Trip Associates, Inc. v. Mayor of Baltimore

KRAUSER, Judge. “Club Choices” is a night club, featuring adult entertainment, in Baltimore City, Maryland. It is owned and operated ¹⁷⁰ by Anthony Dwight Triplin and his company, Trip Associates, Inc. The Club has presented adult entertainment, two nights a week, for over two decades. There is no question that that is a lawful non-conforming use of those premises—at least, as we shall see, for two nights a week. In April 2000, Triplin received a zoning violation notice for providing this form of entertainment on a portion of the Club’s premises without a license.

The notice ordered the Club to discontinue it until one was obtained. The notice was issued by the office of the Zoning Administrator on behalf of the Mayor and City Council of Baltimore (“the City”). Triplin demurred, filing an. appeal with the Board of Municipal and Zoning Appeals (“Board”). After a public hearing, the Board found that Triplin had established a nonconforming use of the premises for adult entertainment but, to Tripliris chagrin, limited that use to no more than its current level of two nights a week.

When the Circuit Court for Baltimore City affirmed the Board’s decision, Triplin noted this appeal. Triplin presents two issues for our review. Reworded, they are: I. Whether the Board erred as a matter of law in placing the two nights per week restriction on Triplin’s nonconforming use.

II

Whether the circuit court erred in deciding, sua sponte, an issue not presented to the Board—namely, whether Triplin was required to obtain an adult entertainment license. For the reasons that follow, we shall hold that the Board properly limited the adult entertainment offered by Triplin’s Club to two nights a week, but that the circuit court erred in ordering Triplin to obtain a license. Facts Triplin and the City have submitted, with their briefs, a “Joint Statement of the Case in lieu of a Joint Record Ex ¹⁷¹ tract.” Md. Rule S-dlolb). 1 According to that statement, on April 14, 2000, a Baltimore City zoning inspector issued a “Code Violation Notice And Order” to Anthony Dwight Trip-lin, operator of a nightclub, known as “Club Choices,” and located at 1815-17 N. Charles Street in the B-5-1 Zoning District. The violation notice was issued for “[u]sing [a] portion of the premises for adult entertainment without first obtaining proper Adult Entertainment Ordinance and Adult Entertainment License.” 2 Aggrieved by the Zoning Administrator’s decision to issue the violation notice, Triplin appealed that decision to the Board. 3 In doing so, Triplin sought the Board’s approval ¹⁷² of his use of a “portion of [his] premises for Adult Entertainment.” 4 That appeal was heard by the Board on October 3, 2000.

At that hearing, Anthony Triplin testified that he has owned Club Choices “[s]ince approximately January of 1983” and, from that time on, the Club has continuously presented dancing shows with partial nudity. Moreover, according to Mr. Triplin, the Club had featured adult entertainment for five years before his acquisition of the property. At the time he purchased it, Triplin stated, “[i]t was a nightclub ... with various acts, entertainment acts and also was even doing some nude male and female dancing.” Upon purchasing the Club, Triplin made some changes. “I did not want the nudes,” he stated, “so I did exotic a couple of, a couple of hours two times a week and did more like jazz, top 40 bands, comedy, dancing and then later moved into an after-hour use as well.” After the Board approved Triplin’s use of the premises for an after-hours club 5 in 1992, he presented exotic dancing exclusively in the after-hours club. At the time of the violation hearing, Triplin’s Club offered adult entertainment two nights a week: every Wednesday and Friday night for two hours each night.

Two employees of the Club, Gregory Gee and Charles Watkins, testified that adult entertainment had been presented at the Club before Triplin’s purchase; that after Triplin’s purchase of the Club, stripping with ¹⁷³ full nudity was scaled back to exotic dancing with partial nudity; and that the Club has presented exotic dancing with partial nudity two nights a week since 1983. After the hearing, the Board, on October 12, 2000, found that “a nonconforming use of the premises for adult entertainment had been established prior to Ordinance 443 (adult entertainment business approved December 15, 1994) and may be continued under section 13-402 of the Zoning Code.” 6 On October 27, 2000, Triplin filed a petition in the Circuit Court for Baltimore City, requesting judicial review of the Board’s decision. After a hearing, the circuit court affirmed the Board’s decision. Unhappy with that result, Triplin filed a motion for reconsideration, claiming that the circuit court’s affirmance was based on its review of the wrong Board decision.

Triplin claimed that “[t]he court appeared to be reviewing and considering an earlier decision of the Board of March 9, 1992 and not the decision of October 12, 2000 in reaching its decision.” 7 On June 14, 2001, the circuit court held a second hearing. Following that hearing, the court found that the Board had the authority to impose the two nights per week restriction on Triplin’s use of the premises for adult entertainment. In addition, the court ruled that “[Triplin] must apply for and obtain all necessary and relevant licenses required by the City for the operation of an adult entertainment business.” ¹⁷⁴ Triplin then filed a motion to revise, claiming that the court erred in interpreting “the various zoning ordinances in question.” Specifically, he asserted that the circuit court had “confused, in a fundamental way, the concept of non-conforming use and conditional use” in stating that “the Board found a non-conforming conditional use of the premises for adult entertainment.” On August 15, 2001, the circuit court conducted another hearing to address that issue. After that hearing, the court issued an opinion affirming the Board’s decision for the third and last time.

