*1 negligence, nothing that either two witnesses could changed have said would have Accordingly, result. there could be excluding no reversible error in their tes- timony.

Judgment affirmed, appellants pay costs. TAVERN, CANADA’S INC. et al. v. TOWN

OF GLEN ECHO 150, September Term, [No. 1970.] Decided December 1970. J., argued Hammond, and

The cause before C. Singley, Digges, Barnes, McWilliams, JJ. Smith King Canada, Jr., whom were Arthur V. Vann with G. brief, Shaffer, Fitzpatrick on the McKeever & Tavern, appellant Inc. Canada’s Attorney, Philip Tierney, County Assistant with J. Attorney, Cahoon, County Al- David L. were whom brief, Attorney, Carter, Deputy County on the H. fred *2 County. Montgomery appellant Simpson Gary Sheehan, H. with whom Rourke J. brief, appellee. on the J., opinion of the Court. delivered the

McWilliams, J., Dissenting page 212 in- opinion at dissents. Barnes, fra. appellants’ ef- a use and

The demise of require resurrect it us to construe Section forts to Montgomery County (1965), perti- of the Code part nent of which is:

“* * * nonconforming use, once No aban- doned, For shall thereafter be re-established. section, purpose of this ‘abandoned’ shall be cessation a defined as the of (Emphasis a of six or more.” months added.) enough they simple

The facts are seem not to be in dispute. years Sally

For an of Mrs. Peters unstated number No. 2 Harvard in the Town has been the owner of Street Echo, of the north of the Potomac Glen which is on bank northwesterly River two and one-half miles from about boundary the northwestern of the District Columbia. improved is a frame a Her lot which for period prior operated, as 1968 she a to family residential) neighborhood, (single use in an R-60 an Restaurant. An in- establishment known as Canada’s jury impossible for to work so in made it her December premises she leased to James Dozier con- who Responding tinued the of the restaurant. to public pressure the Board of License re- Commissioners liquor expired fused to renew Dozier’s license which on April Understandably 1968. bitter at this turn shop up events Dozier and retired from the shut scene. Efforts find unpro- suitable successor Dozier were early until spring appellant ductive of 1969 when the Tavern, (Canada), Canada’s Inc. became the lessee. is It agreed, however, during interregnum, no use premises. requirements whatever was made of the Its having approval County been satisfied and the At- torney having Department been Inspec- obtained the Licenses, April 1969, tions and on 25 issued to Canada a occupancy.1 Promptly appel- certificate of thereafter lee, (Town) the Town appeal Echo filed Glen its with County Appeals (Board), charging Board of a mis- interpretation (c). hearing of Section 111-57 took place July September on 17 1969. On 23 Board an- decision, portion nounced its of which follows: testimony “Based on the and exhibits rec- ord, including *3 County Attorney’s the memoran- dum, only the Exhibit Board finds that the left issue it is or before whether not the non- conforming had been use terminated at time the occupancy permit the issued. was Based on the evidence, the Board finds that the owner had diligently attempted to find a tenant to continue premises the the a restaurant. The restaurant remained as it had been with- intention, any change out and no had been dem- onstrated other use would be made of property. only changes were alterations comply safety standard, with the which would permitted non-conforming under use status. The Board cannot find that the Chief Building Inspec- Inspection, Department Licenses, granting tion and erred in the occu- pancy permit hereby and sustains his decision issuing permit.” Town, Facts,” 1. The in a footnote to its “Statement indi- opened day April

cates that Canada for business on 25 occupancy issued, November again the certificate of was it closed September, that on 4 around and the restaurant reopened under a new name. appealed Montgomery The Town to the Circuit Court County shortly Montgomery County and thereafter (County) judge, Shearin, J., intervened. The trial re- rejected versed the action of Board. He the conten- County extinguishment tion of Canada and the “that the requires of a only not a cessation of more, such use for a of six months or but an ac- companying intention to abandon.” Both Canada and the County urge Judge us to reverse Shearin and to reinstate the decision of the Board but we are satisfied that he reached the correct result. appellants’ argument

In the there is but discernible concept, i.e., one basic when the District Council enacted Section really it did mean what it said. prompted We are paraphrase dictum deathless Lord said, Mildew—if the Council did not mean what it it should have so.2 only said We think the Council not meant language what it said but that the it chose is clear unequivocal. and Nevertheless we shall ap- consider the pellants’ sophistic endeavors.

