Keseling v. Mayor and City Council of Baltimore

Hammond, J., delivered the opinion of the Court. Householders appeal from refusal of the zoning authorities of Baltimore to allow them to use their residentially zoned property for seven roomers in addition to four apartments and a real estate office. Since 1921 the appellants, Mr. and Mrs. George Keseling, have owned and occupied a three-story and basement frame house in a Residential Use, E Area District. At first they used the entire house as their residence, at the same time conducting a real estate business from an office in one of its rooms.

When the original Baltimore City zoning ordinance was enacted in 1931, the house had been converted into four apartments. The appellants then were living in one of the apartments and operating their real estate business from the office. The remaining three apartments were rented to other families. Later, after their children had married and moved out, Mr. and Mrs. Keseling split their apartment into two, and converted the basement into two more, so that the property then contained seven apartments and the real estate office.

In 1948, the Board of Municipal and Zoning Appeals ruled that the Keselings could continue to use the house for four apartments and the real estate office, as non-conforming uses, but that they could not maintain the three additional apartments. After this ruling, the Keselings converted the three apartments into seven separate non-housekeeping rooms. In 1958, as a result of the newly enacted Multiple Dwelling and Housing Law, Baltimore City Ordinances (1957-1958) —No. 1077, the Keselings were required to apply to the Building Inspection Engineer for a certificate of occupancy that would permit them to continue to use their property for four apartments, the real estate office, and seven roomers in seven rooms, none of which had housekeeping or cooking facilities. The Zoning Enforcement Officer disapproved the application because, under Sections 9, 10 and 11 of the Baltimore City Zoning Ordinance (1958 Ed.), the renting of the seven rooms constituted a commercial use (the zoning division, as ²⁶⁶ a rule of thumb, says that in a residential area there is a commercial use, which is forbidden, if there are five or more roomers, and an accessory use, which is permitted, if the roomers number four or fewer).

Later, the Zoning Enforcement Officer wrote the Board that the application also should be disapproved as being in violation of the density restrictions of the zoning ordinance. The Board ruled that “the authorized use of the property now exceeds that permitted under the population density regulations” and disapproved the application. On appeal to the Baltimore City Court, Judge Tucker affirmed the Board, finding that it properly had applied the controlling law to the facts. Judge Tucker noted that the square footage of the lot involved would have permitted occupancy by only three families, but that by reason of the non-conforming use, it could be occupied by four families, and held that since the maximum number of families were occupying the house, additional persons, not members of the family, could not live there.

The lower court may have been right in his view expressed in the words of an earlier opinion in that Court, as follows: The purpose of the density of population provisions of the ordinance would be completely thwarted and rendered futile” if they were construed to mean that, in addition to the maximum number of families who can occupy a building, other persons not members of the families may also be occupants. The difficulty is that the ordinance does not say this. Section 48 (v) defines “family” as “A person living alone, or two or more persons living together as a housekeeping unit, with separate identity from other persons or groups in the same structure, having cooking facilities as a part of the area designated for his or their use.” Section 24 says: “* * * the maximum number of families per acre that may be housed on a lot, shall be as set forth in the following table: * * *.”, and Section 25 provides that “Section 24, including the table, shall be subject to the following regulations: A. The maximum number of families which may be housed on any lot shall not exceed the nearest integral number obtained by multiplying the acreage of such lot by the number of families per acre permitted in the area district where such lot is situated, * * *.” Section 25 further ²⁶⁷ provides in paragraph B that, in addition to the family per acre requirements of Sections 24 and 25A, no building may be used “for dwelling purposes or additional family units or apartments unless at least 420 square feet of usable, contiguous floor space in such building is provided for each family housed therein. * * It is apparent that the restrictions of the law are expressed in the measurement of family units. In Aaron v. City of Baltimore, 207 Md. 401, 407 , this Court noted that in the case of Suwalski v. Mayor and City Council (Circuit Court No. 2 of Baltimore City, 1948) Judge Sherbow had adopted the definitions of “family” in Black’s Law Dictionary and in WebsteCs New International Dictionary, and that he had said that in determining a family, “the real test is whether they constitute a separate household maintaining separate housekeeping facilities” (which is now the statutory definition), and that he had concluded “that if one takes in roomers or boarders, who do not have separate housekeeping facilities, such roomers or boarders do not constitute a ‘family’.” The definitions which Judge Sherbow quoted recognize that in a collective body of persons who live in one house, under one head or management, lodgers or boarders may be included as a part.

As we read the ordinance it does not in terms, or by reasonably necessary implication, test the density of occupancy by other than the measure of the family, and does not direct that roomers are to be counted in testing density. See Bassett, Zoning, (1940 Ed.), p. 86. Compare Couch v. Southampton Civic Club (Tex.), 313 S. W. 2d 360 (restrictive covenant against “multiple housing” did not bar roomers) ; Hall v. Leonard, 23 N. Y. S. 2d 360, 363; Neptune Park Ass’n v. Steinberg (Conn.), 84 A. 2d 687 ; Robertson v. Western Baptist Hospital (Ky.), 267 S. W. 2d 395 ;