Miles v. McKinney

• Decision Date: 26 May 1938
• Docket Number: No. 45.,45.
• Citation: 199 A. 540
• Parties: MILES et al. v. McKINNEY.
• Court: Maryland Court of Appeals

199 A. 540

MILES et al.

v. McKINNEY.

No. 45.

Court of Appeals of Maryland.

May 26, 1938.

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Proceeding by A. B. Himmelrich for a permit to erect a gasoline filling station and certain appurtenances in Baltimore City, wherein the Reverend Albert McKinney filed a protest. From an order annulling an order of the Board of Zoning Appeals of Baltimore City granting the permit, Southey F. Miles and others, constituting the Board, appeal, opposed by protestant. On motion to dismiss the appeal.

Motion granted.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

J. Francis Ireton, Asst. City Sol., of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellants. Maxwell Suls, of Baltimore, for appellee.

OFFUTT, Judge.

On February 12th, 1937, one A. B. Himmelrich applied to the Buildings Engineer of Baltimore City, for a permit to erect a gasoline filling station and to construct for use in connection therewith three fifteen hundred gallon tanks, pumps, an office and other appurtenances, at the southeast corner of Fremont and Winchester Streets in Baltimore City. The Buildings Engineer referred the application to the Board of Zoning Appeals, which set it for hearing on February 23d, 1937. In the meantime the Reverend Albert McKinney filed a protest against the issuance of the permit on the ground that the proposed filling station would be within three hundred feet from a church located at 1105 Winchester Street, of which he was the pastor. Mr. Himmelrich stated that he was surprised at the protest and after some testimony had been taken the hearing was postponed to March 23d, 1937. There was a public hearing on that day, evidence was taken, "the parties were heard, and after the hearing the following resolution was proposed and carried by the unanimous vote of the five members of the Board of Zoning Appeals: "Resolved, that in the matter of Appeal No. 45-37 A. B. Himmelrich, 1136 W. North Avenue, Appellant, to permit the construction of a gasoline filling station at 1126 N. Fremont Avenue, the Board of Zoning Appeals, after giving public notice, inspecting the premises, holding a public hearing, considering all data submitted, and by authority of Ordinance No. 318, approved January 16, 1937, an amendment to the Zoning Ordinance, made a study of the conditions on this lot and in the neighborhood, as well as the uses and buildings permitted under this Ordinance, and finds the location is at the southwest corner of Fremont Avenue and Winchester Street in a second commercial use, B area district. The Board disapproved the application for the reason that the proposed filling station would be within three hundred (300') feet of a church." On the same day Wallace McWilliams, President of the Board, notified counsel for the applicant and for the protestant, that the application had been refused, and at the next meeting of the Board that resolution which had been regularly entered on its minutes was approved and affirmed.

Mr. Fadum, counsel for Mr. Himmelrich, in that situation notified his client that his remedy was to appeal from the decision to the Baltimore City court. But a few days later Himmelrich came to Fadum and asked him if it would be agreeable to him to withdraw from the case, as he, Himmelrich, "had another method he wanted to try".

Shortly after that on or about March 24th, Mr. Lee I. Hecht, a member of the Appeal Tax Court of Baltimore, called MacWilliams on the telephone, told him he was going to be interested in the case, asked him if "the action of the Board had been sent out", and was told that it had not. Hecht then wanted to know if it could be held, for the reason that there was going to be a change in the "occupancy of the property". MacWilliams referred him to Mr. Ireton of the City Solicitor's office, and he later reported to Mr. MacWilliams that Mr. Ireton had said that "it would be all right not to send it out, in view of the fact there was going to be a change in the property".

On April 5th, 1937, after that conversation, Himmelrich leased from Samuel Levin the building in which the alleged church was located, and shortly after that McKinney who leased part of the building for church purposes was notified to vacate the premises, which he did. He and his congregation, however, leased No. 1118 Winchester street which still left them within three hundred feet from the proposed filling station.

