McLay v. Maryland Assemblies, Inc.

• Decision Date: 06 July 1973
• Docket Number: No. 329,329
• Citation: 269 Md. 465,306 A.2d 524
• Parties: Thomas J. McLAY et al. v. MARYLAND ASSEMBLIES, INC.
• Court: Maryland Court of Appeals

Page 465

269 Md. 465

306 A.2d 524

Thomas J. McLAY et al. v. MARYLAND ASSEMBLIES, INC.

No. 329.

Court of Appeals of Maryland.

July 6, 1973.

Walter M. Baker and Gene Patrick Ward, Elkton (Baker, Lockhart, Russell & Herman, Elkton, on the brief), for appellants and cross appellees.

William B. Evans, Elkton, for appellee and cross appellant.

Argued before MURPHY, C. J., and McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SINGLEY, Judge.

At the root of this controversy is the question whether a nonconforming use had been discontinued or abandoned. The court below concluded that it had been neither discontinued nor abandoned, and under the law applicable to the case, we agree.

Maryland Assemblies, Inc. (Assemblies) owns a tract of some 75 acres of land in Cecil County, where it has been engaged in the manufacture and assembly of ammunition components since 1957. On 30 June 1962, the land on which Assemblies operated was classified A-R (agricultural-residential) by the Cecil County Zoning Ordinance (1962) (the Ordinance). In 1971, Assemblies sought to have its property rezoned M-2 (heavy industrial) and was unsuccessful in this effort.

In 1972, the appellant McLay, the owner of a neighboring property, asked the Cecil County Zoning Inspector to enforce the provisions of the Ordinance which prohibited manufacturing in an A-R zone, postulating his complaint on the theory that there had been a cessation by Assemblies of its nonconforming use of the property, because its plant had not operated since some time in 1970.

When the Zoning Inspector declined to take the action requested, McLay and his wife joined with 25 other property owners and appealed to the Cecil County Board of Appeals (the Board). The Board, noting that Assemblies' manufacturing operations had ceased for a period of more than six months, concluded that the nonconforming use had been discontinued, and reversed the decision of the Zoning Inspector.

Assemblies appealed to the Circuit Court for Cecil County, which in turn reversed the action of the Board. From this order, McLay and his neighbors have appealed.

Assemblies has cross-appealed from that portion of the court's order which denied a petition for dismissal which Assemblies had filed with the Board and renewed in the circuit court, its contention being that there had been a failure to comply with Subsection 2 of Section 8 of the Ordinance which provides that the Board shall give 15 days' published notice of the entry of an appeal; shall hear the appeal within 45 days of the Zoning Inspector's decision, and shall decide the case within 15 days of the hearing.

The lower court fairly and briefly summarized the facts:

'. . . Maryland Assemblies has been in the business of manufacturing and assembling small ordance components on its 75-acre property near Port Deposit since about 1957, and after the adoption of the Zoning Ordinance in 1962 it continued its manufacturing operation as a non-conforming use of its premises. In 1970 it completed a contract with the Navy and, although the president of the company diligently sought orders for their product, there has been no manufacturing at the plant since 1970 because of the lack of orders. However, the machinery and equipment in the plant have been maintained in a condition for the immediate resumption of production; the office has been maintained and (is) open for business each week day with someone present to solicit business and take orders; the business has continued to be listed in the telephone directory; the company has maintained an active account in a local bank. Since the Navy contract was fulfilled in 1970, however, only the president has been on the company payroll with the exception of a watchman who worked for room and board. In July 1971 the electrical service was changed from three-phase to residential service, but it was explained that this was to reduce costs. The license issued to the plant by the Fire Marshal's Office for the use of explosives in the manufacture of its product expired on December 31, 1971, and a request was not made for a renewal until June 1, 1972, when requests were received for a license to perform prime and sub-contract work for the Government. It is conceded that there has been no production in the plant since 1970.'

We now turn to the contentions of the parties.

