MAYOR & CC OF BALTIMORE v. Poe

Sybprt, J., delivered the opinion of the Court. A successful application was made by the appellant, Phi Sigma Delta Alumni Association, Johns Hopkins University Chapter, Inc., to the Bureau of Building Inspection of Baltimore City to use the property at 3904 Canterbury Road, Baltimore City, for a fraternity house. The Board of Municipal and Zoning Appeals affirmed the granting of the permit on appeal by the appellees (neighbors, nearby property owners, and a neighborhood improvement association). Upon appeal to the Baltimore City Court by the appellees the decision of the Board was reversed, whereupon Baltimore City and the fraternity brought this appeal.

The fraternity purchased the property in August, 1959, for use as the fraternity house of its local chapter, The Johns Hopkins University Chapter of Phi Sigma Delta Fraternity. Prior thereto, the local chapter had occupied property at 3801 Canterbury Road, where it had carried on its activities, including provision of sleeping facilities for some of its members. The record shows that the local chapter has about fifty-nine members, approximately one third being Baltimoreans and the remainder being students from out of town. In the fraternity house there are meeting rooms, study rooms, a television room, a card room and a ping pong room.

In addition, there are a dining room, a kitchen and eleven sleeping rooms, presently occupied, according to the testimony, by eleven or thirteen students. Present plans contemplate housing a total of eighteen or nineteen when the necessary alterations are completed. Two persons are employed by the fraternity for cooking and cleaning purposes. The various facilities are available to all members of the fraternity and activities are financed by dues paid into a common fund, the amount of the dues being determined by whether a member is a resident or a non-resident of the house.

The record details the activities carried on in the fraternity house. Each year the members of the local chapter elect offi ⁴³¹ cers and designate various committees, including a social committee, a house committee, a rushing committee, a scholarship committee, an athletic committee and a charitable activities committee. The regular bi-weekly meetings of the fraternity, social activities of the chapter, whether it be a smoker, a rush affair for freshman students, a formal initiation ceremony, a dance or other function, committee meetings and committee activities, all take place at the fraternity house, except occasionally when an affair may be held at a hotel or other location. The chapter has a system of tutoring by proficient members, who make a charge for such service.

The property is a three story and basement brick building, located in a Class E Residential Use District, and prior to its acquisition by the fraternity it was used as a four apartment dwelling. The planned use of the house for the activities of the fraternity has given rise to the present litigation. Appellants contend that the fraternity is a non-profit, social and scholastic organization. They cite its objectives, as set forth in its charter: “* * * the non-commercial, social, educational and fraternal purposes of the Phi Sigma Delta Fraternity * * * and for the non-profit purpose of upholding the general welfare, social, scholastic and educational interests of The Johns Hopkins University Chapter of Phi Sigma Delta Fraternity”.

They argue that the finding of the Board that occupancy of this house by the fraternity would not constitute a business or club such as is excluded from a residential use district under the Baltimore City Zoning Ordinance, was the correct interpretation of the law. In the opinion of the lower court, however, since the major portion of the house was devoted to living quarters, the providing of room and board was the chief activity, and such use was, therefore, prohibited under the Ordinance as a business activity. The lower court felt the word “club” in the Ordinance referred not to the organization, but rather to the use of the property itself. Article 40, § 10, Baltimore City Zoning Ordinance (1958 Rev.), sets forth uses excluded from Residential Use Districts.

Among them are uses excluded from Residential and Office Use. Districts. These are delineated in § 9, which reads in part as follows: ⁴³² “9. Residential and Office Use Districts.

In a Residential and Office Use District, no use of land or building shall be excluded, except that (a) no land or building shall be used; * * * for— 32. Club, the chief activity of which is a service customarily carried on as a business, provided, however, that nothing in this ordinance shall be construed to exclude the sale of beverages or food products such as are customarily served to members only, but such permissive use shall not be construed to authorize the construction of any building or alteration of any building, which indicates that the building was used or is intended to be used for commercial purposes, and it is hereby declared that such club use shall not be construed to be classified as a commercial use, nor may such club use be changed to a commercial use which is excluded from a Residential and Office Use District or Residential Use District by any other provisions of this Section * * The Zoning Ordinance of 1931 originally couched Exception 32 only in the following language: “Club, the chief activity of which is a service customarily carried on as a business”. Apparently question was raised as to the scope of this language with respect to the activities of private clubs and it appears significant that the more extensive language hereinbefore quoted was added by ordinance in 1933. Obviously it was inserted in order to protect the traditional activities of private clubs, so long as they were confined to the use of members only and not made available to the public generally.

Some private clubs have always provided sleeping quarters for some of their members and, since such practice has been traditional, it apparently was not regarded as a service necessary to be mentioned in the amendment. The other forty-five exceptions in § 9 have not required clarification over the years. The obvious activity of a baker or a tailor needs no further investigation to merit its exclusion from a residential neighborhood. Thus the word “bakery” or “tailoring establishment” in the ordinance is enough to make ⁴³³ the exclusion of all bakers and tailors clear.

However, the word “club” covers an extensive