Grant v. Mayor and City Council of Baltimore

• Decision Date: 14 February 1957
• Docket Number: No. 102,102
• Citation: 129 A.2d 363,212 Md. 301
• Parties: Stanley S. GRANT et ux., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 301

212 Md. 301

129 A.2d 363

Stanley S. GRANT et ux., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 102.

Court of Appeals of Maryland.

Feb. 14, 1957.

Wilson K. Barnes and Frank B. Ober, Baltimore (C. Morton Goldstein and William A. Grimes, Baltimore, on the brief), for appellants.

Walter C. Mylander, Jr. and Charles C. W. Atwater, Baltimore (Thomas N. Biddison, City Solicitor and Shirley Brannock Jones, Asst. City Solicitor, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

From the beginning of zoning in Baltimore billboards were excluded prospectively from residential districts, although those already there were permitted to remain as nonconforming uses. Then in 1950 the City Council passed Ordinance 1101, approved April 5 of that year, requiring all outdoor advertising structures in residential districts to be removed not later than five years from the passage of the ordinance. In 1953 after full hearings and extended consideration, there was passed Ordinance 711 generally revising the zoning laws of the City. Paragraph 13(d) narrowed the exclusion of the 1950 ordinance, providing only that 'Billboards and poster boards situated in Residential and Office Use Districts and Residential Use Districts shall be removed by April 5, 1955 * * *' that is, within five years of the passage of the 1950 ordinance.

The corporate appellants, signboard companies, and the individual appellants, owners of property leased for the use of billboards, ask us to reverse the chancellor who dismissed their bill that sought to declare the 1953 ordinance invalid and unconstitutional and to restrain the Mayor and City Council and the Building Inspection Engineer of Baltimore from enforcing it.

The Morton Company, Inc., or its corporate predecessors, had for many years been in the outdoor advertising business. In 1955 it had about sixteen hundred billboards in Baltimore and its environs, some nine hundred being within the city limits. Seventy-eight are in residential or residential and office use districts, all being nonconforming uses that have endured since the passage of the first zoning ordinance in 1931. Fourteen of these are illuminated. All of the thirty-eight leases for the nonconforming billboards were entered into after 1950. Most are for terms of one year; none, except one executed in 1952, has a term of over five years. Morton received about $45,000 a year gross from advertisers on the seventy-eight billboards. Its testimony was that billboard coverage is sold in 'packages' of from fifteen to sixty boards for frequent repetition on main roads and so as to provide a network of coverage which is 'almost inescapable' to a 'captive audience'. Removal of the nonconforming billboards would seriously diminish the adequacy of coverage and injure the business. After the filing of the bill, Donnelly Advertising Corporation of Maryland acquired the assets of Morton and was allowed to intervene in the case, as were several individual appellees who owned homes near billboards.

The individual appellants, Mr. and Mrs. Grant, and Samuel Cooper, each own a parcel of land in a residential district which has been leased for billboard use continuously since before the original Baltimore zoning ordinance of 1931. The Grant lease was for one year beginning November 1, 1953. There have been two one year extensions as the lease allowed. The rent is $200 a year. The Cooper lease was for one year beginning April 1, 1954, and there has been one extension for another year. The Grants bought their unimproved lot on the east side of Greenspring Avenue near Gordon Road in 1923. It has been leased for billboards since 1927. Cooper bought his lot, on which there is a house he rents out, in 1953, and he continued the leasing of part of the property for billboard use begun before 1931 by his predecessors in title. His rent is $35 a year.

The appellants urge that their rights to nonconforming uses are vested rights of property which the enforcement of paragraph 13(d) of Ordinance 711 of 1953 would take from them without compensation, contrary to Art. 3, Sec. 40 of the Constitution of Maryland, and so would deprive them of property without due process of law, Const. Declaration of Rights, Art. 19, as well as be discriminatory and a denial of the equal protection of the laws.

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. Nevertheless, the 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 ordinances forbid or limit expansion of nonconforming uses and forfeit the right to them upon abandonment of the use or the destruction of the improvements housing the use. Colati v. Jirout, 186 Md. 652, 47 A.2d 613; Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 34 A.2d 765. In Dorman v. Mayor and City Council of Baltimore, 187 Md. 678, 684, 51 A.2d 658, 661, the issue was whether a nonconforming use had been abandoned. Judge Markell said for the Court, in speaking of the aim of bringing about general conformity: 'The right under Paragraph 11 to 'continue' a non-conforming use is not a perpetual easement to make a use of one's property detrimental to his neighbors and forbidden to them.'

Nonconforming uses have not disappeared as hoped and anticipated because the general regulation of future uses and changes, with some existing uses uncontrolled, have put the latter in an intrenched position often with a value that is great--and grows--because of the artificial monopoly given it by the law. Indeed, there is general agreement that the fundamental problem facing zoning is the inability to eliminate the nonconforming use. City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 40.

The Courts confirmed the expectations of those who began zoning. It soon was and still generally is held that it is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful. Board of County Com'rs Anne Arundel County v. Snyder, 186 Md. 342, 346, 46 A.2d 689. Amereihn v. Kotras, 194 Md. 591, 601, 71 A.2d 865, and cases cited; Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Standard Oil Co. v. City of Bowling Green, 244 Ky. 362, 50 S.W.2d 960, 86 A.L.R. 648; Des Jardin v. Town of Greenfield, 262 Wis. 43, 53 N.W.2d 784.

The frustrations of the people as they were faced with nonconforming uses soon found their representatives in the lawmaking bodies trying other ways to get rid of them. Two tools resorted to were eminent domain and the law of nuisances. The effectiveness of eminent domain is restricted by the necessity that the purchase must be for public use, by the complexities of administrative precedures and by the high cost of reimbursing the property owners. The law of nuisances has limits that many times make its use fall short of the objective. Some courts will restrain only common law nuisances and even where the lawmakers have expanded the nuisance category, judicial enforcement seems often to have been restricted to uses that cause a material and tangible interference with the property or personal well-being of others, uses that are equivalent to or are likely to become common law traditional nuisances.

It has become apparent that if nonconforming uses are to be dealt with effectively it must be under the law of zoning, a law not limited in its controls to harmful and noxious uses in the common law sense. Many legislative bodies have come to the technique of statutes or ordinances that call for the cessation of the extraneous use after a tolerance or amortization period, varying in length with the nature of the use and of the structures devoted to the use, from one year to sixty years. Some of the jurisdictions that have enacted such provisions are cited below. ¹ It has been said that the only positive method yet devised of eliminating nonconforming uses is to determine the normal useful remaining economic life of the structure devoted to the use and prohibit the owner from using it for the offending use after the expiration of that time. Crolly and Norton, Termination of Nonconforming Uses, 62 Zoning Bulletin 1, June 1952, cited in City of Los Angeles v. Gage, supra, 274 P.2d 34, 41.

Some Courts have refused to distinguish between laws requiring immediate cessation of nonconforming uses and those that demand cessation only after the expiration of a tolerance or amortization period, holding that the latter as well as the former are unconstitutional. ²

Other Courts have held that nonconforming uses could be stopped after specified periods of time. In State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, certiorari denied, 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612, the highest Court of Louisiana held that any business operated in violation or defiance of a zoning ordinance was to be regarded as a public nuisance and that an existing grocery store in a residential use district could be forced by a zoning ordinance to close after the one year grace period. There was a similar holding as to a drug store in ...