Trip v. Baltimore

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Trip Associates, Inc. v. Mayor and City Council of Baltimore, No. 58, September Term, 2003. Opinion by Bell, C.J. REAL PROPERTY - LAND USE AND ZONING - NONCONFORM ING USE INTENSIFICATION A temporal increase in the frequency of a valid nonconforming use is not an unlawful expan sion, bu t rather, a n intens ification of that u se. IN THE COURT OF APPEALS OF MARYLAND No. 58 September Term, 2003 TRIP A SSOC IATES , INC. et al, v. MAYOR AND CITY COUN CIL OF BALTIMORE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C. (Retired, Specially Assigned), JJ. Opinio n by Bell, C . J. Filed: May 9, 2006 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 w eek the ap pellants could operate a valid nonco nforming use. T he 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 ad ult entertainment. The Club is owned by the appellant, Anthony Dwight Triplin ( Triplin ), who also is the owner of Triplin A ssociates, Inc. ( Trip ), the o ther appellan t. Triplin purchased 1815-17 North Charles Street, the property at issue, in 1983. Prior to his purchase, the property ha d been a n ightclub fe aturing adu lt entertainme nt, 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 da ncing from five to two nights per week, featuring music and comedy on the other nights. The Board approved his use of the p remise as an after hou rs establishment in 1992.1 With this approval, the adult ent ertai nme nt w as pr esen ted a fter h ours , exc lusiv ely. On December 15, 1994, Ordinance No. 44 3 was enacte d. That ordinance, codified at Baltimore City Code, A rt. 30, § 8.0-6l, reg ulated adu lt entertainment businesses, w here 1 The Baltimore C ity Zoning Code, § 1-10 7 (a), (b), defines after hours establishment to be any banquet hall, dance hall, meeting hall, private club or lodge, or similar place that remains open after 2 a.m. on any day and includes a restaurant that provid es live en tertainm ent or d ancing and rem ains op en afte r 2 a.m. o n any day. persons appea r in a state of total o r partial n udity. 2 It also provid ed that [a]n y adult entertainment business existing on September 10, 1993 is considered a nonconforming use, subject to all Class III re gulation s. 3 Baltimore City Zoning Code § 13-609. A fter this Ordinance was p assed, T riplin continu ed to use the facility as a club th at provided adult entertainment after hours. That use w as unchallenged u ntil April 14, 2000, whe n 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 A dult Enterta inment O rdinance a nd Adu lt Entertainment License. DISC ONTIN UE SA ID USE. REMOVE ALL STOCK, MATERIAL, EQUIPM ENT, AND ANY ADVERTISING SIGNS ASSOCIATED WITH SAID USE. OBTAIN CERTIFICATE OF O CCU PAN CY B EFO RE R E-ES TAB LISH ING A NY U SE. 2 Ordinance No. 443 originated as Bill No. 773, which repealed and recodified with am endm ents O rdinan ce No . 258. See Mayor and City Council of Baltimore v. Dembo, 123 Md. A pp. 527, 530, 719 A .2d 1007, 1009 (1 998). 3 Class III is defined in the Baltimore City Zoning Code, § 13-401. In describing what is regulated by the subtitle, it states: § 13-401. Scope of subtitle. This subtitle applies to Class III nonconforming uses, which comprise: (1) any nonconforming use of all or part of a structure that was designated and erected primarily for a use that is no longer allowed in the district in which it was located; (2) any non conform ing use of the lot on w hich that struc ture is located; and (3) any nonconforming use of land or structures not regulated as Class I o r Class I I. 2 Triplin appealed to the Board. On appeal, Triplin testified that Club Choices f eatured ex otic 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 dancin g with p artial nu dity has be en pres ented tw o night s per w eek sin ce 198 3. The Board ruled: 1. ... [A]dult entertainment may be continued two nights during the week. The Board finds that a non-co nforming use of the p remises fo r adult entertainment had been established prior to Ordinance 443 (adult entertainment business approve d Decem ber 15, 199 4) and m ay be continued under Subsection 13-402[4] of the Zoning Code. The Board finds that with the above condition that the request would not be detrimental to or endan ger the pub lic health, security, general welfare, or morals or be injurious to the use and enjoyment of other property in the immedia te vicinity, nor sub stantially 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 ap pellant is to provide to the Board a cou rt certified cop y 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 adu lt entertain ment to a subse quent p urchas er, own er, lessee or oper ator.... In accordance with the above facts and findings and subject to the aforementioned condition, (adult entertainment two nights a week only) the Board approv es the ap plication . 4 Baltimore City Zoning Code § 13-402 provides: § 13-402. Continuation of use. Except as specified in this article, Class III nonconforming uses of structures may be con tinued, s ubject to the regu lations o f this sub title. Regulations in the subtitle include, e.g., § 13-403, governing the Repairs and alterations of nonconforming use structures, § 13-404, governing the Restoration of damaged structures, and § 13-405, governing the Changes in use of nonconforming use structures. 