Kramer v. Baltimore

Urner, J., delivered the opinion of the Court. As the owners of a lot of ground and building at the northeast corner of Mt. Royal Avenue and McMechen Street in the City of Baltimore, the appellants applied to the buildings engineer of the city for a permit to construct on the premises a filling station with six gasoline tanks and pumps. The application was refused, and a suit in equity for a mandatory injunction to compel the issuance of the desired permit having been dismissed on demurrer, this appeal has resulted.

The refusal of the buildings engineer to issue a permit to the appellants for the erection of the proposed filling station is alleged in the bill of complaint to have been based upon the follow grounds: (1) Ordinance Ho>. 243 of the Mayor and City Council of Baltimore, approved October 18th, 1924, prohibits the erection, alteration, or use of any structure for the sale of gasoline or other motor fuel within three hundred feet of any church building in the city, and the premises of the plaintiffs are within that distance of the Horth Baltimore Methodist Protestant Church. (2) Ordinance Ho. 1241 of the Mayor and City Council of Baltimore, approved March 30th, 1931, and known as the “Zoning Ordinance,” provides in paragraph 34 that a filling station for the sale of inflammable liquids may be permitted ³²⁶ only by authority of an ordinance of the Mayor and City Council, even in a district where such a use of property is not prohibited by the use regulations under the zoning law, and there is no ordinance permitting a filling station on the plaintiff’s property. The bill states that the site at which the plaintiffs wish to operate a filling station is within a first commercial use district, as designated in the 'Zoning Ordinance, the terms of which do not exclude filling stations from such a district, and that the premises of the plaintiffs are adaptable for only a limited number of uses and are most suitable for use as a filling station. It is admitted by the bill that the plaintiff’s property is about one hundred and fifty feet from the North Baltimore Methodist Protestant Church on the other side of Mt.

Royal Avenue, which is about one hundred and twenty-five feet wide. There are alleged to be two gasoline pumps and tanks within fifty feet of the church property, and immediately in its rear a large automobile washing and greasing establishment. It is averred that the filling station for which a permit has been requested by the plaintiffs “would not in any way constitute a nuisance, nor create a fire or traffic hazard, nor in any way be detrimental to the public health, safety, morals, comfort, convenience or welfare,” and would in no way menace the safety of the church property or interfere with its convenient, comfortable, peaceful, and quiet use for its customary purposes. Additional allegations in the bill are: That the City Council refused to waive, with respect to- the plaintiff’s property, the inhibition of Ordinance No. 243 against the erection of filling stations within three hundred feet of a church building, and failed to pass an ordinance, in accordance with the provisions of paragraph 34 of the Zoning Ordinance, to permit the plaintiffs to construct and operate a filling station at the proposed site; that numerous ordinances have been passed by the Mayor and City Council permitting the erection of filling stations within three hundred feet of churches, including the North Baltimore Methodist Protestant Church; that permission has been granted by ordinance in many in ³²⁷ stances, under paragraph 34 of the Zoning Ordinance, for the construction of filling stations in the first commercial uso district, in which the plaintiffs’ property is located; that Ordinance 243, as applied to their property, is null and void as an arbitrary and unreasonable deprivation of their property without due process of law, beyond the scope of a valid exercise of the police power, and in violation of the Fourteenth Amendment of the Federal Constitution; that paragraph 34 of the Zoning Ordinance, so far as it requires a special ordinance to grant permission for the location of filling stations in a use district where, they are not forbidden under the zoning law, is void in that it violates the provisions for uniformity and comprehensiveness in chapter 705 of the Acts of 1927 of the General Assembly, enabling Baltimore City and certain other municipalities to enact zoning ordinances for their respective governmental areas.

The right asserted in this suit cannot be judicially recognized unless it is determined that, as against the property interests of the plaintiffs, both of the ordinances mentioned in the bill are invalid. Either would prevent the issuance of the permit which is here sought to be compelled. The validity of each of those enactments, as against the objections urged in this case, depends to a large extent upon similar considerations. In utilizing the zoning power conferred by the enabling act of the General Assembly, the Mayor and City Council expressly reserved authority to control by their own direct legislative action the location of filling stations in any part of the city from which they were not excluded by the provisions of the Zoning Ordinance.

