Tighe v. Osborne

• Decision Date: 10 December 1925
• Docket Number: 59.
• Citation: 131 A. 801,149 Md. 349
• Parties: TIGHE v. OSBORNE, INSPECTOR OF BUILDINGS.
• Court: Maryland Court of Appeals

131 A. 801

149 Md. 349

TIGHE v. OSBORNE, INSPECTOR OF BUILDINGS.

No. 59.

Court of Appeals of Maryland

December 10, 1925

Reargument Overruled February 18, 1926.

Appeal from Baltimore City Court; Duke Bond, Judge.

"To be officially reported."

Mandamus by Mary G. Tighe, to compel Charles H. Osborne, Inspector of Buildings for Baltimore City, to accept an application and issue a permit to erect a building. From a judgment refusing the writ and dismissing the petition, plaintiff appeals. Reversed and remanded, with directions.

Urner J., and Bond, C.J., and Pattison, J., dissenting.

Argued before BOND, C.J., PATTISON, URNER, ADKINS, OFFUTT, DIGGES PARKE, and WALSH, JJ.

C Arthur Eby, of Baltimore, for appellant.

Philip B. Perlman, City Sol., of Baltimore (Wirt A. Duvall, Jr. Deputy City Sol., and George E. Kieffner, Asst. City Sol., both of Baltimore, on the brief), for appellee.

OFFUTT J.

The appellant in this case, on May 25, 1925, applied to Charles H. Osborne, inspector of buildings of Baltimore city, for a permit to erect, on Cokesbury avenue in that city, a two-story brick building to be used as a stable for 30 horses, and to be constructed in accordance with plans and specifications filed as part of the application which conformed fully with the requirements of the building code of Baltimore city. The inspector of buildings of Baltimore city, however, refused to issue the permit, or to accept the application, for the reason that the applicant had not also complied with the requirements of Ordinance No. 334 of the mayor and city council of Baltimore. The applicant, contending that Ordinance 334 was unconstitutional and void, thereupon filed in the Baltimore city court a petition setting out these facts and praying that court to issue a writ of mandamus directing the inspector of buildings to accept her application and to issue to her a permit to erect the stable. The respondent, the appellee here, answering, admitted the averments of the petition, except those which challenged the validity of the ordinance, and, further answering, said:

"That the lot upon which the applicant proposes to erect a stable is situated in a block occupied exclusively for residential purposes, with the exception of the lot at the southeast corner of Cokesbury and Montebello avenues, which said lot is improved by a church, said building being approximately 100 feet from the property of the applicant; that property immediately in the rear of the site of the proposed stable is improved by frame dwelling houses, being separated from the property of the applicant only by a 3-foot alley; that the establishment of a stable at this location would constitute a public nuisance, for the reasons that the danger from fire would be greatly increased by the storage of hay, straw, and feed on the premises, that the residents of the neighborhood would be greatly disturbed in the peaceful enjoyment of their property by the emanation of disagreeable and unhealthy odors, and that the public health would be greatly endangered by the attraction of large number of vermin and insects to the location; that Ordinance No. 334 imposes the duty on the defendant to make an investigation of the proposed use, and to refuse the permit if the public health, welfare, or safety would be endangered; that this ordinance is valid and constitutional; and that the applicant is required to conform to the provisions, to wit, the advertising and posting, and the submission to a decision by the defendant as to whether or not the permit shall be issued; that, except for Ordinance No. 334, the defendant is without authority to require the petitioner to submit the application for his decision, after investigation, or for the decision of any other municipal officer."

A demurrer to that answer was overruled, and, upon the petitioner's refusal to reply further, the writ was refused, the petition dismissed, and judgment entered in favor of the defendant for costs.

From that decision this appeal, which requires this court to determine the validity of the ordinance in question, was taken.

