Lone v. Montgomery County

CATHELL, Judge. This is a consolidated appeal from three judgments of the Circuit Court for Montgomery County. The appellants, William Lone (No. 446) and Shirley Jones (Nos. 699 and 702), appeal from judgments of default and summary judgment, respectively. The appellee, Montgomery County, moved to dismiss Lone’s appeal (No. 446) on the ground that Lone failed to comply with Rule 8-501(c) and (d).

On November 15, 1990, we struck the appellants’ briefs and appendix, which we found to be in violation of Maryland Rule S^OSid). 1 The appellants then resubmitted their briefs. We shall now address all three cases. ⁴⁸² FACTS Ordinance 8-66 was introduced to the Montgomery County Council in May 1977, and was enacted on March 23, 1978. 2 It permitted certain prohibited uses to continue for a ten-year grace period. In the “legislative purpose” section of Ordinance 8-66, the County Council found that up until January 1, 1954, conversions of single-family residences to multi-family uses were encouraged by governmental officials. Many of those prior conversions, although encouraged, violated the pre-existing zoning codes.

The 1978 ordinance carefully distinguished between valid nonconformity and unauthorized nonconformity by referring to the former as “legal” nonconforming uses and the latter as merely nonconforming uses. In essence, the grace period was for the purpose of permitting the continuation of prohibited uses for another ten years, not to phase out legal uses over the ten-year period. Thus, it legitimized for a ten-year period that which would have been otherwise illegal or prohibited. At the end of the ten-year period, those uses lost their legitimization by reason of the same ordinance that legitimized them in the first instance.

The owners and their successors were then in the same position they were in before the ordinance was passed. The ordinance created no “vested” right in the traditional property meaning, but a contingent right subject to automatic divestiture at the conclusion of the ten years. To qualify for the ten-year grace period, the owners of eligible homes were required to register their homes with the Montgomery County Department of Environmental Protection to ensure that certain health and safety code provisions were complied with during the grace period. If an ⁴⁸³ owner did not register his home then multi-family use terminated as of September 1, 1979. 3 On or about September 1, 1979, the County started to enforce Ordinance 8-66 against all nonregistered dwellings which were in violation of the multi-family/single-family provisions.

In 1980, the County Council enacted Ordinance 9-12 to amend 8-66. It allowed dwellings which were originally built as multi-family to remain so, on a permanent basis. 4 Then, in 1983, the Council enacted Ordinance 10-13, creating a special exception that allowed the maintenance of one “accessory apartment” in nonconforming multi-family homes which were owner occupied. 5 On March 23, 1988, the ten-year grace period ended, and the County began to enforce Ordinance 8-66 as to those units that had been registered for the grace period. The owners filed a declaratory judgment action in the United States District Court for the District of Maryland, Nickell v. Montgomery County, Nos. K-88-824 -902 (D.Md. May 20, 1988), alleging that the ordinance constituted a taking of vested property rights, in violation of the due process and equal protection clauses of the United States Constitution. They also made similar claims in respect to violations of the Maryland Constitution.

The trial judge held that the ordinance was valid. He was upheld by the Fourth Circuit on appeal. Nickell v. Montgomery County, 878 F.2d 379 (4th ⁴⁸⁴ Cir.1989) (unpublished). 6 Montgomery County then began bringing suits against individual owners under the ordinance, seeking fines and injunctive relief. THE LONE CASE The County initiated this action by filing a complaint for injunctive relief and interrogatories on August 14, 1988.

Service was returned non est, and the case lay dormant until, after renewal of summons, service was finally obtained on August 14, 1989. Lone filed a Motion to Dismiss alleging lack of jurisdiction on September 28, 1989. The next day, the County filed a Motion for Order of Default alleging a failure to answer. Lone’s Motion to Dismiss was denied on October 12, 1989; he then filed his Answer on October 24, 1989.

The County withdrew its Motion for Default Judgment 6 days later. The County thereafter filed a Motion for Sanctions pursuant to Md. Rule 2-433 7 on December 22, 1989, stating as grounds Lone’s failure to file timely answers to interrogatories. On January 12, 1990, more than 15 days after the filing of the motion and with no response having been filed thereto, the court entered a default judgment in the form of an Order for Sanctions and granted the injunctive relief requested by the County in its complaint. On February 1, Lone untimely filed an Opposition to the Motion for Sanctions and, on February 2, filed a Motion to Set Aside the Default Judgment.

