Shifflett v. Baltimore County

OppBnhBimBr, J., delivered the opinion of the Court. Owners of several junk yards in Baltimore County which have been operated as valid non-conforming uses in a residential ¹⁵⁴ area attack the constitutionality, at least as to them, of a county ordinance which requires the elimination of junk yards in all residential zones of the county within two years. The ordinance involved was passed by the County Council of Baltimore County on October 19, 1962, as an amendment to the county’s zoning regulations. It provides that any existing junk yards, as defined in the regulations, shall be completely eliminated not later than two years after the date the ordinance became effective, which was November 17, 1962.

On November 17, 1964, two years after the effective date of the ordinance, Cecil Shifflett and members of his family, trading as Shifflett Brothers (Shifflett), and Lester P. Brown and members of his family, trading as Brown’s Auto Parts (Brown), together with two other operators of junk yards, filed bills of complaint in the Circuit Court for Baltimore County, seeking to have the ordinance declared unconstitutional, at least as to them. The cases were consolidated and testimony was taken. At the hearing, it was stipulated that the yards of each of the complainants had the status of a non-conforming use. Judge Raine upheld the validity of the ordinance and denied injunctive relief.

Only two of the four complainants, Shifflett and Brown, appealed from the decree. Two legal questions are presented: whether the ordinance is a valid exercise of the police power; and, if it is, whether the two-year provision for elimination of non-conforming uses is unreasonable and therefore unconstitutional as applied to the appellants on the particular facts. The principle is firmly established in this State that legislative bodies can require that non-conforming uses cease after a reasonable and appropriate specified time. Grant v. City of Baltimore, 212 Md. 301 , 129 A. 2d 363 (1957) ; Eutaw Enterprises, Inc. v. City of Baltimore, 241 Md. 686 , 217 A. 2d 348 (1966).

See also Stevens v. City of Salisbury, 240 Md. 556, 573 , 214 A. 2d 775 (1965), in which the Court expressly reaffirmed the holdings of Grant . We shall not repeat in detail the reasons for those holdings, summarized by Judge Hammond (now Chief Judge) in Butcm Enterprises, as follows : “[The appellant] had no vested right in the zoning classification under which it operated and no right to ¹⁵⁵ expect that the classification of the property in which it operated would remain unchanged indefinitely. The ordinances, passed after deliberation and full consideration of expert and professional advice were general in application and drawn to apply in the same way, presently and in the future, to all similarly situated. “As Grant suggested, there is no difference in kind, merely of degree, between a use which has been nonconforming since zoning began and one that is made nonconforming by a reclassifying ordinance, and, as Grant held, one in existence when zoning began may be required to stop. Because every zoning regulation affects property owned by someone at the time of its enactment, it brings about some curtailment of property rights either by restricting prospective uses or prohibiting existing ones.

The prohibition of existing rights may be more likely to impose greater hardship or loss upon affected individuals than the restriction of prospective uses and that is one reason why we said in Grant at page 316: 'The significance and effect of difference in degree in any given case depends on circumstances, environment and length of the period allowed for amortization’.” 241 Md. at 696 . At the hearing below, Mr. John G. Rose, Zoning Commissioner for Baltimore County, and Mr. George E. Gavrelis, the County Director of Planning, testified as to the reasons for the enactment of the ordinance. Junking activities were proliferating and expanding throughout the county. It was difficult to establish whether or not junk yards were non-conforming uses, because the zoning took effect in 1945 and memories as to when a particular use began were uncertain.

The yards which possessed the status of non-conforming uses were not fading away, but were enjoying a monopoly to the detriment of their neighbors. Mr. Gavrelis testified that : “A junk yard is, from a planning viewpoint, not compatible with residential area because it tends to be a varying and disconsonant kind of a land use. It has ¹⁵⁶ aspects of blight in it in the sense that cars are stacked up, the junk yard is not sightly. There have been and there probably will be incidents of burning.

