McKemy v. Baltimore County

• Decision Date: 14 April 1978
• Docket Number: No. 948,948
• Citation: 39 Md.App. 257,385 A.2d 96
• Parties: Leon McKEMY et al. v. BALTIMORE COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

Page 257

39 Md.App. 257

385 A.2d 96

Leon McKEMY et al. v. BALTIMORE COUNTY, Maryland.

No. 948.

Court of Special Appeals of Maryland.

April 14, 1978.

Walter I. Seif, Jr., Owings Mills, for appellants.

Peter Max Zimmerman, Asst. County Sol. for Baltimore County, with whom were J. Carroll Holzer, County Sol. and Julius W. Lichter, Asst. County Sol., on the brief, for appellee.

Argued before MORTON, MELVIN and WILNER, JJ.

WILNER, Judge.

Gertrude Stein once said that a rose is a rose is a rose, and no one appealed. Here, the Circuit Court for Baltimore County has held that a parking lot is a parking lot is a parking lot, and both sides have appealed. As a result, we are asked to determine whether Leon McKemy (t/a M & M Fuel Co., Inc.) may continue to use certain lots in the Sparrows Point area of Baltimore County in the way he heretofore has used them. The Zoning Commissioner said that some of the lots could not be used at all for such purposes and set certain conditions and limitations on the continued use of others. The county Board of Appeals affirmed those determinations, as did the Circuit Court.

The lots in question are identified as Lots 378 through 387 and Lot 442, as shown on the Plat of Sparrows Point Manor. They are located on the south side of Snyder Avenue between Marine Avenue and Sparrows Point Road, and are (and since 1945 have been) zoned for residential use. It is undisputed that the operations being conducted on those lots are not permitted under the zoning regulations applicable to residential zones. Thus, if McKemy is to be allowed to continue using the lots for such purposes, it must be by virtue either of a valid pre-existing non-conforming use or because of a 1976 county ordinance (Bill 18-76) regulating truck terminals. These, then, are the central issues before us:

(1) Are the current uses made of the lots by McKemy within the scope and protective ambit of a valid non-conforming use; and

(2) What, if any, effect does Bill 18-76 have?

Complicating the first issue somewhat is the fact that the Board of Appeals considered that issue once before, in 1969, and made a determination then that was not appealed. In addressing the first issue, therefore, we are asked to consider whether, and to what extent, the principle of res judicata operates with respect to the 1969 Board decision.

I. Non-Conforming Use

Zoning came officially to Baltimore County on January 2, 1945, when, pursuant to previous authorization by the General Assembly, the County Commissioners adopted a comprehensive set of zoning regulations. ¹ Section II of those regulations created seven zones four being residential, one commercial, and two industrial. The lots in question here were zoned for residential use.

Section XI of these original regulations provided for non-conforming uses. It stated:

"A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue, provided, however, upon any change from such non-conforming use to a conforming use, or any attempt to change from such non-conforming use to a different non-conforming use or any discontinuance of such non-conforming use for a period of one year . . . the right to continue to resume such non-conforming use shall terminate, provided, however, that any such lawful non-conforming use may be extended or enlarged to an extent not more than once again the area of the land used in the original non-conforming use."

On March 30, 1955, the County Commissioners adopted a new set of comprehensive zoning regulations. Non-conforming uses are dealt with in Section 104, which provides in relevant part:

"A lawful nonconforming use existing on the effective date of the adoption of these regulations may continue; provided that upon any change from such nonconforming use to any other use whatsoever . . . the right to continue or resume such nonconforming use shall terminate. No nonconforming building or structure and no nonconforming use of a building, structure, or parcel of land shall hereafter be extended more than 25% Of the ground floor area of buildings so used." (Emphasis supplied.)

It was within this legal framework that the activities of Mr. McKemy first came to the attention of the county zoning authorities. In February, 1969, apparently upon a complaint filed by one or more residents in the area, the Zoning Commissioner conducted a hearing to determine whether the property located at the "northwest corner of Sparrows Point Boulevard and Snyder Avenue" and Lots "Nos. 378, 381 and 384" were being used in a manner violative of the existing zoning regulations. The Commissioner concluded that the first of these properties that on the north side of Snyder Avenue enjoyed a non-conforming use as a service garage, and could continue to be used for that purpose. The three lots across the street, however (Nos. 378, 381, and 384), he concluded were not part of that garage business and therefore had no non-conforming use status for the parking of vehicles in conjunction with the garage business. On that premise, he ordered that all vehicles connected with McKemy's fuel service use of the garage property be removed from those lots.