On April 5th, 1937, Hecht wrote to the Board of Zoning Appeals a letter in which in part he said: "Since this second hearing, the owner of the property supposed to be occupied for the supposed church, has issued a new lease for a store, and the supposed church has been eliminated. As the Board evidently considered this case only on the basis of that portion of the law which provided that no filling station can be erected within 300 feet of a church, and as the testimony apparently shows this situation, we feel that rather than to proceed further by legal steps, the Board is within its authority to reconsider the Minutes of its previous meeting and set the case down for a re-hearing considering all the facts which will be presented."

On June 15th, 1937, there was a hearing on that request at the beginning of which Mr. Southey Miles, who had replaced MacWilliams, said:

"This hearing is to consider our right to re-hear the case. We have gone through the minutes and they disclose that an application was made earlier in the year and postponed once or twice, and subsequently the case was fully heard as of March 23, at which time the Board passed a resolution disapproving the application. At the next meeting of the Board the minutes of the previous meeting were read and ratified. We would be glad to hear you on anything you can give us to help us arrive at a conclusion.

"(Mr. Suls) May I see the petition upon which you are now proceeding to hear this case?

"(Mr. Miles) On application of counsel for the applicant to re-hear the case (presents letter to Mr. Suls). Who do you represent, Mr. Suls? A. I represent the protestants.

"Q. Who are the protestants? A. I am appearing for the church —the testimony shows that."

The, Board decided to reconsider the case and held a further hearing on June 18th, 1937 when the application was approved and the permit granted. The protestants thereupon appealed to the Baltimore City Court, which after a trial reversed and annulled the order of the Board of Zoning Appeals. It is from that order that the Board of Zoning Appeals took this appeal.

The appeal submits these questions: One, had the Board of Zoning Appeals the right to appeal from the order of the Baltimore City Court, two (a) was the decision of that Board of March 23d 1937, final, (b) if it was, had it the power to reopen and reconsider the case, and three did the partial use of the building for religious worship and instruction constitute it a "building or structure used as a church" within the meaning of that part of Ordinance No. 318 of the Mayor and City Council of Baltimore which reads as follows: "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 * * * any building or structure used as a church, orphanage, school, theatre or motion picture theatre in the City of Baltimore." Neither No. 1105 Winchester Street, nor No. 1118 Winchester street is a church building in the sense of being exclusively dedicated to purposes of religious worship and instruction. They are ordinary two story brick houses, originally erected for residential purposes and converted to other uses as conditions made the change expedient.

The Reverend Albert McKinney is a colored minister affiliated with the United Holiness Church of America, who came to Baltimore from Asheville, North Carolina, some ten years ago, when he was sixteen years of age. He was first appointed a minister of that church in 1933 and several years ago he rented from the owner, Levin, for $2.75 a week, the front room of No. 1105 Winchester street and established there a church called St. Paul's Holiness Church, and in the course of time a congregation varying in number from twenty-five to forty or more persons were attracted to the church and were accustomed to gather there for religious services. The room was furnished with a piano, forty or forty-five chairs and other equipment ordinarily found in a place of worship. Religious services were held on Tuesday and Thursday evenings, on Sunday morning and on Sunday evening, and a Sunday school was conducted which was attended by some "10 or 15 head of children." Other parts of the building were used for residential purposes, although that particular room had been used as a church for ten or fifteen years.

When the Reverend Albert McKinney and his congregation were evicted from No. 1105 Winchester Street they moved across the street to No. 1118 where they rented the second floor of a similar building, the first floor of which is used for the storage of building material, and those premises were equipped and used by them in substantially the same way as was the room they occupied in No. 1105.

It appeared in connection with the second issue, whether the action of the Board on March 23d, 1937, was final, that according to the practice after a case has been heard the members of the Board express their conclusions in the form of a resolution, the resolution is recorded in the minutes, and the secretary of the Board then notifies the parties or their counsel of the result on a "blue slip" or "blue form". That form is ordinarily sent out as a matter of course, is merely a copy of the resolution, does not appear to be signed by the members of the Board and is a mere clerical detail.

In natural sequence the...