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Shell Oil Co. v. Mayor and City Council of Baltimore

Decided: June 12, 1961.

SHELL OIL COMPANY
v.
MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.



Appeal from the Baltimore City Court (HARLAN, J.).

The cause was argued before Brune, C. J., and Hammond, Prescott, Horney, and Sybert, JJ.

Prescott

PRESCOTT, J., delivered the opinion of the Court.

This is an appeal by the Shell Oil Company, a corporate lessee of a parcel of land located at the southeast corner of Erdman Avenue and Edison Highway, in Baltimore City, from an order of the Baltimore City Court, affirming a decision and resolution of the Board of Municipal and Zoning Appeals (Board), which decision denied the appellant's request for a permit and necessary approval to erect and operate a gasoline filling station.

In acting upon an application for a permit to erect a filling station, the Board exercises original jurisdiction under Sections 37-39 of the Baltimore City Zoning Ordinance (1958), which, under Section 35 (i), requires the affirmative vote of at least four of the five members of the Board before a permit may be granted. In the instant case, there were only two of such affirmative votes.

In accordance with the provisions of Section 38, the plans, specifications and the relevant data were submitted to the Board of Fire Commissioners, Commissioner of Health and Traffic Commission (now the Department of Transit and Traffic), all of whom approved the granting of the permit.

The lot in question is irregular in shape and binds along the southeast side of Edison Highway and the southwest side of Erdman Avenue, at their intersection. It is presently improved by a one-story, brick building, used as a real estate office. The named streets do not intersect at right angles. Edison Highway comes into Erdman Avenue at about an angle of fifty degrees. Directly across Erdman Avenue, there is a residential zone improved with rows of dwellings which front towards the premises in question. To the southwest, there is a 10 foot alley binding along the rear yard of a row of dwellings which are in a Residential Use District and which front on Lawnview Avenue. The lot is distant only a few feet more than 300 feet from the building used as a church at the northwest corner of Erdman Avenue and Cliftmont Avenue. Erdman Avenue and Edison Highway are each 100 feet wide divided by median strips at this location and are heavily traveled thoroughfares.

At the hearing before the Board, a Mr. Woodward, in behalf of the applicant, offered an architect's conception of the site, as it would appear after the proposed improvements.

Dr. Ewell then qualified as a traffic expert, and stated he had made an inspection and study of the corner in question. His written report, filed with the Board, pointed out that the proposed station would be located at the intersection of two dual-lane streets, but that this would establish no precedent -- there are many such locations in Baltimore where filling stations

are enjoying safe and successful operations. The traffic records showed that over 2500 vehicles, in one hour, have passed the corner in the southeastward lane of Erdman Avenue during the morning peak, and over 1250 vehicles have moved in the same direction during the evening peak; and that 430 vehicles have been recorded moving northward along Edison Highway during the morning rush hour, and 1180 per hour have been counted in the evening. Clockwise and counterclockwise turning movements around the southeast corner of the intersection are insignificant -- amounting to no more than 20 vehicles per hour. The report further stated that ingress to the proposed station would be a simple and safe operation, and egress would be safe during the stop time of the signalized intersection; that the median strips would allow only traffic traveling northward on Edison Highway and southeastward on Erdman Avenue to enter and leave the proposed site. After also pointing out that pedestrian traffic at the intersection to and from the nearby schools is controlled in the morning and afternoon by two policewomen, the report stated that, in Dr. Ewell's opinion, "the erection and operation of a new service station at the site will create little or no impact on the existing traffic situation."

Dr. Ewell stated, on cross-examination, that there are many movements of vehicles off Edison Highway turning and moving northward up Erdman Avenue, which represented "a particularly heavy flow" of traffic; and that there is "a very heavy flow" on the opposite side of the median strip, in the afternoon, moving northward on Erdman Avenue, and, perhaps, 1000 vehicles per hour move northward on Edison Highway "down towards the station." He further stated that he recalled about 900 vehicles per hour making left-turns from Edison Highway into Erdman Avenue, and these figures were obtained when Sparrows Point and Bethlehem Ship Yards were not working at full capacity -- the figures from the Department of Transit and Traffic, taken at an earlier date, might exceed 1500 per hour.

Dr. Ewell was succeeded as a witness by Carl Heinmuller, Jr., whose qualifications as a real estate appraiser were admitted. After stating that he had made a study of the subject

property and giving his reasons for his conclusion, it was his opinion that "the use of this property for a gasoline service station would not affect adversely the value of the residences nearby." However, when it was called to his attention on cross-examination that the filing station, if erected, would be only some 20 to 25 feet from the rears of the lots facing on Lawnview Avenue and he was asked if he intended to testify that the erection of the proposed service station would have no effect on these properties, he qualified his opinion, after some "shadow-boxing," by stating that he thought "it ...


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