Beyer v. Mayor of Baltimore

Marbury, J., delivered the opinion of the Court. Solomon Gudis made application on September 25, 1942, to the Building Engineer of the City of Baltimore for a permit to use the premises 1 to 15 West Wheeling Street for the purpose of storing, buying and selling rags, paper, iron and metal, or in common par ⁴⁴⁶ lance, for the purpose of there conducting a junk business. His application was the same day disapproved under Paragraph 6 of the zoning ordinance of Baltimore City, which is Ordinance 1247, with amendments. The reason for such disapproval was that the property was located in a second commercial use district as provided by Paragraph 4 of the ordinance and that in such district no land or building can be used for a junk shop.

Gudis appealed to the Board of Zoning Appeals, where there was a hearing on October 6, 1942. The board granted him a permit after hearing certain protestants. That conclusion was reached because, in the opinion of the board, there was a non-conforming use attached to the premises under Paragraph 11 of the ordinance, which had not been lost by the owner. The appellants here, who were taxpayers of the City of Baltimore, filed a petition and appeal from the action of the Board of Zoning Appeals in the Baltimore City Court.

This was answered by the Mayor and City Council of Baltimore, upholding the action of its Board of Zoning Appeals. Solomon Gudis, on his petition, was also made a party defendant. After testimony was. taken in the Baltimore City Court, an order was passed affirming the decision of the Board of Zoning Appeals and from this order the appeal to this court was taken. Non-conforming uses have been before this court in' several cases.

They are common to all zoning statutes or ordinances and are those permitted by such statutes or ordinances to continue even though similar uses are not permitted in the area in which they are located. The reason for this is stated in a leading work on the subject: “The view that has been followed is that a few non-conforming buildings and uses if allowed to continue will not be a substantial injury to a community if only such non-conforming buildings are not allowed to multiply where they are harmful or improper. Zoning has sought to safeguard the future, in the expectation that time will repair the mistakes of the past.” Bassett on Zoning, Chap. V, p. 105.

The provision in the Bal ⁴⁴⁷ timore City ordinance is contained in Paragraph 11, which reads as follows: “Non-conforming Uses. A nonconforming 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 non-conforming 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 nonconforming 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 Paragraph 4, is changed to a use for which no ordinance is required under those px*ovisions, it may not thereafter be changed to a use for which an ordinance is required without such an ordinance. Nothing contained in this ordinance shall be construed to prevent the continuance of any use which now legally exists.” The non-conforming use claimed to have attached to the premises was that of operating a slaughter house. It appears undisputed that such an operation was started there in 1810 and was continued until 1938.

This was entirely in the control of one family, the Kriels, and at the time of the hearing before the Board of Zoning Appeals, Mr. Andrew G. Kriel, president of the C. G. Kriel Company, owner of the property, so testified. Gudis in his testimony stated that he was owner of the property, and his counsel added “under a contract.” This point is not further elaborated, but we assume Mr. Gudis is buying the property from the Kriel Company under a contract of sale. Two points are made with respect to the non-conforming use of the property. One is that it has been lost by change to a use of higher classification.

The other is that it has been abandoned. The conduct of a slaugh ⁴⁴⁸ ter house is forbidden in a second commercial use district so that in this respect such use, and use as a junk shop, belong to the same classification. If, therefore, after the slaughter house was discontinued in 1938, the use was not changed to a higher classification, or was not abandoned, the property could be legally used as a junk shop. On the other hand if the use has been changed to a higher classification, or if it has been abandoned, then there is no longer a non-conforming use there, and the use of the property as a junk shop is forbidden.

Mr. Kriel, as stated above, testified before the Zoning Board Appeals, but did not appear before the court. The reason for this does not appear. In his testimony before the board he was asked whether, when in 1938 he ceased the killing of cattle and animals on the premises, was it his intention, or was it his intention at the time of the hearing, to abandon the use established there for 128 years. He replied: “Absolutely not.” He was then asked whether he had used the property for other purposes since 1938, and he said it had been used for various ■ purposes.

Then the following question and answer are found in the record: “Q. But you never intended to abandon the use of the premises? A. We were probably waiting for more favorable opportunities to go back into it.” The slaughter house property used by the Kriels consisted of some buildings on Henrietta Street, which ran all the way through to the north side of Wheeling Street. An overhead bridge ran from one of them to the property in question on the south side of Wheeling Street. The entire property was used as a slaughter house, and this was the only location the Kriels had in Baltimore City for that purpose.

A protesting witness before the Board of Zoning Appeals stated that all the machinery and all equipment had been moved out, and the entire stock and equipment sold, and the buildings rented for other purposes. That particular witness bought piping and iron from the machinery in the boiler ⁴⁴⁹ room. In answer to this general statement, Mr. Kriel testified that it had been used since 1938 as a storage warehouse until such time as he wanted to go back into the slaughtering business, which he intended to resume when a more favorable opportunity presented itself. He said the statement that the premises were dismantled was incorrect.

That the obsolete machinery was disposed of and the modern machinery is still in the plant, though he did not enlarge on this or testify how much modern machinery was still there. He, however, denied that in temporarily closing down, and in getting rid of the machinery that he did dispose of, he intended to abandon the premises for use as a slaughter house, and said that his intention was to rent it out temporarily until such time as it would be more suitable to continue the business. The testimony of other witnesses before the court, however, puts a different light on the picture. One of these, whose property is across an eight-foot alley from the building, says that after the Kriels ceased operation in 1938, the first floor of the building was used as a garage and storage place for furniture, and that he had been in there to look at it and that he had seen all kinds of furniture, refrigerators and various other things such as a furniture company would store, and large tractor trailers were bringing furniture every few days from factories in North Carolina.

He himself had stored some cans in the Henrietta Street building and when he went up there he did not see any machinery on the first, third or fourth floors, all that he saw was furniture piled up. Another witness, one end of whose property runs into Wheeling Street, said that he saw wreckers come to the Kriel property, take down a smokestack, get out the boilers; saw trucks taking away the hooks and rails that animals are swung on after being killed, and saw other machinery being taken out. He said the smokestack was about 150 feet above the building and that it took nearly a week to take it down. It was made of very heavy sheet steel and had to be burnt down in ⁴⁵⁰ sections.

That the property 1 to 15 West Wheeling Street has been used for storing obsolete machinery and then it was used for storing automobiles. A'pie company had stored trucks there, and a furniture company stored furniture in it. There was a For Sale sign on the Henrietta Street building and there is still such a sign there. Another witness bought pipes and old lumber from the Henrietta Street property and he testified from his records that he purchased 900 feet of pipes, and lumber consisting of old bins.

He said that the property was dismantled, and wooden partitions were taken out of the Henrietta Street property. Another witness purchased pipe from a man named Pierce who got it from the Kriel place. He removed 40,000 pounds of galvanized, two-inch pipe that had been used for refrigeration from the Henrietta Street building in 1939. Another witness, whose place of business was a block and a half from the Kriel