Carney v. City of Baltimore

Delaplaine, J., delivered the opinion of the Court. The Board of Municipal and Zoning Appeals of Baltimore City refused a permit to Hazyl W. Carney and J. ¹³³ Calvin Carney, her husband, to construct a one-story rear addition to their two-story dwelling at 3615 Liberty Heights Avenue. The applicants have appealed here from an order of the Baltimore City Court affirming the board’s order. Their lot has a frontage of 30 feet iy% inches on the south side of the avenue, and runs back 130 feet 3 inches to an alley.

The dwelling, which is the west end of a row of eight brick houses, is 22 feet 414 inches wide and 29 feet IIV2 inches long. The yard on its west side is 8 feet 31/4 inches wide. The dwelling is located in an E area district of a residential use district. The Zoning Ordinance of Baltimore City prescribes that at least one side yard shall be required for every building in such a district; and that each detached building shall have two side yards each not less than 10 feet wide, and each semi-detached building shall have one side yard not less than 15 feet wide.

Baltimore City Code 1950, art. 40, sec. 23. Thus appellants’ side yard is much narrower than the ordinance requires. However, the dwelling was built prior to the passage of the zoning ordinance on March 30, 1931, and therefore it is a non-conforming use. The ordinance does not prevent the continuance of any nonconforming use existing at the time of the passage of the ordinance.

Non-conforming buildings existing when the ordinance went into effect are allowed to stand, and non-conforming uses are allowed to continue. The application to the building inspection engineer was for a permit to build an addition 18 feet wide and 18 feet 6 inches long. When he refused to grant a permit, appeal was taken to the Board of Muncipal and Zoning Appeals. There appellants alleged that they had resided in this property ever since they acquired it in 1923, and that they want to continue to reside there, but on account of Mrs. Carney’s physical condition it is difficult for her to walk up stairs, and the proposed addition is necessary and desirable to provide a first-floor bedroom and bath.

They contended that the addi ¹³⁴ tion would not violate the ordinance and that denial of a permit deprives them of the use of their property arbitrarily, unreasonably and unlawfully. Benjamin Fishman, who resides next door, objected to the application on the ground that it would shut off light to his dining room. Two members of the board voted to sustain the action of the engineer and two members voted to reverse it. As the ordinance requires the votes of four members to reverse action of the engineer, the application for the permit was denied.

The ordinance provides in Section 11 that a nonconforming use may not be extended, except as provided thereafter in the ordinance. Section 22 prohibits the construction of any building except in accordance with the area regulations thereafter prescribed for the area district in which such building is located or is proposed to be located. It also explicitly declares: “No building shall be so extended, altered or moved as to reduce the open spaces prescribed for the area district in which such building is located or such extension is proposed to be located.” Ordinances having in view the general purpose of regulating the erection of buildings in thickly settled communities have become common in recent years. Among the objects for which zoning law area regulations have been established are to secure quiet in residential sections, to afford adequate light, air, and sunshine, to promote sanitation, to reduce the hazards of fire, and to expedite transportation.

Colati v. Jirout, 186 Md. 652 , 47 A. 2d 613 . Of course, the governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use is not unlimited. Nectow v. City of Cambridge, 277 U. S. 183 , 48 S. Ct. 447 , 72 L. Ed. 842 ; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116 , 49 S. Ct. 50 , 73 L. Ed. 210 .

However, uses of property which are detrimental to the public health, safety, morals, or general welfare may be prohibited by the State, even though the exercise of such ¹³⁵ power may result in inconvenience or loss to individuals. In this respect individual rights are subordinate to the higher rights of the public. Byrne v. Maryland Realty Co., 129 Md. 202 , 98 A. 547 , L. R. A. 1917A, 1216. In 1927 the Legislature, by enactment of the State Zoning Enabling Act, vested in the Mayor and City Council of Baltimore the full measure of power which the State can exercise for any zoning purpose within the proper scope of the police power.

Laws 1927, ch. 705, Code 1951, art. 66B, secs. 1-9. Side yard restrictions are quite common and have generally been held constitutional. In Doherty v. Town Council of Town of South Kingstown, 61 R. I. 248, 200 A. 964 , the Supreme Court of Rhode Island sustained an ordinance providing that in a certain residential district each side yard shall be not less than 5