Moylan v. Board of School Commissioners

Sloan, J., delivered the opinion of the Court. John J. Moylan, Incorporated, owns some property at at the southeast corner of Roland Avenue and Deepdene ³¹⁸ Road in Baltimore, improved by a two-story building, Nos. 5123, 5125, 5127 and 5129, containing three storerooms, with apartments on the second floor. It used the center store-room in connection with a curb gas filling station on Roland Avenue. In the rear and to the east of the gas pumps is a one-story garage, which is not affected by this case.

Thfe curb station had three gasoline tanks. A building, No. 5121 Roland Avenue, owned by one named Jeppi, and now used as a store for the distribution and sale of dairy products, has been acquired by the appellant, and it is proposed to tear down the two-story building on its lot, and the one-story building on No. 5121 and erect a modern automobile service station. The appellant had made an application to the Board of Zoning Appeals, in accordance with the provisions of Ordinance of 1937, No. 318, for the installation of additional tanks at its station, and on January 4, 1941, the application having been approved by the proper departments of the city, and no protests filed, the application was approved. It was stated in the application that the tanks and pumps were to be moved back (north) ten feet from the front or south line of the lot.

The appellant then made an application to remove the buildings which were built flush with the sidewalk, with a frontage of eighty-three feet and to substitute a modern service station with a frontage of forty-six feet and a depth of twenty-six feet. In this building, gasoline will not and cannot be sold. The proposal is to substitute a modern “drive-in” gasoline station for the antiquated, makeshift now in use. The gasoline tanks and pumps will be away from the driveway in the street, and to this extent will eliminate a traffic hazard, by having cars filled with gasoline on private property, instead of on public streets.

When the appellant made its application for the erection of the service station, it was referred, in accordance with Orinance No. 318, to the Fire, Health and Police Departments and approved by all of them, the Police Commissioner saying the proposed construction “will in ³¹⁹ no way interfere with the free movement of traffic in that vicinity.” Notice of the application was given by the Board of Zoning Appeals and the School Board and ten residents protested against the granting of the permit, and after a hearing the Board of Zoning Appeals granted it, and from this decision, the protestants appealed to the City Court, and from the decision of that court, reversing the Board of Zoning Appeals, the applicant, Moylan, Inc., appeals. The district in which this station is located is a First Commercial Use District. The present service station has been in use since the year 1919. It was provided by the Zoning Ordinance of 1923, No. 922, and the amendments thereto, that any business or uses then existing should not be affected or disturbed.

On January 16, 1937, an ordinance was passed regulating the granting of permits for “gasoline filling stations, and/or pumps,” etc., by which the location of any stations was prohibited within 300 feet of a school. Long after the gasoline station was established and after the passage of the ordinance, the Roland Park Public School was erected, the rear portion of which is within 300 feet of the station. The station did not come to the school; the school went to the station. The present buildings are located on the building line on the east side of Roland Avenue; the proposed station will be set back from the building line thirty-three feet.

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