Heath v. Mayor and City Council of Baltimore

• Citation: 49 A.2d 799,187 Md. 296
• Decision Date: 22 November 1946
• Docket Number: 21.
• Parties: HEATH et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Court of Appeals of Maryland

49 A.2d 799

187 Md. 296

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

No. 21.

Court of Appeals of Maryland

November 22, 1946

Appeal from Baltimore City Court; J. Abner Saylor, Judge.

Petition by John F. Heath and William Hugh Bagby against the Mayor and City Council of Baltimore and Walter Scott challenging the validity of the city's approval of the erection of a garage as in violation of a zoning ordinance. From an order affirming a resolution of the Board of Zoning Appeals approving the application, petitioners appeal.

Order reversed and cause remanded with directions.

John F. Heath, of Baltimore, for appellants.

Simon E. Sobeloff, City Sol., and Hamilton O'Dunne, Asst. City Sol., both of Baltimore, for appellees, Mayor and Council.

John O Herrmann, of Baltimore (Jacob S. New, of Baltimore, on the brief), for appellee Walter Scott.

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

DELAPLAINE, Judge.

On January 23, 1946, Porter T. Bond, architect, applied to the Buildings Engineer of the City of Baltimore for a permit to erect a two-car garage for Walter Scott in the rear of his apartment house at 5717 Roland Avenue. The Buildings Engineer disapproved the application, and Scott appealed to the Board of Zoning Appeals. On February 5, the date set for a public hearing, no one appeared before the board except the architect. The board thereupon passed a resolution stating merely that it had 'made a study of the premises and neighborhood' and approved the application. On February 28 John H. Heath and William Hugh Bagby, residents of Roland Avenue, filed a petition in the Baltimore City Court alleging (1) that the premises had not been posted in accordance with the rules of the Board of Zoning Appeals, and hence due notice of the hearing had not been given, and (2) that erection of the proposed garage would violate the Baltimore City Zoning Ordinance for the reason that the building would not conform with the architectural design of the neighborhood. However, the Court affirmed the resolution. The objectors then appealed to this Court.

We find no merit in the contention that the property had no been properly posted. The State Zoning Enabling Act Acts of 1927, ch. 705, Code 1939, art. 66B, sec. 7, and the Baltimore City Zoning Ordinance, Ordinance 1247, approved March 31, 1931, paragraph 32(f), both empower the Board of Zoning Appeals to adopt appropriate rules, fix a reasonable time for the hearing of appeals, and give public notice thereof as well as due notice to the parties in interest. In 1933 the Board adopted the rule that premises shall be posted in accordance with the following specifications: (a) The sign shall be not less than four feet long and three feet high, with black lettering not less than two inches high, on white background; (b) the sign shall be posted in a conspicuous manner, not over ten feet above the ground level, and where it will be clearly visible and legible to the public; and (c) the sign shall be posted not later than ten days prior to date of the hearing, and shall be maintained in good condition until after the hearing. The first objection of appellants was that the color of the sign was pale green, instead of white. We do not consider this slight departure from the strict letter of the rule to be a jurisdictional defect invalidating the permit. Mere irregularities in an application to a board for a permit not amounting to a jurisdictional defect do not affect the validity of the permit. A substantial compliance with the requirements of an administrative regulation in making an application for a permit is sufficient. People v. Village of Oak Park, 268 Ill. 256, 109 N.E. 11; State ex rel. Grimmer v. City of Spokane, 64 Wash. 388, 116 P. 878. Appellants then complained that the sign was not 'clearly visible that it legible to the public.' They said that it could not be seen by pedestrians from every angle on account of a hedge fence on the lawn. Yet it appears that it could have been seen by anyone walking south on Roland Avenue, and in our opinion it complied substantially with the rule. The members of the board inspected the premises, saw the sign, and apparently were satisfied with it. Appellants also questioned whether the sign had been posted for the period of ten days in compliance with the third requirement. The architect testified that he posted the sign on January 26, ten days prior to the date of the public hearing, and Scott certified that the sign had been posted on his premises in accordance with the instructions. Scott was out of the city when the sign was posted, but he had employed the architect to secure the permit, and in reliance on the architect's veracity he had the right to certify that the sign had been duly posted. Mrs. Scott, in corroboration, testified that, while she was not at home on January 26, she saw the sign after she returned. It appears that Heath did not testify in the Baltimore City Court, but Bagby and two other witnesses said they did not see the sign between January 26 and February 5. Negative testimony of this kind does not disprove the positive testimony that the sign had been posted for the period of ten days in accordance with the rules of the board.

We come now to the vital question whether the Board of Zoning Appeals has the power to authorize erection of the garage. The increasing need for garages in the cities was one of the main reasons for the rapid spread of zoning in this country. Instances were numerous where an entire block of houses had been made undesirable by the erection of a garage equipped with repair facilities and accommodations for the storage and sale of gasoline and oil. 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. Paragraph 13 provides:

'Garages. The use, without repair facilities and without storage or sale of inflammable liquids, of----

'(a) a building, covering not more than 600 square feet of a lot, for housing not more than three automobiles, shall not be excluded by the residential use provisions of this ordinance; '(b) space, not exceeding 600 square feet in area, for housing not more than three automobiles within a building used as a dwelling, shall not be excluded from residential use districts.'

It is our opinion that the Mayor and City Council intended 'a building' and 'space' authorized by paragraph 13 to be alternatives. It is customary for the owner of a modern home to provide either a separate garage building or space for his automobiles in the basement of his house, but not both. In other words, an owner is entitled to house three automobiles without asking for the approval of the Board of Zoning Appeals. In the pending case the apartment house is a two-story building erected in 1930 before the passage of the present ordinance, and the owner has a basement garage accommodating four automobiles, one more than allowed by paragraph 13. In 1943 he applied for a permit to erect a one-car garage, and the Board of Zoning Appeals disclosed its administrative interpretation of the ordinance by stating that the erection of a separate garage building would require its approval in this case. In issuing permits the Buildings Engineer must follow strictly the provisions of the zoning regulations. Chaos would result if he were allowed to make exceptions or variances in his own discretion.

Paragraph 14, on the other hand, gives discretionary power to the Board of Zoning Appeals to make special exceptions. This paragraph provides:

'Garages--Special Exceptions. The Board of Zoning Appeals may, after public notice and hearding, 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 75 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 parage * * * within a building used as a hotel or apartment house.'

The discretionary power of the Board of Zoning Appeals to allow special exceptions by permission of paragraph 14, if valid is subject...