Leimbach Construction Co. v. Mayor of Baltimore

McWilliams, J., delivered the opinion of the Court. The boundaries of the triangular enclave within which lies the land of the appellant (Litty) 1 are Wilkens Avenue on the south, Catón Avenue on the east and the Pennsylvania Railroad on the northwest. On the opposite side of Wilkens Avenue are the spacious grounds of St. Agnes Hospital. On the other side of the railroad is Loudon Park Cemetery.

Maiden Choice Run flows through the enclave, from west to east, continuing to its confluence with Gwynn’s Falls, a half mile or so farther east. An occasional reference to the accompanying plat will facilitate comprehension of the facts. (See plat p. 641 infra.) Litty, a general contractor, has outgrown his present place of business. Sometime prior to March 1969 he acquired an option to purchase the three acres of commercially zoned property designated Lot 10 and Lot 21 on the plat.

Although legal access thereto is provided by Primson Avenue, vehicular access is, in fact, impossible because the bridge over Maiden Choice Run fell down fifteen, “maybe even forty” years ago. It seems that city officials displayed a massive indifference to Litty’s suggestion that the bridge be rebuilt inspired, no doubt, by an estimated cost of $50,000 to $55,000. There were vague mutterings about splitting the cost but Litty had a notion that a crossing could be accomplished at a point about 100 feet southwest of Primson Avenue for about $12,000. He thereupon obtained an option to buy the irregularly shaped one acre of residentially zoned land designated P on the plat.

He had in mind building a 30 foot drive ⁶³⁷ way from Primson Avenue across the easternmost panhandle thereof and thence over a bridge to Lots 10 and 21. On 19 March 1969 Litty applied for a permit to “install [a] driveway and culvert across [the] corner of [the residential] lot.” The application was disapproved by the zoning commissioner “for the reason that it violates [Section 11 of] the zoning ordinance.” The Board of Municipal and Zoning Appeals took up Litty’s appeal on 15 April. Bettie Owings Summers, the chairman of the St. Agnes Neighborhood Association, testified that of the 127 householders in the community at least 113 opposed Litty’s application. She spoke, with obvious relish, of the defeat of an earlier (1960) attempt to rezone Lot P from residential to commercial.

She expressed fears that Litty’s tractor-trailer trucks, two to ten daily, would create a traffic hazard and be an “additional nuisance.” Litty testified that he proposed to spend $300,000 to $400,-000 improving Lots 10 and 21. Some mention was made of pedestrian access to the cemetery through a tunnel under the railroad which it seems is on a 30 foot fill. Lots 10 and 21 were described as a “mess,” a “jungle” and a “wilderness.” The Board found that the “testimony shows that the only access to Lot[s] 21 and 10 * * * is on Primson Avenue.” It noted that “the operation of the [proposed] business would necessitate anywhere from two to ten trucks daily entering the area and that these trucks would be of the tractor-trailer type.” It noted also that the opposition of the St. Agnes Neighborhood Association was based on a claim that the proposed use “would be an encroachment to the residential character of the neighborhood.” The Board’s resolution, dated 18 April, goes on to say: “The premises is vacant land on which it is proposed to construct a 30 foot driveway and metal culvert for ingress and egress to the adjoining commercial lot. ⁶³⁸ “Under the provisions of Sections 10 and 11 of the Zoning Ordinance, a business and a yard for the storage of motor vehicles are uses excluded from the Residential Use District. The proposal in this case is to construct a driveway and culvert and use that portion of the lot for ingress and egress to the commercially zoned property.” ❖ * * “The Board is of the opinion that no sufficient reason was shown to make an exception to the use regulations as proposed in this appeal.

The Board also finds that the proposal would be detrimental to the health, safety and welfare of the community. “In accordance with the above facts and findings, the Board disapproves the application.” Litty’s appeal from the decision of the Board came on for a hearing, before Sodaro, J., in the Baltimore City Court, on 11 June. Miss Summers testified there was a time when there were a few houses on Lot 21 access to which was by “a foot bridge across Maiden Choice Run * * * [which was] never wide enough for any vehicle to go across.” Litty’s testimony before Judge Sodaro was brief. He said, as he did at the hearing before the Board, that there was no access to the property.