R. B. Construction Co. v. Jackson , 152 Md. 671 ( 1927 )

The appellant is the owner of a lot of ground fronting about three hundred and twenty-four feet on Granada Avenue in the City of Baltimore, and desires to erect on the lot sixteen two-story dwelling houses in a continuous row. The proposed dwellings would each have a width of approximately twenty feet, would stand forty-five feet back of the street line, and would have yards in the rear about sixty feet in depth. Permission to erect the row of buildings was refused by the inspector of buildings of the city because the lot is located in a district within which the erection of solid rows of houses is prohibited by certain provisions of the city's Zoning Ordinance. A petition was then filed in the Baltimore City Court by the appellant for a mandamus to compel the issuance, by the mayor and inspector of buildings, of a permit for the construction of the projected row of dwellings. The answer to the petition averred that the lot in question is included in an E area district designated in the Zoning Ordinance, which contains the following provision: "In an ``E' area district there shall be reserved on each lot at least one side yard not less than ten feet wide, except in cases where, because of the size and/or shape of any lot or tract, such requirement cannot be complied with or would render such lot or tract unfit for use, and in such cases the board of zoning appeals may reduce the requirement as it may deem reasonable and proper."

As explained in the answer, it was because the appellant's plans did not provide for the side yards required by the provision just quoted that the permit applied for was refused. The effect of such a provision, as applicable to the prescribed zone areas, is said by the answer to be promotive of the public safety, health, and morals, by preventing an increase in the density of population and thereby reducing fire and traffic hazards, avoiding undue burden upon sewerage, transportation, and other public facilities, and improving, with reference to light and air, and in other respects, the living conditions of the people. A demurrer to the answer was overruled and, the petitioner having declined to plead further, a judgment was entered for the defendants. The appeal is from that judgment.

The Zoning Ordinance of Baltimore was enacted, as it recites, for the purpose of establishing "a general zone plan which will insure a fair and adequate division of light and air among buildings, protect the residence districts, prevent congestion, lessen the fire hazard, increase industrial and commercial efficiency, conserve property values, and direct the building of the city in accordance with a comprehensive plan for the use and development of all parts of the city." Three systems of zoning were created by the ordinance. One was made the basis of regulations as to the uses of property. Another was designed to serve the purposes of provisions as to the height of buildings thereafter erected. The third, which is the one involved in this proceeding, is intended to be applied in the regulation of future building construction with respect to the lot area to be occupied. There are six series of area districts, designated as A, B, C, D, E, and F, into which the ordinance divides the territory within the city's boundaries. The proportion of the individual lot area allowed to be covered by subsequently erected buildings ranges from seventy per cent. for interior lots and eighty-five per cent. for corner lots in A area districts, to twenty-five or thirty per cent. in F areas. In the E areas thirty or forty per cent. of a lot may be covered by a building. No side yards are prescribed except in the E and F areas, which are located in the outlying sections of the city, as shown by the map used at the argument. A large part of the undeveloped land within the city limits appears to be included in the E area districts. The map shows that the E areas form a zone which completely encircles the city except as to a part of its water front. One of the most important purposes of the Zoning Ordinance is to regulate building expansion of the city over the open area available for its development. The question is whether, in aid of such a purpose, the city could validly impose the building restriction of which the appellant complains.

It is clear that such a limitation cannot be placed upon the exercise of the property owner's rights except for the protection or promotion of some public interest which justifies the exercise of the police power. In regard to any purpose within the proper scope of that power, the City of Baltimore has been invested with the full measure of the authority which the State itself could exert. Charter of Baltimore, art. 1, sec. 18. Rossberg v.State, 111 Md. 394; Osborne v. Grauel, 136 Md. 88. It is not essential to a decision sustaining the ordinance, as to its area provisions, that its necessity as a police measure shall be clearly demonstrated. Unless it can properly be held to have no reasonable tendency to serve any legitimate purpose of the police power, we cannot rightfully declare it void. Ches. Pot. Tel.Co. v. Board of Forestry, 125 Md. 666; Cochran v. Preston,108 Md. 220; State v. Hyman, 98 Md. 596.

In this case there is a conflict between a private property right and the desire of a great city to regulate its own growth. The property right should be protected against any unwarranted invasion, but it should not be permitted to defeat legislation enacted by the city within the limits of its police power for the general benefit of its inhabitants. The evident design of the provision for side yards in the outlying zone areas was to prevent the indefinite extension of the city in compact building formation. It was considered necessary from the standpoint of the public welfare that there should be some relief in the suburbs from the congested conditions existing in the sections of the city which have become densely populated. There could be no assurance of such an advantage to the people of the city if its building expansion must be continuously subject to the unregulated control of private individuals. In providing a comprehensive plan for the future growth of the city, the Zoning Ordinance presumably reflects the collective desire and judgment of the people of Baltimore with respect to that important public interest. The effort of the city to apply the limited measure of control specified in the ordinance, in regard to building areas, should be judicially sustained, if it bears a perceptible relation to any community interest for which the police power, delegated by the state to the city, can properly be invoked.

