Canada's Tavern, Inc. v. Town of Glen Echo

271 A.2d 664, 260 Md. 206, 56 A.L.R. 3d 1, 1970 Md. LEXIS 756

• Court: Court of Appeals of Maryland
• Decided: December 16, 1970
• Docket: [No. 150, September Term, 1970.]
• Status: Published

Opinions

McWilliams, J.,

delivered the opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 212 infra.

The demise of a nonconforming use and appellants’ efforts to resurrect it require us to construe Section 111-57 (c) of the Montgomery County Code (1965), the pertinent part of which is:

“* * * No nonconforming use, once abandoned, shall thereafter be re-established. For the purpose of this section, ‘abandoned’ shall be defined as the cessation of a nonconforming use for a period of six months or more.” (Emphasis added.)

The facts are simple enough and they seem not to be in dispute.

For an unstated number of years Mrs. Sally Peters has been the owner of No. 2 Harvard Street in the Town of Glen Echo, which is on the north bank of the Potomac River about two and one-half miles northwesterly from the northwestern boundary of the District of Columbia. Her lot is improved by a frame building in which for a period prior to 1968 she operated, as a nonconforming use in an R-60 (single family residential) neighborhood, an establishment known as Canada’s Restaurant. An injury made it impossible for her to work so in December of 1967 she leased the premises to James Dozier who continued the operation of the restaurant. Responding to public pressure the Board of License Commissioners refused to renew Dozier’s liquor license which expired on 30 April 1968. Understandably bitter at this turn of events Dozier shut up shop and retired from the scene. Efforts to find a suitable successor to Dozier were unproductive until the early spring of 1969 when the appellant Canada’s Tavern, Inc. (Canada), became the lessee. It is agreed, however, that during the interregnum, no use whatever was made of the premises. Its requirements having been satisfied and the approval of the County Attorney having been obtained the Department of Inspections and Licenses, on 25 April 1969, issued to Canada a certificate of occupancy.¹ Promptly thereafter the appellee, the Town of Glen Echo (Town) filed its appeal with the County Board of Appeals (Board), charging a misinterpretation of Section 111-57 (c). The hearing took place on 17 July 1969. On 23 September the Board announced its decision, a portion of which follows:

“Based on the testimony and exhibits of record, including the County Attorney’s memorandum, Exhibit 14, the Board finds that the only issue left before it is whether or not the nonconforming use had been terminated at the time the occupancy permit was issued. Based on the evidence, the Board finds that the owner had diligently attempted to find a tenant to continue the operation of the premises as a restaurant. The restaurant remained as it had been without any change and no intention, had been demonstrated that any other use would be made of the property. The only changes were alterations to comply with the safety standard, which would be permitted under the non-conforming use status. The Board cannot find that the Chief of the Building Inspection, Department of Inspection and Licenses, erred in granting the occupancy permit and hereby sustains his decision in issuing the permit.”

The Town appealed to the Circuit Court for Montgomery County and shortly thereafter Montgomery County (County) intervened. The trial judge, Shearin, J., reversed the action of the Board. He rejected the contention of Canada and the County “that the extinguishment of a nonconforming use requires not only a cessation of such use for a period of six months or more, but an accompanying intention to abandon.” Both Canada and the County urge us to reverse Judge Shearin and to reinstate the decision of the Board but we are satisfied that he reached the correct result.

In the appellants’ argument there is discernible but one basic concept, i.e., when the District Council enacted Section 111-57 (c) it did not really mean what it said. We are prompted to paraphrase the deathless dictum of Lord Mildew — if the Council did not mean what it said, it should have said so.² We think the Council not only meant what it said but that the language it chose is clear and unequivocal. Nevertheless we shall consider the appellants’ sophistic endeavors.

They hark back to Landay v. Board of Zoning Appeals, 173 Md. 460 (1938), where we said that abandonment “depends upon the concurrence of two, and only two, factors : one, an intention to abandon or relinquish; and, two, some overt act, or some failure to act * * *.” (Emphasis added.) And, they say, we have indicated our approval of the Landay definition of abandonment in Dorman v. Mayor and City Council of Baltimore, 187 Md. 678 (1947) ; Vogl v. Mayor and City Council of Baltimore, 228 Md. 283 (1962) ; Stieff v. Collins, 237 Md. 601 (1965); and Harris Used Car Co. v. Anne Arundel County, 257 Md. 412 (1970). They continue with the citation of McCoy v. City of Knoxville, 41 Ill. App. 2d 378, 190 N.E.2d 622 (1963), which held that discontinuance means abandonment, adding, in support of McCoy, Smith v. Howard, 407 S.W.2d 139 (Ky. 1966), and Bither v. Baker Rock Crushing Co., 438 P. 2d 988 (Ore. 1968). They go on to argue that since we have used discontinuance and cessation synonymously, Landay, supra at 467, and since abandonment, discontinuance and cessation are “cognative” (we shall assume they mean cognate) terms, the “existing legal requisites of abandonment must be merged into any general definition of [any one of] the [three] words,” thus compelling the conclusion that cessation cannot be used without connoting intent. We are signally unimpressed with this forensic foray. Even a cursory reading of Landay discloses its expressed inapplicability to the case at bar. Speaking for the Court, Judge Offutt said:

“Since the ordinance provides one way, and only one way, in which a non-conforming use may be lost, to supply another way in which such a right may be lost would be to do what the Mayor and City Council alone was authorized to do, but which it refrained from doing. Since, therefore, the ordinance does not provide that mere cessation of the non-conforming use shall prevent its resumption, this court is not authorized to give to such cessation that effect.” Id. at 466-67. (Emphasis added.)

* * *

“The reasoning as well as the conclusions in these cases is consistent with the principle that, unless so stated in the statute, cessation or discontinuance of a non-conforming use without the substitution of another use, or without evidence of an intent to abandon the non-conforming use, will not prevent its resumption.” Id. at 469. (Emphasis added.)

Appellants shrug off the explicit language of Section 111-57 (c) with the argument that it was enacted only for the purpose of clearing up the “time” ambiguities created by Landay and Dorman. This seems most unlikely for, if true, then, in effect, what the Council said was “ ‘abandoned’ shall be defined as the * * * [abandonment] of a nonconforming use for a period of six months or more.” We think the Council, having in mind a larger purpose, intended to align itself with those local governments which have found it desirable to delete the factor of intent in respect of the abandonment, discontinuance or cessation of nonconforming uses rather than continuing to run the gamut of its judicial determination in a succession of infinitely variable factual situations.³

It is suggested that the use of both abandonment and cessation, in the same section, creates an ambiguity. We can think of no reason why this should be so. For instance, there is certainly no ambiguity in the Baltimore City ordinance which provides that “such discontinuance for [six consecutive months] * * * shall constitute an abandonment * * * regardless of any reservation of an intent not to abandon same or of intent to resume actual operations.” We think Section 111-57 (c), while less explicit, is not less clear.⁴

Order affirmed.

Appellants to pay the costs.

1 . The Town, in a footnote to its “Statement of Facts,” indicates that Canada opened for business on 25 April 1969, the day the certificate of occupancy was issued, that it closed again around 1 September, and that on 4 November the restaurant was reopened under a new name.

2 . A. P. Herbert, Uncommon Law 192 (1st ed. 1936). Lord Mildew is the mythical judge.

3 . The legislative history of Section 111-57 (c) seems to support the view we have expressed. The earliest version, enacted in September 1941, appears in the 1950 Montgomery County Code as Sec. 176-10. It provided that “upon * * * discontinuance * * * for a period of one year * * * [the use] shall terminate.” Following a 1953 amendment it appears in the 1955 Code as Section 107-47 (c), which provided that “no nonconforming use, once abandoned, shall thereafter be re-established” and defining “abandonment * * * as the cessation” of the use “for one month or more.” (Emphasis added.) The present section, 111-57 (c), is a re-enactment (without change) of Section 104-48 (c) of the 1960 Code.

4 . It is interesting to note the diverse approaches other counties have taken in attacking nonconforming uses which have ceased for one reason or another. This diversity is all the more reason for reading such ordinances literally without attempting to extract strained interpretations. “[I]n the case of the abandonment of such non-conforming use for the period of one year, the right to continue such original non-conforming use shall cease.” Code of Anne Arundel County, § 13-310 as amended Supp. #5 (1969). “[On] any abandonment or discontinuance of such non-conforming use for a period of one year or more * * * the right to continue or resume such non-conforming use shall terminate.” Baltimore County Zoning Regulations (1955) § 104.1. “No building, structure or premises where a non-conforming use has ceased for six (6) months or more shall thereafter be used * * Carroll County Zoning Ordinance § 4.3 (d). “No building, structure or premises where a non-conforming use has ceased for two years or more shall again be put to a non-conforming use.” Code of Frederick County (1959) as amended § 40-124. “A nonconforming use * * * which shall remain idle and unused for a continuous period of three years, shall be considered abandoned as a non-conforming use * * Zoning Regulations of Howard County (1961) as amended § 20.05. “No non-conforming use may be re-established * * * where such non-conforming use has been discontinued for a period of at least two years.” Zoning Ordinance of Prince George’s County (1949) as amended § 12.41 (b). (All emphasis added.)