Prince George County v. Ray's Used Cars (Ct. of Appeals)

Filed May 4, 2003--Opinion by Judge John Eldridge.

This case concerns a challenge to the constitutionality of a zoning ordinance establishing the minimum lot size of 25,000 square feet for used motor vehicle, mobile home or camping trailer sales lots. The dispositive issue in the case, however, is whether the ordinance's challengers were first required to invoke and exhaust administrative remedies. The petitioner, Prince George's County, argues that a judicial determination of the constitutionality of the zoning ordinance is premature because the respondent used car dealers failed to invoke and exhaust their administrative remedies. The respondents claim that pursuit and exhaustion of administrative remedies were not required in this case and that the zoning ordinance is unconstitutional on the ground that it violates due process and equal protection principles.

The Court held that the respondent used car dealers were required to invoke and exhaust administrative remedies prior to obtaining judicial review.

The full opinion is available in PDF.

Layton v. Howard County Board of Appeals (Ct. of Appeals)

Filed May 9, 2007. Opinion by Judge Dale R. Cathell. Dissenting opinion by Judge Alan M. Wilner (retired, specially assigned).

From the official headnote:

Reaffirming the Yorkdale Corporation v. Powell, 237 Md. 121, 205 A.2d 269 (1964) rule that a change in statutory law that takes place during the course of the litigation of a land use or zoning issue shall be retrospectively applied by appellate courts whether it operates to deny, i.e., moot an application (provided that it does not affect the vested rights of a party), or applies in an opposite context.

The owners and operators of a wildlife and primate sanctuary ("Layton") had sought a special exception from the Howard County Board of Appeals (the "Board") to bring their operation into compliance with that county's zoning ordinances, but were denied permission to operate as a primate sanctuary. Prior to the Circuit Court's hearing of Layton's appeal of the Board's decision, the pertinent part of the Howard County Code was amended, changing the definition upon which the Board had relied in denying the special exception. Nonetheless, the Circuit Court affirmed the Board's decision, ruling in part that the change was not to be given retroactive effect. The Court of Special Appeals, in a reported decision, affirmed.

On appeal, the Court noted that the general rule is that statutes, and substantive statutory changes, are to be given only prospective, and not retrospective, effect, unless otherwise indicated by the legislature. One relevant exception to the general rule was stated in the Yorkdale case, where retrospective application is given to changes to statutes that impact land use issues made during the course of litigation in land use and zoning cases, unless vested or accrued substantive rights would be disturbed or the legislature had shown a contrary intent. Reviewing the cases since Yorkdale, the Court concluded that the rule set forth in Yorkdale was still good law, and had not been overturned, in the Riverdale case, the CSA's Holland case, or otherwise.

In dissent, Judge Wilner argued that, though the Court had treated zoning cases differently in the past, there was "no practical or jurisprudential basis for such a distinction, and the Court offers none." Absent legislative expression that a law is to be applied retrospectively, Judge Wilner argued for a consistent rule that prospective application would be given to substantive changes, and retrospective application only for procedural changes, and overruling the exception created in Yorkdale and its progeny.

The majority and dissenting opinions are available in PDF format.

City of Bowie, Maryland v. MIE, Inc. (Ct. of Appeals)

Filed May 4, 2007. Opinion by Judge Glenn T. Harrell, Jr..

From the official headnote:

REAL PROPERTY - RESTRICTIVE COVENANTS - THE STANDARD FOR DETERMINING IF A RESTRICTIVE COVENANT REMAINS VALID IS WHETHER, AFTER THE PASSAGE OF A REASONABLE AMOUNT OF TIME, A CHANGE IN CIRCUMSTANCES HAS OCCURRED, SINCE THE COVENANTS’ EXECUTION, RENDERING THE PURPOSE OF THE COVENANT OBSOLETE.

REAL PROPERTY - RESTRICTIVE COVENANTS - WAIVER - THE ASSERTING PARTY BEARS THE BURDEN OF PROVING WAIVER BY ACQUIESCENCE DEFENSE.

ZONING - A MUNICIPALITY WITHOUT ZONING AUTHORITY DOES NOT ENGAGE IN ILLEGAL CONTRACT ZONING WHEN IT ASSERTS LIMITATIONS ON THE USE OF LAND BASED ON A RESTRICTIVE COVENANT IT HAS THE RIGHT TO ENFORCE.

CIVIL PROCEDURE - FAILURE TO JOIN NECESSARY PARTIES - THE NONJOINDER OF AN ASSERTEDLY NECESSARY PARTY MAY BE EXCUSED WHEN THAT PARTY FAILS TO JOIN THE LITIGATION AS A PARTY DESPITE ITS KNOWLEDGE OF THE LAWSUIT POTENTIALLY AFFECTING ITS INTERESTS,
VERIFIED BY THE FACT THAT THE PARTY TESTIFIES AT TRIAL.

