Brown v. Fertitta

Hammond, C. J., delivered the opinion of the Court. Back before us is Albert J. Fertitta, who over the years has shown a Houdini-like skill in evading the commands of the zoning laws that he was not entitled to use his property in Middleborough, Baltimore County (lots 207, 208 and 209 Corsica Road), fronting on Norman Creek, a tributary of Middle River, as a boatyard or marina. The history of Mr. Fertitta’s endeavors—largely successful—to run around the ends of zoning restrictions is spread on the pages of the decision in Fertitta v. Brown, 252 Md. 594, 599 , where, in affirming the order of the trial court that at last he had reached the end of the line, we said: “* * * [this] should mean that Fertitta will not this year, or in the years to come, unless the law is changed, greet the spring flowers [Mr. Fertitta is a florist] by resuming the operation of his marina at 208 Corsica Road, being entitled to use lot 208 Corsica Road only for those uses permitted under his present Business Local zoning and not barred by the orders of the zoning commissioner of August 28, 1962 and July 31, 1963.” The tentative suspicion of the Court that the law might be changed to Mr. Fertitta’s advantage has proved to be justified. On October 24, 1966 Baltimore County adopted a new comprehensive Eastern Area Land Use Map.

The commercial classification on Mr. Fertitta’s lot 208 was removed and the lot put in the R-6 residential classification, as were lots 207 and 209. This gave him an area of some 0.726 acres, all zoned R-6. Section 270 of the Baltimore County Zoning Regulations (1969 Ed.) makes a boatyard a permissible use in a residential zone if the zoning commissioner or the ⁷⁰³ County Board of Appeals, on appeal, grants a special exception for such use. As a prerequisite to granting any special exception, § 502.1 of the County Zoning Regulations requires the granting authority to find that the requested use will not: “a.

Be detrimental to the health, safety, or general welfare of the locality involved; b. Tend to create congestion in roads, streets or alleys therein; c. Create a potential hazard from fire, panic or other dangers; d. Tend to overcrowd land and cause undue concentration of population; e.

Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences; or improvements; f. Interfere with adequate light and air.” In April 1970 Mr. Fertitta filed a petition for a special exception to use lots 207, 208 and 209 for a boatyard. The zoning commissioner denied the request, finding that the petitioner had not met his burden of showing that the use applied for would not offend the standards of § 502.1 of the County Zoning Regulations. An appeal was taken to the County Board of Appeals.

The applicant presented probative evidence that the use he would make of lots 207, 208 and 209 would not cause any of the harms § 502.1 guards against. The protestants offered probative evidence that