Mayor and City Council of Baltimore v. Shapiro

• Decision Date: 12 February 1947
• Docket Number: 60.
• Citation: 51 A.2d 273,187 Md. 623
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. SHAPIRO et al.
• Court: Maryland Court of Appeals

51 A.2d 273

187 Md. 623

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

No. 60.

Court of Appeals of Maryland

February 12, 1947

Appeal from the Baltimore City Court; J. Abner Sayler, Judge.

Proceeding on an appeal to the Baltimore City Court by Joseph W Shapiro, trading as Gittings Auto Service, and Jacob S Shapiro, against the Mayor and City Council of Baltimore, to review the action of the Board of Zoning Appeals of Baltimore City in revoking a permit to use vacant lot for dismantling automobiles. From an order of the Baltimore City court reversing the action of the Board of Zoning Appeals and declaring that permit was valid and subsisting, the Mayor and City Council of Baltimore appeal, and Joseph W. Shapiro trading as Gittings Auto Service, and Jacob S. Shapiro, move to dismiss the appeal.

Motion to dismiss the appeal denied and trial court's order reversed, and order of Board of Zoning Appeals affirmed.

Simon E. Sobeloff, City Sol., and Max R. Israelson, Asst. City Sol., both of Baltimore, for appellants.

Harry Singerman and Hilary W. Gans, both of Baltimore, for appellees.

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

HENDERSON, Judge.

The appeal in this case is from an order of the Baltimore City Court reversing the action of the Board of Zoning Appeals of Baltimore City and declaring that a permit issued by the Board to the appellees on July 2, 1941, for the sale of used cars, used parts and the dismantling of used cars at 2401-2475 Frederick Ave., is 'valid and subsisting.' The appellees have filed a motion to dismiss the appeal, which presents the first question for consideration. The ground of the motion is that 'it appears from the record that the Mayor and City Council is not prosecuting this appeal in its own behalf as representative of the people of Baltimore City, but has simply consented to permit the appeal to be prosecuted in its name for the benefit of and at the expense of certain private parties.'

It is stipulated that the Mayor and City Council, through the City Solicitor, filed an answer to the petition for appeal filed in the Baltimore City Court, but that none of the numerous protestants or petitioners before the Board intervened in the proceeding at that time. After the decision of the Court was announced, the attorney for some of the protestants applied for permission to intervene, but the Court refused permission on the ground that the request came too late. It is also stipulated that the City Solicitor was requested, by resolution of the City Council, to appeal the Court's decision in this case, and did so, with the written approval of the Mayor, acting under sections 82 and 86 of the Baltimore City Charter (1938 Ed.). It appears from the record, however, that he advised the council that, although 'the private parties who wish the City to appeal have offered to bear the expense of such proceedings,' he thought the policy of his office should be 'not to appeal unless the record in a particular case presents a substantial question of law or practice, or the City's interests are otherwise directly affected', or unless a case 'involves an important question of interpretation of the law or a point of practice likely to recur.'

The enabling Act, Code, Art. 66B, § 7, provides that 'any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition' for appeal. There is a provision for further appeal to this Court. Paragraph 35 of the Zoning Ordinance repeats this language and designates the Baltimore City Court as the court of record. Paragraph 35(A) provides that 'it shall be the duty of the Board of Zoning Appeals to notify the City Solicitor promptly of the filing of every petition of appeal.' Obviously, the notice is to enable the City Solicitor to defend the Board's action, if he so desires.

In the case of Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540, 543, 117 A.L.R. 207, this court held that the Board itself had no standing to appeal, since it was merely 'an administrative agency of the city of Baltimore exercising quasi judicial and legislative functions' and had 'no interest, personal or official, in the matters which came before it other than to decide them according to law and the proved fact.' But the City's right to appeal was clearly recognized, and there was no suggestion that this Court should inquire into the City's motives. Whether a particular case should be appealed in the first instance, or to this Court, must rest in the sound discretion of the City authorities. In the case at bar the City has raised questions of construction and procedure that transcend the limits of the particular controversy, and we cannot say that these questions are unimportant, or that the City has no legitimate interest in the subject matter or outcome of the litigation, even if such inquiry were open under the unqualified provisions of the statute. Nor do we regard the fact that private persons, denied the right to intervene for the purpose of appeal, have agreed to reimburse the City for costs, as controlling. The motion to dismiss must be overruled.

