Chayt v. Board of Zoning Appeals of Baltimore City

• Decision Date: 13 December 1939
• Docket Number: 27.
• Citation: 9 A.2d 747,177 Md. 426
• Parties: CHAYT et al. v. BOARD OF ZONING APPEALS OF BALTIMORE CITY et al.
• Court: Maryland Court of Appeals

9 A.2d 747

177 Md. 426

CHAYT et al. v. BOARD OF ZONING APPEALS OF BALTIMORE CITY et al.

No. 27.

Court of Appeals of Maryland

December 13, 1939

Appeal from Baltimore City Court; J. Craig McLanahan, Judge.

Suit by Leon Chayt and another against the Board of Zoning Appeals of Baltimore City and others, for an injunction restraining the erection of certain buildings on the ground that such buildings would be a nonconforming use not permitted by the zoning ordinance. From an order of the Baltimore City Court affirming the action of the Board of Zoning Appeals permitting the erection of the buildings, Leon Chayt and another appeal.

Order reversed and case remanded for passage of an order in accordance with opinion.

OFFUTT SLOAN and DELAPLAINE, JJ., dissenting.

William Hoffenberg and Robert R. Bowie, both of Baltimore (Bowie & Burke, of Baltimore, on the brief), for appellants.

J Francis Jreton, Asst. City Sol., of Baltimore (Charles C. G. Evans, City Sol., of Baltimore, on the brief), for appellees Board of Zoning Appeals et al.

William A. Grimes, of Baltimore (Stuart S. Janney and Ritchie, Janney, Ober & Williams, all of Baltimore, on the brief), for appellees Frainie Bros.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

BOND Chief Justice.

The appellants, owners and occupants of a dwelling on land to the north of the enclosure of the Pimlico Race track in Baltimore City, seek an injunction to restrain the erection of stables of frame construction between the dwelling and the enclosure, on the ground that the area is zoned as a residential section, and this is a non-conforming use not permitted by the zoning ordinance. Ordinance No. 1247, approved March 30, 1931. The appellees, more particularly the building contractors, Frainie Brothers, employed by the track owner, the Maryland Jockey Club, rest the defense primarily upon the exception in the ordinance permitting a nonconforming use 'that now exists,' that is, existed at the time of the passage of the ordinance in 1931, and the permission of a limited extension of it, contending that the land is adjacent to the enclosure and that although it has been vacant except for houses on it owned by the Club, most of it was bought before the passage of the ordinance with the intention that after purchase of further land, now recently acquired, it should all be used for stables for an increased number of horses at the track. The word 'used' is declared in the ordinance to include the words 'arranged, intended or designed to be used, * * * unless the contrary clearly appeares from the text.' An application to the buildings engineer for permission to erect the stables was denied because of the nonconformity, but on appeal the Board of Zoning Appeals considering that the use would be within the scope of the business of the club and part of its lot used for commercial purposes, permitted it. On an appeal by the present appellants the court below affirmed the action of the Board, and the appeal to this court has followed.

The whole district concerned, including the northerly portion of the track enclosure, was at some time in the past platted in streets and lots for dwellings, with most of the lots made twenty-five feet wide; and the developers gave the section the name of Avondale. Dwellings have been built on a number of the lots. Immediately north of the present track enclosure a public street called Ingleside Avenue was laid out, and cement sidewalks constructed, but there was never any surfacing of the street bed, and it was allowed to become covered with wild growth. The enclosure of the track property on the south side of that street and elsewhere has been by a heavy wire fence, called a cyclone fence. Lots on the north side, between a fifteen foot alley on the east and a Winner Avenue on the West, are numbered on the plats in evidence, beginning at the alley on the east, 22 to 36, and all these have now been bought by the Jockey Club. Two of them, numbered 31 and 32, were in 1931 improved by a dwelling house, which was subsequently rented out by the Club. Lots numbered 27 and 28 were subject to a restriction by covenant in a deed, requiring that dwellings should be erected fifteen feet back from Ingleside Avenue, and at a minimum cost. In addition, the Club had acquired two contiguous lots on the next street to the north, Rogers Avenue, and still other lots, some improved, some unimproved, by dwellings, on the north side of Rogers avenue and on the west side of Winner Avenue; but the Club is not ready to use those lots at present. A parking space outside the enclosure was maintained, and there was property owned at a distance, not in the same neighborhood.

