Perellis v. Mayor and City Council of Baltimore

• Decision Date: 20 February 1948
• Docket Number: 99.
• Citation: Perellis v. Mayor and City Council of Baltimore, 190 Md. 86, 57 A.2d 341 (Md. 1948)
• Parties: PERELLIS et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

57 A.2d 341

190 Md. 86

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

No. 99.

Court of Appeals of Maryland

February 20, 1948

Appeal from Circuit Court of Baltimore City; Herman M. Moser, Judge.

Suits by Irving Perellis and others against the Mayor and City Counsel of Baltimore, for declaratory relief wherein validity of ordinance was attacked.From a decree dismissing the bills, complainants appeal.

Reversed.

Eli Frank, C. Warren Colgan and Reuben Oppenheimer, all of Baltimore (Frank, Skeen & Oppenheimer, Howard H. ConawaySidney A. Needle and Pierson & Pierson all of Baltimore, on the brief), for appellants.

Simon E. Sobeloff, City Solicitor, of Baltimore (Lester H Crowther, DeputyCity Sol., and Lloyd G. McAllister, Asst City Sol., both of Baltimore, on the brief), for appellee.

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

HENDERSON Judge.

This appeal is from a decree of the Circuit Court of Baltimore City dismissing two bills of complaint which challenged, on constitutional grounds, the validity of an ordinance of the Mayor and City Council of Baltimore closing a portion of Benefit Street, a public highway of Baltimore City.

Benefit Street is a street or alley, 20 feet wide, running east and west between and parallel to Bank Street on the north, and Eastern Avenue on the south.The only entrance to Benefit Street is from Eaton Street on the west, running thence to a point about 250 feet from Easton Street, where it ends abruptly and does not continue through to Grundy Street on the east, although there seem to be footways from that point to both Bank Street and Grundy Street.There are three one-story concrete block garages between the end of Benefit Street and Grundy Street.About midway of Benefit Street on its south side, there is a three story brick building owned by the partnership of L. Epstein and Sons (hereinafter referred to as Epsteins) which fronts on Eastern Avenue.Directly across Benefit Street, on its north side, is another three story brick building owned by Epsteins, fronting on Bank Street.The two buildings are joined on the second floor by a bridge.A storm door also extends for some 53 inches into the street from the south side narrowing the street at that point to less than 16 feet.Epsteins also own a vacant lot on the north side of Benefit Street between the last mentioned building and the eastern end of Benefit Street presently used by them as a parking lot for their customers.

On November 23, 1945, the Mayor and City Council of Baltimore entered into an agreement with L. Epstein and Sons reciting that Epsteins 'desire to construct and erect a building on and across' Benefit Street 'to connect portions of their stores for the convenience of the public using their stores'; that Epsteins have requested the city to open and then to close the portion of the street between their stores and have agreed to provide, at their own cost and expense, a new highway 20 feet wide from Bank Street across the vacant lot owned by them, alongside an 8 foot right of way now owned by the city and curving into Benefit Street at its wastern terminus.The city agreed to introduce an ordinance authorizing it to convey to Epsteins in fee simple the portion of the highway so closed, in exchange for the fee-simple title to the proposed new highway.The Epsteins agreed to pay the city all costs and expenses in connection with the transaction, and save the city harmless from all suits, claims or damages.

To implement this agreement, two ordinances were introduced in the city council and enacted into law on February 4, 1946.The first ordinance, which was 'a part of the plan or scheme of the whole project', had for its object the condemnation of the portion of Benefit Street between the two stores of Epsteins, so that the city might acquire a fee-simple title thereto, and the second had for its object the closing of such portion, preliminary to a conveyance thereof from the city to Epsteins.The effect of the plan, if carried out, would be to cut Benefit Street into two portions, and create two cul-de-sacs, one between Eaton Avenue and the proposed new building, and one running from Bank Street to the eastern end of Benefit Street and thence to the east side of the proposed new building.Benefit Street would thus become a 'dead end' street both to the east and west of the proposed new building.

The complainants are the owners or lessees of store properties to the east of the proposed new building, abutting on the south side of Benefit Street (including a 5 and 10 cent store, and a store selling refrigerators and washing machines), and a mortgagee of premises to the west of the proposed new building, abutting on Benefit Street.The bills attacked the validity of the second ordinance above mentioned, and sought declaratory relief.The city filed answers to both bills.

In an extended hearing, the complainants produced testimony tending to show that the proposed closing of the central portion of Benefit Street and the conveyance thereof to Epsteins would interfere with the access of customers and delivery trucks to their properties, which front on Eastern Avenue, a heavily congested traffic artery, and substantially reduce the business use and value of their properties.The city produced testimony tending to show that the situation, with respect to delivery access, would be somewhat improved by the alterations.The plan was approved by the City Planning Commission, the Fire Department, the Police Department, and the Highway Engineer.

Mr. Lang, secretary to the Planning Commission, testified that it would be preferable to have Benefit Street open at both ends.It was shown that one of the 'rules and regulations' of the Planning Commission provided that 'cul-de-sacs will be permitted only for residential use, and only in special cases where the topography and conditions render the provision for a street connection impracticable, * * *'; but the witness explained that this rule applied only to new subdivisions.He pointed out that to open Benefit Street by way of Bank Street, or Grundy Street, without closing the central portion of Benefit Street, would involve the cost of condemning the necessary land, or land and buildings, whereas the proposed plan would cost the city nothing.He testified that the proposed plan would be an improvement over existing conditions, in that each of the new cul-de-sacs would be shorter than the existing one, and to that extent would improve access and relieve traffic congestion.He also pointed out that the new entrance from Bank Street would be 8 feet wider than Benefit Street, although vehicles making deliveries to the eastern end of Benefit Street would have to negotiate a curve.

Other witnesses, representing the Highways and Fire Departments, testified that the plan would improve access by trucks and fire equipment.It was admitted that the existing congestion in Benefit Street was due in large part to the storm door, erected by Epsteins without authority from the city, and to various poles carrying overhead wires along the north side of Benefit Street, erected by or with the approval of the city.On the other hand, it was testified that the existing congestion would be worse, but for the fact that delivery trucks made a practice of turning, at the dead end of Benefit Street, on the parking lot owned by Epsteins.The chancellor found that the ordinance was 'one element of a plan adopted by the proper City officials who had authority to improve traffic conditions' and that 'the improvements to be made are for a public use and purpose, which justifies the exercise of the power of eminent domain'.

It is contended by the appellants that the closing of the central portion of Benefit Street, as distinguished from the opening of a new highway into Bank...