Norwood Heights Improvement Ass'n v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. This is an appeal by Norwood Heights Improvement Association, Inc., appellant, from a decision of the Baltimore City Court affirming a resolution of the Board of Municipal and Zoning Appeals approving an application for a permit by the Stulman Building Company, Inc., one of the appellees, (hereinafter known as appellee), to erect ón a 15 acre tract, 10 apartment buildings made up of 34 units containing 168 suites and open parking spaces for 168 cars thereon. The appellee contends that a correct interpretation of Section 135 of the Baltimore City Charter requires an appeal from the Board of Municipal and Zoning Appeals, in a case involving zoning, to be taken to the Baltimore City Court within 20 days, and, as the appeal in this case was not taken within that time, the appeal should be dismissed here. In the case of DeLancey B. Scrivner v. Mayor & City Council of Baltimore and Chesapeake & Potomac Telephone Company, 191 Md. 165 , 60 A. 2d 190 , advanced and heard with the case at bar, in an opinion by Judge Grason, this Court holds that such an appeal having been filed within 30 days is properly before us.

It is unnecessary therefore that we discuss that point in this case. Paragraph 32 (d) of Ordinance No. 1247, provides in part: “If an application is disapproved by the Board of Zoning Appeals, thereafter the Board shall take no ¹⁵⁹ further action on another application for substantially the same proposal, on the same premises, until after six (6) months from the date of such last disapproval.” Appellant contends therefore that the Board of Municipal and Zoning Appeals exceeded its authority in approving the application in the instant case, because it is substantially the same proposal as that covered by the application made by Stulman Building Company, appellee, in application in appeal No. 588-47, which application was denied in a former appeal by Judge Niles, in the Superior Court of Baltimore City, within less than six months before the present application was acted upon. It is evident that the pending application is not substantially the same as that previously applied for. The previous application was for apartment buildings for 179 families, 150 parking spaces, and 26 garage buildings.

The apartments consisting of 3%, 4 and 41/2 rooms, made up of 38 units comprised 12 building groups. That application violated the zofiing ordinance because of the garage buildings, and also because 118 families were to be housed in the E-area of the tract on 5.2 acres where only 84 families were permissible. It will be seen that the present application is not substantially the same as that previously denied in the Superior Court of Baltimore City. The plan of the development in this case shows a tract of land, after the area for streets is deducted, of 9.3 acres located partly in E-area and partly in C-area districts, where row houses are prohibited. 80 families are to be housed on the 5.2 acres which constitutes the E-area, which is within the limit under the zoning law. 88 families are to be housed on the 4.1 acres which comprise the C-area, which is well within the limit provided by the zoning ordinance.

The project calls for a garden apartment development. There are 168 open-air off-street parking spaces for the use of tenants. The apartment houses are comprised of groups of two-story units containing varying numbers of apartments. The apartments are of four and five rooms. 34 such units are ¹⁶⁰ grouped into the 10 apartment buildings.

These units are planned to over-lap and connect at the corners, leaving them separate fronts, sides and backs, except for the corner connections, where the foundation walls and roofs are to be continuous, as in the case of Akers v. City of Baltimore, 179 Md. 448 , 20 A. 2d 181 . Each apartment building is heated by a common heating plant from a central boiler. Each group has its own water and sewage pipes and playground facilities. Each unit is to be encompassed by a firewall.

There is a continuous foundation for each group and each group constitutes one building under one roof. The appellee claims that none of the apartment buildings are to be sold separately, nor can any of the units be separated from the apartment group of which they are a part. It claims that no basements are to be put under most of the units, nor places for separate heating and other facilities are provided, and the cost of excavating basements would be costly and difficult. It is contended that the project is to remain as an entity under the ownership and control of the appellee which will manage it, rent out individual apartments, and collect the rents.

The open-air parking spaces and play-ground are for the common use of all tenants and are not to be rented to anyone.