The record discloses that the appellee Jacob S. Shapiro and Rose Shapiro, his wife, purchased the property known as 2401-2475 Frederick Ave. on April 28, 1941, intending to establish at that location a branch of the partnership known as Gittings Auto Service, composed of Jacob S. Shapiro and Joseph W. Shapiro, his son, to be operated by the appellee, Joseph W. Shapiro. The property is irregular in shape and comprises about 14 1/2 acres. It is unimproved, except for four buildings fronting on Frederick Ave., and at the time of the purchase the unimproved protion contained a large number of deep holes or pits and was used as a dumping ground. It was, and is, located in a Second Commercial Use District.

On June 18, 1941, Jocob Shapiro made application to the Buildings Engineer, on behalf of the partnership, for a permit to use the 'vacant lot for the sale of used cars, used parts, and for the dismantling of used cars.' The Buildings Engineer noted that such a use would be 'permitted unless a 'junk use' is involved; if a 'junk use' is intended it would be permitted if a use of the same classification now exists on the premises.' Evidently he thought a 'junk use' was involved, for he disapproved the application 'under paragraph 6' of the Zoning Ordinance. The 'junk use' referred to is found in paragraph 6(36): 'junk (scrap paper, metals, bottles, rags, rubber) yard or shop for purchase, sale, handling, baling or storage of these.' On appeal, the Board of Zoning Appeals found that 'the old Wilkens Hair Factory * * * was an established industry for many years at this location,' and that 'since the hair-drying process has ceased, the buildings have continued to be used for industrial purposes. The Board approves the application.' (Italics supplied.) It was not shown that the vacant portion of the lot, for which the permit was sought, had ever been used for any purposes except those of a dumping ground. On the following day, July 2, 1941, the permit was issued.

On December 12, 1941, the Zoning Ordinance was amended by adding subparagraph (84) to paragraph 6, so as to exclude from a Second Commercial Use District any 'automobile dismantling, salvaging or wrecking yard, and yard for the dismantling and salvaging of automobile parts.'

On March 19, 1946, the Zoning Enforcement Officer, with the express approval of the Buildings Engineer, notified Jacob S. Shapiro that 'since the privilege granted [under the permit of July 2nd, 1941] has not been exercised, you are advised that the privilege and all rights granted are null and void.' In taking this action he relied upon paragraph 39 of the Ordinance, which provides: 'Whenever an application for a permit is approved under the provisions of this Ordinance, either by the Buildings Engineer or the Board of Zoning Appeals, * * * the permit shall be obtained and the privilege granted thereunder shall be exercised by the grantee therein named within twelve months from the date of the final action which made the permit valid, and if not exercised by the grantee therein named within that time, the privilege and all rights granted shall become null and void and of no effect * * *.' He also relied upon paragraphs 31 and 37 of the Ordinance for his authority to revoke the permit and enforce conformity.

On appeal to the Board of Zoning Appeals, a public hearing was held on April 16, 1946. Jocob Shapiro testified that the four buildings on the front of the lot were occupied by Overnight Transportation Co., Auto Parts Co., Ives, a manufacturer of brush handles, Enoch Transportation Co., and Commercial Central Sales; that the rest of the lot was still vacant and unimproved, although he had filled in some of the holes, and had plans for another building to be occupied by Gittings Auto Service, construction of which had been prevented by the war. He testified that 'we started dismantling in 1941 in September and October', but discontinued this because of the war and because his son went into the Service on July 21, 1942 (he was not discharged until April 16, 1946) and there was a labor shortage. He stated that he had 'recently' fenced in the property to prevent dumping of garbage on the lot. He denied any intention to permanently abandon the use of the lot for dismantling cars. He produced trader's licenses for the years 1941-1945, inclusive, in the name of Gittings Auto Service, Joseph W. Shapiro, proprietor, for the location 2401-2475 Frederick Ave. The first of these was dated November 4, 1941. ...