Kracke v. Weinberg

• Decision Date: 15 March 1951
• Docket Number: No. 98,98
• Citation: 79 A.2d 387,197 Md. 339
• Parties: KRACKE v. WEINBERG et al.
• Court: Maryland Court of Appeals

Page 339

197 Md. 339

79 A.2d 387

KRACKE v. WEINBERG et al.

No. 98.

Court of Appeals of Maryland.

March 15, 1951.

Julius G. Maurer, Baltimore, for appellant.

Paul F. Due, Baltimore (Due, Nickerson & Whiteford, Baltimore, on the brief), for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS and MARKELL, JJ.

MARBURY, Chief Justice.

A bill of complaint for a declaratory decree was filed by the appellees, husband and wife, and a holding corporation all the stock of which is owned by the husband, against the Mayor and City Council of Baltimore. The purpose of the bill was to have Ordinance No. 510 declared invalid, as against the complainants and their property described in the bill. The land owned by appellees is an area of approximately three acres, and is unimproved, except for billboards and temporary structures. It is located on Wilkens Avenue, in Baltimore City, a short distance to the northeast of the property of St. Mary's Industrial School. It has never been used for anything other than storage purposes, signs and billboards. It is traversed by streams and is bounded on the northeast by a paper street which is between it and the Pennsylvania Railroad. With the exception of one corner, it is not now, nor has it ever been used for residential purposes.

When Zoning Ordinance No. 1247 was approved March 30, 1931, the greater part of this property was zoned as second commercial, and the balance was zoned as industrial. It so remained until July 10, 1946, when Ordinance No. 510 was passed. By this ordinance this property, as well as other adjoining property, was rezoned residential. It is contended in the bill of complaint that complainants' property has no value for residential purposes, that there has been no change in conditions since the passage of Ordinance No. 1247 which would warrant the rezoning of the property, that Ordinance No. 510 was passed because of public excitement and clamor, that it is unreasonable and arbitrary and contrary to Section 3 of the Zoning Enabling Act, Article 66B of the Code of Public General Laws, and that it amounts to a taking of complainants' property without due process. For these reasons, the court is asked to declare the ordinance invalid as to complainants' property. The City answered, and the appellant, acting, as he states in his petition, 'for himself individually and on behalf of his hundreds of neighbors similarly situated', that is, owning homes in the same neighborhood, was allowed to intervene and answer the bill. Thereafter testimony was taken and the chancellor declared the ordinance invalid in so far as it affected complainants' property. The City did not appeal, but the intervenor did.

On the sough side of Wilkens Avenue, at its intersection with the railroad property, there is a tract of land, known as the Blaustein lot, which was not rezoned residential by Ordinance No. 510. Appellees' property adjoins this property to the west on Wilkens Avenue and follows the rear of it to Whistler Avenue, a paper street which apparently begins behind the Blaustein lot, runs along the railroad track for a short distance, then stops. The residential rezoning by Ordinance No. 510 includes this paper street and some property to the south of it. The line of the rezoned tract runs along the railroad to the Blaustein lot, then follows the irregular lines of that lot (which are also the lines of the appellees' property) to Wilkens Avenue. It then crosses Wilkens Avenue, takes in some row houses on the other side, eventually recrosses Wilkens Avenue and follows the rear lines of appellees' property until it reaches a point about 100 feet from Whistler Avenue. There it leaves appellees' property and runs south for some distance, approximately parallel with the railroad property, before it turns at right angles to go to the railroad property. The Wilhelm Park development in which the appellant lives, is to the south and west of this rezoned tract, and the rezoning created a residential barrier between it and the railroad, between it and the Blaustein property, and between it and Wilkens Avenue. Appellees' property in the rear is completely cur off by the Blaustein lot from Wilkens Avenue, which is the only access street. Ordinance No. 510 was passed as a result of a demand on the part of residents of Wilhelm Park that they should be protected by preventing commercial and industrial developments on the land between them and the railroad, between them and the Blaustein lot, and between them and Wilkens Avenue.

This is not the first time that questions involving this property and this ordinance have been before this court. In 1946, just prior to the passage of Ordinance No. 510, appellees had obtained a permit to build a metal wire fence on their property in order to use it for the sale of used automobiles. They attempted, after the passage of the ordinance, to erect this fence, and the present appellant and some of his neighbors filed a bill of complaint to enjoin the construction of this fence and the use of the premises for a used car lot. The Weinbergs demurred, the demurrer was overruled, and the case came here on appeal from this action. The question involved was whether the individuals who were the complainants in that suit had a right to bring it. We held that they did, and affirmed the order of the chancellor, thereby requiring the Weinbergs to answer. This is the case of Weinberg v. Kracke, 189 Md. 275, 55 A.2d 797. After the case went back to the Circuit Court, the Weinbergs answered, setting up the circumstances surrounding the passage of Ordinance No. 510, and claiming that it would result in a taking of their property without due process of law. Before that case was tried, however, the complainants dismissed it, and thereafter, within a very short time, the instant case was brought by the appellees to test the questions raised in their answer to the prior suit.

The first matter before us here is whether the appellees in such a case as this have a right to ask for a declaratory decree. It has been, of course, well settled that where a constitutional question is involved, equity may intervene and enjoin action by an administrative body, although this is not favored where there are statutory remedies which permit the raising of such a question. See Kahl v. Consolidated Gas, Electric Light & Power Co., 191 Md. 249, 258, 60 A.2d 754. A contention, somewhat similar to the one here made, was raised by a bill in equity in the recent case of Francis v. MacGill, Md., 75 A.2d 91. In that case, an injunction was sought to prevent the application of the zoning ordinance of Howard County to appellant's property. We did not uphold the complainant's contention, but he was permitted to maintain his suit. It is, of course, true that the validity of a zoning ordinance in Baltimore City can be passed upon by the court in a statutory appeal. Ellicott v. Mayor & City...