Grant v. Mayor of Baltimore

Hammond, J., delivered the opinion of the Court. From the beginning of zoning in Baltimore billboards were excluded prospectively from residential districts, although those already there were permitted to remain as nonconforming uses. Then in 1950 the City Council passed Ordinance 1101, approved April 5 of that year, requiring all outdoor advertising structures in residential districts to be removed not later than five years from the passage of the ordinance. In 1953 after full hearings and extended consideration, there was passed Ordinance 711 generally revising the zoning laws of the City.

Paragraph 13(d) narrowed the exclusion of the 1950 ordinance, providing only that “Billboards and poster boards situated in Residential and Office Use Districts and Residential Use Districts shall be removed by April 5, 1955 * * *» ¡Sj wjthin five years of the passage of the 1950 ordinance. The corporate appellants, signboard companies, and the individual appellants, owners of property leased for the use of billboards, ask us to reverse the chancellor who dismissed their bill that sought to declare the 1953 ordinance invalid and unconstitutional and to restrain the Mayor and City Council and the Building Inspection Engineer of Baltimore from enforcing it. ³⁰⁶ The Morton Company, Inc., or its corporate predecessors, had for many years been in the outdoor advertising business. In 1955 it had about sixteen hundred billboards in Baltimore and its environs, some nine hundred being within the city limits. Seventy-eight are in residential or residential and office use districts, all being nonconforming uses that have endured since the passage of the first zoning ordinance in 1931.

Fourteen of these are illuminated. All of the thirty-eight leases for the nonconforming billboards were entered into after 1950. Most are for terms of one year; none, except one executed in 1952, has a term of over five years. Morton received about $45,000 a year gross from advertisers on the seventy-eight billboards.

Its testimony was that billboard coverage is sold in “packages” of from fifteen to sixty boards for frequent repetition on main roads and so as to provide a network of coverage which is “almost inescapable” to a “captive audience”. Removal of the nonconforming billboards would seriously diminish the adequacy of coverage and injure the business. After the filing of the bill, Donnelly Advertising Corporation of Maryland acquired the assets of Morton and was allowed to intervene in the case, as were several individual appellees who owned homes near billboards. The individual appellants, Mr. and Mrs. Grant, and Samuel Cooper, each own a parcel of land in a residential district which has been leased for billboard use continuously since before the original Baltimore zoning ordinance of 1931.

The Grant lease was for one year beginning November 1, 1953. There have been two one year extensions as the lease allowed. The rent is $200.00 a year. The Cooper lease was for one year beginning April 1, 1954, and there has been one extension for another year.

The Grants bought their unimproved lot on the east side of Greenspring Avenue near Gordon Road in 1923. It has been leased for billboards since 1927. Cooper bought his lot, on which there is a house he rents out, in 1953, and he continued the leasing of part of the property for billboard use begun before 1931 by his predecessors in title. His rent is $35.00 a year.

The appellants urge that their rights to nonconforming uses ³⁰⁷ are vested rights of property which the enforcement of paragraph 13(d) of Ordinance 711 of 1953 would take from them without compensation, contrary to Art. 3, Sec. 40 of the Constitution of Maryland, and so would deprive them of property without due process of law, as well as be discriminatory and a denial of the equal protection of the laws. Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in property out of proportion to the public benefits to be obtained and, so, unconstitutional, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, most, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law could continue although such uses could not thereafter be begun.

Nevertheless, the earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned, and the ordinances forbid or limit expansion of nonconforming uses and forfeit the right to them upon abandonment of the use or the destruction of the improvements housing the use. Colati v. Jirout, 186 Md. 652 ; Beyer v. City of Baltimore, 182 Md. 444 . In Dorman v. Mayor and C. C. of Baltimore, 187 Md. 678, 684 , the issue was whether a nonconforming use had been abandoned. Judge Markell said for the Court, in speaking of the aim of bringing about general conformity: “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.” Nonconforming uses have not disappeared as hoped and anticipated because the general regulation of future uses and changes, with some existing uses uncontrolled, have put the latter in an intrenched position often with a value that is great — and grows — because of the artificial monopoly given ³⁰⁸ it by the law.

Indeed, there is general agreement that the fundamental problem facing zoning is the inability to eliminate the nonconforming use. City of Los Angeles v. Gage (Dist. Ct. App., 2nd Dist., Cal.), 274 P. 2d 34, 40 . The Courts confirmed the expectations of those who began zoning.

It soon was and still generally is held that it is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful. Anne Arundel County v. Snyder, 186 Md. 342, 346 ; Amereihn v. Kotras, 194 Md. 591, 601 , and cases cited; Jones v. City of Los Angeles (Cal.), 295 P. 14 ; Standard Oil Co. v. City of Bowling Green (Ky.), 50 S. W. 2d 960 ; Des Jardin v. Town of Greenfield (Wis.), 53 N. W. 2d 784 . The frustrations of the people as. they were faced with nonconforming uses soon found their representatives in the lawmaking bodies trying other ways to get rid of them. Two tools resorted to were eminent domain and the law of nuisances.

