City of Baltimore v. Byrd , 191 Md. 632 ( 1948 )

In zoning, as in other exercise of the police power, municipal legislative or administrative action which restricts individual rights and is without rational support in facts or substantial evidence or is otherwise arbitrary or capricious or is beyond a reasonable exercise of delegated authority is unlawful, and it is the duty of the courts so to hold. Ellicott v. Mayor and CityCouncil of Baltimore, 180 Md. 176, 23 A.2d 649; Benner v.Tribbitt, 190 Md. 6, 57 A.2d 346; Northwestern MerchantsTerminal v. O'Rourke, 191 Md. 171, 60 A.2d 743; Lewis v. Mayorand City Council of Cumberland, 189 Md. 58, 54 A.2d 319; Heathv. Mayor and City Council of Baltimore, 187 Md. 296,49 A.2d 799; Heath v. Mayor and City Council of Baltimore, 190 Md. 478,58 A.2d 896. However, the wisdom of legislative or administrative action is not a judicial question, and the presumption is, until the contrary is clearly shown, that such action is lawful, has a rational basis in facts or substantial evidence and is not arbitrary or capricious or unreasonable.

The Zoning Enabling Act requires that all use regulations shall be "uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts", (Code, Art. 66B, § 2), and shall be made with "reasonable consideration" to the character of the district and its suitability for particular uses. Section 3. Perfect uniformity in zoning, like "perfect uniformity of taxation", is "a baseless dream". Head Money Cases, Edge v.Robertson, 112 U.S. 580, 595, 5 S. Ct. 247, 252, 28 L.Ed. 798. The statute does not require "uniformity" in districting. However, "spot zoning" is a term, in the vernacular of zoning not of law, applied to carving out one or a few properties in an existing district use and reclassifying them in a different district. Chayt v. Maryland Jockey Club,179 Md. 390, 393, 394, 18 A.2d 856. The evils of "spot zoning", like the evils of local legislation, are primarily political. They do not, as such, present legal or judicial questions except the question whether in a particular case the zoning transgresses the limits of the police power or the delegated authority, or is without rational basis or is arbitrary or capricious. It was squarely so held in the opinion of this court by Chief Judge Bond inEllicott v. Baltimore, supra.

Long before the word "zoning" was heard of in law, the legality of required spot zoning was sustained by this court.Commissioners of Easton v. Covey, 74 Md. 262, 22 A. 266. Cf.Farmers' Planters' Co. v. City of Salisbury, 136 Md. 617, 111 A. 112; Pocomoke City v. Standard Oil Co., 162 Md. 368,159 A. 902; Engle v. Mayor and City Council of Cambridge, 180 Md. 82,22 A.2d 922. "It would be very difficult, if not impossible, to draw a general ordinance which would accomplish all that is proper, without doing injustice to some, and we can see no reason why an applicant for a license should not be required to first get a permit from the Mayor and City Council." Brown v. Stubbs,128 Md. 129, 135, 136, 97 A. 227, 229, referring to a Baltimore ordinance of 1913, requiring spot zoning of moving picture theatres, the word "zoning" not being used in the ordinance or the opinion. This ordinance of 1913 has apparently never been expressly repealed, but has been reenacted in the Baltimore Building Code of 1941 [ch. 14, par. 1400(a)], though it has apparently been ignored since the passage of the general zoning ordinance of 1931 notwithstanding the narrow repealing cause (sec. 1, par. 43) in that ordinance. The present zoning ordinance of 1931 required spot zoning of filling stations until the amendment of 1937 and still requires spot zoning of 30 specified uses. Sec. 1, par. 4. The City of Baltimore found, by the general ordinance with respect to these 30 uses, and by the special ordinance in the instant case, that it still is "very difficult, if not impossible, to draw a general ordinance which would accomplish all that is proper, without doing injustice to some." "Neither zoning ordinances nor their application are immutable. That both the ordinances, their restrictions and the application thereof must be reasonable under the circumstances as to location, property and the surroundings as to which they apply is the law as stated by the Court of Appeals in two recent cases."Ballard v. Roth, 141 Misc. 319, 325, 253 N.Y.S. 6, 12, citingPeople v. Connell, 257 N.Y. 73, 177 N.E. 313; Downey v.Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642, unanimous opinions, one by Judge (later Chief Judge) Crane, the other by Judge (later Chief Judge) Lehman, Chief Judge Cardozo participating in both. An ordinance general in its scope may be adjudged reasonable as applied to one state of facts and unreasonable when applied to circumstances of a different character. Kramer v. Mayor and City Council of Baltimore,166 Md. 324, 333, 171 A. 70; 2 Dillon on Municipal Corporations, 5th Ed., Sec. 591; Ellicott v. Baltimore, supra. Neither the municipality of Baltimore (within its broad legislative field) nor the courts (within the narrower scope of judicial review) can divest themselves of the power and duty of considering the facts of each case, by putting the entire city into a Procrustean bed exactly 300 feet long. As has often been said, refusal to discriminate between things that are unlike is as unjust discrimination as discrimination between things that are alike.