The purpose of the ordinance, as indicated in its title, is to regulate the use as distinguished from the construction of all buildings in Baltimore city, except those proposed to be used for residential purposes, and its scope is defined in the first section thereof which provides that--

"(a) No building or structure of any kind, intended or designed to be used for any purpose which, because of its particular location and/or the use to which such building or structure is intended to be put, would create hazards from fire or disease, or would in any way menace the public welfare, security, health or morals, shall be erected in the city of Baltimore.

(b) No existing use of any land, building or structure shall be changed to a use which, because of the particular location of such land, building or structure, and/or the nature of the proposed use, would create hazards from fire or disease, or would in any way menace the public welfare, security, health or morals."

Section 2 provides in part:

"That no building or structure shall be erected, nor shall the existing use of land, buildings or structures in the city of Baltimore be changed, unless the owner thereof, or his duly authorized agent, shall first obtain from the zoning commissioner a permit authorizing the erection of such building or structure and such use, or authorizing such change of use. * * * The zoning commissioner shall grant permits applied for under the provisions of this ordinance unless, in his judgment after investigation, the proposed buildings or structures, use, or changes of use would create hazards from fire or disease, or would in any way menace the public welfare, security, health or morals. * * * In case an application is refused, the zoning commissioner shall notify the applicant in writing. Any person aggrieved by any decision, determination or order of the zoning commissioner may appeal within five (5) days to the board of zoning appeals. * * *

The board of zoning appeals shall hear and decide appeals from any decision, determination or order made by the zoning commissioner. * * * The board of zoning appeals shall not refuse any application involved in an appeal before it, unless, in the judgment of a majority of the members of said board, it appears from satisfactory evidence that the proposed building or structure or use or change of use would create hazards from fire or disease, or would in any way menace the public welfare, security, health or morals. * * *

Any person or persons in interest may contest the legality of any order, decision or determination of the board of zoning appeals within ten (10) days after the date of said order, decision or determination by filing an appeal therefrom by petition to the Baltimore city court, praying said court to review the same. * * * The jurisdiction of the Baltimore city court on appeal shall be limited to the question of the legality of the order, decision or determination complained of."

Section 3 provides:

"That in passing upon applications, the zoning commissioner and the board of zoning appeals shall give consideration to:

(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application.

(b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application.

(c) The location, kind and size of surface and subsurface structures in the vicinity of the property mentioned in the application, such as water mains, sewers and other utilities.

(d) Traffic conditions.

(e) Such other matters and facts as may, in the judgment of the zoning commissioner or the board of zoning appeals, be necessary to determine whether the proposed building or structure or use or change of use would be prejudicial to the public welfare, or adversely affect the public safety, security, health or morals."

Section 4 designates the officials authorized to administer the law. Section 5 directs that the ordinance is in addition to and not "in substitution for" existing ordinances. Section 6 makes it apply to all uncompleted structures. Section 7 excepts from its operation property "proposed to be used for residential purposes exclusively, or proposed to be used for a purpose or purposes customarily incident to residential use; provided such proposed incidental or accessory use would not create hazards from fire or disease, or would not in any way menace the public welfare, security, health or morals." And section 8 provides penalties for violations.

The contention of the appellant in effect is that this ordinance confers upon the zoning commissioner and the board of zoning appeals the entire police power of the state with respect to the use of all real property in the city of Baltimore, and commits to their discretion, without adequate restraints, limitations, or standards the power to deprive persons owning real property in that city of the beneficial use thereof without compensation, even where such use in nowise menaces or affects the public order, health, safety, or morals.

The city, on the other hand, contends that it has no such effect, but that it is a proper and constitutional delegation to its agents of the administrative power necessary to accomplish the purpose of the ordinance, which purpose is to protect the public welfare, health, security, and morals in Baltimore city.

From that statement of the case it appears that the questions with which we are to deal are, first, Does the ordinance derogate from the rights, privileges, and immunities guaranteed to the individual by the state or federal Constitutions? and, if it does,...