Mayor of Baltimore v. Muller

Barnes, J., delivered the opinion of the Court. The appellees, William F. Muller, Eleanor H. Muller, his wife, and Roland Bounds, executor, as owners of the property-in Baltimore City known as 4623-25 Bowleys Lane, filed an application on November 30, 1964 with the Building Inspection Engineer of Baltimore City, as Zoning Commissioner, for a permit to erect a gasoline filling station. This application was denied by the Zoning Commissioner and on appeal to the Board of Municipal and Zoning Appeals of Baltimore City (the Board), the application was also denied by a vote of two members in favor of granting the application and three opposed to granting it. The Board’s action was, however, reversed by the Baltimore City Court (Cullen, J.) and the appellants, the Mayor and City Council of Baltimore (the City), and Helen Klemm and Spencer Avent, protesting property owners who were permitted to intervene in the Baltimore City Court, duly appealed from the order of that court.

The property 4623-25 Bowleys Lane (the subject property) is located on the southwest side of Bowleys Lane, 160 feet southeast of Roberton Avenue. It is a lot roughly shaped like a parallelogram, with irregular southeasterly and southwesterly sides, the southeasterly boundary of which has a frontage of 149.77 feet on the southwest side of Bowleys Lane. The depth of the lot is 272.94 feet (irregular). Of the 149.77 feet frontage on Bowleys Lane, 104.77 feet are in a First Commercial Use District, the northernmost 45 feet being in a Residential Use, 40 foot Height, D Area District.

The First Commercial Use District appears to extend southwesterly into the subject property for approximately 115 feet. ²⁷² At the time the application was filed the subject property was improved by two frame, two-story single family dwellings, semi-detached, 30 feet by 50 feet, which were to be razed. The improvements are not inhabited and have been vandalized. The property immediately adjoining the subject property on the south and the property directly across Bowleys Lane on the east are in a First Commercial Use District, but are both improved by old houses used as private residences. The house on the property to the south of the subject property is in a rundown condition and is so located that it will either have to be moved back or razed when the planned widening of Bowleys Lane is completed.

There is a small shopping center on the east side of Bowleys Lane to the north of and within 300 feet of the subject property. There are rows of houses on Roberton and Chatford Avenues, the nearest public streets to the north and south, respectively, of the subject property. The representative of the Parkside Improvement Association who appeared in opposition to the application before the Board, stated that these homes are occupied by “young people who have made investments in houses and have young children.” There is a church and parochial school some two and one-half blocks south of the subject property on the east side of Bowleys Lane. The owners of the subject property have entered into a contract to sell the property to the Cities Service Oil Company; the contract is contingent upon the owners obtaining a permit to erect a gasoline filling station on the subject property.

The proposal submitted was to construct an attractive and ■conventional modern gasoline filling and service station with .a one-story masonry and metal service building 58 feet, 8 inches t>y 28 feet; four 4000 gallon underground gasoline tanks, one 550 gallon waste oil tank and one 550 gallon fuel oil tank, also to be placed underground; two pump islands with four pumps ; •one internally lighted doublefaced identification sign, 72 inches in diameter; and, flood lights and poles. The proposed pump island would project to within 15 feet of the front lot line and the proposed identification sign would project to within 6 inches ■of the front lot line. The four 4000 gallon underground tanks -and one of the illuminated poles would be erected in the north-ern portion of the subject property located in a Residential Use District. ²⁷³ The Building Inspection Engineer, as Zoning Commissioner, disapproved the application under the provisions of Ordinance of the City No. 711, approved May 21, 1953, as amended (the Zoning Ordinance) for three reasons: 1) the violation of the use provisions of Sections 9 and 10 of the Zoning Ordinance by the placing of the tanks and pole in the Residential Use District portion of the subject property; 2) the violation of the area or front yard provisions in the location of the pumps and other facilities within the required front yard of approximately 20 feet (the front yard of existing buildings required by Section 28 of the Zoning Ordinance); and 3) the required approval of the Board for the gasoline filling station required by Sections 37, 38 and 39 of the Zoning Ordinance, conferring original jurisdiction upon the Board in regard to filling stations, tanks and pumps. The owners appealed to the Board and the appeal was heard on February 16, 1965.

