Sugar v. North Baltimore Methodist Protestant Church

• Decision Date: 05 April 1933
• Docket Number: 8,9.
• Parties: SUGAR ET AL. v. NORTH BALTIMORE METHODIST PROTESTANT CHURCH ET AL. BOARD OF ZONING APPEALS OF BALTIMORE CITY ET AL. v. NORTH BALTIMORE METHODIST PROTESTANT CHURCH ET AL.
• Court: Maryland Court of Appeals

165 A. 703

SUGAR ET AL. v. NORTH BALTIMORE METHODIST PROTESTANT CHURCH ET AL.

BOARD OF ZONING APPEALS OF BALTIMORE CITY ET AL. v. NORTH BALTIMORE METHODIST PROTESTANT CHURCH ET AL.

164 Md. 487

Nos. 8, 9.

Court of Appeals of Maryland

April 5, 1933

Appeals from Baltimore City Court; Samuel K. Dennis, Judge.

Proceedings by Sarah Sugar and others before the Board of Zoning Appeals of Baltimore to review a ruling denying permission to convert dwelling in residential district into confectionery and delicatessen store. The Board of Zoning Appeals granted permit over objection of the North Baltimore Methodist Protestant Church and others. This order was reversed by the Baltimore City Court on appeal by objectors, and from the judgment of the city court petitioners and the Board of Zoning Appeals separately appeal.

Appeals dismissed.

Argued together before BOND, C.J., and URNER, ADKINS, OFFUTT, and PARKE, JJ.

Geo Washington Williams, of Baltimore (James H. Preston and Louis Goodman, both of Baltimore, on the brief), for appellants Sugar and others.

Ernest F. Fadum, Asst. City Sol., of Baltimore (R. E. Lee Marshall City Sol., of Baltimore, on the brief), for appellants the Board and others.

James W. Chapman, Jr., and Mason P. Morfit, both of Baltimore (William L. Marbury and Fendall Marbury, both of Baltimore on the brief), for appellees.

PARKE Judge.

George W. Hennick was the owner of a lot of land in Baltimore city. The lot was improved by a residence, and the property was known as No. 1521 Mt. Royal avenue. Sarah Sugar desired to convert the dwelling into a confectionery and delicatessen store, and, at the instance of the owner, applied in November, 1931, for a permit to make this transformation, but permission was refused because the premises were located in a residential use district from which delicatessen stores are excluded by the terms of Ordinance No. 1247 of Baltimore City, approved on March 30, 1931, and usually called the zoning ordinance. An appeal was taken from this ruling to the board of zoning appeals by Sarah Sugar, who had become the tenant of Charles Greenblatt and Rose Greenblatt, his wife the purchasers pendente lite of the property. The specific change proposed to be made by the owners was to use the front room of the first floor as a storeroom where the applicant would conduct a confectionery and delicatessen store, but the second and third stories of the house were to continue to be used as a dwelling.

The premises in question were about midway in the block between McMechen street and Mosher street, and adjoined a large public garage situated in the angle formed by Mt. Royal avenue and McMechen street. The southern boundary line of the lot occupied by the garage is the northern boundary line of the property upon which the delicatessen and confectionery shop was to be opened, and is, also, a part of the boundary line between the First Commercial Use District lying to the north of this line and the Residential Use District to the south of the line as established under the zoning ordinance. The remaining buildings in that block, which are on Mt. Royal avenue and within the Residential Use District, are dwellings although in the home immediately to the south of the contemplated delicatessen shop the owner, with his daughter, makes mayonnaise dressing and has his office, but stores the dressing in a warehouse in the rear of his lot where he loads his product in the vehicles of his patrons. The frontage of the applicant's lot on Mt. Royal avenue and of the three lots to the south is 14 feet 3 inches, and the next six lots have every one a frontage of 15 feet.

