Cleland v. Mayor of Baltimore

Marbury, C. J., delivered the opinion of the Court. Three practising physicians and their wives, co-owners of 4-6 East Madison Street, applied for. a permit to establish a parking lot on their property to be used for parking cars belonging to the doctors and members of their staff who were using the doctors’ offices at 4 East Madison Street. 4-6 East Madison Street is practically one lot, although it has two numbers. It is located in a residence zone, although there is a pre-existing nonconforming use of 4 East Madison Street, which has been used as doctors’ offices since 1919. There is no building on that part of the lot known as 6 East Madison Street, except a garage which holds three automobiles.

The building inspection engineer necessarily declined to grant the permit, and an appeal was taken to the Board of Municipal and Zoning Appeals, where the application was approved. An appeal was taken to the Baltimore City Court by the appellants, residents and taxpayers of the city, and owners of real estate near the property. The Baltimore City Court affirmed the action of the Board, and from its order the appeal comes here. The order appealed from not only authorizes the usé of the rear of 6 East Madison Street as a parking lot for the doctors and their employees, but also authorizes an entrance and exit to and from the rear of said property by a roadway on or over the sidewalk and front portion of the lot which is on East Madison Street.

The property to the west adjoining the lot of the applicants is zoned first commercial, with the exception of the University Club property which is at the corner of ⁴⁴³ Madison and Charles Streets, and is zoned residential. The Board of Municipal and Zoning Appeals attempted to act under the provisions of Paragraphs 12(b) and (c) of the zoning ordinance * . (b) permits the Board to grant a use of the same classification, necessary or incidental to a non-conforming use now existing in a residential use district, within 50 feet from such non-conforming use. (c) permits the Board to grant within 100 feet of a boundary line between two use districts, any use permitted in that one of such use districts which has a lower classification.

Appellants contend that the right to act under these provisions is taken away by the passage of Ordinance 1312, approved July 5, 1950. This ordinance adds Paragraph 14(a) to the zoning ordinance, and gives the Mayor and City Council authority to provide by ordinance, upon conditions, for the establishment, maintenance and regulation of open areas in a residential use district, for the parking thereon of automobiles. We are unable to agree with appellant’s contention in this respect, as we do not think this ordinance impliedly repeals Paragraphs 12(b) and 12(c). In their attack upon the action of the Board, the appellants contend that there was no admissible evidence before the Board.

The basis for this is that counsel for the applicants made an unsworn statement of the situation, and then two of the doctors were called, who adopted counsel’s statement. The doctors were, however, subject to cross-examination under these circumstances on any statements made by counsel, and, while this method of procedure is not to be commended as a general proposition, it was probably allowed in this case as a means of saving time, and we cannot say that there was not evidence of the facts before the Board when it acted. Assuming, therefore, that the statement of counsel became evidence after its adoption by the doctors, we find that the basis for the application is that these physicians are active orthopedic surgeons, and the pressure of parking space has become intolerable because they have to get to their place of business and get ⁴⁴⁴ away when needed, are frequently called on emergencies, and, if they do not have access to their own cars, delay ensues. The entrance to the garage is through adjacent property and through an alley which, however, has of late years become blocked by trucks of commercial enterprises which border on it.

The space in the garage is such that if three cars are there, and the first one in wants to get out, a difficult and awkward situation ensues. The proposal was to breach the wall along Madison Street, put in an ornamental iron gate and a ten-foot driveway which would lead to the back of the lot and the rear of the building on lot No. 4. Sometimes