In accordance with the requirements of Section 38, the application and supporting data were submitted to the Board of Fire Commissioners, the Commissioner of Health and the Department of Transit and Traffic for investigation, recommendation and report in regard to the fire, health and traffic hazards, respectively, involved. These agencies of the City reported that in their opinion none of these hazards existed. The application and supporting data, however, had been referred to the Planning Commission and this Commission recommended that the application be disapproved stating, in part: “We note that this property was the subject of pending Ordinance No. 485 (1964) proposing to rezone the property from the Residential Use District to the First Commercial Use District for the purpose of erecting a gasoline service station. The Board of Municipal and Zoning Appeals and the Planning Commission in their reports to the City Council recommended disapproval of the zoning change as an unwarranted commercial intrusion. “Since the purpose of the subject appeal to your Board for an extension of commercial use is identical to the purpose of the earlier ordinance and no substantial neighborhood change has occurred, it is recommended that the application be denied.” ²⁷⁴ At the hearing before the Board, the owners presented the testimony of well qualified experts indicating that in their opinion, there was a need for the proposed filling station (the nearest one being approximately one mile away), that there would be no hazards from fire, traffic, noise, glare, or disease, that there would be no resulting depreciation in the value of the neighboring property, but, on the contrary, the proposed filling station would be an improvement in the neighborhood; and, that the proposed filling station would not be detrimental to the health, morals or welfare of the community.

The real estate expert testified that in his opinion it would not be economically feasible to construct houses on the subject property. The testimony indicated that the proposed service station would usually be operated from 7:00 or 8:00 A. M. until 9:00 or 10:00 P.M., and in some cases, on Sundays. As already indicated, the Parkside Improvement Association objected to the granting of the application. Its representative stated that the association has 425 members and there are 750 homes in the neighborhood.

He further stated: “They are in opposition to this, based on the fact that they have attempted by forming this organization to uphold the neighborhood that is gradually being picked away and degenerating. Most of these people are young people who have made investments in homes and have young children. They are concerned as to the traffic hazard inasmuch as there is a proposed playground directly in the rear of the proposed station. “And also, there is a church-school within a short distance of the proposed garage. And they are concerned generally as to the safety of the children and to the gradual breakdown of the neighborhood, that has taken a great deal of toil and effort to retain its atmosphere and residential area.” Mrs. Catherine Rule, who resided at 4306 Plainfield Avenue, about 4 or 5 blocks from the subject property, testified that many of the children from Roberton Avenue are students at the parochial school on Bowleys Lane and walk to school.

She ²⁷⁵ also testified in regard to a proposed playground in a triangular tract of land to the rear of the houses on Roberton and Chat-ford Avenues and located immediately to the southwest of the subject property. There were introduced into evidence photographs of portions of the subject property and of Bowleys Lane at and near the subject property as well as photographs showing neighboring properties. Bowleys Lane at the subject property is rather narrow and there are no sidewalks erected on either side. It is to be widened by 15 feet and the plat showing the proposed filling station gives effect to this proposed widening and the building of a sidewalk on the west side of Bowleys Lane- in front of the proposed-filling station.

The appellants have attached as an appendix to their brief a letter dated May 28, 1965 from Joseph J. King, Executive Secretary of the Department of Recreation and Parks to the. Assistant City Solicitor, which reads as follows: “This is in reply to your inquiry concerning a city-owned playground lying to the rear of the houses at Chatford Avenue and Roberton Avenue. This property is owned by the Mayor and City Council of Baltimore, was donated to the City for playground purposes by the Welsh Construction Company in 1958, and has since been used for playground purposes. We intend to continue this use and, currently, we have plans to renovate the playground with new fencing and installation of equipment.

The playground is well within 300 feet of the filling station site on Bowleys Lane which you referred to.” This was not offered into evidence either before the Board or before the lower court. The appellees have filed a motion to expunge this letter from the appendix to the appellant’s brief and this motion will be granted. There is no evidence in the record which indicates that this triangular tract to the southwest of the subject property is a public playground within the-meaning of the provision of Section 37(a) of the Zoning. Ordinance which mandatorily provides that a filling station may not be erected within 300 feet measured in a straight line, to- ²⁷⁶ the nearest boundary line of any public park, public square or public playground.

The 300 foot radius plat prepared by the Board to ascertain the existence of such public parks, squares or playgrounds does not indicate the existence of a public playground within 300 feet of the subject property and the decision of the Board does not find that such a public playground did so exist. The record does indicate, however, that children play on the triangular tract even though, as we have indicated, the record does not show that the tract is a public playground. The primary question in the case is whether the Board in the exercise of its original delegated power by Sections 37, 38 and 39 of the Zoning Ordinance had a reasonable basis upon which to deny the application for the gasoline filling station. - Section 37 provides that “in addition to the regulations and restrictions set forth in the preceding sections certain uses are further limited so that * * * a filling station and/or tanks and/or pumps for the sale at wholesale or retail of inflammable liquids in a use district where permitted by the use regulations * * * may be permitted, only after a public hearing before the Board * * There is a mandatory prohibition of the erection or use of a structure for the sale of gasoline, or other motor fuel within 300 feet of a public park, public square, or public playground or of a building used as a church, orphanage, school, theatre or motion picture theatre or