Board of Zoning Appeals v. Gue

Prescott, J., delivered the opinion of the Court. This case originated before the Zoning Commissioner of Baltimore County on a complaint filed by the appellees, which alleged a violation of the Zoning Regulations in that an au ¹⁸ tomobile repair shop was being operated on land owned by the appellant, Daniel W. Wheeler, said land being zoned residential. The Deputy Zoning Commissioner found that the subject property had been vested with a non-conforming use, which had been discontinued by the owner, and ordered the repair shop to cease operating. The appellant herein filed an appeal to the Board of Zoning Appeals (Board), and, after a hearing, the Board, with its chairman dissenting, found that the non-confórming use had not been discontinued and reversed the order of the Deputy Zoning Commissioner.

On certiorari to the Circuit Court, this action of the Board was reversed. For many years prior to the adoption of the original zoning regulations in Baltimore County on January 2, 1945, a blacksmith and automobile repair shop had been conducted in a small old wooden barn on a tract of land containing 5.82 acres of which the property in question was a part. This property is located at the intersection of Nicodemus and Cherry Hill Roads in the Fourth Election District of Baltimore County. At that time, it formed, roughly, a parallelogram with its northern boundary on Cherry Hill Road and its eastern boundary (the longer) on Nicodemus Road.

It was improved by an old dwelling and the barn mentioned above, both of which were close to, and had their combined entrance from, Cherry Hill Road. The automobile repair shop was carried on in the small barn, and, while the evidence is not so explicit as desirable in describing the exact operations that were carried on on the remainder of the property, it does show that parts of old automobiles (fenders, springs, cushions, etc.) were widely scattered over the property as well as tin cans and other rubbish. The appellant contends that the dismantling of the automobiles took place all over the remainder of the property in addition to the use of the old barn for the same purpose. The appellant purchased the property in 1946 and it is claimed that tenants continued to operate an automobile repair shop in the old barn until 1948, when appellant erected a building on another part of the property (the subject of this case) to be mentioned later.

Whatever their operations ¹⁹ were, they could not have been extensive, for the appellant stated he was only paid $10.00 as rent from 1946 to the fall of 1948. As soon as the appellant purchased the property in 1946, he began to clean it up. He gradually cleared off the rubbish and old automobile parts and in 1948 completed this cleaning process by placing all of the remaining rubbish and old automobile parts in a ravine and covering them over with soil. He made application to the Baltimore County authorities and received a permit to construct a “Garage and Farm Implement Accessory Building” on a portion of the property facing on Nicodemus Road nearly one hundred yards distant from the location of the old barn, which was close to, and had its entrance from, Cherry Hill Road.

This new building was of one-story concrete block construction of the general type of a garage. Shortly after the new building was completed, the appellant tore down the old barn. The new building was rented to the Schulte Iron Works, engaged in the welding and manufacture of ornamental iron railings, until August of 1954. The new building remained vacant until December 1954, when it was rented to a Mr. Staines, who conducted an automobile repair shop on the premises until the order of the Deputy Zoning Commissioner directed him to cease his operation.

In 1950, the appellant sold that portion of his land occupied by the old dwelling including the location of the old barn. The disputed area is now approximately one acre of land, surrounding the new building, that was included in the original 5.82 acres. When Baltimore County first adopted zoning, effective January 2, 1945, its regulations (Section XI) provided that a lawful non-conforming use existing on the effective date of their adoption “may continue, provided, however, upon any change from such non-conforming use to a conforming use, or any attempt to change from such non-conforming use to a different non-conforming use or any discontinuance of such non-conforming use for a period of one year, * * * the right to continue to resume such non-conforming use shall terminate, * * The regulations also provided that any lawful non-conforming use may be extended or enlarged to an extent not more than “once again” the area of the land ²⁰ used in the original non-conforming use. (These provisions have since been changed.

See section 104.1 Zoning Regulations for Baltimore County, 1955.) The appellant contends that the one acre in question was vested with a lawful non-conforming “light industrial” use as of January 2, 1945, the effective date