Trip v. Baltimore

• Decision Date: 09 May 2006
• Docket Number: No. 58, September Term, 2003.,58, September Term, 2003.
• Citation: 392 Md. 563,898 A.2d 449
• Parties: TRIP ASSOCIATES, INC. et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

898 A.2d 449

392 Md. 563

TRIP ASSOCIATES, INC. et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 58, September Term, 2003.

Court of Appeals of Maryland.

May 9, 2006.

John A. Austin, Towson, for Petitioners.

Sandra R. Gutman, Chief Sol. (Thurman W. Zollicoffer, Jr., City Sol., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.

BELL, Chief Judge.

The question this case presents is whether the Board of Municipal and Zoning Appeals ("the Board") erred when it restricted the number of days per week the appellants could operate a valid nonconforming use. The appellants' property, located in the B-5-1 Zoning District in Baltimore City, is being used for the operation of "Club Choices," a nightclub and after-hours establishment that sometimes features adult entertainment. The Club is owned by the appellant, Anthony Dwight Triplin ("Triplin"), who also is the owner of Triplin Associates, Inc. ("Trip"), the other appellant.

Triplin purchased 1815-17 North Charles Street, the property at issue, in 1983. Prior to his purchase, the property had been a nightclub featuring adult entertainment, including male and female exotic dancing. The adult entertainment had been presented up to five nights a week since 1979. When Triplin purchased the property, the applicable zoning ordinance did not prohibit the use of the property as an adult entertainment facility. Nevertheless, Triplin reduced the number of nights of nude or exotic dancing from five to two nights per week, featuring music and comedy on the other nights. The Board approved his use of the premise as an "after hours establishment" in 1992.¹ With this approval, the adult entertainment was presented after hours, exclusively.

On December 15, 1994, Ordinance No. 443 was enacted. That ordinance, codified at Baltimore City Code, Art. 30, § 8.0-61, regulated adult entertainment businesses, "where persons appear in a state of total or partial nudity."² It also provided that "[a]ny adult entertainment business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III regulations."³ Baltimore City Zoning Code § 13-609. After this Ordinance was passed, Triplin continued to use the facility as a club that provided adult entertainment after hours. That use was unchallenged until April 14, 2000, when a Baltimore City zoning inspector issued a "Code Violation Notice and Order" to the Club. The violation notice charged:

"ZONING VIOLATION

"1. Using portion of premises for adult entertainment without first obtaining proper Adult Entertainment Ordinance and Adult Entertainment License. DISCONTINUE SAID USE. REMOVE ALL STOCK, MATERIAL, EQUIPMENT, AND ANY ADVERTISING SIGNS ASSOCIATED WITH SAID USE. OBTAIN CERTIFICATE OF OCCUPANCY BEFORE RE-ESTABLISHING ANY USE."

Triplin appealed to the Board. On appeal, Triplin testified that Club Choices featured exotic dancing and adult entertainment two times a week, Wednesdays and Fridays, for two hours each night. That testimony was confirmed by employees, who offered further that such dancing with partial nudity has been presented two nights per week since 1983.

The Board ruled:

"1.... [A]dult entertainment may be continued two nights during the week. "The Board finds that a nonconforming use of the premises for adult entertainment had been established prior to Ordinance 443 (adult entertainment business approved December 15, 1994) and may be continued under Subsection 13-402⁴ of the Zoning Code. The Board finds that with the above condition that the request would not be detrimental to or endanger the public health, security, general welfare, or morals or be injurious to the use and enjoyment of other property in the immediate vicinity, nor substantially diminish and impair property values in the neighborhood. Further, and as agreed by the appellant that this is specifically for the appellant Mr. Triplin, the owner and operator of the subject site and a copy of the resolution/decision is to be recorded in the land records of Baltimore City and the appellant is to provide to the Board a court certified copy to be placed in the file ... as part of the record. The purpose of the recording requirement is to give the Charles North Community Association legal standing to enjoin any uses as adult entertainment to a subsequent purchaser, owner, lessee or operator. ...

"In accordance with the above facts and findings and subject to the aforementioned condition, (adult entertainment two nights a week only) the Board approves the application."

Board of Municipal and Zoning Appeals, Appeal No. 327-00X, October 12, 2000. Thus, the Board, despite finding that Club Choices was a valid nonconforming use, limited that use, based on the testimony, to two nights per week.