Lone’s Motion to Set Aside the Default Judgment was denied on February 15, 1990, and on March 13, the court entered its Order for Injunction. On appeal, Lone presents this question: ⁴⁸⁵ Is it an abuse of discretion for the trial judge to grant a default motion against a defendant who, having filed a preliminary motion pursuant to Rule 2-322, and being entitled to the automatic extension contained in Rule 2-321(c) and Rule 2-421(b), fails to answer interrogatories in a timely manner because he has no notice of the disposition of his preliminary motion? Our review of the trial judge’s dismissal of the case is under the abuse of discretion standard. Discretion is “a reasoned decision based on the weighing of various alternatives.” Judge v. R and T Construction Co., 68 Md.App. 57, 60 , 509 A.2d 1236 (1986), aff'd after remand, 82 Md.App. 700 , 573 A.2d 96 , cert. granted, 321 Md. 46 , 580 A.2d 1066 (1990).

When a court must exercise discretion, failure to do so is usually reversible error. Maus v. State, 311 Md. 85, 108 , 532 A.2d 1066 (1987). Even when the ultimate penalty of entry of a default judgment is invoked, it cannot be disturbed on appeal without a clear showing of abuse of discretion. Klein v. Weiss, 284 Md. 36, 56 , 395 A.2d 126 (1978); Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880 (1972); Berkson v. Berryman, 63 Md.App. 134, 142 , 492 A.2d 338 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985).

Maryland Rule 2-321 states that “[a] party shall file an answer to an original complaint ... within 30 days after being served, except____[w]hen a motion is filed pursuant to Rule 2-322 [such as Lone’s Motion to Dismiss alleging lack of jurisdiction], the time for filing an answer is extended without special order to 15 days after entry of the court’s order on the motion____” Rule 2-421(b) contains an analogous provision concerning interrogatories: “The party to whom the interrogatories are directed shall file a response within 30 days after service of the interrogatories or within 15 days after the date on which that party’s initial ⁴⁸⁶ pleading or motion is required, whichever is later.” 8 Lone was thus required to file an answer or preliminary motion by September 15, 1989. He did not comply. He failed to file anything until he filed his Motion to Dismiss on September 28, 1989. He was at that time in violation of the time constraints of the Maryland Rules.

The appellee, however, withdrew its first Motion for Default Judgment when Lone belatedly filed his answer in October. A denial of Lone’s motion was entered on October 12, 1989. Appellant’s answers to interrogatories were thus due approximately October 27. Lone admits that his answers to the interrogatories were untimely, as they were not filed until February 2, 1990, but blames the clerk’s office, arguing that he never received notice of the court’s disposition of the Motion to Dismiss. 9 We hold that the trial judge did not abuse his discretion when he imposed the “ultimate sanction” upon Lone.

As he is allowed to do, he assigned little weight to the appellant’s unsupported explanation for the failure to file timely. Absent any proof of mistake on the part of the clerk’s office, a likely explanation for the appellant’s lapse is dilatory conduct, which may properly result in sanctions. At the time the court imposed sanctions for failure to respond to interrogatories, the appellant’s dilatoriness in pleading had been the subject of a prior Motion for Default Judgment in respect to the failure to answer (which motion ⁴⁸⁷ had been withdrawn). Additionally, appellant had not responded to interrogatories as he was required to do, nor had he even responded to the Motion for Sanctions for failure to answer interrogatories after that motion was filed.

Assuming, arguendo, that the appellant did not receive service, we note that the language of Md. Rule 2-321 places the burden on the litigants to check the docket as the clock begins to run upon entry of the court’s order disposing of the motion, not when service is made. Even if the judge were to have accepted the validity of Lone’s lack of notice argument, which he did not, he nevertheless could have imposed sanctions for failure to comply. As discussed supra, we cannot hold that it was an improper exercise of the trial judge’s discretion for him to have rendered the default judgment. THE JONES CASES Shirley Jones is a property owner in Takoma Park and the appellant in two cases, Nos. 899 and 702, which involve injunctions issued pursuant to Motions for Summary Judgment filed by Montgomery County.