3 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 o n the tes timony, to two nig hts per w eek. Triplin petitioned the Circuit Co urt for Baltim ore City for jud icial 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 : 5 This rationa le was of fered in an swer to T riplin s motion for recons ideration, in which he claimed that the Circuit Court had reviewed the incorrect Board decision, one filed on March 9, 1992, approving Club Choices status as an after hours establishment, as oppos ed to the Board s findin gs of O ctober 1 2, 2000 . Thereafter, Triplin filed a motion to revise the judgment. In that motion, he maintained that the Circuit Court had erred in its interpretation of the subject zoning ordinance . Particularly, he arg ued that the Circuit Co urt s use of th e word conditiona l was an indication that the court was applying the conditional use standard to the resolution of a nonconforming use problem. Rejecting that argument, the court held: There is no question as to the right of the appellants to continue the enjoyment o f the nonc onform ing use of their premise s for adult entertainment without the necessity of an ordinance, but still subject to the obligation to be licensed for that use. The use of the word conditional was in that contex t. In other wo rds, the non conform ing use itself, b oth with reference to its history and to its c ontempo rary exercise, acc ording to uncontroverted evidence before the Board, was not unconditional. It was condition ed by the limit o f two nig hts per we ek. This histo ric condition , or more a ptly, limit, was con firmed by ap pellants in the ir testimony to the Board. In other words, the exercise of the nonconforming use was, b y its very nature, limited to two nig hts per we ek. App ellants enjoyed a nonc onfor ming u se of ad ult enter tainme nt two n ights pe r week . Consequently, it is fair to clarify the status recognized by the June 14, 2001 opinion of this Court as a nonconforming use of two nights per week, rather than a n oncon formin g use c onditio ned b y a two n ights pe r week limit. Trip Associates, Inc. v. M ayor and City Council of B altimore, Circuit Court for Baltimo re 4 the Board had authority to impose certain conditions when granting the nonconforming use designation to the appellant ¦ There was substantial evidence presented at the Octo ber 13, 200 0 hearing u pon wh ich the Bo ard could re ly upon for the condition. While the Board heard testimony that confirmed the non-conforming use history of its property, the Board also heard testimony that the non-conforming use only occu rred two n ights 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 Cou ncil of Baltimore, Circuit Court for Baltimore City, Case No. 24-C-0 0-005345 (Jun e 14, 2001). Triplin noted a n appe al to the C ourt of Specia l Appe als, Trip Assoc. Inc. v. Mayor & City Council of Ba ltimore, 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 ap pellate court agreed with Triplin that th e 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 Ch oices was neither plain error, 151 Md. App. at 175, 824 A.2d at 982, nor unconstitutional. 151 Md. App. at 177, 824 A.2d City, Case No. 24-C-0 0-005345 (Se ptember 25, 2001 ). 5 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, 82 4 A.2d at 982, the Court o f Special A ppeals interpreted that provision as permitting the Board , because it h ad been p resented w ith 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 sam e way, as perm itting 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 Co uncil v. Gardner, Inc., 293 Md. 259, 268, 443 A.2d 114, 119 (1982). The 6 Baltimore City Zoning Code § 13-406 provides: Except as authorized by the Board under Subtitle 7 { Modifications and Continuances by Board } of this title, a Class III nonconforming use may not be expanded in any manner, nor may any structure be erected or expanded on any noncon forming u se of land, u nless the use of the land and structu re is made to confo rm to the regulati ons of the distric t in whi ch the s tructure is locate d. 7 To the extent that the Court of Special Appeals is viewing the testimony as defining the scope of the nonconforming use, rather than as proof of the fact of the existence of such use, its analysis is flawed. To be sure, a finding that the property was being used in the manner reflected in the testimony is supported by the evidence and constitutes substantial evidence of that fact, as the intermediate appellate cou rt recognized, but that testimony is also support for a finding that the property was being used for a nonco nforming use. T estimony, given at a hearing to de termine whether a property is, or is no t, a valid nonc onform ing use, as to th e manne r in which a property is actually used, simply establishes the nonconf orming use, not its scope. If it w ere otherwise, the intensification cases, discussed infra, would b e underm ined and, e ffectively overru led, and a new doctrin e establi shed. 6 intermediate appellate court also relied on out-of-state cases, in which temporal restrictions placed on the continued use of valid no nconfor ming use s were up held as con sistent with the policy against the expansion of such uses, on the theory that, without them, the nonconforming use would be expan ded. Garb-Ko v. Carrollton Town ship, 86 Mich. App. 350, 272 N.W.2d 654 (1978) (holding that township board could restrict the operating hours of nonconfo rming grocery store in view of the policy against expansion of nonconforming uses); Inc. Vill. v. Hillside Ave. Rest. Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (N.Y. App. Div. 1977) (holding that a n onconformin g use was unlaw fully extended by increase in hours of operation); Time-Low Corp. v. City of LaP orte Bd. of Zoning A ppeals, 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. Town ship of Abington, 301 A.2 d 113 (Pa . Comm w. Ct. 197 3) (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 raise d 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 ma rina was able to rent), Feldstein v. Lavale Zo ning Board, 246 M d. 204, 227 A.2d 73 1 (1967) (in creasing qu antity and height of scrap metal stored in junkyard), and Nyberg v. Solm son, 205 Md. 150, 106 7 A.2d 483 (1954) (increasing the parking and storage of cars on a noncon forming lo t) recognized a distinction between the more intensive use of property and the expansion of a nonconforming use, the intermediate appellate cou