Mayor of Baltimore v. Princeton Construction Co.

Sybert, J., delivered the opinion of the Court. This case involves two appeals arising out of separate suits brought against the owners of a tract of land on Mayfield Avenue in Baltimore City which has been the subject of protracted litigation and a previous decision by this Court, in Restivo v. Princeton Constr. Co., 223 Md. 516 , 165 A. 2d 766 (1960). In that case it was held that the Baltimore City Zoning Ordinance required every house or lot in a development plan to front on a public street at least thirty feet wide; that the Princeton Construction Company, which originally sought to develop the tract, had violated the Ordinance by fronting eighteen proposed rowhouse lots and dwellings on ¹⁸¹ an interior court or utility right of way, and that therefore the permits granted to Princeton to build were invalid.

After the issuance of the original permits Princeton had constructed foundations for the eighteen proposed homes. After the mandate of this Court in the Restivo case was issued efforts were begun by the Zoning Commissioner to force removal of the foundations. Plowever, in a letter of January 20, 1961, to Princeton, the Building Inspection Engineer (Zoning Commissioner) stated: “As an alternative, you may, of course, file proper plans meeting zoning code requirements and obtain a new permit.” No action was taken by Princeton to remove the foundations, although steps were taken to redesign the project to provide a public street on which to front the houses. As a result of the alleged continuing violation, Baltimore City in May, 1961, fded a bill for a permanent mandatory injunction in Circuit Court No. 2 of Baltimore City asking that court to require Princeton and Vernon M. McPherson, its president, to remove the foundations and restrain the defendants from erecting any further structures on the land.

Neighboring property owners were permitted to intervene as plaintiffs. At the hearing before Circuit Court No. 2 in June, 1961,, there was evidence that Princeton had submitted a new plam for development of the property which had received the tentative approval of the Planning Commission. By the time the decree was handed down in September, 1961, Princeton had removed foundations on five of the lots on the northwesterly side of the property in order to make conformity with the Zoning Ordinance possible in regard to the remaining structures in the new plan. The Chancellor in his decree permanently enjoined Princeton from erecting any building on the five lots, but denied the request for a mandatory injunction to remove the remaining foundations.

The first appeal now before us was taken by the City and neighboring owners from that decree. Prior to that decision the new owner of the property, Vernon W. McPherson, Inc., submitted final subdivision plans, which were given final approval by the Planning Commission ¹⁸² over the protest of neighboring property owners. The new design reduced the number of houses to be built to ten. The right of way had been enlarged on the plan so as to constitute a proposed public street, fifty feet in width with a thirty-four foot paved area, projecting perpendicularly from Mayfield Avenue for approximately 330 feet, and having no terminus on another public street but forming instead a cul-de-sac arrangement.

The proposed structures are to be placed along the southeast side of the newly planned street in two units of five Lomes each. An appeal by neighboring property owners from the action of the Planning Commission in approving these plans was dismissed by the Baltimore City Court, apparently on the ground that the appellants had no standing under Sec. 120 of the City Charter to maintain such an appeal. Thereupon in September, 1961, the Zoning Commissioner granted the permits for the ten homes under the new plan. A negative appeal to the Board of Municipal and Zoning Appeals, taken by the same neighbors, was dismissed by that body, and a further appeal was made to the Baltimore City Court where the decision of the Board was affirmed.

The second appeal now before us was taken by the neighbors from that court’s order. Princeton and Mr. McPherson as appellees in the first case ask that that appeal be dismissed on the ground that the main issue involved, the removal of the existing foundations, has become moot. The contention is based upon the facts that valid permits are now outstanding to construct houses of the same shape, size and design as those partially completed under the prior permits, and that even if the decree in the first case were reversed and the foundations were torn out, the builder could then rebuild exactly the same structures under its present permits. However, the denial of the mandatory injunction in the first case was conditioned on the issuance by the Zoning Commissioner of valid and subsisting permits to continue construction on the property.

In the second appeal, the neighbors allege certain violations of the Zoning Ordinance which, if found, would require us to reverse the trial court’s order affirming the validity of the current permits issued to McPherson. In that event we should have to proceed ¹⁸³ under the first appeal. Therefore, the motion to dismiss the first appeal is denied and we shall proceed to the questions raised in the second appeal. Appellants’ first contention is that the third application (for the current permits) was filed prematurely, in violation of Sec. 35 (d) of the Zoning Ordinance (1958 ed.), which reads in part: “* * * If an application is disapproved by the Board of Municipal and Zoning Appeals, thereafter the Board shall take no further action on another application for substantially the same proposal, on the same premises, until after twelve (12) months from the date of such last disapproval(Emphasis supplied.) The appellants argue that the present plan for the property, for which permits were issued by the Zoning Commissioner on September 11, 1961, and approved by the Zoning Board on October 27, 1961, is substantially the same plan rejected by this Court in the Restivo case.

The mandate in that case was received on January 16, 1961, and the appellants maintain that that date should be determinative as to the limitation set out in the Ordinance. However, even if we should assume that the plan filed with the latest application is “substantially the same proposal” as that filed with the rejected application (which does not appear to be the case), the result contended for would be contrary to the unambiguous wording of the Ordinance quoted above. It is plain from the italicized words that the date of the last disapproval by the Board is the date from which the twelve months run, a fact recognized by the learned trial judge in his opinion. The record shows that the last disapproval by the Board of an application in this matter occurred on May 26, 1959, and hence the Board’s approval of the current permits in October, 1961, did not violate Sec. 35 (d) of the Ordinance.

The appellants next argue that the present plan of the builder contravenes provisions of the Zoning Ordinance in regard to setbacks and facing on a street. They say that Secs. 27 and 28 of the Ordinance are violated in that the depth of ¹⁸⁴ the front yard of at least one of the lots is fifteen feet, whereas the Ordinance would require a 20 foot depth. This conclusion is based upon the premise that the lot in question faces on Mayfield Avenue, a forty-foot street, as was called for in the original plan of the builder. Plowever, the current plan, which an official of the Building Inspection Engineer’s Office testified fell “properly within the existing zoning code,” has as a basic feature the proposed fifty foot public street, instead of the previously contemplated thirty foot utility right of way.

The new street was laid out for the express purpose of bringing the plan within the requirements of the Ordinance, and all of the remaining ten proposed houses will face on it. Since the new street is fifty feet in width between property lines the Ordinance requires only a fifteen foot front yard depth, which is met by the lot in question. Although the Zoning Ordinance is not specific on the point, the policy of the Planning Commission has been that the width of a street, as defined in Sec. 48 (g), encompasses the