Tuzeer v. Yim, LLC

GRAEFF, J. This case involves the use of property as a restaurant in an area that, pursuant to current zoning regulations, does not permit restaurants. The property at 123-129 West 27th Street, Baltimore, Maryland (the “W. 27th Street property”) ⁴⁴⁸ operated as a nonconforming use through May 2008. The owner of the W. 27th Street property, YIM, LLC (‘TIM”), one of the appellees, sought a new permit for restaurant use in May 2009. In October 2009, the Baltimore City Board of Municipal and Zoning Appeals (the “Board”), the other appel-lee, permitted the continued nonconforming use of the W. 27th Street property as a restaurant.

Mr. Hasip Tuzeer and other neighbors of the W. 27th Street property (“appellants”), appeal from the judgment of the Circuit Court for Baltimore City, which affirmed the Board’s decision to allow the use of the property as a restaurant. Appellants present several questions for our review, 1 which we have rephrased as follows: 1. Has there been a substantive change in the applicable law requiring reversal of the Board’s decision? 2. Did the Board violate the Open Meetings Act? 3.

Did the Board err in its finding that the nonconforming use at issue had not been discontinued? 4. Did the Board improperly modify the nonconforming use permit? For the reasons set forth below, we shall affirm the judgment of the circuit court. ⁴⁴⁹ FACTUAL AND PROCEDURAL BACKGROUND The W. 27th Street property consists of four row houses in Baltimore, Maryland that have been combined to form a single unit. The property was built in the 1940s, and YIM has owned it since November 2006.

When YIM purchased the property in November 2006, a bar named 1.7th Generation was operating there. It ultimately sold the business interest to Two Sisters Grille, LLC (“Two Sisters”), which operated as a restaurant and bar. A small bakery that prepares gluten free food used a separate area of the property, as well as a portion of the restaurant’s kitchen space. 2 Two Sisters closed at the end of May 2008. YIM then sought a new tenant to operate a restaurant.

In December 2008, YIM leased the property to David Weishaus, and they began the process of procuring the proper permits to operate a restaurant with a liquor license. That same month, December 2008, Two Sisters filed a Petition for Hardship Extension with the Baltimore City Board of Liquor Commissioners, requesting an extension of its liquor license to permit the transfer of the liquor license to the new restaurant operator for the W. 27th Street property. The Board of Liquor Commissioners granted the request, approving an extension for 180 days from December 11, 2008. On May 11, 2009, YIM filed a Use and Occupancy Permit Application with the Department of Housing and Urban Development, requesting a permit for the W. 27th Street property to be used as a “lounge & restaurant open 7 days [each week], food and beer, wine, & liquor, first and second floors.” ⁴⁵⁰ The record reflects that the permit application was initially given zoning approval that day and a draft permit was filed on May 21, 2009, but the permit subsequently was voided on June 4, 2009. 3 On June 11, 2009, YIM filed an appeal to the Board.

It requested that the Board approve the application for an extension/use of a non-conforming restaurant with a liquor license. On June 15, 2009, after the initial permit application was voided, YIM filed a Use and Occupancy Permit Application with the Department of Housing and Community Development, seeking to “continue use and extend time limit for discontinuation for portion of 1st floor (restaurant with liquor license).” YIM’s application was denied on June 15, 2009, and YIM filed an appeal to the Board. On August 18, 2009, after several postponements, the Board held a hearing regarding YIM’s request to use a portion of the first floor of the W. 27th Street property as a restaurant with a liquor license. Counsel for YIM noted that, according to City permit records, the W. 27th Street property has been used as a restaurant since at least 1961. 4 Mr. Paul Goldberg, the principal of YIM, testified that a restaurant and/or bar had operated on the property since he purchased it in 2006.

Two Sisters closed at the end of May ⁴⁵¹ 2008 after falling into arrears in its rent and tax payments. YIM immediately began to market the W. 27th Street property, eventually leasing the first floor space to David Weishaus in December 2008. Mr. Weishaus began making improvements, with the ultimate goal of operating a restaurant. In May 2009, Mr. Goldberg learned that “there was a great rift between [Mr.] Weishaus and the community civic association.” After determining that Mr. Weishaus would “not necessarily suit the interest of the community civic association,” he and Mr. Weishaus agreed to break the lease.

