Shapiro v. Mayor of Baltimore

Hammond, J., delivered the opinion of the Court. Things are not always what they seem say the appellants, referring to their contention that the zoning authorities of Baltimore, sustained by the Baltimore City Court on appeal, when they approved the erection of three hundred twenty apartment units as a garden type apartment project were led astray because the two-story house-like structures (living and dining facilities on the first floor and sleeping quarters on the second) to be erected in batteries of fourteen around central parking areas, were in fact no more than row houses, prohibited in the area. They argue further that even if the dwelling units are not row houses, the fact that they are heated by individual units, rather than by central heating, bars them from compliance with the requirement of the zoning ordinance that garden type apartments have “central heating.” The apartments are planned to cover some fifteen per cent of a tract of land having a gross area of over twenty-one acres and a net area, exclusive of streets and ways, of just over twenty acres. The tract is bounded on two sides by Leakin Park and is near Forest Park Avenue south of Windsor Mill Road.

The area is zoned F-40 which permits a density of sixteen families to the acre only, and so forbids row houses. The Sponsor, Relocation Housing Corporation (Relocation), an appellee, is a non-profit, non-stock corporation of Maryland, formed pursuant to the provisions of Title 1 of the Federal Housing Act of 1961 (designed to assist private enterprise in ²⁰² providing housing for low and moderate income families, especially those displaced from urban renewal areas or by other governmental action). The Housing Act provides for long term, non-prepayable mortgage loans up to 98% of the cost of a project, the loan to be made by a private agency and purchased by the Federal National Mortgage Association, with a net interest cost to the Sponsor of but 3Y%°/o. This low interest cost permits a one bedroom apartment to bear a rental of about thirty dollars a month less than conventional financing would allow, with similarly lower rents for two and three-bedroom units.

The Federal Housing Authority required the Sponsor to execute a Regulatory Agreement under which it must accumulate a reserve fund of $1,000 a month from rentals for maintenance of the apartments and the surrounding grounds and replacement of equipment. The Sponsor must maintain all ways and parking areas, remove snow, collect and dispose of trash, maintain lawns, install and maintain landscaping, repaint and redecorate apartments, replace refrigerators, screens, gas ranges and heating and air conditioning units, and make all repairs. Each apartment has its own heating and air conditioning unit supplied with fuel from a central system, but water is supplied to all apartments by the Sponsor—there are seven meters for the 320 apartments—and sewage disposal is by a common system. The Sponsor must retain ownership of the project.

It pays all taxes and carries insurance of various kinds on the project as a whole. The apartments, each of which has its own ground-level front and rear doors, cannot be separately disposed of or owned. The third bedroom of each three-bedroom apartment lies over the kitchen of an adjoining one bedroom apartment. There is a central laundry room.

No individual clothes washing equipment is allowed. The Zoning Commissioner granted Relocation authority to proceed under Sec. 25-N of the Baltimore City Zoning Ordinance (Art. 40 of Baltimore City Code of 1950), permitting, in certain areas where they would not otherwise be permitted, “Apartment houses designed and erected as a project with singleness of use and operation and with central heating and other facilities commonly known as garden type apartments,” ²⁰³ under specified conditions and restrictions. Protesting neighbors appealed to the Board of Municipal and Zoning Appeals (the Board). The Chairman of the Board proposed a resolution upholding the action of the Commissioner in granting the permit for the project.

Three of the five members of the Board, feeling that the project did not qualify as garden type apartments, voted against the resolution and the other two voted for it. Because the Board has interpreted the Baltimore Zoning Ordinance to require the concurring vote of four members to override action of the Commissioner, the Chairman determined and ruled that the resolution to approve the permit was carried. The protesting neighbors argued to Judge Oppenheimer on appeal that the majority vote against the resolution was sufficient to reverse the Commissioner. Judge Oppenheimer held it was not necessary to decide the point because whether the magic number was four or three, the single question before the court was one of law—the construction of Sec. 25-N of the Zoning Ordinance.