They Landay hark back to Zoning Appeals, v. Board of (1938), 173 Md. 460 where we said that abandonment “depends upon two, two, only concurrence of fac one, tors : an intention relinquish; and, two, to abandon or * * act, some overt (Emphasis some failure to act *.” added.) And, they say, we have approval indicated our Landay definition of abandonment in Dorman v. Mayor City Baltimore, Council 187 Md. 678 ; (1947) Vogl Mayor Baltimore, Council of (1962) ; 228 Md. Collins, 237 Md. 601 *4 Stieff (1965); and Harris Used Car Co. v. Anne Arundel County, (1970). They 257 412Md. continue with the cita McCoy tion City Knoxville, 41 App. Ill. 2d 190 N.E.2d (1963), which held that discontinuance abandonment, adding, means support McCoy, Smith Howard, (Ky. 1966), S.W.2d and Bither v. Baker Crushing Co., Rock 1968). 438 P. (Ore. 2d 988 Herbert, (1st A. 1936). 2. P. Uncommon Law 192 ed. Mil- Lord mythical judge. dew is the They go argue since we have used on to that discontinu- Landay, supra synonymously, ance and cessation at abandonment, and discontinuance and cessation are since terms, “cognative” they cognate) (we mean shall assume “existing legal requisites of abandonment must be [any merged any general definition of one into of] words,” ces- compelling the conclusion that thus [three] connoting are sation cannot used without intent. We be foray. signally unimpressed with this forensic Even cursory Landay expressed inap- reading its discloses Court, plicability Speaking bar. for the to the case at Judge Offutt said: way, provides the ordinance one

“Since non-conforming only way, in which a use one way lost, may supply another in which right may do be lost would be to what the such Mayor alone was authorized to Council doing. Since, do, it refrained from but which provide therefore, the ordinance does non-conforming use shall mere cessation of resumption, prevent this court is not autho- its give Id. rized to to such cessation that effect.” added.) (Emphasis at 466-67.

[*] ^[*] ^[*] reasoning as conclusions in “The well that, principle these cases is consistent with the statute, unless so stated in the or dis- cessation non-conforming of a continuance without use, of another or without evi- the substitution dence of an intent to abandon the non-conform- use, Id. prevent resumption.” at will not its added.) (Emphasis 469. language

Appellants shrug explicit 111- of Section off the only argument enacted it was with the ambiguities clearing up cre- purpose the “time” unlikely by Landay Dorman. most ated This seems effect, for, true, then, said was what the Council if “ * * * defined as the shall be [abandon- ‘abandoned’ *5 nonconforming period use for a of six months ment] Council, having larger or more.” think the in mind a We align govern- purpose, itself local intended to with those found it to delete the factor of ments which have desirable abandonment, respect of discontinuance or intent continuing uses than cessation of rather gamut judicial to run the of its determination in a succes- infinitely sion variable factual situations.3 suggested It is the use of both abandonment and cessation, section, ambiguity. in the same creates an We why can think of no reason should this be so. For in- stance, certainly ambiguity there is no in the Baltimore provides ordinance which that “such discontinuance * ** for consecutive shall an constitute [six months] * * * regardless abandonment reservation of an intent not to abandon same or of intent to resume actual operations.” (c), We think Section 111-57 while less ex- plicit, is less clear.4

