Nyburg v. Solmson

• Decision Date: 25 June 1954
• Docket Number: No. 171,171
• Citation: 46 A.L.R.2d 1051,205 Md. 150,106 A.2d 483
• Parties: , 46 A.L.R.2d 1051 NYBURG v. SOLMSON et al.
• Court: Maryland Court of Appeals

Page 150

205 Md. 150

106 A.2d 483, 46 A.L.R.2d 1051

NYBURG v. SOLMSON et al.

No. 171.

Court of Appeals of Maryland.

June 25, 1954.

Lawrence I. Weisman, Baltimore, for appellant.

Donald N. Rothman, Baltimore (Gordon & Feinblatt, Baltimore, on the brief), for Sydney Solmson, appellee.

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

HAMMOND, Judge.

This appeal will end the current battle in a war of neighbors which has been raging intermittently since a garage was built and began operation in 1920 in a residential neighborhood of Baltimore. The present engagement if not an Appomattox, may well turn out to be a Gettysburg.

The father of the individual appellee, who will be referred to as the appellee, built the one story brick garage, known as 2413-23 Linden Ave., 102 feet wide by 240 feet deep, in which were stored, serviced and repaired cars of nearby residents. Between the front of the garage and Linden Avenue is, as there has been always, an open area some 164 feet by 129 feet. In 1931, when the Baltimore City Zoning Ordinance became effective, that neighborhood was classified as a residential use district and the garage operations continued without change. At the time the garage was built, there were protests from the neighbors which were pacified by the assurance that the open area, except that portion of it which comprised a paved u-shaped driveway from the garage to Linden Avenue, would be kept in grass, flowers and shrubs. For a while, this was done but it became impractical because cars ran over it and parked in the open space. On one occasion, a call station and parking space for taxicabs was provided by the garage owner and the neighbors objected. Later, the owners endeavored to convert the garage into a distribution center for department store deliveries; this brought about renewed neighborhood protestation, and the desired use was turned down by the Board of Municipal and Zoning Appeals. No appeal was taken.

In 1950, the appellee made a contract with Nash-Kelvinator Co. to use the open space in front of the garage for the storage of new cars, preliminary to distribution to local Nash dealers. This use continued for some two years without objection, but in January, 1953, the appellant, who lives diagonally across the street from the garage, complained to the Bureau of Building Inspection that the open space was being used, in violation of the law, for the storage of up to fifty new motor vehicles. The appellee was notified of the complaint and, seeking to establish on the record that there existed a non-conforming use as to the whole lot of ground owned by him, applied for a permit to continue the use of the open space for the parking, storage and washing of motor vehicles, and for the sale of gasoline and accessories. We have held recently that this was a procedure justified by the Zoning Ordinance of Baltimore. Bensel v. Mayor and City Council of Baltimore, Md., 101 A.2d 826. The application was denied, and an appeal was taken to the Board of Municipal and Zoning Appeals. After a hearing at which the appellant was in the van against recognition and continuation of the non-conforming use, the Board, on February 24, 1953, held that the appellee had a non-conforming use for the sale of gasoline and accessories and for the parking and storage of vehicles, but restricted the use of the open area in front of the garage to the extent of the use in 1931, and held that not more than ten vehicles could be stored at any one time upon the lot.

The appellee, in due time, petitioned the Baltimore City Court to entertain an appeal from so much of the decision of the Board as limited the use to not more than ten vehicles. The court ordered the appeal to be entered and the record sent up. After the time allowed for the taking of an appeal from the Board to Court, the appellant filed an appeal from the Board's order of February 24, in the Baltimore City Court. Subsequently, this appeal was dismissed by that court because it was filed too late, and no appeal was taken to this Court.

