Frankel v. City of Baltimore, 236

• Decision Date: 01 July 1960
• Docket Number: No. 236,236
• Citation: 162 A.2d 447,223 Md. 97
• Parties: Victor FRANKEL v. CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 97

223 Md. 97

162 A.2d 447

Victor FRANKEL v. CITY OF BALTIMORE.

No. 236.

Court of Appeals of Maryland.

July 1, 1960.

Ronald H. Goodman, Baltimore (Alvin E. Friedman and Friedman & Goodman, Baltimore, on the brief), for appellant.

James B. Murphy, Asst. City Solicitor, Baltimore (Harrison L. Winter, City Solicitor; Ambrose T. Hartman, Deputy City Solicitor, Baltimore, on the brief), for appellee.

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

PRESCOTT, Judge.

Dr. Victor Frankel appeals from an order of the Baltimore City Court, which affirmed the action of the Board of Municipal and Zoning Appeals (Board) in denying him a permit to construct a two-story and basement professional office building on his unimproved lot of land located at the southwest corner of the intersection of Park Heights and Manhattan Avenues.

The lot is located in an 'E' area, and residential use zone, which limits its use, for all practical purposes, to the construction of semi-detached or single dwellings. Frankel applied to the Board for an exception under Section 36, subsections (b) and (c), of the Baltimore City zoning ordinance. These subsections allow the Board to grant a building permit, inter alia, where the permissible use of land is limited because of the irregularity of the shape of land, topography, grade or accessibility; or where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of the zoning ordinance. The Board denied the permit on two grounds: it found no sufficient reasons to warrant an exception to Section 10 of the zoning ordinance [residential use]; and no sufficient reasons to 'warrant it in making an exception to the area regulations.'

The lot is an irregular corner one with a frontage on Park Heights Avenue, a main arterial highway 90 feet wide, of 149.27 feet tapering from a width at its northern end of 56.2 feet on Manhattan Avenue to a width of 92.25 feet on its southern boundary. It was acquired by Frankel, shortly before his application to the Board, as the result of negotiations between him and the Associated Jewish Charities (Associated), whereby Associated obtained from him a lot immediately north across Manhattan Avenue and Frankel received from Associated the subject property. At the time of his acquisition thereof, there was located thereon an abandoned 12 by 20 feet bus terminal and waiting room, which had previously been utilized (beginning in 1938) by the Transit Company under special-exception permit.

The subject property and the immediate neighborhood have been zoned residential since the beginning of zoning in Baltimore (1931), but within the last few years the neighborhood has rapidly and radically changed from residential uses to commercial, institutional and office uses. Immediately to the south of the property in question are five row houses, a use not ordinarily permitted in a residential 'E' zone. Immediately to the north, the entire block is occupied by the Jewish Community Center and Baltimore Hebrew College. Across the street on the east side of Park Heights Avenue are the Synagogue of the Beth Jacob Congregation, a public parking area and a large public junior high school. All of the last mentioned buildings were built after the removal of residential properties. A recently completed part of Northern Parkway is adjacent to this high school on the south, and an extension of the Parkway from Park Heights Avenue to Reisterstown Road on the west side is now under way. This extension will be to the south of the five row houses referred to above. South of the beltway extending to Park Circle (approximately 2 miles) on Park Heights Avenue are commercial and office uses, interspersed with residences. On the east side of Park Heights Avenue, at its intersection with Rogers Avenue, a short distance south of Northern Parkway, are two gasoline stations. In 1952 in the case of Esso Standard Oil Co. v. Mullen, 200 Md. 487, 490, 90 A.2d 192, 193, this Court had occasion, in determining that a restrictive covenant was no longer enforceable, to describe the area involved in the present case. The Court, speaking through Judge Henderson, said: 'It was shown that the neighborhood is now dominantly and progressively commercial. There is a filling station on the southeast corner [of the intersection of Park Heights and Rogers Avenue], and business establishments on the other two corners. On both sides of Park Heights Avenue and Rogers Avenue for several blocks the development is solidly commercial, although there are a few surviving residential frame dwellings to the north of the lots in question, one of which, however, is occupied by a paperhanger. * * * The change in character is perhaps not so pronounced in the tract in question as in the surrounding area, particularly along the main arteries.'

I

We shall first consider the contention made by the appellee that the appellant has no standing. The City correctly states that the appellant obtained the lot with full knowledge of its zoning classification; and it argues that this fact precludes him from asserting any claim of hardship. We think that the evidence in this case, as will be pointed out below, shows that under the present zoning classification, without the benefit of any exception, the appellant's property cannot be put to any reasonable use. The case, then, is not merely one of hardship, but of a taking in a constitutional sense. Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; City of Baltimore v. Cohn, 204 Md. 523, 105 A.2d 482. Cf. Walker v. Board of County Com'rs of Talbot County, 208 Md. 72, 116 A.2d 393; Marino v. City of Baltimore, 215 Md. 206, 220, 137 A.2d 198; Hoffman v. Mayor and City Council of Baltimore, 197 Md. 294, 79 A.2d 367. We, therefore, find it unnecessary to consider whether any limitation should be placed on the rule stated in Gleason v. Keswick Impvt. Ass'n, 197 Md. 46, 50, 78 A.2d 164, which stands in the way of one seeking a variance (or its equivalent), because of alleged hardship, when he has purchased the property with full knowledge of the zoning restrictions of which he complains.

II

We described the subject property and surrounding neighborhood in some detail above, because we think it substantiates the opinions of the experts offered by the appellant. Melvin Goldman, with a splendid background of real estate knowledge and experience and whose office is some 300 feet from the Frankel property, qualified as an expert. After testifying to the changes in the neighborhood, he stated that their combined effect is 'overwhelming evidence of the tremendous change that has taken place in the neighborhood within recent years.'

He also testified that due to the changes in the neighborhood, the existence of the...