Restivo v. Princeton Const. Co.

• Decision Date: 29 November 1960
• Docket Number: No. 93,93
• Citation: 223 Md. 516,165 A.2d 766
• Parties: Philip J. RESTIVO et al. and M. & C. C. of Baltimore v. PRINCETON CONSTRUCTION COMPANY, Inc.
• Court: Maryland Court of Appeals

Page 516

223 Md. 516

165 A.2d 766

Philip J. RESTIVO et al. and M. & C. C. of Baltimore v. PRINCETON CONSTRUCTION COMPANY, Inc.

No. 93.

Court of Appeals of Maryland.

Nov. 29, 1960.

Samuel S. Eisenberg, Baltimore, for appellants Philip J. Restivo et al.

James B. Murphy, Asst. City Sol., Baltimore (Harrison L. Winter, City Sol., Baltimore, on the brief), for appellant M. & C. C. of Baltimore.

Z. Townsend Parks, Jr., Baltimore (H. Emslie Parks, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

On November 3, 1958, Princeton Construction Company, Inc., the appellee, was granted by the Building Inspection Engineer of Baltimore City (Zoning Commissioner) permits to construct eighteen houses on a vacant tract of land in a residential, Class D zoning area. The tract, containing about an acre, has a frontage of 109.3 feet on Mayfield Avenue (a street 40 feet wide) with a depth of 393.33 feet, and is bounded on two sides by 15-foot alleys, and on the fourth side by a 12-foot alley, proposed to be widened to 15 feet. The subdivision plan called for houses in batteries of four and five on each side of a central court, designated as a 'utility right-of-way' 20 feet wide, extending lengthwise through the center of the tract, in which were to be located the facilities for water, lights and sewer lines, with a 5-foot walkway in the middle for ingress and egress. There were to be parking areas accessible from the side alleys. Protesting neighbors appealed to the Board of Municipal and Zoning Appeals, which on December 2, 1958, unanimously reversed the action of the Building Inspection Engineer, and cancelled the permits. Judge Oppenheimer affirmed the Board on appeal to the Baltimore City Court. An appeal to this Court was entered on March 16, 1959, and was dismissed by Princeton on July 6, 1959.

Before the dismissal, Princeton made another application for permits to build upon the same tract, which was granted by the Building Inspection Engineer on March 30, 1959. Another appeal to the Board was entered by the protestants and heard on May 26, 1959. Three members voted for cancellation of the permits and two against cancellation. Boty sides appealed to the Baltimore City Court, where on March 17, 1960, Judge Cullen, treating the Board's action as disapproving the issuance of the permits, reversed and ordered that the permits be issued. The protesting neighbors appealed here.

A number of questions are posed and argued in the briefs. The protestants contend that the second application was for substantially the same proposal as the first and that the Ordinance bars such a second application within twelve months from the rejection of a prior application. They further contend that the second application was barred by the pendency of an appeal to this Court. On the merits they argue that the issuance of the permits is in violation of the Ordinance in respect to setbacks and the lack of proper access by vehicles and fire apparatus. Princeton raises a question as to the effect of the vote by only three members of the Board, contending that the concurring vote of less than four members had the effect of affirming the action of the Building Inspection Engineer.

The Baltimore City Code, Art. 40, sec. 35(a) (Supp.1958) provides:

'Appeals to the Board of Municipal and Zoning Appeals may be taken by any person aggrieved, or by any officer, department, board or bureau of the municipality affected, by any decision of the Zoning Commissioner. Such appeal shall be taken within a reasonable time as provided by the rules of the Board by filing with the Zoning Commissioner and with the Board of Municipal and Zoning Appeals a notice of appeal, specifying the grounds thereof. The Zoning Commissioner shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. If an application is disapproved by the Board of Municipal and Zoning Appeals, thereafter the Board shall take no further action on another application for substantially the same proposal, on the same premises, until after twelve (12) months from the date of such last disapproval.'

Among the powers conferred upon the Board by Baltimore City Code, Art. 40, sec. 35(g) (Supp.1958), is 'To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Commissioner in the enforcement of this Article.'

