Knox v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court affirming a decision and resolution of the Board of Zoning Appeals of Baltimore City. Sometime previous to January 1, 1931, and not before the year 1929, Charles F. Knox, the appellant, became a squatter on the lot known as No. 4403 Alhambra Avenue, Baltimore, belonging to a Mr. McColgan, and on January 1, 1931, rented the lot from Mr. McColgan at the rate of $10 per month. This lot is in a residential use D area district under Zoning Ordinance 1247 approved on March 30, 1931.

A public playground of the city of Baltimore is located in front of this lot and the lot is surrounded by a residential use district. Mr. Knox was engaged in the wrecking and hauling business and dumped in a large ravine on this lot cinders and old mortar obtained from cleaning bricks and filled up the ravine on the lot principally with mortar and bricks. Paragraph 8 of Zoning Ordinance No. 1247, supra, prohibits in a residential use district storage yards for building or structural materials or equipment and yards for the display, storage or sale of motor vehicles or merchandise as well as business or ⁹⁰ garage uses. Private garages are permitted by Paragraph 8 of the Zoning Ordinance.

In 1936, he purchased the lot from Mr. McColgan under a ninety-nine year lease and on November 9, 1936, he filed an application for a permit to erect one dwelling and one garage twenty-four feet by twenty-five feet on this lot and a permit therefore was issued on November 24th of that year. The garage was built but he did not build the dwelling. He said that he was misled by the Building Engineer’s office as to the best method of getting a garage on the lot, that he was told there that if he wanted to get something quick, to make application for a dwelling and garage and he could immediately get a permit and start construction. He admitted that he intended to build a dwelling house for his son-in-law.

He immediately started and built the garage but could not raise the money to build the dwelling house. In February, 1939, the appellant filed an application with the Board of Zoning Appeals, “To construct an addition for tool storage and to continue to use lot for storage of building materials and trucks at 4403 Alhambra Avenue.” The addition was to be ten by twenty-four feet. On February 28th, after a public hearing, the Board found that a non-conforming use had been established and approved the application. Paragraph 39 of Ordinance 1247, supra, provides, “that permits obtained by reason of a variance or special exception by the Board of Zoning Appeals, shall be exercised by the grantee therein named within six months from the date of the final action which made the permit valid.” The applicant did not construct the addition for tool storage within six months and therefore the permit became null and void.

The addition for a tool house not having been erected within six months, in November 1939, an appeal was filed by Mr. Knox with the Board of Zoning Appeals to construct a tool house and garage at 4403 Alhambra Avenue the size to be seventy-two feet by thirty-six feet six inches. After a hearing before the Board of Zoning Ap ⁹¹ peals on that application, which was a much more thorough hearing than the previous one, the Board of Zoning Appeals on January 2, 1940, found that, “The weight of the evidence seems to sustain the conclusion that no non-conforming use has been established.” The permit was refused and no appeal was taken from that action. On September 4, 1940, an appeaLwas filed by Mr. Knox from the decision of the Building Engineer to the Board of Zoning Appeals “To construct an addition and to continue the use of the lot and the garage thereon for the storage of building material and trucks. The addition was to be twenty-four feet by twelve feet.

At the hearing, Mr. Knox withdrew the part of the application relating to the right to store building materials. After a hearing before the Board of Zoning Appeals on September 19, 1940, a resolution was filed by that Board reiterating that no non-conforming use had been established and that, “at this time no facts were presented sufficient to warrant approval of a concrete block addition twenty-four feet by twelve feet to be used as a tool house. Therefore, the Board sustains the action of the Building Engineer in disapproving the permit.” An appeal was taken by Mr. Knox from this resolution to the Baltimore City Court, against the Mayor and City Council of Baltimore and the Board of Zoning Appeals, and was heard by that court without intervention of a jury. A motion was filed by the Board of Zoning Appeals reciting that under the decision in the case of Board of Zoning Appeals v. Albert McKinney, 174 Md. 551 , 199 A. 540 , 117 A. L. R. 207, that the said Board of Zoning Appeals has no right to litigate in the Baltimore City Court appeals of this nature.

On the 24th day of May 1941, the Baltimore City Court passed an order that the decision and resolution of the Board of Zoning Appeals of Baltimore City dated September 19, 1940, be affirmed, and granted the petition to dismiss the appeal as to the Board of Zoning Appeals. An appeal is taken to this court by Charles F. Knox from that order. The use requested by this permit is a non ⁹² conforming use. Paragraph 11 of Ordinance 1247, supra, provides in part “hothing contained in this ordinance shall be construed to prevent the continuance of any use which now legally exists.” Appellant contends that the resolution passed by the Board of Zoning Appeals on February 28, 1939, holding that a non-conforming use existed at the time of the passage of the Zoning Ordinance on March 30, 1931, was res judicata as to whether the appellant had a non-conforming use in the lot in question and cites as his authority the case of Board of Zoning Appeals v. McKinney, supra.

In that case the Board of Zoning Appeals notified the counsel for both parties that the application for the permit had been refused and the Board passed such a resolution at its meeting and entered it on its minutes. After this action of the Board, another attorney entered the case and asked if “the action of the Board had been sent out,” and asked the Board to hold it up. The Board decided to reconsider the case which it did when the application was approved and the permit granted. This Court held in that case that the Board of Zoning Appeals had no right to reopen and reconsider the case.

The facts in the instant case are very different, for in this case, the permit granted on February 28, 1939, expired and other applications for permits were made. The first permit became null, void, and non-existant by reason of appellant’s failure to exercise it within the six months period. The case was not reopened but entirely hew cases instituted. In Mayor and City Council v. Linthicum, 170 Md. 245 , 183 A. 531 , an application for a permit was refused and later a second application was made for the same use which was refused and an appeal was prosecuted to the Baltimore City Court and the action of the Board of Zoning Appeals affirmed and at that time no appeal was allowed to this court.

A third application for the same use was made, it being conceded that there had been no change either in the proposal, the use, neighborhood conditions, nor in 'the relevant ordinances. The Baltimore City Court on the third appli ⁹³ cation reversed the action of the Board of Zoning Appeals and an appeal was taken from that action to this court. Chief Judge Bond said in that case at pages 247 and 248 of 170 Md., at page 582 of 183 A.: “ ‘An existing, final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon matters with its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.’ Christopher v. Sisk, 133 Md. 48, 51 , 104 A. 355, 356 ; Emmert v. Middlekauff, 118 Md. 399, 404 , 84 A. 540 .” The Board of Zoning Appeals not being a court of competent jurisdiction or judicial tribunal, it cannot be held that the resolution passed by that Board on February 28, 1939, was res judicata as to whether appellant had a non-conforming use in the lot in question. Appellee contends that if a non-conforming use existed that appellant lost the use by a change to a higher classification and that he abandoned the alleged non-conforming use.

Paragraph 11 of Ordinance 1247, supra, provides in part, “A non-conforming use may be changed to a use of