McLay's Appeal

The Ordinance, Section 4, Subsection 3c, relating to nonconforming uses of land, provides:

'c. If any such non-conforming use of land ceases for any reason for a period of more than 90 days, any subsequent use of such land shall conform to the regulations specified by this ordinance for the zone in which such land is located.' (Emphasis supplied)

This should be compared with a somewhat similar provision relating to nonconforming uses of structures, or structures and premises, which is found in Subsection 5e of Section 4 of the Ordinance:

'e. When a non-conforming use of a structure, or structure and premises in combination, is discontinued or abandoned for six consecutive months or for 18 months during any three-year period, the structure, or structure and premises in combination, shall not thereafter be used except in conformance with the regulations of the zone in which it is located;' (Emphasis supplied)

Perhaps the leading and certainly the most frequently cited Maryland case dealing with a nonconforming use is Landay v. Zoning Appeals Board, 173 Md. 460, (Landay v. MacWilliams) 196 A. 293 (1938). Landay is authority for the propositions that the effect of a cessation or discontinuance of a nonconforming use must naturally turn on the language of the ordinance, 173 Md. at 467, 196 A. 293; that abandonment involves the concurrence of an intent to relinquish and an overt act or a failure to act which is consonant with that intent, 173 Md. at 469-470, 196 A. 293, and that cessation or discontinuance without the substitution of another use or without evidence of an intent to abandon, will not prevent resumption of a nonconforming use, 173 Md. at 470, 196 A. 293. ¹

In Canada's Tavern v. Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), we were called upon to interpret a Montgomery County ordinance which provided that "abandoned' shall be defined as the cessation of a nonconforming use for a period of six months or more.' We concluded that under this language a nonconforming use would be terminated by a cessation of the use for six months, irrespective of the owner's actual intent.

Under the Ordinance now before us, it might be argued that a cessation of a nonconforming use of land for a period of more than 90 days would result in the loss of the use because this would be the equivalent of abandonment, despite the fact that the Ordinance does not so provide as it did in Canada v. Glen Echo, supra.

Later on, when the Ordinance deals with a nonconforming use of structures, or structures and premises, it substitutes for the word 'ceases' the alternative of 'is discontinued or abandoned.' We are inclined to agree with the court below that 'is discontinued' means a voluntary cessation of user without an intent to abandon. In passing, it might be noted that had the phrase read 'is abandoned or discontinued' for a specified time, the Ordinance would be consonant with the usual concept that loss by abandonment may in some cases be immediate but loss by discontinuance usually occurs after the passage of time.

The point here, of course, is that there was no voluntary cessation of user. In Canada's Tavern, supra, no use whatever was made of the premises for about one year, during which they were closed and locked. In Harris Used Car Co. v. Anne Arundel County, 257 Md. 412, 263 A.2d 520 (1970), where we dealt with the Anne Arundel County zoning ordinance, we held that an automobile junkyard had lost its claim to a nonconforming use under the zoning ordinances enacted by the County in 1950 and 1952 because the owner had disposed of his used and junked cars in 1945 and had ceased operating his business in 1947. Under those circumstances no nonconforming use was being made of the property at the time of the enactment of the zoning law.

Neither Canada's Tavern nor Harris Used Car is apposite here, however. So far as we can determine from the record, the buildings in question were constructed or adapted by Assemblies for the conduct of its operations, and remained unchanged except for the suspension of the three-phase electric service, to avoid the payment of a demand charge. No equipment had been removed and the office had remained open. The only difference was that there was no business, although Marshall Godman, the president of Assemblies, said he had continued without success to solicit business from the United States Navy, Hamilton Watch Company and the University of Dayton.

At argument, the analogy was drawn to a nonconforming funeral home which lost its custom, but remains open for business. Even more persuasive analogies are seasonal uses: of a nonconforming icehouse ² or of an amusement park, ³ each of which operates two or three months of the year, but remains idle for the rest of the time. In none of these cases could it be successfully argued that there had been a discontinuance. It is rather an involuntary cessation of operations resulting from the uncertainties of business life or the seasonal nature of the enterprise.

McLay makes much of the fact that there was substantial evidence from which the Board could have concluded that Assemblies had discontinued its operations, with the result that the issue was clearly debatable, with the further consequence that the lower court could not substitute its judgment for that of the administrative body, relying on Luxmanor Citizens Ass'n v. Burkart, 266 Md. 631, 647, 296 A.2d 403 (1972) and Dundalk Holding Co. v. Horn, 266 Md. 280, 283, 292 A.2d 77 (1972), two recent cases which restate this familiar principle.

This argument misconceives the nature of the problem. As we...