Bensel v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City dismissing appellants’ amended bill of complaint which sought an injunction to restrain the Mayor and City Council of Baltimore from interfering with the use and occupation of their property at 3105 Mareco Avenue in Baltimore City. Appellants purchased this property in October, 1927, and claim that continuously, since April, 1928, they have used a part of the house for business purposes. Henry J. Bensel, one of the appellants, is engaged in the service and repair of refrigerating units on ships.

He said that when he started his business in 1928, he installed shelves on one wall of the cellar of his house in order to keep small and delicate parts, used in his business, dry and warm at all times. At the same time he had a telephone installed in his house to receive business calls. He said he used a small desk there in connection with the operation of his business. The larger and less delicate parts used in his business, as well as delivery trucks, are not kept at the dwelling but at a place on Erdman Avenue, in a commercial zone, and are not concerned in this case. ⁵⁰⁹ Appellants claim that in 1948 they had some trouble with a person, next door, over the manner in which an automobile was parked in a back alley.

Bensel said as a result thereof a City Zoning officer told him that he had to cease business at his home immediately or he would be prosecuted to the full extent of the law. Bensel then consulted his attorney. On September 30, 1948, appellants filed an application with the Bureau of Building Inspection “to continue to use the place of residence of Henry J. Bensel and his wife, located at Mareco Avenue, Baltimore 13, Maryland (as above described), as an office in second floor rear room for the purpose of conducting a refrigeration business, including the selling of refrigeration equipment and storage of small parts in the basement of the premises, in the same manner he had been doing continuously since April, 1928.” This permit was refused by the Zoning Commissioner and an appeal was taken to the Board of Municipal and Zoning Appeals, (the Board). A hearing was held before the Board on October 19, 1948.

It was stipulated that at that hearing “upon the conclusion of the testimony of the appellant, Mr. Henry J. Bensel, the Acting Chairman of the Board asked if the testimony of the other witnesses on behalf of the appellant would be the same as the testimony of the appellant, and it was stated that said witnesses would corroborate appellant’s testimony, whereupon the Acting Chairman of the Board replies that it would not be necessary to hear those witnesses.” Two protesting witnesses were also heard. The Board found there was not sufficient evidence to warrant a finding that a non-conforming use, of a commercial classification, had been established and sustained the action of the Zoning Commissioner in disapproving the permit. From that finding an appeal was taken to the Baltimore City Court on October 29, 1948. The case was heard in that court on February 14, 1952, the parties being the same as in the instant case.

The appellants claim that a large number of their witnesses were assembled ⁵¹⁰ in the courtroom but the trial judge would not hear any additional evidence, but confined the case to the transcript of the testimony before the Board. After reviewing that record and hearing arguments of counsel, Judge Warnken, on the same date, affirmed the action of the Board and entered a judgment in favor of the defendant for costs. No appeal was taken from that judgment to this Court. On April 26, 1952, the appellants filed in the Circuit Court of Baltimore City an amended bill of complaint in which they made the following allegations.

Henry J. Bensel, since April, 1928, had been engaged in the business of selling, repairing and installing refrigeration equipment on vessels from his home, where he stored parts in his basement. A telephone had been installed on the premises for the purpose of receiving business calls. One room on the second floor was equipped with a desk where the books of the business were kept. As a result of a quarrel with one of their neighbors, appellants were advised that notwithstanding the existence of their non-conforming use of the property, their right to continue said use could be established only by application to the Zoning Board for a permit or license to continue the business.

The appellants recited the details of the hearing before the Board to establish their non-conforming use and the denial of the permit by the Board. They also alleged the appeal to the Baltimore City Court and the result thereof, stating that the presiding judge declined to hear any additional testimony. They asked that an injunction be granted restraining and enjoining the Mayor and City Council of Baltimore from interfering in any way with the use and occupation of the premises. They also asked for a declaratory decree, declaring that they had a non-conforming use in the property.