In response to the County’s complaints seeking injunctive relief, Jones filed answers which stated legal objections, but did not deny any of the factual allegations. In Case No. 699, no response was filed to the County’s motion for summary judgment; in Case No. 702, Jones filed an Opposition and Cross-Motion for Summary Judgment. After a simultaneous oral argument in both cases, the County’s motions for summary judgment were granted. The hearing transcript shows that there were essentially two issues before the the trial court in considering the summary judgment of the appellee: whether Nickell v. Montgomery County, Maryland, supra, (hereinafter “Fourth Circuit case”), was res judicata, or binding authority, and whether the appellant’s claim under the Maryland ⁴⁸⁸ Constitution 10 had any merits to survive summary judgment. 11 The appellant’s briefs are identical in each case.

She presents this issue: Does a federal court opinion which dismisses what it characterizes as “pendent state law claims” (and the federal appellate decision affirming that dismissal) without prejudice and with advice to assert those claims in a state forum preclude Mrs. Jones from asserting those dismissed claims in this case? For the following reasons, we shall hold that the federal district court case which decided the constitutionality of Ordinance 8-66 under the federal Constitution was not res judicata as to the subsequent litigation in a Maryland court on the Maryland constitutional issues, and the Fourth Circuit case which affirmed that decision is not binding authority for Maryland courts construing the Maryland Constitution. We explain. The Fourth Circuit Case: Nickell v. Montgomery Co. That case was an appeal from the decision of the United States District Court for the District of Maryland (Kaufman, J.), Nickell v. Montgomery Co., Maryland, No. 88-824-K (D.Md. June 20, 1989), which entered summary judgment against this same appellant on the issues concerning violations under the Fair Housing Act, 12 and the equal ⁴⁸⁹ protection and the due process, ie., taking without just compensation, clauses of the federal Constitution. 13 Those same three issues were on appeal before the Fourth Circuit.

The Fourth Circuit affirmed on all three issues. We shall briefly discuss the reasoning process of that court. 14 The Fourth Circuit held that Ordinance 8-66 had a rational basis for its enactment. In so holding, it reasoned that, quoting from Village of Belle Terre v. Boraas, 416 U.S. 1, 9 , 94 S.Ct. 1536, 1541 , 39 L.Ed.2d 797 (1974) and citing Agins v. City of Tiburon, 447 U.S. 255 , 261-62 & n. 8, 100 S.Ct. 2138 , 2141-42 & n. 8, 65 L.Ed.2d 106 (1980), “creating a ‘quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.’ ” Nickell at 6 ( 878 F.2d 379 [Table]). Furthermore, it went on to state that Ordinance 8-66 was enacted merely to “reinforce the 1928 and 1954 laws, and did not make any uses of appellant landlords’ property unlawful that were not prohibited by the earlier zoning laws,” and that this was also a rational basis.

It then held that because there was a rational basis for enacting Ordinance 8-66, the district court properly granted summary judgment on the equal protection claim. On the issue of “taking,” the court, quoting Agins, 447 U.S. at 260 , 100 S.Ct. at 2141 (citations omitted), stated that a zoning regulation may effect an unconstitutional taking if it “does not substantially advance legitimate state interests, or denies an owner economically viable use of his land.” Nickell at 7 . It then held that Ordinance 8-66 advances legitimate state interests, and that it preserved to the owner an economically viable use of the land. It pointed out that although Ordinance 8-66 prohibits the use of the ⁴⁹⁰ buildings as multi-family rental units, it does not require the landlords to expend the necessary funds to reconvert their houses into one-dwelling structures.

