Mayor and City Council of Baltimore v. Byrd

• Decision Date: 09 December 1948
• Docket Number: 34.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. BYRD et al.
• Court: Maryland Court of Appeals

62 A.2d 588

191 Md. 632

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

No. 34.

Court of Appeals of Maryland

December 9, 1948

Appeal from Baltimore City Court; Joseph Sherbow, Judge.

Proceeding by Orris S. Byrd and others to review an order of the Board of Municipal and Zoning appeals of the city of Baltimore granting C. G. Neilson Sigler a permit to construct an automobile sales and service building. From an order of the Baltimore City Court, reversing the Board's order, the mayor and city council of Baltimore and permittee appeal.

Affirmed.

MARKELL J., dissenting.

Hamilton O'Dunne, Asst. City Sol., of Baltimore (Thomas N. Biddison, City Sol., of Baltimore, on the brief), for appellants Mayor and City Council.

Hall Hammond, of Baltimore (H. Clifton Owens, of Baltimore, on the brief), for appellant Neilson Sigler.

Southey F. Miles and Douglas H. Gordon, both of Baltimore, for appellee.

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

MARBURY Chief Judge.

As originally passed, Ordinance No. 1247 of the Mayor and City Council of Baltimore, known as the Zoning Ordinance, provided in Paragraph 34 that a filling station for the sale of inflammable liquids should be permitted only by authority of public ordinance of the Mayor and City Council, even in a district where such use of property was not prohibited by the general use regulations. Under this provision numerous ordinances were passed by the Mayor and City Council permitting the erection of filling stations in various parts of the city, but this method was subsequently abandoned, and by Ordinance No. 318, approved January 16, 1937, the Board of Zoning Appeals was given authority to pass upon applications for permits for filling stations, but their action was limited by the following proviso: 'Provided, however, no building or structure of any kind shall hereafter be erected, altered or used for the sale of gasoline, or any other motor fuel, on any lot or premises where any of the boundaries of such lot or premises are within three hundred (300) feet of the boundary line of any public park, public square, or public playground or of any building or structure used as a church, orphanage, school, theatre or motion picture theatre in the City of Baltimore, or within six hundred fee (600) of any building or structure used as a public hospital in said City.'

In the latter part of 1947, an ordinance, No. 117, was passed by the Mayor and City Council which attempted to waive the provisions of paragraph 34 of Ordinance No. 1247, as the same was amended by Ordinance No. 318, prohibiting the erection of any structure for the sale of gasoline within 300 feet of a motion picture theatre or a church in so far as said provisions applied to the premises of the Safe Deposit and Trust Co. of Baltimore, Trustee under the will of Ida V. Megary, at the southwest corner of Liberty Heights Avenue and Hillsdale Road. This ordinance, as first introduced, contained no 'whereas' clause. It was submitted to the City Solicitor, who advised that in his opinion the legality of the ordinance would depend on the question whether the exception was required because of the peculiar conditions of the lot, or because it was necessary for the public good. He stated that excepting the lot from the provisions of the ordinance merely as a favor to the owner would be illegal, and he suggested that in the event there was a valid basis for the passage of the waiving ordinance, it might be well to state this basis by means of 'whereas' clauses. After receipt of this opinion the ordinance was changed so as to insert the following preamble: 'Whereas, traffic conditions in the neighborhood of Gwynn Oak Avenue and Liberty Heights Ave. are frequently congested due to the lack of strategically located filling stations and parking space; and

'Whereas, the establishment of a filling station with generous parking facilities at the southwest corner of Liberty Heights Avenue and Hillsdale Road would tend to relieve congested traffic in that immediate neighborhood; and

'Whereas, the relief of congested traffic conditions in any section of the City of Baltimore is a contribution to the safety, welfare and happiness of the people of Baltimore.' After the passage of the ordinance, application was made by C. G. Neilson Sigler, one of the appellants, for the construction of a one story automobile sales and service building with four 40-barrel gasoline tanks, six pumps, signs and floodlights at 4601 Liberty Heights Avenue, which was the property described in Ordinance No. 117. Mr. Sigler, who was the lessee of the property, was granted a permit by the Board of Municipal and Zoning Appeals, after a public hearing, at which some of the appellees protested. The latter then were allowed an appeal by the Baltimore City Court, and the Women's Civic League, Inc. was permitted to become a party plaintiff with the appellees by order of court. After a hearing, the court reversed the action of the Board of Municipal and Zoning Appeals, and from this action, the Mayor and City Council of Baltimore and Mr. Sigler appealed.

