R. B. Construction Co. v. Jackson

Urner, J., delivered the opinion of the Court. The appellant is the owner of a lot of ground fronting about three hundred and twenty-four feet on Granada Avenue in the City of Baltimore, and desires to erect on the lot sixteen two-story dwelling houses in a continuous row. The proposed dwellings would each have a width of approximately twenty feet, would stand forty-five feet back of the street line, and would have yards in the rear about sixty feet in depth. Permission to> erect the row of buildings was refused by the inspector of buildings of the city because the lot is located in a district within which the erection of solid rows of houses is prohibited by certain provisions of the city’s Zoning Ordinance.

A petition was then filed in the Baltimore City Court by the appellant for a mandamus to compel the issuance, by the mayor and inspector of buildings, of a permit for the construction of the projected row of dwellings. The answer to the petition averred that the lot in question is included in an E area district designated in the Zoning Ordinance, which contains the following provision: “In an IE’ area district there shall be reserved on each lot at least one side yard not less than ten feet wide, except in cases where, because of the size and/or shape of any lot or tract, such requirement cannot be complied with or would render such lot or tract unfit for use, and in such cases the board of zoning appeals may ⁶⁷³ reduce the requirement as it may deem reasonable and proper.” As explained in the answer, it was- because the appellant’s plans did not provide for the side yards required by the. provision just quoted that the permit applied for was refused. The effect of such a provision, as applicable to the prescribed zone areas, is said by the answer to he promotive of the public safety, health, and morals, by preventing an increase in the density of population and thereby reducing fire and traffic hazards, avoiding undue burden upon sewerage, transportation, and other public facilities, and improving, with reference to light and air, and in other respects, the living conditions of the people. A demurrer to the answer was overruled and, the petitioner having declined to plead further, a judgment was entered for the defendants.

The appeal is. from that judgment. The Zoning Ordinance of Baltimore was enacted, as it recites, for the purpose of establishing “a general zone plan which will insure a fair and adequate division of light and air among buildings, protect the residence districts, prevent congestion, lessen the fire hazard, increase industrial and commercial efficiency, conserve property values, and direct the building of the city in accordance with a comprehensive plan for the use and development of all parts of the city.” Three systems of zoning were created by the ordinance. One was made the basis of regulations as to- the uses- of property. Another was designed to serve the purposes of provisions as to the height of buildings thereafter erected.

The third, which is the one involved in this proceeding, is intended to- be applied in the regulation of future building construction with respect to the lot -area to he occupied. There are six series of area districts, designated as A, B, C, D, E, and E, into which the -ordinance divides the- territory within the city’s boundaries. The proportion of the individual lot area allowed to be covered by subsequently erected buildings ranges from seventy per cent, for interior lots and eighty-five per cent, for comer lots in A area districts, to twenty-five- or ⁶⁷⁴ thirty per cent, in F areas. In the E areas thirty or forty per cent, of a lot may be covered by a building.

Eo side yards are prescribed except in the E and F areas, which are located in the outlying sections of the city, as shown by the map used at the argument. A large part of the undeveloped land within the city limits appears to' be included in the E area districts. The map shows that the E areas form a zone which completely encircles the city except as to a part of its water front. One of the most important purposes of the Zoning Ordinance is to regulate building expansion of the city over the open area available for its development.

The question is whether, in aid of such a purpose, the city could validly impose the building restriction of which the appellant complains. It is clear that such a limitation cannot be placed upon the exercise of the property owner’s rights except for the protection or promotion of some public interest which justifies the exercise of the police power. In regard to any purpose within the proper scope of that power, the City of Baltimore has been invested with the full measure of the authority which the State itself could exert. Charter of Baltimore, art. 1, sec. 18.

Rossberg v. State, 111 Md. 394 ; Osborne v. Grauel, 136 Md. 88 . It is not essential to a decision sustaining the ordinance, as to its ’area provisions, that its necessity as a police measure shall be clearly demonstrated. Unless it can properly be held to have no reasonable tendency to serve any legitimate purpose of the police power, we cannot rightfully declare it void. Ches. & Pot.

Tel. Co. v. Board of Forestry, 125 Md. 666 ; Cochran v. Preston, 108 Md. 220 ; State v. Hyman, 98 Md. 596 . In this case there is a conflict between a private property right and the desire of a great city to regulate its own growth. The property right should be protected against any unwarranted invasion, but it should not be permitted to defeat legislation enacted by the city within the limits of its police power for the general benefit of its inhabitants.

