Harris v. Mayor of Baltimore

Liss, J., delivered the opinion of the Court. This appeal concerns itself with the hotly contested and long delayed effort of the Mayor and City Council of Baltimore to “rollback” the occupancy of non-conforming multiple family structures which were converted to four or more dwelling units. The appellants include Nathan Harris and a number of other multiple family dwelling owners and the Property Owners Association of Baltimore, Inc. The appellees, in addition to the City, include a number of intervenors (neighborhood improvement associations and other property owners in the affected areas) who sought and were granted permission to intervene as defendants in the trial court. They are represented by counsel who participated in the preparation and presentation of this case to this Court; their position is essentially the same as that urged by the City.

The appellants filed a bill for declaratory judgment and injunctive relief seeking to prevent the City from enforcing certain rezoning ordinances enacted by the City on the grounds that the ordinances were unconstitutional and void under the Fourteenth Amendment to the Constitution of the United States, and under Article 23 of the Declaration of Rights of the Maryland Constitution in that the ordinances were an arbitrary, unreasonable and capricious exercise of the police powers of the City; and further that the effect of the ordinances amounted to a taking of property without due process of law, and without payment of just compensation. In the alternative, if the ordinances be upheld as constitutional, the appellees requested that the court declare the effective dates of the ordinances to be July 2, 1976 and ⁵⁷⁴ April 20, 1979, and that the City be enjoined from enforcing the ordinances prior to those dates. The case was heard in the Circuit Court of Baltimore City before Judge Harry A. Cole who issued a well reasoned memorandum opinion in which he declared the ordinance to be constitutional and denied the prayer for injunctive relief. It is from these findings and the order implementing them that this appeal was taken.

We agree with the conclusions of the trial court and shall affirm. There are two questions raised by the appellants for our determination.

I

(a) Is the termination and rollback of non-conforming dwelling units required by the rezoning ordinances, as adopted by the City, a valid exercise of the City’s police power? (b) Is the rollback provision an unconstitutional taking of property without due process and without just compensation?

II

Are the classifications established by the rollback ordinances reasonable and valid?

I

(a) In April, 1962, the Mayor and City Council of Baltimore adopted Ordinance No. 1162 known as the rollback ordinance. The purpose of its enactment as stated in new Section 13A to Article 40 of the Baltimore City Code was to prevent the extension, expansion or enlargement of non-conforming uses of land, building or structure and to provide a time limit or tolerance period during which the non-conforming uses were to be extinguished or rolled back. The rollback provisions were applicable to structures non-conforming as to density limitations in those residential districts zoned R-8, R-9 and R-10. These areas are the densest residential districts permitted in Baltimore City and are concentrated in the inner-city neighborhoods.

Such neighborhoods as Bolton Hill, Harlem Park, Locust Point, Federal Hill and Charles Village were affected by the ordinance. It is to be noted that extensive renewal and ⁵⁷⁵ redevelopment of the areas was contemplated at the time of the adoption of the ordinance and has occurred in the intervening decade and a half. Ordinance No. 1162 was the response of the Mayor and City Council of Baltimore to a study, review and report of a previously appointed Zoning Commission which had reported that the existing zoning ordinance had permitted large areas of the City to suffer overcrowding, and that “overcrowding of dwellings and excessive population densities are among the prime causes of the deterioration of residential areas and the creation of slums.” 1 The rollback provisions were specifically designed to overcome some of the problems created by the conversion of structures to multi-family use. Ordinance No. 1162 was amended by the Mayor and City Council on July 2, 1968 by Ordinance No. 153 which extended the tolerance period for the rollback of non-conforming uses from five to eight years.

On April 20, 1971 the City adopted the new comprehensive zoning ordinance, No. 1051, Section 8.0-5e (2), which provided: “Termination of Non-Complying Dwelling Units. The number of dwelling units in a structure non-complying as to the minimum lot area requirements of Sections 4.8-2, 4.9-2 and 4.10-2 of this ordinance, which structure is located in an R-8, R-9 or R-10 District and has been converted at any time, whether with or without Board authorization, for four or more dwelling units, shall be reduced and comply with the provisions of the aforesaid Sections 4.8-2, 4.9-2 and 4.10-2 not later than eight years after the effective date of this subsection. Provided, further, that when a district is hereafter reclassified as R-8, R-9 or R-10, the number of dwelling units in any structure non-complying as to the minimum lot area requirements of Sections ⁵⁷⁶ 4.8-2, 4.9-2 and 4.10-2, as hereinbefore provided, shall be reduced and comply with the provisions of Sections 4.8-2, 4.9-2 and 4.10-2 within eight years after the effective date of the reclassification. Notwithstanding the provisions of this subsection, however, the Board may authorize the continuance of a non-complying dwelling unit or units in any such non-complying structure in accordance with the authority and procedures established in Section 8.0-7 of this chapter.” Section 8.0-7d of the latter ordinance provided: “Notwithstanding any other provision of this chapter, where any use is required to be terminated under this ordinance and was also required to be terminated or made conforming under any prior ordinance of the Mayor and City Council, the prior ordinance shall govern as to the date of such termination.” In summary, the original rollback ordinance established minimum lot sizes per dwelling unit and required owners of buildings which had been converted to four or more dwelling units to reduce the number of dwelling units to comply with the established lot size.