Here the appellants make the preliminary contention that if they are right in their view that the vote of four members is not a prerequisite to reversal of the Commissioner and a simple majority suffices, there was no issue before the lower court on appeal because neither of the appellees—the Mayor and City Council and Relocation—brought the merits to the City Court, and their appeal did not. In the alternative they argue that if it be held that the three to two vote of the Board did reverse the Commissioner and the merits are before the Court, great weight should be given to the expertise of the Board in deciding the real issue. Section 35 (g) of the Zoning Ordinance of Baltimore, conforming to the requirements of the Statewide Enabling Act, Code (1957), Art. 66B, Sec. 7 (g), provides that the Board shall have the power (1) to decide appeals alleging error in any determination of the Zoning Commissioner made “in the enforcement of this Article”; (2) to decide special exceptions on which the Board is required to pass; (3) to authorize upon appeal in specific cases certain variances. Section 35 (h) ²⁰⁴ provides that in exercising these powers the Board may affirm or reverse, in whole or in part, and may make such determination as ought to be made “and, to that end, shall have all the powers conferred upon the Zoning Commissioner by this Article.” Section 35 (i) says: “The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Commissioner, or to decide in favor of the applicant on any matter upon which it is required to pass under this Article, or to effect any variation in this Article.” The appellants argue that the Zoning Commissioner has two kinds of duties under the Zoning Ordinance — (a) that of passing on applications for permits, that is, the reviewings of plans and proposals to determine their compliance with the ordinance, and (b) the enforcement of the ordinance when violations thereof actually have occurred.

They say that since —as they read the ordinance—the appeal provisions do not spell out any particular vote as required for the Board on appeal from the Commissioner’s action in passing on applications for permits, a simple majority vote in such cases will suffice and control. Only in case of action by the Commissioner in regard to existing violations, they contend, is a vote of four members required to overrule. We think the meaning of the ordinance is plainly to the contrary. Section 35 (h) says that in exercising the powers on appeal given by Sec. 35 (g), that is, in deciding appeals from any determination by the Commissioner “in the enforcement” of the ordinance, in deciding on special exceptions and in authorizing variances, the Board shall have “all the powers conferred upon the Zoning Commissioner” by the ordinance.

Subsection (i) in terms specifies that the concurring vote of four members of the Board is necessary to reverse (a) “any order, requirement, decision or determination of the Commissioner”; (b) to decide in favor of an applicant on any matter upon which it is required to pass under the ordinance; or (c) ²⁰⁵ to affect any variation in the ordinance. As we see it, action which the Commissioner takes as to the granting of a permit is within the comprehension and coverage of the phrase “any order, requirement, decision or determination of the Commissioner” as used in Sec. 35 (i). (Emphasis supplied.) This view is reinforced by the provisions of Sec. 34 of the ordinance. That section is headed “Enforcement” and provides that the Commissioner—“head of the Bureau of Building Inspection”—shall not issue any permit for the construction of any building “unless the plans, specifications and intended use of such building * * * conform in all respects to the provisions of this Article.” It further provides that if any building or structure is erected or constructed or used “in violation of this ordinance,” the Commissioner “in addition to other remedies” may institute any appropriate action or proceedings to prevent, restrain or abate such violation.

The section then continues that “if an application does not conform to the provisions of this ordinance, it shall be disapproved by the Zoning Commissioner.” The ordinance makes it apparent that it considers enforcement of its provisions and requirements by the Commissioner to include the passing on proposed structures and uses as well as the abatement and restraint of existing violations. Therefore, when Sec. 35 (i) says the concurring vote of four members of the Board is required to reverse any action of the Commissioner, it includes his action on an application for approval of a proposed structure or use. On the merits of the case we agree with Judge Oppenheimer that the decisive question is one of law and that the project proposed by Relocation met the standards of Sec. 25-N and properly was approved by the Commissioner as a garden type apartment project and with his view that the reference in Sec. 25-N to central heating was a description of such structures as they existed at the time of the passage of the section, rather than a prerequisite necessary before a project could qualify as garden type apartments. We adopt his opinion on the points as follows: “In the consideration of the legal issues presented, it is ²⁰⁶ immaterial that the Developer is a non-profit company formed to carry out a national policy.

The social and economic purposes for whose effectuation the Housing Act was enacted cannot control the interpretation of Baltimore’s zoning law. New projects, whatever their genesis, can only be built in areas in which the contemplated structure does not conflict with the duly enacted provisions of local authority. Correlatively, it is beyond the province of the Court to consider whether a provision of the zoning law is wise or unwise, or whether the concepts of zoning which the law embodies are sound. “Under Baltimore’s zoning law, apartment houses can be erected in any residential area without any special permit or the granting of any exception if they do not violate the provisions as to density of population or height. The project of the Developer, insofar as density and height are concerned, is within the zoning requirements.