rt characterized a temporal modification of a nonconforming use as an expansion of that use, rather than a me re intensificatio n of it. In justification of that characterization, the court said: [T]o hold that a temporal extension of operating hours is an intensification, not an expansion, of a non-conforming use undermines governmental efforts to reconcile p ublic policy with private interest. If we were to so rule, localities would be presen ted with the harsh choice of either tolerating the growth of an undesirab le use or elimin ating it all together. Depriving localities, as such a ruling would, of a milder-alternative that of restricting a nonconforming use to its current level ben efits neither the regulating locality nor nonconforming property owners, whereas holding, as we do, that the Board had a right to contro l tempo ral expa nsions of use accom moda tes the in terests o f both. 151 Md. App. at 180-181, 824 A.2d at 985.8 8 The Court of Special Appeals was aware of Green v . Garrett, 192 Md. 52, 63 A.2d 32 6 (1949). In deed, the C ourt of Sp ecial App eals conce ded that Green does support Triplin s view tha t a temporal expansion of a nonconf orming use is a me re intensification of the use and not an unlawful expansion. It dismisses Green as of little precedential value, reasoning: Green was decided before the zoning administrative process was created. Therefore, considerations such as the deference owed an administrative body's interpretation of its governing statute and the substantial evidence rule playe d no ro le in the C ourt's de cision. Trip Associates, Inc. v. M ayor and City Council of B altimore, 151 Md. App. 167, 180, 824 A.2d 977, 985 (2003). It added: [T]o hold that a temporal extension of operating hours is an intensification, not an expansion, of a non-conforming use undermines governmental efforts to reconcile public policy with private interest. If we were to so rule, localities would be presented with the harsh choice of either tolerating the growth of an undesirable use or eliminating it altogether. Depriving localities, as such a ruling would, of a milder alternative-that of restricting a nonconforming use to its current level-benefits neither the regulating locality nor non-conforming property owners, whereas holding, as we do, 8 Triplin filed a petition with this Court for a w rit of cer tiorari, w hich w e grante d. Trip v. Baltimore, 377 Md. 112, 832 A.2d 204 (2003). We shall reverse. A. Title 13 of the Baltimore City Zoning Code establishes the z oning districts in Baltimore, and provides for the regulation of nonconforming uses and noncomplying structures existing in the various districts. Baltimore City Zoning Code § 13-102. Under the Baltimore City Zoning Code, a nonconforming use is defined as any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located. Baltimore City Zoning Code § 13-101(c). A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-p ermitted . See, e.g., Chayt v. Board of Zoning A ppeals of B altimore C ity, 177 Md. 426, 434, 9 A.2d 747, 750 (1939) (concluding that, to be a non conform ing use, an e xisting business use must have been known in the neighborhood as being em ployed for tha t given purp ose); Lapidus v . Mayor and City Counsel of Baltimore, 222 Md. 260, 262, 159 A.2d 640, 641 (1960) (noting that an applicant claiming that a nonconforming use had been established before the effective date of the city zoning ordinance needed to prove that the use asserted existed prior to the date of the ord inance); that the Board had a right to control temporal expansions of use accom moda tes the in terests o f both. Id. at 180-181, 824 A.2d at 985. We are not persuaded, the reasons for which we shall demonstrate infra. 9 Vogl v. City of Baltimore, 228 Md. 283, 288, 179 A.2d 693, 696 (1962) (holding that the party claiming the existence of a nonconforming use has the burden of establishing the existence of the use at the time of the passage of the prohibiting zoning ordinance ). See also Lone v. M ontgom ery County, 85 M d. App . 477, 49 6, 584 A .2d 142 , 151 (1 991). As the Court of Special Appeals recognized, nonconforming uses are not favored. County Council v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 ( These local ordinances must be stric tly construed in o rder to effectuate the purpose of eliminating nonconforming uses. ); Grant v. Mayor and City Council of Baltimo re, 212 Md. 301, 308, 129 A.2d 363, 365 (1957) ( Indeed, there is general agreeme nt that the fun damenta l problem f acing zon ing is the inability to eliminate th e noncon forming u se ); Colati v. Jirout, 186 Md. 652, 657, 47 A.2d 613, 615 (1946) (noting that the spirit of the Baltimore City Zoning Ordinance is against the extension of non-conforming uses). Indeed, in Grant, this Court stated, [T]he earnest aim and u ltimate purp ose of zo ning wa s and is to red uce nonc onform ance to conformance as speedily as p ossible with due regard to the legitima te interests of all conce rned. 212 Md. at 307, 129 A.2d at 365. The context for this conclusion was the historical development of the nonconforming use, which the Court also detailed: Nonconforming uses have been a problem since the inception of zoning. Originally they were not regarded as serious handicaps to its effective operation; it wa s felt they w ould be few and likely to be eliminated by the passage of time and restrictions on their expansion. For these reasons and because it was thought that to require immediate cessation would be harsh and unreasonable, a deprivation of rights in p roperty out of p roportion to the public benefits to be obtain ed and, so, u nconstitution al, and finally a red flag to property owners at a time when strong opposition might have jeopardized the chance of any zoning, m ost, if not all, zoning ordinances provided that lawful 10 uses existing on the effective date of the law could continue