After answer filed, testimony was taken before Chancellor Byrnes in the Circuit Court of Baltimore City.. On April 17, 1953, he dismissed the petition of the appellants on the ground that the matter had been previously determined by ⁵¹¹ Judge Warnken. From that order appellants appeal here. As to the complaint of appellants that the Baltimore City Court refused to hear additional testimony and decided the case on the record before the Board, this Court said in Mayor and City Council of Baltimore v. Shapiro, 187 Md. 623 , decided February 12, 1947, at page 631: “Even if we assume, for the purposes of this case, that the Court, on review, has not only the right but the duty to hear additional evidence if ‘it shall appear to the court that testimony is necessary for the proper disposition of the matter’ (Code, Art. 66B, Sec. 7), some latitude must be allowed to the trial Judge in passing upon a proffer in a particular case.

The Board is the body to which decision is ‘principally committed’, and it is incumbent upon a party to produce evidence before that body before seeking a review of the Board’s action. Compare Hathcock v. Loftin, 179 Md. 676 , 22 A. 479 .” Furthermore, there was no appeal from the refusal of Judge Warnken to hear additional testimony in that case. If such an appeal had been taken, this Court might have remanded the case for the taking of further testimony as in Dorman v. Mayor & City Council of Baltimore, 187 Md. 678 , decided March 13, 1947. Paragraph 13(f) of the Zoning Ordinance No. 711, adopted May 21, 1953, and not in effect at the time this case was decided below, now provides: “Whether a non-conforming use exists or whether a non-conforming use has been abandoned shall be a question of fact and shall be decided by the Board of Municipal and Zoning Appeals after public notice and hearing and in accordance with the rules of the Board.

However, where the records, permits and the Police Survey of 1931, all filed in the office of the Zoning Commissioner, show the existence of a non-conforming use on March 30, 1931, and the continued, uninterrupted use thereof to the date of inquiry or application and a field inspection confirms the record by virtue of the construction, design and arrangement of the building or use in question, the ⁵¹² Zoning Commissioner may issue a certificate of occupancy without referring the matter to the Board of Municipal and Zoning Appeals.” Paragraph 11, of Zoning Ordinance No. 1247, in effect at the time this case was tried below, provided: “Nonconforming Uses. A non-conforming use is a use that now exists and that does not comply with the regulations for the use district in which it is established. A nonconforming use may not be extended, except as hereinafter provided, but the extension of a use to any portion of a building, which portion is now arranged or designed for such non-conforming use, shall not be deemed to be an extension of a non-conforming use. A non-conforming use may be changed to a use of the same classification or to a use of a higher classification.

A non-conforming use, if changed to a use of a higher classification, may not thereafter be changed to a use of a lower classification. If a use, for which an ordinance is required under the provisions of Section 4, is changed to a use for which no ordinance is required under those provisions, it may not thereafter be changed to a use for which an ordinance is required without such an ordinance. Nothing contained in this Article shall be construed to prevent the continuance of any use which now legally exists.” Paragraph 41, of Zoning Ordinance No. 1247, in effect when this case was tried below, provided: “Procedure in Case of Non-Conformity. If, on an inspection, the condition of a building or land or its use or occupancy are found not to conform to the requirements of this ordinance or the conditions of an existing certificate of occupancy, the Zoning Commissioner shall at once issue written notice to the owner, specifying the manner in which the building or land or its use or occupancy fails to so conform, and the owner shall at once take steps to make it so conform, as directed by the Zoning Commissioner; and the Zoning Commissioner shall order the use or the occupancy of the building or land modified or the building or land vacated or building operations stopped until its condition ⁵¹³ is made to conform to the requirements of this ordinance, at which time a certificate of occupancy shall be issued as herein provided.” Under this section the Zoning Commissioner had the right to issue a written notice to the appellants of the non-conformity.

Section 34(d), of Zoning Ordinance No. 1247, provided in part: “Appeals to the Board of Municipal and Zoning Appeals may be taken by any person aggrieved, or by any officer, department, board or bureau of the municipality affected, by