Trip Associates, Inc. v. Mayor and City Council of Baltimore
898 A.2d 449 (2006)
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Rule of Law:
Increasing the frequency of a valid nonconforming use, such as the number of days of operation, is a permissible 'intensification' of that use, not an unlawful 'expansion,' provided the nature and character of the use remain substantially the same.
Facts:
- In 1983, Anthony Dwight Triplin purchased a property that had operated as a nightclub featuring adult entertainment up to five nights a week since 1979.
- Upon purchasing the property, Triplin voluntarily reduced the frequency of adult entertainment from five nights to two nights per week.
- In 1994, Baltimore City enacted Ordinance No. 443, which classified adult entertainment businesses in that location as a 'nonconforming use.'
- After the ordinance passed, Triplin continued to operate the club and feature adult entertainment two nights per week.
- On April 14, 2000, a Baltimore City zoning inspector issued a 'Code Violation Notice and Order' to Triplin's club for its adult entertainment activities.
Procedural Posture:
- Anthony Dwight Triplin appealed the zoning inspector's violation notice to the Baltimore City Board of Municipal and Zoning Appeals ('the Board').
- The Board found Triplin had a valid nonconforming use but restricted its operation to two nights per week.
- Triplin petitioned for judicial review in the Circuit Court for Baltimore City, which affirmed the Board's decision.
- Triplin, as appellant, appealed to the Court of Special Appeals of Maryland (intermediate appellate court), which affirmed the Circuit Court's ruling regarding the temporal restriction.
- The Court of Appeals of Maryland (the State's highest court) granted Triplin's petition for a writ of certiorari to review the decision of the Court of Special Appeals.
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Issue:
Does a zoning board unlawfully restrict a nonconforming use by limiting its days of operation to the historical frequency at which it operated when the prohibitive zoning ordinance was enacted?
Opinions:
Majority - Bell, Chief Judge
Yes. A zoning board's restriction on the frequency of a nonconforming use constitutes an unlawful limitation on a vested property right. A nonconforming use is a vested right entitled to constitutional protection, and Maryland law distinguishes between an unlawful 'expansion' and a permissible 'intensification' of such a use. An intensification is defined as a more frequent use of a property for the same or a similar purpose. Precedent, such as in Green v. Garrett, establishes that increasing the frequency of an activity—like hosting more baseball games—is a permissible intensification, not an expansion, as long as the nature and character of the use remain unchanged. Therefore, increasing the number of nights adult entertainment is offered is an intensification, and the Board's attempt to freeze the use at its historical, two-night-per-week level was an error.
Analysis:
This decision solidifies the distinction between permissible intensification and impermissible expansion of nonconforming uses under Maryland law. It clarifies that temporal increases, such as adding more hours or days of operation, fall squarely within the definition of intensification. The ruling protects the vested property rights of owners of nonconforming uses, allowing for natural business growth in volume and frequency so long as the fundamental character of the use is not altered. This precedent limits the ability of zoning authorities to curtail nonconforming uses by freezing them at their exact historical level of activity, thereby preventing a slow strangulation of such businesses through temporal restrictions.
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