Order affirmed. Appellants pay to the costs. legislative history (c) The sup- 3. of Section 111-57 seems port expressed. version, the view we have The earliest enacted in September appears Montgomery County in the 1950 Code as * * * * * * provided “upon Sec. 176-10. It discontinuance ** * period year Following of one shall terminate.” [the use] appears a 1953 amendment it in the 1955 Code as Section 107-47 (c), provided use, abandoned, which that “no once defining shall * * * thereafter be re-established” “abandonment (Em- as the cessation” of the one use month or more.” “for phasis added.) section, present (c), 111-57 is a re-enactment (without change) Section of the 1960 Code. interesting approaches 4. It is to note the diverse other counties attacking have taken in uses which have ceased diversity for one reason or another. This is all the more reason reading literally attempting such ordinances without to ex interpretations. tract of strained “[I]n case the abandonment non-conforming year, right for the such of one original non-conforming such continue use shall cease.” Code of County, Supp. Anne Arundel 13-310 as amended #5 § any abandonment or discontinuance of such non-conform “[On] * * * year right use for a of one or more to con non-conforming tinue or resume such use shall terminate.” Balti County (1955) Regulations Zoning building, more 104.1. “No § premises non-conforming structure six or where a use has ceased for * * months or more thereafter shall be used Carroll County Zoning (d). building, “No Ordinance 4.3 structure § J., dissenting: Barnes, *6 majority because, my opinion, has mis- the in

I dissent Code, Montgomery County (c) of the interpreted 111-57 § legislative correct intent 1965, perceived the has not and statutory provision. of that legislative in a seeking intent statu to ascertain

In legislators enactment, tory properly assume we statutory existing and law—both familiar with the are legislation within the frame enact decisional —and Gooch, Food, Inc. v. Md. of that law. Giant work Hospital Quinn, Joseph ; v. (1967) St. 225 A. 2d 431 State, ; 204 Md. (1966) Gibson 216 A. 2d 732 Md. 423, 104 A. 2d 800 regard to of in abandonment the landmark case

Since Appeals, Landay Zoning nonconforming uses, Board of continuing through (1938), and 196 A. 173 Md. Anne Harris Co. v. Used Car the decision of Court (1970), there County, 263 A. 2d 520 Md. Arundel abandonment consists of two that such no doubt has been relinquish or to abandon (1) an intention elements act, act, failure to which carries (2) or some overt some claims nor retains the owner neither implication that subject It matter of the abandonment. any in the interest setting (c) was enacted. judicial is in this § mind, (c) law in Subsection this well established With carefully provides: It be considered. should nonconforming “(c) in which a No changed part to a whole or has been use again shall be devoted to a use more restricted use, once use. No restricted less non-conforming has ceased premises use where a non-conforming again put years be to a use.” shall for two or more County as “A amended 40-124. non Code of Frederick § * * * shall remain idle unused for a conforming continuous a use which years, period shall be considered abandoned as of three ** Zoning non-conforming Regulations non-conforming of Howard use may County (1961) 20.05. “No § amended * * * non-conforming been such use has where be re-established years.” Zoning two of at least Ordinance discontinued for a (b). (All County (1949) George’s as amended 12.41 § of Prince added.) emphasis abandoned, be re-established. shall thereafter section, purpose ‘abandoned’ shall For the this aof defined as the cessation or more.” of six months use for negation express no observed that there is will be It abandonment, vitally important element the first right i.e., by owner of the vested the intent legislature defi- in the does state it. abandon that “cessation of” nition of abandonment nonconforming use,” under “a conducted the business abandon, “of “cessation,” regardless an intention use,” language of the Balti- or use the majority Zoning quoted “re- more Ordinance gardless intent not to abandon of an reservation ques- language short, *7 same.” of subsection In possibly mean subject interpretation, as it could tion is to ju- intent,” “regardless the first or it could mean that dicially is not dis- element of abandonment established turbed, argued by appellants, months’ the six merely provision set a time is in subsection fixed a reason- period rather than abandonment intentional Landay, In a reasonable time was held able time. years elapsed which had because

more than the three argu- my existing opinion, In conditions. economic “sophistic” as the ma- appellants far ment of the is from it, Rather, suggests. respect, po- jority as I see with rep- majority simplistic appears to sition is too of the jurisdictions minority in this resent the view of a country. zoning