YIM approached Richard D’Souza, who had talked about “an expansion ... of his bakery or as a sit down area.” They entered into a lease, contingent on the ability to get a liquor license. In April or May of 2009, Mr. Weishaus filed an application to transfer to Mr. D’Souza the liquor license he had procured. YIM advised the Charles Village Association that the restaurant would not play live music or host professional parties, and it would maintain the sidewalks and operate a clean facility. Mr. Goldberg testified that the only economically feasible use for the W. 27th Street property is a restaurant.

He explained that rental payments from a residence would not cover the amount it would cost to convert the first floor of the property to an apartment. Mr. D’Souza, who operated a gluten-free bakery on one side of the W. 27th Street property, testified that he hoped to take over the space used as a restaurant. He wanted to establish a restaurant that would cater to gluten-free clients, although it would not be totally gluten-free. A number of neighborhood residents were either present at the hearing or submitted letters to the Board regarding YIM’s permit request.

Residents stated that, for more than a year, the use of the property had been a bakery, and they expressed concern regarding the impact that a restaurant with a liquor license would have on the neighborhood and its residents, specifically concerns about crime, disorderly conduct, noise, and parking. Neighborhood representatives also testified, ⁴⁵² echoing concerns related to the consumption of alcohol, crime, trash, and noise. Michelle Wirzberger, on behalf of the Charles Village Association and the greater Remington Improvement Association, further argued that the W. 27th Street property falls within the boundaries of the Charles/25th Urban Renewal Plan, which prohibits a nonconforming use from being re-established when it has “been inactive and not in continuous operation for 12 months.” She asserted that, if the Board did not agree with that argument, the Board needed to “ensure that in terms of allowing a continuation that the continuation is not contrary to the public interest,” and she argued that permitting a restaurant with a liquor license to operate out of the W. 27th Street property was “contrary to the public interest” because it would cause parking problems and attract “bad actors and dangerous activity,” including urination and defecation on neighboring properties. Counsel for appellants argued that YIM’s request constituted a request for a modification because, when the Board authorized “the kitchen in the tavern [to be used] for preparation of baked goods” in May 2007, it did not “grant a second separate principal use [of] the property”; the Board merely granted “an accessory use of the kitchen.” Counsel argued that the current permit request sought a separate, distinct use, namely a restaurant with a liquor license.

Authorizing the permit, he maintained, would result in two side-by-side commercial uses instead of a single non-conforming use, representing a modification of the non-conforming use. Counsel argued further that the non-conforming use as a restaurant had been abandoned, and that a restaurant with a liquor license was “not compatible with the surrounding neighborhood.” David Tanner, the Executive Director of the Board, then discussed the historical use of the W. 27th Street property. He stated that the property “started as single family homes in four separate lots,” and “they were allowed to extend the first floor at 125 and 127 in conjunction with the tavern at 129 in ⁴⁵³ 1946.” He believed that the fourth unit was expanded into a bakery in 1961, but “it was all done prior to '71,” when zoning restrictions were imposed. Counsel for YIM then gave his closing argument.

He maintained that operation of a restaurant/tavern on the property constituted a long-standing nonconforming use. Counsel noted that the property had operated as a restaurant with a liquor license until May 2008, when Two Sisters closed, and that a new use permit would have been issued in May 2009 if there had not been a mistake in the zoning office, which voided YIM’s application instead of tagging it. With respect to the argument that there had been a discontinuation of use as a restaurant, counsel made two points. First, he argued that the provisions of discontinuation and abandonment did not apply to the R-8 district.

