Windsor Hills Improvement Ass'n v. Mayor of Baltimore

³⁸⁹ Markell, J., delivered the opinion of the Court. This is an appeal from an order entered October 14, 1949, modifying, and affirming as modified, a decision of the Board of Municipal and Zoning Appeals on May 24, 1949, which approved a permit for the construction by Westchester Apartments, Inc. of three apartment houses at specified locations on Westchester Road and Talbot Road. On June 20, 1949 Windsor Hills Improvement Association, Inc. (which is said to have been incorporated on May 26, 1949) filed a petition for appeal from the decision of the Board. Code, Art. 66B, Sec. 7; Zoning Ordinance [No. 1247], paragraph 35(a).

On August 26, 1949 Bernard Kairys, a taxpayer, (president of the Association) was granted leave to intervene as a party plaintiff in the appeal proceedings. The Association and Kairys have appealed to this court. The petition for appeal alleges that the decision of the Board “is not in conformity with good zoning, is illegal, and further because”: It is in violation of (A) “Ordinance No. 305, requiring off-street automobile parking space to be provided for in the construction or erection of new buildings”; (B) “Ordinance No. 583, relating to the construction of garden type apartments on a lot, under certain conditions”; (C) “Zoning Ordinance No. 1247, approved March 30, 1931, as to the following paragraph; (1) Paragraph 21. (2) Paragraph 22.

(3) Paragraph 28. (4) Paragraph 32, etc.” Much a? the petition and of appellants’ brief is devoted to allegations that the Board’s decision “is not in conformity with good zoning” and the proposed construction “is not in conformity with the surrounding architectural design of the neighborhood.” Such allegations are no concern of the courts, which can review only the question whether the Board’s decision is illegal. Appellants’ contentions as to illegality of the Board’s decision are contrary to our decisions in Akers v. Mayor and City Council of Baltimore, 179 Md. 448 , 20 A. 2d 181 and more recent cases or are on their face groundless; most of them ³⁹⁰ are only faintly, if at all, disclosed in “the grounds of the illegality specified” in the petition for appeal. The proposed apartment houses are commonly known as “garden type apartments”.

After our decision in Norwood Heights Improvement Ass’n v. Mayor and City Council of Baltimore, 191 Md. 155 , 60 A. 2d 192 , Ordinance No. 583, approved February 9, 1949, added to Paragraph 28 of Ordinance No. 1247 Sub-paragraph L, which permits garden type apartments “without providing a separate lot for each structure or building; * * * provided the area of such project shall cover at least five acres of land.” Appellants contend that Ordinance No. 583 is violated because the project now in question covers less than five acres. As Judge Niles says, there is no violation of Ordinance No. 583. “Ordinance No. 583, now Sub-paragraph L of Paragraph 28 of Zoning Ordinance No. 1247, refers to garden type apartments covering at least five acres of land. This .proposed project does not cover five acres of land. Therefore, * * * Sub-par.

L has no application to this project at all”. Separate lots are provided for each of the three buildings, in accordance with the Zoning Ordinance before the passage of Ordinance No: 583 and with our decisions in the Akers case and the first Norwood case, supra. This project comprises erection of three apartment houses, to contain nine units in all, to house forty-five [as originally proposed, forty-eight] families. Appellants’ basic contention is one which was made, and upon full consideration was rejected, in the Akers case, viz., that each of the nine units is to be taken as a single building and the project therefore is to be considered as comprising the erection of nine buildings, which are not parts' of apartment houses but are row houses or the equivalent thereof.

In the opinion, by Chief Judge Bond, in the Akers case, 179 Md. at pages 450-452, 20 A. 2d 182 -183, the resemblances of garden type apartments to row houses and to more familiar apartment houses are concisely, compared, and the question of classification is found to be close if structural resem ³⁹¹ blances only were regarded, but clear when intended singleness in use and operation, and ownership, is considered. Appellants attempt to distinguish the Akers case on the facts, e.g., in that case, “These units were planned to overlap 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”. 179 Md. 451 , 20 A. 2d 182 . In the instant case it is said that the units do not “connect at the corners”, but are connected — and separated — at the sides by a solid wall, and that the roof lines are, for sake of appearance, broken. By the latter test presumably the House of the Seven Gables would be not one house but several.

The former difference resembles the difference between two directly adjoining squares on a checkerboard and two diagonally adjoining squares actually used on the same board. We think that these and other structural differences are insignificant and that in intended singleness of use and operation, and ownership, this case and the Akers case are undistinguishable. Without repeating what was said in the Akers case or what is well said by Judge Niles in this case, we agree with him that “there is no similarity to row houses which would support the contention of the appellants”. Ordinance No. 305, approved June 14, 1948, provides that in an E area district there shall be provided for each family in a project one parking space “in the building or buildings, or on land not over three hundred (300) feet from the proposed dwelling unit structure”.

Appellants contend that Ordinance No. 305 is violated (1) because no such off-street parking space is provided on one of these three lots though within 300 feet such space is provided on an adjoining lot, sufficient for both lots and (2) that such parking space cannot be regarded as “open” or “unoccupied” space in computing area, yard spaces and density under the Zoning Ordinance. The latter contention was made and rejected in the Akers case. 179 Md. 452 -453, 20 A. 2d 183 . Appellants would distinguish the Akers case because provision of off-street ³⁹² parking space was not then required by law. Whether or not parking space is “open” space does not depend upon whether such space is provided by choice or by legal requirement.

Nothing in Ordinance No. 305 requires that the parking space be provided on the same lot as the