It is suggested that as the appellees do not live in the neighborhood, they have no interest in the question. However, paragraph 35 of Ordinance 1247 permits any tax payer to present to the Baltimore City Court a petition setting forth that a decision of the Board of Zoning Appeals is illegal, and on such petition the court may allow an appeal. The question raised in this case is the validity of Ordinance No. 117, which is not a question which affects solely the property in question, but is one which concerns the right of the Mayor and City Council to make special exceptions to the Zoning Ordinance. That is a matter that vitally affects tax payers everywhere in the City, and by the express provision of the Zoning Ordinance, the appellees are authorized to become parties to the case, and take the appeal to the Baltimore City Court, and to defend the appeal here from that Court. The fact that no near neighbors object does not affect the right of the appellees to protest under the Ordinance.

The broad question in this case is how far the Mayor and City Council may make special exceptions to the Zoning Ordinance, and the narrower question is whether their action in passing Ordinance No. 117 is a valid exercise of such power as they may have to make exceptions. Zoning is an exercise of the police power which, for the public good, takes away some of the rights of individuals to use their property as they pleas, and at the same time gives them rights to restrict injurious used of the property of others. This cannot be done by piecemeal legislation. It can only be upheld as part of a general plan for a community which sets apart certain areas for residence purposes, and permits commercial business in other areas where it is established or where such use is obviously suitable. Such a plan must be attuned to the public health, welfare and safety. It must not be arbitrary nor can it be discriminating, except insofar as is necessary for the proper establishment of the various kinds of districts permitted. In the enabling Act, authorizing zoning by the legislative bodies of citizens of incorporated towns containing more than 10,000 inhabitants, codified as Article 66B of the Annotated Code, by Section 2, authority is given the local legislative bodies to divide their municipalities into districts and within such districts, to regulate and restrict the erection or use of buildings, structures or land. All such regulations must be uniform for each class or kind of building throughout any district, but the regulations in one district may vary from those in other districts. The purposes of such regulations are set out in Section 3, and it is stated that they shall be made in accordance with a comprehensive plan.

In the Baltimore City Zoning ordinance are provisions for non-conforming uses which existed at the time of its passage and there are also provisions for extension of these uses. We have held that these last provisions should be strictly construed, as the intention of the ordinance is not to allow them to multiply. Colati v. Jirout, 186 Md. 652, 47 A.2d, 613. This conclusion is based upon the same general conclusion that has been present in all of the zoning cases decided by this Court, that is that when the legislative body of a municipality adopts a comprehensive zoning plan, exceptions should be allowed only in such cases as are clearly exceptions in fact to the purposes of the ordinance, and without which there would be imposed a burden upon the owner of the property not justified by consideration of the public health, safety or welfare. Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487 at pages 493, 494, 165 A. 703; Ellicott v. Mayor and City Council of City of Baltimore, 180 Md. 176 at page 183, 23 A.2d 649. The appellants contend that the Mayor and City Council may, in a proper case, exercise the power of making exceptions, and we agree that they have the power, provided the conditions are such as would justify its exercise. Chayt v. Maryland Jockey Club, 179 Md. 390, 18 A.2d 856. The appellants aptly compare to a safety valve the power of making exceptions, which permits, in exceptional or unusual cases, the avoidance of the arbitrary or unreasonable. When we adopt this metaphor, however, it must be borne in mind that the safety valve is an emergency outlet.

The appellants claim that the lot in question is exceptional, and that its use as a filling station would not create any fire or traffic hazard, but on the contrary would be of benefit to the traffic centered there. They point out there are already filling stations on the opposite side of the street,...