Second, he argued that, even if they did apply, there was no abandonment in this case because “the discontinuation of use was beyond the control of the owner.” Counsel noted that YIM applied for a new Use and Occupancy Permit, “which, according to Mr. Veale, would have been issued but for a mistake in the zoning office which made the item—instead of flagging it for looking into it more, they voided the application,” which Mr. Veale said was a mistake. He asserted that YIM “made all reasonable efforts to rent, lease or sell the ... property,” arguing that “the enforcement of [a] time limit would impose exceptional practical difficulties that are not created by or as a result of any action or lack of action by the owner.” The Board subsequently issued a written Resolution, which stated that it had been adopted on September 15, 2009, permitting “the use of the property as a restaurant, subject to conditions!,] to continue.” 5 The Resolution stated that “[Restaurants, with or without liquor licenses, are not listed as permitted or conditional uses in the R-8 Residence District ⁴⁵⁴ under Subsections 4-1101 and 4-1103.” 6 It noted, however, that “[u]nder the provisions of Subsections 13-103(a) and 13-101, any lawfully existing non-conforming use or structure may be continued.” 7 The Resolution summarized the testimony. It noted the documentation demonstrating that the first floor of the W. 27th Street property had been used as a restaurant/bar since prior to 1961, and that the use had continued unabated until the end of May 2008, when Two Sisters closed. It stated that, in March 2009, a permit was issued to a new tenant to allow interior improvements, and in- May 2009, a permit was issued to use the W. 27th Street property as a lounge/restaurant selling beer, wine, liquor and food on the first and second floors.

The Zoning Administration Office voided the permit, however, because a community representative informed it that the nonconforming use had been discontinued for more than 12 months and that operations could not be expanded to the second floor. The Resolution stated that the owner was seeking authorization to reestablish the use of the first floor as a restaurant, with Richard and Renee D’Souza as the proposed operators of the restaurant. It noted that YIM had submitted an affidavit from Teearam Raghubar, “confirming that he had managed the restaurant from January 2009” through June 2009. 8 ⁴⁵⁵ The Board proceeded to make the following findings: The Board finds that this property has been a facility serving food to the public, primarily for on premises consumption by seated patrons for many years. For example[,] in 1956 the Board authorized the use of the second floor of 123-129 W[.] 27th Street for a dining room for the restaurant.

The Board also notes that the second floor was last authorized as two dwelling units and is not included in this appeal. There have been a number of permits issued over the years where the use of the first floor has been described as a restaurant or as a tavern. The appellant testified that the facility has always served food. The Board finds that since 1971 until 2004 taverns and restaurants with liquor licenses were considered the same under the Zoning Code.

Both were allowed to serve food and were undefined in the code and were permitted in the same zoning districts. The bulk regulations, off-street parking and sign regulations were and continue to be applied equally. In 2004[,] the Mayor and City Council amended the Zoning Code by enacting Ordinance 04-831 LIVE ENTERTAINMENT-NIGHTLIFE for the purpose of defining certain terms relating to restaurants, taverns, halls, after hour establishments, and certain other establishments that serve food or beverages, that offer live entertainment. This amendment became effective December 29, 2004. ⁴⁵⁶ The Board finds that based on the evidence presented at the hearing the first floor was operating as a restaurant until at least May 31, 2008[,] when the prior tenant, Two Sisters Grille, LLC closed.

On March 6, 2009[,] a permit was issued to the owner for interior improvements. On May 11, 2009[,] a permit application was approved in the Office of the Zoning Administrator to use the premises as a “Lounge/restaurant selling beer, wine, liquor and food on [the] 1st and 2nd floor[s]”. This application was voided by the Zoning Administration because it authorize[d] the second floor as part of the establishment in error and the community was expressing concern about the continued use of the first floor. The owner then filed this appeal to the Board.

After setting forth the evidence that had been presented, the Resolution then set forth the Board’s conclusions: The Board finds that the use of this property as a restaurant, subject to conditions can continue. The use had not been discontinued or abandoned as required under Section 13-407 o[f] the [C]ode and even if the evidence confirmed that it had been discontinued subsection 13-407(c) would apply which excepts Class III nonconforming uses in [the R-8-] District[ ]. The Board finds that while this application states that the request is to continue the use for a restaurant with a liquor license the Board decision relates to the restaurant use only. Questions or procedures concerning any liquor license should be addressed to the Board of Liquor License Commissioners for Baltimore City.