In an appeal by Bowie from an unreported Court of Special Appeals decision, the Court of Appeals REVERSED the appellate decision below and REMANDED to that court with direction to affirm the original judgment of the trial court, which had upheld the validity of covenants affecting a parcel of real property in Prince George's County.

(synopsis to follow)

The opinion is available in PDF format.

Becker v. Anne Arundel County (Ct. of Special Appeals)

Filed April 9, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING – CRITICAL AREA PROGRAM

Amendments to State and county critical area laws, absent an express statement as to prospective or retrospective application, apply to matters pending and not yet decided by the agency responsible for de novo decision making.

When a board of appeals denies an application for a variance, and the property owner has a legal right to build on the property, but cannot do so without a variance, it is not sufficient for the Board to state that the owner had not met its burden of proof. The Board must explain and give reasons for its denial of the requested variance.

On appeal from the affirmation by the Anne Arundel Couty Circuit Court of the Board of Appeals' denial of variances needed to permit construction of a home by the owner ("Becker") on a waterfront parcel subject to the Critical Area Program, the Court REVERSED the decision below and REMANDED to the Circuit Court with instructions to vacate the decision of the Board and remand the case to the Board for further proceedings consistent with this opinion.

Becker applied for three variances needed to allow the construction of a proposed dwelling on a lot on the Magothy River, 97% of which was within the 100-foot critical area buffer. After taking testimony in a de novo hearing, the Anne Arundel County Board of Appeals (the "Board") denied the variances, and Becker appealed to the Circuit Court, which affirmed the Board's decision.

Upon appeal, Becker alleged that the Board applied an incorrect and illegal standard in requiring the variances to be the "absolute minimum necessary", failed to make reasonable accommodations for Mrs. Becker's physical disability, erred in ignoring the overwhelming evidence in favor of the variances, ignored the physical evidence supporting the variance criteria, and erred in "taking" Becker's property without just compensation.

The Court found that the state legislature had been very clear in strengthening the Critical Area Program by amendment, in direct response to several cases indicating some judicial leniency, allowing local implementation consistent with the state program. The Court found that a clarifying amendment enacted during the pendency of the matter at issue here did apply, and that the county enactments incorporating the amendments were effective and not preempted by the state provisions.

In reviewing the deliberations by the Board, the Court noted that the two Critical Area-related variences should have been considered separately from the setback variance, since different standards applied, and the reasons for the decision should have been stated with greater particularity, finding no evidence at all in the record to support some of the Board's findings. In context, the Court found the Board had applied the correct standard notwithstanding some language indicating otherwise. The Court also indicated taht the Board must take into account evidence of Mrs. Becker's alleged disability in its considerations. The Court was not willing to entertain Becker's taking argument, since it was not clear that the Board's decision would preclude all economically beneficial use of the property, but noted that denail of variances might, under some circumstances, constitute a taking.

Finally, the Court noted that the Board was not an administrative body which had discretion to do or not do an act, for which a mere statement that the applying party had failed to satisfy the burden of persuasion would suffice, but rather it must grant or deny varience requests, and has an obligation to explain its decision. For that reason, the Court reversed the decision below and remanded with instructions to remand to the Board for further proceedings consistent with the Court's opinion.

The opinion is available in PDF format.

Trail v. Terrapin Run, LLC (Ct. of Special Appeals)

Filed April 6, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING –

Maryland Code Art. 66B, which empowers certain local jurisdictions to adopt zoning codes, does not require a special exception use to be in strict compliance with a local comprehensive plan. A local jurisdiction may require strict compliance, but if it does not, a plan functions as a guide. The local ordinances and comprehensive plan, adopted by a particular jurisdiction, must be reviewed as a whole to determine the role of the plan in a special exception analysis. Thus, the conclusion as to the plan's role does not necessarily turn on the use of a particular word or phrase at a specific location within an ordinance or a plan. If a review of the ordinances and plan as a whole lead to the conclusion that strict compliance with a plan is not
required, the phrases "conforms to," "is consistent with," and "is in harmony with," when used to describe the relationship between a special exception use and a plan, have essentially the same meaning. Held that Allegany County's plan serves as a guide, not a strict regulatory requirement.

Judgment of the Allegheny County Circuit Court denying a special exception for a large-scale planned residential development was REVERSED on appeal, and REMANDED with instructions to affirm the decision of the Board of Appeals allowing the special exception.

