Marino v. Mayor of Baltimore

Horney, J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court affirming the action of the Board of Municipal and Zoning Appeals, (the Board), denying a permit to construct a one-story store building and adjacent parking area on the unimproved lot of land owned by Frank C. Marino and Bernardine Marino, his wife, and the Marimar Company, Inc., (the Marinos), on the north side of Belvedere Avenue near the intersection of said Avenue with York Road, generally known as 522 East Belvedere Avenue. The property is situated in a residential use district and has been so classified since the passage of the initial zoning act in 1931. Only semi-detached or single dwellings are permitted but none has been constructed by the Marinos or previous owners.

The plat filed with the record shows a first commercial use district on both sides of York Road to the ²¹³ north and south of Belvedere Avenue, an area which has been zoned commercial since the original zoning ordinance in 1931. The area between the easternmost boundary of the commercial district and the property for which an exception is sought, also owned by the Marinos, is zoned for residential use, but is now used for commercial purposes under a prior permit approved by the Board. The area immediately to the north of the property in question, above a slope, variously estimated to be ten to thirty feet high, is zoned and used for residential purposes. The sylvan area to the east, owned by the City, is also zoned residential, although a part of it may be used in the future as a portion of the proposed Northern Parkway Extension.

Directly across the avenue from the Marino property there is a large parking lot, formerly zoned residential, but now used commercially. A department store is situated on the southeast corner of York Road and Belvedere Avenue, but it is within the first commercial use district referred to. Other nonresidential uses have, by way of exceptions, invaded the residential use district. However, the major part of the originally zoned residential district still remains zoned and is used for residences.

On October 5, 1953, an ordinance was introduced in the City Council of Baltimore City to rezone the property in question from residential to first commercial. On October 30, 1953, the Board approved and recommended passage of the proposed ordinance stating that “it is not suitable for residential development”. The Planning Commission of Baltimore City suggested an amendment of the proposed ordinance to the effect that the eastern portion of the property should be restricted to a parking area for the building proposed to be erected on the western portion. The suggestion, was acceptable to the Marinos, but on June 1, 1954, the ordinance as amended was rejected by the City Council.

At the hearing before the Board evidence was produced to the effect that the property was unsuitable for residential use; that to use it for that purpose would be wasteful, imprudent, economically unsound, and impossible to finance; and that the property was best suited for commercial use. There was also testimony that the value of the property for ²¹⁴ commercial use was ten times that for residential use, and that such use would not affect the value of neighboring properties. On the contrary there was evidence, some of it on cross examination, to the effect that the property was suitable for residential purposes; that houses costing from $12,000 to $15,000, if built, could be readily sold; and a banker testified that his savings and loan association would “entertain” an application for a loan for residential development of the property. The protestants, who testified, objected to any further encroachment by commercial interests because it would tend to depreciate the value of their properties.

One witness, a real estate appraiser and broker, attempted to testify that the present use of the property as a “dump” and a “parking lot” created a health as well as a safety problem, but his testimony had little probative value. Because vacant lots scared him, another real estate developer, who had seen the property used as a dump inhabited by mice and rats and perhaps a few snakes, and used as a playground for children, thought the residential restriction had created a health, safety and morals hazard, but he was not an expert in either field. There was some testimony, pro and con, before the Board as to the effect of traffic congestion in the area. In court, the director of traffic, who had made several traffic surveys of the cross-streets area of York Road and Belvedere Avenue, testified that it was a difficult intersection; that it was “strategic”, and was considered among the “heaviest traveled corners” in the City — a count on September 1, 1956, showed that 47,988 vehicles passed through the area in a twenty-four hour period, 18,782 of which were going “to the east of York Road”.

Over a period of four years there were fifty-seven accidents at the intersection. He further testified that the parking lot across the avenue had created traffic congestion and that another on the Marino property would make it “doubly worse”, and that the congestion is already great and the street arrangements are not such as permit a present solution of the problem. The traffic director was also of the opinion that the development of a large department store and parking lot in the area was a serious error traffic-wise which ought not to be repeated. ²¹⁵ The authority of the Board to make an exception under the Enabling Act, [Code, Cum. Supp. (1957), Art. 66B, sec. 7 (g) (2), (3)], and Section 36 (b) and (c), [formerly 33 (b) and (c)], of the Baltimore City Zoning Ordinance, (the ordinance), is not disputed.

