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Fire Cannot Revive Abandoned Nonconforming Use

In Mayor and City Council of Baltimore v. Driver, No. 1664, Sept. Term 2016 (Md. Ct. Spec. App. Nov. 22, 2017), the Court of Special Appeals held that the Baltimore City Board of Municipal and Zoning Appeals (“BMZA”) had correctly found that an owner who had not used the property as a tavern for more than a year before a fire had lost the nonconforming designation for the property.

Lil’s Place was a tavern at 1909 North Pulaski Street, Baltimore City, since 1937.  From the time of the first comprehensive zoning ordinance in 1971, the property was in an R-7 Zoning District, where taverns are not permitted.  The property has been deemed to be a Class III nonconforming use since that time.  A Class III nonconforming use applies to a structure that was built for its use, but such use is no longer permitted in the district where the property is located.

To put out a fire next door, the Baltimore City Fire Department entered the property on March 8, 2014.  The property suffered damage as a result of the fire and as a result of the firefighters being on the site.  A Housing Code Enforcement Official issued a Notice and Order (the "Fire Order") calling the property unfit for human habitation.  Lillie Driver, the owner of the property, repaired the property without getting a building permit.  She then applied for an occupancy permit to continue the nonconforming use.  The application was denied by the Zoning Administrator.  On appeal, the BMZA held that the nonconforming use could not continue.

Driver appealed to the Circuit Court for Baltimore City, and the circuit court reversed.  The City thereafter appealed to the Court of Special Appeals, and that court reversed again.

The Court of Special Appeals found that the City zoning code provision required that a Class III nonconforming use must be active and continuous, and this is the case regardless of the intention of the owner of the property.  The court held that the BMZA had sufficient evidence presented to it to establish that the property had not been used as a tavern for more than one year before the fire.  This ended the nonconforming use.  Further, the court agreed with the findings of the BMZA that Driver should have obtained a building permit before commencing with the improvements, and there was not an exception based on the Fire Order.

The Court of Special Appeals concluded that Baltimore City is within its rights to terminate nonconforming uses by adopting and enforcing strict and specific tests for determining whether such uses have been abandoned.  Because the BMZA did not find that Driver had complied with the requirements to continue the nonconforming use of the property, the property lost its nonconforming status.

For questions, please contact Ed Levin (410) 576-1900.


March 05, 2018




Levin, Edward J.


Real Estate