Kublitsky v. Zimnoch

Markell, J., delivered the opinion of the Court. This is an appeal from a decree dismissing a bill for an injunction to compel alteration of a structure on property adjoining plaintiff’s property. Defendants formerly had a frame shed in their back yard. They obtained a building permit “to replace frame shed same size 9' x 10' with concrete block”.

Plaintiffs appealed from the granting of the permit. The Board of Municipal and Zoning Appeals disapproved the appeal and approved the permit. In so doing the Board said, “the Board is of the opinion that the weight of the testimony seemed to indicate that there was a shed approximately the same size as the addition now proposed. If there ⁵⁰⁷ was a frame structure, its replacement by a concrete block structure would reduce the fire hazard on the premises.

Therefore, the Board disapproved the negative appeal and approves the permit.” The concrete structure is about four feet higher than the former shed. When the Board acted the concrete structure had been so far constructed that the Board knew its height. Plaintiffs contend that the concrete structure is not in conformity with the permit and the Board’s action, and prevents enjoyment of their easements of light and air. The Board’s “opinion that the weight of the testimony seemed to indicate that there was a shed approximately the same size as the addition now proposed” distinctly falls short of making it a condition of the permit that the height of the “proposed addition” shall not exceed the height of the former shed.

We cannot so construe the Board’s action in the face of the opposite construction by the Board itself in acting with knowledge of the actual height of the “proposed”, but partially completed, structure. Furthermore, we know no authority for the imposition by the Board of such a condition. At the argument we were informed that it is an habitual practice of the Buildings Engineer to issue such permits for “replacements” but to refuse permits for additional structures, thus referring applicants to the Board by appeal. We