Mayor of Baltimore v. Bruce

Liss, J., delivered the opinion of the Court. This is an appeal by the Mayor and City Council of Baltimore, appellant, from a judgment entered by the Baltimore City Court which reversed, on appeal, a decision of the Board of Municipal and Zoning Appeals (the Board) and directed the Board to permit the use of property owned by Elmer Bruce, appellee, as requested by the appellee. On July 11, 1979, the appellee filed a permit application with the Construction and Buildings Inspection Division of the Department of Housing and Community Development in which he sought to use a brick building located at 1219 Hull Street in the Locust Point area of the city as a machine shop. The permit application was denied on July 12, 1979, and on that same day the appellee filed a notice of appeal and an appeal to the Board of Municipal and Zoning Appeals.

On September 11,1979, the Board heard and denied the appeal. Appellee appealed to the Baltimore City Court, and after a hearing, the Court (Kaplan, J.) reversed the Board and directed it to issue a permit authorizing the property to be used for the purpose recited in appellee’s original application. The Mayor and City Council filed a motion for a new trial which, after a hearing in open court, was denied. The appellant then filed the instant appeal by which it raised the following issues: 1.

Whether the Baltimore City Court erred in holding ⁷⁰⁶ that the clear definition of the word "use” in the Baltimore City Zoning Ordinance required the conclusion that the Board of Municipal and Zoning Appeals was wrong in limiting the definition of "a structure all or substantially all of which is designed and erected for an industrial use” to buildings that were originally designed, erected for, and used for industrial purposes. 2. Whether the Court erred in not applying the "substantial evidence” or "fairly debatable” test to the decision of the Zoning Board? 1. The property here involved is located at 1219 Hull Street in Baltimore City. The structure located on the land is a one-story masonry building containing approximately 5000 square feet of floor space.

The building was erected about forty years ago by the International Longshoreman’s Union Local 829, and for the next four decades it has been used as a union and hiring hall. From the time of its erection, until 1971, the property was zoned for industrial use. The operation of a machine shop was a permitted use in an industrial zone under the then effective zoning ordinance. On April 20, 1971, the Mayor and City Council adopted a new comprehensive zoning ordinance 1 by the terms of which 1219 Hull Street was classified as being in a residential zone.

There is, at least, a suggestion that this was in the nature of "spot zoning” as a property immediately across a rear alley from the property in question was permitted to retain its industrial classification. It is to be noted that the operation of a machine shop would not be permitted in a residential zone under the circumstances of this case unless it was permitted as a non-conforming use. Section 8.0-1 of Article 30 of the Baltimore City Zoning Ordinance provides: "Any non-conforming use or structure, or any non-complying structure, may be continued, subject to the regulations of this chapter.” ⁷⁰⁷ Section 8.0-3 of Article 30 regulates non-conforming structures and their uses as follows: 8.0-3 Non-conforming structures and uses thereof (CLASS 2) This section is confined to the regulation of non-conforming structures and uses thereof, which structures and uses shall be known as Class 2. a. Class 2 non-conforming structures and uses thereof shall include any structure all or substantially all of which is designed and erected for a use not permitted in the district in which it is located, and the uses thereof, including any non-conforming use of land accessory thereto. d.

Change. In Residence and Office-Residence Districts, a Class 2 non-conforming use shall not be changed to any other non-conforming use — except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this chapter, may authorize a change of a Class 2 non-conforming use which is located in a structure all or substantially all of which is designed and erected for an industrial use to a use permitted in the M-l Industrial District. Where a Class 2 non-conforming use is located in a structure all or substantially all of which is designed and erected for a business or other non-conforming use, the Board, in accordance with the authority and procedures established in Section 8.0-7 of this chapter, may authorize a change of such Class 2 non-conforming use to a use listed in the B-l Neighborhood Business District. In B-l, B-2, B-3, B-4, B-5, M-l, M-2, and M-3 Districts, a Class 2 non-conforming use shall not be changed to any other non-conforming use — except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this ⁷⁰⁸ chapter may authorize a change of a Class 2 non-conforming use to another non-conforming use which is similar in nature and character to the existing non-conforming use.