Many provide if has been there ordinances given a a use for “discontinuance” may period, not thereafter be used construing such ordinances use. The cases closely present point case inasmuch as are with the Ed.) Dictionary (2nd Webster’s, defines International discontinuance, ceasing “1. A the word “cessation” as final; stop. . .” action, temporary or a . as of whether lull, discontinuance, (Em- stay, . . .” “Syn. Rest, pause, — phasis supplied.) Anderson, Zoning, (1968 Law

In American 6.61 § Ed.), it is stated: requirement

“The of intent is to abandon imposing municipal most attempts obstruction to to terminate uses which have been dormant for a of time. Some drafts- men, apparent attempt prob- an to solve the lem, provision have included a a noncon- forming may not be resumed after it has been specified period. discontinued for . . .

[*] ^[*] ^[*] “However, municipalities most have had little merged success with the device. The Courts have the terms ‘abandon’ and ‘discontinuance’ and re- quire proof intent to abandon. . . .” (Emphasis supplied.) Rathkopf, Zoning Planning In Law (Third

Edition), the learned author states: § upheld zoning

“Some have courts ordinances containing provision non-conforming that a may use shall terminate and not be resumed if speci- non-use thereof shall have existed for a period, specified fied where the seemed reasonable. courts, however,

“Other have held that even provisions under such ordinance it must be *8 period found that the of non-use must have been with an intent to abandon and where the non- beyond use was caused circumstances the control, provision owner’s the ordinance is in- effectual. upon

“The circumstances attendant a cessa- may tion of use either an indicate intention to existing may previously nega- abandon use the or by indicating tive such an intent intention to resume The decisions deal both such use. with aspects.” carefully expounding

A case enunciat- considered majority juris- ing apparently is in of what the view a McCoy City Knoxville, Ill.App.2d dictions is case, McCoy declaratory a N.E.2d 622 In the sought by judgment land in the was the owners of Knoxville, filling gasoline on which a station Illinois in been erected determine its view the had status law, zoning January applicable adopted 1958. When purchased property owners the in it had been the filling occupied purposes and and used for station was bought subject Refining lease to to a the Sinclair Com- covering pany filling purposes period for De- station 3, 1949, land cember to December 1959. The was used filling February 28, 1958, purposes for station until when filling station, suspended operation Sinclair actually filling which time it not used as a after sta- although the facilities for use were tion usual such expired, removed. After 1959 when the Sinclair lease attempts property made owners numerous to lease the filling a station sell and to it for such They purposes. finally buyer property, obtained a for the conditioned, being however, judicial upon the sale a de- filling termination that the could be used sta- purposes provision applicable tion of a view zon- provided, part (after ordinance which in relevant stating property may lawful uses be continued though they zoning) even conform do not to the :

“In the event that use of building premises or is for a discontinued years more, premises two or such only shall conformity thereafter used with regulations of the district in which it is lo- cated.” Court, reversing court, the lower held that the

statutory word “discontinuance” meant more than mere suspension of use and the addition of words “for a years require^ of two or more” did not alter ment that an intention abandon the

216 by the owner must be established. The Court noted that contrary there were cases to the stated that these de- but majority were “not Illinois or cisions the law of view.” effect, Howard, Ky.,

To the same see v. 407 Smith Co., (1966). Crushing 139 Bither v. Baker Rock S.W.2d 640, (1968) 249 Ore. 438 P. 2d 988 on other —modified grounds; 640, (1968). 249 P. v. Ore. 440 2d 368 Crandon State, (1946) 158 Fla. 28 2d and Ullman v. So. 159 239, 16 Payne, (1940). 127 A. 2d 286 Conn. minority represented by seems to be the view is

