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Richmark Realty Co. v. Whittlif

Decided: July 28, 1961.


Appeal from the Circuit Court of Baltimore City; Carter, J.

Henderson, Hammond, Horney, Marbury and Sybert, JJ. Sybert, 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

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. Richmark 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 Law.

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

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 ...

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