Trip Associates, Inc. v. Mayor of Baltimore

The question this case presents is whether the Board of Municipal and Zoning Appeals (“the Board”) erred when it restricted the number of days per week the appellants could operate a valid nonconforming use. The appellants’ property, located in the B-5-1 Zoning District in Baltimore City, is being used for the operation of “Club Choices,” a nightclub and after-hours establishment that sometimes features adult entertainment. The Club is owned by the appellant, Anthony Dwight Triplin (“Triplin”), who also is the owner of Triplin Associates, Inc. (“Trip”), the other appellant.

Triplin purchased 1815-17 North Charles Street, the property at issue, in 1983. Prior to his purchase, the property had been a nightclub featuring adult entertainment, including male and female exotic dancing. The adult entertainment had been presented up to five nights a week since 1979. When Triplin purchased the property, the applicable zoning ordinance did not prohibit the use of the property as an adult entertainment facility. Nevertheless, Triplin reduced the number of nights of nude or exotic dancing from five to two nights per week, featuring music and comedy on the other nights. The Board *566 approved his use of the premise as an “after hours establishment” in 1992. 1 With this approval, the adult entertainment was presented after hours, exclusively.

On December 15, 1994, Ordinance No. 443 was enacted. That ordinance, codified at Baltimore City Code, Art. 30, § 8.0-61, regulated adult entertainment businesses, “where persons appear in a state of total or partial nudity.” 2 It also provided that “[a]ny adult entertainment business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III regulations.” 3 Baltimore City Zoning Code § 13-609. After this Ordinance was passed, Triplin continued to use the facility as a club that provided adult entertainment after hours. That use was unchallenged until April 14, 2000, when a Baltimore City zoning inspector issued a “Code Violation Notice and Order” to the Club. The violation notice charged:

“ZONING VIOLATION

“1. Using portion of premises for adult entertainment without first obtaining proper Adult Entertainment Ordi *567 nance and Adult Entertainment License. DISCONTINUE SAID USE. REMOVE ALL STOCK, MATERIAL, EQUIPMENT, AND ANY ADVERTISING SIGNS ASSOCIATED WTTH SAID USE. OBTAIN CERTIFICATE OF OCCUPANCY BEFORE RE-ESTABLISHING ANY USE.”

Triplin appealed to the Board. On appeal, Triplin testified that Club Choices featured exotic dancing and adult entertainment two times a week, Wednesdays and Fridays, for two hours each night. That testimony was confirmed by employees, who offered further that such dancing with partial nudity has been presented two nights per week since 1983.

The Board ruled:

“1.... [A]dult entertainment may be continued two nights during the week.

“The Board finds that a non-conforming 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 Subsection 13-402 [4] of the Zoning Code. The Board finds that with the above condition that the request would not be detrimental to or endanger the public health, security, general welfare, or morals or be injurious to the use and enjoyment of other property in the immediate vicinity, nor substantially diminish and impair property values in the neighborhood. Further, and as agreed by the appellant that this is specifically for the appellant Mr. Triplin, the owner and operator of the subject site and a copy of the resolution/decision is to be recorded in the land records of Baltimore City and the *568 appellant is to provide to the Board a court certified copy to be placed in the file ... as part of the record. The purpose of the recording requirement is to give the Charles North Community Association legal standing to enjoin any uses as adult entertainment to a subsequent purchaser, owner, lessee or operator....

“In accordance with the above facts and findings and subject to the aforementioned condition, (adult entertainment two nights a week only) the Board approves the application.”

Board of Municipal and Zoning Appeals, Appeal No. 327-OOX, October 12, 2000. Thus, the Board, despite finding that Club Choices was a valid nonconforming use, limited that use, based on the testimony, to two nights per week.

