## Facts

- A Baltimore City property in a B-5-1 zoning district had operated as a nightclub with adult entertainment since 1979, at times up to five nights per week.
- Anthony Dwight Triplin purchased the property in 1983 and continued nightclub operations, providing nude or exotic dancing two nights per week and other entertainment on other nights.
- In 1992, the Board of Municipal and Zoning Appeals approved use of the premises as an after-hours establishment, with adult entertainment presented after hours.
- In 1994, the City enacted an ordinance regulating adult entertainment businesses; existing adult entertainment uses were treated as lawful Class III nonconforming uses.
- In 2000, a zoning inspector issued a violation notice ordering discontinuance of adult entertainment absent required approvals and documentation.
- After a hearing, the Board found the premises had provided partially nude adult entertainment two nights per week since 1983.
- The Board recognized a valid Class III nonconforming adult entertainment use but limited adult entertainment to two nights per week, treating any increase in nights as an unlawful expansion, and required certain licensing/certification steps.
- The Circuit Court affirmed the Board’s two-night limitation.
- The intermediate appellate court affirmed the two-night limitation but reversed in part as to certain licensing conditions.
- The Court of Appeals granted review to decide the legality of the Board’s restriction on the nonconforming use’s days of operation.

## Issues

1. Whether a zoning board may restrict the number of days per week a lawful nonconforming use may operate on the theory that increased frequency is a prohibited expansion.
2. Whether a temporal increase in operating frequency constitutes permissible intensification when the nature and character of the nonconforming use remains unchanged.

## Decision

- The Court of Appeals reversed the judgment insofar as it upheld the Board’s two-nights-per-week restriction and remanded.
- The court held that increasing the number of days per week a valid nonconforming use operates is an intensification, not an unlawful expansion, if the use’s nature and character remain the same.
- The court accepted the Board’s factual findings about historical operations but rejected the Board’s legal conclusion that two nights per week set a maximum scope of the protected nonconforming use.
- The court noted the property’s history of adult entertainment up to five nights per week before Triplin’s voluntary reduction, supporting the conclusion that additional nights would not change the use’s character.

## Legal Principles

- A lawful nonconforming use is protected as a property right, though generally disfavored and subject to regulation within legal limits.
- Maryland law distinguishes between impermissible expansion of a nonconforming use and permissible intensification that does not change the use’s nature and character.
- A temporal increase in the frequency of an existing nonconforming use, without a change in its essential character, is intensification rather than expansion.
- A zoning authority may not treat increased operating frequency alone as a prohibited expansion absent a change in the nature and character of the use or specific code authorization.

## Conclusion

The Court of Appeals held that the Board erred by limiting the nightclub’s lawful nonconforming adult-entertainment use to two nights per week, because greater operating frequency is a permissible intensification when the use’s nature and character remain unchanged; the case was remanded for further proceedings consistent with that rule.


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