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Trip Assocs. v. Mayor & City Council - 392 Md. 563, 898 A.2d 449 (2006)

Rule:

While a nonconforming use should not be extended or perpetrated longer than necessary, the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore has been held to be an intensification and not an extension. 

Facts:

Appellant property owners filed an action against appellees, a mayor and a city council, for judicial review of a decision of a board of municipal and zoning appeals restricting the number of days per week the owners could operate a nonconforming use. The owners operated a nightclub that had featured adult entertainment after hours twice a week since 1983. After a zoning inspector issued a code violation notice, the board held that the adult entertainment was a valid nonconforming use. It limited that use to two nights per week. The intermediate appellate court upheld the restriction based on Baltimore, Md., City Zoning Code § 13-406, which prohibited the expansion of certain nonconforming uses. It held that a temporal modification of a nonconforming use was an expansion of that use rather than a mere intensification of it. 

Issue:

 Did the Board of Municipal and Zoning Appeals err when it restricted the number of days per week the appellants could operate a valid nonconforming use?

Answer:

Yes

Conclusion:

The court remanded the case to the intermediate appellate court with instructions for it to reverse the trial court's judgment and to remand the case to the trial court for entry of a judgment in favor of the owners. An intensification of a nonconforming use was permissible so long as the nature and character of that use was unchanged and was substantially the same. The court had consistently held that merely increasing the frequency of a nonconforming use was not an unlawful extension but an intensification. Increasing the number of nights on which adult entertainment was presented at the club here from two to five, for example, would be an intensification. The out-of-state cases relied upon by appellees were either distinguishable or unpersuasive.

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