The evident design of the provision for side yards in the outlying zone areas was to prevent the indefinite extension of the city in compact ⁶⁷⁵ 'building formation. It was considered necessary from the standpoint of the public welfare that there should be some relief in the suburbs from the congested conditions existing in the sections of the city which have become densely populated. There could be no assurance of such an advantage to the people of the city if its building expansion must be continuously subject to the unregulated control of private individuals. In providing a comprehensive plan for the future growth of the city, the Zoning Ordinance presumably reflects the collective desire and judgment of the people of Baltimore with respect to that important public interest.

The effort of the city to apply the limited measure of control specified in the ordinance, in regard to building areas, should be judicially sustained, if it bears a perceptible relation to any community interest for which the police power, delegated by the state to the city, can properly he invoked. In the case of Goldman v. Crowther, 147 Md. 282 , in which the provisions of the Baltimore Zoning Ordinance in reference to the use of property were held to be invalid, the decision reserved the question as to the constitutionality of the height and area provisions of the ordinance. Since that case was decided, the Supreme Court of the United States, in sustaining the general validity of the use, height, and area provisions of a zoning ordinance of the village of Euclid, in the State of Ohio, said, in the course of the opinion delivered by Mr. Justice Sutherland in Euclid v. Ambler Realty Co., 272 U. S. 365: “There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must he left open, in order to minimize the danger of fire or collapse, the evils of overcrowding, and the like. * * The provisions of the Euclid ordinance in regard to building areas are analogous to those which are resisted in the present case. It was said by the Supreme Court in the Euclid case, that the question to he decided as to the Adalid ity of the ordinance was the same under both the Ohio and ⁶⁷⁶ federal constitutions, and consisted of the inquiry whether the ordinance violated the constitutional protection to the right of property “by attempted regulations under the guise of the police power, which are unreasonable and confiscatory.” In its discussion of that question the Supreme Court said, in part: “Building zone laws are of modern origin.

They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity pf which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles, and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.

And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But, although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.” “The ordinance now under review and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegiti ⁶⁷⁷ mate assumption of power is not capable of precise delimitation.

It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. * * ** If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must bo allowed to control. Radice v. New York, 264 U. S. 292, 294 .” The ordinance provision specially considered in this case does not prevent the use of the appellant’s land for the residence purposes to which it is adapted and proposed to be used, but merely requires that a space for a side yard ten feet wide be reserved on each lot, if its size and shape admit of such a reservation without impairment of its proper utility. In view of the general and systematic application of the provision to future building development in the environs of Baltimore City, there is certainly no element of arbitrary discrimination or unreasonable classification involved.

The observance of the house construction plan adopted by the ordinance would secure and preserve to the city an extensive suburban zone in which the homes needed for its future increase of population would be separated by open spaces enabling their occupants to enjoy improved ventilation and abundant sunlight. There can be no question as to the additional pleasure and comfort which would be thus afforded to those living in the zone of houses separated by the areas for which the ordinance provides, and the relation of such a general plan of municipal development to the public health and safety can be readily perceived. The separation of buildings has an obvious tendency to reduce fire hazards, and a freer admission of air and sunlight to the homes of the city is plainly conducive to the health of its people. In considering the area provisions of a zoning ordinance, in Wulfsohn v. Burden, 241 N. Y. 303 , the Court of Appeals of Yew York said: “The open spaces not only tend to minimize the dangers of fire to adjoining buildings and thus a spreading conflagration, but they also afford a greater ⁶⁷⁸ opportunity for access by fire departments to a burning building and thus increase the possibility of successfully stopping’ a conflagration before it spreads to other buildings.” The Supreme Court of Ohio, in Pritz v. Messer, 112 Ohio St. 644, said: “If a law regulating the air space which must be allowed in a tenement house has a reasonable relation to health, we cannot say that a measure which will save considerable districts for the city in which the air space is unblocked by massed building construction has no reasonable relation to health.” The fact that it is not feasible to make similar provisions for the central portions of the city cannot be successfully urged by the appellant as a reason why the health and safety of the suburban population should not be promoted.