Triplin petitioned the Circuit Court for Baltimore City for judicial review of the Board’s decision. That court affirmed the Board’s decision and, in addition, ruled that Triplin needed to “apply for and obtain all necessary and relevant licenses required by the City for the operation of an adult entertainment business.” Upholding the Board’s power to impose the two night per week restriction, it reasoned 5 :

*569 “the Board had authority to impose certain conditions when granting the non-conforming use designation to the appellant ... There was substantial evidence presented at the October 13, 2000 hearing upon which the Board could rely upon for the condition. While the Board heard testimony that confirmed the non-conforming use history of its property, the Board also heard testimony that the non-conforming use only occurred two nights a week, at least for the past 17 years. ... By its very nature, a conditional use is a deviation from the land use norm in its location; and often requires particularized attention to protect or buffer the surrounding affected community from its potentially harmful effects. ... Limiting the appellant to 2 days a week is neither irrational nor lacking legal basis. It is a reasonable condition that continues the present practice.”

Trip Associates, Inc. v. Mayor and City Council of Baltimore, Circuit Court for Baltimore City, Case No. 24-C-00-005345 (June 14, 2001).

Triplin noted an appeal to the Court of Special Appeals, Trip Assoc. Inc. v. Mayor & City Council of Baltimore, 151 Md.App. 167, 824 A.2d 977 (2003), in which he challenged the Board’s power temporally to restrict the nonconforming use and the ruling by the Circuit Court that he obtain an adult entertainment license in order to avoid abandonment of the nonconforming use. The intermediate appellate court agreed with Triplin that the Circuit Court erred in ordering Triplin to obtain an adult entertainment license. It affirmed the judgment, however, insofar as the Board’s power to restrict the nonconforming use was concerned, concluding that the restric *570 tion placed on Club Choices was neither plain error, 151 Md.App. at 175, 824 A.2d at 982, nor unconstitutional. 151 Md.App. at 177, 824 A.2d at 983. Focusing on § 13-406, 6 which prohibits the expansion, “in any manner,” of a Class III nonconforming use, 151 Md.App. at 175, 824 A.2d at 982, the Court of Special Appeals interpreted that provision as permitting the Board, because it had been presented with evidence of precisely how the property was being used—adult-entertainment twice a week—when the zoning ordinance prohibiting that use was enacted, to define the future further use in exactly the same way, as permitting “Triplin to continue to do what he had done since he acquired the club in 1983,” 151 Md.App. at 176-177, 824 A.2d at 982-983, and no more. 7

Underlying the Court of Special Appeals’ decision was Maryland’s well-established policy against the expansion of nonconforming uses. 151 Md.App. at 176, 824 A.2d at 982, citing County Council v. Gardner, Inc., 293 Md. 259, 268, 443 A.2d 114, 119 (1982). The intermediate appellate court also relied on out-of-state cases, in which temporal restrictions placed on the continued use of valid nonconforming uses were upheld as consistent with the policy against the expansion of such uses, *571 on the theory that, without them, the nonconforming use would be expanded. Garb-Ko v. Carrollton Township, 86 Mich.App. 350, 272 N.W.2d 654 (1978) (holding that township board could restrict the operating hours of nonconforming grocery store in view of the policy against expansion of nonconforming uses); Incorporated, Village v. 280 Hillside Ave. Rest. Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977) (holding that a nonconforming use was unlawfully extended by increase in hours of operation); Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877 (Ind.Ct.App. 1989) (holding that the 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 (1973) (holding that a zoning board had the authority to impose a condition that a nonconforming dry cleaning establishment operate in the same time frame in which it had previously operated).

The Court of Special Appeals addressed an issue which it perceived not to have been raised by either party, that of whether the offering of adult-entertainment for more than two nights per week constituted an “intensification” of the nonconforming use, rather than an expansion of that use. Acknowledging that our decisions in Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967) (increasing the number of rowboats that a marina was able to rent), Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967) (increasing quantity and height of scrap metal stored in junkyard), and Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954) (increasing the parking and storage of cars on a nonconforming lot) recognized a distinction between the more intensive use of property and the expansion of a nonconforming use, the intermediate appellate court characterized a temporal modification of a nonconforming use as an expansion of that use, rather than a mere intensification of it. In justification of that characterization, the court said:

“[T]o hold that a temporal extension of operating hours is an intensification, not an expansion, of a non-conforming use undermines governmental efforts to reconcile public policy *572 with private interest. If we were to so rule, localities would be presented with the harsh choice of either tolerating the growth of an undesirable use or eliminating it all together. Depriving localities, as such a ruling would, of a milder-alternative—that of restricting a nonconforming use to its current level—benefits neither the regulating locality nor nonconforming property owners, whereas holding, as we do, that the Board had a right to control temporal expansions of use accommodates the interests of both.”

