Wilson v. Mayor and Com'rs of Town of Elkton, 191

• Citation: 371 A.2d 443,35 Md.App. 417
• Decision Date: 06 April 1977
• Docket Number: No. 191,191
• Parties: Leonard E. WILSON et al. v. MAYOR AND COMMISSIONERS OF the TOWN OF ELKTON.
• Court: Court of Special Appeals of Maryland

Page 417

35 Md.App. 417

371 A.2d 443

Leonard E. WILSON et al. v. MAYOR AND COMMISSIONERS OF the TOWN OF ELKTON.

No. 191.

Court of Special Appeals of Maryland.

April 6, 1977.

O. Robert Lidums, Elkton, with whom was Eugene F. Herman, Elkton, on the brief, for appellee.

Argued before MORTON, POWERS and MELVIN, JJ.

POWERS, Judge.

The zoning ordinance of the Town of Elkton, adopted in 1963, recognized the continued right to lawful existence of lots, structures, and uses which the terms of the ordinance would not otherwise permit. It provides, Art. I, Sec. 4, Subsection 1:

'Intent-Within the zones established by this ordinance or amendments that may later be adopted there exist lots, structures, and uses of land and structures which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendment.

It is the intent of this ordinance to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this ordinance to be incompatible with permitted uses in the zones involved. It is further the intent of this ordinance that non-conformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone.

A non-conforming use of a structure, a non-conforming use of land, or a non-conforming use of a structure and land shall not be extended or enlarged after passage of this ordinance by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited in the zone involved.'

Subsection 4 provides:

'Non-Conforming Structures-Where a lawful structure exists at the effective date of adoption or amendment of this ordinance that could not be built under the terms of this ordinance by reason of restriction on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

a) No such structure may be enlarged or altered in a way which increases its non-conformity; * * *.'

Owned by a Mrs. Minnie Rooney from 1960 until she sold it in September, 1974, the property involved in this appeal consists of a lot and house known as 143 Main Street, located at the corner of Church Street, in the Town of Elkton. The lot is said to be 14 1/2 feet wide and 87 feet long, with a total area of less than 1,300 square feet. It was originally classified in and remains in the Residential-Office Zone R-O, which generally permits multiple family and office uses.

The minimum requirements for a conforming lot in the R-O zone are that it have an area of 6,500 square feet, a width of 60 feet, a front yard of 20 feet, a rear yard of 30 feet, and a side yard of 5 feet. For a structure having two or more dwelling units, the lot must have a minimum area of 2,000 square feet per dwelling unit. A structure in the R-O zone may not cover more than 50% of the area of the lot.

The structure in this case, a three story house the same width as the lot, and 60 feet from front to back, leaves no front yard on Main Street or on Church Street, no side yard, and less than the required rear yard.

From the time the zoning ordinance was enacted in 1963, Mrs. Rooney's lot and structure enjoyed the right to continue to exist, subject to the non-conforming use provisions of the ordinance, although neither conformed with the requirements of the R-O zone.

In September, 1974, Dr. Charles V. Pasqualini, Jr. purchased the property from Mrs. Rooney. He promptly applied to the Board of Zoning Appeals for the Town of Elkton for a variance, to permit him to construct a new outside stairway to the second and third floors, on the rear of the building. The Board, after a hearing at which Leonard E. Wilson, a neighboring property owner, protested, granted the variance. Mr. Wilson and his wife appealed to the Circuit Court for Cecil County, which reversed the decision of the Board of Appeals. The court did so because the Board failed to make findings of fact, which the ordinance required it to do. The court said in reversing the Board that 'the granting of the variance was not in accordance with the law,' but specifically stated that it did 'not decide the question of whether * * * (the Board's action was) arbitrary, capricious and discriminatory.'

Thereafter a new application was submitted to the Board by Dr. Pasqualini, requesting a variance 'to provide a rear fire escape from the three existing apartments at this address to comply with the State Fire Marshal's Office which requires this access pursuant to State Fire Prevention Code * * *.' The application was expressed in greater detail in an amendment made at the hearing before the Board, and accepted by it.

