Engle v. City Com'rs of Cambridge

• Decision Date: 04 December 1941
• Docket Number: 51.
• Citation: 22 A.2d 922,180 Md. 82
• Parties: ENGLE v. CITY COM'RS OF CAMBRIDGE.
• Court: Maryland Court of Appeals

22 A.2d 922

180 Md. 82

ENGLE v. CITY COM'RS OF CAMBRIDGE.

No. 51.

Court of Appeals of Maryland

December 4, 1941

Appeal from Circuit Court, Dorchester County; T. Sangston Insley and James M. Crockett, Judges.

Petition by A. Ellis Engle against the City Commissioners of Cambridge, Maryland, for a writ of mandamus to command the respondents to grant petitioner a permit to erect a garage. From an order dismissing petition, the petitioner appeals.

Affirmed.

Frederick P. McBriety, of Cambridge, for appellant.

W Laird Henry, Jr., of Cambridge, for appellees.

Argued before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS FORSYTHE, and MARBURY, JJ.

JOHNSON Judge.

Upon this appeal from the Circuit Court for Dorchester County, the correctness of the trial court's action in dismissing appellant's petition for the writ of mandamus is questioned. The petition sought to have the writ issued commanding appellee to grant the petitioner a permit to erect on Sunburst Highway, in Cambridge, Maryland, a building constructed of brick and other fire resistant materials to be used for (1) a salesroom in which to display automobiles; (2) a service department for mechanical and repair work for automobiles, and (3) such miscellaneous and allied lines as might be profitably carried on with the business. The petition also asserts that on Sunburst Highway are garages of L. D. T. Noble and Joe Peters which are comparable in kind and character with that which the petitioner seeks to erect that the building presents no fire hazard and the business which he seeks to carry on there is lawful. Filed as Exhibit B with the petition is a copy of Ordinance No. 50, New Series, passed by appellee on January 17, 1917. Section I of that Ordinance provides that 'it shall be unlawful for any person or persons, firm, corporation, partnership association or company, to erect, build, remodel, repair, rebuild, move or remove and dwelling house, ware-house, store-house, factory, mill, shop, stable, outbuilding, outhouse or any building or structure of any kind whatsoever, without first applying to and obtaining from the Commissioners of Cambridge a permit, authorizing such erection, building, remodeling, repairing, rebuilding, moving or removing, and when any such permit is granted the grantee of the same shall comply with all of the conditions and requirements set forth in this ordinance and in the said permit.'

Incidentally it may be mentioned that Ordinance No. 50, New Series, is a fire zone and building ordinance, and that except as quoted it in no way interferes with or controls the erection of buildings on Sunburst Highway.

The petition shows, and the answer admits, that application by appellant, individually, to build a garage and service station on Sunburst Highway was made January 29, 1941, and on February 5, 1941, at its second reading, there being no motion to grant the same, it was tabled, but on March 12, 1941, the application was rejected by the respondent. The answer denies that the proposed building will not present a fire hazard, and alleges that any building in which the sale of oil or gas is stored and used presents a fire hazard. Further answering, appellee asserts that under the provisions of Ordinance No. 50, New Series, the petitioner did not have the right without first securing a permit to erect the building described therein, and asserts that its judgments, due regard being had for the safety of the property and best interest of the city, required it to refuse the permit applied for, and under its general police powers it had a right to refuse the same. The answer was accompanied by a petition of protest filed with appellee and signed by more than fifty persons owning property on or near Sunburst Highway. The protestants stated that two filling stations were a sufficient number to serve gasoline, oil and grease to customers, and that Sunburst Highway was a dual highway and boulevard rapidly developing into a desirable residential section of East Cambridge, on which residents had built expensive homes in the hope that the section would be residential, and a building of an additional filling station of Sunburst Highway would mar the beauty of said section, depreciate the value of the homes on either side thereof, and would result in decreasing the demand for locations on which to build homes.

Stipulations and testimony on which the case was tried admitted that the only ordiance of Cambridge with respect to building was Ordinance No. 50, New Series, enacted under the powers granted appellee by Maryland Legislature in Article 10, Section 64, Code of Public Local Laws of Maryland; that there are numerous residences which had been recently built on...