although such uses co uld not thereaf ter be be gun. Id. Nevertheless, a nonconforming use is a vested right entitled to constitutional protecti on. Amereihn v. Kotras, 194 Md. 591, 601, 71 A .2d 865, 86 9 (1950). T he Cou rt in Amereihn made that point forcefully. There, after the area in which a light manufacturing plant was loca ted was z oned as re sidential, the neighbors brought a complaint, praying that the new owners of the plant be restrained from using the property for manufacturing purposes . This Cou rt, in ruling aga inst the neigh bors, pointed out: If a property is used for a fact ory, and thereafter the neighborhood in which it is located is zoned residential, if s uch regu lations applie d to the fac tory it would cease to exist, and the zoning regulation would have the effect of confiscating such property and destroying a ve sted right therein of the ow ner. Manife stly this cannot be done, b ecause it would amount to a confiscation of the pro perty. 194 Md. a t 601, 71 A.2d a t 869 (c itations o mitted). See also Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389, 114 A.2 d 626 (19 55), in which the Court of Appea ls held that an owner of a truck manufacturing plant on land that had been rezoned as residential had a valid nonconforming use, observing, [t]he law is established that the zoning of an area as residential cann ot apply to a previously established factory in that area, which is entitled under t he circu mstanc es to co nstitution al protec tion. 207 Md. at 394, 114 A.2d at 628. A noncon forming u se may be red uced to conformance or eliminated in two ways: by amo rtization , that is, requiring its termination over a reasonable period of time, and by 11 aban donm ent, i.e. non-use for a specific of time. Thus, in Grant, the Court held that an amortization period of f ive years to rem ove non conform ing billboard s was valid , and that a five-year period w as not an arb itrary time pe riod. 21 2 Md . at 316, 1 29 A.2 d at 370 . See Donne lly Advertising Corp. of Maryland v. Mayor and City Council of Baltimore, 279 Md. 660, 671, 37 0 A.2d 1127, 1 134 (1 977). See also Chesapeake Outdoor Enterprises, Inc. v. Mayor an d City Council of Ba ltimore, 89 Md. App. 54, 597 A.2d 503 (1991) (holding that even assuming a valid nonconforming use, municipality was nonetheless entitled to summary judgment requiring tha t signs be tak en dow n, because ordinance s contained amortization periods, validated by court decisions, requiring that such signs be taken down over a period of time even if constituting nonconforming uses, and all such amortization periods had long since expired); Harris v. Mayor and C ity Council of Baltimore, 35 Md. App. 572, 371 A.2d 706 (1977) (holding that a court is not restricted, in determining constitutional reasonableness of amortization provision, to consideration of the original amortization period or its later extension, due to the passage of time since the enactment of those provisions). So long as it provides f or a reason able relations hip betw een the amortization and the nature of the nonconforming use, an ordinance prescribing such amortization is not unconstitutional. Gough v. Board o f Zoning Appea ls for Calve rt County, 21 Md. App. 697, 704-705, 321 A.2d 315, 319 (1 974). See also Grant, 212 Md. at 316, 129 A.2d a t 370, Colati, 186 Md. at 657, 47 A.2d at 615. The Baltimore City ordinanc e takes the abandon ment approach. Section 13-406, as we have seen, prohibits the expansion of any nonconforming use, except as authorized by 12 the Board.9 Und er § 1 3-40 7, D iscontinuance or aban donmen t, the fai lure activ ely and continuou sly to operate the nonconforming use results in its abandonment. That section provides: (a) Discontinuance or abandonment (1) Except a s specified in this section, whenever the active and continuous operation of any Class III nonconforming use, or any part of that use, has been discontinued for 12 consecutive months: (I) the discontinuance constitutes an abandonment of the discontinued nonconforming use, or discontinued part of that use, regardless of any reservation of an intent to resume active operations or otherwise not abandon the use; and (ii) the discontinued nonconforming use, or discontinued part of that use: (A) may not be reestablished; and (B) any subsequent use of any part of the land or s tructure prev iously used for the discontinued use, or discontinued part of that use, must conform to the regulations of the district in which the land or structure is located. (2) In accordance with Subtitle 7 { Modifications and Continuances by Board } of this title, the Board may extend the time limit for discontinuance for 1 or more additional periods. In no case, however, may the total of the additional time exceed 12 mo nths. 9 The Board authorization is pursuant to Subtitle 7. That Subtitle, captioned Modifications and Continuances By Board, permits the Board to modify, that is, expand, change, alter, or move, § 13-701, an existing nonconforming use. 13 Abandonment, as the foregoing ordinance confirms, focuses not on the own er s intent, but rather, on w hether the o wner fa iled to use the property as a nonconforming use in the time period specified in the zon ing ord inance . See Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 56 0, 581, 709 A.2d 74 9, 759 (19 98) ( Th ere is no har d and fas t rule in nonconforming use abandonments that intent to abandon must be actually shown when the zoning ordinance or statute utilizes the word aband onment ). On the other hand, the abandonment or discontinuance must be active and a ctual. In Mayor and City Co uncil of Baltimore v. Dembo, Inc., 123 Md. App. 527, 719 A.2d 1007 (1998), the Court o f Special A ppeals disc ussed w hether the failure of a pro perty owne r to apply for a license to operate an adult entertainment business after the passage of an ordinance, in that case, Ordinance 