When a non-conforming use has been changed to a conforming use, it shall not thereafter be changed back to a non-conforming use. Article 30, Section 8.0-7 governs the exercise of authority by the Board over changes, alterations and extensions of non-conforming uses and structures subject to the following standards and limitations: The Board, after public notice and posting, may determine and authorize such changes, alterations, and extensions to non-conforming uses and structures, and may authorize the continuance of non-complying dwelling units in non-complying structures, in harmony with the purpose and intent of this ordinance, only in the specific instances set forth herein, where the Board makes findings of fact in accordance with the guides, standards, and limitations hereinafter prescribed and, further, finds that such authorization will not be contrary to the public interest. a. Application. An application for any such change, alteration, extension, or continuance shall be filed with the Zoning Administrator, on a prescribed form.

The application shall be accompanied by such plans and data as required by the Board pursuant to general rule. b. Changes, alterations, and extensions to non-conforming uses and structures, and continuance of non-complying structures, shall be in accordance with the guides, standards, and limitations established in this chapter, and may be granted by the Board only in the following instances, and in no others: 1. to authorize a change on a non-conforming use' ⁷⁰⁹ as limited and stated in Sections 8.0-3d and 8.0-4d of this chapter, provided that the Board shall first find in each case that: (a) any emission of noise, vibration, smoke or particulate matter, toxic matter, odorous matter, fire or explosion hazards, or glare resulting from the proposed use would be no greater than those of the existing or last use of the property; and (b) the new use will not generate a greater volume of traffic than the existing or last use of the property; and (c) the proposed use will not occupy a greater portion of the lot and/or structure than the existing or last use of the property; and (d) the effect of the new use on the health, safety, or general welfare of the community shall be no greater than the existing or last use of the property. The Board, after hearing this case, adopted a resolution which said, in pertinent part: In residence and Office Residence Districts, a Class II non-conforming use shall not be changed to any other non-conforming use except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this Chapter, may authorize a change of a Class II non-conforming use which is located in a structure all or substantially all of which is designed and erected for an industrial use to a use permitted in the M-l Industrial District. Where a Class II non-conforming use is located in a structure all or substantially all of which is designed and erected for a business or other non-conforming use, the Board, in accordance with the authority and procedures established in Section 8.0-7 of this ⁷¹⁰ Chapter, may authorize a change of such Class II non-conforming use to a use listed in the B-l Neighborhood Business District.

A machine shop is listed as a permitted use in the M-l Industrial District. The Board went on to say: The Board, after having given due regard and consideration to the nature and condition of the adjacent uses and structures and the facts in this case, is of the opinion that the machine shop should not be allowed. The Board does not accept the appellant’s attorney’s position that if a building is designed and erected for an industrial use and not used for industrial purposes, it still may be changed to a use permitted in an M-l District. The Board finds that if a building is designed and erected for an industrial use, it must be used for industrial purposes, without interruption, otherwise it is without the authority to change the use to a machine shop or any other M-l use.

The Board further finds that even if it accepted the fact espoused by the attorney representing the appellant that it still would generate more people and have an adverse impact on the community while at the same time disrupting a very stable, residential neighborhood. The Board feels that the proposed use would not minimize the objectionable impact and finds as a fact that the traffic would be increased and the use would adversely affect the community. The Board cannot accept the legal premise offered by the appellant nor was any compelling reason shown to exercise its discretion so as to allow the machine shop in this community. In accordance with the above facts and findings, the Board disapproves the application. ⁷¹¹ Both the appellant and the appellee agree that the determination of the controversy in this case is based on the right of the Board to exercise its discretion to permit the use contemplated by the appellee.

The record before the Board clearly established