Mayor of Baltimore v. Borinsky

⁶²⁸ Barnes, J., filed the following dissenting opinion. I agree with the Court’s ruling on the appellee’s motion to dismiss the appeal but I cannot agree with the Court’s decision on the merits. In my opinion Judge Sodaro, in his carefully considered opinion in this case, was correct in holding that the case at bar is controlled by our decision in Frankel v. Mayor and City Council of Baltimore, 223 Md. 97 , 162 A. 2d 447 (1960), and that “the factual situation is not merely one of hardship, but of a taking in a constitutional sense.” Indeed, in my opinion, the case at bar is factually a far stronger case to establish an unconstitutional taking than was the factual situation in Prankel. In the Prankel case, the property involved was 5616 Park Heights Avenue, Baltimore, Maryland.

It was located at the southwest corner of Park Heights Avenue at its intersection with Manhattan Avenue. The lot was an irregular one with a frontage of 149.27 feet on Park Heights Avenue tapering from a width at its northern end of 56.2 feet to a width of 92.25 feet at its southern side. It was in a Residential Use, E Area District. The lot had, at one time been used by the Baltimore Transit Company, and at the time of Dr. Frankel’s application in 1958 to construct a two-story and basement professional office building on the property, there was an abandoned bus terminal and waiting station 12 feet by 20 feet, containing plumbing fixtures previously used as a comfort station for employees of the Baltimore Transit Company and as a depository for various vending machines.

To the east of the Frankel property were the Synagogue of the Beth Jacob Congregation (an orthodox Hebrew congregation), located north of Manhattan Avenue, and the Pimlico Junior High School, located south of Manhattan Avenue. To the north of the Frankel property, the Associated Jewish Charities planned to construct a Jewish Community Center with a large parking lot on the northwest corner of Park Heights and Manhattan Avenues. Farther north, the Baltimore Hebrew College had been erected. To erect these new buildings, residential cottages had been demolished.

South of the Junior High School, Northern Parkway had been built. On the south of the Frankel property there were five row houses ⁶²⁹ fronting on Park Heights Avenue so that the side of the adjacent row house was parallel to the south property line of the property. During the 10 to 15 years preceding the filing of Dr. Frankel’s application the neighborhood had gradually changed from a residential cottage-type use to either commercial uses or the institutional uses mentioned. It was contemplated that the structure on the property be razed to permit the erection of the masonry professional office building which would be 100 feet by 40 feet, with two stories and a 25 foot basement.

There were both use and area violations presented by the application and Dr. Frankel applied for an exception or variance under Section 36, subsection (b) and (c) of the Baltimore City Zoning Ordinance. Melvin Goldman, a well qualified real estate expert and a developer of residential property himself, testified for Dr. Frankel. (Mr. Goldman is the same expert who testified for the applicants in the case at bar). His testimony in the Frcmkel case is summarized by Judge Prescott, speaking for the Court, as follows: “After testifying to the changes in the neighborhood, he stated that their combined effect is ‘overwhelming evidence of the tremendous change that has taken place in the neighborhood within recent years.’ “He also testified that due to the changes in the neighborhood, the existence of the commercial, institutional and office uses and the irregularity of the land, it would be highly impractical to attempt to develop this property by the erection of residences thereon, that it could not reasonably be used for residential purposes, and it would be economically unsound for a developer to undertake to erect residences on the property, as it was a very unlikely and unsatisfactory site for dwellings.

