Posted by: Patricia Salkin | October 24, 2011

MD Appeals Court Upholds Permit for Nonconforming Use and Finds No Problem with Board Member Participating in Meeting Via Telephone

Property zoned for residential use had a restaurant as a nonconforming use when it was sold to defendant Yim in 2006.  In 2008, the restaurant/bar that was operating there went out of business.  Subsequently, Yim leased the land to another individual who intended to open a restaurant and serve liquor.  Yim filed a permit application with the city to get approval for the continued nonconforming use.  After granting zoning approval with a draft permit, the city voided the permit for reasons that were unclear.     

Yim appealed and the zoning board held a hearing and heard various testimony.  Yim argued that the property had been used as a restaurant for a long period of time and that renovating the property into residential units would cost more than one would receive as profit.  Those opposing the variance argued that the time period between the original restaurant leaving in 2008 and the establishment of another restaurant exceeded one year, the time period constituting abandonment and discontinuance of the nonconforming use.  The board ultimately issued findings and released its decision that the first floor of the building could be used as a restaurant but imposed certain conditions on operating hours.  Yim appealed to the Circuit Court, seeking the court to uphold the decision but dismiss the conditions.  The Circuit Court agreed with Yim and found the restrictions were error but upheld the remaining parts of the board’s decision. 

First, appellants argued that the provisions the zoning board relied upon in making their decision were subsequently repealed and their decision must be reversed.  The court deals with this issue by exploring the zoning regulations before and after the board’s decision.  The prior zoning laws included an exception to abandonment (which Yim’s property could have fallen into.)  Subsequent amendments deleted this exception.  The court found that this change may have warranted a reversal, except, it was clear from the board’s decision that they did not expressly apply this section.  The board had held that there was no evidence that the nonconforming use was discontinued, so, there was no need for the exception to apply.  The board did state, noted the court, that that section may have applied in the alternative. 

Second, the appellants argued that the board did not comply with the Open Meetings Act, requiring public open meetings before making decisions.  Specifically, the appellants argued that the resolution was not signed and that one member was absent from the meeting but participated via conference call.  The court said, in regards to the signing of the resolution, that appellants failed to present, and they found, no law mandating the resolution be signed.  Thus, appellants did not meet their burden of showing a violation of the Open Meetings Act by an unsigned resolution.  

Next, the court discussed the conference call.  Although there is no case law in Maryland allowing or disallowing participation in a meeting by speakerphone, the court looked to decisions of other states.  Specifically citing decisions from Illinois and Michigan, the court decided there is nothing prohibiting participation in a meeting via speakerphone.  In noting that the individual on speakerphone was heard by attendees and included in the record of the day, the court found nothing wrong with participation by speakerphone.  

Appellants’ third argument was that the board’s finding was unsupported and actually in contradiction to direct, undisputed testimony.  The court found that appellants failed to submit evidence that the nonconforming use had been either discontinued or abandoned.  Here, the court made a point that the inquiry has nothing to do with Yim’s intent for the law but that is solely based on his actions.  The court noted Yim’s successful attempt to lease the land to an individual for use as a restaurant combined with Yim’s applications for continuance.  Thus, the court found the board’s decision supported by substantial evidence and defers to their conclusions. 

Fourth, appellants contended that the determination of the board was an improper modification of the prior nonconforming use.  Appellants argued that the board divided the space into two distinct commercial uses, meaning that the board modified the previous nonconforming use.  The court looked at the specific findings of the board and held that the board simply allowed the use of the property as a restaurant to continue.  Yim neither requested, nor did the board grant, any modification to the nonconforming use.  

Tuzeer v. Yim, LLC, 2011 WL 4537172 (Md. Ct. Spec. App. 10/3/2011) 

This opinion can be accessed at:

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