Jack Lewis, Inc. v. Mayor and City Council of Baltimore

Decision Date19 January 1933
Docket Number98.
Citation164 A. 220,164 Md. 146
CourtMaryland Court of Appeals
Dissenting Opinion February 10, 1933.

Appeal from Baltimore City Court; Samuel K. Dennis, Judge.

Proceeding by Jack Lewis, Inc., to review a decision of the Board of Zoning Appeals, opposed by the Mayor and City Council of Baltimore and others. From an order dismissing the appeal petitioner appeals.


PARKE J., dissenting in part.


J. Purdon Wright, of Baltimore, for appellant.

Ernest F. Fadum, Asst. City Sol., of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellees.

William L. Marbury, of Baltimore, amicus curiæ.


Acting under the authority conferred by chapter 705 of the Acts of 1927, the mayor and city council of Baltimore on March 30, 1931, adopted Ordinance No. 1247, known as the zoning ordinance, the purpose of which is to regulate and restrict "the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards and other open spaces, the density of population and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." Under that ordinance the city is divided and classified in height, use, and area districts, the outlines of which are shown on maps or plats adopted with the ordinance as a part of it.

The use districts are classified as industrial, second commercial, first commercial, and residential. Among other things, it provides that no undertaking establishment, business or funeral home shall be located in a residential use district, paragraph 8, subsection 32, but does not prevent the continuance of such a use if legally existing at its date, section 11. The building engineer, the first official charged with the enforcement of the ordinance, is forbidden to issue any permit for the construction, reconstruction, extension, repair, or alteration of any building or part thereof unless the plans and specifications "and intended use of such building" conform to the ordinance, and in case of any prohibited use he is authorized in addition to such other remedies as he may have to institute an appropriate action or proceeding to prevent or abate the same, section 31. From any decision of the building engineer there may be an appeal to the board of zoning appeals by any person aggrieved, section 32, which shall have the following powers:

"1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the building engineer in the enforcement of this ordinance.

2. To hear and decide special exceptions to the terms of this ordinance upon which the board is required to pass under this ordinance.

3. To authorize upon appeal in specific cases such variance from the terms of this ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done."

And by section 33(b) it may "grant a permit when there are any practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this ordinance."

On January 7, 1932, Jack Lewis, Inc., an undertaker, filed with the building engineer of Baltimore city an application for a permit to make certain "alterations or repairs" in a private home known as 1804 Eutaw Place in said city to adapt it to use as a "funeral home." The proposed location is in territory shown on the use district map adopted as a part of the zoning ordinance as a "residential use district," and the application was refused on the ground that the proposed use would violate section 8 of that ordinance. That decision was affirmed on appeal by the board of zoning appeals, and thereupon the applicant, under section 35 of the ordinance, filed a petition in the Baltimore city court asking that court to review the decision of the zoning board. An order was accordingly signed, directing the board of zoning appeals to transmit to that court all documents, records, papers, plats, and memoranda relating to the case. The ground alleged in the petition for the relief prayed was that the refusal of the permit deprived the petitioner of his property without due process of law, and amounted to a taking of the same without compensation, that it denied it the equal protection of the law, that it was illegal, arbitrary, unreasonable, oppressive, discriminatory, and confiscatory. The respondents in their answer or return denied the existence of the grounds for relief alleged in the petition, and the court, after a hearing, dismissed the appeal. From that order the applicant appealed to this court.

Neither in the pleadings, nor in the written or oral arguments in this court is there any objection to the constitutionality of the use provisions of the ordinance as a whole, nor to the propriety or legality of the classification scheme or plan indicated on the "use district map," and adopted as a part of the ordinance itself, but the grounds of complaint are (1) that, conceding the legality of the ordinance and such classification, the action of the mayor and city council in excluding funeral establishments from residential use districts is arbitrary, unreasonable, and not justified by any legitimate exercise of the police power, and (2) that the ordinance unlawfully delegates to administrative officials the police power of the state in that it permits them at their arbitrary discretion to grant or withhold permits such as that for which the applicant applied.

Considering these objections in inverse order, it is impossible to distinguish the delegation of power found in section 32, subsection (g-3), and section 33, subsection (b) from that which this court condemned as unlawful in Goldman v. Crowther, 147 Md. 282, 128 A. 50, 38 A. L. R. 1455. The board of zoning appeals is a mere administrative agency created and empowered to execute the provisions of the ordinance which the mayor and city council as its primary delegate has in the exercise of the state's police power adopted. For as it was said in Mayor and City Council of Pocomoke City v. Standard Oil Co., 162 Md. 377, 159 A. 902, 905: "Where the power is exercised directly by the agency or delegate the validity of acts done under its authority is determined by whether its acts in a particular case are upon the facts of such case reasonably necessary to the protection of the public welfare, but, when any part of it is further delegated by the municipality to subordinate officials, the validity of their acts under it may depend upon whether the grant or delegation to such officials vested them with a complete and uncontrolled discretion, or, whether it vested them with mere ministerial and administrative functions to be exercised in obedience to and in conformity with definite rules, guides, and standards. In the former case the right to use the power in support of an act pretended to be done under its authority is denied, not because the act is not reasonably necessary to the public welfare, but because the delegation of power is too broad and indefinite, while in the second case ordinarily it is permitted, and the sole inquiry is whether acts done under it are reasonably necessary to the public welfare." Under these particular provisions the board of zoning appeals is in effect given the power to set aside or annul the ordinance as to any given case with no more definite standard or guide than that such action may only be taken when there are "practical difficulties or unnecessary hardships" in the way of carrying out its strict letter, or where necessary to "avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done." It is, of course, implicit in other provisions of the ordinance that the board is in the discharge of its duties to avoid arbitrariness, to do substantial justice, and not to inflict unnecessary hardship, but under our system of written Constitutions it is essential that they accomplish those highly desirable objects in conformity with the restrictions, rules, and limitations which the law itself provides and not in disregard of them. The grant of a power such as that conferred by those provisions to an administrative agency, such as the board of zoning appeals, must, therefore, to be valid, be so defined and limited that both the citizen and the board may know with certainty what their rights, privileges, and powers under it are. If there are to be departures from its general plan or scheme, in order to supply the necessary elasticity to its efficient operation, they must be protected by such clear and definite guides as those afforded by sections 12, 13, 27, and 29, and may not be left to the unguided discretion of administrative officials. For such phrases as "practical difficulties," "unnecessary hardships," "substantial justice," are too general and indefinite to furnish such a guide, or to mark the limits or control the exercise of the power conferred by those provisions upon the board.

But it is not apparent how the illegality of those particular provisions helps the appellant in this case. They are not in any way essential to, nor does their illegality affect the ordinance as a whole, and what it complains of in this case is that the discretion conferred upon the board to set aside the ordinance in cases where in their judgment such action would be justified, was not exercised in this case to set it aside as to it. That is it says at the same time that the delegation of power is unlawful and cannot be exercised at...

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