Judge reverses a ruling, allowing a Tree to take root

March 24, 1993|By Eric Siegel | Eric Siegel,Staff Writer

The Rubber Tree will take root in Fells Point after all.

A Baltimore Circuit Court judge yesterday reinstated an occupancy permit for the condom shop at 904 S. Broadway, reversing a previous ruling by the city zoning board.

Circuit Judge Andre M. Davis said the zoning board was "irrational in the extreme" in denying a permit for the shop by the waterfront.

Jeanne L. Brown, the shop's owner, said she planned to be open for business by the end of next month.

"I feel wonderful. It's been a long time coming," said Ms. Brown, a Lutherville mother of two teen-agers.

"I'm looking to be there when the sun shines."

But some of the residents and business owners in Fells Point who had vehemently opposed the shop expressed unhappiness with the ruling.

"I'm disappointed that her shop is opening at that location. That's a key location," said Cray Merrill, co-owner of Brassworks on Thames Street.

"To see a condom shop there is not what I would like to see in terms of Fells Point putting its best foot forward."

In August, the city zoning administrator granted Ms. Brown a permit to operate a gift shop specializing in the sale of condoms. But several Fells Point business owners and residents appealed the granting of the permit to the city zoning board, saying the presence of a condom shop would make it difficult to attract families to the historic district that is also a mecca for bars and nightclubs.

They argued that a condom shop was not an allowable use under city zoning laws and said the City Council would have to amend the zoning laws before such a permit could be granted.

But George L. Russell Jr., an attorney for Ms. Brown, countered that a gift shop could sell any item not forbidden or regulated by law, and that the zoning board had no jurisdiction over the case because the appeal was not filed within the law's prescribed 10-day period.

In November, the zoning board, after two days of often emotional public hearings, sided with the residents, overturning by a 4-1 vote the zoning administrator's decision and denying a permit to Ms. Brown to operate the Rubber Tree.

In reversing the zoning board's ruling yesterday, Judge Davis found that the board acted "without jurisdiction" because the appeal was filed two days late.

xTC Because of that, Judge Davis said, it was "unnecessary" to rule on the merits of the case.

"However, if the merits issue had to be reached, the record is clear that the board erred in its legal conclusion that a 'gift shop' becomes something other than a 'gift shop' depending merely upon the identity and character of the items the proprietor intends most vigorously to promote for sale," Judge Davis wrote in a 4-page order.

"That conclusion is irrational in the extreme," he said.

Ms. Brown said she had taken "a large wound" financially in terms of lost income, attorney's fees and rent on a building she couldn't use during the past seven months.

"I do think it's unfair that I've had such a large hurdle to overcome. But I guess that's the way life is sometimes," she said.

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