What Corp. LeBoeuf, Realty App. Franmor v. Div. 109 Court, affirming (1952), Supreme N.Y.S.2d 525 Nas- (1951). County, opinion sau of 104 N.Y.S.2d lines, Appellate Division consists of 13 which contain reasoning question no cites does not no cases. The appear passed upon by Appeals to have been Court Indeed, of New York. in Franmor the decision seems to scope by subsequent have been limited in New York cases. Incorporated Stream, Village Valley Amzalak See (1961) Village N.Y.S.2d 113 and Gauthier Larchmont, 291 N.Y.S.2d 584 Franmor, however, approval was cited with the Su- preme State, ex rel. Peterson v. Court of Wisconsin in Burt, (1969) 2d con- Wis. 166 N.W.2d 207 in the Madison, zoning City struction of a ordinance of the building providing Wisconsin that if a used for a noncon- forming “discontinued for a continuous year, occupied of one it shall not thereafter be or used” conformity regulations except in with the use in the dis- was, however, in which no trict it was located. There dis- analysis gen- applicable cussion of the case or law erally. State, DePledge,

See ex rel. Brizes v. 81 Ohio L.Abs. regard zoning 162 N.E.2d 234 ordi- Eastlake, Ohio, regard providing nance of the Buildings,” “A “Abandonment of or hereafter which is becomes vacant and re- year” unoccupied for a mains one shall not *10 except conformity reg- thereafter be used in with the use in ulations the district. present

The evidence the case establishes that the building subject property on the where the nonconform- ing permitted obviously designed restaurant use was was permitted for the restaurant use.

Although originally dwelling, constructed as a building structurally on the had land been converted to a prior passage restaurant use to the of the ordinance question. report Inspector The of the of the Board of Liquor Commissions, 2, 1969, License dated June in re- gard subject states, part, to the as follows: dining

“The room measures about 36 x 21 feet bar, in size and contains a service booths and capable seating tables patrons. There ais cigarette juke dining machine and a box in the room. The kitchen consists of two small rooms containing stove, fry cookers, a deep cook hand- basin, machine, refrigerators wash ice and a compartment three beverage sink. There is a cooler in rear of the service bar. adequate “There are rest rooms on the second * * *”

floor. photographs Two of the in the case —Exhibits 11-B sign 11-F—show a facing substantial in two direc- tions with the words “Canada’s Restaurant” on it. There canopy sign is a under the under which there is an en- large trance door bay with a casement window on the side, which a building. indicates restaurant use of the photographs These show that in the front of this entrance parked three automobiles are and there is additional area parking large of other cars with pieces of wood to mark parking the farthest end of short, area. In the evidence building indicates that on the land is use; “dedicated” to restaurant public clearly advised that such restaurant use was established before nonconforming by that use became passage of the zoning ordinance. suspension of the restaurant was

caused temporary illness of owner and the in- ability of the owner to a obtain suitable tenant. The owner had no intention whatever to abandon the restaurant dur- ing period. the six-month any She did not remove fixtures, sign, restaurant take down the use the use inconsistent with the restaurant use and dur- the entire all made reasonable eiforts to obtain proper operate tenant the restaurant. It was due to diligence no fault or lack of of the owner that a suitable tenant was not found op- or that the restaurant was not during period. erated the six-month lawful, It must be remembered prop- established erty right *11 case, present i.e., is involved in the right the to subject property use the Zoning gen- as a restaurant. laws erally derogation are in of the common law should be strictly Landay Ap- Zoning construed. See v. Board of peals, 460, 466, 293, (1938), supra. 173 Md. 196 A. particularly This is true where property the use of the question long in necessary is a sup- established and plying public necessary, the proper, with food—a lawful property. recognize and desirable use of I that this Court gone my opinion has permitting far —too far in the —in types nonconforming elimination of certain of uses after Mayor a period. “reasonable amortization” v. See Grant City Baltimore, & Council Md. 129 A. 2d 363 of (1957) ; City Salisbury, Stevens v. 240 Md. of (1965) ; Shifflett, A. 2d Minor 252 Md. my concurring opinions 249 A. 2d 159 In in both Shifflett, supra, my Minor v. I Stevens and in voiced dis- holdings which, my opinion, impaired tress at these in rights just property payment vested without the of com- pensation. holding majority present of the in the is, my opinion, more the hold- case even extreme than mentioned, ings in cases a six- the “amortization” clearly a months’ is reasonable time to elimi- any on amortiza- nate the restaurant use theory theory yet, tion such a is not asserted. But —and owner, stopping any the without fault or intent lawful use for six- any change without in the months’ structure for the restaurant use or removal or chairs, tables, bars, sale of the or other restaurant facili- ties, right. property is held to result in a loss of the vested Curiously, by majority contrary this is held the ac- county and, tion of the administrative officials of the in- deed, contrary position Montgomery to the taken County, itself, intervening party as an in the case both appeal. the lower court and on this I before us am mindful of the view that it is intended that nonconform- ing away” passage time; will uses “wither with the cry being “yanked by legisla- but is a this far from out” power just payment compensation. tive without the grave questions There are constitutional which arise if the element of intention is deemed to be eliminated. case, present indicated, It clear in is as I have owner had no intention whatever to aban- don the restaurant use. The owner re- signs, moved indicating no structures or other facilities position inconsistent with the continuance of the non- conforming Beyer Mayor use. See & Council of Baltimore, 182 Md. 34 A. 2d 765 where slaughter house use was deemed to have been abandoned when the owner sold all machinery, of the visible includ- boilers, pipes refrigeration used for and machin- ery moving part plant carcasses from one *12 — taking another as well as down the smokestack a nec- essary part slaughtering of the to be used in the use, packing and meat attempt by with no to the owner replace necessary these structures and facilities. present facts in the graphically case show how