The Board imposed restrictions on the hours of operation, ordering that the restaurant be closed no later than 10:00 p.m. on week nights and no later than midnight on Friday and Saturday nights. On November 17, 2009, YIM filed a Petition for Judicial Review in the Circuit Court for Baltimore City, asserting that the Board “erred in applying time restrictions to a nonconforming use.” Mr. Tuzeer subsequently filed a Petition for Judicial Review, arguing that the Board’s approval of the ⁴⁵⁷ nonconforming restaurant use should not be affirmed because: (1) it constituted an impermissible modification of a nonconforming use; (2) the Board’s Resolution was not adequately supported by the record and referred to evidence that was not part of the proceeding; and (3) the Board did not comply with Md.Code (2003 Repl.Vol.) Art. 66B and the Open Meetings Act in approving the resolution. On January 19, 2010, YIM field a Motion to Consolidate Appeals. The circuit court granted the motion on February 22, 2010.

On April 13 and 14, 2010, the circuit court heard arguments regarding the parties’ appeals. On May 13, 2010, the court issued its order affirming “the Board’s finding of continued nonconforming restaurant use for the first floor of the property at 123-129 West 27th Street,” but modifying “the Board’s decision by striking the restrictions placed on [YIM’s] operation of a nonconforming use restaurant.” The court found that the Board’s decision was not a modification of a nonconforming use property, nor was it an approval of a “side-by-side” nonconforming use. Regarding the Board’s decision that the existing nonconforming use as a restaurant had not been discontinued or abandoned, the court stated that “the Board found that the ‘property has been a facility serving food to the public, primarily for on premises consumption by seated patrons for many years,’ ” and “there is no significant difference between serving patrons bread or other food products on the premises.” The court further found no violation of the Open Meetings Act or Article 66B. The court found, however, that the Board erred in placing limitations on the restaurant’s operating hours. 9 On June 14, 2010, appellants filed this timely appeal. 10 ⁴⁵⁸ STANDARD OF REVIEW In reviewing a circuit court decision on appeal from an administrative agency decision, “our role ‘is precisely the same as that of the circuit court.’ ” Tabassi v. Carroll County Dep't of Soc.

Servs., 182 Md.App. 80, 85 , 957 A.2d 620 (2008) (quoting Howard County Dep’t of Soc. Servs. v. Linda J., 161 Md.App. 402, 407 , 869 A.2d 404 (2005)). We “review[] the agency’s decision, and not that of the circuit court.” P Overlook, LLLP v. Bd. of County Comm’rs, 183 Md.App. 233, 247 , 960 A.2d 1241 (2008). Accord Md. Bd. of Phys. v. Elliott, 170 Md.App. 369, 401 , 907 A.2d 321 , cert. denied, 396 Md. 12 , 912 A.2d 648 (2006).

This Court recently set forth the standard of review of an agency decision: A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” In applying the substantial evidence test, a reviewing court decides “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. A reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence” and to draw inferences from that evidence. Assateague Coastkeeper v. Md. Dep’t of the Env’t, 200 Md. App. 665, 690 , 28 A.3d 178, 193 (2011) (quoting Najafi v. Motor Vehicle Admin., 418 Md. 164, 173-74 , 12 A.3d 1255 (2011)). The Court of Appeals had made clear that “a court’s task on review is not to ‘substitute its judgment for the expertise of those persons who constitute the administrative agency.’ ” Najafi, 418 Md. at 173-74 , 12 A.3d 1255 (quoting Md. Avia ⁴⁵⁹ tion Admin, v. Noland, 386 Md. 556, 571-72 , 873 A.2d 1145 (2005)).