Triplin petitioned the Circuit Court for Baltimore City for judicial review of the Board's decision. That court affirmed the Board's decision and, in addition, ruled that Triplin needed to "apply for and obtain all necessary and relevant licenses required by the City for the operation of an adult entertainment business." Upholding the Board's power to impose the two night per week restriction, it reasoned⁵:

"the Board had authority to impose certain conditions when granting the nonconforming use designation to the appellant ... There was substantial evidence presented at the October 13, 2000 hearing upon which the Board could rely upon for the condition. While the Board heard testimony that confirmed the nonconforming use history of its property, the Board also heard testimony that the non-conforming use only occurred two nights a week, at least for the past 17 years.... By its very nature, a conditional use is a deviation from the land use norm in its location; and often requires particularized attention to protect or buffer the surrounding affected community from its potentially harmful effects. ... Limiting the appellant to 2 days a week is neither irrational nor lacking legal basis. It is a reasonable condition that continues the present practice."

Trip Associates, Inc. v. Mayor and City Council of Baltimore, Circuit Court for Baltimore City, Case No. 24-C-00-005345 (June 14, 2001).

Triplin noted an appeal to the Court of Special Appeals, Trip Assoc. Inc. v. Mayor & City Council of Baltimore, 151 Md.App. 167, 824 A.2d 977 (2003), in which he challenged the Board's power temporally to restrict the nonconforming use and the ruling by the Circuit Court that he obtain an adult entertainment license in order to avoid abandonment of the nonconforming use. The intermediate appellate court agreed with Triplin that the Circuit Court erred in ordering Triplin to obtain an adult entertainment license. It affirmed the judgment, however, insofar as the Board's power to restrict the nonconforming use was concerned, concluding that the restriction placed on Club Choices was neither plain error, 151 Md.App. at 175, 824 A.2d at 982, nor unconstitutional. 151 Md.App. at 177, 824 A.2d at 983. Focusing on § 13-406,⁶ which prohibits the expansion, "in any manner," of a Class III nonconforming use, 151 Md.App. at 175, 824 A.2d at 982, the Court of Special Appeals interpreted that provision as permitting the Board, because it had been presented with evidence of precisely how the property was being used—adult-entertainment twice a week—when the zoning ordinance prohibiting that use was enacted, to define the future further use in exactly the same way, as permitting "Triplin to continue to do what he had done since he acquired the club in 1983," 151 Md.App. at 176-177, 824 A.2d at 982-983, and no more.⁷

Underlying the Court of Special Appeals' decision was Maryland's well-established policy against the expansion of nonconforming uses. 151 Md.App. at 176, 824 A.2d at 982, citing County Council v. Gardner, Inc., 293 Md. 259, 268, 443 A.2d 114, 119 (1982). The intermediate appellate court also relied on out-of-state cases, in which temporal restrictions placed on the continued use of valid nonconforming uses were upheld as consistent with the policy against the expansion of such uses, on the theory that, without them, the nonconforming use would be expanded. Garb-Ko v. Carrollton Township, 86 Mich.App. 350, 272 N.W.2d 654 (1978) (holding that township board could restrict the operating hours of nonconforming grocery store in view of the policy against expansion of nonconforming uses); Incorporated Village v. 280 Hillside Ave. Rest. Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977) (holding that a nonconforming use was unlawfully extended by increase in hours of operation); Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, 547 N.E.2d 877 (Ind.Ct.App.1989) (holding that the zoning board had authority, in approving a change to a nonconforming filling station, to restrict its hours of operation); Cornell Uniforms, Inc. v. Township of Abington, 8 Pa.Cmwlth. 317, 301 A.2d 113 (1973) (holding that a zoning board had the authority to impose a condition that a nonconforming dry cleaning establishment operate in the same time frame in which it had previously operated).

The Court of Special Appeals addressed an issue which it perceived not to have been raised by either party, that of whether the offering of adult-entertainment for more than two nights per week constituted an "intensification" of the nonconforming use, rather than an expansion of that use. Acknowledging that our decisions in Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967) (increasing the number of rowboats that a marina was able to rent), Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967) (increasing quantity and height of scrap metal stored in junkyard), and Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954) (increasing the parking and storage of cars on a nonconforming lot) recognized a distinction between the more intensive use of property and the expansion of a...