443, the same one as involved in this case, which prohibited such business in the district in whic h it was loca ted, constituted abando nment of the nonco nforming use, notw ithstanding th at he had a ctually used the property in that nonconforming manner throughout the subject period. There, Donald Dembo owned an adult entertainment establishment called the Gentleman s Gold Club ( the Gold Club ) which, like Triplin s club, was located in a zoning district in which it was not permitted. Like Club Choices, ho wever, the Gold Club s use was a valid nonconforming use, having pre-existed the ordinance that excluded that use. The city argued that, b y using the pro perty without the required license for two years, Dembo had essentially terminated his once lawful nonconforming use. Addressing for the first time whether or not a failure to a pply for a license constituted an abandonment of a lawful nonconforming use, the Court of Special 14 Appeals, after analyzing how other jurisdictions approached the issue, concluded: We shall follow the majority of jurisdictions and apply the rule that a valid nonconforming use will not be forfeited by the failure of the business owner to secure a license to operate his business. We consider that this rule accords reasonab le protection to the property right that has been long recognized under Marylan d law a s a veste d right su bject to c onstitutio nal pro tection. 123 Md. A pp. at 541, 719 A.2d at 10 15. Furthe rmore, the C ourt of Sp ecial App eals held that, even without the license, Dembo retain[e d] its vested n onconfo rming use status to operate a business with adult entertainment... . There is no issue with regard to Club C hoices status; it is a valid Class III nonconforming use property under § 13-60 9 of the Zonin g Cod e. It is an adult-entertainment business, presently existing, that was also operating as such on September 10, 1993, as § 13609 specifies. As to that status, there is no contention that Triplin has abandoned or discontinued it, at least in whole. The issue is, as the Court of Special Appeals has framed it, whether using the v alid nonconforming use more frequently than it was being used when the use became nonconforming - presenting adult entertainment more than two nights per week - would be a prohibited expansion of the use or a mere intensification of the use. B. Despite Marylan d s we ll settled p olicy agai nst non confo rming u se, see County Counc il v. Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 ( Whether a nonconforming use can be cha nged, e xtende d, enlarg ed, altere d, repaired, restored, or recommenced after abandonment ordinarily is governed by the provisions of the applicable local ordinances and regulations ... [t]hese local ordinances must be strictly construed in order to effectuate the 15 purpose of eliminatin g nonco nforming uses ); Colati v. Jirout, 186 Md. at 655, 47 A.2d at 614 ( [T]he [Baltimore City] Zoning Ordinance prohibits generally the extension of a non-conforming use except to the portion of the building designed for such use at the time of the passage of the ordinance, and ... the stopping of expansion of a non-conforming use is not an arbitrary or unrea sonable ex ercise of go vernmen tal power ); Grant, 212 Md. at 307, 129 A.2d at 365 ( [T]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitima te interests of all concerned ), and the Baltimore City Zoning Code s explicit prohibition against expansion of those uses, Baltimore City Zoning Code § 13-406, Maryland recognizes, and our cases have held, that an intensification of a nonconforming use is permissible, so long as the nature and character of that use is unch anged and is su bstantia lly the sam e. See Feldstein v. Zoning Bo ard, 246 Md . 204, 211 , 227 A.2d 731, 734 ; Jahnigen v. Staley, 245 Md. 130, 137, 225 A.2d 277, 281; Nyberg v. Solmson, 205 Md. 150, 161, 106 A.2d 483, 488; Green v. Garrett, 192 Md. 52, 63, 63 A.2 d 326, 3 30. See also Kas tend ike v . Bal timo re A ss'n for Retarded Children, Inc., 267 M d. 389, 396 -98, 297 A .2d 745, 74 9-50 (197 2); Parr v. Bradyhouse, 177 Md. 245, 247, 9 A.2d 751, 752 (1939) (determining that rental of tract of land formerly used for a dairy business for riding academy did not affect the right to use the land as a non-con forming use, as it was sim ply a change from fro m cows to ho rses). In Green, supra, 192 Md. 52 , 63 A.2d 3 26, citizens o f Baltimo re City sough t to enjoin the Department of Recreation and Parks of Baltimore City and the Baltimore Baseball and Exhibition Comp any from allo wing pro fessional b aseball to be played at Baltimore Stadium, 16 and further to enjoin the use of the loud speaker system, the flood lights, and the parking facilities nearby. Baltimore Stadium w as construc ted prior to 19 31, whe n the district in which it was located was rezoned residential, 192 Md. at 63, 63 A.2d at 330, after w hich it was used infrequently for footba ll games, track meets and c ivic events. It was used m ore frequently after 1939, when lights were installed, a speaker system having been installed earlier. 192 Md. at 57, 63 A.2d at 32 7-328. Th at increased use consiste d mainly of footba ll games and other events, not baseb all games. In 1944, ho wever, a f ire destroyed the baseball stadium, then known as Oriole Park. This resulted in more baseball games being played at Baltim ore Sta dium. 1 92 M d. at 57- 58, 63 A .2d at 32 8. When that occurred, neighboring citizens contended that the use of the Stadium for baseball games for a considerable portion of the yea r was an e nlargeme nt of the va lid nonconforming use of the Stadium and, therefore, contravened the zoning ordinance. 