Clarks Lane Garden Apartments, Inc. v. Schloss

Henderson, J., delivered the opinion of the Court. This appeal is from an order of the .Baltimore City Court reversing action by the Board of Municipal and Zoning Appeals approving an application for a permit to construct garden' type apartments on the southeast •side of Clarks Lane in Baltimore City. The development plan embraces a tract between Park Heights Avenue and Reisterstown Road in a Residential Use, E Area District, and calls for the erection of six garden type apartment units to be' occupied by 80 families. The evidence shows, and the court found, that the entire tract contains 5.0145 acres, but if proposed streets on the northeast and southwest sides of the tract are excluded, the tract would contain only 4.4201 acres.

The court held that the proposed plan violated the zoning ordinance in that on an area of 4.4201 only 71 families could be housed and the plan would not meet the requirement of lot lines for each building held necessary in Norwood Heights Imp. Ass’n v. Mayor and City Council of Baltimore, 191 Md. 155 , 60 A. 2d 192 . After the decision of that case, the Ordinance (No. 1247, approved March 30, 1931) was amended by adding to paragraph 28, the following exception: “L. Apartment houses designed and erected as a project with singleness of use and operation and with central heating and other facilities (commonly known as garden type apartments), shall be permitted in all area districts without providing a separate lot for each structure or building involved in the project: provided, the area of such project shall cover at least five acres of land; that the number of families to be housed shall comply with family per acre require ⁴⁵⁹ ments of paragraphs 21 and 22 and provided further, that no building or structure shall be constructed nearer than twenty feet from any other building or structure in the project. In applying the area and yard provisions of the Zoning Ordinance to such projects, the property lines for the entire project shall be used as lot lines.” The question presented is whether the proposed streets can be included in the calculation so as to comply with the five-acre provision.

There does not seem to be any express provision in the Ordinance dealing with the question. “Street” is defined in paragraph 44 as applying to “any street thirty feet or over in width”. “Lot” is defined as “a parcel of land now or hereafter laid out and occupied by one building and the accessory buildings or uses customarily or necessarily incident to it, including such open spaces as are required by this ordinance.” In paragraphs 21 and 22, dealing with the minimum depth of rear yards, it is provided (22C) : “In computing the depth of a rear yard abutting on an alley the measurement may include one-half the width of such alley.” There is no such exception in regard to front yards abutting on streets. Paragraph 24 sets out a table of minimum depths of “front yards along undeveloped streets” which “may be laid out after the passage of this ordinance”. Inferentially at least the Ordinance would seem to exclude streets, and even undeveloped streets, from the area requirements. In Norwood Heights Imp.

Association v. Mayor and City Council of Baltimore, supra, it was said, 191 Md. at page 159 , 60 A. 2d at page 194 : “The plan of the development in this case shows a tract of land, after the area for streets is deducted, of 9.3 acres * * *. 80 families are to be housed on the 5.2 acres which constitutes the E-area * * *.” If this case