Tuzeer v. Yim, LLC
29 A.3d 1019
Md. Ct. Spec. App.2011Background
- W. 27th Street property at 123-129 West 27th Street in Baltimore operated as a restaurant/nonconforming use prior to May 2008; owner YIM, LLC acquired it in 2006.
- Two Sisters Grille operated on the first floor until May 2008; YIM sought a new restaurant use and liquor license thereafter.
- In May–June 2009 YIM pursued a Use and Occupancy permit for a lounge/restaurant; initial permit was voided by the zoning office in June 2009 due to a dispute over the nonconforming use.
- Board of Municipal and Zoning Appeals held an August 2009 hearing; Board ultimately issued a September 15, 2009 resolution permitting the continued nonconforming restaurant use with conditions, including hours limitations.
- Appellants challenged the Board's decision in circuit court, arguing (i) a change in law, (ii) Open Meetings Act/Art. 66B noncompliance, (iii) improper finding of no discontinuance/abandonment, and (iv) unlawful modification of the nonconforming use.
- Circuit court affirmed the Board, with some modifications striking operating-hour restrictions; appellants timely appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantive change in law retroactivity | Tuzeer argues repeal of 13-407(c) changed law substantively. | City/YIM contend Board relied on 13-407(b) and not solely on (c); repeal does not invalidate the decision. | No reversal; repeal does not negate the Board's primary finding. |
| Open Meetings Act compliance | Resolution not properly adopted; signatures missing; one member participated by phone. | Public deliberations occurred; telephone participation allowed if public can hear; signature issue acknowledged as not fatal. | No Open Meetings Act/Art. 66B violation; telephone participation permissible with public audibility; resolutions signed post-deliberation acceptable. |
| Discontinuance/abandonment of the nonconforming use | Undisputed evidence showed discontinuation May 2008; post-discontinuation permit applications do not restore use. | Application within 12 months and manager affidavit show ongoing use and attempts to reoccupy; not abandoned. | Not discontinued or abandoned; substantial evidence supports continued nonconforming use. |
| Modification of the nonconforming use | Resolution created two separate uses (restaurant and bakery), effectively modifying the nonconforming use. | Board permitted continuation of the restaurant use without approving new independent uses; not a modification. | No unlawful modification; Board's finding allowed continuation of restaurant use only. |
Key Cases Cited
- Assateague Coastkeeper v. Md. Dep't of the Env't, 200 Md.App. 665 (Md. 2011) (limits of substantial evidence review in agency decisions)
- Peck v. Balt. County, 286 Md. 368 (Md. 1979) (abandonment/discontinuance standard for nonconforming uses)
- Freedom Oil Co. v. Illinois Pollution Control Bd., 275 Ill.App.3d 508 (Ill. App. 1995) (teleconference meetings can satisfy 'meeting' under Open Meetings Act)
- Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125 (Md. 1997) (Open Meetings Act considerations and deliberation requirements)
- Armstrong v. Mayor & City Council of Baltimore, 409 Md. 648 (Md. 2009) (retroactivity context for Open Meetings Act discussions (referenced))
- Noland v. Md. Aviation Admin., 386 Md. 556 (Md. 2005) (standard of review for agency findings and inferences)
- Assateague Coastkeeper v. Md. Dep't of the Env't, 200 Md.App. 665 (Md. 2011) (substantial evidence review framework)