Feldman v. Star Homes, Inc., 86

• Decision Date: 07 December 1951
• Docket Number: No. 86,86
• Parties: FELDMAN et al. v. STAR HOMES, Inc. et al.
• Court: Maryland Court of Appeals

Page 1

199 Md. 1

84 A.2d 903

FELDMAN et al. v. STAR HOMES, Inc. et al.

No. 86.

Court of Appeals of Maryland.

Dec. 7, 1951.

Eugene M. Feinblatt, Baltimore (Simon E. Sobeloff and Vernon H. Wiesand, Baltimore, on the brief), for appellants.

Moses J. Cohen, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., Baltimore, on the brief), for Mayor & City Council of Baltimore.

Hilary W. Gans, Baltimore (A. Herman Siskind, Baltimore, on the brief), for Star Homes, Inc.

Before MARBURY, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

HENDERSON, Judge.

This appeal is from a decree of the Circuit Court of Baltimore City dismissing, after hearing, a bill for declaratory judgment filed by the appellants. The bill alleged that Star Homes, Incorporated, had applied for and obtained permits from the Buildings Inspection Engineer of Baltimore City for the erection of twenty two-story, semi-detached dwellings on a tract of land located about two hundred and seventy-five feet north of Fords Lane, in the interior of the block formed by Clarks Lane on the north, Reisterstown Road on the west, and Park Heights Avenue on the east. Access to the development was to be through another tract about one hundred feet wide, owned by Star Homes, Incorporated, abutting on Fords Lane, and a projected road, to be known as Fieldcrest Road, thirty feet wide, leading into the development in a northerly direction from Fords Lane. Another road, to be known as Bancroft Road, was projected across the development in an east and west direction between the proposed dwellings, with a bend to the north at its eastern extremity. The bill alleged that the location of the proposed roads would seriously affect and irreparably damage the complainants' property and the character of the neighborhood.

The bill further alleged that the City Planning Commission, in violation of the provisions of Section 112 of the Baltimore City Charter, approved the subdivision plan attached to the application of Star Homes, Incorporated, including the street plans of Fieldcrest Road and Bancroft Road, without notice to the complainants and without a public hearing upon the application. The bill prayed that such approval be set aside, and the Planning Commission be required to give notice and conduct a hearing; that the permits be set aside and work under them be enjoined. The appellees, in their answers denied that the appellants would suffer any damage by reason of the location of the proposed roads, denied that Section 112 of the City Charter was applicable to subdivision plans, and denied that the action of the Planning Commission and the Buildings Inspection Engineer, in approving the plans and issuing the permits, was illegal or void.

The complainants, Feldman and the Alpersteins, are taxpayers and the owners of 3702 Fords Lane and 3710 Fords Lane, respectively. Neither of these lots abut upon the proposed roads, but they do touch, in the rear, upon the tract where the proposed dwellings are to be located. After answers had been filed Dan Schloss, the owner of a tract of land adjoining the property of Star Homes, Incorporated, on the north, and Mrs. L. Edwin Goldman, the owner of property adjoining the property of Star Homes, Incorporated, on the west, were permitted to intervene as parties plaintiff. Neither of the intervenors appealed from the decision of the Chancellor.

The Planning Commission is created by Section 102 of the Baltimore City Charter of 1949. Power to adopt a Master Plan for the whole city, and Official Detailed Plans for particular areas, is conferred by Section 106. Section 112 provides that after preparation of a preliminary detailed plan for a given area, and 'after a public hearing thereon, notice of the time and place of which hearing shall be given by posting notice in the neighborhood of the properties affected and by publication in a newspaper of general circulation in Baltimore City', the Commission may adopt an Official Detailed Plan. Section 114 provides 'The adoption of an Official Detailed Plan shall not, however, be deemed the opening or establishment of any street, or the taking of any land for public purposes, but solely as a designation of the location shown thereon for future acquisition for public use pursuant to the law in such cases made and provided.'

Section 116 authorizes the Commission to regulate or supervise the development of subdivisions to insure their compliance with any applicable Official Detailed Plans. Section 118 provides that no permits shall be issued for any subdivision plan, as defined in Section 117, until after approval by the Commission. 'In the event the Commission shall fail to approve or disapprove any such subdivision plan within thirty days from the date of submission thereof to the Commission, such plan shall be deemed to have been approved by the Commission * * *.' Section 119 provides: 'After the approval by the Commission of any such subdivision plan, the streets shown thereon shall have the status of a street shown on an Official Detailed Plan.' Section 120 provides for an appeal from a decision of the Commission by an applicant or by the City.

In the instant case it is conceded that no Official Detailed Plan was adopted for the area in question and there are no applicable provisions of the Master Plan. It is clear, therefore, that Section 112 is not applicable, and we find nothing in the sections dealing with subdivision plans that requires notice or a public hearing. Indeed, under Section 118, it is provided that the mere failure of the Commission to act upon a plan submitted to it shall be equivalent to approval. Whether the lack of a requirement of notice and hearing is 'in contravention of the spirit of sound planning', as contended, is not the concern of the courts. Windsor Hills Improvement Association v. Baltimore, Md., 73 A.2d 531, 533. We cannot supply words in the enactment that were apparently deliberately omitted. Nor can we find that the Commission acted illegally...