Because the appellants in that case failed to raise a genuine issue of material fact, by not producing evidence regarding the value of those buildings prior to the enactment of the Ordinance and the value of those buildings today, had the Ordinance not been enacted, the Fourth Circuit held that the district court properly entered summary judgment on the taking issue as well. On the issue of taking, the court further stated that “unconstitutional taking does not occur if [there is] a reasonable grace period, which amounts to reasonable compensation.” In support, the court discussed Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269, 1273-74 (4th Cir.1986), cert. denied, 479 U.S. 1102 , 107 S.Ct. 1334 , 94 L.Ed.2d 185 (1987), which, held that a 5V2 year amortization period, i.e., “grace period,” was sufficient to allow the recoupment of the investment on outlawed billboard signs, which, presumably, would have little residual value. The court held that the houses in Takoma Park retain significant value as single-family dwellings, and that the ten-year amortization period allowed by the Ordinance was reasonable compensation for future diminution of rental income resulting from the termination of multi-family use. Res Judicata Res judicata bars a cause of action previously asserted in a prior suit and any cause that, with propriety, might have been asserted in the former suit.

Ellett v. Giant Food Inc., 66 Md.App. 695 , 505 A.2d 888 (1986). In general, the Court of Appeals, in Nicholson v. Unsatisfied Claim and Judgment Fund Board, 265 Md. 453, 458 , 290 A.2d 384 (1972), outlined three questions to be asked in order for there to be a successful application of this doctrine: 1. Is the issue presented in the current action identical to the one determined in the prior adjudication? ⁴⁹¹ 2. Are the parties in the present litigation the same or in privity with the parties to the earlier dispute? 3.

Was there a final judgment on the merits in the initial action? If the answer to all three questions is in the affirmative, then res judicata may be properly invoked to bar the second litigation. Id. In order to determine whether the issue presented in the current action is identical to the one determined in the prior adjudication, Maryland has adopted the “same evidence test.” MPC, Inc. v. Kenny, 279 Md. 29 , 367 A.2d 486 (1977).

Under that test, if the same evidentiary facts would sustain both an earlier and later action, then the two causes of action are the same for the purpose of res judicata. Scott v. Prince George’s County Dept. of Social Services, 76 Md.App. 357 , 545 A.2d 81 , cert. denied, 314 Md. 193 , 550 A.2d 381 cert. denied, — U.S. -, 109 S.Ct. 3226 , 106 L.Ed.2d 575 (1988); Century I Condominium Ass’n, Inc., v. Plaza Condominium Joint Venture, 64 Md.App. 107 , 494 A.2d 713 (1985); Jack v. Foster Branch Homeowner’s Ass’n No. 1, Inc., 53 Md.App. 325 , 452 A.2d 1306 (1982); Annapolis Urban Renewal Authority v. Interlink, Inc., 43 Md.App. 286 , 405 A.2d 313 (1979); World Wide Imported Car Co., Ltd. v. Savings Bank of Baltimore, 41 Md.App. 263 , 396 A.2d 547 (1979). Furthermore, a mere change in the legal theory, applied to the same set of facts previously litigated, will not in and of itself avoid claim preclusion. Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487 , 525 A.2d 232 (1987); Whitaker v. Whitaker, 60 Md.App. 695 , 484 A.2d 314 cert. denied, 302 Md. 682 , 490 A.2d 719 (1984).

In the case sub judice, the trial court below ruled that the Fourth Circuit case did not bar the instant action based upon Maryland constitutional provisions under the doctrine of res judicata. It stated: But, the fact of the matter is that the constitutionality of the Maryland provisions has not been tested yet. She has raised the Federal Constitutional issues, and they are ⁴⁹² disposed of, as far as I am concerned. They are the compelling reason why I am going to grant you summary judgment now.

But, the finality of the issue of the Maryland provisions simply is not there. The Court of Appeals, in Pat Perusse Realty v. Lingo, 249 Md. 33, 45 , 238 A.2d 100 (1968), stated the public policy behind the doctrine of res judicata: Public policy against repetitive identical litigation, which underlies the rule of res judicata, applies here with logic and force to provide that Perusse’s rights were satisfied by having had its day in court on an issue, and that it is not entitled to another day in court against a particular defendant on that issue. See also MPC, Inc. v. Kenny, 279 Md. 29 , 367 A.2d 486 (1977) (citing the same quote); see generally Allen v. Kaplan, 255 Md. 409 , 258 A.2d 211 (1969). We first note that the appellant in the case at bar did not have her day in court with respect to the constitutionality of Ordinance 8-66 under the Maryland Constitution.

