Heath v. Mayor C.C. of Balto.

⁴⁸¹ Grason, J., delivered the opinion of the Court. On March 30, 1931, the Mayor and City Council of Baltimore City approved Ordinance No. 1247, which is the zoning law for that city. The Scott Investment Company, Inc., owns property known as 5717 Roland Avenue, which is described in an application for a permit to erect a garage to accommodate two automobiles, filed with the Board of Zoning Appeals on March 3, 1947, as follows: A building' of brick, fireproof construction, 40 feet front by 50 feet deep, 29 feet high, with two stories, and if used as a dwelling will accommodate three families; but presently used as an “apartment-dwelling”. It has garages in the basement, for three cars, and one east of the north porch.

It was constructed in 1923. The garage east of the north porch was constructed under a permit approved by the Board December 14, 1943. The lot upon which this building is erected fronts 100 feet on Roland Avenue, with a depth of 425 feet. It is irregular in shape.

This property is in a residential use district as defined by the ordinance. On January 23, 1946, Porter T. Bond, an architect, applied to the Buildings Engineer of the City of Baltimore for a permit to erect a garage for Walter Scott, in the rear of this apartment house, which was refused, and from the refusal an appeal was taken to the Board of Zoning Appeals. The Board approved the application, and an appeal was taken by the appellant to the Baltimore City Court from the ruling of the Board, where it was affirmed; and from the order of that court, affirming the Board of Zoning Appeals, the case was appealed to this court. Heath v. Mayor and City Council of Baltimore, 187 Md. 296 , 49 A. 2d 799, 804 .

In that case we said: “A statutory provision for a public hearing implies both the privilege of introducing evidence and the duty of deciding in accordance with the evidence, and it is arbitrary and unlawful to make an essential finding without supporting evidence.” We decided that there was no supporting evidence before the ⁴⁸² Board to justify its finding, and reversed the lower court and remanded the case. Upon remand by the lower court to the Board, testimony was taken in the case. Before the hearing there was a second application covering the same use of the same property, filed by Walter Scott on March 3, 1947. This, together with the original application, was considered by the Board upon remand.

In our view of the case, the second application is deemed to be unnecessary. The Board granted the permit. An appeal was taken to the Baltimore City Court and that court affirmed the ruling of the Board, and from that ruling an appeal was taken to this court. We said, on the first appeal: “Paragraph 8 of the Baltimore City Zoning Ordinance excludes garages from residential use districts, but this general exclusion is qualified by paragraphs 13 and 14, which relate to private garages without repair facilities and without storage or sale of inflammable liquids.

Paragraph 13 provides: ‘Garages. The use, without repair facilities and without storage or sale of inflammable liquids, of— ‘(a) a building, covering not more than 600 square feet of a lot, for housing not more than three automobiles, shall not be excluded by the residential use provisions of this ordinance; ‘ (b) space, not exceeding 600 square feet in area, for housing not more than three automobiles within a building used as a dwelling, shall not be excluded from residential use districts.’ ” And it was there held that “ ‘a building’ and ‘space’ authorized by paragraph 13” were intended “to be alternatives”. The court further said in that case: “Paragraph 14, on the other hand, gives discretionary power to the Board of Zoning Appeals to make special exceptions. This paragraph provides: ‘Garages—Special Exceptions.

The Board of Zoning Appeals may, after public notice and hearing, in its discretion, in a specific case, and subject to the provisions, ⁴⁸³ restrictions, guides and standards set forth in paragraph 32(j), permit in a residential use district,— ‘ (a) a garage * * * in a rear yard; ‘ (b) a garage * * * which is not within 75 feet of any street, and which is not in a rear yard; ‘ (c) a garage * * * on or under the surface of the lot occupied by a building used as a hotel or apartment house; ‘(d) a space, to be used as a garage * * * within a building used as a hotel or apartment house.’ “The discretionary power of the Board of Zoning Appeals to allow special exceptions by permission of paragraph 14, if valid, is subject to the limitations imposed by paragraph 32(j), as mentioned in paragraph 14. This amendment was enacted by the Mayor and City Council by Ordinance 449, approved April 23, 1941, to meet the objection of uneonstitutionality.” See: Jack Lewis, Inc. v. Baltimore, 164 Md. 146 , 164 A. 220 ; Sugar v. North Balto. M. E. Church, 164 Md. 487 , 165 A. 703 . We repeat what was said in the former appeal: “On this appeal there is no need to discuss the constitutional validity of paragraph 14 except to say that an ordinance