The entire city is concerned in the reduction of fire hazards and the protection of health in its suburbs. In the case of Byrne v. Maryland Realty Co., 129 Md. 202 , upon which the appellant places special reliance, a statute requiring open areas to be reserved between dwellings in a comparatively small section of Baltimore was held to be unconstitutional. The opinion referred to surrounding conditions which made it apparent that the area requirement was not intended to protect the public health or safety. No question was presented and decided in that case as to the power of the city to regulate its development under reasonable area provisions of general application.

There is consequently a material distinction between the Byrne case and the one now in course of decision. In our opinion the area provision affecting this case is within the scope of the police power which the municipal government of Baltimore is entitled to exercise. The contention is made that the ordinance is rendered invalid by its provision authorizing the board of zoning appeals to vary or modify any of its regulations, where there are practical difficulties or unnecessary hardships in the way of its strict enforcement, the expressed purpose being, however, that the spirit of the ordinance shall be observed. This ⁶⁷⁹ is said to be an unconstitutional delegation of unlimited discretion.

In Goldman v. Crowther, supra, while such an objection to the delegation of the power in question was sustained so far as the use provisions of the ordinance were concerned, the Court refrained from holding that the objection was available with respect to the height and area restrictions, but it was said in the opinion, delivered by Judge Oifutt: “It does not necessarily follow that, because the standards and rules provided to control the exercise of the discretion vested in the board in passing upon the uses of property are too indefinite, that they are insufficient to limit and control that discretion when applied to the location and construction of buildings. For in the one case, the subject of the discretion is intangible, impalpable, and aesthetic, while in the other it is material and substantial, and its physical incidents and consequences are capable of being positively and definitely ascertained.” The power of modification which the ordinance confers upon the board of zoning appeals in regard to the provision for side yards is to vary the dimensions of the specified areas only so far as may be necessary because of practical difficulties or unnecessary hardships. The discretion thus reposed in the board was manifestly intended to be exercised for the benefit of the property owner. It is a limited discretion and is plainly essential to the practical application of the plan prescribed.

There is no invalidity in such a delegation of administrative authority. This conclusion is amply supported by the recent decision in Tighe v. Osborne, 150 Md. 452 , and by cases therein cited. Judgment affirmed, with costs. Offutt, J., filed a dissenting opinion as follows: It is with some reluctance that I feel constrained to dissent from the very able and brilliant opinion filed by Judge Timer for the majority of the court in this- case’, but since- it ⁶⁸⁰ presents and promulgates a construction of certain guaranties found in the constitution of this state,- fundamentally different from that heretofore given them by this Court, and different from that which I believe to be sound, I can do no less.

It may be said too that this memorandum is filed in no spirit of ci'iticism, for no one could hold in higher esteem the learning, the -ability, and the high purpose of the members of this Court who adopted the majority opinion than I do, but is filed solely as an exposition of the reasons that induced the dissent. The decision in the case immediately befox'e the Court, compared with the theory upon which it is decided, the principles of constitutional construction which it establishes, and the easy way in which, as it appears to- me, it sets aside prior decisions of this Court, is of little relative importance. It only declares the rights of a single person, but if its reasoning is to be accepted as the law of this state, then the rights, privileges, and immunities of every citizen of the state, in so far as they rest for protection upon the Constitution of the state, are profoundly affected. The real question presented by the appeal is the constitutionality of the “area” provisions of certain ordinances of Baltimore City, collectively constituting what is known as the Zoning Ordinance.

The majority opinion refers to that ordinance in very broad and general terms, but to understand the precise force and meaning of the opinion, it is necessary to refer more specifically to- those parts of the ordinance which the opinion approves as valid and constitutional legislation. But before doing that reference may also be made to its purpose as declared in its preamble as evidence of the extent of the “police” power which the municipality undertook through it to exercise. In that preamble it is said: “Whereas it is deemed necessary in order to protect and promote the prrblic health, safety, comfort, convenience, prosperity and general welfare, to establish -a general zone plan which will insure a fair and adequate division of light and air among buildings, protect the residence districts, prevent congestion, lessen the ⁶⁸¹ fire hazard, increase industrial and commercial efficiency, conserve property values and direct the building of the city in accord with a comprehensive plan for the use and development of all parts of the city; “Now, therefore, be it ordained by the Mayor and City Council of Baltimore.” In pursuance of that purpose the ordinance “zones” the City of Baltimore with reference to the use, height, and area of all buildings to be erected therein. Although the terms “zone” and “zoning” are used, in fact, as indicated by certain plats integrated with the ordinance, it does not contemplate zoning in the literary sense of that word, but blocks, off the city into a number of separated wholly distinct areas, irregular in size and shape., having no apparent or necessary relation to any general plan or scheme of development at all.

