Posted by: Patricia Salkin | March 6, 2016

MD Court of Special Appeals Finds Four-Unit Apartment in a Single-Family Zoning District Constituted a Legal, Nonconforming Use

Appellee/cross-appellant, Riverside Investment Corp. Inc. owns a four-unit apartment house in Salisbury. Riverside purchased the property in 1990, when it already had four individual dwelling units on it. The area is currently zoned “R–8”, so that under the current zoning code, enacted in 1959, only single-family dwellings are permitted. In January 4, 2011, appellant/cross-appellee, the City of Salisbury, through its Department of Building, Permits, and Inspections notified Riverside that its use of the property as a four-unit apartment violated the City’s zoning code. Following this, Riverside’s President, Mark Reeves, met with the William Holland, the Director of the Department. Reeves stated that he provided affidavits and documentation to demonstrate that the property was converted to its current use prior to the adoption of the 1959 zoning code, and that it had been used in this manner ever since.

The BZA voted that the property was a legal nonconforming use and reversed the Department’s decision. The City filed a petition for judicial review with the Wicomico County Circuit Court, which vacated the BZA’s determination on the ground that the Board failed to make findings of fact, and remanded the case for a new hearing. On remand, the City argued that Riverside had to establish that the property was converted to its present use prior to the enactment of the 1936 zoning code. However, because there was no signed zoning map defining the boundaries of the 1936 zoning code, Riverside argued that the code could not be enforced against the property owner.

Here, even though the map was declared part of the 1936 ordinance, mere incorporation of the map in the ordinance was not enough to prove its authenticity. The City could not produce an executed 1931 map or even a copy of an executed map. Moreover, the court refused to accept the argument that revisions made on an unsigned copy of the map established it as the “official map,” particularly when the express language of the 1936 zoning ordinance required that the zoning map be signed by the Mayor and City Council President. Accordingly, there was no evidence that the City relied on an official or authentic map to find that the property was an illegal nonconforming use, and therefore could not enforce the 1936 zoning code against Riverside. For these reasons, the court affirmed the district court’s holding that because Riverside’s use of the property as a multi-family dwelling existed prior to the 1959 code, it was a legal nonconforming use.

City of Salisbury v Riverside Investment Corp, 2016 WL 706917 (MD unrep. 2/23/2016)

 


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