He added that any attempt to develop the lot for residential purposes would be ‘sheer economic suicide.’ ” (pages 101-102 of 223 Md.). There was also testimony by a financial advisor to building associations that although an application for financing for residential development of the Frankel property would be consid ⁶³⁰ ered, he did not believe that a mortgage for residential construction would be granted. An architect testified that although it would be possible to erect residences on the Frankel property, “due to the irregularity of the lot and set backs it would not be feasible for residences.” Another well qualified real estate expert, A. Gordon Gilbert, testified that “the property is unsuitable for residential purposes, although it is zoned for residential purposes” and that in his opinion the Frankel property “surrounded by such uses, * * * would not be saleable for residential purposes, if so improved, or if saleable would be sale-able at such a price as to reflect no value in the land.” He testified that he could assign no value to the land for residential purposes. Unlike the case at bar, however, there was a substantial protest from the Synagogue and the neighboring residential property owners (15 of whom appeared and testified at the hearing before the Board against granting the application) and there was substantial testimony ,in the lower court by a real estate expert that two semi-detached houses 16 feet by 31.6 feet, or two cottages, 20 feet by 30 feet, could be built on the subject property and that these would be saleable in the vicinity of $9000 to $11,000 subject to an annual ground rent of approximately $2000.

This same expert testified that residences had within the two-year period prior to the application been erected on Ken Oak Road (less than one block to the southeast of the Frankel property) and sold. The City’s expert also testified that there would be a market for the sale of residences erected on the Frankel property resulting from those members of the Beth Jacob Congregation who because of the tenets of their faith in regard to travel on the Sabbath, wished to live within walking distance of their place of worship. This testimony was accepted by the trial court in Frankel and the action of the Board (unanimous and not divided two to two as in the case .at bar), was affirmed by the trial court. In Frankel , we held that there was an unconstitutional taking of Dr. Frankel’s property because “the uncontrovertible physical facts support the testimony given, and the conclusions reached, by the appellant’s ■experts * * * and clearly show that the present zoning ordinance restricts the use of the Frankel property so that it can ⁶³¹ not, within the sphere of its present zoning classification, be used for any reasonable purpose.

When this occurs, zoning goes beyond permissible and legal regulation and must yield to the rights of the property owner.” (Page 103 of 223 Md.). In the case at bar, the plat introduced into evidence shows that the subject property is irregular in shape. It is triangular, with a frontage of approximately 115 feet on Quantico Avenue, and it becomes sharply narrower as it runs southerly from Quantico Avenue for a distance of more than 200 feet, until its southern boundary is only 20 feet. It has a far more extreme triangular shape than Dr. Frankel’s property.

It is the only lot on the south side of Quantico Avenue which has frontage on that Avenue. Directly across Quantico Avenue to the north there is a one-story masonry office and warehouse building permitted by the Board under the provisions of Section 14 of the Baltimore City Zoning Ordinance which gives power to the Board to grant a First Commercial Use within 100 feet of an existing First Commercial Use District provided that distance does not cross a street or alley. The applicants in this case applied for substantially the same type of building and use and have used the warehouse building directly across Quantico Avenue to the north as a model for their application. But for the presence of the 15 foot alley which is immediately adjacent to the First Commercial Use District to the west of the subject property, the Board would have power to grant the applicants relief like that granted the applicant across the street.

There is a 10 foot alley to the east of the subject property. The rear yards of the two-story rented dwelling houses (which front on Pimlico Road) run to the east side of this 10 foot alley. As pointed out in the majority opinion, the subject property was purchased by the parents of the applicants in 1925 or 1926 and garages were built in a Residential Use District for the parking of automobiles. They were non-conforming uses when the first comprehensive zoning ordinance was passed in Baltimore City in 1931.

Ten of the original fifty-three garages have been demolished, so that forty-three remain. The remaining garages are in very poor condition and show evidences of vandalism and lack of a productive economic use. The improvements on the properties to the west of the subject property ⁶³² were originally built as residences, but now have commercial uses. Their rear yards adjoin the 15 foot alley to the west of the subject property.

The property at the southeast corner of Park Heights and Quantico Avenues—the rear yard of which adjoins the 15 foot alley—is used as a butcher shop. The basement of the property on the southwest corner of Quantico Avenue and Pimlico Road is used as a butcher shop, fish market and produce market. Its rear yard runs to the 10 foot alley on the east of the subject property. Fortunately there is an informative plat and four excellant photographs in the Appendix which clearly show many of the relevant physical facts in regard to the subject property and the surrounding properties.

