Appeal from the Circuit Court for Baltimore County; Raine, Jr., J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for Baltimore County, reversing the action of the County Board of Appeals in granting a variance under the County Zoning Regulations (the Regulations) as to the height of an office building. This variance was granted initially by the Zoning Commissioner, and on appeal was granted by the County Board of Appeals (the Board).*fn1
The applicant-appellant, Loyola Federal Savings & Loan Association, desires to construct a 95-foot high office building of six stories, plus a small additional story to house mechanical equipment, in a Business Major (B.M.) zone in which such a building is a permitted use. Loyola proposes to use part of the building itself and to rent out other parts. The proposed site fronts on the north side of Pennsylvania Avenue in Towson and is about midway between the York Road on the east and Washington Avenue on the west. Alleghany Avenue, an east-west street, bounds the block on the
north. A 20-foot alley runs parallel to and about midway between Alleghany and Pennsylvania Avenues, and at its east end runs into a north-south alley connecting those two alleys. There is, in addition, an alley running from the north-south alley east to the York Road a little north of the 20-foot alley. Loyola also owns a lot fronting on Alleghany Avenue and extending south to the 20-foot alley. This is just west of the tract fronting on Pennsylvania Avenue, which extends north to the 20-foot alley. Loyola proposes to use its Alleghany Avenue lot as a parking lot in conjunction with the rear of the Pennsylvania Avenue lot. The two together, including an upper deck on the Pennsylvania Avenue lot, furnish sufficient parking space for the proposed office building. They also are in conformity with a "core" parking plan developed by the Planning Commission, which contemplates the use of interior areas in blocks for parking purposes; and there is a possibility of adding a second deck to the rear of the Pennsylvania Avenue lot to further the core parking plan.
The two protestants who appeared before the Board and in the Circuit Court, but have not appeared here, objected to it on the score of height and possibly traffic hazards or congestion. Their traffic contentions were rejected by both the Board and the Court and appear of no moment. The Board found the height variance proper. (Indeed, it thought that to deny the variances requested "would be * * * a backward and not a forward step.") The Court construed the Regulations as not authorizing the height variance and expressed itself as "regretfully * constrained to reverse the Board on the question of height."
Section 234 of the Regulations provides that the B.M. Zone height regulations shall be the same as in the B.L. (Business Light) Zone. Those are (§ 231) that no building shall exceed a height of 50 feet, or four stories, except (a) as provided in § 300 or (b) as provided by § 216, including set-back requirements applicable in an R.A. Zone, if the applicant so requests. The exemption in § 300 seems to apply (but it is not wholly clear that it does) to the top story housing mechanical equipment, but either two stories or about 35 feet in excess of the ordinary limits fixed by § 231
would still be left. Nor would § 216 solve Loyola's problem. That section permits a maximum building height of "35 feet, except that any building may exceed such height of 35 feet, provided that at no point it projects above a line sloping inward and upward at a 45 degree angle from the 35 foot elevation at the required setback line." This proviso could not be met whether the "required setback line" be considered as 0 feet as it is with the variance allowed, or as 7 1/2 feet, without the variance, because a front setback is required (even though none is on the sides or at the rear).
Loyola plans, however, 19-foot open spaces along each side and a single deck parking area at the rear of the building, over a parking lot and driveway about 70 feet in depth, thus leaving considerable open spaces for light and air where they would not be required under the B.M. set-back regulations, though the rear parking lot and deck are necessary in order to provide most of the required parking area (the balance being furnished by the lot across the alley). The parking space requirements, in practical effect, operate as a building area limitation.
Loyola offered expert testimony to show that as a result of the side setbacks and the rear parking area, the actual interference with light and air for neighboring properties was less than it would have been if a solid block type of building had been constructed, in accordance with the Regulations and without the need for a variance, on the entire permissible area to the height of 50 feet. Evidence was also offered to show that it was impracticable to provide basement parking, instead of outside parking, because of the presence of water in considerable quantity only about eight feet below the surface. There is nothing in the record to show that this condition was known to Loyola when it bought the lot.
The exact type of departure from the usual requirements of the Regulations here sought is a variance (Montgomery County v. Merlands Club, Inc., 202 Md. 279, 288, 96 A.2d 261), and pertains to height regulations and not to the use to which the property may be put. Section 307 of the Regulations deals specifically and only ...