Princeton contends that sec. 35(d) does not apply to 'Negative Appeals.' Certainly protestants fall in the category of persons 'aggrieved.' We decline to construe the words 'if an application is disapproved' as confined to cases where the Board acts in an original rather than an appellate capacity or to cases where there is an initial disapproval by the Building Inspection Engineer. We think the section is applicable whenever the Board disapproves an application, whether on appeal or otherwise. The obvious purpose of the section is to provide a period of repose. It would defeat that purpose if repetitive applications for substantially the same proposal on the same premises could be reviewed in the one case but not in the other.

Nevertheless we do not decide whether the second application was 'for substantially the same proposal' because for the reasons hereafter given we think both proposals violated the Zoning Ordinance and required denial of the building permits. We deem it appropriate, in view of the lapse of time since the first application and our views on the merits, that the real point in the case be determined now.

The protestants' contention as to the legal effect of the pendency of the appeal to this Court must be rejected. It seems clear that in a proper case a court may stay proceedings pending the determination of another proceeding that may affect the issues raised. Cf. Noel v. Noel, 173 Md. 147, 151, 195 A. 322. Here, however, the appeal was dismissed before the second appeal came on for hearing in the Baltimore City Court. We have held that, under some circumstances at least, the dismissal of an appeal may open the door for action by the trial court upon the judgment appealed from. Tiller v. Elfenbein, 205 Md. 14, 21, 106 A.2d 42, and we see an analogy in the present circumstances.

We find it unnecessary to resolve the question raised as to the effect of the Board's vote on the second appeal. Judge Cullen found that the disapproval of the issuance of the permits by three members of the Board was not supportable under the facts and the law, and hence was arbitrary and illegal. He found no need to construe sec. 35(i). If we assume, without deciding, that the vote of four members is necessary to reverse (although the situation here is somewhat different from that in Mayor and City Council of Baltimore v. Biermann, 187 Md. 514, 50 A.2d 804), and that the effect of the Board's vote was to approve the action of the Building Inspection Engineer, the appeal by the protestants would still raise the issue as to whether the permits were properly issued and in compliance with the Ordinance, regardless of the scope of review. We turn to the merits.

On the first appeal the Board found that the development plan would 'leave the owners and occupants of these homes without proper access for vehicles or fire fighting apparatus.' Judge Oppenheimer remarked that it was 'not for the court to weigh the correctness of these findings.' But the appellee contends that if the plan was in compliance with all the provisions of the Zoning Ordinance and in the absence of any request for or any necessity for a special exception or variance, the Board had no authority to disapprove the permits on the general grounds that the plan presents traffic or fire hazards. We think the contention is sound. The Baltimore City Code, Art. 40, sec. 35(j) (Supp.1958), provides:

'Where in this Article, the Board is authorized to make special exceptions or variances, it shall give approval only where the proposed building, structure, extension, alteration or use of land, buildings or structures, changes or use of land, or buildings or structures, size of yards, size of buildings or density of population shall not create hazards from fire or disease or shall not menace the public health, security, or morals. In determining such questions the Board, when passing upon applications relating to use, shall give consideration to items (a) to (1), inclusive, of Section 2 and, when passing upon applications relating to height, shall give consideration to items (a) to (n), inclusive, of Section 18 and when passing upon applications relating to area, shall give consideration to items (a) to (n), inclusive of Section 22 in so far as they or any of them may relate thereto.'

We find it clear that the effect of the language requiring the Board to consider and apply the standards mentioned is limited to instances where the proposal involves a departure from and a relaxation of the restrictions of use and building design set up in the Ordinance. The limiting of uses and designs by the Ordinance is sustainable only as an exercise of the police power. See R. B. Construction Co. v. Jackson, 152 Md. 671, 674, 137 A. 278, and 1 Yokley, Zoning Law & Practice, § 164 (2d Ed.1953), page 410. So, where a given plan complies with every limitation imposed by the Ordinance, the Board is not authorized to prescribe further limitations based on its own concepts of what is desirable in the public interest, or because it thinks, as stated in the second appeal, that the subdivision plan is 'not a good plan.' Cf. Windsor Hills Improvement Ass'n v. Mayor and City Council of Baltimore, 195 Md. 383, 389, 73 A.2d 531.

The protestants contend, however, and this is the heart of the case, that Princeton's plan is illegal because it does not provide the setbacks or front yard space required by the Ordinance. Princeton concedes the proposed front...