192 Md. at 63, 63 A.2d at 330. They pointed out that, when the zoning ordinance was enacted, the nonconforming use consiste d of prof essional fo otball gam es and the in frequent, at best, baseball game. This Court disagreed. Id. Acknowledging that the spirit of the zoning ordinance is against the extension of non-conforming uses and that such uses should not be perpetuated any longer than necessary, we observed: We have nev er held that the more freq uent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable. Nor does it seem to us th at a different use is made of the Stadium when the players of games there are paid. The use of the property remains the sam e. 17 192 Md. a t 63, 63 A .2d at 33 0. This Court concluded, we find that the Department had and has power to lease the Stadium...for the purposes of professional baseball, and that such use is not an extension of the non-conforming use heretofore existing... 192 Md. at 63-64, 63 A.2d at 330-331.10 In Nyberg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954), this Court addressed the question of whether increased usage of nonconforming property constituted an unlawful extension of that use or was simply an intensification of the use. At issue was property on which a garage had been built in 1920, on wh ich cars of nearby residents w ere parked. In front of the garage was an open area, some 164 feet by 129 feet. 205 Md. at 153, 105 A.2d at 484. In 1931, after the neighborhood where the garage was located had been classified as a residential use district, the garage operation continued without change. 205 Md. at 153, 105 A.2d a t 484. In 1950, the owners of the garage contracted with a new car compan y to 10 As impo rtant to the C ourt of Sp ecial App eals as its perce ption that Green v. Garrett, 192 Md. 52, 63 A.2d 326 (1949) has limited or no precedential value, 151 Md. App. at 18 0, 824 A .2d at 985, is th e fact that: In limiting the presentation of adult entertainment by the club to its present level, the Board interpreted this prohibition against expanding a nonconforming use to include a temporal expansion of such a use. As an interpretation and application of a law which the Board administers, that decision must be give n considerable we ight. Id. at 175, 8 24 A.2 d at 982 , citing and quoting Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 , 381 (1999). We disag ree. To be sure, defere nce shou ld be given to the interpre tations of the ir enabling legislation by the agencies charged with administering them. That does not mean , howe ver, me re acqu iescenc e or abd ication o f the jud icial resp onsibility. Notwith standing the deferenc e due the a gency, it is alwa ys within our p rerogative to determine whether an agency s conclusions of law are correct. Kushell v. Department of Natural Resources, 385 Md. 563 , 576, 870 A.2d 1 86, 193 (2005). 18 use the open space for the storage of new cars. 205 Md. at 154, 105 A.2d at 484. In 1953, a complain t was made by neighbors that the property was being used in violation of the zoning ordinance. 205 Md. at 154, 106 A.2d at 484. The Board of Municipal and Zoning Appea ls held that, while the garage owner had a valid nonconforming use for parking, storage and washing motor vehicles and the sale of gasolene and accessories, that use was restricted by the nature and extent of the use to which the open area in front of the garage was put in 1931, the result of which was that no more than ten vehicles could be stored on the lot at any one time. 205 Md. at 154, 106 A.2d at 484-485. The Baltimore City Court reversed, striking down the restriction since it amounted to an attempted prohibition of a legally valid intensification of use. 205 M d. at 156, 106 A.2d at 485. On appe al, this Court rejected the appellant s argument that, without the restriction the zoning board placed on the number of cars that could be stored in the open space, there would be a prohibited extension of a non-conforming use. 20 5 Md. at 1 61, 106 A .2d at 488. E xplaining o ur decision , this Court held: [H]ere there is not an extension but merely an intensification of a long continued non-conforming use. In Green v . Garrett, . . . [t]his Court held that . . . more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenab le. . . . It was held that although there was no doubt that the games played at the stadium had produced a use greatly in excess of the former use, that intensification was not an extension within the meaning of the Zoning Ordinance. We think that the present case is controlled by the principle of the Green case and that the court below was right in striking down the restriction which the 19 Board had placed on the use of th e open sp ace in fron t of the gara ge, and in affirm ing oth erwise the find ings of the Bo ard. 205 M d. at 161 -162, 1 06 A.2 d at 488 , citing and quoting Green, 192 Md. at 63, 63 A.2d at 330. Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967), is similarly instructive. There, a decree by the Circuit Cou rt for An ne A rund el Co unty, in addition to restrictions relate d to and involving expansions of physical facilities, including the extension of a pier, occurring after the zoning which p rohibited an y non-conf orming u se to those u ses in effect prior to the date of its adoption, 245 Md. at 133, 225 A.2d at 279, restricted the nonconforming use of marina property to the rental of seven rowboats. The waterfront property had been used by its previous owners as a boat rental property dating from 1946, when a pier was a ttached to the land, and continuing after 1949, when a comprehensive zoning ordinance rezoned the land an d place d the pr operty into an agric ultural c lassifica tion. On appeal, this Court reaffirmed the principle that although the purpose of zoning regulations is to restric t rather th an to ex pand n oncon formin g uses, Phillips v. Zoning Commissioner, 225 Md. 10 2, 169 A.2d 41 0 (1961), an intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the sam e facilitie s are use d. 245 M d. at 137 , 225 A .2d at 28 1, see also Nyburg, 205 Md. 1 50, 106 A.2d 4 83. While physical expansions like constructing a new pier and use of the land for services other than what was already present prior to the effective date of the ordinance were held to be invalid extensions of the nonconforming use, 245 Md. at 138, 225 20 A.2d at 282, this Court decided that [a]ny increase in the number of rowboa ts rented w ould be an intensification of [the] non-conforming use and would not be an extension. 