Bruning Bros. v. Mayor of Baltimore

Marbury, C. J., delivered the opinion of the Court. Appellant, ón May 14, 1951, applied to the Building Inspection Engineer of Baltimore City for a permit to build an additional two-story building to its present factory at 4209 East Chase Street, this building to be 60 feet wide and 100 feet long, and to be used as a storage warehouse, for paint, etc., and also to move its existing 6-foot fence to the south end of its property. At the time of this application, the property was zoned residential, and therefore the Building Engineer, having no discretion, disapproved the application. An appeal was taken to the Board of Municipal and Zoning Appeals, which sustained the Building Engineer’s decision.

The ownér thereupon appealed to the Baltimore City Court, which sustained the original decision, and from the order of that court, the case comes here. By the zoning ordinance of 1931, a large tract of land in the northeastern section of the City of Baltimore, between Edison Highway on the west, Monument Street on the south, and Erdman Avenue on the north and east, was zoned for industrial use. This large tract included a village, or settlement, known as “Orangeville”, ⁶⁰⁵ which was an old residential community. By Ordinance No. 687, approved on February 6, 1942, this village property, bounded by Macon Street, Ashland Avenue, Haven Street, Chase Street, a proposed extension of Biddle Street, and Eager Street, was changed from the industrial use district to a residential use district.

In December, 1941, the appellant had purchased a lot of ground rectangular in shape, with a frontage of 105 feet 6 inches on the south side of Chase Street, to a depth of approximately 300 feet therefrom running southerly along the west side of Janney Street. This property with within the tract re-districted the following February, but at the time of appellant’s purchase, it was in an industrial district. However, the re-districting ordinance had been introduced in the City Council on November 24, 1941. A public hearing was held on it, on January 19, 1942, and a representative of the appellant attended the hearing.

While the ordinance was pending, a permit to erect a paint and varnish factory was granted to the appellant. It does not appear exactly when the appellant’s factory was completed, or when the ground was broken for it, although we were told at the oral argument by counsel for the appellees that at the time the ordinance was passed, nothing had been done, except perhaps to dig a foundation. This was not denied by counsel for appellant, but even the digging of a foundation may, under some circumstances, give the owner of land a non-conforming use. In any event, it apparently has been since considered by everyone that appellant established a non-conforming use by the erection of its building, and we assume that this is so, although the mere issuance of a permit, and the preparation for construction, does not confer a vested right, nor does it create an estoppel.

Anne Arundel Co. v. Snyder, 186 Md. 342, 347 , 46 A. 2d 689 . Francis v. MacGill, 196 Md. 77, 85 , 75 A. 2d 91, 94 . In April, 1943, appellant made an application to erect a paint storage shed as an extension of its non-conforming use, and this was granted in February, 1944. An addi ⁶⁰⁶ tion. to the paint factory.for,storage and office, and the installation; of three' tanks- for oil and one- tank for; private use, was permitted upon similar .application.

In December, 1944, a permit was granted to construct, an addition to the paint manufacturing plant. In June,: 1945, a permit to erect a storage building and loading platform was denied, but in October, 1945, a permit to erect a two-story addition for storage and office, and a one-story addition for varnish thinning and fume elimination was approved. In April, 1950, a permit to construct a one-story addition for a laboratory was granted. It had been originally intended that Biddle Street should be extended in such a way as to cut off the northern comer of the appellant’s lot.

Therefore, its factory and fence and its additions were all set back 60 feet from the south side of Chase Street, and the 60-foot area has been limited to the construction of a loading platform and a ramp, and to parking, loading and unloading purposes. The Planning Department, however, has abandoned the proposed extension of Biddle Street, and the present application is to use this 60-foot space for the proposed storage building. Appellant contends that the denial of its application deprives it of the use of its property, contrary to the provisions of the State Enabling Act for Zoning, and in violation of the constitutions of the United States and of the State of Maryland. In other words, it maintains that the change of its lot from industrial use to residential use imposed restrictions which could not and cannot be practically complied with, made the remainder of the lot not actually built upon valueless for residential use, and that the zoning regulations as to its property are unreasonable and arbitrary.

It appears from the record that “Orangeville”, the little-unincorporated town within the re-zoned area, is an old community containing about .sixty homes, most of them more than fifty years old, and in addition, there is now being constructed in the area twenty-three ⁶⁰⁷ brick- homes to be sold at