You know the "amortization" doctrine: when an existing legal use is declared illegal, the government can avoid a takings claim by slowly phasing out the use, supposedly to allow the owner to recoup investment. The doctrine is established in Maryland by Grant v. Mayor and City Council of Baltimore, 129 A.2d 363 (Md. 1957), where the court held that amortization works if the time and uses allowed are reasonable.
Not all jurisdictions take that approach, however. For example, in Pennsylvania Northwest Distributors, Inc. v. Zoning Hearing Bd., 583 A.2d 1372 (Pa. 1991), the Pennsylvania court held "[a] lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain."
In In re Mangisteab, No. 2022-93 (Dec. 20, 2022) (unpub.), the Appellate Court of Maryland (fka the Court of Special Appeals, that state's intermediate court of appeals), recognized that the property owners asked to overturn Grant and adopt Pennsylvania's approach, but concluded that this was above the pay grade of lower court judges.
The case involves Baltimore's removal of liquor stores in residential zones as nonconforming uses under the city's zoning ordinance. Liquor stores have been illegal in residential zones since 1971, but have been allowed to continue to operate as long as they didn't cease operation for more than 18 months. But recently, the city said "no more," and gave the liquor stores two (or three) years to wind up. The owners challenged the change as a taking of their vested rights, and expressly asked the courts to abandon the Grant rule.
Not too surprisingly, the trial court (and now the court of appeals) said no, that's a job for the Maryland Supreme Court:
Owners believe, however, that Grant and its progeny should be overturned. As counsel for appellant acknowledged at oral argument, however, if that were to occur, it must be done by the Supreme Court of Maryland, not this Court. Foster v. State, 247 Md. App. 642, 651 (2020) (“It is not up to this Court . . . to overrule a decision of the [Supreme Court] that is directly on point . . . . The rulings of the [Supreme Court] remain the law of this State . . . unless those decisions are either explained away or overruled by the [Supreme Court] itself.”), cert. denied, 475 Md. 687, 257 A.3d 1156 (2021) (cleaned up). Johns Hopkins Hosp. v. Correia, 174 Md. App. 359, 382 (2007) (“[T]his Court does not have the option of disregarding [Supreme Court] decisions that have not been overruled, no matter how old the precedent may be.”), aff’d, 405 Md. 509 (2008). Accord Livesay v. Baltimore County, 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)) (Stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”). We will not, therefore, overrule Grant and hold that termination of a nonconforming use after a reasonable amortization is unconstitutional.
Slip op. at 16-17.
So stay tuned, we suspect this isn't over just yet.
In re Mangisteab, No. 2022-93 (Md. App. Ct. Dec. 20, 2022) (unpub.)