The federal district court, although it had “pendent jurisdiction” 15 over Maryland constitutional law issues, dismissed those claims without prejudice. In Ellett v. Giant Food Inc., supra, we said res judicata bars causes of action previously asserted and causes of action that with propriety might have been asserted in a former suit. Indeed, the appellant in the case at bar did ask the federal district court to consider the Maryland constitutional law claims, which with all propriety, the federal court might have considered under its pendent jurisdiction. The federal district court, however, dismissed the Maryland constitutional law issues without prejudice because: “[the court] think[s] in the interest ⁴⁹³ of judicial economy, [that] fairness, and convenience are well served by letting any claims that the Plaintiff wants to assert, be asserted in the State Court.” It was no fault of the appellant that the Maryland constitutional issues were not litigated in the first federal suit.

Accordingly, the rationale of res judicata would not be applicable to the case at bar. Furthermore, we said in Annapolis Urban Renewal v. Interlink, Inc., 43 Md.App. 286, 289 , 405 A.2d 313 (1979), that a “dismissal without prejudice is not, of course, an adjudication on the merits.” (Footnote omitted.) Thus, the third element of the res judicata test is not met as to the Maryland constitutional law claims. Second, while Maryland courts have sometimes stated that Article 24 of the Declaration of Rights is in pari materia to the Fourteenth Amendment, they have on occasions distinguished the two. Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983) (the equal protection clause of the Fourteenth Amendment and the concept of equal treatment embodied in Article 24 are in pari materia and generally apply in like manner and to the same extent; nevertheless, the two provisions are independent of each other so that a violation of one is not necessarily a violation of the other); Aero Motors, Inc. v. Administrator, Motor Vehicle Administration, 274 Md. 567 , 337 A.2d 685 (1975) (although Article 24 has long “been equated” with the due process clause of the Fourteenth Amendment by judicial construction and application, the two provisions are not synonymous); Smallwood v. State, 51 Md. App. 463 , 443 A.2d 1003 (1982) (“law of the land” has not been held to be “synonymous” with “due process of law.”).

Accordingly, this would necessarily mean that the “same evidence test” of res judicata would not be applicable, i.e., the same evidence to support the violation of the Fourteenth Amendment of the U.S. Constitution may or may not necessarily support the violation of Article 24 of the Maryland Declaration of Rights. When the trial judge opined that “the finality ... of the Maryland provisions simply is not there,” he was correct. ⁴⁹⁴ For these reasons, we hold that the doctrine of res judicata does not bar a subsequent suit in a Maryland court, alleging violation of Maryland Constitutional provisions, when the same parties had maintained a prior federal suit in which only federal constitutional issues were decided, and the federal court expressly deferred state constitutional questions to the state court. As to the issue of whether the Fourth Circuit opinion is mandatory authority in a Maryland court, we shall hold that it is not. The Court of Appeals, in footnote 10 of Pope v. State, 284 Md. 309, 320 , 396 A.2d 1054 (1979), stated: “unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us.” (Citations omitted.) Even if the Supreme Court of the United States rendered a decision interpreting the equal protection clause of the federal constitution, it is not mandatory authority for Maryland courts construing Maryland constitutional issues.

It may well serve, though, as very persuasive authority in cases involving equal protection issues under Article 24 of the Maryland Declaration of Rights. Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983). Maryland courts have said that Supreme Court decisions on the Fourteenth Amendment are "practically direct authorities.” Bureau of Mines v. George’s Creek Coal & Land Co., 272 Md. 143 , 321 A.2d 748 (1974); Lawrence v. State, 51 Md.App. 575 , 444 A.2d 478 (1982), aff'd, 295 Md. 557 , 457 A.2d 1127 (1983). We shall next discuss whether Ordinance 8-66 amounts to unconstitutional “taking” under the Maryland Constitution.

The Law of “Taking” and Zoning in Maryland We shall first begin our discussion with the concept of “taking” within the context of zoning. Zoning is an exercise of the police power and, to be valid, must be in the general public interest for promotion of health, safety or general welfare of the community. County Comm’rs of ⁴⁹⁵ Queen Anne’s County v. Miles, 246 Md. 355 , 228 A.2d 450 (1967). It is an exercise of the police power which takes away, for public good, some rights of individuals to use their property as they please while giving them rights to restrict injurious uses of others’ property.

