Futoryan v. Mayor and City Council of Baltimore

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned. “Conditional Use” and “Special Exception” Are Synonymous Terms This case concerns what in Baltimore City zoning law is referred to as a “conditional use,” but in the zoning lexicon of the rest of the State is known as a “special exception.” Schultz v. Pritts, 291 Md. 1, 20-21 , 432 A.2d 1319 (1981); Rockville Fuel and Feed Co. v. Board of Appeals, 257 Md. 183, 187-88 , 262 A.2d 499 (1970); Eastern Outdoor Advertising Co. v. Baltimore, 128 Md.App. 494, 525-26 , 739 A.2d 854 (1999); Richmarr v. American PCS, 117 Md.App. 607 , 643 n. 26, 701 A.2d 879 (1997); Mossburg v. Montgomery County, 107 Md. App. 1 , 7 n. 3, 666 A.2d 1253 (1995); Cromwell v. Ward, 102 Md.App. 691 , 699 n. 5, 651 A.2d 424 (1995); Hofmeister v. Frank Realty Co., 35 Md.App. 691, 698 , 373 A.2d 273 (1977); Anderson v. Sawyer, 23 Md.App. 612, 617 , 329 A.2d 716 (1974). Although we will in this opinion be using the term “conditional use,” some of the case law we cite may use the term “special exception.” They mean exactly the same thing. The appellant, Lev Futoryan, here appeals from the decision of Judge Carol E. Smith in the Circuit Court for Balti ¹⁶⁰ more City, which affirmed the action of the Baltimore City Board of Municipal and Zoning Appeals in its denial of Futoryan’s application for a conditional use permit. The Miracle on Thirty-Fourth Street The property in question is located at 703-05 W. 34th Street.

It is zoned B-3-2. That zone consists, however, exclusively of the subject property itself, with residential zoning surrounding it on all sides. The property consists of a 64' x 122.5' lot improved with a one story 48' x 31' brick building. In terms of the surrounding neighborhood, the subject property is at the eastern terminus of the 700 block of West 34th Street in Hampden.

It is a block that has in recent years enjoyed statewide celebrity for its spectacular display of Christmas electrification, arcing the street itself and replete with model trains and other colorful displays. This seasonal efflorescence attracts thousands of visitors annually and has, with apologies to Maureen O’Hara, John Payne, and Edmund Gwenn, widely but informally come to be known as the “Miracle on Thirty-Fourth Street.” A Muddle of Issues A. The Formal Issue As the appeal has been presented to us, both in appellate briefs and in oral argument, the issue before us is perplexingly, if not hopelessly, muddled. On the surface, we have a case that appears to have begun on March 27, 2000, when Futoryan filed his Permit Application for the conditional use of his property as “an automobile repair garage for under 1-k ton capacity vehicles, in conjunction with an open off-street parking and motor vehicles sales lot.” The filing by Futoryan, moreover, was expressly an application for a conditional use. It was not a protestation that such an application was unnecessary.

Consideration of that application proceeded routinely. On April 7, Futoryan received notice from the Executive Director ¹⁶¹ of the Board of Zoning Appeals that his “application to use the premises for an automobile repair garage” would be scheduled for a public hearing. As of June 10, there was conspicuously posted on the property a Notice that a public hearing would be held on June 20 on the application “for a permit to use the premises for an automobile repair garage.” On June 20, as scheduled, a public hearing was held with respect to the “permit to use premises for an automobile repair garage.” Two witnesses testified in favor of the application and seven witnesses testified against it. Reports were submitted by 1) the Baltimore City Fire Department, 2) the Parking Coordination Section and Transportation Engineering Division of the Department of Public Works, and 3) the Department of Planning.

Written protests were received from 1) the Hampden Village Merchants’ Association and 2) the Wyman Park Community Association. On June 29, the Board of Zoning Appeals filed its written opinion and decision, denying the application. The entire hearing before the Board had proceeded on the universal assumptions 1) that a conditional use permit had been applied for and 2) that a conditional use permit was required. The formal decision of the Board was: In accordance with the above facts and findings, the Board disapproves the application.

Indeed, most of what Futoryan now argues as the basis for this appeal is in the unmistakable procedural context of 1) an application for a conditional use permit, 2) a hearing on that application, and 3) an allegedly erroneous denial by the Board of that application. The primary, if not the exclusive, issue before us, therefore, is the propriety of the Board’s consideration of and denial of Futoryan’s application for a conditional use. That is something we could readily examine on the assumption that the entire process began with the filing of Futoryan’s application on March 27, 2000, and that no earlier history was in any way implicated. ¹⁶² B. The Shadow Issue What muddles our perception of what is before us, however, is an incorporeal shadow issue. It is a ghost-like contention that was never formally raised, certainly not before the Board of Appeals, but that nonetheless remains as a spectral presence in the wings that will neither step to center stage nor obligingly go away.