It was competent for the municipal government to make such a reservation. The enabling act of 1927 (section 1) provided that all zoning regulations “shall be uniform for each class or kind of buildings throughout each district,” but need not be the same for all districts, and “shall be made in accordance with a comprehensive plan.” These requirements, of uniformity and comprehensiveness for the regulations which the Zoning Ordinance might prescribe were not. incompatible with the reten ³²⁸ tion by the Mayor and City Council of the power to legislate separately with respect to- the issuance of permits for filling stations in areas where, by the Zoning Ordinance, they are not definitely prohibited. The nature of that class of uses is such as to make them a proper subject of special municipal regulation. In residential districts- they are wholly forbidden by the Zoning Ordinance, but the only right to restrict their location in other districts is that which is reserved to- the Mayor and City Council.

The alternatives to that policy would have been to leave unrestricted the- right to- erect filling stations in nonresidential districts, or to delegate to- administrative officials the power and duty to- determine, in conformity with duly prescribed standards, whether applications to conduct such enterprises in particular locations should be granted or refused. In reserving that function for its legislative action, the- city government could not be held to have exceeded its authority. The considerations affecting the comprehensive solution of such a municipal problem are clearly appropriate for the exercise o-f the city’s- legislative judgment. This court, in a series of cases, has- sustained ordinances prohibiting the erection o-f various structures without a permit from the governing body of the municipality.

In Commissioners of Easton v. Covey, 74 Md. 262 , 22 A. 266 , a permit for the erection of a frame stable on Harrison Street in Easton having been refused, the applicants disputed, in a mandamus suit, the validity of the ordinance by which such a permit was made a condition to the construction of specified buildings. The opinion in that case said (pages 267-269 of 74 Md., 22 A. 266) : “We think it very clear, that under a general power to pass such ordinances as the commissioners may deem necessary and beneficial to the town, the commissioners may pass any ordinance which they may judge necessary and beneficial, and it will be valid, provided it be reasonable and consonant with the general powers and purposes of the corporation, and not inconsistent with the laws and policy of the state. 1 Dillon, Mun. Corp.; secs. 316, 319; Harrison v. Baltimore, 1 Gill, 264 ; Balti ³²⁹ more v. Radecke, 49 Md. 228 . * * * We also think it equally clear that an ordinance passed under this clause to- regulate the erecting of new buildings within the corporate limits, by providing that no such building shall be erected without a permit therefor first obtained from the commissioners, is not only reasonable, but useful, if not essential to the welfare and prosperity of the town. Like ordinances have been passed by the corporate authorities of other towns and cities under just such general grants of power as this, and we have found no case in which their validity has been denied. * * * This is plainly a police power, and we think it clear this ordinance was passed in the exercise of that power, and, not for the purpose of raising revenue.

The main purpose of the ordinance is to give the commissioners power to control the erection of new buildings, so that whenever such building either by the character of the materials out of which, or the manner in which, it is proposed to be built, its location in the town or the character of the business proposed to be carried on therein, would, in their judgment, be detrimental to the town, they may prevent its erection by refusing a permit. In each case the granting or refusal of a permit is confided to their discretion.” In Brown v. Stubbs, 128 Md. 129 , 97 A. 227 , it was held that an ordinance of Baltimore City forbidding the issuance of permits for the' erection of motion picture buildings without the assent of the Mayor and City Council was a valid exercise of the police power conferred upon the city by the State. After referring to hazards incident to motion picture operations which make them a legitimate subject of regulation under the police power, the opinion said (pages 135, 136 of 128 Md., 97 A. 229) : “At some locations they may be safer than at others, and there is less danger to- adjoining properties in so-me parts of the city than in others. It would be very difficult, if not impossible, to- draw a general ordinance which would accomplish all that is proper, without doing injustice to some, and we can see no reason why an applicant for a license should not be required to- first get a