Landay v. Board of Zoning Appeals

Offutt, J., delivered the opinion of the Court. This appeal invokes the construction of that part of Ordinance No. 1247 of the Mayor and City Council of Baltimore, approved March 30th, 1931, known as the Zoning Ordinance of Baltimore City, which provides that nothing contained therein shall be construed to “prevent the continuance of any use” which legally existed when that ordinance was passed. The appellant is the owner of four shallow “store fronts” on Greenmount Avenue in Baltimore, and he also owns a lot adjacent to and north of those lots which in part abuts both on Greenmount Avenue and Lafayette Avenue, and is known as No. 439 East Lafayette Avenue. Lafayette Avenue, running east and west, stops at that point, at Greenmount Avenue, opposite Greenmount Cemetery.

The appellant acquired the property from William A. Laibowitz, apparently in the fall of 1936, but he had occupied it before that as a tenant of Laibowitz. In February, 1926, Laibowitz, the then owner, leased to A. J. Kuhnert and Samuel George Smith three of the “store fronts,” known as Nos. 1716, 1718, and 1720 Greenmount Avenue. Kuhnert and Smith occupied and| used the property so leased as a junk shop from that' time until May, 1932', when they gave up the junk business and vacated the property, which remained vacant until Landay occupied it as a tenant of Laibowitz in October, 1935. Lindsay Armstrong appears to have occupied and used No. 1722 Greenmount Avenue as a tailoring and boot black shop from August 16th, 1921, until April 1st, 1932.

Although he had no permit authorizing him to do so, Landay, when he occupied the properties known as Nos. 1716, 1718, and 1720 Greenmount Avenue as a tenant of Laibowitz in 1935, used them as a junk shop, and, after he bought them from Laibowitz he applied to the build ⁴⁶³ ings engineer of Baltimore City for a certificate of occupancy for the Greenmount Avenue properties for use as a junk shop, and for an extension of that use to No. 439 East Lafayette Ave. The application was disapproved, and Landay then appealed to the Board of Zoning Appeals, which, after a hearing, sustained the action of the buildings engineer. He then filed a petition in the Baltimore 'City Court asking it to review and reverse the decision of the Board of Zoning Appeals, and from the adverse decision of that court he took this appeal. While there is some obscurity and some confusion in the testimony, without reviewing it in detail it is sufficient to say that it establishes these facts: (1) That No. 1722 Greenmount Avenue never was used as a junk shop or part of a junk shop until Landay occupied the property in 1935; (2) that Nos. 1716, 1718, and 1720 Greenmount Avenue were used as a junk shop from 1926 until 1932;' that from 1932 until October, 1935, they were vacant; and that during that interval they were not used except casually for any purpose.

There was testimony that for a short time, perhaps two months, the occupants of 1712 and 1714 Greenmount Avenue stored some furniture in No. 1716, but it failed to show that the persons who so used it occupied it as a business place; while the testimony of Laibowitz, the then owner, is clear that, after Kuhnert and Smith vacated the property in 1932 until it was rented to Landay, he had not rented it to any one. There was also testimony that from June, 1935, until some time in the fall of the same year, John King occupied Nos. 1720 and 1722 Greenmount Avenue and used those properties as a vulcanizing shop. But while it was sufficient to show that he so used No. 1722 in connection with No. 439 Lafayette Avenue, on which his advertising sign appeared, it was not sufficient to show that he used at any time No. 1720 Greenmount Avenue. The appellant voluntarily withdrew his application for the extension of the use of Nos. 1716,1718,1720, and 1722 Greenmount Avenue to No. 439 East' Lafayette Avenue, and as the evidence failed to show that No. 1722 was ⁴⁶⁴ ever used as a junk shop prior to its occupation by Landay, we are concerned here only with Nos. 1716,1718, and 1720 Greenmount Avenue.

The appellant contends on those facts that, at the time the ordinance was passed, those properties were affected by a non-conforming use; that his right to continue that use of them was not lost by the fact that for more than three years after May 1st, 1932, they were vacant, and not used for any purpose; that that right cannot be lost by mere cessation or discontinuance of the use, but only by a change of the use; and that consequently he is entitled to continue the non-conforming use, and to receive a certificate of occupancy authorizing him so to do. The appellees, on the other hand, contend that discontinuance of the non-conforming use for a continuous period of more than three years is conclusive evidence that the owner of the property had abandoned his right to the non-conforming use, that under the terms of the ordinance the proposed use could not be authorized, and therefore that the certificate authorizing such use was properly refused. Those parts of the ordinance which are relevant to the question raised by those contentions follow: “Section 4: ‘* * * In an Industrial use district * * * no land or building shall be used * * * for * * * “14. Junk (scrap paper, metals, bottles, rags, rubber) yard or shop for purchase, sale, handling, bailing or storage * * * unless by authority of an ordinance.