Futoryan at times comes close to arguing before us, never more than allusively but yet more palpably than he did before the Board, 1) that he had an earlier conditional use permit; 2) that what he subsequently did with his property did not amount to a “change” within the contemplation of the zoning law; and 8) that he did not, therefore, need the new conditional use permit he applied for on March 27, 2000. Such a framing of the issue, of course, utterly transforms the character of the question before us on this appeal. The appeal Futoryan actually has taken and the shadow appeal he might have taken are in a sense inconsistent with each other. Paradoxically, he seems to be contending that his application for a conditional use was erroneously denied because it was not needed.

There is something that somehow jars one’s sense of logic in the assertion, “I should have been granted ‘A’ because I didn’t need ‘A’.” Such a premise, indeed, might seem to call for the very opposite conclusion. To be sure, the catalyst for Futoryan’s application of March 27, 2000, was that he had been issued a violation notice for allowing the garage to operate without a proper zoning permit. The violation notice indicated that there had been a change in the use of the property necessitating a new permit and that no such new permit had been obtained. If there had been such a change in use, Futoryan, indeed, required a new conditional use permit and was in violation of the zoning code for operating without one.

If, on the other hand, there had not been such a change, Futoryan was not in violation of the zoning code and no new permit was required. For purposes of the present appeal, however, those events, although historically edifying, are beside the point. Wisely or ¹⁶³ foolishly, Futoryan did not challenge the violation notice by offering as a defense that no change had occurred. No issue concerning change was joined at that procedural stage of the case.

For better or for worse, Futoryan simply proceeded with the new application process as if he accepted the fact that that was the appropriate step to take. Futoryaris immediate preservation problem is that even subsequently he did not raise before the Board these intertwined issues of 1) no change in use; and 2) consequently, no need for a new conditional use permit. Although those issues were never formally raised, however, there were nonetheless periodic allusions to the historic circumstances suggesting that such issues could have been raised if someone had made the effort. They were, at the very least, part of the clearly audible background noise.

The real-world-problem, as Futoryan understandably sees it, is whether he can continue to repair automobiles at 703-05 W. 34th Street. He is less concerned than we with how artfully he framed that problem before the Board. The literal appellate issue before us, by contrast, is whether the Board of Zoning Appeals was in error in deciding the question before it as it did on June 20, 2000. It matters to us, therefore, what the precise and formal question was that was before the Board for its decision.

This is our dilemma: whether to confine our review to the formal issue that was before the Board or to acknowledge and to treat the other issue lurking in the near shadows. C. The Issues Before Us In an effort at least to acknowledge proper appellate discipline without cavalierly ignoring the shadow issue from the real world, we are going to frame two issues for consideration. 1. Had there been a sufficient change in Futoryan’s use of the premises to require him to obtain a new conditional use permit? ¹⁶⁴ 2. Considering the question in a vacuum as a totally fresh application, was the Board' of Zoning Appeals in error in denying Futoryan’s request for a conditional use permit?

Although we have serious reservations about whether the threshold issue is properly before us, we will indulge Futoryan and address it. It is because our resolution of the threshold issue does not alter our ultimate decision in this case that we feel less compelled to be demanding about the preservation requirement than might otherwise be the case. Were it otherwise, our decision on preservation might be otherwise. In considering these contentions, we will try to keep the respective analyses in watertight compartments.

We will not, as does Futoryan, wander randomly back and forth between totally distinct questions. Confusingly, Futoryan commingles 1) the discussion of whether there had been a change in the use of the property into 2) the consideration of the merits of the application process. They do. not, however, - blend into a combined issue. The question of whether there had been a change in the preexisting use is exclusively a threshold issue.

If there had been no change in use, no new application for a conditional use would have been needed and the merits of a superfluous application process would become immaterial. Futoryan’s cause, if it were to have been pursued, should have proceeded down completely different procedural avenues. If, on the other hand, there had, indeed, been a change in the use of the property, then a new application for a conditional use was needed. That application process, from that point on, should have proceeded on its own independent merits just as if there had never been any preexisting conditional use as to the property at all.

Once the “change” phenomenon crossed the threshold and triggered the application process, it had totally served its function and should have disappeared from the case. To the extent, therefore, to which Futoryan argues that there had been no change, that argument will be confined to the threshold issue and should not be inserted into the distinct ¹⁶⁵ issue of the merits of the application process. Admittedly, however, trying to separate elements of analysis once they have been so thoroughly mixed is akin to trying to unscramble eggs. The Threshold Question Of a Change in Use A. The Early Histoiy On the threshold issue, the pre-March 27, 2000, history of the property and its use, which is immaterial on the merits of the application process, takes on critical significance.

