Whether increasing the number of nights on which Club Choices presents adult entertainment is an impermissible expansion of its Class III nonconforming use or a permissible intensification of that use.
Holding
It is a permissible intensification, not an impermissible expansion. The Board could not restrict the valid nonconforming use to two nights per week merely because that was the frequency shown in the evidence.
Reasoning
A lawful nonconforming use is a vested property right with constitutional protection. Although Maryland zoning law seeks ultimately to eliminate nonconforming uses and strictly construes ordinances against their expansion, a property owner may continue a use that lawfully existed when later zoning legislation rendered it nonconforming.
Baltimore City Code § 13-406 prohibits a Class III nonconforming use from being expanded, unless the Board authorizes the change. But Maryland precedent distinguishes an unlawful extension of a use from a permissible intensification. Intensification occurs when the property is used more frequently for the same essential purpose, without changing the nature and character of the use or substantially enlarging the facilities used.
The Court's prior decisions consistently apply that distinction. Green v. Garrett held that substantially more frequent baseball games at a nonconforming stadium did not extend the use. Nyburg v. Solmson treated an increase in cars stored on a nonconforming garage lot as intensification. Jahnigen v. Staley allowed more rowboats to be rented from a nonconforming marina, and Feldstein v. LaVale Zoning Board treated greater quantities and heights of scrap metal in a junkyard as intensification.
Presenting adult entertainment on more than two nights would increase the frequency of the same adult-entertainment use at Club Choices. It would not change the use's nature or character. Under Feldstein's formulation, using property more frequently for the same or similar purpose is intensification; a change from two to five nights of adult entertainment falls squarely within that rule.
The Court rejected the intermediate appellate court's temporal distinction—that increased activity within existing operating hours is intensification but added days or hours are expansion. Green itself involved a major increase in the frequency and duration of stadium events. Making temporal limits dispositive would undermine Green and make the doctrine of permissible intensification largely meaningless for nightclubs, retail businesses, and other uses with discrete operating hours.
The testimony that adult entertainment had occurred two nights weekly established the existence of the nonconforming use; it did not permanently define its permissible scope. Treating evidentiary proof of historical operations as a ceiling on future operations would effectively discard Maryland's settled intensification doctrine.
The Board's interpretation of the ordinance was entitled to consideration, but judicial deference does not require courts to accept an erroneous legal conclusion. The Court retained responsibility to determine whether the Board correctly interpreted the prohibition on expansion, and concluded that it had not.