Gleason v. Keswick Imp. Ass'n, 69

• Decision Date: 10 January 1951
• Docket Number: No. 69,69
• Parties: GLEASON et al. v. KESWICK IMPROVEMENT ASS'N Inc., et al.
• Court: Maryland Court of Appeals

Page 46

197 Md. 46

78 A.2d 164

GLEASON et al. v. KESWICK IMPROVEMENT ASS'N Inc., et al.

No. 69.

Court of Appeals of Maryland.

Jan. 10, 1951.

Albert L. Sklar, Baltimore (Henry R. Wolfe, Baltimore, on the brief), for appellants.

O. Bowie Duckett, Baltimore, for appellees.

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

GRASON, Judge.

The Board of Municipal and Zoning Appeals of Batimore City granted the appellants, under Paragraph 12, section (c), (Ordinance No. 1247 approved by the Mayor and City Council on March 30, 1931, and known as the Zoning Ordinance) the right to erect a store on their property situated in a residential use district. On appeal to the Baltimore City Court this action of the Zoning Appeals Board was reversed, and from that action by the court below the case comes here on appeal.

The action of the Appeals Board was not unanimous. One of the members of that Board dissented from its action. In the Resolution of the Board, dated October 20, 1949, certain statements therein and inferences drawn are not sustained by the testimony in this case.

Stated in narrative form, the evidence taken before the Board and in court is as follows: The property involved in this case is known as 220 W. Cold Spring Lane. It is situated on the north side of that street and is 125 feet and 1 3/4 inches east of Wilmslow Road. The lot fronts on Cold Spring Lane 75 feet 1 inch, and has a depth of 129 feet 7 7/8 inches. It is improved by a dwelling 20 feet by 55 feet, and a shed. It is proposed to construct a one-story brick building 75 feet by 70 feet on the rear of the lot, to be used as a store, and to use the front part of the lot for parking.

This is the second application to the Board for permission to erect a store on this lot. The first application was disapproved by the Board on September 14, 1948. The house on this lot has been used as a dwelling for years and was probably so used long before Ordinance No. 1247 was approved by the Mayor and City Council. The appellants in this case purchased this property about 1944. At that time it was used for residential purposes, continued so to be used, and at the time of the application in this case was used as a residence.

Under the ordinance, five feet east of this property is the line which separates the residential zone from the second commercial zone. The residential zone is west of the line and the second commercial zone is east of the line. The first property east of the line is an office and warehouse, the second is a filling station, and the third is a storage yard upon which is a store. The store is next to the Maryland and Pennsylvania Railroad tracks. To the north of the property in question is a 20 foot alley which runs from Wilmslow Road easterly to a shed on the property of the storage yard. The property of William N. Robey and Teresa Robey (two of the appellees) is the third house north of the twenty foot alley, fronting on Wilmslow Road, and is one of the very nice residences in that vicinity. Two blocks West of the appellants' property there is a shopping center. In that district there are two grocery stores, one of which is operated by the appellants. One witness said that this business section is three blocks from the property in question. In its Resolution the Board stated that Cold Spring Lane, from the railroad tracks to Schenley Road, is practically a business street. The testimony is that starting at 220 W. Cold Spring Lane (the property in question) and going west to Keswick Road, on the north side of Cold Spring Lane (a distance of practically two blocks) there are 'ten plots. Nine of those plots are residence construction. One of them, the gas station, is a commercial structure. * * * Now, the south side of Cold Spring Lane is entirely residential. * * *.' Mr. Buckler, a member of the City Council, testified: 'All the properties across the street on the south side of Cold Spring Lane are individual fine residential properties * * *.'

The record shows that on the north side of Cold Spring Lane, from the property in question west for practically two blocks, the neighborhood is residential, except two or three properties along that side are used for commercial purposes; and on the south side of Cold Spring Lane, from the property in question, there are 'fine residential properties'; and within two blocks of the property in question there is a shopping center which includes two grocery stores, one of which is operated by the appellants. There has been little change in the neighborhood since the adoption of Ordinance No. 1247.

The application of the appellants seeks to rezone their property, not under the general rule provided by the Zoning Ordinance, but to apply to their property a special exception provided for by Par. 12(c) of the Ordinance. Subsection (c) is as follows: 'within one hundred feet of a boundary line between two use districts, any use permitted in that one of such use districts which has the lower classification,...