Nuova Realty Co. v. Mayor and City Council of Baltimore City, 90
| Decision Date | 14 February 1951 |
| Docket Number | No. 90,90 |
| Citation | 197 Md. 266,78 A.2d 765 |
| Parties | NUOVA REALTY CO., Inc., v. MAYOR & CITY COUNCIL OF BALTIMORE CITY et al. |
| Court | Maryland Court of Appeals |
Southey F. Miles, Baltimore, for appellant.
Harry S. Kruger and Jacob D. Hornstein, Baltimore, for appellees.
Harry S. Kruger and Jacob D. Hornstein, Baltimore, on brief for Park Raven Apts., Inc.
Thomas N. Biddison, City Sol., Francis J. Valle, Asst. City Sol. and Edwin Harlan, Deputy City Sol., all of Baltimore, on brief, for M. & C. C. etc.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
On August 12, 1949, the Nuova Realty Company, Inc., appellant, made application to the Buildings Inspection Engineer for Baltimore City, for a permit to erect a gasoline filling station at what is known as 5810 Hillen Road, Baltimore City. The matter was referred to the Board of Municipal and Zoning Appeals. After complying with all legal prerequisites, a hearing on the application was held. It appears that prior to July 12, 1949, the appellant made application for a permit for construction of a gasoline filling station at 5810 Hillen Road, Baltimore City, and on that date, after a hearing before the Board, the Board disapproved the issuance of a permit on the grounds that 'this is not the time for approval of an isolated filling station only at this location' and that the proposed plans for the station violated several area regulations of the Zoning Ordinance. At the hearing of the application filed on August 12, 1949, the Board refused the permit, holding that that application was the same application filed prior to July 12, 1949. In section 34-A of the Zoning Ordinance of Baltimore City, known as Ordinance No. 1247, it is provided that the said 'Board of Municipal and Zoning Appeals shall not consider or approve an application for a permit within two years after the rejection of an application for a similar permit for the same premises'. The Board held this provision applicable and refused to hear the application filed August 12, 1949, and dismissed the same. From that action, the appellant appealed to the Baltimore City Court, and that court reversed the Board and remanded the case to the Board for the purpose of fully hearing and deciding the matter.
The Park Raven Apartments, Inc., a protestant, appealed from the action of the Baltimore City Court. The record was prepared and transmitted to the Clerk of this court. Thereafter the appeal was dismissed and this court permitted the record on that appeal to be transmitted, used and considered before the Board in its hearing of the case under the remand of the Baltimore City Court. It was so used. Upon remand the Board heard the matter, testimony was taken, arguments heard, and after due consideration the Board again refused the permit, and from that action the matter was appealed to the Baltimore City Court. That court sustained the Board, and the case come, here on appeal.
Upon the hearing of the case by the Court on the second appeal Mr. Kruger, counsel for the Park Raven Apartments, Inc., moved to dismiss the appeal because the application 'is for a similar station within two years', and the court denied the motion 'for the reasons set forth in its memorandum in the other appeal'.
The action of the court in remanding the first appeal to the Board to the end that it fully hear the matter and decide the same, was not such an order that fully decided and determined the case on appeal. It was in the nature of an interlocutory order from which an appeal does not lie, but it will be considered on an appeal from a final order.
The question of whether this second application was made within two years after a similar application had been denied is open for review on this appeal.
It appears that the applicant had previously applied for a permit for the erection of a building for the purpose of selling gasoline and oil to the public at 5810 Hillen Road. In the present application the identical property is to be used as in the first application. The difference between the first application and the one involved here is that there has been a change in the building proposed, and in its location, and in the location of the tanks for gasoline, and it conforms to the requirements of Zoning Ordinance No. 1247, while the first application did not. The permit, of course, was one for the sale of gasoline and oil to motorists. The whole plan, as disclosed by the application, contemplates the use of the premises after the building is erected and the tanks installed, for the sale of gasoline. The application itself makes it plain that what the applicant wants is the right to use the premises, after the station is constructed, for the purpose of selling gasoline. The Zoning Ordinance provides what an application for a gasoline filling station shall contain. These provisions in the ordinance were violated in the first application. This is a concession in the case, and for that reason the application was refused by the Board on July 12, 1949. On August 12, 1949, just one month after the denial of the permit, the applicant again made application for a permit. The lower court held, as the applicant contends, that this was a new application and that it did not violate section 34-A; that it was an application for a different permit, and that therefore this second application had no relation to the first application. It held it was a new and different case. In its opinion it said: "Permit' has a broader meaning than 'use', for the former in relation to a filling station is the authorization not only to use certain premises for a filling station but also to construct the station according to definite plans and specifications. Therefore, if the plans and specifications which accompany an application for a permit are substantially different from those proposed in an earlier application, such permit would not be similar to the one which was formerly sought.'
The first application was for a permit to erect a gasoline filling station on a lot known as 5810 Hillen Road. It was rejected by the Board. The second application is to build a gasoline filling station on the identical lot mentioned in the first application. In it there is a change in the building to be erected, in that it is larger than that proposed to be built in the first application. It is to be erected farther back from the Hillen Road. The location on the lot for the sinking of tanks to contain gasoline is changed, and there are other changes made so as to make the application conform with the Zoning Ordinance. In the first application these provisions in the Zoning Ordinance were not...
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