Mayor and City Council of Baltimore v. Mano Swartz, Inc.

Decision Date08 February 1973
Docket NumberNo. 145,145
Citation299 A.2d 828,268 Md. 79
Parties, 4 ERC 2034, 3 Envtl. L. Rep. 20,232 MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. MANO SWARTZ, INC., et al.
CourtMaryland Court of Appeals

Joseph S. Matricciani, Asst. City Sol. and Richard M. Hartman, Sp. Asst. City Sol. (George L. Russell, Jr., City Sol. and Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for appellants.

George A. Nilson, Baltimore, (John Martin Jones, Jr., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SINGLEY, Judge.

For the second time we have before us an attack on the validity of Ordinance No. 663 of the Mayor and City Council of Baltimore (the City), approved 1 November 1965, now Baltimore City Code Art. 1, § 39 (1966) (the Ordinance), which was designed to regulate signs in the central business district of Baltimore.

There was testimony that the City had been so successful in limiting the size and design of signs in agreements for the sale of sites in the Charles Center renewal area that a decision was made to endeavor to achieve uniformity in the whole of the downtown district.

In City of Baltimore v. Charles Center Parking, 259 Md. 595, 271 A.2d 144 (1970), we affirmed a decree of the Circuit Court of Baltimore City which had found arbitrary and discriminatory and violative of Article 23 of Maryland's Declaration of Rights and of the Fourteenth Amendment to the Constitution of the United States § 1(e)(4) of the Ordinance, which had made unlawful the painting of a sign on an exterior wall of a building. We concluded that this result was mandated by the fact that § 1(j) of the Ordinance permitted billboards and poster boards, subject to zoning regulations, in the same area where painted signs were prohibited, particularly since the City offered no testimony which would support a rational distinction between painted signs and billboards.

In that case, we addressed ourselves to a narrow issue-the validity of § 1(e) (4)-and expressed no opinion as regards the validity of the Ordinance as a whole. The assault mounted in this case is of wider scope.

On 30 October 1970, just before the expiration of the five-year moratorium contained in § 1(g) of the Ordinance, Mano Swartz, Inc., and nine other firms doing business in the central business district (Swartz) filed a bill of complaint in the Circuit Court of Baltimore City against the City and the City's Director of Construction and Building Inspection seeking to enjoin the enforcement of § 1(e)(1) which proscribes signs projecting more than 12 inches 'from the primary surface of the building to which it is attached . . .' and § 1(e)(4) which prohibits roof top signs.

Filed with the bill of complaint was the text of the Ordinance:

'Section 1. Be it ordained by the Mayor and City Council of Baltimore, That a new Section 29 (now Section 39) be and it is hereby added to Article 1 of the Baltimore City Code (1950 Edition), title 'Mayor and City Counsel,' to follow immediately after Section 28 thereof, to be under the new subtitle 'Commission on Signs,' and to read as follows:

'Commission on Signs

29.

(a) A Commission on Signs is created. It shall have three members appointed as of January

1, 1966, under the provisions of Article IV, Section 6, of the City Charter. One of the three members shall represent the retail merchants in the area defined in this section. Another member shall represent the sign industry. The third member of the Commission shall be a representative of the public at large. The members of the Commission shall serve without compensation, except they may be reimbursed for actual and reasonable expenses incurred in the discharge of their duties on the Commission. Of the members first appointed, one shall be appointed for a term of two years, one for a term of three years, and one for a term of four years. Thereafter, as memberships expire, they shall be filled for terms of four years each.

(b) The Commission may retain technical advisors, amongst which shall be included an architect, a graphic artist and a sign designer.

(c) The Commission has jurisdiction under this section within the area bounded on the outer limits, respectively, of Center Street on the north, Pratt Street on the south, the Fallsway on the east, Greene Street on the west, and Druid Hill Avenue on the northwest. Jurisdiction shall apply to both sides of the above-mentioned boundary streets.

