Board of Zoning Appeals v. McKinney

Offutt, J., delivered the opinion of the Court. On February 12th, 1937, one A. B. Himmelrich applied to the Buildings Engineer of Baltimore City, for a permit to erect a gasoline filling station and to construct for use in connection therewith three fifteen hundred gallon tanks, pumps, an office and other appurtenances, at the southeast corner of Fremont and Winchester Streets in Baltimore City. The Buildings Engineer referred the application to the Board of Zoning Appeals, which set it for hearing on February 23rd, 1937. In the meantime the Reverend Albert McKinney filed a protest against the issuance of the permit on the ground that the proposed filling station would be within three hundred feet from a church located at 1105 Winchester Street, of which he was the pastor.

Mr. Himmelrich stated that he was surprised at the protest, and after some testimony, had been taken the hearing was postponed to March 23rd, 1937. There was a public hearing on that day, evidence was taken, the parties were heard, and after the hearing the following resolution was proposed and carried by the unanimous vote of the five members of the Board of Zoning Appeals: “Resolved, that in the matter of Appeal No. 45-37 A. B. Himmelrich, 1136 W. North Avenue, Appellant, to permit the construction of a gasoline filling station at 1126 N. Fremont Avenue, the Board of Zoning Appeals, after giving public notice, ⁵⁵⁴ inspecting the premises, holding a public hearing, considering all data submitted, and by authority of Ordinance No. 318, approved January 16, 1937, an amendment to the Zoning Ordinance, made a study of the conditions on this lot and in the neighborhood, as well as the uses and buildings permitted under this Ordinance, and finds the location is at the southwest corner of Fremont Avenue and Winchester Street in a second commercial use, B area district. The Board disapproved the application for the reason that the proposed filling station would be within three hundred (300') feet of a church.” On the same day Wallace MacWilliams, President of the board, notified counsel for the applicant and for the protestant that the application had been refused, and at the next meeting of the board that resolution, which had been regularly entered on' its minutes, was' approved and affirmed. Mr. Fadum, counsel for Mr. Himmelrich, in that situation notified his client that his remedy was to appeal from the decision to the Baltimore City Court.

But a few days later Himmelrich came to Fadum and asked him if it would' be agreeable to him to withdraw from the case, as he, Himmelrich, "had another method he wanted to try.” Shortly after that on or about March 24th, Mr. Lee I. Hecht, a member of the Appeal Tax Court of Baltimore, called MacWilliams on the telephone, told him he was going to be interested in the case, asked him if “the action of the Board had been sent out,” and was told that it had not. Hecht then wanted to know if it could be held, for the reason that there was going to be a change in the “occupancy of the property.” MacWilliams referred him to Mr. Ireton of the city solicitor’s office, and he later reported to Mr. MacWilliams that Mr. Ireton had said that “it would be all right not to send it out, in view of the fact there was going to be a change in the property.” On April 5th, 1937, after that conversation, Himmelrich leased from Samuel Levin the building in which the ⁵⁵⁵ alleged church was located, and, shortly after that, McKinney, who leased part of the building for church purposes, was notified to vacate the premises, which he did. He and his congregation, however, leased No. 1118 Winchester Street, which still left them within three hundred feet from the proposed filling station. On April 5th, 19.37, Hecht wrote to the Board of Zoning Appeals a letter in which in part he said: “Since this second hearing, the owner of the property supposed to be occupied for the supposed church, has issued a new lease for a store, and the supposed church has been eliminated.

