The Hornes own a townhouse that abuts the rear of a lot on Preston Street. Prior to 2002, the Preston Street property contained a small walkway and townhouse. The property contained a setback requirement limiting construction to no closer than twenty-five feet of the rear property line. The Preston street property was vacated in 2003 and in 2005 a developer sought to turn the property into a community center. His initial permit was denied because he had not received approval to use the property for a community center and he had not complied with the setback requirement. He appealed and the Board of Municipal and Zoning Appeals who scheduled a public hearing and posted a listing of the hearing at the property. The notice, however, did not specifically mention that the setback requirement would be addressed. The Hornes, believing that the meeting was only to address the issue of the community center, did not attend the hearing. At the hearing, the Board granted the setback variance. The Hornes, who own, but do not live at the abutting townhouse, were unaware of this variance until a year later when the construction of the community center began.
The Hornes filed a civil action against the Mayor and City Council of Baltimore claiming that the City had violated their 5th and 14th Amendment rights by granting a zoning variance on neighboring property without adequate notice or just compensation. The lower court dismissed the Horne’s claim for failure to state a claim upon which relief can be granted. The court stated that to state a claim under both constitutional provisions the Hornes must allege that they have a constitutionally protected property interest.
The Court of Appeals has previously held that property owners have no vested right in the continuance of a restriction on neighboring property. Here, the Hornes’ lacked a property interest in the setback requirement, since the Board possesses discretion in deciding whether to grant the setback variance.
Horne v Mayor& City Council of Baltimore, 2009 WL 3451718 (CA 4th Cir. (MD) 10/28/2009)
The opinion can be accessed at: http://pacer.ca4.uscourts.gov/opinion.pdf/081483.U.pdf