245 Md. at 138, 225 A.2d at 282. The intensification of a non-conforming u se, in short, is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used. 245 Md. at 137, 225 A.2d at 281. To like effect is Feldstein v. LaVale Zoning Board, 246 Md. 204, 227 A.2d 731 (1967). In that case, the issue involved whether the expansion of a high rise junkyard owned by the appellant was an extension of a nonconforming use or an intensification of a nonco nform ing use . The junkyard, operating since 1939, was surrounded by property that was later rezoned for residential use. The junkyard was recognized as a nonconforming use; however, the zoning ordinance provided that all presently existing junkyards must be screened within a year by the erection of a fence or wall or by the planting of trees, shrubbery or other planting. 246 Md. at 207-208, 227 A.2d at 732. The appellant had stacked scrap metal higher than it was able to be concealed. The zoning board alleged, on that basis, that the owner had unlawfully expanded the nonconforming use, and soug ht an order p ermanen tly enjoining the extension of the junkyard beyond the area occupied at the time the zoning ordinance was adopted. 246 Md. at 208, 227 A.2d at 732. The chancellors who heard the cases11 found that the stacking of junk was not an extension of the nonconforming use, in violation of the zoning ordinance; rather, it was, they 11 Two ju dges, Ha rold E. Na ughton an d James S . Getty, sat for this zo ning case in the C ircuit Co urt for A llega ny Co unty. 21 concluded, an intensification of that use. 246 Md. at 209, 227 A.2d at 733. This Court agreed: The zoning ordina nce ... provides that a nonconforming use shall not be extended, but that does not mean that the vested nonconforming use of the junkyard owner could not be lawfully intensified. The chancellors held that the increase in the quantity and height of the stored scrap metal was an intensification and not an extension under the law. We agree. . . . While a nonconforming use should not be extended or perpetrated longer than nece ssary, the more frequent present use of property for the same or a similar use than that for wh ich it had be en used les s frequen tly theretofore w as held to be an intensif ication a nd not a n exten sion. 246 Md. a t 211, 22 7 A.2d at 734, citing Green, 192 Md. 5 2, 63 A .2d 326 , Nyburg, 205 Md. 150, 106 A .2d 483 . Jahnigen, 245 Md. 130, 22 5 A.2d 277. See also County Comm issioners of Carro ll County v. Zent, 86 Md. App. 745, 587 A.2d 1205 (1991), in which the Court of Special Appeals, addressing a parcel of land in Carroll County, Maryland, that was zoned for agricultural use in 1965, but had had a milk delivery trucking business on its land since 1923, opined that an increase in the number of decommissioned delivery trucks stored for parts on property own ed by the business would be an intensification of the nonconforming use for which it was using the property, not an illegal extension. 86 Md. App. at 757, 587 A.2d at 1211. In these cases, we have consistently held that merely increasing the frequency of a nonconforming use did not constitute an unlawful extension; rather, it was but an intensification of the use. The Court of Special Appeals distinguishes these cases on the basis that none of them, with the exception of Green, dealt with the situation pres ented in this case: 22 But none of these cases involved an expansion of the temporal limits of operation. Each concerned, at most, increasing the amount of business performed within an existing temporal framework-in other words, intensifying the use of the p remise s during existing busine ss hour s. 151 M d. App . at 179- 80, 824 A.2d a t 984-8 5. To be sure, as the intermediate appellate court noted, the cases, with the exception of Green, do not address the situation sub judice. On the other h and, Green did not draw, expressly or otherw ise, the distinction that the Co urt of Spe cial Appe als draws; w e did not, in Green, say, or signal in any way, that any increase in the nonconforming use, except temp orally, by adding days or hours of operation, would be an intensification, but that the temporal modif ication w ould be an unla wful e xpans ion of th e use. We do not read the cases so narrow ly. In each of the cases, the frequency of the use of the subject property in the nonconforming manner was increased, often significantly so, without regard to the ho urs of operation. Their focus was, as it should be, on th e act ual u se made o f the prop erty, not the times w hen tha t use oc curs. If the intermed iate appellate court is cor rect, Green is no longer good law and our definition of intensification is misleading, if not largely m eaning less. Indeed, the concept of intensification would have no meaning at all in the nightclub context, or in any other where there are discrete hours of operation, such as retail. In Feldstein, we distinguished an intensification of a nonc onform ing use fro m an ex tension of such use, n oting that the former is the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore. 246 Md. at 211, 227 A.2d at 734. 