Ellicott v. Mayor and City Council of Baltimore

• Decision Date: 13 January 1942
• Docket Number: 50.
• Parties: ELLICOTT et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

23 A.2d 649

180 Md. 176

ELLICOTT et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 50.

Court of Appeals of Maryland

January 13, 1942

Rehearing Denied March 3, 1942.

Appeal from Baltimore City Court; Rowland K. Adams, Judge.

Proceeding by C. Ellis Ellicott and others against the Mayor and City Council of Baltimore and others, to review a ruling of the Board of Zoning Appeals of such city, authorizing establishment of a filling station on a lot in a residential area. From an order affirming the ruling, petitioners appeal.

Order affirmed.

Douglas H. Gordon and H. Warren Buckler, Jr., both of Baltimore (W. Harvey Small, of Baltimore, on the brief), for appellants.

Wilson K. Barnes, Asst. City Sol., and Paul F. Due, both of Baltimore (Charles C. G. Evans, City Sol., and Due, Nickerson & Whiteford, all of Baltimore, on the briefs), for appellees.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

BOND Chief Judge.

The appellants, including owners of property in Baltimore City in an area zoned as a residential district, and a taxpayer appealed to the Baltimore City Court from a ruling of the Board of Zoning Appeals of the City authorizing the establishment of a filling station on a single lot in the district, and from an affirmance of the ruling below appeal to this court. The lot is 100 feet by 145 feet in size, and by an ordinance of the city, No. 323, was rezoned as a first commercial district, and the appellants attack both the validity of the ordinance and the Board's action in the exercise of a discretion vested in it by an amending ordinance. No. 318, par. 34, 34A, and 34B, to allow or deny particular locations of filling stations.

The lot is at the south-east corner of Greenspring Avenue and Cold Spring Lane. It is in a region lying north of Druid Hill Park, which has remained in comparatively rural conditions with the land still held in large parcels, with much woods, and scattered residences except for a few small dwellings built along Greenspring Avenue. The area has always been zoned as a residential district under the zoning ordinance No. 1247, of 1931, and plans of the City Planning Commission, Code, Art. 66B, sec. 10 etc., contemplate widening Greenspring Avenue to provide a dual residential highway to the country beyond. Cold Spring Lane has in recent years been opened as a wide highway connecting the more thickly settled sections to the east and the west. The nearest development in Cold Spring Lane, one of dwellings, is from 500 to 600 feet from the lot under discussion. Much regrading would be necessary to adapt the land along the roads to use for more closely built residences. But it seems inevitable that land so far within the city limits must soon be so built up, and the general residential zoning appears to be planned for the future. It is none the less proper and effective for that. Leahy v. Inspector of Buildings, 308 Mass. 128, 132, 31 N.E.2d 436; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; State of Washington v. Roberge, 278 U.S. 116, 121, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654.

At the crossing of the two roads there are now no improvements. Billboards, an existing non-conforming use in 1931, not interfered with in the zoning (Par. 11, Ord. No. 1247), stand nearby on Greenspring Avenue, and a ravine in the land on the southeast corner has been largely filled up by the dumping of non-perishable material of many kinds.

A first question is whether the appellants can raise, on an appeal from the Board of Zoning Appeals, and from the Baltimore City Court, the objections they make to the validity of the ordinance No. 323. The Board, as an agency of the City, was bound by the ordinance, and did not decide the question of its validity. On appeal from its decision, can that question be raised? Section 7 of the general enabling act for zoning, Code Article 66B, provides that any persons jointly or severally aggrieved by a decision of the Board, or any taxpayer, may present to a court of record a petition setting forth that such decision is illegal, and that from any decision of that court an appeal may be taken to the Court of Appeals; and paragraph 35, sub-section (a), of the zoning ordinance, No. 1247, repeats this authorization, but designates the Baltimore City Court as the proper court of record. The provision was originally enacted along with an authorization to the Board of Zoning Appeals to allow special variations from the zoning of a district (Ord. 1247, Par. 12 and 33), and the validity of a variation could then, of course, be questioned on the appeal from its decisions. Since the decision in Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 165 A. 703, holding this delegation of power to make variations unconstitutional, the making of them has been referred back to the legislative power of the City (Bassett, Zoning, 145), and hence the question of the forum for attacking the validity of its action arises.

In many cases this court has held that an appeal from the decision of a municipal board acting under an ordinance of the City is not the appropriate proceeding for testing the validity of the ordinance. The court has said that the person aggrieved 'may and ought' to go into equity, or that equity has jurisdiction. Holland v. Mayor of Baltimore, 11 Md. 186, 197, 68 Am.Dec. 195; Mayor v. Porter, 18 Md. 284, 301, 79 Am.Dec. 686; Page v. Mayor of Baltimore, 34 Md. 558, 564; Mayor of Baltimore v. Radecke, 49 Md. 217, 231, 33 Am.Rep. 239; Gittings v. Baltimore, 95 Md. 419, 424, 52 A. 937, 54 A. 253; Joesting v. Baltimore, 97 Md. 589, 594, 55 A. 456; Cahill v. Judges of Appeal Tax Court, 130 Md. 495, 497, 100 A. 834; Bouis v. Baltimore, 138 Md. 284, 288, 113 A. 852; Jones v. Gordy, 169 Md. 173, 178, 180 A. 272. In this instance the words of the authorization of the special appeal are that petitioners may complain that a decision of the Board is illegal, and this could now be construed to exclude a question of validity of the ordinance. On the other hand, it was the design f the statute and the ordinance that this question along with others arising in the application of the zoning law should be litigated in one proceeding, at the suit of all persons feeling aggrieved, taxpayers and others. In a suit in equity for an injunction a plaintiff must show a special, peculiar injury to himself to entitle him to relief. Bauernschmidt v. Standard Oil Co., 153 Md. 647, 139 A. 531. And if by the logical process required the questions should be separated, those on objections to irregularities in the Board's action to the heard on the statutory appeals, and those on objections to the validity of a variation made by ordinance to be heard on an application for an injunction the design of the statute and the ordinance would be departed from. Some persons interested in a municipal development, who might feel aggrieved within the meaning of the law, and are intended to be heard, taxpayers and others besides neighboring owners, for instance, could not contest the validity of the variation at all because they would not be able to show the peculiar injury necessary. Bauernschmidt v. Standard Oil Co., supra. And questions of validity of the variation and of irregularities in the Board's action could not be heard together in one proceeding. The statute and ordinance are still capable of a construction that will permit raising the question of validity on the appeal; it is convenient for the court on appeal to hear questions as the original ordinance contemplated; to separate the questions we should be following strict logic to impose a disadvantageous practice; and that, we have concluded, should not be done. The contest of the varying ordinance may be heard on the appeal to the court, although not before the Board.

The purpose of the zoning law is, of course, to devote general areas or districts to selected uses. 'The whole value of zoning lies in the establishment of more or less permanent districts, well planned and arranged.' Rehfeld v City and County of San Francisco, 218 Cal. 83, 85, 21 P.2d 419, 420. The act enabling the City to fix such areas, Code, Article 66B, provides for division of the...