This appeal followed. Discussion I. The Board’s decision to restrict the Club’s presentation of adult entertainment to its present level of adult entertainment to two nights a week is, Triplin claims, “plain error as a matter of law.” According to Triplin, the Board’s decision “has the effect of vitiating Triplin’s non-conforming use and constitutes an impermissible restriction of Triplin’s constitutional right to continue the use of the premises that has existed for many years.” We disagree. Title 13 of the Baltimore City Zoning Code (2000) “provides for the regulation of nonconforming uses and noncomplying structures” in Baltimore City. A “nonconforming use” is defined by that title as “any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located.” City Zoning Code § 13-101(c) (emphasis added).

And a “use” is defined by the Zoning Code as: “(1) any purpose for which a building, other structure, or tract of land can be used or occupied; and (2) any activity, occupation, business, or operation that is earned on or intended to be carried on in a building or other structure or on a tract of land.” § 1-196. Triplin’s club is a Class III non-conforming use, 8 under § 13-609. That section states that “[a]ny adult-entertainment ¹⁷⁵ business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III regulations.” (emphasis added). That would, it is undisputed, include Triplin’s club.

But the issue before us is not whether Triplin’s club is a non-conforming use but whether the use of the club for adult entertainment may be limited to two nights. To answer that question, we turn to § 13-406 of the Zoning Code. That section provides that “except as authorized by the Board under Subtitle 7 {’’Modifications and Continuances by Board”} a Class III nonconforming use may not be expanded in any manner.” (emphasis added). In limiting the presentation of adult entertainment by the club to its present level, the Board interpreted this prohibition against expanding a non-conforming use to include a temporal expansion of such a use.

As an “interpretation and application” of a law which the Board administers, that decision must be given “considerable weight.” Board. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999). Once that is done, we are constrained to conclude that the Board’s restriction on expanding the hours of adult entertainment at the club is permitted by that section of the Baltimore City Zoning Code. In other words, the Board’s decision to limit future temporal expansions of adult entertainment by the Club was plainly not error, as Triplin claims, but in fact was consistent with the “expansion” proscription of § 13-406. Moreover, the Board’s finding that the adult entertainment offered by Triplin never exceeded more than two nights a week was supported by the evidence presented.

Two employees of the Club, Gregory Gee and Charles Watkins, testified that partial nude dancing had been presented by the Club two ¹⁷⁶ nights a week since 1983. Triplin gave similar testimony. Therefore, the Board’s decision, in effect, allowed Triplin to continue to do what he had done since he acquired the club in 1983—present partial nude dancing at his club two nights a week. Furthermore, the Board’s decision is consistent with Maryland’s general and well-established policy against the expansion of nonconforming uses. “Whether a nonconforming use can be changed, extended, enlarged, altered, repaired, restored, or recommenced after abandonment ordinarily is governed by the provisions of the applicable local ordinances and regulations.” County Council v. Gardner, Inc., 293 Md. 259, 268 , 443 A.2d 114 (1982).

But “[t]hese local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses.” Id. Indeed, limitations on the continuance of nonconforming uses are meant “to achieve the ultimate elimination of nonconforming uses through economic attrition and physical obsolescence.” Id.; see also Colati v. Jirout, 186 Md. 652, 655 , 47 A.2d 613 (1946) (“[T]he [Baltimore City] Zoning Ordinance prohibits generally the extension of a non-conforming use except to the portion of the building designed for such use at the time of the passage of the ordinance, and ... the stopping of expansion of a nonconforming use is not an arbitrary or unreasonable exercise of governmental power.”); Grant v. Mayor of Balt., 212 Md. 301, 307 , 129 A.2d 363 (1957) (“[T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned.”). Unfortunately, however, there is little Maryland case law on the question of the legality of a temporal expansion of an existing non-conforming use. But what is true of Maryland is not true of other jurisdictions.

Indeed, a number of state courts have held, as we do today, that the general policy against the expansion of non-conforming uses applies to temporal expansions as well. See Garb-Ko v. Carrollton Township, 86 Mich.App. 350 , 272 N.W.2d 654, 655 (1978) (holding ¹⁷⁷ that township board could restrict the operating hours of nonconforming grocery store in view of the policy against expansion of nonconforming uses); Inc. Vill. v. Hillside Ave. Rest. Corp., 55 A.D.2d 927 , 390 N.Y.S.2d 637, 638 (App.Div. 1977) (holding that a nonconforming bar was unlawfully extended when it increased its hours of entertainment from 9:00 p.m. to 2:00 a.m. on weekends, to noon to 4:00 a.m. daily).

Or have otherwise held that a non-conforming use may be temporally restricted. See Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877, 880 (Ind.Ct.App.1989) (holding that zoning board had authority, in approving a change to a nonconforming filling station, to restrict its hours of operation); Cornell Uniforms, Inc. v. Township of Abington, 8 Pa.Cmwlth. 317 , 301 A.2d 113, 116 (1973) (holding that zoning board had authority to impose condition that nonconforming dry cleaning establishment must operate five days a week, from 7 a.m. to 6 p.m., since it previously operated within the same time frame). Notwithstanding the strong legislative and judicial disinclination in Maryland and elsewhere to permit the expansion of non-conforming uses, Triplin claims that the Board’s restriction on expanding the hours in which adult entertainment may be presented by the Club was not only unlawful but unconstitutional as well. In support of that argument, Triplin cites Amereihn v. Kotras, 194 Md. 591 , 71 A.2d 865 (1950), for the proposition that “zoning ordinances are prospective and cannot be used to terminate a valid, existing, non-conforming use of property,” and Mayor of Baltimore v. Dembo, Inc., 123 Md.App. 527 , 719 A.2d 1007 (1998), for the notion that his nonconforming use of the property is “a vested constitutional right that is entitled to protection as such by the courts.” But Triplin fails to explain how either case advances his cause or, more specifically, casts doubt on the Board’s right to maintain a