Kowalski v. Lámar

Court of Special Appeals of Maryland

Kowalski v. Lámar

334 A.2d 536, 25 Md. App. 493, 1975 Md. App. LEXIS 546

CourtCourt of Special Appeals of Maryland

DecidedApril 4, 1975

Docket587, September Term, 1974

StatusPublished

Cited by10 cases

This text of 334 A.2d 536 (Kowalski v. Lámar) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kowalski v. Lámar, 334 A.2d 536, 25 Md. App. 493, 1975 Md. App. LEXIS 546 (Md. Ct. App. 1975).

Pincite

Opinion

Davidson, J.,

delivered the opinion of the Court.

On 7 March 1971 Richard Kowalski, the appellant, filed a complaint with the Department of Permits and Licenses of Baltimore County, alleging that John Lamar, the appellee, 1 was violating the Baltimore County Zoning Regulations 2 (zoning regulations) by operating a commercial fishing business in a residential zone. On 14 February 1972 the appellant filed a second complaint with the Zoning Commissioner (Commissioner) alleging that the appellee was violating the zoning regulations by operating a boat yard in a residential zone. After hearings, the Commissioner found that the appellee was violating the zoning regulations by operating a boat yard and by conducting a commercial business upon land classified in a residential zone. He ordered that such uses cease. The County Board of Appeals for Baltimore County (Board) reversed, and, on appeal to the Circuit Court for Baltimore County, Judge H. Kemp MacDaniel on 11 July 1974 entered an order affirming the Board. This appeal is taken from that order.

Most of the facts are not in dispute. For approximately 30 years the appellee has owned three lots designated on a plat of Bengies Farm Beach (see plat attached hereto) as lots 12, 13 and 16. The appellee’s year-round single family home is located on lot 16, which fronts on Saltpeter Creek. A pier is *495 located on this lot which extends into the navigable waters of the creek.

Lots 12 and 13, which front on Muddy Gut, are undeveloped except for a pier located on lot 13 which extends into navigable waters. In 1971 this pier was improved and extended to a length of 90 feet. There are no other buildings or structures on these lots, nor are any water or sewer facilities or any electrical connections available.

In 1954 the appellant purchased lots 14 and 15 which front on both Muddy Gut and Saltpeter Creek and which are bounded on the east by the appellee’s home and on the south by appellee’s vacant lots. The single family residence located on these lots is owned by the appellant and is occupied by him and his wife on a year-round basis. All of the property owned by the parties is classified in the R.D.P. zone (rural, deferred-planning) and lies in an area devoted exclusively to R.D.P. zoning and uses.

There was uncontradicted and unrefuted evidence to show that within the last two years the pier extending from lot 13 into Muddy Gut has been used extensively for fishing activities. On various occasions as many as nine boats have been moored at the pier or stored on the lots. These boats, of varying sizes, are open and equipped with outboard motors. They belong to the appellee’s son and two cousins of the appellee’s wife. A large number of rolled up gill and fyke nets, seines, boxes, which were utilized to lift the nets full of fish from the water onto the pier, and wooden crates used to package the fish, are stored on the pier. Several truckloads of crushed gravel have been deposited on the lots in order to provide a driveway for the trucks upon which the crated fish are loaded and hauled to the market. At various times as many as six trucks have been parked upon this driveway.

The appellee himself is a plumber who is not engaged in any way in the fishing activities. He has not authorized and does not permit the general public to use the pier extending from lot 13. While he has never leased the pier to anybody, he has given permission to use the pier to his 20 year-old son, Mr. Thomas R. Lamar, and two of his wife’s cousins, *496 Mr. Arnold Clifton Maddox and his son, Mr. William E. Maddox. The appellee obtains no profit or any other return from the use which he has authorized.

Thomas Lamar, who is employed full-time at a hardware company, possesses a “fyke and gill net license.” Arnold Clifton Maddox, who is employed full-time as a longshoreman, has had a commercial fishing license for 18 years. William Maddox also has a commercial fishing license. During January, February and March, at various times when they were not working, such as evenings, Saturdays and Sundays, and depending upon weather and tides, the three men would set out, each in his own boat, often accompanied by a helper, to fish. Upon their return the fish would be hoisted onto the pier, packed into crates, loaded onto trucks and hauled away to the wholesale fish market where they were sold. But for the fact that a sufficient quantity of fish were caught to be sold, the fishing expeditions would not take place. There were no sales of fish conducted on the property nor were there any signs indicating the existence of any business operation on the property.

Section 102.1 of the zoning regulations provides, insofar as here relevant:

“No land shall be used or occupied and no building or structure shall be erected, altered, located, or used except in conformity with these regulations. ...” (Emphasis added.)

Section 1A00.2 of the zoning regulations provides:

“A. Uses Permitted as of Right. The following uses, only, are permitted as of right in R.D.P. zones:

“1. Farms. ..

“2. One-family detached dwellings.

“3. Churches or other buildings for religious worship.

“4. Trailers. . .

“5. Research institutes. ..

*497 “6. Hospitals.

“7. Telephone, telegraph, electrical-power, or other electrical lines...

“8. Other cables; conduits; gas, water, or sewer mains; or stormdrain systems. . .

“9. Railroads or other transportation lines.

“10. Animal boarding places (regardless of class), kennels, veterinarians’ offices or veterinariums. . .

“11. Excavations, uncontrolled.

“12. Schools . . .

“13. Accessory uses or buildings (not subject to the provisions of Section 400), including, but not limited to:

“a. An office or studio of a doctor, dentist, lawyer, architect, engineer, artist, musician, or other professional person, provided that such office or studio is established within the same building as that serving as his bona fide residence . . .

“b. Home occupations as defined in Section 101, also subject to the sign provisions of Section 413.

“c. Parking space, including residential-garage space.

“B. Uses Permitted by Special Exception. The follovñng uses, only, are permitted as special exceptions:

“1. Airports.

“2. Antique shops . . .

“3. Boatyards.

“4. Cemeteries.

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