Whittle v. Board of Zoning Appeals of Baltimore County

• Decision Date: 20 August 1956
• Docket Number: No. 210,210
• Citation: 125 A.2d 41,211 Md. 36,71 A.L.R.2d 1353
• Parties: , 71 A.L.R.2d 1353 James L. WHITTLE et al. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY, and J. Liston Wiedefeld et al.
• Court: Maryland Court of Appeals

Page 36

211 Md. 36

125 A.2d 41, 71 A.L.R.2d 1353

James L. WHITTLE et al. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY, and J. Liston

Wiedefeld et al.

No. 210.

Court of Appeals of Maryland.

Aug. 20, 1956.

Kenneth C. Proctor, Towson, for appellants.

George W. McManus, Jr., Baltimore and W. Albert Menchine, Towson (O'Conor & McManus, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

This is an appeal from an order of the Circuit Court for Baltimore County affirming an order of the Board of Zoning Appeals of Baltimore County which had granted a special permit to the individual appellees (hereinafter usually referred to as 'the appellees') to use the building located at 7400 York Road as a funeral home. The Board of Zoning Appeals had reversed the Zoning Commissioner who had denied the request for a special permit.

The first and principal controversy is whether or not a prior adverse ruling by the Circuit Court for Baltimore County on an application for a special permit for a funeral home on the same premises is res judicata as to the present case.

The earlier petition was filed on November 23, 1949, by Lucretia G. Leonard, as owner, and the appellees, as contract purchasers, to obtain a special permit to use the same property as a funeral home. This petition was denied by the Zoning Commissioner, but was granted by the Board of Zoning Appeals which reversed the Zoning Commissioner on appeal by the petitioners. The only witnesses produced by the petitioners at the hearing before the Board were J. Liston Wiedefeld, one of the petitioners, and Charles D. DeLosier, who was the secretary of the Maryland State Funeral Association. Mr. Wiedefeld testified that the property in question had been used as a Medical Research Laboratory from 1934 to 1943 and that it had not been used as a residence during that time. He testified further that there was a great need for a funeral home in the neighborhood because of the great increase in the population of Baltimore County and the lack of increase in a proportionate number of funeral establishments. He also testified that at that time he owned a funeral home in Baltimore and did not intend to move it to the proposed new location but intended to operate two separate funeral establishments. Mr. DeLosier testified that there was a definite need for a funeral home in the neighborhood because of the large population. Eight witnesses testified in opposition to the petition to the effect that they had lived in a highly residential area with fine homes and that their homes either abutted on or were in close proximity to the property in dispute and that the issuance of the special permit would adversely affect the value and enjoyment of their homes and would increase the traffic along York Road. The Board of Zoning Appeals stated in its opinion reversing the Zoning Commissioner that it felt that the granting of the special permit for a funeral home 'will not create congestion and increase the traffic hazard, will not affect the health, safety or the general welfare of the people of the community, neither does the Board feel that the granting of this special permit will depreciate the value of adjacent property.' The Board attached as a condition to the granting of the permit 'the planting of additional shrubbery on the north side of the property.'

The neighboring property owners then filed a petition for a writ of certiorari in the Circuit Court for Baltimore County to review the decision and order of the Board of Zoning Appeals. Judge John B. Gontrum, in reversing the Board of Zoning Appeals, found that the petitioners had offered no testimony that would justify the granting of the permit and that the granting of the permit would have an adverse effect on the value of the real estate in the vicinity.

Thereafter, following a motion for reargument, Judge Gontrum adhered to his original decision and filed an opinion in which he reviewed the testimony before the Board of Zoning Appeals, and relied principally upon Heath v. Mayor and City Council of Baltimore, 187 Md. 296, at page 304, 49 A.2d 799, and Jack Lewis, Inc. v. Mayor & City Council of Baltimore, 164 Md. 146, 164 A. 220. He added to what Judge Offutt wrote in the Jack Lewis, Inc., case about the depressing effect of a funeral home in a residential area, some quotations on the subject of death from Bacon and Shakespeare and some comments of his own on the different manner in which death is regarded by different peoples of the in different places. In speaking of the attitude of many persons in this section of the country, he observed that 'The solace of religion and the consolations of philosophy are not sufficient to change the fundamentally pessimistic attitude of most persons toward death and the grave.' He also pointed out that the term, 'funeral home,' is a euphemism and that such an enterprise is commercial, not residential.