Significant evidence at the hearing before the Board of Appeals was given by Dr. Pasqualini and by Mr. Wilson. Dr. Pasqualini described the building. He said it was a house with three floors; that Mrs. Rooney had lived on the first floor, and had apartments on the second and third floors. The apartments were not occupied when he settled for the property in September, 1974, but had been occupied when he negotiated with Mrs. Rooney around June or July. The first time he was in the property was in 1973.

Explaining why he wanted the variance, Dr. Pasqualini said that the first floor had front and rear entrances or exits; from the second floor one could go down the interior stairway to the first floor, or from a platform at the rear, down an outside stair to the ground; but from the third floor the only ingress or egress was through the second floor apartment. He said he had learned that he needed another exit from the third floor, and proposed to build an outside stairway from the rear of the third floor to an enlarged platform at the rear of the second floor. After learning of the requirement of the Fire Prevention Code, he had asked the office of the State Fire Marshal to give him a letter.

The letter, dated May 1, 1975, from John H. Farrell, Assistant Chief Fire Investigator, referred to an inspection made the day before. It said that the State Fire Prevention Code required that every living unit shall have access to at least two separate exits which are removed from each other by travelling in different directions. The letter also said that the exterior stairs being built would be acceptable as complying with the requirement.

A named protestant, who did not testify, was Glen Wilson, owner of the adjoining property, No. 145 Main Street, a two story single family house, about 14 feet wide. The tenant in that house, a Mr. Hopkins, testified about the effect of the variance on other property.

Leonard E. Wilson testified that he owns and lives in the single family house at No. 147 Main Street. He also owns No. 149, where he maintains a law office, and No. 151. He said that he purchased the property at No. 149-151 in April, 1966. Some time before that, he had been shown the Rooney house, which was listed for sale, and had looked at it with the idea of purchasing it.

Mr. Wilson testified that Mrs. Rooney used the first floor for living and the second floor for sleeping, and there was a separate apartment on the third floor. He said that there was no kitchen facility on the second floor, and the second floor was not used as a separate apartment. Mr. Wilson said that he purchased and moved into No. 147 Main Street in 1967, and saw and visited with Mrs. Rooney in her house on occasion. Several years later, about 1971, Mrs. Rooney had a deck at the rear of the second floor closed in and a kitchen installed. There had been none until that time.

The hearing before the Board of Appeals was held on 25 June 1975. On 21 July 1975, the Board filed a majority opinion in which the requested variance was granted. An order for appeal and the required petition, Maryland Rule B2, were filed in the Circuit Court for Cecil County on behalf of the protestants. The applicant did not intervene. The appeal was heard on the record, supplemented by the testimony of one witness, and on arguments of counsel.

The witness whose testimony was heard by the court was the Assistant Chief Fire Investigator, whose letter was in evidence at the Board hearing. He testified that he wrote the letter after he visited the premises at Dr. Pasqualini's request. He said there was some discussion of the number of dwelling units, but that he did not go inside the premises. He also testified that if there were two dwelling units in the building, his department would have no jurisdiction and no enforcement powers, but if there were three dwelling units in the residence, his office would have jurisdiction, and the letter would be applicable.

The court, J. Albert Roney, Jr., Judge, sustained the order of the Board of Zoning Appeals granting the variance. This appeal was taken by the protestants.

Appellants contend that the lower court erred in holding that the action of the Board of Appeals was not arbitrary, capricious, or illegal, and that the court erred in failing to exercise the proper scope of judicial review in determining the issues. They argue that the Board of Appeals did not comply with the requirements of the zoning ordinance with respect to variances, and that the alleged requirements of the Fire Marshal, upon which the Board placed undue emphasis, were not applicable. Appellants contend that the Board did not make the findings of fact required by the ordinance. Particularly, the appellants emphasize, the Board did not find as a fact whether the structure, at the time it became non-conforming, consisted of three apartments, or two apartments. The issue was a significant and perhaps a controlling one.

The trial judge expressed concern at the close...