Roach v. Board of Zoning Appeals

Sloan, J., delivered the opinion of the Court. Morris Lipsitz was the owner of a lot fronting 94 feet on the north side of Winchester Street and 136 feet on the west side of Calhoun Street in the City of Baltimore, which he bought in 1930, and on which he conducted the business of “Planing Mill, Woodwork machines, and different things, lumber, and so on, all kinds of materials,” there trading as Northwestern Lumber Company. In 1932 he erected an ice factory on the corner, 50 by 50 feet, which was operated by him and Louis Shane, one of the appellees, as partners, until in 1937, when Shane bought the entire lot, and the interest of Lipsitz in the ice factory. Shane now proposes to extend his ice factory and storage over the entire lot, and applied to the City Engineer of Baltimore for a permit to make the extension in accordance with the provisions of the Zoning Ordinance, No. 1247, approved March 30th, 1931, (amended as hereinafter noted, by Ordinance No. 503, September 19th, 1933), which was refused by the City ³ Engineer, August 31st, 1937, on the ground that the use applied for did not conform to the use classification of the ordinance.

Shane gave notice of an appeal to the Board of Zoning Appeals within ten days and after a public hearing the Board granted a permit, finding, as stated in their answer on appeal, that “it appeared that the premises in question were used and had been used for ten or twelve years as a saw and planing mill and a lumber yard, the said use as a planing mill constituting an Industrial use, which was non-conforming and that * * * under Paragraph 11 of the Zoning Ordinance (they) merely permitted a change from a planing mill, an industrial use, to an ice house, likewise an industrial use, the use being a non-conforming use.” Emma D. Roach, trustee, an owner of property in the zone affected, appealed from the order of the Board of Zoning Appeals to the Baltimore City Court, and on petition of the applicant Shane, and wife, they were made parties defendant with the Board of Zoning Appeals, Mrs. Roach becoming the plaintiff, in the proceedings on appeal to the City Court. The action of the City Court, after hearing, was to affirm the order of the Board of Zoning Appeals, that court holding “that a non-conforming use of the premises 1200 Calhoun Street as a planing mill” had been established. From the order of the City Court, Mrs. Roach appeals to this court. The Ordinance of March 30th, 1931, has made four classifications for uses of property, the two with which we are here concerned being the businesses allowed in the Second Commercial Use Districts, amongst which are ice factories and planing mills, and the next higher classification, First Commercial Use Districts, which includes coal and lumber yards.

In the case of Lipsitz v. Parr, 164 Md. 222 , 164 A. 743 , it was held that the part of the whole lot 50 by 50 feet was located in a Second Commercial Use District, and the erection of an ice factory on that part of the whole lot was properly forbidden by the City Engineer. ⁴ Action was then taken by the Mayor and City Council to so amend the ordinance of March 80th, 1931, as to make of the 50 foot corner of the lot a Second Commercial Use District, which allowed the operation of the ice plant. The validity of that amendment to the Zoning Ordinance was not raised below in the present case, so that we do not consider that question on this appeal. Code, art. 5, sec. 10. All that this court decided in Lipsitz v. Parr, supra, was that the corner portion of the lot was a First Commercial Use District, and that the permit applied for, an ice factory, was for a lower classification, and did not conform with and was not included in any of the businesses allowed in such a district.

The question now is whether the business heretofore conducted by Lipsitz on the balance of the lot is of the same classification, Second Commercial Use, as an ice factory. If the business is or was a planing mill it has the same classification, and Shane would be entitled to a permit to build and operate, if it is or was a lumber yard, he is not so entitled, as the change would be from a higher to a lower classification. There is no abandonment in a change from one business to another of the same classification, provision for such a contingency having been made by paragraph 11 of the Zoning Ordinance, so that we do not have the question decided in Landay v. MacWilliams, 173 Md. 460 , 196 A. 293 , where the question was whether there had been an abandonment or surrender of the non-conforming use by reason of a prolonged vacancy of the premises between the occupancies by two junk dealers. In that case paragraph 11 of the Zoning Ordinance was quoted, construed and applied.

The question here, then, is one of fact. Lipsitz bought the property in 1930, when there was a small business conducted by a negro, with little planing equipment, and whether the lumber business or the planing mill was merely incidental to the other cannot be ascertained from the record, and, although the business was much enlarged under the ownership of Lipsitz, it cannot now with any