Balto. Co. restaurateur vows to take zoning fight to the bay

Floating bandstand is latest tack in years-long dispute on Millers Island

December 01, 2010|By Arthur Hirsch, The Baltimore Sun

Lawrence J. Thanner Jr. has lost a years-long battle with Baltimore County to have live music at his waterfront restaurant, but he says he'll take the fight to the Chesapeake Bay with a floating bandstand.

"I'm preparing to bring a raft over soon," said Thanner, who owns the Dock of the Bay restaurant on Millers Island in the county's southeastern corner, which featured music outdoors this year and has been the subject of nuisance complaints from several neighbors. "I've got materials for it already."

With the bandstand on the water, Thanner said he figures he can sidestep county regulations, under which he feels he has not received a fair hearing in a case that has been going on since the summer of 2006. He says that anything he does offshore would fall under the jurisdiction of state regulators.

Moving the music to the water would be the next turn in a case that the Board of Appeals said could have "far-reaching effects" in the county, because it could affect other restaurants that feature musical entertainment. The county contends that the music and other factors make the Dock of the Bay a nightclub, which is not permitted in that zone on Cuckold Point Road. Thanner says his establishment is a restaurant and has the proper zoning.

Timothy M. Kotroco, director of the Department of Permits and Development Management, which enforces the county code, said that if Thanner pursues his plan, his department might share responsibility with a state agency such as the Department of the Environment, but it would still be a case for his agency. An MDE spokesman said the department could not comment on a project it hasn't seen, but generally the agency has jurisdiction over areas affected by the tide.

Thanner's notion of a floating bandstand is "just playing games, and I'm going to deal with that," said Kotroco. "I see little difference if you're floating the bandstand 30 feet offshore. … If the music is for the enjoyment of his patrons, we're going to have a code enforcement issue with that."

After neighbors complained about loud music, Thanner's business was cited four years ago for violating county law against running a nightclub there. The case has moved through zoning enforcement and appeals. Thanner's request to have his case reconsidered by the Board of Appeals was turned down, as was his request to have that rejection reviewed in Circuit Court.

Last month, a circuit judge found Thanner in contempt because he had not complied with orders to stop the music. The contempt order issued by Judge Robert N. Dugan told Thanner — who could be fined $5,000 if he doesn't comply — to dismantle the outdoor speaker system and forbade "live or recorded entertainment to perform at the site."

Thanner interprets "site" to mean the property on land, and said the floating bandstand "won't be on the site. It will be off-site."

Thanner had been offering outdoor music this year on weekends only, and said he thought the music ban would diminish his receipts but not drive him out of business. He said he did not know whether he had further options to appeal the contempt order, but if there are, he said, "I've decided not to pursue them."

Thanner says the county enforces its rules selectively and that he is being singled out among many restaurants that also feature music a few nights or days a week. He said his case should be a warning to other restaurateurs who could be subject to the same treatment, especially because the Board of Appeals acknowledged the ambiguity in the code.

"The county has twisted this around so I'm the only restaurant in Baltimore County that's not allowed to have music," said Thanner. "The idea that I'm some kind of nightclub is ridiculous."

The Board of Appeals' June 2008 mmajority opinion, signed by two out of three members, said that the code's definition of a "nightclub" — based on eight criteria, including music, lighting, table arrangements and business hours — is "certainly far from being crystal clear."

A dissenting opinion by board member Lawrence M. Stahl called the definition "exceedingly unclear and circuitous," and faulted the rule for taking a "one size fits all" approach that doesn't take into account circumstances in each case.

Thanner offered live music outdoors and inside until 2007, when the county's Board of Liquor License Commissioners ordered the outdoor music stopped. That ruling was overturned this spring by the Maryland Court of Appeals, and Thanner resumed the outdoor music, but only on weekends from 3 p.m. to 7 p.m. Indoor music had later hours, from 9 p.m. to 1 a.m., but Thanner said he dropped that this year.

According to Liquor License Commissioners' files, neighbors complained about loud music — which they said they sometimes could hear from inside their homes — and raucous customers in the parking lot as late as 2 a.m.

The Dock of the Bay has existed in some form at the site since the 1950s. Thanner bought the place in 2003 after it was damaged by Tropical Storm Isabel; he rebuilt it and reopened in the spring of 2004. The restaurant seats about 150 and is open year-round with tables inside and outside at a spot with a view of one of the Craighill Channel lighthouses.

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