Dorman v. Mayor C.C. of Balto.

Markell, J., delivered the opinion of the Court. This ah appeal from an order affirming the decision of the Board of Zoning Appeals, which reversed a decision of the Buildings Engineer disallowing an application “to permit the continued use of the premises for a junk shop at 816-818-820 E. Lexington Street.” The question presented is whether this non-conforming use in a second commercial use district had been abandoned by the former owners of the property—or changed by them to a use of a higher classification, viz., a warehouse. If it had not, then it would seem that no “permit” or “certificate of occupancy” (Par. 36, Zoning Ordinance, No. 1247, approved March 30, 1931) would be required to “continue” the non-conforming use (Par. 11). If, however, the non-conforming use had been abandoned, then the “permit” or “certificate of occupancy” would be unlawful and approval of it should be reversed.

A similar question of abandonment was raised and decided on application for a “certificate of occupancy” in Landay v. Board of Zoning Appeals, 173 Md. 460, 462, 463 , 196 A. 293, 295 , 114 A. L. R. 984. Appellant is the owner of the adjoining property Nos. 810, 812-814, which he bought in September, 1945, and has occupied and used since January, 1946, in the operation of a wholesale electric supplies business. The building he bought was an old building, which he remodeled completely. He says he examined the neighborhood at the time he bought and saw no evidence of the operation of a junk shop at the premises now in question (Nos. 816-820). ⁶⁸¹ These premises were owned by William Sachs from 1903 until his death in April, 1944.

From 1903 until 1920 he alone, and from 1920 until 1939 he and his son, Samuel, conducted a junk shop on the premises. In 1939, after a disagreement between father and son, the son left the business and never returned; later he became employed in a war plant until August, 1945. After he left, the father, who was advanced in years and not in robust health, retired from the business and rented the premises for a junk business. The premises consist of an irregular shaped lot, fronting 38 feet on Lexington Street, with a depth of 221 feet, with access to the rear through an alley.

There is a warehouse fronting on Lexington Street, with a depth of 40 feet. In the warehouse was a platform scale. In the rear yard were several sheds, one of which contained metal-cutting power shears. A small brick building contained hand scales.

Trucks were also kept in the yard. The present owner (Heneson, appellee) proffered evidence (which the court excluded) that in 1941 Wyatt Sklar rented the premises from Sachs, by a lease which terminated January 31, 1942, and operated a junk business there, and that after a serious fire, on October 19, 1942, which damaged the premises, Sachs approached Sklar (who had then established his junk business elsewhere), expressed a desire to have a junk business on the premises and offered to restore the premises and lease them to Sklar for this purpose, which offer Sklar was “reluctantly compelled” to decline. There was also proffered, but excluded, a lease from Sachs to Jacob Schenk, dated October 31, 1941, of the premises, “including the truck scale, platform scale and alligator shear with electric motor and equipment”, all “a part of and attached to” the premises, for three years beginning February 1, 1942, at $1800 a year, for the purpose of “a retail and wholesale junk business” and no other purpose. The lease contained a provision that if the property should be destroyed or rendered untenantable by fire the tenancy should be terminated, but if the damage should not render the premises untenantable, ⁶⁸² they should be restored by the landlord and the rent should “abate proportionately until restored.” On October 19, 1942, a serious fire damaged the premises.

Schenk’s tenancy was terminated, and litigation ensued. Appellant proffered, but the court excluded, testimony of Schenk that he asked Sachs to repair the premises but Sachs refused to do so, because after the fire Sachs refused to permit occupancy of the premises for the conduct of a junk business, and that upon removal from the premises Schenk removed therefrom all junk and other materials used in the operation of the junk business, leaving the premises “broom clean.” After the fire the building was not wired for electricity until 1946, and the power shears therefore presumably were not used or usable. There was also proffered, but excluded, a lease from Sachs to William Glick, dated April 30, 1943, of the premises “144 feet back from Lexington Street”, for six months beginning May 1, 1943, at $100 a month, for the purpose of “storage for trucks, trailers and theatrical properties” and no other purpose. This tenancy actually continued from month to month until 1946, after sale of the premises by Samuel Sachs to Heneson.

Samuel was his father’s executor. Samuel and his sister were the only children—or the only devisees. In 1944 the premises were conveyed by Samuel and his sister, through an intermediary, to Samuel. In 1944 Samuel, as executor, reported sale of the “iron cutting shear and motor” for $100, two trucks for $50 each, 22 bales of “wool rags” for $100, and “miscellaneous iron” for $25.

