The Need to Know Your Nonconforming Neighbors

By: Chris Mincher


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It’s important for a business that its property be zoned for what it wants to do, but it’s also important that the properties next to it have compatible zoning. Though a landowner’s business could be hurt when a neighbor wants to deviate from established zoning, challenging it may not be that simple. As the recent case of Cedar Hill Development v. Blackjack Trucking demonstrates, the success or failure of such a claim may depend on what’s discovered after a deep dive into hyperlocal history.

Blackjack Trucking owns 3.5 acres of land in Brooklyn Park, where it conducts excavation, hauling, and snow removal. Trucks are parked and equipment is stored there, and there’s an office and a maintenance garage. It also leases part of the property to Whay’s Auto Service, which does vehicle sales and repairs.

A complexity of the case is that Blackjack’s property has at times been split between commercial and residential zoning, but became all residential in 1992. The adjacent land is owned by Cedar Hill Development, which, consistent with the residential zoning, wants to build a bunch of housing there. Obviously, proximity to excavation and hauling and broken cars is not much of a selling point to potential homeowners.

Cedar Hill’s opportunity to attack the eyesore came when Blackjack sought the county Board of Appeals’ approval to register its business as a “nonconforming use” and therefore be exempted from the residential zoning. A little about the law on that: If a property is legally being used for something before a zoning change, those rights are considered vested and the owner can continue that use despite the new zoning. That use has to be continuous, however — if there’s a break in how the owner is using the property the new zoning restrictions kick in. (How long a break counts is a matter of local law; in Anne Arundel County it’s a year.)

Here, although Blackjack’s property was now zoned residential, it sought to establish it was continuing business that had been legal with the earlier zoning. Blackjack specifically asked the county to approve its contractor’s shop for hauling. The question was whether the property was operating a permissible contractor’s shop before 1976 when the zoning was changed from heavy commercial (when that would have been allowed) to general commercial (when it wouldn’t have been allowed).

To make its case, Blackjack brought in the county’s former zoning administrator to look at some aerial photographs of the property from 1952 to 1977. He concluded that the pictures showed stored vehicles and equipment that contractors used, including for excavation, and described the property as an excavator’s shop or warehouse. He testified that those uses would include storing vehicles on the property and recycling. (This is relevant because, pursuant to the County Code, a use that otherwise wouldn’t be allowed by zoning is permissible if it is incidental to a use that is allowed.)

Blackjack also focused on its predecessor on the property, the Fraley Corporation, which has a website describing itself as a scrap-metal and waste-disposal business. Other witnesses who had personally observed the property when it was owned by Fraley testified that it conducted excavating and construction; there were heavy commercial vehicles there such as backhoes, dump trucks, bulldozers, excavators, snowplows, and loaders, as well as equipment such as dumpsters, containers, and trailers; Fraley hauled asphalt, stone, and scrap (which it also sorted for recycling), and conducted snow removal; and there was a mechanic there that worked on the vehicles. The overall point was that, if Fraley operated an excavator’s shop and warehouse before 1976, that would have been permitted then and was therefore a permissible nonconforming use now.

Cedar Hill’s witness was a former analyst for the county’s Office of Planning and Zoning who looked at the old photos and interpreted the property’s uses as salvage and storage, neither of which Fraley was legal under the zoning in effect. He saw vehicles, containers, and materials being kept outside, but he didn’t see large equipment that would indicate an excavation business was operating. He basically described the site as a junkyard, and, in fact, Fraley described its property in 1988 to the county as a “dump site.” There was other testimony that in the past 20 years the site was regarded as used for salvage and recycling of junk, scrap, and wrecked vehicles.

Because of its prohibited scrap salvage operations, Fraley got hit with a violation in 2012, which by 2014 was deemed abated. Cedar Hill argued that meant whatever nonconforming use there was before then had ceased, so the residential zoning would take effect.

The Board, and then the Circuit Court for Anne Arundel County on appeal, held that in some ways both sides were correct: Fraley had operated an illegal junkyard and recycling operation (which ceased in 2014) but also a contractor’s shop that was lawful under prior zoning. The contractor’s shop part continued until and after Blackjack obtained the property. Turning to the Maryland Appellate Court for relief, Cedar Hill argued that the property couldn’t be both a contractor’s shop and junkyard because they are mutually exclusive — but the panel wasn’t persuaded by that (and, frankly, it’s hard to see why a property couldn’t be both things). In all other respects the Court also upheld the previous rulings.

A couple of lessons here. First, challenging another’s attempt to register a nonconforming use requires a thorough understanding of past facts (what was happening on the property at different times across the years) and of past law (what the zoning designations at those different times were and what was allowed by each). Documentary evidence — such as photographs — can sometimes be interpreted in different ways, so the testimony of people who actually worked on, visited, and observed the property can tell a more complete story. Also, a property’s changes in ownership, record of regulatory violations, and the like just aren’t relevant; the thing that matters is how the property was used.

These are all important things for a business to keep in mind prospectively, as it assesses the surroundings of property it plans to obtain or develop. Simply looking at a current zoning map may not have the answers, and a simple complaint to the local zoning authorities may not bring relief. Rather, it takes some expertise in land-use history to clarify the lines between — in Cedar Hill Development, at least — housing and hauling.