Appeals court affirms Baltimore's denial of zoning permit for taxi

Christmas came in March to some residents of Baltimore's famous West 34th Street yesterday, as the Court of Special Appeals affirmed the city's denial of a zoning permit to a taxi garage some neighbors consider a nuisance.

"I'm thrilled," said Dan Harvey, president of the Hampden Village Merchants Association.

"I'm overjoyed the case has been affirmed," Harvey said. "It's a victory for the residents and businesses of Hampden and Wyman Park."

But the victory came at the expense of a local business owner, who said yesterday he's tired of fighting for his business in court and is ready to move on to another location.

"It's just not worth the time and the hassle," said Kevin Sengh, who operates the repair shop on the property, LF Auto Service.

"That's life in America," said Sengh, who emigrated from India 27 years ago.

The Court of Special Appeals yesterday affirmed the city's denial of a conditional use permit -- known in most of the state as a special exception -- that would have allowed the continued operation of an automotive repair garage on a 64- by 122-foot lot at 703-705 W. 34th St. owned by the Sengh's landlord, Lev Futoryan.

The property sits on the corner of Hampden's renowned residential holiday light display, recently featured in television advertisements for the Maryland State Lottery.

"It is a block that has in recent years enjoyed statewide celebrity for its spectacular display of Christmas electrification, arcing the street itself and replete with model trains and other displays," retired Judge Charles E. Moylan Jr. wrote for the court. "This seasonal efflorescence attracts thousands of visitors annually and has, with apologies to Maureen O'Hara, John Payne, and Edmund Gwenn, widely but informally come to be known as the 'Miracle on Thirty-Fourth Street.'"

The property is the only location in the area zoned for commercial use and was originally zoned for a gasoline station in 1958.

When the city revamped its zoning ordinance in 1971, the gas station stayed. However, over the past three years, residents told city officials, the use of the property changed from a neighborhood filling station to a late-night garage.

Futoryan removed the gasoline tanks after buying the property in 1992. Sengh later bought the repair business on the lot.

"It's been horrible," Harvey said, describing residents' experiences with the lot. "It's been like having jackhammers next door in the middle of the night."

The business owner's experience has also been less than festive. "We're just trying to make a living," Sengh said. "We just want to make a living for our kids like everybody else."

Futoryan's lawyer, Harry Chase, expressed no surprise at the outcome, but could not comment further because he had not yet read the opinion.

Futoryan has already issued the tenants a notice to quit on May 1, Chase said, to free the property as part of the planned renovation of the 1899 Northern District police station across the street, which is slated for conversion to mixed retail and residential use.

In affirming the circuit court's decision, the Court of Special Appeals noted the difficulty of comparing the business's adverse impact in the zone, because it is the only thing in the zone. "There can be no comparative degree, no greater adverse impact and no lesser adverse impact, when there is nothing with which to compare the location in question," Moylan wrote in the opinion.

The court also rejected Futoryan's argument that no change in use had occurred, for zoning purposes, if no totally new use were introduced.

"We hold, to the contrary," Moylan wrote, "that a significant alteration of the proportions of two or more elements in a mixture can just as surely constitute a change as can the introduction of a new element."

"A cup of coffee laced with a tablespoon of brandy is not the same thing as a glass full of brandy, and permission might well be required to switch from the former to the latter," Moylan wrote.

WHAT THE COURT HELD

Case: Lev Futoryan v. Mayor and City Council of Baltimore, CSA No. 1371, Sept. Term 2001. Reported. Opinion by Moylan, J. (retired, specially assigned), Filed March 26, 2003.

Issue: Did the circuit court err in affirming the city's denial of a conditional use permit for an automotive repair garage located at the site of a former gas station?

Holding: No. The logical impossibility of making a locational comparison of relative adverse impacts did not guarantee the appellant an automatic approval of his conditional use application. The Board of Municipal and Zoning Appeals still had a discretionary role to play, and its exercise of that discretion is affirmed.

Counsel: Harry L. Chase for appellant; Sandra R. Gutman for appellee.

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