In his individual capacity he reacquired these articles, and they were not removed from the premises. Later he sold the rags, which were “vulnerable to moths” and the two trucks “because of their old age”. After he left the war plant in August, 1945, he says he “considered” going back into the building, but “because of labor conditions and economic conditions generally” he did not do so. There was offered or proffered opposing evidence: On the one hand, that William Sachs after retiring from ⁶⁸³ the business said he was never going back into it, in January, 1942 (for reasons not clear) complained to the Fire Department about the use of the premises for a junk business, and after the fire refused to rent the premises as a junk shop and said the premises would never be used for a junk business again, that after the fire there was no junk on the premises (but considerable “rubbish” in a corner of the yard) and no junk business conducted there, and after the father’s death the son had sold the “main scale” that was used for operating the junk business in the building, and there was no platform scale there.

On the other hand, that Sachs had expected his son to come back with him after the war, had after the fire asked his real estate broker to procure a tenant who was in the junk business, and when the broker was unable to procure such a tenant, accepted Glick as a “temporary” tenant, and that the broker saw “a considerable quantity of scrap materials in the back” of the premises and Sachs “apparently was storing salvage materials and still operating in a small way this junk business.” Before the Board the broker testified that Sachs wanted him “to rent the property on a month-to-month basis for whatever purpose I could rent it,” because of his hope of his son’s return. After the fire and the lease to Glick, Sachs apparently had some unsold junk or “rubbish” in the yard, and perhaps in the building, and may have made occasional sales of his unsold junk, but we find no reason to believe that he conducted a junk business or made a “business use” of the yard or the building. Such “storage” may or may not have constituted a nuisance or a prohibited use under Paragraph 6(d) 35 of the Zoning Ordinance: “Junk (scrap paper, metals, bottles, rags, rubber) yard or shop for purchase, sale, handling, baling, or storage of these.” This court has in a number of cases passed upon questions as to existence, continuance or abandonment of a non-conforming use. An existing business use ordinarily combines two factors, (a) construction or adaptability of the property for the purpose and (b) use of ⁶⁸⁴ it within the purpose.

Chayt v. Zoning Appeals Board, 177 Md. 426, 434 , 9 A. 2d 747 ; Mayor and City Council of Baltimore v. Shapiro, 187 Md. 623 , 51 A. 2d 273 . The existence of a plan—or a mere “hope of reconciliation” between father and son—is not an existing business use. “* * * it would be unlikely that a zoning ordinance would make provision for so unsubstantial a thing as a plan in mind. * * * The law would not be concerned to regulate a change of intention.” Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 453 , 34 A. 2d 765, 768 , quoting Chayt v. Zoning Appeals Board, supra. The question of abandonment—or change of use— must be similarly approached. Abandonment depends upon concurrence of two factors, (a) an’ intention to abandon and (b) some overt act, or some failure to act, which carries the implication that the owner does not claim or retain any interest in the subject matter.

Time is not an essential element, but may be evidence of intention to abandon and may be considered in connection with acts manifesting such an intention. Landay v. Board of Zoning Appeals, supra, 173 Md. 469, 470 , 196 A. 293 , 114 A. L. R. 984; Beyer v. Mayor and City Council of Baltimore, supra. The nature of the subject matter must be given due consideration. The right under Paragraph 11 to “continue” a non-conforming use is not a perpetual easement to make a use of one’s property detrimental to his neighbors and forbidden to them.

It is not like the right of a patentee to exclude the world from the use of an invention without any use of the invention by the patentee himself. Paper Bag Patent Case, 210 U. S. 405 , 28 S. Ct. 748 , 52 L. Ed. 1122 . It is only “to avoid injustice that zoning ordinances generally except existing non-conforming uses. * * * The public effort is not to extend [non-conforming uses], but rather to permit to exist as long as necessary, and then to require conformity for the future. * * * The mere cessation of the úse for a reasonable period does not of itself work an abandonment, but once the abandonment is clearly indicated by intention and action, or failure of action for a sufficient period of time, then' the owner ⁶⁸⁵ has lost his right to the non-conforming use, and must use his property only in conformity with the uses allowed to other properties in the neighborhood. Were the law