151 Md.App. at 180-181, 824 A.2d at 985. 8

Triplin filed a petition with this Court for a writ of certiorari, which we granted. Trip v. Baltimore, 377 Md. 112, 832 A.2d 204 (2003). We shall reverse.

A.

Title 13 of the Baltimore City Zoning Code establishes the zoning districts in Baltimore, and “provides for the regula *573 tion of nonconforming uses and noncomplying structures existing in the various districts.” Baltimore City Zoning Code § 13-102. Under the Baltimore City Zoning Code, a “nonconforming use” is defined 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.” Baltimore City Zoning Code § 13—101(c). 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. See, e.g., Chayt v. Board of Zoning Appeals of Baltimore City, 177 Md. 426, 434, 9 A.2d 747, 750 (1939) (concluding that, to be a nonconforming use, an existing business use must have been known in the neighborhood as being employed for that given purpose); Lapidus v. Mayor and, City Council of Baltimore, 222 Md. 260, 262, 159 A.2d 640, 641 (1960) (noting that an applicant claiming that a nonconforming use had been established before the effective date of the city zoning ordinance needed to prove that the use asserted existed prior to the date of the ordinance); Vogl v. City of Baltimore, 228 Md. 283, 288, 179 A.2d 693, 696 (1962) (holding that the party claiming the existence of a nonconforming use has the burden of establishing the existence of the use at the time of the passage of the prohibiting zoning ordinance). See also Lone v. Montgomery County, 85 Md. App. 477, 496, 584 A.2d 142, 151 (1991).

As the Court of Special Appeals recognized, nonconforming uses are not favored. County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“These local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses.”); Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 308, 129 A.2d 363, 365 (1957) (“Indeed, there is general agreement that the fundamental problem facing zoning is the inability to eliminate the nonconforming use”); Colati v. Jirout, 186 Md. 652, 657, 47 A.2d 613, 615 (1946) (noting that the spirit of the Baltimore City Zoning Ordinance is against the extension of non-con *574 forming uses). Indeed, in Grant, this Court stated, “[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.” 212 Md. at 307, 129 A.2d at 365. The context for this conclusion was the historical development of the nonconforming use, which the Court also detailed:

“Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in property out of proportion to the public benefits to be obtained and, so, unconstitutional, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, most, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law could continue although such uses could not thereafter be begun.”

Id.

Nevertheless, a “nonconforming Use is a vested right entitled to constitutional protection.” Amereihn v. Kotras, 194 Md. 591, 601, 71 A.2d 865, 869 (1950). The Court in Amereihn made that point forcefully. There, after the area in which a light manufacturing plant was located was zoned as residential, the neighbors brought a complaint, praying that the new owners of the plant be restrained from using the property for manufacturing purposes. This Court, in ruling against the neighbors, pointed out:

“If a property is used for a factory, and thereafter the neighborhood in which it is located is zoned residential, if such regulations applied to the factory it would cease to exist, and the zoning regulation would have the effect of confiscating such property and destroying a vested right *575 therein of the owner. Manifestly this cannot be done, because it would amount to a confiscation of the property.”

194 Md. at 601, 71 A.2d at 869 (citations omitted). See also Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389, 114 A.2d 626 (1955), in which the Court of Appeals held that an owner of a truck manufacturing plant on land that had been rezoned as residential had a valid nonconforming use, observing, “[t]he law is established that the zoning of an area as residential cannot apply to a previously established factory in that area, which is entitled under the circumstances to constitutional protection.” 207 Md. at 394, 114 A.2d at 628.

