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Wm. T. Burnett Holding LLC v. Berg Brothers Co.

Court of Special Appeals of Maryland

December 21, 2017

WM. T. BURNETT HOLDING LLC, et al.
v.
BERG BROTHERS COMPANY, et al.

         Circuit Court for Baltimore City Case No. 24-C-14-002903

          Friedman, Wilner, Alan M. (Senior Judge, Specially Assigned) JJ.

          OPINION

          Wilner, J.

         BACKGROUND

         Appellants, Wm. T. Burnett and Ellicott Dredges, LLC (hereafter referred to collectively as Burnett/Ellicott), and appellee Berg Brothers Company (Berg) are neighbors in the Carroll Camden Urban Renewal Area of South Baltimore. Berg owns two properties, one at 1500 Bayard Street, which it uses as a scrap metal processing yard, and one at 1434-1438 Wicomico Street, an intersecting street, on which it operates a materials recovery facility. Both properties are in an M-2-3 Industrial zone. A scrap metal yard is not a permitted use in an M-2-3 zone, but the yard on Bayard Street has been allowed to continue as a lawfully existing non-conforming use.

         Burnett/Ellicott are adjoining and across-the-street neighbors of Berg's scrap yard and recycling operations. Their facilities are a mixed use of corporate offices, conference and meeting rooms, and manufacturing and warehouse facilities. Their businesses, they claim, attract a lot of customer visits, many of whom "react negatively to Berg's unsightly operations." That negative reaction, they say, has been harmful to them. A particular sore spot was the ten-foot-high metal fence that enclosed Berg's properties. The fence consisted of large steel plates that were bolted together and topped with highway guard rails. Burnett/Ellicott complained to Berg a number of times, to no avail.

         The genesis of what is before us was several violation notices issued to Berg by the City Department of Housing and Community Development (DHCD) over a 14-month period, from December 2011 to March 2013. On December 20, 2011, DHCD issued Violation Notices Nos. 79414A-1 and 79414A-2, both concerning the fencing. No.79414A-1 charged that the fencing at 1434-1438 Wicomico Street was erected without a permit and at a height higher than permitted by the City Building and Fire Code. No. 79414A-2 alleged that the fencing at 1500 Bayard Street also was erected without a permit. Both of those notices directed Berg to remove all work done without a proper permit and to obtain all required permits within 30 days. On March 1, 2013, DHCD issued Violation Notice No. 936053A-1, alleging land use without a proper occupancy certificate or use permit at 1500 Bayard Street. Berg was ordered to discontinue the unlawful use or obtain the proper certificates or permits within 30 days.[1]

         Berg appealed all three notices to the Baltimore City Board of Municipal and Zoning Appeals (BMZA). On July 31, 2012, in response to Notice Nos. 79414A-1 and 79414A-2, Berg requested a variance for a fence ten feet high and 550 feet in length for the Wicomico Street property and ten feet high and 600 feet in length for the Bayard Street property. On March 14, 2013, Berg objected to Notice No. 93605A-1.

         Burnett/Ellicott filed an opposition to all three appeals. With respect to the Bayard Street property, it acknowledged that a scrap metal operation became a lawful non-conforming use in 1972 but argued that that status terminated shortly thereafter when the property ceased being used as a scrap metal yard and was used instead as a parking lot for some period of time. It also asked that the fencing around both properties be removed and replaced with "attractive screening that completely shields from view the junkyard-like operations." In a supplement to its opposition, Burnett/Ellicott argued that the operation on Wicomico Street also was illegal, noting that the 2009 permit for that operation was based on the operation being conducted within an enclosed building and not as an open junk or scrap storage yard.

         The appeals remained dormant until October 2013. During the summer of that year, negotiations involving Berg, Burnett/Ellicott, and DHCD commenced, with a focus on replacing the existing fencing with a more aesthetic wall. Those negotiations eventually bore fruit in the form of an agreement between Berg and DHCD signed on October 15, 2013. Burnett/Ellicott was not a named party to the agreement and did not sign it.

         The Agreement recited that its purpose was to resolve all outstanding violation notices and appeals pending before BMZA regarding uses and structures located at 1500 Bayard Street and 1434-38 Wicomico Street and, to that end, stated that "the parties to this appeal, " which it identified as Berg as the appellant and DHCD as the appellee, "agree to the following facts and terms." The rest of the Agreement was in two parts - a recitation of the procedural history, including the violation notices, the appeals by Berg, and the opposition filed by Burnett/Ellicott - and the remedial terms to which the two parties had agreed.

         The relevant terms were that:

(1) Berg would construct a masonry wall ten feet high and 420 feet in length at 1500 Bayard Street, as depicted on an attached Exhibit B, using the materials described in another attached exhibit, the purpose of which was to screen the contents and activity at both the Bayard Street scrap yard and the Wicomico Street processing yard;[2]
(2)Berg would maintain and operate all structures at both locations in sound condition, in good repair, and in compliance with applicable City health, zoning, fire, and related codes;
(3)During non-operational hours, the stock piles of materials would be maintained so as not to be visible from the sidewalks across the street from the properties;
(4)All construction of the wall and the gates as depicted on the attached exhibit would be completed by March 31, 2014;
(5)Berg would obtain all permits necessary for the construction of the wall and gates, and DHCD would support any zoning variances or minor privilege applications necessary to complete the project;
(6)DHCD agreed that the use at 1500 Bayard Street was and has been a legally existing non-conforming scrap metal processing yard and that the last approved use on Wicomico Street is as a materials recovery facility approved by BMZA in 2008;
(7)The Agreement would not limit the ability of DHCD to secure compliance with other applicable codes and ordinances by any other legal, equitable, or administrative means and not "limit in any way the legal, equitable or administrative rights" of Burnett/Ellicott;
(8)If Berg failed to "materially comply" with the terms of the Agreement, DHCD would issue a Notice to that effect and give Berg ten days to cure the non-compliance; and
(9)If Berg failed to comply with the Notice, "the non-conforming use at 1500 Bayard as a scrap metal processing yard shall be forever terminated, " subject to Berg's right to ...

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