Northwest Merchants Terminal, Inc. v. O'Rourke

• Citation: 60 A.2d 743,191 Md. 171
• Decision Date: 20 July 1948
• Docket Number: 176.
• Parties: NORTHWEST MERCHANTS TERMINAL, Inc. v. O'ROURKE et al.
• Court: Court of Appeals of Maryland

60 A.2d 743

191 Md. 171

NORTHWEST MERCHANTS TERMINAL, Inc. v. O'ROURKE et al.

No. 176.

Court of Appeals of Maryland

July 20, 1948

Appeal from Circuit Court No. 2 of Baltimore City; Edwin T Dickerson, Judge.

Suit by Michael J. O'Rourke and others against Northwest Merchants Terminal, Inc., to enjoin defendant from erecting warehouses and from using premises for uses other than those permitted by ordinance. From an adverse decree, defendant appeals.

Decree reversed and bill dismissed.

Lawrence B. Fenneman, of Baltimore (Goldie R. Miller, of Baltimore, on the brief), for appellant.

Wilson K. Barnes, of Baltimore (Carman, Anderson & Barnes, of Baltimore, on the brief), for appellees.

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

MARKELL Judge.

This is an appeal from a decree enjoining defendant from erecting three warehouse buildings on the premises 1300 Ashburton Street, 1300 Dukeland Avenue and 1301 Ashland Street (at this location paper streets), and from using the premises for any uses other than those permitted by Ordinance No. 348 approved April 9, 1946, amending the comprehensive Baltimore Zoning Ordinance approved March 31, 1931. The principal question presented is the validity of Ordinance No. 348 as against defendant. The record is voluminous, the appendices comprise over 400 pages, but there is no substantial conflict in the evidence as to material facts.

Defendant's property is approximately triangular in shape and contains six or seven acres. At the west side of Poplar Grove Street the southeast side of the Western Maryland Railroad right of way crosses the line (if extended) of an alley ninety feet north of Ellicott Drive, formerly Laurens Street. Arthur P.J. Von Nordeck, one of the plaintiffs, claims to be the 'equitable owner' of the property 1315 Poplar Grove Street (Serio v. Von Nordeck, Md., 56 A.2d 41), which fronts on Poplar Grove Street from the railroad right of way to the alley and extends eastward about one hundred feet. Defendant's property includes all the property, except the Von Nordeck property, between the right of way and the alley, extending east about 1168 feet to Braddish Avenue (a paper street); it extends about 280 feet north on Braddish Avenue, from the alley to the right of way. It also includes a half-block (less a corner) about 130 by 200 feet, south from the alley to Ellicott Drive, east from Ashburton Street to Braddish Avenue; defendant does not now propose to erect a warehouse or (so far as appears) any other building on this half-block.

Poplar Grove Street crosses over the railroad by a viaduct. The Von Nordeck property is used as a tavern and a 'club'. It appears to be three storeys high, about one and one-half storeys below the level of the viaduct and at or above the level of the railroad. On defendant's property, immediately adjoining the Von Nordeck property, are (and have been for over twenty years) a steel shed and an 'open' shed, about 63 and 93 feet, respectively, by 30 feet. Alongside of the building (or buildings) is a disconnected spur track. The switch has been removed from the running track of the railroad; the siding is still there. This part of defendant's property formerly was owned by the late M. A. Long or his corporation, builders and contractors. The building was used for storage and the spur for bringing in machinery and materials. Von Nordeck, who says he was a tenant at 1315 Popular Grove Street since 1932--or since 1939 (Serio v. Von Nordeck, supra), says the rest of the Long lot was never used by Long for storage but was used as a 'children's playground', that before 1931 Long discontinued the use of the shed and spur and thereafter until 1945 no use was made of the shed by anybody. Testimony of a number of witnesses clearly indicates that the spur was used until ten or twelve years ago, the shed was used for storage in 1937, when Mr. Gilbert appraised the property, and both the sheds and the yard were used for storage of building materials by a Long tenant from 1940 till defendant's purchase in 1945. Plaintiffs' photographs illustrate the obvious unfitness of a yard between a railroad track, the rear of a saloon, a shed and an alley for use as a 'children's playground.'