Louis Borinsky, one of the owners, testified that after the City permitted automobiles to be parked on the streets during World War II, the use of the garages dropped off 50%. Thereafter automobiles became larger and “now these garages cannot be used for the average modern car because of their size.” He testified that the character of the neighborhood had changed and the people who live in the neighborhood “simply don’t rent garages and couldn’t get their cars in them even if they wanted to. So, it is an impossible situation from all points.” He also testified that the subject property could not be sold or used for residential purposes and that the applicants “have tried from year to year, and simply cannot”; the subject property has been offered for sale, they have “talked to agents on and off through the years and haven’t had any success at all”; and “Nobody is interested in it for residential use whatsoever.” He also testified that 9 or 10 of the garages are rented from time to time for the storage of miscellaneous items such as to a roofing man, “a loner,” who might store roofing materials for a few months, but they “leave all their stuff there and that is the end of them.” There has been considerable vandalism in recent years and the remaining garage buildings in their present condition “offer some damage to the community.” Mr. Borinsky also testified that on the other side of Park Heights Avenue, fronting on Quantico Avenue, there were formerly garages of the same sort and that they were now warehouses, a chicken killing establishment and a used car lot. All of this testimony—and indeed all of the testimony in the case—ds uncontradicted. ⁶³³ As already indicated, Melvin Goldman, the same well qualified real estate expert who testified in the Prankel case, also testified for the applicants in the case at bar.

His testimony is accurately and succinctly summarized by Judge Sodaro in his opinion in the lower court as follows: “This piece of property, if it were offered to me, I, as a developer, simply would not think of developing it * * * my experience, through the years, this property has been offered to developers for residential development * * * as much as ten years ago * * * at that time the market was a little bit different * * * and even at that time, the general character of the neighborhood was such that the average developer, to whom it was offered, rejected it for residential construction. So, the conditions in recent years in the neighborhood have become such that it is my opinion that no sound developer would undertake to develop residences on this tract * * * to build houses there would, in my opinion, just be economically unsound and unwise * * * I am not given to repeating phrases, but if I was asked to use this precise phrase (economical suicide) with this property, I would say that if it were true in the case of the Frankel land, which is located at Park Heights Avenue and Northern Parkway, it would certainly be doubly true in this instance. There is no comparing the two locations * * * primarily, going back to just after the war, the east side of Park Heights Avenue adjoining Quantico Avenue was residential and it was beginning to turn, house by house, to commercial use at that time. Since that time, I believe that all of the property or about all of the property fronting on Park Heights Avenue is in commercial use * * * the warehouse across the street from this property has been erected, and I note the increased use of the property on Pimlico Road, which lies on the east side of Pimlico Road * * * the homeowners have moved away from the neighborhood * * * it has changed from a homeowners neigh ⁶³⁴ borhood to a neighborhood of renters, * * * and the garages themselves have deteriorated to a point where I actually consider them a menace * * * that the City would benefit by their removal and the erection of a substantial warehouse type of building. * * * There is no market that I am aware of for garages, particularly since when the change of the size of the cars * * * I don’t think the present day cars could even maneuver into these garages.’ “Mr. Goldman then stated that the property could not be reasonably used for the construction of residential properties; that it would be economically unsound, and on an unsatisfactory site; that the attempt to develop this lot for residential purposes would be ‘sheer economic suicide’; that financing for the construction of residential dwellings would be most difficult.” Richard M. Hutman, a well-qualified architect, testified that although perhaps 5 row houses could physically be built on the subject property, only 52y2% of the property is usable and he was of the opinion that to build such row houses “would be a very foolish action, and I would never advise a client to develop houses on this property.” He further stated : “The property across the street has been pointed out as a warehouse.

Bounded on the two sides and also the rear is an alley. There is no particular attractive outlook and on the contrary, I would say it is a rather ugly situation. I frankly don’t see any reason why a person would want to build a residential [residence] on this property.” There was no protest from any one at the hearing before the Board. As indicated, all of the testimony was that on behalf of the applicants and all of the testimony was uncqntradicted.