The buildings engineer, who is the head of the bureau of buildings, is a ministerial officer and was bound to disapprove the application to change the first floor of the dwelling to a store for the reason that a delicatessen store could not be opened in a residential use district. Paragraph 31 of Ordinance. An appeal was, therefore, necessary to the board of zoning appeals, which possesses ampler and discretionary powers by virtue of these applicable provisions of the zoning ordinance:

"Par. 12. Use District Special Exceptions. The Board of Zoning Appeals may, in its discretion, in a specific case, and as provided in paragraph 33, permit, where otherwise excluded or limited, * * *

(c) Within one hundred feet of a boundary line between two use districts, any use permitted in that one of such use districts which has the lower classification, provided such one hundred foot measurement shall not extend across a street."

The applicant's petition was for a permit in a specific case and the premises were within one hundred feet of the boundary line between a First Commercial Use District and a Residential Use District; and this distance, where so measured, did not extend across a street, and a confectionery and delicatessen store was a use permitted in the first commercial use district, which had a lower classification of permitted uses than the residential use district. So, the subject-matter was within the discretionary power of the board of zoning appeals, subject to these provisions:

"Par. 33. Special Exceptions by Board of Zoning Appeals. The Board of Zoning Appeals may after public notice and hearing, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of this ordinance in harmony with its general purpose and intent as follows:

(a) Grant a permit wherever it is provided in this ordinance that the approval of the Board of Zoning Appeals is required.

(b) Grant a permit when there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this ordinance."

As a result of the appeal to the board of zoning appeals, the usual notices were given, and a public hearing was had at which a number of protestants appeared. The board of zoning appeals decided to grant the permit and passed an order of December 9, 1931, in which it is declared that: "The Board of Zoning Appeals, after giving public notice, inspecting the premises, holding a public hearing and considering all data submitted finds that the premises in question is situated in a Residential Use District; that next door to the premises in question and immediately adjacent thereto to the north is a large public garage; that the said garage is in a First Commercial Use District; that the boundary line between the First Commercial Use District and the Residential Use District is situated between the public garage and the proposed location of the store noted in this appeal, and for these reasons approves the application by authority of paragraph 12, subparagraph (c) of Ordinance No. 1247, approved March 30, 1931, known as the Zoning Ordinance."

The North Baltimore Methodist Protestant Church, a body corporate, and ninety-nine other objectors filed in the Baltimore city court an appeal from this order of the board of zoning appeals, and all papers and proceedings were produced at the hearing on this appeal in order that the Baltimore city court might decide whether the determination of board of zoning appeals is arbitrary, unreasonable, unwarranted, and contrary to law; and would reverse the granting of the permit and grant the objectors whatever relief their case might require. The appeal thus taken was pursuant to the terms of paragraph 35 of the zoning ordinance, and was heard and determined on the record made before the board of zoning appeals. The Baltimore city court reversed the order of the board of zoning appeals, and rescinded and annulled the permit issued to the applicant, and denied her application. From this judgment, the tenant and the owners of the premises concerned have appealed, and the board of zoning appeals has, also, appealed; and the two appeals are here presented by a single record, whose review by this tribunal depends upon the effect to be accorded the sentence at the close of section (c) of paragraph 35 of the zoning ordinance: "An appeal may be taken from the determination of the Baltimore City Court to the Court of Appeals."

The argument on this appeal has embraced a number of questions, but this decision will be confined to the validity of the order of the board of zoning appeals, and the right of an aggrieved party to an appeal from the judgment of the Baltimore city court.

The constitutionality of the general provisions of Ordinance No. 1247 which was passed on March 30, 1931, by the mayor and city council of Baltimore, and is known as the zoning ordinance, is no longer a subject of controversy. Jack Lewis, Inc., v. Mayor and City Council of Baltimore & Board of Zoning Appeals et al., filed January 19, 1933, and published in 164 A. 220, 222. The case cited does not, however, prevent an examination of particular provisions of the ordinance with reference to their validity. In fact, by this decision subsection g-3 of section (par.) 32, and subsection b of section (par.) 33 were each held invalid. The first subsection provided that the board of zoning appeals should have the power: (g) 3. To authorize upon appeal in specific cases such variance from the terms of this ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done.

The second subsection bestowed upon the board the discretion to: (b) Grant a permit when there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this ordinance.

In respect to these subsections, Judge Offutt, speaking for the court, said: "Under these particular provisions the board of zoning appeals is in effect given the power to set aside or...