holds that the Zoning Ordinance prohibits generally the extension of a non-conforming use except to the portion of the building designed for such use at the time of the passage of the ordinance, and that the stopping of expansion of a non-conforming use is not an arbitrary or unreasonable exercise of governmental power. Knox v. Mayor and City Council of Baltimore, 180 Md. 88, 96, 23 A.2d 15; Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 453, 34 A.2d 765.

The Zoning Ordinance, as amended by Ordinance 445, approved April 23, 1941, makes only one exception to the prohibition of paragraph 11 in dealing with residential use districts. This exception, found in paragraph 12(b), provides that the Board of Zoning Appeals, subject to the provisions of paragraph 32(j), may in its discretion in a specific case permit, where otherwise excluded or limited, 'a use of the same classification, necessary or incidental to a non-conforming use' within 50 feet from such existing non-conforming use, provided that such 50-foot measurement shall not extend across a street. It is apparent that the Board's discretionary power to extend a non-conforming use horizontally does not apply to the pending case.

It is true that paragraph 32(g)3 of the Zoning Ordinance, enacted pursuant to the State Zoning Enabling Act, Acts of 1927, ch 705, Code 1939, art. 66B, sec. 7, endows the Board of Zoning Appeals with discretion to authorize in any specific case such variance from the terms of the ordinance as may be necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done. The only guide which the Mayor and City Council gave to the Board as to when it may authorize a variance from the terms of the ordinance was, as stated in paragraph 33(b), when there are 'practical difficulties or unnecessary hardships' in the way of carrying out the strict letter of the ordinance. In 1933 the Court of Appeals held that this grant of unlimited and unregulated discretion to an administrative board to set aside the ordinance in any case was an arbitrary and unlawful delegation of power. Jack Lewis, Inc. v. Mayor and City Council of Baltimore, 164 Md. 146, 164 A. 220; Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 495, 165 A. 703. On this appeal there is no necessity to discuss whether paragraph 32(g)3 has been brought fully within the bounds of constitutionality by the enactment of paragraph 32(...