Cook v. Howard

Ubner, J., delivered the opinion of the Court. The subject of inquiry on this appeal is the authority of the board of zoning appeals of the City of Baltimore to' entertain an appeal by neighboring property owners from the action of the buildings engineer in granting, with the approval of the mayor, a permit for the use of a building as an undertaker’s establishment. The answer to the inquiry depends upon the proper interpretatioh of City Ordinance Ho. 825, approved October 1st, 1926. Sections 3 and 4 of the ordinance contain provisions that no building shall be erected, nor its existing use changed, for any purpose which, because of the particular location of the property, or the nature of the proposed use, “would create hazards from fire or disease, or would menace the public security, health or morals,” and that “no building or structure shall be erected, nor shall the existing use of land, buildings or structures in the City of Baltimore be changed without a permit issued by the bureau of buildings and signed by the buildings engineer,” and that before such a permit shall be issued, “application in writing by the owner * * * shall be made therefor to the buildings engineer,” who shall immediately give public notice of the application by the method and for the time which the ordinance prescribes.

It is further provided, in section 4: “The buildings engineer shall grant permits unless the proposed use of buildings or structures, or changes of use, would create hazards from fire or disease or would menace the public security, ⁹ health or morals,” and in determining such questions the buildings engineer, and the bo'ard of zoning appeals, in reviewing his action, are directed to consider: “(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application; (b) the number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application; (c) the location, kind and size of -surface and sub-surfaco structures in the vicinity of the property mentioned in the application, such asi water mains, sewers, and other utilities; (d) traffic conditions; (e) materials of a combustible, explosive -or inflammable nature to be sold, stored or kept on the premises.” The ordinance authorizes “any applicant or interested persons dissatisfied with any decision, determination or order of the buildings engineer under sections three and four,” to appeal to the board of zoning appeals, which, after notice of the hearing, is empowered to- affirm, reverse or modify the order o'r decision under review. Specifically exempted from the ordinance are proposed uses of property for residence purposes exclusively, if no hazard from fire or disease or menace to public health, morals or safety would be thereby created. The application with which we are concerned in this case was for a permit to change the use of a building to other than residence purposes, and was therefore within the terms of the sections to which wo have referred. But the permit is desired for a business which is one of a class of property uses listed in section 2 of the ordinance in connection with a provision that no permit shall be given by the buildings engineer for the erection, or conversion of use, of a building for any of the purposes specified in that section, without the approval of the mayor, who shall, if he approves the application, impose snch “regulations regarding the location” of the building as may be necessary in his judgment to “safeguard the interests of the public.” Because of that provision, and of the fact that the approval of the mayor was obtained in this instance, it was supposed by the board of zoning appeals that the case was excluded from the opera ¹⁰ tion of section 4 conferring the right of appeal.

Upon that ground the board refused to hear the appeal of objecting property owners from the action of the buildings engineer in issuing the permit. A mandamus suit was then brought in the Superior Court of Baltimore City by the opponents of the permit to require the board of zoning appeals to hear their appeal from the order of the buildings engineer, and to determine whether the permit could be issued and used consistently with the designated public interests which the ordinance was intended to protect. A demurrer to the answer of the defendants was sustained, and no material issue of fact being involved, nor any leave to plead further being desired, the court below directed the writ of mandamus to be issued as prayed. From that order the applicant for the permit, who was allowed to intervene in the suit, has appealed.

There are certain uses mentioned in section 1 of Ordinance 825 which can be authorized, as therein provided, only by special ordinances enacted by the mayor and city council. For the uses specified in section 2, as already noted, the mayor’s approval is required. As provided in section 4, all permits for the construction or altered use of property in Baltimore for other than residence purposes are issuable by the buildings engineer. He is required by the ordinance to issue permits on application unless the proposed use would be inimical to the public safety, health or morals, or is one of the uses listed in the first two sections, in which event he cannot issue the permit, unless it is authorized by 'special ordinance