(d) The Commission, after public notice and hearing may adopt and promulgate rules and regulations establishing standards and requirements for commercial signs, billboards, and other advertising structures and devices within the area described in this section. Any such rules and regulations shall be designed and intended to provide for beauty, attractiveness, esthetics, and symmetry in the commercial signs, billboards, and other advertising structures and devices, and to relieve conditions of gaudiness and drabness in certain portions of the defined area.

(e) It shall be unlawful, within the area described, (1) for any commercial sign, billboard, or other advertising structure or device to project outward from the primary surface of the building to which it is attached for a distance of more than 12 inches. The commercial sign, billboard, or other advertising structure or device shall be single-faced and shall not project above the top of the vertical wall of the building to which it is attached; (2) to erect any flashing, animated, or rotating signs; (3) for any commercial sign, billboard, or other advertising sign or device to be permitted or erected on the roof of any building; (4) for any commercial sign, billboard, or other advertising structure or device to be painted on any exterior wall of a building except as a substitute for a sign on the primary facade of said building.

(f) An illuminated or non-illuminated projecting, or free-standing standardized sign, of single or double-face construction, not more than 12 inches in thickness, shall be permitted to designate public parking facilities; such sign to measure not more than four feet in height or width and to project no more than five feet.

(g) Any commercial sign, billboard, or other advertising structure or device which is legally in place on the date any such rules and regulations become effective and which in any respect does not comply with or conform to the rules and regulations affecting it, or which otherwise does not comply with or conform to the provisions of this section, either shall be removed or made to comply with or conform to the rules and regulations within five years from the effective date of this ordinance.

(h) No marquee, canopy or awning, otherwise allowable by law, shall bear any lettering other than the street number; an exception may be made by the Commission for permanent marquees.

Any person who violates any provision of this section, or who, by the end of the said five-year period, does not comply with or conform to the rules or regulations or to the provisions of this section, is guilty of a misdemeanor and upon conviction thereof may be fined not less than twenty-five dollars ($25.00) and not more than one hundred dollars ($100.00) for each violation. Each day upon which a violation continues may be construed as a separate offense.

(i) Nothing in this ordinance shall be construed to apply to any billboard or posterboard with respect to which the Board of Municipal and Zoning Appeals has original jurisdiction under Section 37 of the Baltimore City Zoning Ordinance.

The Board of Municipal and Zoning Appeals shall submit drawings, plans, painted bulletins and specifications and any other data concerning the application for such a billboard or posterboard within the area covered by this ordinance to the Commission on Signs for investigation, recommendation and report.

(j) All ordinances and all rules and regulations of the Mayor and City Counsel of Baltimore in conflict with the provisions of this section are repealed to the extent of the inconsistency.

'Sec. 2. And be it further ordained, That this ordinance shall take effect from the date of its passage.

'Approved November 1, 1965.'

It should be noted that the Ordinance purports to regulate not only signs which overhang public ways and exist only by virtue of minor privilege permits issued by the City's Board of Estimates but also reaches signs maintained wholly within property lines. We do not intend to be understood as expressing any opinion as to whether the City could achieve the result which it desires, at least in part, by declining to renew minor privilege permits as they expire or reissuing them on a conditional basis.

By its decree entered on 13 April 1972, the court found Ordinance 663 invalid and permanently restrained the City and its agencies from requiring the removal of the signs maintained by the complainants. From this decree, the City has appealed.

While Swartz wheeled into place its heaviest artillery and attacked the Ordinance on a broad front, it seems to us that but one issue is dispositive of the case. In its bill of complaint, Swartz alleged:

'c. That the removal and destruction of the validly established use of the Complainants is beyond the power of the Mayor and City Council.

'd. That the removal and destruction of the validly established use of the Complainants in no way promotes the public health, safety, security, or morals of the community, and the removal and destruction of these vested rights of the Complainants are in no way necessary or proper to the exercise of the police power by the Respondents.'

to which the City replied:

'c. The City is entitled to abolish the existing use by virtue of the police power under Article II, Section 27 of the Baltimore City Charter (1964 Revision), as well as by virtue of Article VIII, Section 2 of the Charter.

'd. The Defendants repeat that the ordinance destroys no vested rights and...

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