City of Hagerstown v. Wood

Digges, J., delivered the opinion of the Court. This appeal involves the question of the continuation of a non-conforming use in a residential zone. Upon contracting to purchase the property in question, the appellee, Everette Wood, Jr., trading as Belwood Moving and Storage Company, made application to the building inspector of the appellant, the City of Hagerstown, for a license to alter the premises. He planned to create a side door for loading and unloading household furniture in a moving and storage business.

The testimony later given before the Board of Zoning Appeals reveals that this was ⁵⁶⁰ not a major moving and storage venture involving the use of tractor trailers, but only one utilizing four “straight trucks” or vans. The building inspector denied the application on the grounds that “a building or storage warehouse cannot be used for storage of household effects in a residential ‘A’ district.” This ruling was appealed to the Hagerstown Board of Zoning Appeals where it was upheld. The testimony there revealed, however, that this was not simply a question of allowing a prohibited use in a restricted zone. The premises involved had been certified as late as 1965 as a non-conforming use for light manufacturing in a residential district.

The problem was that although the appellee’s witness indicated it had been used continuously since 1952 for light manufacturing purposes, protestants to the application testified that by 1966 the property had been used purely for retail sales, a higher or less obnoxious use than manufacturing under the Hagerstown Zoning Code, § 68-15 (11). The formal motion and decision of the board further denying the application is totally obscure as to the grounds for refusal and might well justify a remand for failure to comply with the mandate of the Hagerstown Zoning Code, § 68-31 C, to show the grounds for the decision, but the question presented on appeal to the trial court (Rutledge, J.) was a purely legal one, and that was whether the same or a less obnoxious use could be continued on property designated for light industrial use. The court ruled that the dispute over changing from a manufacturing to a retail business was moot, in the true sense of the word, that is, it was a hypothetical debate since under Section 68-21 of the Zoning Code the proposed use was allowable whether or not the property had been used for retail purposes since 1966. The pertinent part of that ordinance provides that “ [a] nonconforming use may be changed to a use of the same classification or to a use permitted in a more restricted district but such a use shall not thereafter be changed to a use permitted in a less restricted district.” Agreeing with the trial judge that this is a purely legal ⁵⁶¹ question we uphold his reversal of the Board of Zoning Appeals’ decision.

Under this statute the appellee had a right to continue in the same or a higher classification. Assuming he did in fact move up from manufacturing to retail business, as long as he did not go back to manufacturing, he could continue his nonconforming use of the premises indefinitely. We will not repeat our extensive elaboration of the authorities that are cited for this proposition in Phillips v. Zoning Commissioner, 225 Md. 102, 111 , 169 A. 2d 410 (1961) and in Higgins v. City of Baltimore, 206 Md. 89, 96, 37 , 110 A. 2d 503 (1955). The only twist that this case presents is that under appellant’s view the property owner had already utilized the property for a retail use and this is now a change to a second retail use.

Since no one could have successfully contested the first change from manufacturing to retail activity, there is no reason for us to question that right now. As we understand this statute the appellee cannot go up the down staircase, but he can remain where he is, or continue descending. If he were for example to permit the property to be utilized for a use allowed in a service district, a more restricted classification, he could not thereafter return to a retail use. But as long as he remains within the retail classification under the Hagerstown ordinance, he is entitled to change the use of the building to any of the uses listed in § 68-15, assuming he complies with other