Some six weeks after the time for an appeal had passed, the appellant filed a petition in the Baltimore City Court in the appeal which had been taken by the appellee, which sought leave to intervene, and file an answer. On the same day, the court ordered the intervention and, thereupon, the appellant filed an answer in which he alleged that any use of the garage premises, other than residential use, violated the Zoning Ordinance, that no non-conforming use existed as to the open space in front of the building, that if such use ever existed, it had been abandoned, that the 1947 effort of the appellee to use the garage as a distribution center was res judicata as to the non-existence of the non-conforming use of the open space, and finally, that even if there existed a non-conforming use of the open space, its present use: '* * * as an interstate trucking depot for new automobiles * * *' is offensive because of the odor, dust, gasoline fumes, vibration and noise which result. The prayer of the answer was that the court would eliminate entirely: '* * * a non-conforming use of the Petitioner, in said open space.' The appellee, several days later, filed a petition to strike the order making the appellant a party defendant, on the ground that the latter had filed an untimely appeal from the order of the Board of February 24, which he now sought to attack as an intervenor. The trial court reserved decision on the right of the appellant to intervene until a hearing on the merits. After such hearing, the court passed its order, holding: (1) that the action of the Board in finding that there existed a non-conforming use for parking, storing and the repair of motor vehicles in the garage building and for the use of the entire open space in front of the said building for the sale of gasoline, oil and accessories and for parking and storing of motor vehicles is supported by substantial evidence; (2) that the action of the Board which sought to restrict the use of the open space: '* * * to that use which existed in 1931, namely, storage of not more than ten cars or trucks * * *' is improper as a matter of law, since it amounted to an attempted prohibition of a legally valid intensification of use; (3) that the appellant, Sidney Nyburg, was not entitled, under the facts of the case, to intervene as a defendant, having taken a late appeal from the decision of the Board of which he now complains.

In the briefs and argument here, the parties collide first, and head on, as to whether the court below was right in refusing the appellant leave to intervene as a defendant. The appellant says that the refusal of intervention and refusal to rule on the issue raised by him constituted reversible error. The appellee counters that if one is dissatisfied or aggrieved by the decision of the Zoning Board, he must appeal in due time and may not, by intervention, after the time for appeal has passed, seek to secure affirmative relief. The appellee says further that if appellant be permitted to intervene, he must seek only to uphold the decisions of the Board. Generally, the right to intervene is within the discretion of the trial court measured in the light of the intervenor's interest in the subject matter and the issues raised by the proceedings. The exercise of discretion as to the right of intervention, generally is not subject to appeal; it may be if the action of the court amounts to an abuse of discretion. Conroy v. Southern Maryland Agricultural Ass'n, 165 Md. 494, 169 A. 802; Stirn v. Radio-Keith-Orpheum Corp., 163 Md. 398, 163 A. 696; Miller's Equity Procedure, Sec. 77-81; and Bauer v. Hamill, 188 Md. 553, 53 A.2d 399. The general test has been applied in zoning cases. In several this Court has not questioned the action of the lower court in permitting intervention of a neighbor taxpayer, as a party defendant, seeking to uphold the decision of the Board. See Fritze v. City of Baltimore, 202 Md. 265, 96 A.2d 4; Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 34 A.2d 765; City of Baltimore v. Cohn, Md., 105 A.2d 482. On the other hand, we have approved the action of the lower court in refusing intervention. In Psalmist Baptist Church v. Board of Zoning Appeals, 175 Md. 7, 199 A. 815, the appellants, a month after the Baltimore City Court decided a zoning case, filed a petition in that court to reopen the case on the allegation that they had new and additional facts which should be brought to the court's attention. Their petition was dismissed by the lower court and their appeal to this Court from that action was also dismissed. In Mayor and City Council of Baltimore v. Shapiro, 187 Md. 623, 51 A.2d 273, we accepted without question the action of the lower court in refusing permission to protestants to intervene for purposes of appeal to this Court after the decision of the lower court. In Windsor Hills Improvement Ass'n v. Mayor and City Council of Baltimore, 195 Md. 383, 73 A.2d 531, 535, an association appealed to the Baltimore City Court from the decision of the Board, and two months after the time for appeal had expired, one Kairys, a taxpayer and president of...