Various memoranda and reports of the Zoning Administrator and staff, which were submitted to the Board and are part of the record, traced the zoning use of the property since 1958. In 1958 Atlantic Refining Co. obtained a permit to reconstruct a gasoline service station. With the passage of the New Comprehensive Zoning Ordinance No. 1051 on April 20, 1971, the subject property was zoned as a B-3-2 Business District. That zoning, however, applied only to the subject property.

It was, and still is, completely surrounded by residential zoning. Within the B-3-2 zone, both gasoline service stations and “garages, other than accessory, for storage, repair, and servicing of motor vehicles not over l-A-tons capacity — including body repair, painting, and engine rebuilding” are listed as conditional uses under § 6-408 of the Baltimore City Zoning Code (2000). Following the comprehensive rezoning of 1971, J. Morrison and F. Carozza obtained a conditional use permit to use the property as “a full-service gasoline station and auto repair shop.” The pertinent modern history of the property and its use begin with its purchase by Futoryan in 1992. On July 23, 1996, Permit No. 61589 was issued to Futoryan “to use premises for full service gas station including auto repair and sales.” That conditional use permit replicated Permit No. 417-83X, which had been issued to Morrison and Carozza in 1983.

That conditional use of July 23, 1996, is our point of departure for measuring any subsequent change. The appli ¹⁶⁶ cation for that permit indicated that the property was being “used for a gas station with repairs and sales” and that it would be continued “to be used for same.” B. The Arguable Change in Use The change, the significance of which remains to be decided, occurred at some time between late 1998 and the Spring of 1999. Prior to that time, the property had been used by Futoryan himself primarily to sell gasoline both to the public and to taxicabs, with auto repair as a distinctly auxiliary or secondary function. At about that time, Futoryan had the gasoline tanks removed and discontinued the use of the property as a service station.

Shortly after the gas tanks were removed in 1998, Futoryan leased the property to Koljit Gill or National Transportation, whose operations manager, Louis Johnson, testified as to the use of the property after National Transportation took over in April 1999. Johnson said National owned a fleet of taxis and used the property to repair and service the cabs as well as for the public. The facility is open 7 a.m.-ll p.m., 6 days a week. The remodeling of the waiting area and the installation of new lifts and equipment cost well over $100,000.

Two bays are in operation. C. The Legal Significance of a Change In Use The issue before the Board, and now before us, is whether the changes to the use of the property in 1998-1999 constituted a “change” within the contemplation of § 3 — 306(b)(2) of the Baltimore City Zoning Code. Section 3-306(b) provides: (b) Lawful preexisting uses reclassified as conditional. (1) If an existing lawful use is reclassified by this article as a conditional use in the district in which it is located, the use may be continued as a lawful conditional use subject to the conditions and restrictions previously imposed on it by law or regulation.

(2) Any change to that use, including any expansion, relocation, or structural alteration, is subject to the ¹⁶⁷ procedures and requirements imposed by this article on conditional uses. (Emphasis supplied). If there had, indeed, been such a change, Futoryan was then properly required to apply for a new conditional use permit authorizing the changed use of the property, in which case “the Board must begin the notification and deliberation process anew.” Cochrane v. Mayor and City Council of Baltimore, 147 Md.App. 470, 472-73 , 809 A2d 706 (2002). D. The Evidence of Change The question we have agreed to consider is whether the total elimination of what had theretofore been the primary use of the property and the expansion of what had theretofore been a secondary or auxiliary use to fill the resulting void constituted a sufficient change to trigger a new application process.

No less than six protesting neighbors testified to offensive conditions caused by the significant expansion of automobile repairs and body and fender work that had not been earlier posed by a gasoline service station. Mark Dent, who lives approximately 22 feet from the property, stated that the lot is unsecured, that children play in the area of the business, which is strewn with broken glass and cars on jack stands. He also stated that engines, tires, and transmissions are placed on top of barrels containing oil and trash. He added that no one would want to live nearby with the constant noise, filth, and dirt.