The Western Maryland tracks from Poplar Grove Street east to Bentalou Street approximate an arc of a circle. The northernmost point in the arc is about 500 feet north of the northern boundary (Lorman Street) of St. Peter's Cemetery, i. e. 600 feet north of the line (extended) of the alley north of Ellicott Drive. Curves northward from both the west and the east side of the arc unite and continue in a straight line north across North Avenue at and beyond Walbrook Station. The line of the alley (extended) runs east about 1750 feet to St. Peter's Cemetery and 1350 feet through the cemetery to an alley 100 feet west of Bentalou Street. The land bounded by the railroad right of way on the north, the line of the alley and (after a line 100 feet north at the cemetery) Lorman Street on the south, and a few feet of the alley back of Bentalou Street on the east, thus approximates a segment of a circle. With the exception of the Von Nordeck property, the westernmost part (about one-third) of this segment is defendant's property (besides defendant's half-block south of this segment). The eastern two-thirds of this segment contains, along the railroad right of way, a number of industrial properties, including buildings for various purposes (e. g., manufacture of cinder blocks), coal yards, trestles for the discharge of carloads of coal, and oil tanks for the discharge and delivery of oil; a building for the storage of roofing materials was recently destroyed by fire. One of these industrial properties is directly opposite the eastern boundary of defendant's property. This eastern two-thirds of the segment contains no unimproved land, along the right of way or elsewhere, comparable either in size or in railroad availability with defendant's part of the segment.

By the original 1931 Zoning Ordinance most of the property along either side of the Western Maryland right of way from Poplar Grove Street to Bentalou Street, for a considerable distance both north and south, was zoned as a Second Commercial Use District. The present Von Nordeck property (or almost all of it) was in a small First Commercial district, which extended south from the right of way about 500 feet to Winchester Street, east 100 and west 200 feet from Poplar Grove Street, and was surrounded by a Residential district (north and south of the railroad) on all sides except about ten feet at (or near) the present boundary between the Von Nordeck property and defendant's property. There is a still smaller, triangular First Commercial district between the right of way and the northern boundary of St. Peter's Cemetery (extended) about 100 feet on either side of Bentalou Street. South of the right of way the boundaries of the Second Commercial district ran east from the Von Nordeck property through the sheds on defendant's property (about five feet from the north and twenty five from the south side of the sheds) about 365 feet to Dukeland Avenue, south 850 feet to an alley north of Riggs Avenue, east 1300 feet, north 225 feet to the corner of St. Peter's Cemetery, east 1300 feet and north 700 feet along the southern and eastern boundaries of the cemetery, and continued north about 100 feet to the right of way.

That part of the Second Commercial district south of the segment above mentioned thus comprised roughly two irregularly adjacent rectangles, the western about 850 by 1300 feet, the eastern (St. Peter's Cemetery) 700 by 1300 feet. The eastern half of the western rectangle, and also the property directly south of it in the Residential district, for half a mile or more south of the railroad, and a considerable part of the adjoining 'residential' property south of the cemetery, is unimproved. In the rectangle and in the Residential district in all directions, over several hundred acres, practically all the houses are two story row houses, some of them very congested kinds of single family dwellings, with little or no yards, front or back. Both plats and plaintiffs' photographs indicate that the $22,000 value of the Von Nordeck property (Serio v. Von Nordeck, supra) represents the commercial utility of a saloon property and not value of light, air, view, aesthetic considerations or residential potentialities. The row houses on the north side of Ellicott Drive (2800 block) in the original Residential district between the First and Second Commercial districts seem to have small front porches and back yards. Those in the 2700 block, in the original Second Commercial district, have somewhat more space for yards and light and air.

Defendant a Maryland corporation incorporated December 18, 1945, is a real estate subsidiary or affiliate of Lasting Products Company, which manufactures building materials and paints on Franklintown Road. Albert I. Rankin is president of both corporations. With respect to defendant's property, Rankin and defendant have acted for Lasting Products. The property was purchased to allow Lasting Products to expand its operations. It had no adequate place for storage of its materials and needed additional facilities on a railroad siding. The property was purchased in Rankin's name for $12,500 and was conveyed to him by two deeds dated July 2d and 3d, 1945. The western part (about half) was purchased for $6500 from the trustee under deeds and will of Long, by a contract dated May 14, 1945 conditioned upon (1) the fact that the entire property was zoned second commercial, except a strip thirty feet wide (zoned residential) extending along the southernmost edge west of...