Akers v. Mayor of Baltimore

BOND, C. J., delivered the opinion of the Court. This appeal is by neighbors and taxpayers in the western portion of Baltimore City, from an order of the Baltimore City Court on appeal from the Board of Zoning Appeals, denying their petition to disapprove and restrain the proposed erection of what are called garden type of apartments nearby, because in violation of the zoning of that area under the Zoning Ordinance of the city, number 1247, approved March 30th, 1931. The Buildings Engineer of the city first refused a permit for the erection, but the Board of Zoning Appeals reversed that action, and the court below concurred in the decision of the Board. The area, lying between Cook’s lane and Edmondson avenue, is in á district classed as a residential use, E area district, that is, one in which the land is not to be devoted to commercial uses, and in which a building shall be limited in height to forty feet, must have two side yards of ten feet each, or one of fifteen feet, a rear yard of not less than twenty-six feet, and a front yard of at least twenty-six feet on a sixty-foot street, or thirty-seven and a half feet on a thirty-two foot street, and must occupy not more than thirty per cent of its lot area if on an inside lot, forty per cent if on a corner lot, with each house having no more than its proportion of sixteen families per acre.

By paragraph 29 (c), of the ordinance the Board of Zoning Appeals is empowered to give special permission for the erection in such areas of apartment houses complying with these requirements and on April 12th, 1940, the Westover Manor, Inc., through Charles H. Steffey, Inc., as its agent, and the A. Lloyd Goode Company as builder, applied to the Buildings Engineer for a permit to construct on the land, 8.2 acres in extent, six apartment houses, or groups of houses, only two ⁴⁵¹ stories in height, five of them extending irregularly in units with the appearance of so many individual dwellings, but each unit containing four apartments. , These units were planned to overlap and connect at the corners, leaving them separate fronts, sides and backs, except for the corner connections, where the foundation walls and roofs are to be continuous. They would have no access from one to another above ground, and only somewhat inconvenient access below. All would be supplied in common with water, electric light, heat and sewerage. The six separated buildings or groups, on separated lots, are to contain twenty-seven units in all, housing one hundred and eight families.

The plans show two new streets projected through the area, and two automobile parking lots in it. The objections of the neighboring owners bring in question for the first time in the State the permissibility of this construction in such an area. The foremost question is whether, in testing compliance with the ordinance, each structure of the several units combined is to be taken as a single building or as a group of buildings, so that the project is to be considered as one for the erection of twenty-seven buildings. If twenty-seven, then the inside buildings of the groups will lack the requisite side yards.

The ordinance does not deal with this type of apartment house specifically, and the arguments have pointed out resemblance to types some of which are permitted in such a district and some are not. It has some resemblance to the more familiar apartment house with several entries, the possession of which does not render the structure a violation of the ordinance. On the other hand it has resemblances to a connected row of houses, which would be restricted to other districts. The owner of houses built together in a row would hardly contend that they complied with the requirements in an E area if they had the requisite side yards only at the ends of the row.

If these structural resemblances only should be regarded, the question of classification might be close, for the distinctions are slender. But when we consider the ⁴⁵² intended singleness in use and operation, and the facts that there is to be no letting of units, but only a letting of suites in them, that the six structures are to be owned and maintained by a single owner as six units, the buildings to be at the care of the owner, with conveniences supplied to all by him, exactly as with apartment houses of the more familiar, unbroken lines, the description of each group as an apartment house seems appropriate, as the Court below found. In the face of the unity in the use, the partial separation of the walls and the possession of several entries proposed here is not enough to justify holding, in testing compliance with the ordinance, that there are twenty-seven apartment houses to be considered. A second objection is that spaces designed for parking of