It seems clear to me that Mr. Goldman’s statement that if it would be “economic suicide” to build residences on the Frankel land “it would certainly be doubly true in this instance” is a conservative statement. In the Frankel case the ⁶³⁵ Synagogue, Junior High School and the Jewish Community Center are all compatible uses with a possible residential use. Indeed the trial court .in Brankel approved the testimony of the City’s real estate expert and found as a fact that the presence of the orthodox Synagogue would create a market for residential properties. Residences had actually been recently built and sold on Ken Oak Avenue, less than a full block away from the Frankel property.

The Synagogue, the Junior High School and the Jewish Community Center buildings are all attractive and well-built structures. In the case at bar, however, a prospective residential builder would face a warehouse building to the north, the rear yards of butcher shops to the immediate east and west, the rear yards of other commercial properties to the west and additional rear yards of rented residential properties to the east. The long and acutely triangular property simply cannot be used for residential use or for apartment houses, synagogues, churches or any other use now permitted by the existing zoning restrictions. In my opinion, the “uncontrovertible physical facts” support the uncontradicted testimony and compel this conclusion.

To hold otherwise seems to me to lose touch with economic reality. For the constitutional guarantee against the taking of private property for public use without just compensation to be effective, it must be applied firmly on the earth and not in the clouds. As Judge Collins, for the Court, so aptly pointed out in Hoffman v. City of Baltimore, 197 Md. 294, 306 , 79 A. 2d 367 (1951) : “* * * the duty of the courts not to substitute their judgment for the judgment of legislative or administrative authorities acting within their powers is no more imperative than the power and duty to set aside any purported exercise of such power which is in fact arbitrary, capricious or confiscatory. In this respect zoning can no more escape judicial review than any other purported exercise of the police power.” It may be added that the issue of an unconstitutional taking may be raised and considered by the Baltimore City Court upon an appeal from the Board denying a special exception, although generally the issue is raised and decided in an equity ⁶³⁶ suit in which the application of the zoning ordinance to the particular piece of property is directly challenged.

Hoffman v. City of Baltimore, supra, (see page 305 of 197 Md.). The majority seeks to distinguish the case at bar from the Frankel case on the grounds that there was no showing how much revenue was being derived from the rental of some of the garages, that the price at which the subject property was offered for sale was not stated, that there was no specific unsuccessful attempt to finance the building of houses given and that there was no evidence that the subject property could not be economically used for other permissible purposes such as a small apartment house, church or synagogue. But there was no such proof as this in the Frankel case, for the same good reason as here, that the “uncontrovertible physical facts” make such testimony unnecessary. Any income the applicants may derive from the sporadic and uneconomic use of a few of these deteriorated garages, in my opinion, cannot result in a sufficient return on the subject property to prevent a holding of an unconstitutional taking by the operation of the present zoning restriction on the subject property.

This necessarily limited revenue is not derived from residential uses and even this very limited use may possibly be prohibited by the provisions of Ordinance of the Mayor and City Council of Baltimore, No. 1162, approved April 4, 1962, upon the validity of which and its application to the subject property, however, no opinion is expressed. In my opinion, also, the uncontradicted evidence before the Board and the uncontradictable facts already set forth, made the Board’s action in declining to permit the exception or variance requested, arbitrary, unreasonable and discriminatory, as the questions to be decided were not fairly debatable upon the facts before the Board which required that the application be granted. See Mayor and City Council of Baltimore v. Sapero, 230 Md. 291, 296 , 186 A. 2d 884 (1962) and Offutt v. Board of Zoning Appeals, 204 Md. 551, 562 , 105 A. 2d 219 (1954). I would affirm.

OppEnhEimER, J., delivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 628, infra. The Mayor and City Council of Baltimore (the City) has appealed an order of the Baltimore City Court reversing the action of the Board of Municipal and Zoning Appeals of Baltimore City (the Board) which denied the Appellee’s application to construct an office and warehouse building on her property in a Residential Use District.

