Stubbs v. Scott

• Decision Date: 11 November 1915
• Docket Number: 96.
• Citation: 95 A. 1060,127 Md. 86
• Parties: STUBBS, Inspector of Buildings, v. SCOTT.
• Court: Maryland Court of Appeals

95 A. 1060

127 Md. 86

STUBBS, Inspector of Buildings, v. SCOTT.

No. 96.

Court of Appeals of Maryland

November 11, 1915

Appeal from Superior Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Mandamus by Waiter Scott against Clarence E. Stubbs, Inspector of Buildings of Baltimore City. From an order requiring him to issue a permit to erect a building on a certain described lot, the Inspector appeals. Order affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

S. S Field, City Sol., of Baltimore, for appellant. James J McGrath and Randolph Barton, both of Baltimore, for appellee.

BOYD C.J.

This is an appeal from an order of the superior court of Baltimore city directing a mandamus to issue against the inspector of buildings of Baltimore City, requiring him to issue to the appellee a permit to erect a building on the lot described in the proceedings. The petition alleges that in February, 1915 the petitioner, "desiring to erect and conduct a salesroom and service station for the sale of automobiles, and for the other purposes incident to the business of such establishments," applied to the respondent for a permit to erect a building suitable for the said business on a lot of ground situated on the east side of St. Paul street in said city, but the permit was not granted; that subsequently petitioner, "being still anxious to secure a location on said lot for the sale of automobiles, abandoned the idea of establishing a service station at the place named, and purchased said lot of ground from the owners of the same and now owns said property."

Paragraph 4 of the petition is as follows:

"Your petitioner now represents that he has filed his application with the above-named defendant in his official capacity (a copy of which he herewith files, marked 'Petitioner's Exhibit S.W. No. 1 1/2'), in compliance with the ordinance of the mayor and city council of Baltimore, and of the laws in such cases made and provided, for a permit to erect on said lot four stores for general business purposes, in accordance with the provisions of the plat and specifications herewith filed, marked as to said plat 'Petitioner's Exhibit W. S. No. 2,' and as to said specifications 'Petitioner's Exhibit W. S. No. 3.' That your petitioner proposes to use one of said stores for the purpose of exposing for sale, and for selling automobiles. That the other stores he proposes to rent or if it proves to be expedient so to do, to sell them when they will be used for such purposes as stores so located may be profitably used."

The petition then alleges that the defendant refused to issue said permit, "and thereby your petitioner is restrained and prevented from disposing of his property and availing himself of his right to use it"; that the reason given for the refusal to grant the permit is set out in a letter filed, and the petition concludes by praying the court to issue the writ of mandamus, directed to the defendant, "requiring him to issue to your petitioner the building permit in such cases made and provided."

The answer alleges, amongst other things, that respondent refused to issue the permit because he is advised that the issuance of it would not be in accordance with the law in such cases made and provided. The attorneys for the appellee wrote to Mr. Stubbs the following letter, before the petition was filed:

"June 15, 1915.

Clarence E. Stubbs, Esq., Inspector of Buildings, City Hall--Dear Sir: Mr. Walter Scott has heretofore filed with you his application for a permit to erect a building on the east side of St. Paul street between Preston and Mount Royal avenue. On his behalf we write to ask you if you would be kind enough either to make out the permit, or if you propose to reject it, to give the reasons for your objection, in order that he shall have opportunity to meet those objections as promptly as possible. Very respectfully, Barton, Wilmer & Stewart, Attorneys for Waiter Scott."

Mr. Stubbs replied as follows:

"June 15, 1915.

Messrs. Barton, Wilmer & Stewart, Attorneys for Walter Scott--Gentlemen: Replying to your letter of even date, with reference to application made by Walter Scott for the erection of building on the east side of St. Paul street, between Preston and Mount Royal avenue, beg to advise, that being this neighborhood is a strictly residential section, with no stores or buildings in said block or the block south of same, being used for purposes other than residential purposes, after taking this matter up with his honor, the mayor, we are of the opinion that no permit should be granted for a store building in this neighborhood. Therefore, for the reasons above stated, we must decline the issuing of said permit. Very truly yours, C. E. Stubbs, Inspector of Buildings."

Paragraph 12 of section 47 of the Building Code, as amended by Ordinance No. 32, approved November 28, 1911, provides that:

"The following buildings shall be limited as to location: [And then follows a list of 24 buildings, etc., the fifth of which is as follows:] (5) Garages, automobile stations, or the places for the keeping of vehicles of any kind which are propelled by motive power, the intention of which is for any other purpose than the housing of not more than two machines or vehicles to be used for private purposes only by the person or persons occupying the same lot on which such structure is desired."

Paragraph 13 provides that:

"No permit shall be given by the inspector of buildings for the erection of any such buildings without the approval of the mayor, and, if such erection be approved by him, there shall be incorporated in the permit therefor such regulations regarding the location of said building as may be necessary, in the judgment of the mayor, to properly safeguard the interests of the public."

And it then goes on to require notice of the application to be published in two daily newspapers, etc.

Cases of this character often present questions of difficulty. It is necessary to vest in the authorities of municipal corporations certain powers in reference to the regulation of buildings, the exercise of which may sometimes work hardships on owners of properties, proposed to be improved, and on the other hand, those who have already expended large sums of money may sustain injury by improvements made by others of a character which are objectionable and undesirable in such a neighborhood. The authority to enact and enforce building regulations rests on the ground that it is a part of the police power, but even that power, broad as it is, has its limits.

But we do not feel called upon in in this case to determine how far the regulations of the various kinds of buildings mentioned in this ordinance may be enforced, for it seems to us that the real question in the case is whether the appellee can be deprived of the right to improve his lot by the erection of stores, upon the ground that the proposed building does not conform to the character of buildings in that immediate neighborhood. The learned counsel for the appellant takes the position that the record shows that:

"The buildings are really intended for a garage, and that calling them stores is a mere subterfuge to get around the ordinance which lodges the discretion in the mayor in regard to granting permits for garages." But the petition does not ask for a permit for a garage, and the respondent based his refusal, in his letter to the attorneys for the appellee, on the distinct ground that no permit should be granted for a store building in that neighborhood. In his testimony, after speaking of the refusal to grant a permit for a garage under the application first made by the appellee, Mr. Stubbs was asked:

"Tell his honor why the second application, the one in controversy, was declined?"

And he replied:

"Several of the people who protested against the original application, the first application protested against the second application although the application called for the erection of stores. They protested against the issuing of a permit for the erection of that kind of building in that neighborhood, and after taking the same up with his honor, the mayor, the mayor advised me to withhold the permit."

He admitted that he was influenced by the facts that the plan of the building was susceptible of being used as a garage, and that the second applicant was the same person as the first applicant. He also admitted that he discredited Mr Scott's good faith and his statement that he wanted it now for stores. But in our judgment that was not sufficient to justify his refusal to grant the permit under the evidence in the record. A building erected for a church might with a few changes be converted into a garage, a theater, or something very different from what it purported to be intended for; but that cannot be the test. The case of People ex rel. C. H. Realty Co. v....