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After an Aug. 29 appeal hearing, Judge Albert Northrop upheld the Calvert County Zoning Board of Appeals’ February ruling in favor of the Tiki Bar regarding a remand of an alleged zoning violation.

The Aug. 28 hearing in Calvert County Circuit Court was for an appeal made by a neighboring resident of the establishment, Dr. Ronald Ross, after the BOA voted Feb. 2 to uphold a February 2007 site plan defining the area between the buildings on the east and west sides of the Tiki Bar property in Solomons as an exterior accessory use, “further determined to be a nonconforming use in its own right,” contributing to other property uses in its history, such as a motel and repair shop, and that it existed prior to adoption of the zoning ordinance.

The board had previously heard testimony on the case at its Jan. 5 hearing, which was requested as a remand for a determination regarding the parking area between the buildings. Ross appealed a BOA hearing from last spring in the circuit court this past November, and from there, Northrop sent the case back to the BOA to get a final ruling on whether the area in question on the property is an ancillary, or supporting, use of the Tiki Bar or a nonconforming use in its own right and, if nonconforming, whether it existed prior to the adoption of the Calvert County Zoning Ordinance in 1967.

During the Aug. 29 hearing, Ross said he was appealing that the area between the buildings was actually a patron area and not an exterior accessory use.

Tiki Bar attorney V. Charles Donnelly said during the hearing there have been six BOA cases and nine circuit court cases regarding alleged Tiki Bar zoning violations, and every decision but one has been in favor of the bar, yet Ross keeps appealing.

Donnelly said to the judge, “We’re not here to argue whether it’s a patron area or not,” but were in court because the judge asked “specific questions” of the BOA, which the BOA answered in its Feb. 2 ruling.

Ross said a site plan shows what is allowed on a specific property and can only be changed or modified by the Calvert County Planning Commission. He argued that the site plans for the Tiki Bar show the area in question as being used as a parking lot, and not as exterior accessory use for all surrounding buildings and businesses.

Donnelly said it has been decided multiple times that the area is indeed an exterior accessory use and Ross’s appeals have been thrown out over and over again.

“Case after case … the court has affirmed the Board of Appeals’ finding,” Donnelly said.

In a ruling given Sept. 6, Northrop ordered, “In this case, the court finds that the Board of Appeals correctly found an ancillary accessory use, that such use is legally permitted and that there was evidence before the Board that the use existed prior to the adoption of the Calvert County Zoning Ordinance enacted in 1967.”

Ross said in a phone interview Thursday morning the judge’s ruling was “totally expected” and on Sept. 7, the day after the ruling, he appealed Northrop’s ruling to the Court of Special Appeals.

“I believe the judge was wrong, as he has been on two previous occasions when the appellate courts have reversed his decisions,” Ross said in an email. “The case has been appealed to the Court of Special Appeals. I believe we will prevail on appeal, as we have in the past.”

In a phone interview Wednesday, when asked whether Ross could continue to file for appeals, Donnelly said, “Dr. Ross is running out of string here.” Donnelly said an upcoming ruling on a case pending in the Court of Special Appeals, which is for an appeal made by Ross on the decision of the circuit court to uphold the approval of the Tiki Bar site plan, will determine whether or not Ross’s current appeal will move forward.

“How soon that decision will come out, it could take two or three months or it could be two weeks. That decision will control a lot of all of this stuff,” Donnelly said, adding that he was “optimistic it’s going to pretty much resolve things. If [the ruling] comes down in favor of the Tiki Bar, the appeal” will not move forward in circuit court.

Donnelly said Ross has argued the use for the area in question “in at least 15” cases and each time, the ruling has been in favor of the Tiki Bar.

Ross said this “is absolutely not true” and the Court of Special Appeals has overturned Northrop’s previous rulings in favor of the Tiki Bar “on several occasions.”

“Each time they keep coming up with the answer, but he doesn’t like the answer,” Donnelly said. “The sad part is that the Tiki Bar has been, for six years, just simply trying to operate its legal business.”

“It’s not that I don’t like the answer,” Ross said. “I think the answer is not in line with the zoning laws and [is] illegal, as it was found by the Court of Special Appeals.”

kfitzpatrick@somdnews.com