DISCUSSION Appellants attack the Resolution approving the nonconforming use of the property as a restaurant on four grounds. First, they contend that the Resolution must be reversed because the provision of the Baltimore City Zoning Code (“BCZC”) that the Board relied upon in approving YIM’s nonconforming use permit was subsequently repealed. 11 Second, appellants argue that the Board’s Resolution must be vacated because the Board did not comply with Article 66B and the Open Meetings Act. Third, appellants contend that the Board’s finding “that the nonconforming use at issue had not been ‘discontinued’ contradicted the undisputed testimony and was unsupported by competent evidence.” Fourth, they maintain that the Board’s Resolution “unlawfully modified the prior nonconforming use of the first floor or a portion thereof, and created ambiguity as to the portion of the first floor to be authorized for ‘continued’ use as a ‘restaurant.’ ” Before addressing the merits of these contentions, we will review the zoning laws applicable to the issues presented. I. Baltimore Zoning Regulations In 1971, the Baltimore City Council adopted the Zoning Commission’s recommendations related to zoning boundaries and established comprehensive zoning laws for the City.

Baltimore City Ordinance No. 1051 (April 20, 1971). Pursuant to these laws, the W. 27th Street property is part of the R-8 District, which, as discussed supra, allows property to be used as a dwelling and for other limited purposes, not including a restaurant. ⁴⁶⁰ The use of the property here involves a nonconforming use, which is defined as a “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.” Trip Assocs. Inc. v. Mayor and City Council of Balt., 392 Md. 563, 572-73 , 898 A.2d 449 (2006) (quoting BCZC § 13-102). “A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted.” Id. at 573, 898 A.2d 449 . Although a nonconforming use is not favored, it is a vested right entitled to constitutional protection.

Id. at 573-74, 898 A.2d 449 . “Nonconforming uses are usually allowed to continue with the expectation that they will eventually disappear, the objective being to extinguish them as early as possible with due regard to the lawful interest of those entitled to such use.” Stieff v. Collins, 237 Md. 601, 604 , 207 A.2d 489 (1965). A nonconforming use may be eliminated by “ ‘[discontinuance or abandonment,’ the failure actively and continuously to operate the nonconforming use.” Trip Assocs., 392 Md. at 576 , 898 A.2d 449 (quoting BCZC § 13-407). At the time of the hearing in this case, BCZC § 13^107 provided as follows: (a) Discontinuance of use. (1) Except as specified in this section, whenever the active and continuous operation of any Class III nonconforming use, or any part of that use, has been discontinued for 12 consecutive months: (i) the discontinuance constitutes an abandonment of the discontinued nonconforming use, or discontinued part of that use, regardless of any reservation of an intent to resume active operations or otherwise not abandon the use; and (ii) the discontinued nonconforming use, or discontinued part of that use: ⁴⁶¹ (A) may not be reestablished; and (B) any subsequent use of any part of the land or structure previously used for the discontinued use, or discontinued part of that use, must conform to the regulations of the district in which the land or structure is located.

(2) In accordance with Subtitle 7 {“Modifications and Continuances by Board”} of this title, the Board may extend the time limit for discontinuance for 1 or more additional periods. In no case, however, may the total of the additional time exceed 12 months. (b) Abandonment of use. Except as specified in this section, if, at any time, actual abandonment in fact is evidenced by removal of structures, machinery, or equipment, or by alternations that indicate a change in the use of any part of the land or structure: (1) That action constitutes an abandonment of the nonconforming use, or affected part of that use; and (2) All rights to continue or reestablish the nonconforming use, or part of that use, immediately terminate.

(c) Exceptions for R-6 to R-10 Districts. This section does not apply to any Class III nonconforming uses in an R-6, R-7, R-8, R-9, or R-10 District. On June 14, 2010, after the Board’s Resolution here, the Baltimore City Council enacted Ordinance 10-289. This ordinance repealed BCZC § 13-407(c), which provided that the provision relating to abandonment of use did not apply in the R-8 district.

Accordingly, a nonconforming use in the R-8 distinct now is subject to elimination by abandonment of use.