Other provisions of the zoning law, however, would bar the structure, unless it is permitted under 25-N. Whether the project comes within this section, or whether, as the Appellants contend, it violates the section because it is in essence row housing, and because it does not contain central heating, requires consideration, not only of the terms of the law but also of its history. “The nature of garden-type apartments has been considered in three opinions of the Court of Appeals, two of which preceded the enactment of 25-N. In Akers v. Mayor & City Council of Baltimore, 179 Md. 448 (1941), an application was made to the Building Engineer for a permit to construct six apartment houses, or groups of houses, on separate lots. There were to be 27 buildings containing over 100 families, in an E residential area. At that time, because of the requirements of the Zoning Code with respect to side and rear yards and other matters, the structures could not be erected without a special exception under what was then Paragraph 29 (c) but is now 32 (c) of the zoning law. The Building Engineer refused the permit but the Board of Zoning Appeals reversed.

The Baltimore City Court affirmed the Board and the Court of Appeals affirmed the order of the lower Court. Chief Judge Bond, in delivering the opinion of the Court, referred to the ²⁰⁷ permits for the construction of six apartment houses or groups of houses, two stories in height, ‘with the appearance of so many individual dwellings,’ with each unit containing four apartments. He stated that the question was whether ‘each structure of the several units combined is to be taken as a single building or as a group of buildings, so that the project is to be considered as one for the erection of twenty-seven buildings.’ The Court held that each structure was to be taken as a single building. In its opinion, the Court stated that the proposal was to erect ‘what are called garden type of apartments.’ The Court said, at pages 451, 452: ‘The ordinance does not deal with this type of apartment house specifically, and the arguments have pointed out resemblance to types some of which are permitted in such a district and some are not.

It has some resemblance to the more familiar apartment house with several entries, the possession of which does not render the structure a violation of the ordinance. On the other hand it has resemblances to a connected row of houses, which would be restricted to other districts. The owner of houses built together in a row would hardly contend that they complied with the requirements in an E area if they had the requisite side yards only at the ends of the row. ‘If these structural resemblances only should be regarded, the question of classification might be close, for the distinctions are slender. .But when we consider the intended singleness in use and operation, and the facts that there is to be no letting of units, but only a letting of suites in them, that the six structures are to be owned and maintained by a single owner as six units, the buildings to be at the care of the owner, with conveniences supplied to all by him, exactly as with apartment houses of the more familiar, unbroken lines, the description of each group as an apartment house seems appropriate, as the Court below found. In the face of the unity in the use, the partial separation of the walls and the pos ²⁰⁸ session of several entries proposed here is not enough to justify holding, in testing compliance with the ordinance, that there are twenty-seven apartment houses to be considered.’ “In Norwood Improvement Association v. Mayor & City Council of Baltimore, 191 Md. 155 (1948), an improvement association had appealed 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 to erect certain apartment buildings.

The project comprised groups of two story units containing varying numbers of apartments. 34 units were grouped in 10 buildings and no lot lines were laid out on the project for the different buildings. The Court reversed on the ground that under the zoning ordinance, as it then existed, lots and buildings were the units of zoning and the whole development could not be regarded as one building. Judge Hender son and Chief Judge Marbury dissented. The opinion of the Court referred to the project as calling for 'a garden apartment development’ and distinguished Akers in that there the project called for six buildings on separate lots. “It was after the decision in Norwood that, in 1949, Section 25-N was enacted, expressly providing that in the apartment houses referred to, there need not be a separate lot for each structure or building, provided, inter alia the area of the project covered at least five acres. “Windsor Hills Improvement Association v. Mayor & City Council of Baltimore, 195 Md. 383 (1950) was an appeal from an order of the Baltimore City Court affirming a decision of the Board approving a permit for the construction of three apartment houses, to contain nine units housing 45 families.

The Court, in an opinion by Judge Markell, pointed out that what is now Section 25-N had been enacted after the decision in Norwood but that this section did not apply because the project covered less than five acres. The ground of appeal, as in Akers , was that the project was to be considered as comprising the erection of 9 buildings which were not parts of apartment houses but were row houses or the equivalent ²⁰⁹ thereof. The opinion stated that the proposed apartment houses are commonly known as ‘garden type apartments.’ The Court said, at page 390: ‘In the opinion, by Chief Judge Bond, in the Akers case, 179 Md. at pages