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Pem Construction Co. v. Mayor and City Council of Baltimore

Decided: January 28, 1964.

PEM CONSTRUCTION COMPANY
v.
MAYOR AND CITY COUNCIL OF BALTIMORE (TWO APPEALS IN ONE RECORD)



Appeal from the Baltimore City Court; Carter, J.

Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

A developer appeals from a decision of the Baltimore City Court which affirmed a resolution of the Board of Municipal and Zoning appeals denying a variation or special exception so that two adjoining parcels of land located in a D-40 residential area could be used as parking lots for a nearby shopping center.

The appellant, Pem Construction Company, is the owner of both parcels, one known as 5451 Tippett Avenue (referred to on a plot plan as Parcel No. 2), and the other as 5401-43 Tippett Avenue (referred to on the plot plan as Parcel No. 3). Tippett Avenue, 50 feet wide, runs in an east-west direction.*fn1 Parcel No. 2 has a frontage on the north side of Tippett Avenue of about 233 feet, and is about 100 feet in depth. Parcel No. 3, to the east of Parcel No. 2 (the two tracts being separated by a 15 foot right of way), fronts approximately 192 feet on the north side of Tippett Avenue and has a depth of 85 feet. Reisterstown Road, an arterial highway, is one block south of Tippett Avenue and runs parallel thereto. One block north, and parallel to Tippett Avenue, is Price Avenue. Rogers Avenue is west of the area in dispute, and Lewiston Avenue is to the east; both of these streets run in a north-south direction. Fronting on the north side of Reisterstown Road (in the 5400 block) and on the east side of Rogers Avenue, there is a shopping center known as the Hilltop Shopping Center. The back of the shopping center is on the south side of Tippett Avenue, across from Parcel No. 2. Parcel No. 3 faces an existing commercial parking lot and various buildings across Tippett Avenue. The subject parcels are abutted by two-story masonry dwellings on Rogers Avenue to the west and on Price Avenue to the north. On the east, a 90 foot lot with an existing dwelling separates

the tracts from Lewiston Avenue, on the east side of which there are two-story dwellings.

In 1946 the appellant owned a tract embracing what are now Parcel No. 2, the Hilltop Shopping Center area, and the land to the west and north of Parcel No. 2 (on which two-story masonry dwellings have been erected). At that time, as well as now, the shopping center area was zoned commercial and Parcel No. 2 and the land west and north thereof were zoned residential. The appellant proceeded to develop the residential areas first; the dwellings were built in 1946 and the shopping center in 1947. Houses were constructed west of Parcel No. 2, facing west on Rogers Avenue, and north thereof facing north on Price Avenue. Nothing was built on Parcel No. 2. Parcel No. 3 was not acquired by the appellant until 1960; the appellant has never owned the land opposite Parcel No. 3 across Tippett Avenue, nor the houses on Price Avenue which are north of Parcel No. 3.

The appellant seeks a variation or exception from the residential area restrictions so that Parcels Nos. 2 and 3 may be used for the parking of motor vehicles in conjunction with the Hilltop Shopping Center. The applications for the two lots were heard together by the Board of Municipal and Zoning Appeals (Board) and by the lower court on appeal, and thus both cases are in one record and are treated as one here.

Originally the applications were rejected by the Building Inspection Engineer of Baltimore City (the Zoning Commissioner), and an appeal to the Board ensued. The requests for special exception or variance were made pursuant to Sec. 36 of the Baltimore City Zoning Ordinance which provides in part that the Board may:

"(b) Grant a permit where the use or change of use of land, buildings or structures proposed to be used is limited as to its location because of the size of buildings, size of yards, irregularity of shape of land or buildings, topography, grade or accessibility * * *

"(c) Grant a permit where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this Article * * *"

The Board denied the applications on the basis that, inter alia, "any hardship that has been created for the appellant is self-induced and therefore does not warrant the Board in making any exception". The appellant then appealed to the Baltimore City Court, which affirmed the decision of the Board on the basis that, "the record clearly shows that whatever hardship the appellant has incurred has been the result of his own mistakes and wrongdoings," and that "the appellant knew at all times that Parcels 2 and 3 were zoned ...


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