The Ingleside Avenue lots, 22 to 32, were bought in 1929, after passage of a previous restraining ordinance, but before the passage of that now in force. And it was testified by the manager of the Club that the intention in the purchase was to hold them until lots 33 to 36 might be acquired, and then to erect stables on the whole. Lots 33 to 36 were acquired in 1938, seven years after the enactment of the existing zoning ordinance, and the plans of the stables provide for actual construction on all but lots 35 and 36. There is no dispute of the nonconformity of use as a stable in this district. The primary dispute, as stated, is on the question whether the long contemplated use of the lots first bought can be classed as a use that existed at the time of the passage of the ordinance; and if it can, then there is a question of the legality of the extension over lots 33 and 34, or if it cannot, there is argued in the briefs, but we understand not now pressed, another question of the power of the Board of Zoning Appeals to make an exception in this instance.

The Board of Zoning Appeals and the court below took into consideration, in reaching their conclusion the facts that holding land for expansion of the business was a natural incident of it, that this land was adjacent to the existing track enclosure and had been included in a comprehensive plan for expansion sketched out before 1931, and they thought it could be regarded as in use within the meaning of the ordinance much as open land within the enclosure and used incidentally might be. But this land was not in actual use. It was then vacant, overgrown, across a public street, and without the planned usefulness until additional property should be bought, as it was nine years later.

Paragraph 11 of the ordinance, passed in 1931, on the subject of 'Nonconforming Uses' provided more fully that, 'A nonconforming use is a use that now exists and does not comply with the regulations for the use district in which it is established.' And it closed with, 'Nothing contained in this ordinance shall be construed to prevent the continuance of any use which now legally exists.' Taking them alone, at their ordinary meaning, these words, 'A use that now exists,' or 'now legally exists,' would somewhat emphatically exclude a use merely contemplated for the future, but unrealized. And it would be unlikely that a zoning ordinance would make provision for so unsubstantial a thing as a plan in mind. Use, under the ordinance, is a subject of regulation and restraint. Pars. 31, 37 and 39. A nonconforming use is something that might be changed by the user only within limits imposed. 'A nonconforming use may be changed to a use of a higher classification. A nonconforming use, if changed to a use of a higher classification, may not thereafter be changed to a use of a lower classification.' Par. 11. A use merely contemplated, and unrealized, would certainly not be susceptible to such control. The law would not be concerned to regulate a change of intention. Again, any land held for a future contemplated use might be already improved, and in another use, as some of these lots were, and if the contemplated new use could be considered one 'that now existed' at the time of passage of the ordinance, there would have been two uses existing. The provision, or definition, of nonconforming use is substantially the same as that which appears in ordinances of other jurisdictions, allowing for inharmonious improvements found in districts zoned for the higher uses. 'The usual zoning ordinance does not require a change in the uses made of property at the time of passage of the law.' 14 Minn.Law Rev. 86. 'Nonconforming buildings and uses existing when an ordinance goes into effect are allowed to continue. It has been considered that buildings erected according to law, even if out of place, should be allowed to stand indefinitely, and that the nonconforming use should not be stopped.' Bassett, Zoning, 105. 'It is customary for zoning ordinances to provide that a then existing and used structure may continue to be employed for its then purposes, though its location and uses may be at variance with, and not in conformity with, such respective ordinance.' Metzenbaum, Law of Zoning, 287.

These considerations to the contrary notwithstanding, it is argued that Paragraph 44 of the ordinance expressly permits the inclusion of a merely intended future use, in its provision that, 'The word 'used' includes the words 'arranged, intended or designed to be used.'' But the quoted group of words 'arranged, intended or designed,' is found to refer elsewhere only to the character or purpose of buildings, actual structures. Each of the several paragraphs defining use districts, Pars. 4, 6, 7, 8 and 9, begins with.

'(a) no land or building shall be used;

'(b) no building shall be constructed which is arranged, intended or designed to be used;

'(c) no building shall be extended where such extension is arranged, intended or designed to be used '(d) no building shall...