The very introduction of junk activities with their esthetic aspects, the possibilities, at times, of noise, the fact that junk yards just are not a compatible use, there’s a confrontation which really offends, I think, the residential development that exists or retards the possibilities for yet additional residential development near a junk yard.” He also testified that “the up-county areas are experiencing, for them at least, a rather fantastic growth.” Judge Raine found that junk yards are incompatible uses within a residentially zoned area and the testimony supports his conclusion. Junk yards are not a nuisance per se, and the use of property for such purposes is not in itself unlawful. Town of Bladensburg v. Berg, 216 Md. 292 , 139 A. 2d 703 (1958). See also Feldstein v. Lavale Zoning Bd., 246 Md. 204 , 227 A. 2d 731 (1967).

However, courts in other jurisdictions have found (although there are cases to the contrary) that the elimination of junk yards which enjoy the status of a non-conforming use in a residential neighborhood is a reasonable exercise of the police power, because of their nature or the manner in which they are conducted, if the time given for the elimination of the nonconforming use is adequate. In Harbison v. City of Buffalo, 4 N. Y. 2d 553, 152 N. E. 2d 42 (1958), it was held, in a four to three decision, that a city ordinance requiring termination of the non-conforming use of premises as a junk yard within three years from the date of the ordinance was constitutional, if, in further proceedings, it was found that the resultant injury to the property owners was not so substantial that the ordinance would be unconstitutional as applied to the particular facts of the case. In delivering the opinion of the court, 1 Judge Froessel said : ¹⁵⁷ “if, therefore, a zoning ordinance provides a sufficient period of permitted nonconformity, it may further provide that at the end of such period the use must cease. This rule is analogous to that with respect to nonconforming structures.

In ascertaining the reasonable period during which an owner of property must be allowed to continue a nonconforming use, a balance must be found between social harm and private injury. We cannot say that a legislative body may not in any case, after consideration of the factors involved, conclude that the termination of a use after a period of time sufficient to allow a property owner an opportunity to amortize his investment and make other plans is a valid method of solving the problem. “To enunciate a contrary rule would mean that the use of land for such purposes as a tennis court, an open air skating rink, a junk yard or a parking lot — - readily transferable to another site — at the date of the enactment of a zoning ordinance vests the owner thereof with the right to utilize the land in that manner in perpetuity, regardless of the changes in the neighborhood over the course of time. In the light of our ever expanding urban communities, such a rule appears to us to constitute an unwarranted restriction upon the Legislature in dealing with what has been described as “’One of the major problems in effective administration of modern zoning ordinances’ (1951 Wis.L.Rev. 685). When the termination provisions are reasonable in the light of the nature of the business of the property owner, the improvements erected on the land, the character of the neighborhood, and the detriment caused the property owner, we may not hold them constitutionally invalid.” 4 N. Y. 2d 562-63.

This is the same reasoning as that of this Court in Grant (cited with approval in Harbison) and Butaw Bnterprises. Spurgeon v. Board of Comm’rs of Shawnee County, 181 Kan. 1008 , 317 P. 2d 798 (1957), cited with approval in Butaw Bnterprises, held valid a county zoning resolution prohibiting the ¹⁵⁸ non-conforming use of property as automobile wrecking yards within two years of the effective date of the resolution. McKinney v. Riley, 105 N. H. 249, 197 A. 2d 218 (1964), held valid an order made pursuant to an ordinance prohibiting the use of a non-conforming junk yard after one year. See also Town of Schroeppel v. Spector, 251 N. Y. S. 2d 233, 43 Misc. 2d 290 (Sup.

Ct. 1963). Contra are City of Akron v. Chapman, 160 Ohio St. 382 , 116 N. E. 2d 697 (1953) (holding invalid an ordinance prohibiting the non-conforming use of a junk yard after one year) and City of Corpus Christi v. Allen, 152 Tex. 137 , 254 S. W. 2d 759 (1953). Authorities upholding prohibitions of certain land uses in analogous cases, including decisions of the Supreme Court,