Daniels v. Board of Zoning Appeals

Henderson, J., delivered the opinion of the Court. These appeals are from the action of the Circuit Court for Baltimore County affirming orders of the Board of Zoning Appeals declaring that LeRoy Daniels had established a non-conforming use as to the rear portion of lots 23 to 28, inclusive, in Block 6 of Catonsville Manor, but not elsewhere, and that Willard A. Daniels had failed to establish a non-conforming use ³⁸ in Block 5 of Catonsville Manor. The. cases originated before the Zoning Commissioner, apparently on the complaint of neighboring residents, the appellants here appealing from his orders to the Board of Zoning Appeals. The authority of the Zoning Commissioner to conduct hearings and pass the orders is not questioned, under Rule 7 of the regulations adopted pursuant to the provisions of Chapter 502, Acts of 1945 and Title 23, Secs. 366, and 367 of Smith’s Code of Public Local Laws of Baltimore County.

This rule provides: “In addition to his aforesaid powers the Zoning Commissioner shall have the power, upon notice to the parties in interest, to conduct hearings involving any violation or alleged violation or non-compliance with any zoning regulations, or the proper interpretation - thereof, and to pass his order thereon, subject to the right of appeal to the Board of Zoning Appeals as hereinafter provided.” The violation for which they were cited was -junking and dismantling automobiles in an area zoned residential. They claimed a valid and subsisting non-conforming usé. The appellants contend that the burden of proving the abandonment or discontinuance of a non-conforming use rests upon the protestants, citing Appeal of Haller Baking Co., 295 Pa. 257 , 145 A. 77, 79 . If that be a correct statement of the law, it would seem to follow that the burden of establishing a non-conforming use in'the first instance would rest upon the claimant.

We find it unnecessary to pass upon these questions, for here the case was decided, adversely to the claimants at every stage, upon voluminous testimony produced by each side, including a remand to the Board for the taking of additional testimony, and the determinative question is whether there was substantial evidence to support the. findings. Cf. Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623 ; Bensel v. Mayor and City Council of Baltimore, 203 Md. 506 ; and City of Baltimore v. Weinberg, 204 Md. 257 . Section XI of the Baltimore County Regulations recognizes that “a lawful non-conforming use existing on ³⁹ the effective date of the adoption of these regulations 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, provided, however, that any such lawful non-conforming use may be extended or enlarged to an extent not more than once again the area of the land used in the original non-conforming use.” While there was some evidence of abandonment, in the reports by Inspectors of the Zoning Department that they found no physical evidences of an automobile junk yard anywhere on the tract in July, 1947, at a time when LeRoy Daniels, by his own admission, was in jail for a period of seven months, the main stress, in the opinions of both the Board of Zoning Appeals and the trial court, was on the failure of the appellants to show that the use claimed was existing prior to the effective date of the regulations on January 2d, 1945.

LeRoy Daniels testified that the junking business began in 1936, when his father, Willard E. Daniels, moved to Carroll Street, in Block 6, with his four sons. At that time there were few houses in the neighborhood, and no paved streets. The father’s house was located on lot 27. LeRoy Daniels testified they used the whole block, which he described at one point as a field, for wrecking cars, although the father only owned lots 23-28, inclusive.

In 1941, LeRoy built a house of his own on Queen Anne Street in