Buildings which had not been so converted, but which were originally built to contain more than four dwelling units, were not required to comply, and buildings which contained three or fewer dwelling units were likewise exempt, regardless of whether or hot these buildings conformed to the minimum lot size. Adherence tc the rollback provisions was originally required within five years from the effective date, or April 4, 1967. Ordinance No. 153 extended the date of mandatory compliance iron: five to eight years. The City recodified its zoning ordinance (1051) effective April 20, 1971, and the rollback provisions were reenacted in that ordinance.

Enforcement of the rollback provisions by the City was not begun until 1972 after the adoption of the nev comprehensive zoning ordinance. All of the complaining ⁵⁷⁷ parties have agreed and stipulated that they own properties, which were converted to four or more dwelling units, located in B or C area districts, and that each has been notified by the City that the properties are in violation of Section 8.0-5e (2) of the zoning ordinance, and that the use of one or more dwelling units in each of said properties must be terminated. The case was submitted to the trial court without “live” testimony and each side presented its case through the affidavits and exhibits of expert witnesses. Both sides waived cross-examination of the experts.

The general rule is that zoning ordinances are entitled to a presumption of constitutional validity and that the burden is upon the party attacking the ordinance to establish clearly its unconstitutionality. Lucky Stores v. Board of Appeals, 270 Md. 513 , 312 A. 2d 758 (1970); Gino’s of Maryland, Inc. v. Mayor and City Council of Baltimore, 250 Md. 621 , 244 A. 2d 218 (1968); Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore, 241 Md. 686 , 217 A. 2d 348 (1966). To prevail the appellants must demonstrate that there is no “real and substantial relation” between the statute or ordinance and the purposes for which it was enacted. Bowie Inn v. City of Bowie, 274 Md. 230 , 335 A. 2d 679 (1975); Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103 , 311 A. 2d 242 (1973).

The appellants concede the City’s power to require the termination of non-conforming dwelling units for the purposes set out in the rollback ordinance, i.e., to remove the adverse effect of non-conforming uses on the orderly development, maintenance and taxable value of other property in the area and to substitute therefor the benefits from a substantial uniformity of permitted uses. They contend that the ordinances at issue are an unlawful exercise of the City’s zoning (police) power and a violation of due process, in that they constitute a taking of the appellant’s property without just compensation. The issue of the phaseout of non-conforming uses was first presented to the Court of Appeals in Grant v. Mayor and City Council of Baltimore, 212 Md. 301 , 129 A. 2d 363 ⁵⁷⁸ (1957). In that case the Court had before it an ordinance which required the removal of non-conforming billboards from residential neighborhoods within a five-year period.

Judge Hammond (later Chief Judge) in a comprehensively researched opinion discussed the philosophy of the phaseout of non-conforming uses. “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.” (citations omitted) 212 Md. at 307 .

It is generally held that it is unreasonable and unconstitutional for a zoning law to require immediate cessation of non-conforming uses otherwise lawful. Amereihn v. Kotras, 194 Md. 591 , 71 A. 2d 865 (1950); Anne Arundel County v. Snyder, 186 Md. 342 , 46 A. 2d 689 (1946); Des Jardin v. Town of Greenfield, 262 Wis. 43 , 53 N.W.2d 784 (1952); Standard Oil Co. v. City of Bowling Green, 244 ⁵⁷⁹ Ky. 362, 50 S.W.2d 960 , 86 A.L.R. 648 (1932); Jones v. City of Los Angeles, 211 Cal. 304 , 295 P. 14 (1931). The opinion in Grant indicated, at least at that time, that there was some divergence of opinion as to whether a law requiring cessation of non-conforming uses after the expiration of a tolerance or amortization period was constitutional. 212 Md. at 809 n.2. The Maryland courts adopted the view that the elimination of existing non-conforming uses within a reasonable time and with the use of a reasonable amortization scheme provided an equitable means of reconciliation of due process requirements.

Grant was followed and reaffirmed by Shifflett v. Baltimore County, 247 Md. 151 , 230 A. 2d 310 (1967) (two year phaseout non-conforming junkyards); Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore, supra (18 months phaseout of