Feldstein v. LaVale Zoning Bd.

• Decision Date: 06 April 1967
• Docket Number: No. 198,198
• Citation: 227 A.2d 731,246 Md. 204
• Parties: Abe FELDSTEIN, t/a Abe Feldstein Junkyard v. LaVALE ZONING BOARD.
• Court: Maryland Court of Appeals

Page 204

246 Md. 204

227 A.2d 731

Abe FELDSTEIN, t/a Abe Feldstein Junkyard v. LaVALE ZONING BOARD.

No. 198.

Court of Appeals of Maryland.

April 6, 1967.

William H. Geppert and Hugh A. McMullen. Cumberland (Gunter & Geppert, Cumberland, on the brief), for appellant.

Lee C. Barnett, Cumberland (Paul W. Barnett and Barnett & Barnett, Cumberland, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HORNEY, Judge.

Whether or not the expansion of the high-rise junkyard owned by Abe Feldstein was an extension or an intensification of a nonconforming use is the primary question presented by this appeal from an order of the Circuit Court for Allegany County in Equity granting in part and denying in part the injunctive relief sought by the LaVale Zoning Board. The junkyard, which has been in operation since 1939, was the subject of another injunction suit before the zoning ordinance was adopted on April 30, 1958. In Feldstein v. Kammauf, 209 Md. 479, 121 A.2d 716 (1956), the requirements of the lower court that the junkyard be fenced from view or that the junk should be removed unless the yard was enclosed were reversed by this Court.

In the present case, the zoning board was the plaintiff below and the owner was the defendant. On appeal, the owner is the appellant and cross-appellee and the board is the appellee and cross-appellant.

LaVale is an unincorporated suburb of Cumberland having extensive residential areas as well as smaller industrial and commercial areas. The parcel of land on which the junkyard is operated is a part of a larger tract of bottom land running with the southerly side of Braddock Run and the northerly side of, but ten feet below, the National Highway, which, besides the junkyard, is occupied by a railroad siding and a number of industrial plants and commercial businesses. The junkyard is located at the western end of this elongated area (three-fourths of a mile long from east of west with a maximum width of three hundred yards from north to south) and in the main is surrounded by residential areas. The junkyard is situated in a Commercial B Zone-permitting use by heavy industry-as a nonconforming use under § 10(a) 1-10 of Part I-A of the zoning ordinance which also provides in § 4 of Part III-C that all presently existing junkyards must be screened within a year by the erection of a fence or wall or by the planting of trees, shrubbery or other planting. An eight-foot high fence was to be considered as adequate screening.

The zoning board, alleging that the owner had expanded his nonconforming use contrary to the provisions of § 10(a) 3 of Part I-A and had not complied with the provisions of § 4 of Part III-C, sought an order permanently enjoining the defendant from extending his junkyard beyond the area occupied at the time the ordinance was adopted and requiring the defendant to cease operation of his business until screening had been provided.

At the trial below, evidence was produced on behalf of the zoning board tending to show that the piles of junk had increased in height from a maximum of eight feet to an average of twenty to twenty-five feet. There was other oral evidence to the effect that the western portion of the junkyard, including a narrow strip of land (approximately three hundred feet long by seventy feet wide), had not been used for the storage of junk prior to the adoption of the ordinance but was presently being used for that purpose. And there was photographic evidence showing that junk had been piled in the easterly portion of the junkyard to the edge of the traveled part of Lane Street.

The owner, on the other hand, produced evidence showing that the entire yard had previously been used for the storage of junk, that the height varied from time of time but had not increased in the last ten years and that an eight-foot fence, besides costing more than $20,000, would not conceal the junkyard from sight. In rebuttal to the testimony of the witnesses for the zoning board, the owner not only testified that approximately one thousand tons of scrap metal was stored on the narrow westerly part of the yard before the adoption of the ordinance, but several disinterested witnesses also testified that a substantial quantity of junk was piled in that part of the yard before the critical date and specifically described some of the items. Even some of the witnesses for the zoning board admitted that some junk was stored thereon before April of 1958.

After the chancellors had decided the case, the owner requested and was afforded an opportunity to present additional evidence. At the rehearing, the owner not only presented additional oral testimony to the effect that large quantities of steel rails, beams, shafts and pipes as well as a number of discarded motor vehicles were stored throught the whole of the area in dispute before the critical date, but also introduced documentary and photographic evidence showing that twenty-nine large railroad tanks bought in 1956 were still stored in the yard in 1958 and that part of them had been placed in the westerly portion thereof. The lower court, however, affirmed its original rulings at the conclusion of the rehearing.

The chancellors made four principal findings of fact. They held that the enclosure of the junkyard, even if enforceable, would not, due to the terrain, serve the purpose intended by the ordinance. They also held that the junk piled in the easterly portion of the yard along Lane Street was a hazard to pedestrian as well as vehicular traffic and, in the interest of public safety and the general welfare, ordered that it either be removed into the interior of the yard or that a fence be constructed along the street to prevent the junk from spilling into it. No appeal was taken on either of these findings.

The chancellors, in holding that the area measuring three hundred feet by seventy feet had had only casual use as storage for scrap metal prior to the adoption of the ordinance and that its present utilization for that purpose constituted an extension of the nonconforming use in violation of the ordinance, ordered the removal of all material from the area. The owner-defendant appealed this point. The chancellors also held that the increase in quantity and height of scrap metal stored on the remaining area of the junkyard (except for a parcel of land along the northerly boundary purchased in 1964 on which the storage of junk would be unlawful) was an intensification and not an extension of the nonconforming use under the law. And the zoning board-plaintiff filed a cross-appeal on this point.

It is apparent that these appeals relate to different aspects of the same question. One, as to whether the use of the westernmost part of the junkyard for storage purposes was casual or deliberate, is primarily a question of fact. The other, as to whether the increase in the height and...