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Vogl v. Mayor & City Council of Baltimore

Decided: April 10, 1962.

VOGL
v.
MAYOR & CITY COUNCIL OF BALTIMORE



Appeal from the Baltimore City Court; Prendergast, J.

Henderson, Hammond, Prescott, Horney and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

In April, 1961, appellant applied to the Building Inspector Engineer of Baltimore City for permission to extend his existing 36 by 23 foot non-conforming use printing shop to include an adjoining 18 foot unit, all, originally, being part of a chain garage structure consisting of eight nine foot garages. After denial of the application, an appeal was taken to the Board of Municipal and Zoning Appeals (Board). A hearing was duly held by the Board, and the application disapproved; whereupon an appeal was taken to the Baltimore City Court, and that court affirmed. This appeal followed.

The sole question presented is whether the decision of the Board was supported by substantial evidence within the meaning of the law that an administrative board's decision which

lacks such supporting evidence is unreasonable, arbitrary and capricious.

Appellant is the owner of premises known as 1711 DeSoto Road, located in a residential use district. In the rear of said premises is a ten foot alley. Facing on this alley is a one-story 72 by 23 foot brick building belonging to appellant, which, as stated above, originally consisted of eight nine foot garages. By 1931, when zoning first went into effect in Baltimore, the four easternmost sections were being utilized by the then owner as a machine shop. In 1953, appellant, who had become a nephew-in-law of the owner of the premises and was living at said premises petitioned (in the name of the owner) the Building Engineer for permission "to use [a] portion of garages, formerly used as Machine Shop for printing establishment," stating the building was being "used for 4 garages and a machine shop, [and was] to be used [if permission were granted] for 4 garages and a printing shop." The petition further stated there would be "no alterations." The Building Engineer denied the application, but the Board reversed and granted it, permitting the operation of the printing shop as a non-conforming use in the eastern 36 feet of the building. Baltimore City Code (1950), Article 40, as amended by Sections 13 (a) and (f) of Ordinance 711, approved May 21, 1953.

The present application is based upon the theory that the appellant and his predecessors had used, before 1931 and since, the 18 foot section now under consideration (consisting of two of the former nine foot sections with the partition removed) for storage purposes in conjunction with the machine shop and printing shop operations, thereby establishing a non-conforming use. And as "storage" and "printing establishments" are in the same use classification and the Ordinance, supra, permits a non-conforming use to be changed to a use of the same classification, appellant is entitled to use the section in his printing business.

Appellant testified that his printing business ran into difficulty. As a result he was forced to start over-imprinting soap boxes. The 18 foot section under consideration had been used

by him since 1950 for storage and the "old machinist" (the former owner) had used it since 1928 for spare parts, for lawn mowers and storage of various kinds of supplies. He thought it was part of the 1953 non-conforming use allowed him. When it was called to his attention that he had stated in 1953 that the garages were used for the storage of automobiles, he said if he stated that, "[he] made a mistake -- maybe [he] didn't understand the question." When asked by Judge Prendergast why he did not ask in his application of 1953 that the 18 foot unit adjacent to the printing shop be included in the non-conforming use, he replied: "* * * There's a confusion. When you say 'printing shop,' it used to be garages. I always called them garages. Even the printing shop, I just said garage." When asked further if his 1953 application had not proposed that all of the building, except the 36 foot section occupied by the printing shop, was to be used as a garage (or garages), he said: "I did not mean it; I was confused." He further stated that the partition between the two former nine foot sections (creating the 18 foot unit now under consideration) had been removed "recently."

The appellant produced three witnesses. Carl Exner, who came to this country in 1929 and became acquainted with the "old machinist" in 1930, gave testimony that was not of a very definite or precise nature, as is illustrated by the following ...


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