Nutter v. Non-Profit Housing

Hammond, J., delivered the opinion of the Court. Various citizens who object to the erection of a fifteen-story apartment house on the northeast corner of St. Paul and Monument Streets in Baltimore appealed to the Baltimore City Court from a decision of the Board of Municipal and Zoning Appeals (the Board), which on March 6, 1962, extended (for the third time) the six months’ period during which the permit for a variance it had originally approved on September 28, 1960, could be obtained and proceeded under. The appellants contended below, as they do here, that under the Baltimore City Zoning Ordinance (the ordinance), codified as Article 40 of the Baltimore City Code of 1950, approval by the Board of a variance or special exception must be availed of within six months, that the Board has no right or power to extend the effective life of its approval of a variance or special exception, which it has previously approved, beyond the six months’ period, and that there is a statutory right of appeal to the Baltimore City Court from an order of the Board purporting to extend the life of a previously granted variance or special exception beyond the six months’ period. These lead to their ultimate contention that the Baltimore City Court erred in its conclusions of law and in dismissing the appeal.

It appears that a civic group, interested in providing nonprofit housing for elderly people under the benefits of a new Federal program, incorporated a company (hereinafter sometimes referred to as “Non-Profit”) to build an apartment house at the northeast corner of St. Paul and Monument Streets ¹⁰ especially designed to make living easier and more practicable ior older citizens. On the first floor will be a lobby, dining room, infirmary and offices. The fourteen upper floors will contain two hundred ten apartments. Section 17A of the ordinance requires off-street parking facilities equal in number to 70% of the number of apartments.

The sponsors of the project felt that because of the location of the property and the age and annual income of the proposed tenants, there would be no need for the statutory number of parking spaces, and their construction would impose practical difficulties and unnecessary hardship which would defeat the project and, consequently, applied for a variance. After a hearing at which no protestants appeared, the Board approved the provision for a basement and sub-basement to house forty-seven cars, a height of 135 feet (3 feet more than authorized by the zoning ordinance), as well as an increase, beyond that usually allowed, in the area of the lot to be covered by the building, and a diminished rear yard. No appeal was taken from the Board’s approval on September 28, 1960, of the application which had sought the variances. After the thirty-day period for appeal had passed, NonProfit proceeded with plans for the financing and construction of the project.

While this was in progress it was informed by the Zoning Enforcement Officer that a building permit for the erection of the apartment house would have to be obtained within six months of the Board’s decision. Non-Profit thereupon applied for, and on March 28, 1961, was granted by the Board, a six months’ extension of the period of its approval of the application. Non-Profit was subjected to further unavoidable delay caused by the processing routines of the Federal Housing Administration and the necessity of obtaining passage of an ordinance by the Mayor and City Council assenting to the construction of parking facilities for more than three automobiles within three hundred feet of a church. The delay was compounded by active, widely-publicized opposition to passage of the ordinance by those who objected to the building of the apartment house at the lower end of Mt.

Vernon Place. Non-Profit found it necessary to apply for further extensions and was granted by the Board two additional six ¹¹ months’ periods in which to obtain a building permit, the first on September 26, 1961, and the second on March 6, 1962, the latter, by its terms, to expire on September 28, 1962. On March 8, 1962, the day after the last extension was written in the records of the Board and almost eighteen months after the Board had approved Non-Profit’s application, the appellants noted an appeal to the Baltimore City Court. They described their appeal as “one from the action of the Board * * * in Appeal No. 407-60 dated March 7, 1962, and the earlier orders of the said Board in the same Appeal purportedly revived thereby.” The petition of appeal was almost entirely an attack on the validity of the grant of the original application and the relief prayed was the enjoining of the Building Inspection Engineer from issuing a building permit and NonProfit from building the structure, and that “the application of the said defendants for permission to build the said apartment house be denied.” Non-Profit and the Mayor and City Council filed motions to dismiss the appeal.

Non-Profit’s motion relied on the claim that the appeal was in fact from the action of the Board in approving the original application on September 28, 1960, and had not been taken within the thirty-day period required by Maryland Rule B4. The Mayor and City Council relied not only on this ground but on the further point that Ordinance No. 1103, approved February 19, 1962, had permitted the construction, erection, conversion or addition “to a building on the northeast corner of St. Paul and Monument Streets” for the storage of more than three motor vehicles therein, that the applicant, under Section 44 of the Zoning Ordinance can apply for any permit, which has been approved theretofore by Ordinance No. 1103 within twelve months from the date of approval of said ordinance and that said ordinance “became part of the application” approved by the Board on September 28, 1960, with amendment on September 26, 1961, of an additional period ending March 28,1962. Judge Foster held that the appeal in fact and actuality was not from the extending of the period of life of the Board’s approval of Non-Profit’s original application from March 6, 1962, to September 28, 1962, but rather from the Board’s action in ¹² ápproving Non-Profit’s application on September 28, 1960, and said: “Here also is the appeal untimely for it was not filed within thirty days of the action which constitutes the gravamen of the appeal.” Judge Foster then took up the contrasting and conflicting contentions of the parties as to the meaning of Sec. 44 of the ordinance. The first part of Sec. 44 provides that “whenever an application for a permit is approved under the provisions of this Article” by the Commissioner, the Board, or any court, “the permit shall be obtained and the privilege granted thereunder shall be exercised by the grantee therein named within twelve months from the date of the final action which made the permit valid” or the privilege and all rights granted shall become null and void.

The final part of Sec. 44 provides that permits obtained by reason of variance or special exception by the Board “shall be exercised by the grantee therein named within six months from the date of the final action which made the permit valid.” 1 The appellants contended before Judge Foster, and contend here, that a reading of Sec. 44 in its entirety makes it clear that the grantee of the privilege of a variance or special exception by the Board must obtain a building permit and exercise the rights conferred by it within six months of the final validating action, be it that of the Board, if there is no appeal to the Baltimore City Court, that of the City Court if there is no appeal to the Court of Appeals, or that of the Court of Appeals if the case goes there. The appellees say that Sec. 44 imposes no time limit on the effective life of decisions of the Board approving variances or special exceptions and that the section’s limitations apply only to the time within which a building permit must be exercised after it has been obtained—that is, that limitations begin to run on the date of the issuance of the permit, not on the date of the Board’s approval of the application. Judge Foster thought it clear “from a reading of the com ¹³ ponents of Section 44 that the position taken by the appellants is most logical and consistent with the evident purpose and intent of the section,” but felt impelled to the contrary since “the Court of Appeals by way of dictum in Mayor & City Council v. Shapiro, 187 Md. 623 , has indicated that the position taken by the respondents is proper.” He felt, to use his words, that the view of this Court was “that the time limitations provided in Section 44 run from the time of issuance of the permit, and not from the date of the Board’s resolution approving the application for the permit.” Judge Foster found, however, that even if Sec. 44 be read as the appellants read it, and as he tended to do, unless constrained otherwise by the Court of Appeals, it did not follow that the Board’s approval of Non-Profit’s original application on September 28, 1960, no longer was in force and effect to authorize the issuance of a building permit. Judge Foster recognized that the Board, as a creature of statute, has no power, right or duty other than those expressly conferred by statute and those necessarily implicitly flowing from authority expressly given.

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