Hare v. Mayor and City Council of Baltimore

• Decision Date: 15 July 1952
• Docket Number: No. 210,210
• Citation: 90 A.2d 217,200 Md. 477
• Parties: HARE v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 477

200 Md. 477

90 A.2d 217

HARE v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 210.

Court of Appeals of Maryland.

July 15, 1952.

Samuel M. Campanaro and O. Bowie Duckett, both of Baltimore, for appellant.

Francis J. Valle, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., and Edwin Harlan, Depty. City Sol., Baltimore, on the brief), for appellees.

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

COLLINS, Judge.

This is an appeal from an order of the Baltimore City Court in a zoning case.

On October 24, 1950, the appellant filed an application with the Building Inspection Engineer of Baltimore City (the Zoning Commissioner) for a permit to use at 3515-29 Pleasant Place in a Residential Use, 'C' Area District, two garages as an office and storeroom and seven additional garages, located directly across a 20 foot yard from his machine shop, which had been approved for that use on January 28, 1947 by the Board of Municipal and Zoning Appeals (the Board), for storage of materials in conjunction with that shop. The lot owned by the appellant is on the east side of Pleasant Place with a frontage southerly on Pleasant Place of 89 feet 6 inches and a depth easterly of 67 feet 5 inches, improved by three one story brick buildings. The Building Engineer found that the two garages to be used as an office and storeroom could be permitted by the Board as a nonconforming use under Article 40, Section 12(b) of the Baltimore City Code (Flack's 1950 Edition). However, he disapproved the use of the seven additional garages as requested. From the decision of the Zoning Commissioner the appellant appealed to the Board.

After a hearing before the Board, three members voted for the application as applied for, and two members voted for the resolution which contained the following: The Board inspected the premises and 'made a study of the premises and neighborhood * * *. The testimony shows that certain garages have been used for storage heretofore, and that some of them are now used as a machine shop. The evidence was not sufficient to warrant finding a non-conforming use to have been established in the seven garages intended for storage, and therefore the Board sustains the action of the Zoning Commissioner in disapproving the use of the seven garages for storage, but approves the use of two garages as proposed for an office.' Since the Zoning Ordinance requires a vote of four members to reverse an action of the Zoning Commissioner, the application for the seven garages was denied.

From the action of the Board the appellant appealed to the Baltimore City Court. Judge Warnken, after a study of the testimony taken before the Board and after argument of counsel, rendered a judgment in favor of the defendants, appellees, for costs. From that judgment appellant appeals.

To the south of the seven garages here in question are twenty-one garages in three rows. Immediately to the west are thirty-two garages. To the north is a twenty foot yard separating these seven garages from appellant's machine shop. North of the machine shop are four garages making sixty-four garages practically adjoining the machine shop. At the hearing before the Board the appellant testified that his father built these seven garages late in 1923 or early 1924. The two end garages had been used by Sandler's Furniture Store and by a Mr. Baker for storage of furniture since they were built. The other five have been used for the storage of automobiles. There are metal partitions between the garages. The appellant is working for the Army on smoke pumps and wants to use these seven garages for storage of 'small material, small castings, electric motors a man could carry, a box of screws, electric switches. * * * all small material a man could carry and put away.' He proposes to take out the partitions and make one building for storage. He testified that the use of these garages for storage purposes would not interfere with the peace and quiet of the neighborhood. A Mr. Buffington, who had lived in the neighborhood for about 65 years, testified that some of the seven garages here in question were used since their construction for purposes other than storage of automobiles, that is for storage of furniture for a long period of time.

Although the resolution of the Board stated that it 'approves the use of two garages as proposed for an office' and makes no mention of 'storage', the appellees concede that the application as to the two garages was granted as applied for. The appellees in their brief state: 'The garages we are concerned with under this appeal are the seven garages or the third row of garages located at the southernmost portion of the lot. The Board granted a permit to use the two garages at the northwest corner of the first row of garages located at the northernmost portion of the lot as an office and storeroom.'

From this unconstradicted testimony no conclusion on the facts could be reached other than that two of the seven garages here in question have been used for the storage of furniture and five have been used for the storage of automobiles since before the enactment of the Zoning Ordinance in 1931, in this residential use district. The Board and the Court evidently concluded that these facts did not establish a nonconforming use. The primary question before us is whether these facts established a nonconforming first commercial use classification.

Section 8, Residential Use Districts, Item 13, excludes garages from residential use districts. It was said in Heath v. Mayor and City Council of Baltimore, 187 Md. 296, at page 300, 49 A.2d at page 802: 'Paragraph 8 of the Baltimore City Zoning Ordinance excludes garages from residential use districts, but this general exclusion is qualified by paragraphs 13 and 14, which relate to private garages without repair facilities and without storage or sale of inflammable liquids.' Section 8, Item 36, forbids buildings to be used for storage of household effects or merchandise in a residential use district. Under Section 10 the uses forbidden under Section 8 in residential use districts, which are not excluded from first commercial use districts, are known as first commercial uses.

Appellees contend that this is not a nonconforming use because appellant would have been permitted to erect these garages under Section 14 of the Baltimore City Zoning Ordinance. That Section gives discretionary power to the Board to make special exceptions. It provides: "Garages--Special Exceptions. The Board of Zoning Appeals may, after public notice and hearing, in its discretion, in a specific case, and subject to the provisions, restrictions, guides and standards set forth in Paragraph 32(j), permit in a residential use district.--(a) a garage * * * in a rear yard; (b) a garage * * * which is not within seventy-five feet of any street, and which is not in a rear yard; (c) a garage * * * on or under the surface of the lot occupied by a building used as a hotel or apartment house; (d) a space, to be used as a garage * * * within a building used as a hotel or apartment house." Section 34(j) of Article 40, Flack's Baltimore City Code, 1950, was adopted in 1940-1941 to meet the objection of unconstitutionality and empowers the Board to make special exceptions or variances only when the proposed building or use 'shall not create hazards from fire or disease or shall not menace the public health, security, or morals.' The Board, in passing upon applications for special exceptions or variances as to height, area, or use shall give consideration, under Sections 1 and 2 of the Zoning Ordinance, to certain items therein specified, including such things as fire hazard, traffic problems, water supply transportation requirements and facilities, streets and paving, schools, parks, and playgrounds. The action of the Board must be reasonable in view of these and other factors. Heath v. Mayor and City Council of Baltimore, supra, 187 Md. at pages 301-305, 49 A.2d 799, and cases there cited. Assuming Section 14, supra, constitutional, which we have never decided and do not here decide, the vote of the three members of the Board for the application as applied for could not be considered as the granting of a special exception under Sections 14 and 34(j), supra, because under Section 34(i) the concurring vote of four members of the Board are necessary to effect a variation of the ordinance. Also there is nothing to show the Board took into consideration the items above mentioned. ...