Richmark Realty Co. v. Whittlif

Sybbrt, J., delivered the opinion of the Court. This- appeal questions the validity of a decree of the Circuit Court of Baltimore City which declared void an ordinance of the Mayor and City Council of Baltimore City waiving the prohibition of the zoning law against establishment of a filling station within 300 feet of a public park. Also involved are preliminary questions as to whether the equity court properly assumed jurisdiction in view of the claim that appellees, complainants below, had adequate statutory remedy, and whether the appellees showed sufficient standing or interest to entitle them to maintain this equity proceeding. Under the Baltimore City Zoning Ordinance (1958 ed.) original jurisdiction is delegated by §§ 37-39 to the Board of Municipal and Zoning Appeals to act on applications for filling stations and certain other uses.

Under § 35 (i) filling stations may be permitted only with the approval of at least four of the five members of the Board.. Section 37 provides, among other things, that filling stations may be allowed only after a public hearing before the Board, and then flatly provides that no filling station shall be permitted within 300 feet ²⁷⁷ of any public park, church, school, motion picture theatre or certain other named areas or structures. Section 38 provides that no permit for any of the uses enumerated in § 37, including filling stations, shall be issued until the application shall have been approved by the Board, which shall first require the applicant to post the premises and advertise the application in accordance with Board regulations. The Board is required to submit the application to the Board of Fire Commissioners, the Commissioner of Health and the Traffic Commission (now Department of Transit and Traffic) for investigation and recommendation as to the fire, health and traffic hazards involved.

By § 39, the Board is required to fix a reasonable time for a hearing and to give notice to the parties in interest, to inspect the premises, and to find whether or not the proposed use would menace the public health, safety, security or morals, under several tests or standards there listed. The facts in the case before us are uncomplicated. Rich-mark Realty Company, Inc., defendant below and appellant here, owns the lot of land involved, known as 2900-2910 Harford Road in Baltimore City. Harford Road is an arterial highway extending to downtown Baltimore.

Hillen Road, which ends at Harford Road, forms an acute angle with the latter, and the lot comprises the rather narrow triangular area between the two highways at the intersection. It is directly across Harford Road from Clifton Park, one of the major recreational areas in the city’s park system, and is much less than 300 feet distant from the park’s boundary. The property is within an extensive residential area, a small portion of which, including the lot involved here, was rezoned from Residential Use District to First Commercial Use District in 1956. Filling stations are permitted in First Commercial areas when in compliance with the appropriate provisions of the Zoning Daw.

Since, under § 37, the Board of Municipal and Zoning Appeals has no discretion or authority to grant permission for the erection of a filling station in a First Commercial district when it would be within 300 feet of a public park, Ordinance No. 1896 was introduced in the City Council by request of ²⁷⁸ Richmark and was passed, after two public committee hearings. By its terms the provisions of § 37 “* * * are hereby waived to the extent necessary to permit the erection and use of a building or structure for the sale of gasoline and other motor fuel on the lot or premises located at the northwest corner of Harford Road and Hillen Road, generally known as 2900-2910 Harford Road, such premises being within less than 300 feet, measured in a straight line, from the nearest boundary line of Clifton Park. Except as specifically in this ordinance provided, all other ordinances and regulations of the Mayor and City Council of Baltimore shall be complied with in the erection and use of the building or structure and of the said lot or premises.” The ordinance was approved by the Acting Mayor on April 9, 1959. On the next day Richmark applied to the Building Inspection Engineer for a permit to erect the station and the preliminary plat, attached to the original application, was stamped approved by the Planning Commission, Department of Planning, Bureau of Sewers, Bureau of Surveys, Bureau of Highways, and the Director of Traffic.

It was stipulated that the application was approved and the permit issued by the Building Inspection Engineer, acting as Zoning Commissioner, without being referred to the Board of Municipal and Zoning Appeals under the procedure set forth in §§ 38 and 39 of the zoning law. The appellees are Mr. and Mrs. Charles A. Whittlif, who have owned and resided at 2711 Hugo Avenue for many years. Hugo Avenue, running northwest and southeast, ends at Harford Road (running northeast and southwest) at the same point where Hillen Road does. Hillen Road, running north and south, lies between the other two streets.