A nonconforming use may be reduced to conformance or eliminated in two ways: by “amortization,” that is, requiring its termination over a reasonable period of time, and by “abandonment,” i.e. non-use for a specific of time. Thus, in Grant, the Court held that an amortization period of five years to remove nonconforming billboards was valid, and that a five-year period was not an arbitrary time period. 212 Md. at 316, 129 A.2d at 370. See Donnelly Advertising Corp. of Maryland v. Mayor and City Council of Baltimore, 279 Md. 660, 671, 370 A.2d 1127, 1134 (1977). See also Chesapeake Outdoor Enterprises, Inc. v. Mayor and City Council of Baltimore, 89 Md.App. 54, 597 A.2d 503 (1991) (holding that even assuming a valid nonconforming use, municipality was nonetheless entitled to summary judgment requiring that signs be taken down, because ordinances contained amortization periods, validated by court decisions, requiring that such signs be taken down over a period of time even if constituting nonconforming uses, and all such amortization periods had long since expired); Harris v. Mayor and City Council of Baltimore, 35 Md.App. 572, 371 A.2d 706 (1977) (holding that a court is not restricted, in determining constitutional reasonableness of amortization provision, to consideration of the original amortization period or its later extension, due to the passage of time since the enactment of those provisions). So long as it provides for a reasonable relationship between the amortization and the nature of the nonconforming use, an ordinance prescribing such amortization is not unconstitutional. Gough v. Board of Zon *576 ing Appeals for Calvert County, 21 Md.App. 697, 704-705, 321 A.2d 315, 319 (1974). See also Grant, 212 Md. at 316, 129 A.2d at 370; Colati, 186 Md. at 657, 47 A.2d at 615.

The Baltimore City ordinance takes the “abandonment” approach. Section 13-406, as we have seen, prohibits the expansion of any nonconforming use, except as authorized by the Board. 9 Under § 13-407, “Discontinuance or abandonment,” the failure actively and continuously to operate the nonconforming use results in its abandonment. That section provides:

“(a) Discontinuance or abandonment

“(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:

“(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 *577 additional periods. In no case, however, may the total of the additional time exceed 12 months.”

Abandonment, as the foregoing ordinance confirms, focuses not on the owner’s intent, but rather, on whether the owner failed to use the property as a nonconforming use in the time period specified in the zoning ordinance. See Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 581, 709 A.2d 749, 759 (1998) (“There is no hard and fast rule in nonconforming use abandonments that intent to abandon must be actually shown when the zoning ordinance or statute utilizes the word ‘abandonment’ ”).

On the other hand, the abandonment or discontinuance must be active and actual. In Mayor and City Council of Baltimore v. Dembo, Inc., 123 Md.App. 527, 719 A.2d 1007 (1998), the Court of Special Appeals discussed whether the failure of a property owner to apply for a license to operate an adult entertainment business after the passage of an ordinance, in that case, Ordinance 443, the same one as involved in this case, which prohibited such business in the district in which it was located, constituted “abandonment” of the nonconforming use, notwithstanding that he had actually used the property in that nonconforming manner throughout the subject period. There, Donald Dembo owned an adult entertainment establishment called the “Gentleman’s Gold Club” (“the Gold Club”) which, like Triplin’s club, was located in a zoning district in which it was not permitted. Like Club Choices, however, the Gold Club’s use was a valid nonconforming use, having pre-existed the ordinance that excluded that use. The city argued that, by using the property without the required license for two years, Dembo had essentially terminated his once lawful nonconforming use. Addressing for the first time whether or not a failure to apply for a license constituted an abandonment of a lawful nonconforming use, the Court of Special Appeals, after analyzing how other jurisdictions approached the issue, concluded:

“We shall follow the majority of jurisdictions and apply the rule that a valid nonconforming use will not be forfeited by the failure of the business owner to secure a license to *578 operate his business. We consider that this rule accords reasonable protection to the property right that has been long recognized under Maryland law as a vested right subject to constitutional protection.”

