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A Drive-In Does Battle With Its Neighbor

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D. Edward Vogel is the owner of Bengies Drive-In.
Martin DiCaro
D. Edward Vogel is the owner of Bengies Drive-In.

Mention to D. Edward Vogel that he just won an $838,000 jury award and he answers in a voice dripping with incredulity.

"Did I?"

Yes, he did. But the owner of the famous Bengies Drive-In movie theater in Baltimore County says his third-generation family business is still teetering.

Vogel successfully sued the owners of the Royal Farms gasoline and convenience store chain after a four-year battle over the lighting at the Royal Farms franchise across four-lane Eastern Boulevard from the theater in Middle River. The verdict will allow Vogel to purchase an 800-foot-long fence to shield his property from the gas station lights that he claims are distracting his patrons as they watch movies on his giant outdoor screen.

The jury, however, did not award Vogel damages. In fact, he has not lost business since the Royal Farms store opened in 2008, but he insists that the distracting light has prevented him from constructing a second movie screen necessary to keep his theater profitable.

"The business numbers are not down," he says. "They are always up. Is the bottom line? No. You are looking at a 56-year-old physical plant. Look what I haven't done in the last four years because I have been spending money on legal fees," pointing to his weather beaten refreshments stand and projection room facility.

The reason why Vogel is not celebrating his legal victory is that Royal Farms has filed a motion to have the jury award dismissed. Failing that, the company plans to appeal the verdict.

A family business, a labor of love

Vogel tries to immerse his patrons in nostalgia to recall an era when taking the family to the drive-in was routine in roadside America. The trailers that play before the feature film are straight out of the 1950s. Gold hits blare from the speakers at his refreshment stand that serves tubs of buttery popcorn. In the projection room, Vogel bounces like a pinball, empty reels under his arm, from one projector to the other to prepare his audience for the typical Friday night triple feature.

In this atmosphere it is easy for him to remember the first time his father let him into the projection room at 9 years old. His father actually designed and constructed the 52-by-120-foot movie screen.

"When the odds are this far stacked against you, I'll tell you what makes me sad," Vogal says. "It makes me sad for the citizens of Maryland. I have hunkered down. You see what the place needs that I haven't afforded because of this expense over the last several years. How much more can I do? I would spend my last dime trying."

Royal Farms stunned at losing lawsuit

The Royal Farms store at 3320 Eastern Boulevard has not been cited for a single zoning violation since it opened in 2008, despite repeated complaints by Vogel filed with the county Department of Permits and Development Management (now known as the Department of Permits, Approvals and Inspections).

"Our concern here is that we at Royal Farms complied with the county regulations," says Royal Farms president John Kemp. "We built the store with zero light migration and we have bent over backwards trying to basically rectify any issues that have come up."

Vogel has claimed that the store's lighting violates a county order issued in January 2003, signed by then Zoning Commissioner Lawrence Schmidt. The order concerned the future use of the property, which was then owned but never developed by BP.

"It is essential that improvements on the subject property be constructed, and the use operated so as to not unduly impact the outdoor movie theater," Schmidt said. "Any lighting that inappropriately spills into adjacent properties could cause detrimental impact to those properties, including the Bengies Drive-In movie theater."

The county sent inspectors down to review Mr. Vogel's complaints dozens of times. Royal Farms' attorney Alan Abramowitz says his client has always abided by the 2003 order.

"At no time has Royal Farms been cited despite repeated years of complaints by Mr. Vogel," he says. "Our experts testified not a single foot-candle of light makes it across Eastern Boulevard, let alone past the businesses, past the fence, past the tree line."

Moreover, Bengies customers did not complain about the lights, Abramowitz says.

"During the course of discovery we asked to see all of the emails from all of their customers from the time Royals Farms opened at the end of 2008 up until the date of trial," he says. "There was not a single patron who complained about the quality of the screen, about the lights coming from the Royal Farms store. There was not a single complaint."

Kemp says his own customers have complained that the lights at the gas station are too dim.

Bengies' witnesses convinced the jury

The Royal Farms lights are visible through the trees at the edge of the Bengies property along Eastern Boulevard, although they do not illuminate the theater. Vogel's attorney, T. Wray McCurdy, convinced the jury those lights are nonetheless distracting and damaging to Bengies' product.

"Baltimore County didn't even own a light meter to measure the light that was coming on to the Bengies Drive-In," says McCurdy, casting doubt on the validity of the many inspections that were done. "They would stand on the drive-in site and tell my client he was fine."

McCurdy's lighting experts testified that the Royal Farms lights, which enter moviegoers' peripheral vision from their right, are brighter than the images on the giant outdoor movie screen.

"We had luminance meter readings," McCurdy says. "Royal Farms signs were anywhere from 10 to 100 times brighter than the movie attempting to be projected onto the screen."

Before Royal Farms built its store, the company was required to submit a lighting plan to Baltimore County Landscape Architect Avery Hardin. The plan was approved; Hardin even called it unprecedented for its use of LED recessed fixtures. However, at trial, Hardin testified that Royal Farms has used lights different than those approved in the original plan. McCurdy believes that the trial turned on Hardin's testimony and the luminance meter readings.

"Any independent citizen that listens to the evidence in this case would know... that they violated the law of nuisance," McCurdy says.

Bengies future?

Vogel says he has to be able to build a second screen to stay afloat, but he will not do so until he can build a fence around the portion of his property facing Eastern Boulevard.

"In 2008, I did not take a 16-acre parcel of drive-in movie theater, designed and built by a famous architectural engineer, a perfect example of roadside America, I did not take that and park it next to a brightly lit farm store," he says. "That's not what happened here, and the fact that I was here first apparently doesn't mean anything at all. Wrap your mind around that."

A fence would provide a permanent solution to his problems, according to the former county official who ran the county's Department of Permits and Development Management during the years Vogel battled Royal Farms, because even more businesses are coming to that stretch of Eastern Boulevard that could present problems for Bengies.

"The Royal Farms causes no problems with their lights," says Tim Kotroco, now an attorney in private practice. "But there are other businesses that by law and by right can locate next to the Royal Farms. That area was approved for four commercial lots. The other three lots are vacant right now. They've been approved for a fast food restaurant, a bank, and a small retail strip. They are all going to have parking lot lights; they are all going to have signs."

Kotroco, who was called to testify at trial, says Royal Farms did nothing wrong and he was shocked by the jury's verdict.

"When I went down to the property with Mr. Vogel, I identified some lighting that wasn't even on the Royal Farms store," he says. "Street lights BG&E had on Eastern Boulevard that were put up 30 or 40 years ago, those mercury-vapor looking lights that have no shielding around them, those were more offensive than anything Royal Farms had."

[Music: "Theme Reprise" by The Cinematic Orchestra from The Cinematic Orchestra]

Photos: Bengies Drive-In


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