23 Increasing the numb er of nights on which adult entertainment is presented at Club Choices from two to five, for example, would fit within the definition of intensification - it would be a more frequent present use of property for the same or a similar use than that for which it had been u sed less freque ntly thereto fore. In fact, that was the rationale for Green; going from infrequent baseball games to their presentation for much of the year seems a similar, if not ide ntical, sc enario. As we have seen, the Court of Special Appeals views Green as being of little precedential value, 151 Md. App. at 180, 824 A.2d at 985, if not inapplicable. We have not overruled Green, we do not now do so. Moreo ver, we are not at all sure of the accuracy of the intermediate appellate court s observation with respect to the timing of the Green decision, before the zoning administrative process was created, 151 Md. App. at 180, 824 A.2d at 983, with the result that the deference owed an adm inistrativ e body's interpretation of its governin g statute and the substan tial evidence rule played no role in the Cou rt's decisio n. Id. The zoning o rdinance w as enacted in 1931 an d we can assume th at its implementation was entrusted to an administrative agency. The case did not proceed through the administrative process, however. It was an action for injunctive and declaratory relief. Therefore, the administrative agency was not called upon to, and, thus, did not opine on the subject. Had it done so, the deference due it would not have carried the day. The Court, in any event, would have been required to decide whether that conclusion of law, to which deferenc e was du e, was cor rect. 24 Nor are we pe rsuaded b y the out-of-sta te cases upon which the appellees and the Court of Spe cial Ap peals re lied. Garb-K o v. Carrollto n Tow nship, 86 Mich. App. 350, 272 N.W.2d 654 supp orts the prop osition for w hich it is offered , the Court of Appeals of Michigan having answered in the affirmative the question, whether the extension of hou rs of a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township. 86 Mich. App. at 352-353, 272 N.W.2d at 655. It did so, however, on the basis of the following Michigan policies: that the continuation of a nonconforming use must be substantially of the same size and sam e essential na ture as the us e existing at th e time of p assage of a valid zoning ordinance and that [t]he policy of the law is against the extension or enlargement of noncon forming u ses, and zo ning regu lations shou ld be strictly constru ed with respect to expan sion. Id. at 353, 272 N.W.2d at 655, quoting Norton Shore s v. Carr, 81 Mich. App. 715, 720, 265 N.W.2d 802, 805 (1978); Dearden v. Detro it, 70 Mich. App. 163, 169, 245 N.W.2d 700, 703 (1976); White Lake Township v. Lustig , 10 Mich. App. 665, 674, 160 N.W.2d 353, 357 (1968). These policies would prohibit the distinction between intensif ication a nd exp ansion that is, an d long h as been , recogn ized in M aryland. Time-Low Corp. v. City of LaPorte Bd. of Zoning Appea ls, 547 N.E .2d 877 (In d. Ct. App. 1989) also is distinguishable from the case sub judice. Time-Low purchased a plot of land on which there was a filling station and then applied for a building permit to convert the filling station to a convenience store and gas station. The L aPorte Board of Zonin g Appe als 25 issued the building permit, but limited the hours of operation of the convenience store. As relevant, LaPorte s Zoning Ordinance Code provided: 18.57.030 Change to other nonconforming use. A. A nonconforming use may not be changed to any other nonconforming use without the permission of the board of zoning appeals regardless of whether or not structural changes are made or required to be made in the building or premises. B. A nonconforming use changed to a conforming use may not thereafter be changed back to any nonconform ing use without the pe rmission of the board of zoning appeals. (Prior code § 29-96) ****** 18.57.060 Remodeling, addition to or alteration of existing use. A lawful no nconfor ming use existing at the time of the passage of the ordinance codified in this title shall not be remodele d, added to or structurally altered without the permission of the board of zoning appeals. (Prior code § 29-99) The Court of Ap peals of Indiana, Third District, agreed that the change in nonconforming use that the applicant sought requ ired approval by the Board , and, thus, was subject to B oard regulation. 547 N.E.2d at 879. In support of its conclusion, the court id entified a list of physical changes, which it characterized as extensive and which it determined required Board approval. 547 N.E.2d at 879. Accordingly, it was in this context that the court stated: The Board o f Zoning Appea ls.... may use its judgment a nd discretion in making such modification of the [building commissioner s] order and attach such conditions and restrictions to the granting of a variance as in its opinion should be made, so that the spirit of the ordinance shall be observed and substan tial justice done. 547 N.E.2 d at 880 , citing City of E. Chicago v. Sinclair Ref. Co., 232 Ind. 295, 313-314, 111 N.E.2d 459, 46 7 (1953). 26 The other tw o cases , Inc. V ill. v. Hillside Ave. Rest. Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (App. D iv. 1977), and Cornell U niforms, In c. v. Tow nship of Abington, 8 Pa. Cmwlth. 317, 30 1 A.2d 173, 17 6 (197 3), are b oth distin guisha ble and unpers uasive . Cornell Uniforms, like Time-Low, involved temporal restrictions imposed in the wake of the substantial physical chan ges to the pr operty that the ap plicant soug ht when changing its nonconforming use. In Inc. Vill., while the court upheld restrictions placed on the operating hours of an adu lt entertainme nt club, its rationa le for doing so is, to say the least, sparse; the court provides little in the way of reasoning as to why it po ssessed the authority to temp orally restrict th e hours of the n oncon formin g use. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THAT COURT FOR E NTRY OF A JU DGM ENT IN FAVOR OF THE PETITIONER. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE M A Y O R A N D C I T Y C OU N C I L O F BALTIMORE. 27

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