Elizabeth Callahan testified that cars brought for servicing are pushed into the bay and often drift into Keswick Road, creating a traffic hazard. She also stated that cabs in various mangled states are left on the sidewalk instead of the lot where they belong. Cabs are also parked “on the sidewalk and in the street there and in their driveway so that there is no access at all anywhere around.” She stated that the cabs are repaired on the sidewalk, which means that residents of the area have to walk into the street in order to avoid them. ¹⁶⁸ Marsha Henry stated that cars being cut in half and workmen yelling at each other above the noise awaken neighbors in the middle of the night. Diane Wallace testified that the cabs take up the neighbors’ parking spaces and are parked on the sidewalks along with Petitioner’s commercial tow truck.

Shirley Montgomery testified that the side of the building and the alley between the building and the residences are always piled with tires and cab doors and other equipment. That condition has existed ever since National leased the premises. Ms. Montgomery explained that, when wrecked cabs are brought in, all of the parts are removed in order to salvage the usable parts. The rest are thrown on the side of the alley.

James McDaniel stated that oil, grease, antifreeze, and debris run down the alley into the city drain and are also allowed to accumulate in the alley. In argument before the Board, Daniel Harvey, representing the protestants, summarized the change and its impact. What we’ve got here is a situation where we started with a neighborhood gasoline station with garages as an accessory use. There was inflow and outflow of cars on a regular basis, and it caused no problems, but what you’ve seen in the past 2 years is a morphing, is a change from a gas station use into a strictly garage and repair use with commercial vehicles, with repairs taking place inside the bays, outside of the bays, 20 cars on the lot, no room for circulation, and that is why the community has, has now risen to the occasion and said that there are problems with this use that we cannot tolerate.

(Emphasis supplied). After a member of the Board characterized what Mr. Harvey was describing as “a change in use ... from a neighborhood gas station,” Mr. Harvey went on: [L]et me point out that the last time this property was a subject of an appeal, No. 417-83X (1983), the proposal was to use the premises as a public, full-service gasoline station with automobile repair shop, no body and fender work and no painting. I think the pictures show to you that body ¹⁶⁹ work and fender work is taking place, and furthermore, in that decision of the Board, it was agreed that the premises would be landscaped along the frontage of Keswick Road. We can see that that did not take place.

(Emphasis supplied). E. The Quality of Change It is Futoryan’s position that if no totally new use is introduced into the mix, no change has occurred. We hold, to the contrary, that a significant alteration of the proportions of two or more elements in a mixture can just as surely constitute a change as can the introduction of a new element. A cup of coffee laced with a tablespoon of brandy is not the same thing as a glass full of brandy, and permission might well be required to switch from the former to the latter.

Even if A and B are both conditionally permitted uses, therefore, it was not, as a matter of law, capricious or arbitrary for the Board to conclude that a switch in a conditional use from a combination of 9 A’s and 1 B to a combination of no A’s and 10 B’s (or perhaps even 12 or 15 B’s) was a sufficient change in the character of a use to require a fresh approval process. 1 F. The Expertise of the Zoning Authority As to What the Zoning Code Means by “Any Change to that Use” When it comes to an interpretation by the Board of Zoning Appeals of what § 3-306(b)(2) of the Zoning Code means by the phrase “[a]ny change to that use,” it is particularly appropriate to note what Judge Eldridge said in Board of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999): ¹⁷⁰ Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily he given considerable weight by reviewing courts. (‘The interpretation of a statute by those officials charged with administering the statute is ... entitled to weight’). Furthermore, the expertise of the agency in its own field should be respected.

(Emphasis supplied). In Marzullo v. Kohl, 366 Md. 158, 173 , 783 A.2d 169 (2001), Judge Cathell similarly admonished: [E]ven though the decision of the Board of Appeals was based on the law, its expertise should be taken into consideration and its decision should be afforded appropriate deference. (Emphasis supplied). See also Angelini v. Harford County, 144 Md.App. 369, 372-74 , 798 A.2d 26 (2002); Bowman Group v. Moser, 112 Md.App. 694, 699 , 686 A.2d 643 (1996) (“In zoning matters, the zoning agency is considered to be the expert in the assessment of the evidence, not the court.”).

Based upon the extensive evidence before it, at the very least creating a fairly debatable issue, the Board, although it was not necessarily called upon to do so, found expressly that there had been a change in the character of the use of the subject property. In summary, the Board finds that the operation of the garage has changed since the Board’s prior approval in Appeal 417-83X [1983] and is operating without the approval that is required by the Board under (Section 3-306b(2) of the Zoning Code); and that the business/garage has been operating illegally and is not being operated in a professional manner. (Emphasis supplied). The Board, in its expertise, characterized what happened in 1998-1999 as a change in use of the kind necessitating a fresh approval process.

That is preeminently a type of ¹⁷¹ decision within the expertise of the Board. Deferring to that expertise, we affirm the Board’s decision that the procedural threshold described by § 3 — 306(b)(2) was crossed.