Hoffman v. Mayor and City Council of Baltimore

• Decision Date: 14 March 1951
• Docket Number: No. 94,94
• Parties: HOFFMAN v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 294

197 Md. 294

79 A.2d 367

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

No. 94.

Court of Appeals of Maryland.

March 14, 1951.

Southey F. Miles, Baltimore, and H. Richard Smalkin, Towson (Smalkin & Hessian, Towson, on the brief), for appellant.

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

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

COLLINS, Judge.

This is an appeal by Julius Hoffman, from an order of the Baltimore City Court affirming the decision of the Board of Municipal and Zoning Appeals, (the Board), which denied a permit to use a portion of the lot, zoned residentially, located at 3420 Fourth Street in Baltimore City, for the storage of building materials.

The appellant is a part owner, with others, of the lot of ground here in question, which is zoned partly for industrial use and partly for residential use. The total lot has a frontage of 299 feet on Fourth Street. It is bounded on the north by the right-of-way of the Baltimore and Ohio Railroad, on the west by a vacant lot, zoned industrially, and on the south by a vacant lot zoned residentially, and Arsan Avenue. South of Arsan Avenue are seven dwellings fronting on Maude Avenue with their rear toward Arsan Avenue, zoned residentially. Across Fourth Street there is another vacant lot, zoned residentially and, according to the testimony, a very poor location for houses. It already fronts on this lumber yard. The appellant has a legal existing use and actually uses the north protion of this lot, consisting of 32,450 square feet and fronting 179 feet on Fourth Street for the storage of building materials with an office building located thereon. The remaining part of the lot, containing 43,350 square feet, sought to be re-zoned, fronting on its east side 120 feet on Fourth Street and running back westerly 363 feet 2 inches to a vacant lot in the Industrial Zone, is vacant and zoned residentially. It is bounded on the south by a vacant lot, zoned residentially, and Arsan Avenue. South of Arsan Avenue are the seven houses fronting on Maude Avenue, zoned residentially. It is bounded on the north by the remaining part of the lot, zoned industrially, and on the west by a vacant lot, zoned industrially. Appellant, when he purchased this whole lot in question in 1948, was informed at the City Hall Zoning Division, and the Use District Map showed, according to the testimony, that the part of the lot here sought to be zoned second commercially, was 'all right to use for the storage of building materials'. Consequently, appellant signed the contract of sale and paid one thousand dollars on the purchase price. Before settlement, he found out that part was zoned residential and rather than forfeit the deposit, he completed the purchase. This part of the lot had actually been zoned residentially since the Baltimore City Zoning Ordinance No. 1247 was adopted, effective March 30, 1931. On February 8, 1949, the appellant appealed to the Board for a permit to construct a six foot fence around the part of the lot zoned industrially and that part now sought to be zoned second commercially. This permit was approved and the fence has been built.

The appellant previously appealed to the Board for permit to use the Residential Use portion of the lot for the storage of building materials. On December 6th, 1949, appellant dismissed the appeal for that permit. On February 23, 1950, the appellant made application to the Building Inspection Engineer of Baltimore City for a permit to use the area of the lot in question which is zoned residentially for the storage of building materials in connection with the existing storage of building materials on the remainder of the lot. The Zoning Commission rejected the permit and the appellant appealed to the Board for an order authorizing an exception to the requirements of the Zoning Ordinance. At the meeting of the Board, three members voted to grant the permit and two members voted to deny it. As the Zoning Ordinance requires the vote of four members to reverse the action of the Zoning Commissioner, his disapproval of the permit was approved and the permit denied. On appeal from the decision of the Board to the Baltimore City Court the case was heard on the transcript of the record of the proceedings before the Board and no additional testimony was taken. However, by agreement of counsel, Zoning Ordinance No. 1247, effective March 30, 1951, with the amendments thereto, was offered in evidence. From the order of the Baltimore City Court sustaining the decision of the Board and denying the permit, the appeal comes to this Court.