I The Appellee has filed a motion to dismiss the City’s appeal ⁶¹⁵ on the grounds that, although the order for appeal was entered on behalf of both the City and the Board, the appeal is, in fact, the appeal of the Board; that the order for appeal to this Court was not approved by the Mayor as provided for by the Baltimore City Charter; and that the City is not properly a party to this cause. When the Appellee filed her Motion of Appeal to the Baltimore City Court from the resolution of the Board, she made both the Board and the City parties defendant. Both the City and the Board, through the office of the City Solicitor, filed an answer to the Appellee’s petition in support of her Order of Appeal. Judgment was made absolute for the Appellee in the Baltimore City Court on November 10, 1964.

On the same day, the Board, by majority action, voted to have its Chairman and Executive Secretary write to the City Solicitor or meet with him to request that an appeal be taken from the order of the Baltimore City Court to this Court. On November 12, 1964, the Chairman of the Board wrote to the City Solicitor giving reasons why, in the opinion of the Board, an appeal “must be taken.” Section 65 of the Baltimore City Charter (1946) states that the City Solicitor is the legal advisor of the City and its several departments, commissions and boards. Section 66 of the Charter provides that no appeal shall be taken except upon written order of the City Solicitor, approved by the Mayor. An Order of Appeal was filed in the Baltimore City Court, signed by the City Solicitor and an Assistant City Solicitor, on November 23, 1964.

As of that date, (admittedly, the letter was actually written on December 9), the Mayor wrote to the City Solicitor approving the entering of this appeal. The Mayor’s letter was not filed in the Baltimore City Court and did not accompany the Record when it was sent to this Court, but was sent directly to the Clerk of this Court and was received by him on December 10, within the 30 day period from the entering of the final judgment in the court below. The City, in the argument before us, conceded that the Board is not a proper party to an appeal which involves its own decision. The Board is an administrative body which has no official interest in the matters which come before it other than to decide them according to the law and the proved facts.

Nuova ⁶¹⁶ Realty Co. v. City of Baltimore, 197 Md. 266, 272 , 78 A. 2d 765 (1951); Zoning Appeals Board v. McKinney, 174 Md. 551, 562 , 199 Atl. 540 (1938). The City, however, is clearly a proper party in these proceedings. The zoning ordinance is an exercise of the City’s police power. Grant v. City of Baltimore, 212 Md. 301, 314 , 129 A. 2d 363 (1957) ; Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 153 , 164 Atl. 220 (1933); Tighe v. Osborne, 150 Md. 452, 456-57 , 133 Atl. 465 (1926).

The City has a legitimate interest in the effectuation of its policies. In Mayor & C. C. of Baltimore v. Shapiro, 187 Md. 623 , 51 A. 2d 273 (1947), we overruled a motion to dismiss an appeal which the City had filed, as here, from an order of the Baltimore City Court reversing an action of the Board. In that case, Judge Henderson, for the Court, referred to the provisions of the Enabling Act, Code Article 66 B, Section 7, which provide for an appeal from any decision of the Board, by any person, officer, board or bureau of the municipality, and said, at 187 Md. 627 , “we cannot say that * * * the City has no legitimate interest in the subject matter or outcome of the litigation, even if such inquiry were open under the unqualified provisions of the statute.” See also Town of Berwyn Heights v. Rogers, 228 Md. 271, 280 , 179 A. 2d 712 (1962). The Appellee' contends that the City should not have been named as a party in the appeal to the lower court from the Board’s decision, and that she should have merely filed a Petition for Review, as the Enabling Act provides.

The City answers that, the Appellee having made it a party, she has no standing now to question her own act. If the City had not been joined as a party defendant, it would have had the right, on petition, in the court below, to be made a party because of its interest. Having been made a party by the Appellee, its right to appeal from the order below is clear. The Appellee further contends that her motion should be granted because, in fact, the City is only appealing on behalf of the Board, which had no right to appeal.

The contention is answered in Mayor & C. C. of Baltimore v. Shapiro, supra. There, it was alleged in the motion to dismiss that the City had simply consented