On appeal, the Board of Appeals reversed the latter determination in an opinion that is hardly a model of clarity. The Board first stated that the case came before it on appeal from a finding by the Zoning Commissioner "that the property situated at the northwest corner of Sparrows Point Boulevard and Snyder Avenue is being used in violation of the Zoning Regulations of Baltimore County in that the respondent . . . is using the property in question for the parking of automobiles." This is manifestly not what the Zoning Commissioner held. As noted, he concluded that the property at the "northwest corner" of those two streets was not in violation of the regulations because it enjoyed a non-conforming use. It was the property across the street (which would have been the southwest corner) where the violation existed, and the violation did not consist of the "parking of automobiles", but rather the parking of fuel oil trucks.

These apparent misperceptions were perhaps cured by stipulation. First, the county and McKemy stipulated that the property at the northwest corner was being used as a garage for the repair of automobiles and trucks, and that it enjoyed a valid non-conforming use for that purpose. In effect, the Zoning Commissioner's determination as to that property was stipulated to be correct. It was further stipulated that Lot No. 442 and "Lots Nos. 378 through 384" were zoned residential and "are being used for the parking of trucks and other vehicles in conjunction with a fuel oil business operated by" McKemy. ²

The Board summarized the testimony of two witnesses that appeared before it, upon which it evidently relied in making its decision. The first was Michael Narutowitz, who, through a corporation, "owns the property in question." ³ Narutowitz stated that he purchased the property in 1936 to be used "as a parking lot in conjunction with a restaurant and bar business" owned by him on the north side of Snyder Avenue. ⁴ He testified that such use continued until 1951, when he closed the restaurant and leased the property to a tenant who rented rooms to truckers, "and the lots in question were used for the parking of cars and trucks belonging to her roomers and others continuously until 1961." Since 1961, according to Narutowitz, "the property has been used continuously as a parking lot for vehicles and trucks used by Mr. McKenny in conjunction with his fuel oil business."

The second witness was J. Fred Welsh, Sr., who testified that "the lots in question have been used continuously as a parking lot for trucks and cars since about 1936." After reciting this summary, and noting that no one appeared before the Board to contradict that testimony, the Board concluded, and ordered that "(f)or the reasons set forth in the aforegoing Opinion ⁵ . . . by virtue of the legal non-conforming use existing on the property no violation of the Zoning Regulations of Baltimore County exists on the subject property . . .." Thus, the order of the Zoning Commissioner was reversed. Nowhere in its opinion or Order did the Board define the non-conforming use, or even suggest what its parameters were.

The Zoning Commissioner inquired again into Mr. McKemy's activities in 1974, as the result of a complaint that Lot 442 and Lots 378 through 387 were being used "for a truck terminal, the storage of miscellaneous junk, debris, and disabled vehicles". The Zoning Commissioner noted that Lots Nos. 378 through 384 "enjoy a legal nonconforming use for the storage of trucks" but stated the issue to be whether the non-conforming use was "for the storage of trucks in general or, more specifically, the storage of trucks in conjunction with the Defendant's fuel oil business."

The Commissioner pointed out, from the evidence before him, that McKemy had "expanded his nonconforming use by storing fuel oil trucks and freight haulers on Lots Nos. 385 through 387" lots that were not included within the non-conforming use determined by the Board in 1969. Residents testified that "the storage of trucks, other than fuel oil trucks, has come about recently and has been expanded continuously, not only in volume, but in area." McKemy testified that he began leasing Lots Nos. 378 through 387 from Mr. Narutowitz in 1960; that in addition to hauling and delivering fuel oil, he operates a freight hauling business; and that he began the freight hauling business in 1965.

The Commissioner construed the 1969 Board opinion as granting a non-conforming use as to Lots 378 through 384 "for the storage of fuel trucks only." Thus, he concluded that the storage or parking of "all other type trucks" was a violation of the zoning regulations, as was the expansion of the parking of fuel oil trucks or freight haulers onto Lots Nos. 385 through 387. Finally, ...