Kennerly v. Mayor of Baltimore

Hammond, C. J., delivered the opinion of the Court. Several individuals who object to the grant by the Board of Municipal and Zoning Appeals of Baltimore City of a variance that will permit the building of an apartment house 215 feet high in a district where height is limited to 132 feet have attempted to appeal an order of the Baltimore City Court affirming the Board. Slote-Gordon Realty Company, an appellee, bought a lot at the northwest corner of Charles and Chase Streets, planning to build an apartment house twenty-three stories in height, to cost some $5,000,000. To be economically feasible the building would have to be 215 feet high so Slote applied for a variance.

At the hearing before the Board there were many neighbors who testified that they favored the project, and why, and only one person —Douglas H. Gordon, the present lawyer for the appellants— who protested. None of the appellants appeared in person at the hearing or made known that they objected to the requested variance. Mr. Gordon gave no testimony other than his name and address, saying that he wanted “to argue the law” and that since the Board, in granting recent variances, had limited the apartment house at 1101 St. Paul Street, a block away, and Horizon House, two blocks away, and a proposed building at 1000 North Charles Street, to a height of 200 feet, the Board should be consistent and limit this apartment house to 200 feet. He suggested that the Board lacked power to grant a variance of 68 feet (from 132 to 200 feet) but “de facto, at least, we can say 200 ⁶⁰³ feet is the limit to which you lately have been adhering, and I believe that you should adhere to that limit now.” 1 The Board granted the variance, finding that the proposed building would not adversely affect the health, safety and welfare of the community or the neighborhood and would have a stabilizing effect and serve the public convenience and welfare, and that “the strict application of the zoning regulations would create practical difficulties and a hardship upon the owner of the property * * * and serve no useful purpose.” The present appellants then filed a verified petition in the Baltimore City Court, in which they alleged in paragraph one that they “are residents and taxpayers of the City of Baltimore * * *,” in paragraph two that Slote-Gordon had obtained a variance for a specified building of a certain size and height, and in paragraph four that the action of the Board was “capricious, arbitrary, illegal and void,” and prayed that its action be reversed.

The answer of the City to paragraphs one and two of the petition was that “those allegations contained therein which are matters of record are admitted.” The answer of SloteGordon to paragraph one of the petition was that it “has no knowledge as to whether the Appellants are residents and taxpayers of the City of Baltimore * * * and, therefore, neither admits nor denies the allegations contained in Paragraph First of the Petition.” Two days later Slote-Gordon, by leave of ⁶⁰⁴ court, amended its answer by adding a paragraph, which read in part as follows: “And, further answering said Petition, the Appellee, Slote-Gordon Realty Company, says that Appellants have no legal or constitutional standing to appeal the aforesaid decision of the Board * * At the hearing in the Baltimore City Court not one of the appellants testified or appeared and no evidence on their behalf was offered. Chief Judge Foster held: “In each appeal, the appellees, when answering the petitions of the appellants, specifically deny that the appellants have any legal or constitutional standing to appeal the decision of the Board. “Since none of the appellants appeared before the Board, or offered any evidence at the hearing before this Court, there is no proof present that the appellants are taxpayers. The record is also devoid of any proof that the appellants are aggrieved by the action of the Board in granting the variances. Under these circumstances, the motion of Slote-Gordon to dismiss the appeal petitions must be granted.” Judge Foster went further and, assuming the appellants had standing, said: “there was little evidence before the Board that there existed any ‘practical difficulty’ which would justify the Board in granting the variances sought.” We agree with Judge Foster that the appellants have no standing to appeal.

Maryland Rule B 3 provides that an appeal from an Administrative Agency may be taken “by a person now or hereafter authorized by statute to appeal.” The State Enabling Act, Code (1967 Repl. Vol.), Art. 66B, § 7 (j), provides that “Any person * * * aggrieved by any decision of the board of zoning appeals or any taxpayer * * * may appeal to a court of record on the ground that such decision is illegal in whole or in part.” Section 45 (a) of the Baltimore City Zoning Ordinance (Baltimore City Code 1966) provides that “any person * * * aggrieved by any decision of the Board * * *, or any taxpayer * * * may present to the Baltimore City Court a pe ⁶⁰⁵ tition, duly verified, setting forth that such decision is illegal The appellants do not contend that they ever have alleged or shown that they are aggrieved by the decision of the Board or, indeed, that in fact or law they actually are aggrieved. The record gives no hint of their