In Ellicott v. Baltimore, supra, it was held that after adoption of a general ordinance spot zoning of one lot by special ordinance would be a departure from the purpose of the enabling act and would be illegal unless made because of some exceptional conditions, under authority of the enabling act, and no valid exception can be made of one lot merely as a favor to the one owner. By a liberal application of the presumption in favor of the reasonableness of a municipal ordinance such exceptional conditions were found. The question now presented is whether there are such (not necessarily the same) exceptional conditions in the instant case, i.e., conditions which the municipality might reasonably regard as justifying the exception made. Manifestly there are.

If this case is not unique, certainly it is exceptional, in that the purpose of the 1937 ordinance to prevent proximity of filling stations and moving picture theatres has already been frustrated in the block in question by the erection of two moving picture theatres closely adjacent to two filling stations. Whether this result is due to inadvertence, in repealing the 1913 ordinance (if it was repealed) and failing to make the 1937 prohibition mutual instead of one-sided or to failure to enforce the 1913 ordinance or the 1941 Building Code or to some other reason is immaterial. In any aspect it was the right and duty of the municipality to consider conditions as they are in acting upon the special 1947 ordinance. It might well have been argued that in the circumstances refusal to make the exception asked would have been arbitrary, capricious, unjust discrimination and would have invalidated the 1937 ordinance as applied to these circumstances. Even if the presumption in favor of legislative judgment might have required us to sustain such a refusal because the municipality might possibly have determined that one more filling station in this locality would be one too many (Kramerv. Baltimore, supra), the same presumption now requires us to sustain the legislative judgment that one more would not be too many and that the facts do not warrant refusal to apply the axiom A plus B is equal to B plus A. We might sustain the action or non-action of the municipality but cannot invalidate this ordinance against the judgment of the municipality by assuming a possibility that "the filling stations already there may be sufficient for that community and may have reached the limit of safety".

Moreover, the ordinance recites in a preamble that "the establishment of a filling station with generous parking facilities" at this location "would tend to relieve congested traffic in that immediate neighborhood", and this recital is supported by substantial evidence. It is true that the parking facilities may be withdrawn at any time. But the ordinance is expressly predicated on them, and if they are withdrawn the ordinance, now valid, may become invalid or inoperative under the changed conditions created by such withdrawal. Kramer v.Baltimore, supra; People v. Connell, supra. Even the technical difference between a covenant and a condition is not confined to real estate law, if indeed zoning is not a branch of real estate law. Of course, the municipality could not lawfully discriminate, and we cannot assume that it would attempt to do so, by "inserting a similar preamble" in other ordinances, if the preamble were not in accord with the facts.

Moreover, the double fact, (1) that nobody is injured by the exception made by this special ordinance and (2) that appellees have no justiciable interest in the question whether the ordinance is valid or invalid, both (1) is an exceptional condition which justifies the exception made by the ordinance and (2) disqualifies appellees from attacking the ordinance. A statute or an ordinance cannot be held invalid in vacuo, but only in a case between parties who have a justiciable interest in the question of validity. There is no evidence that there is any other lot in Baltimore similarly situated. The individual appellees, who live in distant parts of Baltimore, have no more justiciable interest in the question of the validity of this ordinance than a resident of Cumberland. They do not own property in the neighborhood or own or operate or propose to own or operate a filling station in the neighborhood or anywhere else. The ordinance imposes no expense or loss on the city which might affect them as taxpayers. They have no standing, as parenspatriae, to protect the neighbors because, they say, the neighbors "don't know what is good for them" or to preserve the verbal symmetry of the general ordinance.

The general zoning ordinance gives "all parties in interest" the right to testify at the public hearing before the Board of Zoning Appeals on an application for a filling station permit (sec. 1, par. 34-B), and both the enabling act and the ordinance give a right of appeal to a court to "any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer, or any officer, department, board or bureau of the municipality". Art. 66B, § 7; ordinance, sec. 1, par. 35. It has been held that under such a provision in a zoning statute or ordinance a "person aggrieved" is a person "interested" in, i.e., affected by the action of the board. American Can Co. of Massachusetts v. Milk ControlBoard, 313 Mass. 156, 160, 46 N.E.2d 542; Fidelity Trust Co.v. Downing, 224 Ind. 457, 463, 68 N.E.2d 789. In Ellicott v.Baltimore, supra, there is an intimation that the class of persons who may appeal from the board may be broader than the class of taxpayers and property owners specially injured who may sue in equity. But in that case the appeal was actually taken by owners of property in the neighborhood "and a taxpayer". No case has been cited, and I have found none, in which a right of appeal to "a taxpayer" has been construed as including taxpayers not interested or affected as such, and as giving any taxpayer a roving commission to litigate any abstract zoning question in which he is not interested or affected as a taxpayer. So far as the corporation appellee is concerned we have just reiterated the rule that a corporation has no standing to litigate a question which affects the members of the corporation but not the corporation itself. Maryland Naturopathic Association v.Kloman, 191 Md. 626, 62 A.2d 538.

I think the judgment should be reversed and the appeal to the Baltimore City Court dismissed and the action of the Board of Zoning Appeals affirmed.