Burns v. Mayor of Baltimore

Finan, J., delivered the opinion of the Court. This is an appeal from a ruling of the Baltimore City Court which affirmed the resolution of the Board of Municipal and Zoning Appeals (Board) approving the application of Leroy F. ⁵⁵⁶ Kappelman, Ralph Lubrow and Marian Kappelman, a partnership (appellee), to add two single bedroom units in space already existing, in each of two apartment buildings owned by the appellee designated as Nos. 6103-05 and 6107-09 Bellona Avenue. Appellant is the owner of residential property in which he resides in Baltimore and his home is in close proximity to 6103-05 and 6107-09 Bellona Avenue. The property designated as 6103-05 is located in an E-40 height and area district and the lot contains 25,918.64 square feet.

Under sections 28 and 29 of the Zoning Ordinance (Baltimore City Code (1950 ed., as amended) Art. 40) this lot is sufficient to accommodate ten families. The property designated as 6107-09 contains a total of 31,830.49 square feet, of which 23,609.72 square feet is located in an E-40 height and area district which is sufficient to accommodate nine families and 8,220.77 square feet is located in an F-40 height and area district which is sufficient to accommodate one family. In 1965 each of the lots now designated as Nos. 6103-05 and 6107-09, were improved by a two-story, brick apartment building, 30 feet by 156 feet, housing ten families; the terrace level, two families and the first and second floors; four families each, all in double bedroom units. There was space provided for two additional single bedroom apartments in each of the buildings but they were not completed because under the restrictions of the Zoning Ordinance only ten family occupancy was permitted; consequently, the extra space was used for storage.

Construction was completed on these buildings in January, 1965, and the first tenants took possession in April of that same year. In May, 1965, after the apartment units had been in operation for only one month, the appellee made a request for four additional single units, which request was denied because the Board felt that the apartments had not been operated for a sufficient length of time to show hardship. Two years later, in 1967, the appellee filed two applications, one for each property, requesting two additional single bedroom units in each building. The effect of its requests would be to increase the density so that twelve families would be allowed in each of the apartment houses instead of ten, as set out in sections 28 and 29 of the Zoning Ordinance.

Again the appellee based its requests primarily on the basis of ⁵⁵⁷ hardship. Both of appellee’s requests were originally turned down by the Zoning Commissioner and appeals were taken to the Board. The Board, after combining the appeals and hold-in a hearing on them, found that the appellee had shown sufficient hardship under section 40 (c) of the Zoning Ordinance (hardship provision) to justify the granting of a special exception and approved the applications. The resolution of the Board was appealed to the Circuit Court for Baltimore City and there is was affirmed.

It is from that ruling that this appeal is taken. The main thrust of the appellee’s hardship argument is that it has sustained a financial loss. In 1966 the loss was $21,363.66, including $21,200.00 depreciation and the projected loss for 1967 was $4,200.00, without taking into consideration depreciation. This hardship argument was underpinned with evidence that in the general area of the apartments the demand for single bedroom units was seven (7) times that for double bedroom apartments; that if the apartments did not generate additional revenue, service for the tenants and the quality of maintenance would deteriorate with an accompanying detrimental effect on the appearance of the buildings; that appellee intended to provide the additional parking space which the increased occupancy would require; that since the construction of the apartments, Bellona Avenue had been widened by eight feet, thus minimizing any potential traffic congestion; and that the increase in density would not adversely affect the health, safety or welfare of the neighborhood.

Against these contentions the appellant points out that at the time the partnership purchased the property