Goldman v. Crowther

Decision Date03 February 1925
Docket Number79.
PartiesGOLDMAN v. CROWTHER, CITY INSPECTOR OF BUILDINGS, ET AL.
CourtMaryland Court of Appeals

Rehearing Denied March 20, 1925.

Appeal from Superior Court of Baltimore City; Chas. W. Heuisler Judge.

Mandamus by Daniel Goldman against J. Frank Crowther, Inspector of Buildings for Baltimore City, and others. From judgment refusing writ, relator appeals. Reversed and remanded.

Bond C.J., and Urner, J., dissenting.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

Joseph C. France, James E. Tippett, and Isaac Lobe Straus, all of Baltimore, for appellant.

Philip B. Perlman, City Sol., Wirt A. Duvall, Jr., Deputy City Sol., George E. Kieffner, Asst. City Sol., and George Ross Veazey, all of Baltimore, for appellees.

OFFUTT J.

Daniel Goldman and his wife, as tenants by the entireties, own the property known as 1513 Park avenue in a part of Baltimore City, which, under Ordinance No. 922 of the mayor and city council of Baltimore city, known as the "Zoning Ordinance," is classified as a residence district. In May, 1923, Goldman undertook to use the basement of a four-story dwelling on that property for repairing by hand, and an ordinary sewing machine for hire, used clothing for such patrons as had occasion to require his services. The business which he thus carried on required no alteration or repair of the building, and in the opinion of Goldman no permit was necessary to use it for that purpose. He was, however, informed that by so using it without a permit he was violating certain ordinances of the mayor and city council of Baltimore, and shortly thereafter he was arrested for such violation, and while that complaint against him was pending he applied to the inspector of buildings of Baltimore city for a permit to use the premises for the purposes referred to. The inspector of buildings refused to grant the permit partly at least on the ground that he was compelled under the Zoning Law to disprove applications for such a use of property in a residence district. Goldman then filed in the superior court of Baltimore city a petition in which he asked that a writ of mandamus be issued against the building inspector of Baltimore city and the mayor of said city directing them to issue to him a permit for the use of his premises for the purposes referred to above. The defendants answered that petition, and in their answer they averred that the permit was refused not only upon the authority of the zoning ordinance, but as well upon the authority of other ordinances of the city of Baltimore vesting a discretion in the building inspector as to the issuance of permits in such cases, and that in refusing the permit in this case the building inspector acted in the exercise of that discretion. In connection with such issues of fact as were presented by the petition and the answer thereto, an agreed statement of facts was filed, and from that statement and the admissions found in the pleadings it further appears that the real and substantial reason for refusing the permit was that Goldman's property is located in a residence district of Baltimore city, the outlines of which are fixed by the zoning ordinance referred to. The verdict of the trial court was in favor of the defendants and the writ of mandamus refused, and from the judgment on that verdict this appeal was taken.

The important and controlling and, indeed under the agreed statement of fact the only, question presented by the appeal is whether the zoning ordinance of Baltimore city, known as "Ordinance No. 922," in so far as it affects the right of the appellant to use his property in the manner we have described, is a valid and an enforceable enactment, and in dealing with that question it can be said that there is nothing in the record from which it can be inferred that such use is offensive to the eye, the ear, or the nose of a person of ordinary sensibilities, or that it imperils the public health, welfare, or safety, any more than would the same character of work if done by Goldman for himself and his family, except that possibly more of it is done.

This question can be approached by either of two avenues: One, legal; the other, political and sociological. If approached by the former, the validity of the restraints and prohibitions of the ordinance must depend upon whether they violate certain definite guaranties and assurances found in the federal and state Constitutions and the law of the land. If approached by the latter, the question is to an extent freed from the embarrassment of harmonizing any apparently repugnant provisions of the act with those guaranties, since in such case the end to be accomplished and the benefit to be derived are the main factors to be considered, and the rights of mere individuals may be subordinated to the public convenience upon the principle that such rights are always subject to the paramount authority of the state to subordinate them to what is conceived by those speaking for it to be for the benefit of the state as representing all the citizens.

Which one of these two methods of approach should be used in this case is a question which goes to the root of our system of government; but without referring further to that, it is sufficient to say that in our opinion we are not at liberty to examine the question from any other than a legal standpoint, and therefore we cannot be controlled in our consideration of the validity of this ordinance by its possible benefit to the public, if in point of fact that benefit is purchased by appropriating the rights and property of individuals to the public use without just compensation, and by the violation of the guaranties of the state and federal Constitutions.

We will now examine the statute itself to ascertain just what it is and what it does.

It first divides the city of Baltimore into various districts classified according to the use to which property may be put, the height of buildings which may be erected, and the proportion of the whole area which buildings may occupy on lots on which they may be placed. The outlines of these several districts are fixed by certain maps accompanying the ordinance as a part of it. By these maps the entire city is divided first as to use into: (a) Residence districts; (b) first commercial districts; (c) second commercial districts; (d) industrial districts; and in those districts it is provided that--

"No building shall be erected or used and no land shall be used for any purpose other than a purpose permitted in the 'use' district in which such building or land is located."

In a residence district no building or land shall be used and no building shall be erected which is arranged, intended, or designed to be used except for one or more of these specified uses: (1) Dwellings; (2) lodging or boarding houses, dormitories or convents; (3) hotels, which have more than 20 sleeping rooms; (4) clubs, except clubs the chief activity of which is a service customarily carried on as a business; (5) churches; (6) libraries or public museums; (7) municipal recreation uses; (8) railroad rights of way; (9) farming, gardening, nurseries, or greenhouses; (10) apartment garages, without repair facilities or gasoline filling stations, each apartment of which shall not have over two private motor cars, etc.

In the first commercial district no land or building shall be used and no building shall be erected for certain specified trades. No building or land shall be used and no building erected in the second commercial districts for any one of 87 specified trade, industries, or uses, and no building or land shall be used or erected for any trade, industry, or use that is noxious or offensive, but it permits street car barns, trouble stations, bus garages, electric substations, gas holder stations, public utility distribution shops, telephone exchanges, or places of amusement.

The ordinance further provides that any building or land may be used in industrial districts for any purpose not prohibited within the city limits. It also contains a general provision authorizing the board of zoning appeals in appropriate cases to determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent, and then sets out and limits the extent of the authority thus given the board of zoning appeals to vary the terms of the ordinance, but authorizes it to permit in any use district: (1) Amusement parks. (2) Aviation fields. (3) Crematories. (4) Public utility plants. 5) Refuse dumps. (6) Sewage disposal plants.

Second. As to height, the city is divided into five height districts, in which the height of buildings erected is required to conform to certain ratios varying as to the several districts from 2 1/2 times the width of the street on which they front to 40 feet in height.

Third. As to area the city is divided into six area districts, in which no building may be erected which occupies more than a certain percentage, varying as to each district, of the lot on which it is located, and in which the number of families who may dwell on a given area is fixed.

The inspector of buildings of Baltimore city, called the zoning commissioner, is charged with the duty of enforcing the ordinance, and a board of zoning appeals is established and authorized to hear and decide appeals from any order requirement, or decision of the zoning commission in carrying out the ordinances, and there may be an appeal from any order, requirement, etc., of said board of zoning appeals to the Baltimore city court, which is required to hear the case represented by the appeal de novo and authorized to pass such order in the premises as it may deem right and proper. It...

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