The Whittlifs live in a row house on the north side of Hugo Avenue a few doors from Hillen Road, with an alley in the rear which empties into Hillen Road opposite the Richmark property. The record shows that the Whittlif property is 200 feet from the Richmark lot. ²⁷⁹ In her own behalf and as chairman of the zoning committee of the Alameda-Harford Road Neighborhood Association, Mrs. Whittlif appeared before the City Council committee in opposition to Ordinance No. 1896. After passage of the ordinance, she filed the original bill of complaint in this case on April 21, 1959. Subsequently she was informed that gasoline tanks had been placed on the Richmark property and a check of the Building Inspection Engineer’s office disclosed that on April 20, 1959, a permit for the construction of a filling station had been issued by that official, without public notice and without referring the application to the Board of Municipal and Zoning Appeals.

Thereupon the Whittlifs filed an amended bill of complaint against Richmark, the Mayor and City Council and the Building Inspection Engineer asking the equity court to pass a decree ordering the Engineer to cancel and revoke the permit, enjoining Richmark from erecting the filling station, and declaring Ordinance No. 1896 illegal and void. In their amended bill the Whittlifs alleged that they would sustain special damages from construction and operation of the filling station in that the value of their property would be depreciated and they would be subjected to a traffic hazard in going to and from Clifton Park, and to other injuries and damages caused by the filling station. The defendants denied these allegations and countered by claiming that the equity court did not have the right to assume jurisdiction because the Whittlifs had by-passed the statutory remedies afforded them under the Zoning Ordinance, and that the Whittlifs did not show that they would sustain such special damages as entitled them to maintain the equity proceeding. After a full hearing the chancellor filed a comprehensive and well-considered opinion in which he found: (1) That the Whittlifs had standing to bring this action in equity to determine the validity of the ordinance since they had adequately established the element of special damages and under the circumstances of this case were justified in not invoking the normal statutory procedure for appeal from the action of the Building Inspection Engineer, acting as Zoning Commissioner; (2) that Ordinance No. 1896 was discriminatory, ²⁸⁰ arbitrary, illegal, and therefore void; and (3) that the action of the Building Inspection Engineer in granting the permit to Richmark pursuant to the ordinance was in itself invalid since he was powerless to issue such a permit, but should have referred the application to the Board of Municipal and Zoning Appeals as required by § 38 of the Zoning Ordinance.

Accordingly, the chancellor signed a decree declaring the ordinance void and ordering the Zoning Commissioner to cancel and revoke the permit for the filling station. Richmark appealed from the decree. We turn now to the contention of Richmark that this equity action should not have been entertained by the court because the Whittlifs had an adequate statutory remedy. The reasoning is that the Zoning Ordinance itself provides that any person aggrieved may appeal a decision of the Zoning Commissioner to the Board of Municipal and Zoning Appeals, and, from an adverse ruling of that body, to the Baltimore City Court, and that, since the Whittlifs did not pursue these remedies afforded them under the Zoning Ordinance, they are precluded from proceeding in equity.

In Schneider v. Pullen, 198 Md. 64, 68-69 , 81 A. 2d 226 (1951), this Court said: “* * * We have consistently held that where a special form of remedy is provided, the litigant must adopt that form and must not by-pass the administrative body or official, by pursuing other remedies. We have, however, been careful to point out that where constitutional questions are involved, the litigant has the right to raise them in a court of equity, and such court has the right to consider them. That is true whether the question is raised in an ordinary suit for injunction, or in a bill for a declaratory decree. Kahl v. Cons.

Gas Co., 191 Md. 249, 258 , 60 A. 2d 754 . Commissioners of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333 , 64 A. 2d 151 . Francis v. MacGill, 196 Md. 77 , 75 A. 2d 91 . Kracke v. Weinberg, 197 Md. 339 , 79 A. 2d 387 . * * *” ²⁸¹ Though it has been held that the constitutionality of a rezoning ordinance may be attacked in statutory zoning review proceedings, Ellicott v. City of Baltimore, 180 Md. 176 , 23 A. 2d 649 (1942); Baltimore v. Seabolt, 210 Md. 199 , 123 A. 2d 207 (1956), the jurisdiction of equity is not ousted where, as in the instant case, the primary attack is on the validity of the challenged ordinance.

Equity has jurisdiction of a suit brought by a party having a sufficient interest to determine whether an ordinance contravenes constitutional limitations. If the ordinance does transcend constitutional limitations, equity may grant both injunctive and declaratory relief. Cassel v. City of Baltimore, 195 Md. 348 , 73 A. 2d 486