In the case of Goldman v. Crowther, 147 Md. 282, in which the provisions of the Baltimore Zoning Ordinance in reference to the use of property were held to be invalid, the decision reserved the question as to the constitutionality of the height and area provisions of the ordinance. Since that case was decided, the Supreme Court of the United States, in sustaining the general validity of the use, height, and area provisions of a zoning ordinance of the village of Euclid, in the State of Ohio, said, in the course of the opinion delivered by Mr. Justice Sutherland in Euclid v. Ambler Realty Co., 272 U.S. 365: "There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding, and the like. * * *" The provisions of the Euclid ordinance in regard to building areas are analogous to those which are resisted in the present case. It was said by the Supreme Court in the Euclid case, that the question to be decided as to the validity of the ordinance was the same under both the Ohio and federal constitutions, and consisted of the inquiry whether the ordinance violated the constitutional protection to the right of property "by attempted regulations under the guise of the police power, which are unreasonable and confiscatory." In its discussion of that question the Supreme Court said, in part:

"Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles, and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But, although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall."

"The ordinance now under review and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. * * ** If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U.S. 292, 294."

The ordinance provision specially considered in this case does not prevent the use of the appellant's land for the residence purposes to which it is adapted and proposed to be used, but merely requires that a space for a side yard ten feet wide be reserved on each lot, if its size and shape admit of such a reservation without impairment of its proper utility. In view of the general and systematic application of the provision to future building development in the environs of Baltimore City, there is certainly no element of arbitrary discrimination or unreasonable classification involved. The observance of the house construction plan adopted by the ordinance would secure and preserve to the city an extensive suburban zone in which the homes needed for its future increase of population would be separated by open spaces enabling their occupants to enjoy improved ventilation and abundant sunlight. There can be no question as to the additional pleasure and comfort which would be thus afforded to those living in the zone of houses separated by the areas for which the ordinance provides, and the relation of such a general plan of municipal development to the public health and safety can be readily perceived. The separation of buildings has an obvious tendency to reduce fire hazards, and a freer admission of air and sunlight to the homes of the city is plainly conducive to the health of its people.

In considering the area provisions of a zoning ordinance, inWulfsohn v. Burden, 241 N.Y. 303, the Court of Appeals of New York said: "The open spaces not only tend to minimize the dangers of fire to adjoining buildings and thus a spreading conflagration, but they also afford a greater opportunity for access by fire departments to a burning building and thus increase the possibility of successfully stopping a conflagration before it spreads to other buildings."

The Supreme Court of Ohio, in Pritz v. Messer, 112 Ohio St. 644, said: "If a law regulating the air space which must be allowed in a tenement house has a reasonable relation to health, we cannot say that a measure which will save considerable districts for the city in which the air space is unblocked by massed building construction has no reasonable relation to health."

The fact that it is not feasible to make similar provisions for the central portions of the city cannot be successfully urged by the appellant as a reason why the health and safety of the suburban population should not be promoted. The entire city is concerned in the reduction of fire hazards and the protection of health in its suburbs.

In the case of Byrne v. Maryland Realty Co., 129 Md. 202, upon which the appellant places special reliance, a statute requiring open areas to be reserved between dwellings in a comparatively small section of Baltimore was held to be unconstitutional. The opinion referred to surrounding conditions which made it apparent that the area requirement was not intended to protect the public health or safety. No question was presented and decided in that case as to the power of the city to regulate its development under reasonable area provisions of general application. There is consequently a material distinction between the Byrne case and the one now in course of decision.

In our opinion the area provision affecting this case is within the scope of the police power which the municipal government of Baltimore is entitled to exercise.

The contention is made that the ordinance is rendered invalid by its provision authorizing the board of zoning appeals to vary or modify any of its regulations, where there are practical difficulties or unnecessary hardships in the way of its strict enforcement, the expressed purpose being, however, that the spirit of the ordinance shall be observed. This is said to be an unconstitutional delegation of unlimited discretion. In Goldman v. Crowther, supra, while such an objection to the delegation of the power in question was sustained so far as the use provisions of the ordinance were concerned, the Court refrained from holding that the objection was available with respect to the height and area restrictions, but it was said in the opinion, delivered by Judge Offutt: "It does not necessarily follow that, because the standards and rules provided to control the exercise of the discretion vested in the board in passing upon the uses of property are too indefinite, that they are insufficient to limit and control that discretion when applied to the location and construction of buildings. For in the one case, the subject of the discretion is intangible, impalpable, and aesthetic, while in the other it is material and substantial, and its physical incidents and consequences are capable of being positively and definitely ascertained." The power of modification which the ordinance confers upon the board of zoning appeals in regard to the provision for side yards is to vary the dimensions of the specified areas only so far as may be necessary because of practical difficulties or unnecessary hardships. The discretion thus reposed in the board was manifestly intended to be exercised for the benefit of the property owner. It is a limited discretion and is plainly essential to the practical application of the plan prescribed. There is no invalidity in such a delegation of administrative authority. This conclusion is amply supported by the recent decision in Tighe v. Osborne, 150 Md. 452, and by cases therein cited.

Judgment affirmed, with costs.