Such authority may be granted by ordinance of the Mayor and City Council of Baltimore in industrial use districts only.’ “Section 6: ** * * In a second commercial use district * * * no land or building shall be used * * * for * * * “ ‘35. Junk (scrap paper, metals, bottles, rags, rubber) yard or shop for purchase, sale, handling, bailing or storage of these. * * *’ “Section 11: ‘Non-conforming Uses. A non-conforming use is a use that now exists and that does not comply with the regulations for the use district in which it is ⁴⁶⁵ established. A non-conforming use may not be extended, except as hereinafter provided. * * * A non-conforming use, if changed to a use of a higher classification may not thereafter be changed to a use of a lower classification.

If a use, for which an ordinance is required under the provisions of Paragraph 4, is changed to a use for which no ordinance is required under those provisions, it may not thereafter be changed to a use for which an ordinance is required without such an ordinance. Nothing contained in this ordinance shall be construed to prevent the continuance of any use which now legally exists.’ ” It is apparent from an examination of the facts, the ordinance, and the contentions of the parties, that the decisive and controlling question in the case is whether the right to a non-conforming use may be lost except by changing the use of the property to a use of a higher classification, or, more narrowly stated, whether the mere cessation or discontinuance of the use without more is sufficient to deprive the owner of the right to resume and continue it irrespective of the duration of the .period of discontinuance. The ordinance provides that it shall not be construed to prevent the “continuance of any use which now legally exists.” Under its terms the only manner in which the right to a non-conforming use may be lost is by a change of such use to one of a higher classification. It does not refer directly to a mere cessation of use, or to the effect of any such cessation, so that the conclusion that the right may be lost 6y cessation or discontinuance can only be reached by inference and implication.

The junk business is both licensed and regulated by the State (Code, art. 56, sec. 234; Code Pub. Loc. Laws, art. 4, sec. 663R et seq.; State v. Shapiro, 131 Md. 168, 170 , 101 A. 703 , and is not, therefore, in itself illegal. In a constitutional sense, the only justification for the restrictions imposed by such laws as the ordinance under consideration on the use of private property is the protection of the public health, safety, or morals.

Goldman v. Crowther, 147 Md. 282 , 128 A. 50 ; Tighe v. Osborne, ⁴⁶⁶ 149 Md. 349 , 131 A. 801 ; Tighe v. Osborne, 150 Md. 452 , 133 A. 465 ; R. B. Construction Co. v. Jackson, 152 Md. 671 , 137 A. 278 . It is obviously true that the operation of a junk shop in or near a residential section of a great city carries always a potential menace to the public health and safety, since its essential purpose is to gather in one place large quantities of such highly inflammable matter as paper and rags, discarded garments, and other like waste material, which are collected wherever they may be found, and which may also carry the germs and seeds of communicable disease. Nevertheless, the business is lawful, since the State regulates and licenses it, and has committed to the municipal authorities the duty of seeing that it is so managed as to prevent any avoidable peril to the public health or safety. So, without expressing any opinion as to whether the Legislature might or could have prevented the continuance of such a business at all in such a locality, we are concerned here only with the interpretation of what the ordinance actually does say with respect to this particular business, and its language in reference to it must be interpréted in the same manner as though it referred to any other lawful business.

In other words, its construction is not affected by the fact that the business may be highly offensive to the senses, as well as a constant threat to the public health and safety. Such ordinances are in derogation of the common law right to so use private property as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language. Monument Garage Corporation v. Levy, 266 N. Y. 339 , 194 N. E. 848 . Since the ordinance provides one way, and only one way, in which a non-conforming use may be lost, to supply another way in which such a right may be lost would be to do what the Mayor and City Council alone was authorized to do, but which it refrained from doing.

Since, ⁴⁶⁷ therefore, the ordinance does not provide that mere cessation of the non-conforming use shall prevent its resumption, this court is not authorized to give to such cessation that effect. That conclusion is qualified of course by the consideration that, as a competent