filed the following opinion, dissenting in part, in which Hornby, J., concurred.
I am disposed to agree with the majority of the Court on all the points discussed except the final one where it seems to be held that the Ordinance requires every house or lot in a development plan to front on a public street at least thirty feet wide. I think that conclusion is untenable and unsound.
There are procedural objections to the holding. I cannot find on the record that the point was raised below. Judge Cullen did not mention it in his opinion. In the resolution adopted by the Zoning Board, from which the appeal was taken, the Board did not indicate that the plan was defective because the dwellings proposed fronted on an interior court or utility right-of-way. On the contrary, it said: “Testimony was offered by an expert witness to show that the cul-de-sac type of street layout for a housing development is accepted as good planning practice. The Board is fully aware of this, but the subdivision plan for the property in question here is, in the judgment of the Board, not a good plan * * *.” The Data Sheet, prepared for the Board by its staff, contained the notation: “In this appeal it appears that the bldgs, would front on the walk or right-of-way previously referred to, both being less than 30' in width, therefore the front yard provisions do not apply.” At the hearing before the Board, it was clearly brought out that the specific objections raised before Judge Oppenheimer had been corrected. Judge Oppenheimer had held that if the area occupied by the “utility right-of-way and walkway” were deducted from the area of five of the lots, these houses would cover slightly more than fifty per cent of the area and so violate the Ordinance. In so holding, he construed the term “alley” as used in the zoning law to include the proposed passage or way. He did not hold that the plan was unlawful because all of the houses fronted on an “alley”.
At the hearing before the Board, Mr. Rogers, a recognized expert in zoning matters, testified that in his opinion, the minimum front yard setbacks in sections 26 and 27 of the Ordinance were inapplicable because the frontage was on a walkway, not on a street. It was brought out that the Planning Commission had approved the plan in the instant case, *529and there had been no appeal, as authorized by the Charter (1949 ed.) § 120. This section was cited in Windsor Hills Imp. Ass’n v. Mayor & C. C. of Baltimore, 195 Md. 383, 393, in connection with a statement that the Zoning Board has no power to review the legality of the acts of the Planning Commission. See also Feldman v. Star Homes, Inc., 199 Md. 1, 5. The provision for direct appeal would seem to negative the idea that the Commission’s decisions are open to collateral attack.
In section 116 of the Charter the Planning Commission is authorized to formulate rules and regulations for the development of subdivisions. Regulation 6 (b), which was put in evidence below, provides: “All lots shall abut on a street or common right of way.” (Emphasis supplied.) The witness Rogers referred to several other housing developments in the City where approval had been given to building projects fronting upon a private way or central court. Section 48 (t) of the Ordinance, defines “Front or Frontage” as “That side of a lot abutting on a street or way and ordinarily regarded as the front of the lot * * (Emphasis supplied.) The decision of the majority in the instant case would seem to run counter to the express words of the Ordinance and the regulation of the Planning Commission.
The opinion notes that section 48 (c) of the Ordinance provides that “The term ‘street’ shall apply to any street thirty feet or over in width”, whereas section 48 (d) provides that “The term ‘alley’ shall apply to any street less than thirty feet in width.” Section 26 provides that front yards shall be required in all D area districts, and section 27 provides, with reference to “lots fronting on the side of a street, between two intersecting streets,” where there are no existing buildings, that the minimum depths of front yards shall be governed “by the width of the street on which it abuts,” according to an attached table. This table provides no minima for street widths of less than thirty feet. Mr. Lang, a member of the Planning Commission, testified at the first hearing before the Board that no specific front yard requirements had been set up by the Commission, or by the Building Engineer, where frontage was on a “way”.
*530Because of the omission of the Ordinance to fix minima in the case of streets less than thirty feet in width, the opinion seems to draw the inference that buildings not fronting on such a street are forbidden. I think the inference is unwarranted. The accepted rule is that one is entitled to use his property as he sees fit, unless restricted by statute or ordinance under the police power, so long as the use does not constitute a nuisance. Cf. Feldman v. Star Homes, Inc., supra at p. 6. Restrictions upon use should not be left to implication. The legislative omission may well have been deliberate. Other provisions, such as the area restrictions and those requiring approval by the Planning Commission, may have been thought adequate. As I read the opinion in the instant case, even if provision had been made for a thirty-foot utility right-of-way and walkway, and twenty-five foot front yards, which would be perfectly legal if the way had been dedicated to public use and accepted by the City, the plan would still be illegal because the houses would not front on a public street. Since the width of the tract will not permit such a layout, apparently the owners are restricted to the erection of houses on Mayfield Avenue. Quite apart from the hardship to the owners, I think the decision unduly restricts the discretion of the Planning Commission to approve plans which exclude vehicular traffic and provide for off-street parking, as this plan did.
Judge Horney authorizes me to say that he agrees with the views here expressed.