Posted by: Patricia Salkin | February 28, 2016

MD Court of Special Appeals Denies Nonconforming Status of Owner’s Property for Use as a “Private Boat Club”

Landowner William Lagna petitioned to establish the right to use his property for a nonconforming use as a “private boat club” in an effort to legitimize out-of-water boat storage on his residentially-zoned property. Both the Baltimore County Office of Administrative Hearings and the Baltimore County Board of Appeals denied his request after hearings. The Board reasoned that, even assuming the existence of such a club starting in 1937, letters from former club members showed “that the club was abandoned in 1993 and therefore the use was extinguished even before Mr. Lagna’s purchase in 1994.” The Circuit Court for Baltimore County affirmed the Board’s decision.

The court noted that one of the main tests for determining the existence of a nonconforming use is whether the property is “known in the neighborhood as being employed for that given purpose .” The Board had been given letters and testimony from both sides on this issue. The Board explained several reasons for its refusal to credit Lagna’s assertions; specifically, Lagna provided only “scant information as to the nature and extent” of the clubs that existed on the property before 1994, and in particular as to whether those clubs had “existed continuously without interruption.” The Board also inferred from federal income tax forms identifying Lagna’s business as a “Marina” rather than a “Boat Club” after 2005 that “any ‘boat club’ use by him terminated in 2005.” Accordingly, the primary basis for the Board’s ruling, its determination that Lagna failed to establish that he had operated a boat club on his property continuously since 1994, was sufficiently supported by the record.

The Board of Appeals also declared that the four lots subject to his petition had “merged into one single property for zoning purposes,” and thus that Lagna must “comply with BCZR § 415 with regard to the number of boats and piers permitted for one single property.” Lagna argued that this issue was not properly before the Board and should not have been heard. However, Lagna’s post-hearing brief reflects that he knew and had reason to know that the Board would make a determination on lot merger. Instead of using that opportunity to bring an argument about the proper scope of the hearing to the Board’s attention, Lagna waived any such objection when he asked the Board to reverse the ALJ’s lot-merger determination on the merits. The court therefore affirmed the circuit court’s judgment upholding the decision of the Board of Appeals.

Lagna v. People’s Counsel ex rel. Baltimore County, 2016 WL 327029 (MD unrep. 1/27/2016)

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