arbitrarily, capriciously, unreasonably and the elimina tion of the element of statutory require intention as a operates. However, ment other may factual situations easily which, perhaps, present envisioned even more aggravated example, situations. For if the owner of the nonconforming right operates a seasonal as business such exclusively one which preparations caters to for the 220 — cards, wrapping Holiday paper,

Christmas Christmas January 2 on and the the owner decorations like —and goes year following shop his to closes and Christmas more than months Florida for a well-earned rest for six giving up with the with no business and intention his ample place to to his orders firm intention return in time following supplies his for and continue business the Christmas, September, upon he will discover his return right operate that he his his has lost competent Again, suppose young seasonal and business. talent, portrait unique style painter, and owns a with a pose patrons studio where his lighting, painting portraits proper sky of their with designed lights, etc., specially his for1 work and much against his will he is drafted Forces of into the Armed States, months, the United six and serves more than he returns to discover that has lost his right again, Suppose to maintain his studio. nonconforming right owner of a to conduct what is essen tially kidnapped, a one-man is taken to some hide-out, way persons no with to communicate with other is not released for six over months. He too returns nonconforming right home to find his to conduct his busi gone. ness my mind, unreasonable, arbitrary capri-

To it is process cious and a denial of due of law to eliminate the right property vested without the fault of owner without part give intention on the up owner’s relinquish right. Sebastian, the vested Hadacheck v. 239 394, 143, ; U. (1915) Village S. 36 S. Ct. 60 L. Ed. 398 Errett, (6 ; Terrace Park v. 12 1926) F. 240 2d Cir. Kelso, ExParte Cal. P. cited in Corp. Zoning App. Arundel Co., Board Howard Md. 257 A. 2d action, my Such opinion, taking in the results just right owner’s compensation without pro- as Ill, hibited Maryland Art. 40 of § Constitution. ambiguous Inasmuch is regard, § this give meaning we should a it will which avoid its uncon-

221 Baptist stitutionality, City Baltimore v. Concord ; 132, (1970) Deems Church, Inc., A. Md. 262 2d 755 257 95, Co., Maryland Ry. A. 2d 514 247 Md. 231 v. Western City Salisbury, (1967) ; 240 Md. v. Stevens Baltimore, ; Higgins 206 Md. (1965) A. 2d 775 ; (1955) an and which would also avoid 110 A. 2d 503 Sulphur Pan American unreasonable and harsh result. Taxation, Dept. Md. Asses. & Co. State (1968) ; Company End Park F. v. West A. 2d 354 B. Saul Inc., North, A. and cases Md. 2d 591 cited therein. properly my opinion,

In the administrative officials nonconform- permit the owner to continue the issued use; I order and would reverse the restaurant reversing that action the administrative lower court officials.