Higgins v. Mayor of Baltimore

Brune, C. J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court affirming an order of the Board of Municipal and Zoning Appeals (of Baltimore) which denied the appellant’s application to use twenty garages owned by her for the storage of non-inflammable goods and materials (other than automobiles). The appellees are the City of Baltimore, the Building Inspection Engineer, who had originally denied the appellant’s application, and three taxpayers and owners of property in the neighborhood of the garages, who had protested before the Board against the granting of the appellant’s application and ⁹³ who intervened in the proceedings in the Baltimore City Court after the case had been submitted and while it was awaiting decision. The questions presented are with regard to the nature and extent of a non-conforming use or uses of the garages and the effect of amendments to the zoning provisions of the Baltimore City Code, 1950 Edition, adopted on May 21, 1953.

Because of the course which this case has followed, some emphasis upon the chronology of events appears desirable. In 1928 the appellant and her husband bought the property in question for $13,500. It is situated in the rear of the 2400 block of Linden Avenue and is bounded on its northwesterly, southwesterly and southeasterly sides by alleys. Its northeasterly side abuts upon a lot which fronts on Linden Avenue.

The single structure on the premises is divided into twenty stalls or garages having an aggregate area of approximately 3600 square feet and was originally designed and used for the storage of automobiles. At some time prior to March 30, 1931, one of the garages was rented partly for use as such and partly and incidentally for the storage of other things; and another garage was rented to the same tenant—apparently not long after March 30, 1931, for the storage of property other than automobiles. Though the testimony is rather vague as to dates, it appears that these two garages were rented for the storage of antiques and of building materials for many years prior to 1953. Ordinance No. 1247 of the Mayor and City Council of Baltimore, known generally as the Zoning Ordinance, was approved on March 30, 1931.

It was enacted pursuant to a State enabling act (Acts of 1927, Chapter 705) and repealed earlier ordinances dealing with zoning, and became the controlling law on the subject in the City of Baltimore. It was amended on a number of occasions, and, as amended, it became Article 40 of the Baltimore City Code, 1950 Edition. The area in which the garages here involved are located was zoned as a Residential Use District under the ⁹⁴ 1931 Ordinance. For a number of years after 1931 the garages (with the one or two possible exceptions mentioned above) were rented for the use for which they were designed—that is, automobile storage.

The appellant’s husband died in 1935 and she thereupon became, and has since remained, the sole owner of the property. In recent years, the testimony indicates, it has become increasingly difficult to rent these garages for their original purpose. The appellant attributes this to the fact that owners of automobiles are now allowed to keep them on the street all night. What, if any, other causes may have contributed to. this condition is not shown.

There was some testimony on the part of protestants to the effect that there was a shortage of garage space in the neighborhood. In about March or April, 1953, the appellant rented eight of her garages to a building materials concern for the storage of materials used in the latter’s business. It appears that this use of these-garages gave rise to complaints on the part of neighboring property owners and to a warning from the Building Inspection Engineer against the continuation of such use. The appellant’s statement of facts, which the appellees agree is substantially correct, shows that Zoning Board officials and counsel for the appellant agreed that, rather than have any criminal prosecution against the appellant, the question of the propriety of the storage (as distinguished from garage) use of the building would be tried by the Board, and that in order to commence such proceedings, the appellant filed an application for a permit for such use.

For similar procedure see Bensel v. City of Baltimore, 203 Md. 506 , 101 A. 2d 826 ; Nyburg v. Solmson, 205 Md. 150 , 106 A. 2d 483 . The statement also shows that the appellant promptly terminated the lease of the eight garages to the building materials company and that it was “clearly understood” that her action in so doing “was not for the purpose of abandoning any rights that she had, but that it simply made for a better atmosphere in which to try the matter and, in view of her ⁹⁵ dissatisfaction with them [the building materials concern] as tenants, served the purpose of both parties to the litigation.” The statement of facts also shows that “during the time following March, 1953, and until the action of the Building Inspection Engineer, the appellant diligently sought storage tenants for as many of the garages as were vacant on advice of counsel that such rental was proper.” The appellant’s application for approval of the use of her garages for the storage of non-inflammable goods and materials (usually referred to below as “storage use”, as distinguished from “garage use”) was filed with the Building Inspection Engineer on April 24, 1953, and was denied by him on that day; and still on the same day, an appeal from his decision to the Zoning Board was duly filed. A hearing before the Zoning Board was scheduled for May 12, 1953. Some protestants appeared and were heard, but due to some confusion, which is not explained, the appellant did not appear and was not present at this hearing.

On May 13, 1953, the Zoning Board denied the appellant’s application, and on June 4, 1953, she appealed from the Zoning Board’s order to the Baltimore City Court. Because of the “confusion” above mentioned and pursuant to an agreement of counsel, the Baltimore City Court referred the case back to the Zoning Board to take additional testimony and to report the same to that Court with the Board’s findings of fact and conclusions of law. A further hearing was held by the Zoning Board on September 29, 1953, and on the same day, the Board again denied the appellant’s application. The case was submitted to the Baltimore City Court on October 20, 1953, and the order now appealed from was entered on March 30, 1954.

On May 21, 1953, Ordinance No. 711 of the Mayor and City Council of Baltimore was approved. This ordinance repealed and reordained with amendments Article 40 of the Baltimore City Code, 1950 Edition, as then in ⁹⁶ force. Basically, as already indicated, this was Ordinance No. 1247, of March 30, 1931, as amended up to that time. On July 15, 1952, this Court had decided the case of Hare v. City of Baltimore, 200 Md. 477 , 90 A. 2d 217 , and held that a group of seven garages in a residential district which were in existence on March 30, 1931, constituted a first commercial non-conforming use in a residential use district in Baltimore City.

This decision is stated by both sides in the present case to have been contrary to the administrative interpretation placed on the 1931 ordinance by the Zoning Board and its predecessor. To dispose of one minor question first, we do not think that the testimony with regard to the use of one garage prior to March 30, 1931, for storage purposes is such as to warrant our Holding that the Zoning Board’s finding that a non-conforming storage use on that date was not established, was unsupported by the evidence. The evidence, we think, clearly shows, however, that the garage use of the structure here involved constituted a first commercial non-conforming use at the time of the adoption of the 1931 Zoning Ordinance. The appellees have seen fit to reiterate in this case the City’s arguments to the contrary which were rejected in Hare v. City of Baltimore, supra; but we regard that case as decisive of this issue.

We adhere to that opinion and see no occasion to repeat here what was said there. Under Paragraph 11 of Ordinance No. 1247 of 1931 and under Article 40, Section 11, of the Baltimore City Code, 1950 Edition, as it stood prior to Ordinance No. 711 of May 21, 1953, the owner of property affected with a non-conforming use could change the use (subject to exceptions not here pertinent) to another non-conforming use of the same or of a higher classification. That is what the appellant claims to have done. Beyer v. City of Baltimore, 182 Md. 444 , 34 A. 2d 765 ; Colati v. Jirout, 186 Md. 652 , 47 A. 2d 613 ; Landay v. Board of Zoning Appeals, 173 Md. 460 , 196 A. 293 ; Roach v. Board of ⁹⁷ Zoning Appeals, 175 Md. 1 , 199 A. 812 ; Nyburg v. Solmson, supra.

Ordinance No. 711, of May 21, 1953, undertakes to prevent a change in the use of garages from the storage of automobiles to other uses classified as first commercial non-conforming uses. This result is sought to be accomplished by treating garages differently from other non-conforming uses in