At the time of the decision of the first case by the Circuit Court for Baltimore County, there was no provision for a further appeal in a Baltimore County zoning case to the Court of Appeals, so that the decision of the Circuit Court was final.

The Wiedefeld's contract to purchase the property at 7400 York Road was conditioned upon the special permit for a funeral home being granted. In spite of the fact that the permit was denied, they proceeded to purchase the property. Thereafter, on April 27, 1954, the appellees, now the owners of the property, filed and second petition which gives rise to the present case for a special permit to use the same property for a funeral home. Upon denial of this petition by the Zoning Commissioner, they appealed to the Board of Zoning Appeals, which reversed the Commissioner and granted the special permit.

At the hearing before the Board, the appellees called twelve witnesses. Among them were the pastor of a church which adjoins the subject property on the south and which has over 200 members, and also several neighbors, all of whom said that they had no objection to a funeral home being on the property, and some of whom testified that they thought the establishment of a funeral home on the property would be beneficial to the neighborhood. There was also testimony that a funeral home would have no adverse effect on York Road traffic and parking because there would be sufficient off-street parking furnished on the ample grounds of the home itself. There was further testimony by real estate experts that a funeral home at this location would not decrease the value of residential property in the neighborhood. There was also testimony that it would cause no psychological ill-effects on the neighbors; and there was some testimony relating to commercial activity in the neighborhood which was claimed to have changed its basic characteristics. Finally there was testimony that the population of Baltimore County had increased tremendously since 1949, the date of the first application, and that there was now even a greater need for more funeral homes in the county.

Six witnesses testified on behalf of the appellants objecting to the issuance of the special permit. Their testimony was to the general effect (1) that there was no need for a funeral home in the area, (2) that the granting of the permit would make the place commercial and (3) that it would adversely affect the value of neighboring properties.

After the decision of the Board of Zoning Appeals, the protestants filed a petition for a writ of certiorari in the Circuit Court for Baltimore County to review its decision and Order. The appellees were granted leave to intervene as parties defendant. Judge Lester L. Barrett upheld the decision of the Board of Zoning Appeals, holding that the Board had acted in the exercise of its discretion in granting the special permit. In rejecting the contention that the previous decision by Judge Gontrum made the matter res judicata, he stated that 'there is reason to believe, from the record, that since the ruling of Judge Gontrum, at least one additional commercial usage, that of a filling station has been granted in the immediate location, and, in addition, Judge Gontrum based his ruling on an entirely different record than the one that is now before this Court.'

The appellants raise two questions:

1. Is the decision of the Circuit Court for Baltimore County in the first case res judicata in the second case?

2. Are the sections of the Zoning Regulations for Baltimore County which provide for the issuance of a special permit or exceptions for a funeral establishment in a residential zone invalid because they authorize unlawful 'spot zoning?'

We find it necessary to consider only the first of these questions.

The appellants contend that under the doctrine of res judicata and the decision of the Circuit Court in the 1949 case, the petition in the present case should have been denied. They rely particularly upon Mayor and City Council of Baltimore v. Linthicum, 170 Md. 245, 183 A. 531, and Bensel v. Mayor and City Council of Baltimore, 203 Md. 506, 101 A.2d 826, in support of this contention.

In Mayor and City Council of Baltimore v. Linthicum, the petitioner in January, 1933 and again in October, 1933, filed petitions to use a piece of property in a residential area as a post office sub-station. Both of these petitions were rejected because the proposed use would be a business use. The petitioner appealed to the Baltimore City Court from the denial of his second petition, and that Court affirmed the Board. No appeal from the City Court to this Court in such a case was then allowed. The owner then instituted mandamus proceedings, but such proceedings were held inappropriate and no appeal was taken. After the passage of Chapter 448 of the Acts of 1935, which allowed an appeal to this Court from orders of the Baltimore City Court in zoning cases, the owner filed a third petition for...