Maryland Advertising Co. v. Mayor and City Council of Baltimore

• Decision Date: 08 February 1952
• Docket Number: No. 83,83
• Citation: 199 Md. 214,86 A.2d 169
• Parties: MARYLAND ADVERTISING CO. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 214

199 Md. 214

86 A.2d 169

MARYLAND ADVERTISING CO. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 83.

Court of Appeals of Maryland.

Feb. 8, 1952.

Frank B. Ober and Alexander Harvey, 2d, Baltimore (Ober, Grimes & Stinson, Baltimore, on the brief), for appellant.

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

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 affirming a decision of the Board of Municipal and Zoning Appeals. That Board denied an application by the appellant to erect an illuminated poster board on a vacant premises, 2002-10 Aisquith Street in Baltimore City.

The place where the illuminated poster board is sought to be erected is in a Second Commercial Use District where sign boards are not forbidden. Art 40, Section 6, Baltimore City Code, 1950. The Zoning Commissioner has no discretion in refusing the application. Mayor and City Council v. Biermann, 187 Md. 514, 518, 50 A.2d 804. Article 40, Sec. 37 of the Baltimore City Code, 1950 Edition, provides in part that 'Applications for a permit for any of the uses enumerated in Section 36 shall be made to the Zoning Commissioner. No such permit shall be issued until the application shall have been approved by the Board of Municipal and Zoning Appeals * * *.' As pointed out in Mayor and City Council v. Biermann, supra, the effect of this provision confers original, rather than appellate, jurisdiction on the Board. Among the uses enumerated in Section 36, supra, are a filling station and billboards. It provides in part that: '(3). A billboard for the display of outdoor advertising or poster boards; * * * may be permitted, in such a use district * * * only after a public hearing before the Board of Municipal and Zoning Appeals, and compliance with the terms and conditions hereinafter set forth'. To meet conditions set out in Section 37 of Article 40, plans and specifications were submitted to the Board of Fire Commissioners, the Commissioner of Health, the Police Department, and the Chief Engineer of the City of Baltimore. Letters of approval were received from all of these by the Board.

The Board conducted a public hearing on February 27, 1951. The testimony showed that the sign was to be 12 feet by 25 feet and the bottom of the sign was to be 8 feet off the ground. The board was to be located on the west side of and facing Aisquith Street, and on leased premises south of a building erected on the property line by the Associated Canners Corporation and occupied by the Tow Motor Corporation and used in the 'lift truck repair business'. On the north side of this building appellant already had one poster board of construction similar to the proposed board. At the hearing Mr. George A. Johnson, representing the Tow Motor Corporation, appeared and objected to the erection of the proposed sign because they had a fire door on the side and about the center of the building and also an outlet there to fill their oil burner system. Mr. Albert T. Antlitz, President of the Associated Canners Corporation, owner of the adjoining building, said that his building was completed about three months before and they 'spent considerable sum of money to make a very attractive building. We should have known but let it go by when they put the first sign up. We were out of town and busy and it got by and they erected this sign about equal to the front of the building and put it two feet from our wall. It has a ramp around the base of the sign and all the children in the neighborhood can climb up this pole on to the sign, on to the roof of our building, and that is hazardous as it is. It detracts from the building and now they want to go on the opposite side and we will be encased in two billboards. I don't think it is in order.' When asked whether Brockway Motors could put up a building to his property line, he replied: 'There would be no objection to a building but why have a building between two signs and the children always on top of our roof'. The photographs offered in evidence show that the erection of a building on the leased premises would block off the fire door and oil fill to a much greater degree than the contemplated sign board.

The Board on February 27, 1951, disapproved the application and in its resolution said: 'The proposal is to erect one 12' X 25' illuminated poster board at the front of the lot, five feet away from and parallel to the lot line of the adjoining premises known as 2100 Aisquith Street, on which there is a building occupying practically the entire lot. The owner and lessee of the premises 2100 Aisquith Street were present at the public hearing and testified they objected to the erection of the proposed sign for a number of reasons: That there is a fire door on the side of their building where the sign is proposed to be erected, also an oil fill for the burner system, that there is now a similar sign on the other side of their building two feet from their wall, in the same position as the proposed sign, and that children climb on the existing signboard and go on the roof of their building, which is a hazard, and if the proposed sign is erected they will be encased between two signs. The Board finds the proposed sign would menace the public health, safety, security and morals, and with due consideration to all the evidence contained in the testimony and the record, and to the reports of the several City departments as required by the Zoning Ordinance, the Board disapproves the application.'

An appeal was taken to the Baltimore City Court and additional evidence was offered there. Mr. Ferguson, an employee of appellant, testified that the sign would be 'about 2 or 2 1/2 feet from the adjoining building on the north'. The sign board was to advertise 'Blue Sunoco'. The fire door of the adjoining building faces an alley. The oil fill is about 45 feet from the front property line and the sign is to extend only 25 feet from the front property line. The board would be 'all steel with the exception of four boards on the platform'. There would be a wide type storm fence, a protective fence, 'no less than 8 feet'. When asked how anyone could climb on the sign, he replied: 'They would have to be shimmied up the girder or put some instrument there in order to get on the platform'. Mr. Antlitz, who testified before the Board, also testified before the court. He said that the Associated Canners' building was 'pretty' close to the property line. When he testified about children climbing on the sign, the attorney for the appellee admitted that that was not a zoning matter and the judge replied: 'I am inclined to agree on that'. Mr. Antlitz admitted that the oil fill was 40 or 50 feet back from the front of the building and could be reached by a hose line. He also admitted that the fire door opened on an alley back of the Brockway property. When asked what were grounds of his objection, he replied: 'Primarily, they erected a sign. I had been out of town at the time the original sign was put up. In fact, we had not started the building yet. We had just about started building. They erected a sign on the north side, I am guessing, approximately 2 feet from the building. After it was up we had no argument, we couldn't do anything about it. We had made no argument at the time the permit was granted, so we could do nothing about it, and when our building was completed they put this notice up they were going to erect another sign. They intended to erect it approximately 2 feet from the...