As the Board evidently considered this case only on the basis of that portion of the law which provided that no filling station can be erected within 300 feet of a church, and as the testimony apparently shows this situation, we feel that rather than to proceed further by legal steps, the Board is within its authority to reconsider the minutes of its previous meeting and set the case down for a re-hearing considering all the facts which will be presented.” On June 15, 1937, there was a hearing on that request, at the beginning of which Mr. Southey Miles, who had replaced MacWilliams, said: “This hearing is to consider our right to re-hear the case. We have gone through the minutes and they disclose that an application was made earlier in the year and postponed once or twice, and subsequently the case was fully heard as of March 23, at which time the Board passed a resolution disapproving the application. At the next meeting of the Board the minutes of the previous meeting were read and ratified. We would be glad to hear you on anything you can give us to help us arrive at a conclusion. “ (Mr. Suls) May I see the petition upon which you are now proceeding to hear this case? “(Mr. Miles) On application of counsel for the applicant to re-hear the case (presents letter to Mr. Suls).

Who do you represent, Mr. Suls? A. I represent the protestants. ⁵⁵⁶ “Q. Who are the protestants ? A. I am appearing for the church—the testimony shows that.” The Board decided to reconsider the case and held a further hearing on June 18th, 1937, when the application was approved and the permit granted. The protestants thereupon appealed to the Baltimore City Court, which, after a trial, reversed and annulled the order of the Board of Zoning Appeals.

It is from that order that the Board of Zoning Appeals took this appeal. The appeal submits these questions: One, had the Board of Zoning Appeals the right to appeal from the order of the Baltimore City Court; two, (a) was the decision of that Board of March 23rd, 1937, final; (b) if it was, had it the power to reopen and reconsider the case; and, three, did the partial use of the building for religious worship and instruction constitute it a “building or structure used as a church” within the meaning of that part of Ordinance No. 318 of the Mayor and City Council of Baltimore which reads as follows: “No building or structure of any kind shall hereafter be erected, altered or used for the sale of gasoline, or any other motor fuel, on any lot or premises where any of the boundaries of such lot or premises are within three hundred (300) feet of * * * any building or structure used as a church, orphanage, school, theatre or motion picture theatre in the City of Baltimore.” Neither No. 1105 Winchester Street, nor No. 1118 Winchester Street, is a church building in the sense of being exclusively dedicated to purposes of religious worship and instruction. They are ordinary two story brick houses, originally erected for residential purposes, and converted to other uses as conditions made the change expedient. The Reverend Albert McKinney is a colored minister affiliated with the United Holiness Church of America, who came to Baltimore from Asheville, North Carolina, some ten years ago, when he was sixteen years of age.

He was first appointed a minister of that church in 1933 and several years ago he rented from the owner, Levin, for $2.75 a week, the front room of No. 1105 Winchester ⁵⁵⁷ Street, and established there a church called St. Paul’s Holiness Church, and in the course of time a congregation varying in number from twenty-five to forty or more persons were attracted to the church and were accustomed to gather there for religious services. The room was furnished with a piano, forty or forty-five chairs, and other equipment ordinarily found in a place of worship. Religious services were held on Tuesday and Thursday evenings, on Sunday morning and on Sunday evening, and a Sunday school was conducted which was attended by some “ten or fifteen head of children.” Other parts of the building were used for residential purposes, although that particular room had been used as a church for ten or fifteen years. When the Reverend Albert McKinney and his' congregation were evicted from No. 1105 Winchester Street, they moved across the street to No. 1118, where they rented the second floor of a similar building, the first floor of which is used for the storage of building material, and those premises were equipped and used by them in substantially the same way as was the room they occupied in No. 1105.

It appeared in connection with the second issue, whether the action of the board on March 23rd, 1937, was final, that according to the practice, after a case has been heard, the members of the board express their conclusions in the form of a resolution, the resolution is recorded in the minutes, and the secretary of the board then notifies the parties or their counsel of the result on a “blue slip” or “blue form”. That form is ordinarily sent out as a matter of course, is merely a copy of the resolution, does not appear to be signed by the members of the board, and is a mere clerical detail. In natural sequence the first question to be considered is whether the Board of Zoning Appeals has any right to appeal to this court from the order of the Baltimore City Court. It is apparent from the record that this is an appeal by the Board of Zoning Appeals and not by the Mayor and City Council of Baltimore. ⁵⁵⁸ The Board of Zoning Appeals is an administrative agency of the City of Baltimore exercising quasi judicial and legislative functions, existing by virtue of a statute (Code [Supp. 19.35] art. 66B) and an ordinance (Ordinance of the Mayor and City Council of Baltimore No. 1247, sec. 32).