123 Md.App. at 541, 719 A.2d at 1015. Furthermore, the Court of Special Appeals held that, even without the license, “Dembo retain[ed] its vested nonconforming use status to operate a business with adult entertainment ... ”.

There is no issue with regard to Club Choices’ status; it is a valid Class III nonconforming use property under § 13-609 of the Zoning Code. It is an adult-entertainment business, presently existing, that was also operating as such on September 10, 1993, as § 13-609 specifies. As to that status, there is no contention that Triplin has abandoned or discontinued it, at least in whole. The issue is, as the Court of Special Appeals has framed it, whether using the valid nonconforming use more frequently than it was being used when the use became nonconforming—presenting adult entertainment more than two nights per week—would be a prohibited expansion of the use or a mere intensification of the use.

B.

Despite Maryland’s well settled policy against nonconforming use, see County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“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 ... [t]hese local ordinances must be strictly construed in order to effectuate the purpose of eliminating nonconforming uses”); Colati v. Jirout, 186 Md. at 655, 47 A.2d at 614 (“[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, 212 Md. at 307, 129 A.2d at 365 *579 (“[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”), and the Baltimore City Zoning Code’s explicit prohibition against expansion of those uses, Baltimore City Zoning Code § 13-406, Maryland recognizes, and our cases have held, that an intensification of a nonconforming use is permissible, so long as the nature and character of that use is unchanged and is substantially the same. See Feldstein v. LaVale Zoning Board, 246 Md. 204, 211, 227 A.2d 731, 734; Jahnigen v. Staley, 245 Md. 130, 137, 225 A.2d 277, 281; Nyburg v. Solmson, 205 Md. 150, 161, 106 A.2d 483, 488; Green v. Garrett, 192 Md. 52, 63, 63 A.2d 326, 330. See also Kastendike v. Baltimore Ass’n for Retarded Children, Inc., 267 Md. 389, 396-98, 297 A.2d 745, 749-50 (1972); Parr v. Bradyhouse, 177 Md. 245, 247, 9 A.2d 751, 752 (1939) (determining that rental of tract of land formerly used for a dairy business for riding academy did not affect the right to use the land as a non-conforming use, as it was simply a change from cows to horses).

In Green, supra, 192 Md. 52, 63 A.2d 326, citizens of Baltimore City sought to enjoin the Department of Recreation and Parks of Baltimore City and the Baltimore Baseball and Exhibition Company from allowing professional baseball to be played at Baltimore Stadium, and further to enjoin the use of the loud speaker system, the flood lights, and the parking facilities nearby. Baltimore Stadium was constructed prior to 1931, when the district in which it was located was rezoned residential, 192 Md. at 63, 63 A.2d at 330, after which it was used infrequently for football games, track meets and civic events. It was used more frequently after 1939, when lights were installed, a speaker system having been installed earlier. 192 Md. at 57, 63 A.2d at 327-328. That increased use consisted mainly of football games and other events, not baseball games. In 1944, however, a fire destroyed the baseball stadium, then known as Oriole Park. This resulted in more baseball games being played at Baltimore Stadium. 192 Md. at 57-58, 63 A.2d at 328.

*580 When that occurred, neighboring citizens contended that the use of the Stadium for baseball games for a considerable portion of the year was an enlargement of the valid nonconforming use of the Stadium and, therefore, contravened the zoning ordinance. 192 Md. at 63, 63 A.2d at 330. They pointed out that, when the zoning ordinance was enacted, the nonconforming use consisted of professional football games and the infrequent, at best, baseball game. This Court disagreed. Id. Acknowledging that the “spirit of the zoning ordinance is against the extension of non-conforming uses and that such uses should not be perpetuated any longer than necessary,” we observed:

“We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable. Nor does it seem to us that a different use is made of the Stadium when the players of games there are paid. The use of the property remains the same.”