Mayor of Baltimore v. Sapero

Marbury, J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court (Foster, J.) reversing the decision of the Board of Municipal and Zoning Appeals, and permitting the construction of a two-story store and office building in a residential area, E-40 Height and Area District. The lot in question is located at the junction of Fallstaff Road, which runs east and west, and Reisterstown Road, which runs northwest to southeast, at an approximate 45 degree angle. The lot fronts on the north side of Fallstaff, being the last lot on that street, at the intersection.

It is irregular in shape, being 241.42 feet in frontage, 192.49 feet on one side, 145.81 feet on the other, diminishing in the rear to 105 feet, bordering on a 15 foot paved alley. Twelve feet of the frontage abuts on Reisterstown Road, since the north side of the intersection is an arc of a curve. ²⁹⁴ Originally, this lot formed part of a large acreage which has been almost completely improved as' residential property. In 1931, this acreage and the property on both sides of Reisterstown Road were zoned commercial. In 1947, appellees were desirous of developing the land for residential purposes.

Since the Federal Housing Administration would not grant them financial aid due to the commercial zoning, they were instrumental in getting the classification changed to a residential use district. This change included the lot in question except for the twelve feet of frontage that abutted on Reisterstown Road. In the process of developing the acreage, the appellees planned, paved and transferred to the City the street now known as Fallstaff Road, which was not cut through to Reisterstown Road until that time. The lot in question was created in its irregular shape, as well as another lot on the southeastern side of the intersection, by the juncture of the two streets.

It is conceded by all parties that the area along Reisterstown Road has become overwhelmingly commercial, with the construction of large shopping centers in close proximity to the lot in question. Feeling that this particular lot could not be used for residential purposes, on November 2, 1960, appellees filed an application with the building engineer of Baltimore City for a permit to erect a two-story, masonry office and store building. This application was denied and an appeal was noted to the Board of Municipal and Zoning Appeals, asking for a special exception or variance so as to allow them to erect this commercial building in a residential use area. The Board held two hearings, on December 20, 1960, and May 23, 1961.

It denied the application and appellees appealed to the Baltimore City Court. In an oral opinion rendered March 28, 1962, Judge Foster reversed the Board and granted appellees a variance or special exception, basing his decision primarily on the fact that this case was quite similar to that of Frankel v. City of Baltimore, 223 Md. 97 , 162 A. 2d 447 . On this appeal, appellant raises two questions: I, was the decision of the Board, as a fact-finding body, in not granting a variance on the ground of practical difficulties or unnecessary ²⁹⁵ hardship, under §§ 36 (b) or 36 (c) of the Zoning Ordinance No. 711 of Baltimore City, supported by substantial evidence; and II, arguendo, assuming that there was substantial evidence of practical difficulty or unnecessary hardship to^ support the granting of the application, were the applicants entitled to the variance from the zoning restrictions when the situation from which the relief was asked was the result of their own action? At the outset it is necessary to state that in Maryland, although there is a marked distinction between the terms “variance” and “exception,” for practical purposes, in Baltimore City the terms are used interchangeably, without differentiation.

Marino v. City of Baltimore, 215 Md. 206, 216 , 137 A. 2d 198 . I Under Zoning Ordinance No. 711, § 36 (b), the Board of Municipal and Zoning Appeals is authorized to: “grant a permit where the use or change of use of land, buildings or structures proposed to be used is limited as to its location because of the size of buildings, size of yards, irregularity of shape of land or buildings, topography, grade or accessibility.” Section 36 (c) provides that the Board is authorized toe “grant a permit when there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this Article.” Section 35 (g) 3 gives the Board the power to: “authorize upon appeal in specific cases such variance from the terms of this Article as is necessary to avoid arbitrariness and so that the spirit of