In addition to certain specific duties described below, it is charged with the duty of studying zoning: “The Board of Zoning Appeals shall study zoning and private municipal development, and shall from time to time, when it deems necessary submit amendments to this ordinance to the City Council.” Ibid, sub-sec. k. Its primary and principal duty however is (1) to hear and decide appeals from the buildings engineer, (2) to hear and decide special exceptions to the terms of the Ordinance, and (3) to authorize upon appeal in appropriate cases a departure from the literal terms of the Ordinance. “In exercising the above-mentioned powers, the Board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed from, and make such order, requirement, decision or determination as ought to be made, and, to that end, shall have all the powers conferred upon the Buildings Engineer by this ordinance.” Ibid, sec. h. Section 35 of the Ordinance makes, among others, these provisions for a court review of the Board’s decisions: “(a) Any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to the Baltimore City Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after filing of the decision in the office of the Board. * * * The allowance of the appeal shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board and the applicant, and on due cause shown, grant a restraining order, (c) The Board ⁵⁵⁹ of Zoning Appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or such portions thereof as may be called for by such appeal.

The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. * * * An appeal may be taken from the determination of the Baltimore City Court to the Court of Appeals, (f) When such a petition as is provided for in sub-paragraph (a) of this Paragraph 35 is filed with the Baltimore City Court, the petitioner shall file a copy with the Board of Zoning Appeals. It shall be the duty of the Board of Zoning Appeals to notify the City Solicitor promptly of the filing of every petition of appeal. The Clerk of the Baltimore City Court shall notify the Board of Zoning Appeals of the final action of the Court on each appeal.” As originally passed, the Ordinance, by section 34, provided that a filling station use could only be permitted when authorized by an ordinance of the Mayor and City Council of Baltimore, passed after the notice required by section 5 of the Ordinance. In 1987, Ordinance No. 318 of the Mayor and City Council of Baltimore, amending section 34 of Ordinance 1247, and adding two new sections to that Ordinance, and repealing inconsistent local enactments, was adopted.

As a result of the amendment, the right to determine for what locations and under what circumstances filling station permits should be issued was transferred from the legislative body of the city, the Mayor and City Council, to the Board of Zoning Appeals. The Ordinance however placed this limitation upon its powers: “but said Board of Zoning Appeals shall not consider or approve an application for a permit within two years after the rejection of an application for a similar permit for the same premises.” Section 84 A of the amending ordinance provides that an application for such a permit shall be made to the Buildings Engineer, but he is not authorized to issue it ⁵⁶⁰ until it is approved by the Board of Zoning Appeals, and he is accordingly required to transmit forthwith any such application filed with him to that Board, together with the requisite drawings, plans and specifications appertaining thereto. Upon receipt of them that Board must require the applicant to post the premises and advertise in accordance with its rules and regulations, and the Board is required to submit to the Board of Fire Commissioners, the Commissioner of Health, the Police Commissioner and the Chief Engineer of the City drawings, plans, specifications, and any other data it may have concerning the application. Section 34 B provides that the Board shall then fix a reasonable time for the hearing, and give due notice to the parties in interest, and “shall hold a public hearing, giving all parties in interest the right to testify as to any material facts in connection with the proposed use, and shall act as the fact-finding body and shall approve or disapprove the issuance of the permit for the proposed use in accordance with the evidence adduced before it and from its own investigation as to whether or not such proposed use would menace the public health, safety, security or morals.” It further provides as a guide to their decision upon the facts they shall give consideration to various factors which are enumerated in careful and meticulous detail.

From these statutory provisions it is apparent that the Board is a type of those administrative agencies which necessarily play so large a part in the operation of government under modern