Union Square Ass'n, Inc. v. Marc Lounge, Inc.

GILBERT, Chief Judge. Preface The flame that consumed the interior of the Marc Lounge has continued to flicker in the form of the burning issue of whether the Circuit Court for Baltimore City raised a dead non-conforming use, like a phoenix, from the ashes. The Facts For some time, Marc Lounge, Inc., (Marc) operated a tavern at the comer of Gilmore and Lombard Streets in Baltimore City. The tavern existed as a non-conforming use in a residential zone.

In April 1981 a fire destroyed the interior of the lounge and resulted in a cessation of business. Marc asserts that the business interruption was temporary and was caused by its fire insurance carrier’s delay in settling the damage claim. Regardless of the reason, it was not until September 9, 1982, that Marc ⁴⁶⁷ obtained a permit to rehabilitate the building. The tavern business, obviously, was discontinued during that time and, in fact, the building was boarded shut.

On October 14, 1982, during closure, Marc acquired title to the building. Apparently when Marc applied for the necessary occupancy permits in 1983, they were refused. Marc then appealed to the Board of Municipal and Zoning Appeals of Baltimore City. That body, after a hearing, denied Marc’s application on the grounds that the tavern’s non-conforming use status had been discontinued for twelve consecutive months and was thereby eliminated by Baltimore City Code, Article 30, § 8.0-4 c.

The Board also denied the application for the additional reason that the continuation of the use of the building as a tavern “would adversely affect the community.” Aggrieved by that decision, Marc appealed to the Circuit Court for Baltimore City. That tribunal decided that Marc never intended to abandon the non-conforming use, and it “reversed and remanded” the matter to the Board “for further consideration.” We were told on oral argument that the wording of the circuit court’s order led to a certain amount of confusion. We were further informed that an assistant city solicitor, counsel for the Board, met with the judge and requested clarification since the Board did not know what it was to do with the case on remand. The circuit court then changed the order from “reversed and remanded” to “reversed.” Unfortunately, that act, which occurred on Saturday, November 24, 1984, was not made known to counsel for the protestants.

He remained oblivious to it until July 1985. At that time the protestants, Union Square Associates, Inc. and others, moved the circuit court to set aside the hearing judge’s directive of November 24, 1984. When that motion failed, Union Square journeyed to this Court where, we, in an unreported per curiam opinion, Union Square Association, Inc., et al. v. Marc Lounge, Inc., No. 1496, September Term, 1985, filed April 9, 1986, vacated the circuit court’s ⁴⁶⁸ judgment on the motion and remanded the case for a hearing. The instant appeal is a result of that hearing.

When the case was reheard, the original hearing judge remained steadfast in his decision that the Board’s denial of the use should be reversed. The judge opined: “To change that at this time, in my opinion, would be unfair to the owners of the bar. They have been there since 1984, a period of three years. If there had been anything to justify reversing my decision, it would be that there had been complaints against the bar.

There’s nothing here to indicate that anything of that nature has occurred. I see no reason why I should change my feeling at this time.” Fate again played a prominent role in the unusual happenings in this case. The court clerk, instead of entering on the docket that the Order of the Board of Appeals had been reversed, noted that the “Decision of the board ... is affirmed.” That erroneous entry was, on motion of Union Square, corrected by “whiting out” the word “affirmed” and substituting the word “reversed.” An appeal was timely noted to this Court. The Issues Union Square asserts that the circuit court lacked the authority to resurrect the terminated non-conforming use.

Furthermore, Union Square avers that, even if the court had the power to breathe new life into a dead use, its action was still wrong. It was wrong, appellant argues, because of the Board’s denial of the continuance of the non-conforming use on the basis of its finding that the use adversely affected the neighborhood, which finding was supported by substantial evidence. Therefore, Union Square says, the circuit court should not have substituted its judgment for that of the Board. The Law The Baltimore City Zoning Ordinance, codified as Article 30 of the Baltimore City Code, was signed into law by then Mayor Thomas J. D’Alesandro III on April 20, 1971.

That ⁴⁶⁹ ordinance, with amendments, continues to regulate zoning in Baltimore City. We are here concerned with Chapter 8, entitled “Non-Conformance.” The legislative purpose of non-conformance in Baltimore City was expressed by the Mayor and City Council in a preamble to Chapter 8. There, it is said, in pertinent part: “This zoning ordinance establishes separate districts, each of which is an appropriate area for the location of the uses and structures which are permitted in that district. It is necessary and consistent with the establishment of those districts that all uses and structures incompatible with permitted uses and structures be strictly regulated and properly controlled.

It is the purpose of this chapter to provide for the regulation of non-conforming uses and non-complying structures existing in the various districts. Since non-conforming uses and non-complying structures substantially and adversely affect the maintenance, development, use, and taxable value of other property in the district, a time limit, or tolerance period, has been placed upon the continuance of certain such uses having serious blighting effects on adjacent uses. In such cases, the