The effectiveness of eminent domain is restricted by the necessity that the purchase must be for public use, by the complexities of administrative procedures and by the high cost of reimbursing the property owners. The law of nuisances has limits that many times make its use fall short of the objective. Some courts will restrain only common law nuisances and even where the lawmakers have expanded the nuisance category, judicial enforcement seems often to have been restricted to uses that cause a material and tangible interference with the property or personal well-being of others, uses that are equivalent to or are likely to become common law traditional nuisances. It .has become apparent that if nonconforming uses are to be dealt with effectively it must be under the law of zoning, a law not limited in its controls to harmful and noxious uses in the common law sense.

Many legislative bodies have come to the technique of statutes or ordinances that call for the cessation of the extraneous use after a tolerance or amortization period, varying in length with the nature of the use and of the structures devoted to the use, from one year to sixty years. Some of the jurisdictions that have enacted ³⁰⁹ such provisions are cited below. 1 It has been said that the only positive method yet devised of eliminating nonconforming uses is to determine the normal useful remaining economic life of the structure devoted to the use and prohibit the owner from using it for the offending use after the expiration of that time. Crolly and Norton, Termination of Nonconforming Uses, 62 Zoning Bulletin 1, June 1952, cited in City of Los Angeles v. Gage, 274 P. 2d 34, 41 , supra. Some Courts have refused to distinguish between laws requiring immediate cessation of nonconforming uses and those that demand cessation only after the expiration of a tolerance or amortization period, holding that the latter as well as the former are unconstitutional. 2 ³¹⁰ Other Courts have held that nonconforming uses could be stopped after specified periods of time.

In State v. McDonald, 121 So. 613 , certiorari denied, 280 U. S. 556 , 74 L. Ed. 612 , the highest Court of Louisiana held that any business operated in violation or defiance of a zoning ordinance was to be regarded as a public nuisance and that an existing grocery store in a residential use district could be forced by a zoning ordinance to close after the one year grace period. .There was a similar holding as to a drug store in State v. Jacoby (La.), 123 So. 314 . The Court held that the one year amortization period was not unreasonable in light of the size of the business and the feasibility of moving it within the allotted time. In Standard Oil Co. v. City of Tallahassee, 183 F. 2d 410 , certiorari denied, 340 U. S. 892 , 95 L. Ed. 647 , affirming the District Court whose opinion is reported in 87 F. Supp. 145 , the United States Court of Appeals for the Fifth Circuit upheld an ordinance requiring the discontinuance of a filling station in Tallahassee, Florida, near the State Capitol. A ten year tolerance period had been established by ordinance for residential zones and then, a later ordinance had changed the district in question to residential, effective at the end of the ten year period.

The net effect of the two ordinances was to make the existing use unlawful after ten years. The opinions in the Louisiana cases and in the Fifth Circuit case are not particularly persuasive in their reasoning (that of the District Court in the latter case is more satisfying). We are impressed, however, with the soundness of two California decisions. In Livingston Rock & Gravel Co. v. County of Los Angeles (Cal.), 1954, 272 P. 2d 4 , a cement mixing company was established in a zone ³¹¹ of unlimited uses.

A rezoning ordinance put the property-in a light manufacturing zone. The ordinance allowed existing uses to continue for a maximum of twenty years with provisions for revocation of the right if the zoning administrative board should find that either (a) the condition of structures devoted to the use was such that their employment only in uses currently permitted in the district would not impair the constitutional rights of any persons, or (b) that the nature of the improvements were such that they could be altered so as to be used in conformity with permitted uses without impairing any constitutional rights. After a hearing, the board revoked the company’s right to operate the plant, effective one year later. The Supreme Court of California said that manifestly care had been taken in the rezoning regulations to refrain from interference with constitutional guaranties and that it would be a contradiction in terms to hold the regulations unconstitutional.

The Court said: “* * * zoning legislation looks to the future in regulating district development and the eventual liquidation of nonconforming uses within a prescribed period commensurate with the investment involved. * * * The mere fact that some hardship may thereby be experienced is not controlling, for ‘Every exercise of the police power is apt to affect adversely the property interest of somebody.’ * * * Implicit in the theory of the police power, as differentiated from the power of eminent domain, is the principle that incidental injury to an individual will not prevent its operation, once it is shown to be exercised for proper purposes of public health, safety, morals, and general welfare, and there is no arbitrary and unreasonable application in the particular case.” The holding was that an existing lawful business could be closed in the legitimate exercise of the police power, if found to be detrimental to the public health, safety or welfare, and that administrative remedies must be used — and not injunction — to test the validity of the closing in the particular case. In City of Los Angeles v. Gage, to which we have referred, the ordinance before the Court provided for the gradual elimination from residential areas of all commercial and industrial uses, including billboards, within named periods of ³¹² time that varied according to the nature of the structure or use. Gage owned a two family residence building in a residential area before the passage of the ordinance. The upper part was. used as a residence and the lower part as a wholesale and retail plumbing supply business, a permitted use when the property was bought but one that the new ordinance required to be eliminated within five years.

The business produced a gross revenue of between $125,000 and $350,000 a year. The lower court found that the business could not be removed at the end of five years, or thereafter, without substantial loss and expense, and held the ordinance void as to Gage. The intermediate appellate court reversed, holding the ordinance valid. It said: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss.

Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance. The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it, necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of reconciliation of the conflicting interests in satisfaction of due process requirements.” See also Franklin Furniture Company v. City of Bridgeport (Conn.), 1955, 115 A. 2d 435 , where the Court upheld an ordinance of the City of Bridgeport forbidding the erection or maintenance of any advertising or name sign or advertising device of any character that extended or projected over any part of the sidewalk. The Court said: “The police power is not confined narrowly within the field of public health, safety and morals.

It is within the police power to regulate occupations or businesses which, owing to their nature or the manner in which they are conducted, may be detrimental to the general welfare.” The Supreme Court has gone far in upholding local exer ³¹³ cise of the police power, as Hadacheck v. Sebastian, 239 U. S. 394 , 60 L. Ed. 348 , reveals. Hadacheck owned and operated a brickyard near Los Angeles. The clay deposits were worth $800,000 for bricks, and no more than $60,000 for residential or other use. The operation was entirely lawful until Los Angeles annexed the area in which the brickyard stood and passed an ordinance forbidding the establishment or operation of brick-making in that area.

It was found to be clear that the ordinance was an honest and non-discriminatory exercise of the police power. Even though the brickyard could not be moved or the clay used elsewhere, the Supreme Court found that there was no taking of property without due process of law. Relied on was Reinman v. Little Rock, 237 U. S. 171 , 59 L. Ed. 900 , in which the Court had approved the City of Little Rock’s ban on a livery stable in a residential neighborhood. The Hadacheck opinion said that the police power cannot be arbitrarily exercised and added: “The principle is familiar, but in any given case it must plainly appear to apply. * * * we are dealing with one of the most essential powers of government, — one that is the least limitable.

It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining. * * * There must be progress, and if in its march private interests are in the way, they must yield to the good of the community.” Both in the Hadacheck and Reinman cases, the Court viewed the prohibited uses as lawful in themselves but of a kind that could be regulated— even to the point of being barred from certain neighborhoods. In both cases there was evidence of unpleasant odors and unsanitary conditions. In Hadacheck , sickness and discomfort were charged to fumes, gas, soot, steam and dust.

It was found that the occupants of nearby residences were “seriously incommoded”. Although the Court did not decide the cases on that basis, in their impact on the law of zoning, they often have been measured as nuisance cases. Even so regarded, they have pertinence here. In Euclid v. ³¹⁴ Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303 , the foundation case in zoning law, the Supreme Court said that zoning ordinances “* * * must find their justification in some aspect of the police power, asserted for the public welfare.” It went on to say that “The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation.

It varies with circumstances and conditions. * * * And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the power.” It went on to say that a “* * * nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” On this point, see Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 153 , where Judge Offutt, for the Court, discusses why a funeral home should not be allowed in a residential area, and justifies the ban largely on the affront to the sensibilities of the neighbors. Judge Offutt pointed out that there has been in the zoning of cities “a constant struggle between 'precedent and progress/ * * * between the rights of property and the rights of men.” It was held that the exercise of the police power in zoning, the protection of the “public safety and welfare” heed not stop with protection against disease, fire, traffic or lawlessness, but that it may properly extend “to the maintenance of conditions under which people may live and work in reasonable comfort, and without unnecessary impairment of their physical and mental vigor.” Every zoning ordinance impairs some vested rights because it affects property owned at its effective date. In Euclid v. Ambler Realty Co., supra, the land of the realty company was in the immediate path of currently expanding commercial and industrial uses and worth $10,000 an acre for those purposes. The ordinance restricted its use to residential and for this it was worth but $2,500 per acre.

The Supreme Court found no trouble in holding that the restriction was not a taking of property without due process. In Walker v. Talbot County, 208 Md. 72, 87 , certiorari denied, 350 U. S. 902 , 100 L. Ed. 792 , the landowners restricted to residential or farm use by the new zoning ordinance ³¹⁵ claimed their land was worth millions for use as a tidewater port. We said: “However, all uses of property which are injurious to the health, comfort, safety and welfare of society may be prohibited under the sovereign power of the state, even though the exercise of such power results in inconvenience or loss to certain persons. In those cases, individual rights are subordinate to the higher rights of the public.” The distinction between an ordinance that restricts future uses and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss.

New York applies the rule of reasonableness to legislative efforts to end nonconforming uses — quite strictly — as People v. Miller, 106 N. E. 2d 34 , shows. The Court said: “The decisions are sometimes put on the ground that the owner has secured a Vested right’ in the particular use — which is but another way of saying that the property interest affected by the particular ordinance is too substantial to justify its deprivation in light of the objectives to be achieved by enforcement of the provision. (Cf. Note, 41 Harv.

L. Rev. 667 ; Note, 39 Yale L. J. 735, 740.) Every zoning regulation, because it affects property already owned by individuals at the time of its enactment, effects some curtailment of Vested’ rights, either by restricting prospective uses or by prohibiting the continuation of existing uses. A regulation of the latter variety, however, almost always imposes substantial loss and hardship upon the individual property