It divides the entire city into six area districts, A, B, O. I), E, and E. In A area district, no dwelling “other than a hotel” may occupy morn than seventy per cent, of the area of an interior lot, nor more than eighty-five per cent, of the area of a comer lot, and behind every building “except a hotel” there must be a yard as wide as the. building, and one-third of its heighth in depth, and no side yard is necessary. In B area district, “no dwelling other than a hotel shall hereafter be erected or altered to accommodate or make provision for more than eighty families on any acre of land, nor more than a proportional number of families on a fractional part of any acre of land,” and in that area, in all blocks where ninety per cent, or more of the frontage of blocks between intersecting streets, “but excluding the frontage along the side line of a corner lot, is now improved with buildings for which front yards are provided, the depth of front yards of the buildings now existing shall bo the depth of front yards required for future buildings.” In 0 area,, no building used “in any part” for residence purposes, “other than a hotel,” shall occupy more than sixty per cent, of an interior or more than seventy-five per cent, of a corner lot. In this area “multiple dwellings, are allowed,” but no dwelling shall be constructed excepting hotels which ⁶⁸² will accommodate more than eighty families to the acre, and all buildings must have front yards varying in their dimensions according to the width of the street, or the prevailing dimensions of the lots in the block in which the building is to be located. Where fifty per cent, of the frontage in a given block is improved by buildings having front yards, the depth of such yards shall be the standard.

But where not more than twenty per cent, of the frontage is improved by buildings having no front yards, the front yards of buildings to be erected shall be twenty per cent, of the depth of lots on that frontage in depth, not necessarily exceeding thirty feet. * In D area district, no building must occupy more than fifty per cent, of the area of an interior lot or more than sixty-five per cent, of a corner lot. Multiple dwellings must have a minimum space of five feet along their side lines, no dwelling shall be erected to accommodate more than forty families to the acre, and front yards in that.area must conform to the requirements prescribed for 0 area district. In E area, “no building hereafter erected shall occupy more than thirty per cent, of the area of an interior lot, nor more than forty per cent, of the area of a corner lot” and “in the E area district there shall be reserved on each lot at least one side yard not less than ten feet wide, except in cases where, because of the size and/or shape of any lot or tract, such requirement cannot be complied with or would render such lot or tract unfit for use, and in such cases the board of zoning appeals may reduce the requirement as it may deem reasonable and proper.” USTo buildings to accommodate more than sixteen families to the acre shall be built; the front yards of houses on lots of one hundred feet fronting on fifty-foot streets shall be twenty-five feet deep, and as the street becomes wider the depth of the yard decreases in the ratio of one foot to five, and where the average depth of the lots is between one hundred and one hundred and twenty-five feet, the front yards must be thirty feet deep, and where they are over one hundred and twenty-five feet deep, the front yards ⁶⁸³ must "be thirty-five feet. In other cases, the front yards must conform to the requirement provided for area C. In F area “district, no building hereafter erected shall occupy more than twenty-five per cent, of the area of an interior lot nor more than thirty per cent, of the area of a corner lot,” and in a residence district on a lot occupied by a semi-detached dwelling there shall be at least one side yard not less than fifteen feet wide, and on a lot occupied by a detached dwelling there shall be two side yards, each of which shall be not less than ten feet wide.

No more than six families may be housed on an acre, rear yards are to be more than forty per cent, greater than in A area, semidetached dwellings shall have side yards not less than fifteen feet wide, detached dwellings shall have two side yards each not less than ten feet wide, and front yards must conform to the requirements provided for E area. In respect to C area, the board of zoning appeals may “authorize the construction of a building on such parcel of land with the required depth of front yard reduced to an extent necessary to secure an appropriate improvement thereof.” In G and D areas, unenclosed porches may project not more than five feet into the front yard, but in E and F areas they may project ten feet. Where there are practical difficulties or