In the testimony before the Board, Mr. Magee, engaged in the real estate business and also an appraiser, testified that the part of the lot in question here was most suitable for industrial purposes and that he considered it unreasonable for it to be zoned for residential use. He also said that someone could build a house thereon as there was enough area, but it would be unwise and wasteful use of the land. He said in his opinion zoning this portion of the lot for residential use takes away between $3,500.00 and $3,600.00 from the value of the property sought to be rezoned. He also said that zoning it for industrial use and making the lumber yard larger would not have any substantial effect on the value of the residences on Maude Avenue and would not in any way jeopardize the health and safety of the surrounding property. Another witness offered by the appellant, Mr. Cox, a real estate broker and a member and a director of the Real Estate Board of Baltimore, testified that the most suitable use of the area in question would be for industrial or second commercial purposes. He said the whole neighborhood tends to industrial uses in spite of the fact that there are residential properties on Maude Avenue, which in his opinion are 'mis-located' and have already been depreciated in value by the industrial activities in the neighborhood. He said houses could be built there but 'no right minded speculative builder would dare build a house there because his market price would be less perhaps actually than his cost.' He said the use of the area for storage of building material would not jeopardize the safety or welfare of the immediate community and that the present zoning was injurious to the owners of the lot. He said he did not think industrial zoning of this lot would injure the residences on Maude Avenue. Testimony was also offered that the value of the whole lot including the part zoned as industrial and residential is $10,730.00 and, if the whole lot was zoned as industrial, the value would be $14,250.00.

On the other hand, Mrs. Lewis Yerka, one of the protestants who lived on Maude Avenue said: 'Why wouldn't home on the residential ground of the junk yard why should that be depreciated if the property on Maude Avenue would not be depreciated?' Mr. Freburger, one of the City Councilmen from Baltimore City, who protested the application, testified that they had tried 'to change some of the areas so there may some day be a buffer between the residential and the industrial sections. This is one of those particular cases where we had hoped something may develop there.' He further indicated that the pictures offered in evidence were misleading. Mr. Hammerman, a member of the Board, replied 'Mr. Freburger, we have seen the property, the pictures do not fool anybody, we have seen it.' The evidence further shows that there are no schools nearby, that there is fire hydrant immediately in front of the lot, a fire engine house four or five squares away. There is adequate police protection. The Board found: 'Considering all the testimony on both sides, the argument of counsel and the provisions of the Ordinance applicable to this case, the Board finds that the portion of the lot in the Residential Zone appears to be a buffer between the Industrial Zone and the industrial uses to the north of the Residential Zone and the dwellings to the south, and dwellings and land to the east; that the facts do not warrant making the exceptions which the Board is authorized to make by authority of Paragraph 12; that the facts which have been described tending to classify this lot as one limited as to location are not of the degree sufficient to justify permitting an Industrial use in a Residential District immediately to the rear of the lots in the latter district already developed with dwellings, and therefore it sustains the action of the Zoning Commissioner in disapproving the permit.' (Italics supplied).

Of course, the mere fact that the present zoning makes the property less profitable, is not sufficient grounds alone to change the zoning. Easter v. Mayor and City Council of Baltimore, Md., 73 A.2d 491, 492. In Francis v. MacGill, Md., 75 A.2d 91, 94, the owners had knowledge of the zoning regulations and completely ignored them. It was said in that case: 'We cannot say, from the evidence in the case at bar, that the action of the Commissioners, in drawing the line where they did, was unreasonable, arbitrary and capricious. If where they drew the division line in this case is fairly debatable, their action must be sustained.' It was said in Board of County Com'rs of Anne Arundel County v. Snyder, 186 Md. 342, at page 346, 46 A.2d 689, at page 691, in sustaining residential zoning: 'We cannot say that the restriction to residential use is arbitrary and unreasonable; at most the question seems 'fairly debatable'. Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074.'

It was recently said in the case of Northwest Merchants' Terminal, Inc. v. O'Rourke, 191 Md. 171, 60 A.2d 743, 751, 'Lines between use districts must be drawn somewhere. It is common knowledge that, long before zoning and ever since, residential neighborhoods have...