Hoffman v. Mayor C.C. of Balto.

Grason, J., delivered the opinion of the Court. The petitioner (appellant) in this case filed with the Buildings Engineer an application to erect a gasoline filling station at the southwest corner of Edmondson Avenue and Swann Avenue, in the City of Baltimore, which was denied by the Buildings Engineer and referred by him to the Board of Zoning Appeals. Par. 34-A, Ordinance 1247. After notice was given, as required by the ordinance, a public hearing was held' by the Board on April 16, 1946, and on April 20, the Board denied the application for the permit.

The applicant filed, in the Baltimore City Court, on April 29, 1946, a petition and appeal, which was answered by the City. A petition to intervene was filed by Martha E. Wells, which was permitted, and the answer of the City to the petition of the applicant was adopted by her. The case was heard by the lower court on the record made before the Board of Zoning Appeals, with the exception that some ⁵⁹⁵ exhibits were admitted in evidence in the trial of the case in the Baltimore City Court. That court, by an order dated June 17, 1946, sustained the resolution of the Board of Zoning Appeals dated the 20th day of April, 1946, and from that order this appeal is prosecuted.

At the outset it may be observed that the design of the proposed filling station is of a pattern generally seen in operation in cities, towns and country in this state, and no specific complaint is made to the design of the station, pumps, lighting, or any other features of the proposed station. It is conceded that the south side of the 4600 block of Edmondson Avenue, extending back to the rear lines of the properties fronting thereon, are in a First Commercial Use District. The block on the south side of Edmondson Avenue, east of Swann Avenue, is in a Residential Use District. Practically all the north side of the 4600 block of Edmondson Avenue is used for commercial purposes.

On the south side it is used for residential purposes. The proposed filling station would displace two residences, one of which appellant intends to move and face on Swann Avenue. Next to these two houses is a residence, a first floor front room of which is used as a barber shop. At the southeast corner formed by the intersection of Edmondson Avenue and Old Frederick Road is a residence owned by Mr. Ring, and in this residence, on the first floor, he conducts a drug store.

He has been permitted by the Zoning Board to erect a pole, at the property line, on which is a neon sign. With the exception of the drug store and the barber shop, this entire block is residential and has been residential for years. It was, however, in 1931, zoned First Commercial Use, but the people along this block apparently did not know of this until recently, thinking that it was zoned Residential. In the general neighborhood of this proposed filling station, although over 300 feet therefrom, is a Presbyterian Church and a public school to which is connected ⁵⁹⁶ a large playground.

The school and playground are to the north of Edmondson Avenue. On the south side of that avenue, about a block away, is a public park, known as Upton’s Park, consisting of 33 acres, and immediately west thereof is St. Bartholomew’s Church. About 1,000 feet away is the Aged Episcopal Women’s Home, which is south of the location of the proposed filling station, and St. William’s Church is about three blocks west, on Edmondson Avenue, on the north side. Edmondson Avenue is a heavily travelled east and west artery and this traffic is augmented by people going to and from the churches, the school, the home, and the residences in the general neighborhood.

The indus-' trial use to which the north side of this block has been put, materially impedes and more or less obstructs the use of the north side of that block for pedestrian traffic. The south side of that block is not impeded and is unobstructed by commercial development for pedestrian traffic. The appellant, in his petition filed in the lower court, recites: 1. That there is a filling station in the 4400 block of Edmondson Avenue, on the north side thereof, 700 feet east of Swann avenue, and approximately 850 feet from the site of the proposed filling station, with three 5,000-gallon storage tanks; 2.

That there is a filling station located on property known as 4550 Edmondson Avenue, which is the northeast corner of Edmondson Avenue and Swann Avenue, approximately 120 feet from the location of the proposed filling station, and is on the opposite corner from the land involved. It has three 5,000-gallon underground storage tanks, with six pumps; and 3. “There are, in addition to the two service stations * * * three filling stations on the north side of Edmond-son Avenue near the property involved in this Petition and Appeal, which filling stations have the necessary pumps and accessory uses.” ⁵⁹⁷ It thus appears that in close proximity to the site of the proposed filling station there are now five filling stations. In addition to the large quantities of gasoline stored in the five filling stations in the close vicinity of the site of the proposed filling station, the appellant intends, if he is successful in this case, to install four 2,000-gallon tanks and four pumps for the storage and sale of gasoline. The plan of the appellant is to construct a driveway over the present pedestrian walkway so that automobiles may be driven from Edmondson Avenue to the pumps, and to construct a second driveway across the walkway used by pedestrians so that automobiles may have an ingress and egress to and from its pumps.

Attached to the petition of appellant are certificates of: 1. Board of Fire Commissioners, that the proposed filling station was not a fire hazard. 2. Commissioner of Health, that no public health hazard was involved. 3. Police Commissioner, that erection of the proposed filling station would not create a traffic hazard. 4.

The Chief Engineer of the City, and the Buildings Engineer, that they would require the applicant to erect the service station and install the tanks and pumps in accordance with the City Ordinance, and recommending the approval of the application. It was vigorously argued by appellant’s counsel that there was no evidence in the case to contradict the certifications made by these city officials, and that, therefore, the erection of this filling station, tanks and pumps, on the record in this case, would not “menace the public health, safety, security, and morals,” and “* * * the uncontradicted evidence before the Board was to the effect that the proposed use would not menace the public health, safety, security and morals, would not create any fire hazard, any health hazard, or traffic hazard, or any structural or other hazard.” We might comment here that the recommendation of one or more, of these city ⁵⁹⁸ officials would not preclude the Board or the court on review of the Board’s action from considering other matters contained in the record. If this were not so, then a permit would be automatically issued upon the recommendation of these officials. Of course, this is not so.

The Board of Zoning Appeals is the lawful agency to pass upon an application for a permit to erect a gasoline station, and the recommendation of these city officials was not intended to prevent the Board from either granting or refusing a permit. The recommendation of these officials is to be given consideration by the Board, in connection with the other facts in the case, and if the Board, based on evidence to the contrary, does not agree with the recommendation of these officials it is not required to follow their recommendation. The protection against a fire hazard, given to a community by the Board, is a proper exercise of the police power. In addition to the question of whether the erection of this proposed filling would constitute a hazard to pedestrian traffic, we think a substantial question in this case is whether the erection thereof involves the element of a fire hazard.

And this, in turn, reduces the matter to a question of whether the facts before the Board were sufficient for it to reasonably conclude that the granting of this permit would increase the present danger from fire because of the existence of five filling stations in the vicinity of the site of the proposed