Furthermore, the City and the intervenors admit that in this case the proper tribunal to hear and determine the appeal from the Board was the Baltimore City Court. Section 7 (g) (3), supra, provides that the Board shall have the power, among others: “To authorize upon appeal in specific cases such variance from the terms of the ordinance as is necessary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done.” The ordinance provides that the Board shall have power: (i), by Section 35 (g) 2, to “hear and decide special exceptions * * and (ii), by Section 35 (g) 3, the same identical power as that granted by Section 7 (g) (3), supra, of the enabling act. Section 36 (b) and (c), supra, of the ordinance, with which we are primarily concerned, provide, in part, authority to : “(b). Grant a permit where the use or change of use of land, * * * proposed to be used is limited as to its location because of the * * * topography, grade or accessibility.” [and] “(c).

Grant a permit where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of the * * * [zoning ordinance].” ²¹⁶ Section 36 (b) and (c), supra, also provide that the Board shall act as a fact-finding body and, in arriving at a decision, shall give consideration to the rules, regulations, restrictions, guides and standards set forth elsewhere in the ordinance. Ordinarily, there is a marked distinction in the law of zoning between a variance and an exception, 5 but there is none in Baltimore City since an exception, apparently, overlaps a variance inasmuch as both may be granted where there are “practical difficulties or unnecessary hardships”. This is the reason why many cases which arise in Baltimore City, such as this one, discuss exceptions and variances without differentiation. Basically, of course, all zoning regulation, including rezoning, as well as an exception and a variance, which are intended to relieve the harshness of a zonal restriction in a particular instance, is a lawful exercise of its police power by the sovereign state.

It is axiomatic that the individual right to use privately owned property is subordinate to the paramount right of the public whenever such use tends to affect injuriously the health, comfort, safety and general welfare of all persons in a community, provided, however, that such zonal restriction is itself lawful and not such as to permanently deprive the property owner of all reasonable use of his property. See Grant v. Mayor and City Council of Baltimore (1957), 212 Md. 301, 315 , 129 A. 2d 363 ; and Walker v. Talbot County (1955), 208 Md. 72, 87 , 116 A. 2d 393 , and the cases therein cited; and City of Baltimore v. Cohn (1954), 204 Md. 523 , 105 A. 2d 482 . As a general rule, exceptions are granted sparingly, and under exceptional circumstances. To do otherwise would decimate zonal restrictions and eventually destroy all zoning regulations, and thus detrimentally affect the marketability of property within zoned areas.

On the other hand, the existence of an unnecessary hardship usually justifies the grant ²¹⁷ ing of an exception. The criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership. As was stated in Carney v. City of Baltimore (1952), 201 Md. 130, 137 , 93 A. 2d 74 , 76-77: “The need sufficient to justify an exception must be substantial and urgent and not merely for the convenience of the applicant, inasmuch as the aim of the ordinance is to prevent exceptions as far as possible, and a liberal construction allowing exceptions for reasons that are not substantial and urgent would have the tendency to cause discrimination and eventually destroy the usefulness of the ordinance. “The expression ‘practical difficulties or unnecessary hardships’ means difficulties or hardships which are peculiar to the situation of the applicant for the permit and are not necessary to carry out the spirit of the ordinance and which are of such a degree of severity that their existence amounts to a substantial and unnecessary injustice to the applicant.” We think that the primary question we must decide on this appeal is whether the Marinos met the burden of proving that they were entitled to an exception under Section 36 (b) and (c), supra, of the ordinance. See Easter v. Mayor & City Council of Baltimore (1950), 195 Md. 395 , 73 A. 2d 491 ; Gleason v. Keswick Impvt.

Ass’n (1951), 197 Md. 46 , 78 A. 2d 164 ; Serio v. Mayor and City Council of Baltimore (1956), 208 Md. 545 , 119 A. 2d 387 . Although the Marinos based their application for an exception in part under Section 36 (b), supra, on the claim that their property was peculiar in that its topography as well as the grade between it and the adjacent land to the north rendered it impossible to construct dwellings thereon, the testimony as to such peculiarities was so meager that it was not unreasonable for the Board and the trial court to have concluded that the ²¹⁸ property was not unique ar;d therefore was not such as to justify an exception for those reasons. With respect to meeting the required burden under Section 36 (c), supra, it was incumbent upon the Marinos to have shown (i) that if they complied with the ordinance they would not be able to secure a reasonable return from, or to make any reasonable use of, their property, (ii) that the difficulties or hardships were peculiar to the property in question in contrast with those of other property owners in the same district, and (iii) that the hardship was not the result of the applicants’ own actions. Mere financial hardship or an opportunity to get an increased return from the property is not sufficient reason for granting an exception.

Easter v. Mayor & City Council of