Mayor and City Council of Baltimore v. Byrd, 191 Md. 632 , 62 A.2d 588 (1949). As valid as it may be under the police power, however, it has long been established that a zoning ordinance, which permanently restricts the use of property so extensively that it cannot be used for any reasonable purpose and goes beyond permissible regulation, must be regarded as a taking of property without compensation. Congressional School of Aeronautics, Inc. v. State Roads Commission, 218 Md. 236 , 146 A.2d 558 (1958); Marino v. City of Baltimore, 215 Md. 206 , 137 A.2d 198 (1955); Walker v. Board of County Comm’rs of Talbot County, 208 Md. 72 , 116 A.2d 393 cert. denied, 350 U.S. 902 , 76 S.Ct. 180 , 100 L.Ed. 792 (1955); City of Baltimore v. Cohn, 204 Md. 523 , 105 A.2d 482 (1954). As such, zoning cannot be used as a substitute for eminent domain proceedings so as to defeat or circumvent the constitutional requirement for the payment of just compensation.

Congressional School of Aeronautics, Inc. v. State Roads Commission, 218 Md. 236 , 146 A.2d 558 (1958). Furthermore, “the State cannot, under the guise of the police power, take private property for public use without compensating the owner.” Stevens v. City of Salisbury, 240 Md. 556, 564 , 214 A.2d 775 (1965). (Citing Capital Transit Co. v. Bosley, 191 Md. 502 , 62 A.2d 267 (1948)). The Court of Appeals, however, has noted that constitutional proscriptions against the taking of private property for public use without just compensation were not intended to restrain the reasonable exercise of the police power.

Stevens v. City of Salisbury, 240 Md. 556, 564 , 214 A.2d 775 (1965) (citing American Coal Co. v. Allegany Co., 128 Md. 564 , 98 A. 143 (1910)). Accordingly, the Court of Appeals, in City of Salisbury, 240 Md. at 567 , 214 A.2d 775 , said: “It is an accurate statement to say that every restriction upon the use and ⁴⁹⁶ enjoyment of property is a ‘taking’ to the extent of such restriction; but every ‘taking’ is not a ‘taking’ in a constitutional sense for which compensation need be paid.” (Citation omitted.) See also Village of Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. 303 (1926); Allied American Mutual Fire Insurance Co. v. Comm’r of Motor Vehicles, 219 Md. 607 , 150 A.2d 421 (1959). Having discussed the overall scheme of “taking” and zoning, we shall next discuss the law of amortization of nonconforming uses. 16 An owner of land may establish a “lawful nonconforming use” if the evidence conclusively establishes that before and at the time of the adoption of the original zoning ordinance, he was using substantially all of his tract of land in a then-lawful manner for a use which by a later legislative action became nonpermitted. Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389 , 114 A.2d 626 (1955).

More recently, this Court in McKemy v. Baltimore County, 39 Md.App. 257 , 385 A.2d 96 (1978), enumerated factors to be considered in deciding whether a particular current activity is within the scope of a nonconforming use: (1) to what extent does the current use of these lots reflect the nature and purpose of the original non-conforming use; (2) is the current use merely a different manner of utilizing the original non-conforming use or does it constitute a use different in character, nature, and kind; (3) does the current use have a substantially different effect upon the neighborhood; ⁴⁹⁷ (4) is the current use a “drastic enlargement or extension” of the original non-conforming use. Id. at 269-70 , 385 A.2d 96 . (Footnote omitted.) Even if a certain use of a property may be a lawful nonconforming use, the Court of Appeals has repeatedly recognized that “one of the fundamental problems of zoning is the inability to eliminate incompatible nonconforming land uses.” County Council of Prince George’s County v. E.L. Gardner, Inc., 293 Md. 259, 267 , 443 A.2d 114 (1982). Specifically, the Court of Appeals in E.L. Gardner, supra, at 267 , 443 A.2d 114 , said: “[s]uch nonconforming uses pose a formidable threat to the success of zoning.

They limit the effectiveness of land use controls, contribute to urban blight,