City of Baltimore v. Weinberg, 104

• Decision Date: 24 March 1954
• Docket Number: No. 104,104
• Citation: 103 A.2d 567,204 Md. 257
• Parties: CITY OF BALTIMORE et al. v. WEINBERG et ux.
• Court: Maryland Court of Appeals

Page 257

204 Md. 257

103 A.2d 567

CITY OF BALTIMORE et al. v. WEINBERG et ux.

No. 104.

Court of Appeals of Maryland.

March 24, 1954.

Francis J. Valle, Asst. City Solicitor, Baltimore (Thomas N. Biddison, City Solicitor, and Edwin Harlan, Dep. City Solicitor, Baltimore, on the brief), for Mayor and City Council.

Julius G. Maurer, Baltimore, for John L. Matthews.

Paul F. Due, Baltimore (Due, Nickerson, Whiteford & Taylor, Baltimore, on the brief), for appellees.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a decision of the Baltimore City Court reversing the Board of Municipal and Zoning Appeals of Baltimore City (the Board).

On March 26, 1952, the appellees, Harry Weinberg and Jeanette Weinberg, his wife, applied to the Buildings Inspection Engineer and Zoning Commissioner for a certificate of occupancy as a non-conforming use, to use a building thirty feet by seventy-six feet for the storage of hardware, sheetrock, nails, and cement. This building is located on a lot two hundred and ten feet by one hundred and seventy-five feet, which, by Zoning Ordinance No. 1247, approved March 30, 1931, is in a Residential Use District. No portion of the lot, except the building, is here involved. This building, on the northeast corner of the lot, is separated on its northeast side by a ten foot alley from another lot of the appellees which, as the result of the cases of Weinberg v. Kracke, 189 Md. 275, 55 A.2d 797, and Kracke v. Weinberg, 197 Md. 339, 79 A.2d 387, is now zoned Second Commercial and Industrial. This other land of the appellees in those cases was shown to be very rough in contour with a large stream running through it and is now rented for a lumber business to Mr. Nathan Egorin. The building, here, has no possible use for residential purposes and appellees desire to rent it to Mr. Egorin, who conducts the lumber business on the adjoining lot, to use in connection with that business.

The application of the appellees was disapproved and an appeal was taken to the Board where three hearings were held. At the first and second hearings the Board held that there was not sufficient evidence to establish a non-conforming use. After the second hearing the matter was remanded by the Baltimore City Court to the Board for a third hearing to permit the appellees to offer in evidence a City record consisting of a report dated July 24, 1931, by Officer Herz, of the Baltimore Police Force, as to the use of the property here in question. As a result of that third hearing, the Board, by a vote of three to two, again denied the permit. An appeal was then taken and the trial judge on a review of the record of the three hearings before the Board, and without any additional testimony, found that the building had been used continuously from 1928 until April, 1950, for non-conforming purposes, and from that time until January, 1952, the appellees attempted unsuccessfully to rent the property. By order he reversed the action of the Board. From that order appellants appeal.

Paragraph 11, of Zoning Ordinance No. 1247, adopted March 30, 1931, and in effect at the time this case was tried below provided:

'Non-Conforming Uses. A non-conforming use is a use that now exists and that does not comply with the regulations for the use district in which it is established. A non-conforming use may not be extended, except as hereinafter provided, but the extension of a use to any portion of a building, which portion is now arranged or designed for such non-conforming use, shall not be deemed to be an extension of a non-conforming use. A non-conforming use may be changed to a use of the same classification or to a use of a higher classification. A non-conforming use, if changed to a use of a higher classification, may not thereafter be changed to a use of a lower classification.

If a use, for which an ordinance is required under the provisions of Section 4, is changed to a use for which no ordinance is required under those provisions, it may not thereafter be changed to a use for which an ordinance is required without such an ordinance. Nothing contained in this Article shall be construed to prevent the continuance of any use which now legally exists.'

The question here is whether a non-conforming use existed as to this building on March 30, 1931, when the Zoning Ordinance was adopted and, if so, whether that non-conforming use has been abandoned. By Paragraph 8 of Zoning Ordinance No. 1247, storage yards for building materials and livery stables are non-conforming uses in a Residential Use District. It was said in Chayt v. Board of Zoning Appeals, 177 Md. 426, 430, 9 A.2d 747, 749: 'There is no dispute of the nonconformity of use as a stable in this [a residential] district.' Of course, the courts will not disturb the finding of the Board if the record shows substantial evidence to sustain that finding. Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 304, 49 A.2d 799.

The pertinent evidence follows. Harry Weinberg, one of the appellees, testified that he purchased the property in 1939. In 1946 he filed an application to use the building for the storage of building materials but later withdrew that application. From 1939 until April, 1951, he rented the building as a horse stable. The neighbors complained to the tenant who then gave up the building. Mr. Weinberg was unable to get another tenant for stable purposes. He then rented it for the storage of machinery upon the statement by the tenant that he had approval from the Buildings Engineer's office to so use it. When he found that the tenant had not filed an application for that use and had 'lied' to him, he removed the tenant. Since that time he has posted a 'For Rent' sign on the property but has been unable to get a tenant until this time when Mr. Egorin wants to rent it. He further testified that he had lived in and had been familiar with, the neighborhood as a boy. Since before 1931 this building was used as a stable. During its vacancy children had broken the windows which would be repaired by Mr. Egorin.

A Mrs. Kracke testified that she had been living in the neighborhood for thirteen years. When she moved there a Mr. Ross stabled four or five horses in the building. It had been used as a stable 'until the last year or so'. Mrs. Julia Kramer had been living in the block for forty years. The building had been used as a stable but she did not know for how long. A Mrs. Bender testified that she had lived in the neighborhood for forty years. She said that horses had been kept in the building but she did not know for how long. Mr. John L. Matthews, one of the appellants, who lives at 905 Wilimington Avenue, adjoining the lot on which the stable is located, stated that he had been living there for twenty-four years. At the time he moved there the building here in question was put up by Mr. Gerber as a shed for the storage of lumber. It was later enlarged and became a stable large enough for twenty horses. It has been vacant for 'a year or more' and during that time a 'For Rent' sign has been placed on the lot. At the second hearing Mr. Matthews testified that he had been living there for thirty years. When he first moved there the building in question was not erected. In 1928 a smaller building was there for the storage of tools and large enough to keep a pony there for Mr. Gerber's son. That building was torn down and the present building was not built until three or four years after 1928. At the third hearing Mr. Matthews testified that the previous small building was put there by Mr. Gerber for the storage of lumber and no other lumber was put on the lot.

Mrs. Mabel Gerber testified that she was the widow of a former owner of the property. He took out a permit to build two houses about 1931 or 1932. The building in question was not there at that time. He then put up the building for the storage of lumber and later brought his horses there from his riding school. She further said her husband built five houses at 902, 903, 904, 905, and 906 Wilmington Avenue. At the time he built the houses he also built the building here in question for the storage of lumber. At a subsequent hearing Mrs. Gerber testified that her husband built some of the houses in 1928 and at that time he built a part of the building here in question for the storage of lumber.

Mr. Burgee testified from the Baltimore City records that...