II

Subsequent Change in the Law Appellants’ first contention is based on the June 14, 2010, enactment of Ordinance 10-289. They maintain that “the Board and Circuit Court must be reversed [because] ⁴⁶² there has been a substantive change in the applicable law during the pendency of this matter.” Appellants argue that “the repeal of the abandonment exception is a substantive change in the law” that should be applied retroactively, and that the repeal “has nullified the Board’s decision and effectively removed the Board’s authority over this matter.” According to appellants, because the new rule considers a nonconforming use to be abandoned when use has ceased for a period of 24 months, and the W. 27th Street property has not been used as a restaurant in more than 24 months, this Court should vacate the Board’s resolution, without remanding it. Appellees, YIM and the Mayor and City Council of Baltimore (the “City”), disagree. They argue that the Board’s resolution was not based solely on § 13-407(c).

Rather, they assert, the Board found that the nonconforming use had not been discontinued or abandoned under BCZC § 13-407(b), and its finding that the § 13-407(c) exception would apply was solely an alternative finding. Accordingly, they argue that the elimination of the § 13-407(c) abandonment exception in the R-8 district does not negate the Board’s approval of the continuation of the nonconforming use. We agree. As set forth, supra, § 13-407(c) provided an exception to the rule that the right to a nonconforming use could be lost if the use was discontinued for 12 consecutive months.

It provided that the discontinuance or abandonment provision did not apply in certain districts, including the R-8 District in which the W. 27th Street property was located. The subsequent repeal of this provision does not require reversal of the Board’s decision. To be sure, the Board referenced the exception; it stated that if the evidence confirmed that the nonconforming use had been discontinued, the exception would apply. The Board, however, found that the “use had not been discontinued or abandoned.” Thus, the change in the law did not impact the primary finding of the Board, and it does not require reversal of the Board’s decision. ⁴⁶³ III.

Open Meetings Appellants next contend that the Board’s resolution must be reversed because its “findings of fact and conclusions of law contained in the October 20, 2009[,] Resolution were not adopted in accordance with Article 66B and the Open Meetings Act.” They assert the following violations of the Open Meetings Act: (1) “[tjhere was never a public open meeting at which the Board adopted the findings of fact and conclusions of law contained in the Resolution”; (2) “the Resolution is not signed by the Board Members and contains material that was not presented to or discussed in public by the Board”; and (3) “the Board’s only public deliberation and vote on the application, which took place five weeks before the Resolution was issued, was minimal at best and was conducted with one member absent but participating via conference telephone.” YIM and the City contend that the Board did not violate the provisions of the Open Meetings Act or Article 66B. They note that the Board held a public meeting regarding the permit on September 15, 2009. They argue that appellants’ challenges to the propriety of the Board’s deliberations and the lack of an “approval signature” have no basis in the law. A. Statutory Requirements for Open Meetings The Open Meetings Act is codified in S.G. § 10-501 et seq. and is applicable to meetings of “public bodies.” 12 According to S.G. § 10—502(g), the term “meet” “means to convene a quorum of a public body for the consideration or transaction of ⁴⁶⁴ public business.” The requirements of the Act apply when a public body meets to consider “granting a license or permit” or “a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” S.G. § 10-503(b)(1)(2).

The Open Meetings Act is based on the philosophy that public business should be performed in a public manner, which is accessible to interested citizens, and that this type of open government is “ ‘essential to the maintenance of a democratic society.’ ” Handley v. Ocean Downs, LLC, 151 Md.App. 615, 633 , 827 A.2d 961 (2003) (quoting S.G. § 10-501(a)). “Such open government ‘ensures the accountability of government to the citizens of the State[,] ... increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society.’ ” Id. (quoting S.G. § 10-501(b)). S.G. § 10-505 provides that, with certain exceptions, “a public body shall meet in open session,” and S.G. § 10-506 provides for advance notice of such a meeting. The Court of Appeals has explained the scope of the Open Meetings Act as follows: “While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings.

In this regard, it is clear that the Act applies, not only to final decisions made by the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by [§ 10-508] to be closed to the public. * * * It is ... the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business.” Cmty.