This case arose out of the application by the developer ("Terrapin Run") to the Board of Appeals for Allegheny County for a special exception to allow it to construct a large residential community, including community-specific retail space and wastewater treatment plant, which was a permitted use under the applicable zoning classifications requiring a special exception. The Board of Appeals granted the special exception, finding the development to be in harmony with the local comprehensive plan, and that the evidence presented by the appellants ("Trail") did not demonstrate a site-specific adverse effect. The Board also found the retail use to be accessory to the principal residential use.

Trail appealed the Board's decision to the Circuit Court, alleging the Board applied the wrong standard of review, and erred in approving the retail/commercial area and the waste water treatment plant. The trial court declined to address the latter points, but agreed with the first, and reversed the Board's grant of the special exception. On appeal, Terrapin Run suggested the proper standard had been applied below, and the approval of the retail area and the wastewater treatment plant was proper.

The Court noted that, at various places in the statutes, regulations, plans and case law, the terms "conform to", "consistent with" and "in harmony with" are used to describe the necessary relationship of the proposed special exception to the comprehensive plan. After reviewing the relevant law, the Court concluded that the enabling state law, Article 66B, grants considerable discretion to the counties in how they establish land use regulations, ranging from the comprehensive plan being anything from a mere guide to a true regulatory device, notwithstanding Article 66B's phrase "use that conforms to the plan" to describe a "special exception".

Turning to the implementation of a comprehensive plan by Allegheny County, the Court found that the county had declined to use the mandatory terms "shall" or "will", but had instead in several places referred to the plan as a "guide", and had given it little regard in the statutory zoning scheme. From this, the Court found no intent to require strict compliance with the plan, but rather an intent to give the Board wide latitude in interpreting and applying the plan when considering special exceptions.

The Court also found that neither the retail area nor the wastewater treatment plant had to be considered separately and apart from the residential development, since both were clearly incidental and accessory to the primary use, and were appropriately considered and approved with the primary residential development use.

The opinion is available in PDF format.

Swoboda v. Wilder (Ct. of Special Appeals)

Filed April 4, 2007--Opinion by Judge Sally Adkins.

In an appeal from the approval of a Rodgers Forge building permit, the Court held that determining the front, side, and rear orientation of a townhouse end unit situated at the corner of intersecting streets requires consideration of all physical characteristics of the property, not merely street address and foundation walls, and that in an appropriate case an end unit may front on a different street than the interior units in the same townhouse group.

(synopsis to follow)

The opinion is available in PDF.

104 West Washington Street II Corporation v. Hagerstown (Ct. of Special Appeals)

Filed April 3, 2007. Opinion by Judge Peter B. Krauser.

On appeal from the grant of Hagerstown's motion for summary judgment in a case involving a challenge to Hagerstown's Adult Businesses Ordinance, the Court AFFIRMED the decision below.

Appellant ("104") owns and operates Hagerstown's only "adult" establishment, selling books, magazines, videos, lingerie and novelties and providing booths for customers to view adult videos. Reports of drug and sexual activities prompted the police and health departments to take action against the facility, and in 2002 the Mayor and City Council of Hagerstown passed an Adult Business Ordinance (the "ABO"), to regulate the time, place and manner in which Hagerstown's adult businesses could operate.

In 2003, 104 filed a complaint against Hagerstown and its police chief, seeking declaratory and injunctive relief. After a brief removal to the United States District Court, the case was heard by the Circuit Court for Washington County. Several amendments were made to the ABO during the pendency of the case to conform with developing case law, and the trial court eventually granted Hagerstown's motion for summary judgment.

On appeal, 104 claimed the ABO violated the First Amendment to the federal constitution, and Article 40 of the Maryland Declaration of Rights, arguing that the ABO was not "narrowly tailored to serve a significant government function", since there was no "pre-enactment evidence" in the legislative record, and thus the supplemental materials submitted in support cannot sustain the regulation.

The Court, in applying the Renton test, found neither the federal nor the state constitutions require pre-enaction evidence, and that indications of the "negative secondary effects" were before the legislators when the ABO was being enacted. Further, the Court noted that there is no constitutional requirement that the least restrictive means be employed in addressing the problem and 104's objections to the form and timing of certain affidavits submitted to the trial judge in support of Hagerstown's summary judgment motion were found to not be well grounded.

The Court also found little merit in 104's argument that, because the ABO does not contain provisions allowing for judicial review, it constitutes an unconstitutional prior restraint on free speech, since the issue was not raised below, and in any event, ordinary judicial review would be adequate in this case. Finally, the Court found that the ABO did not permit arbitrarily withholding a license, but only for the violation of the statute.

The opinion is available in PDF format.

Cinque v. Montgomery County Planning Board (Ct. of Special Appeals)

Filed March 15, 2007. Opinion by Judge James Kenney.

This case concerns the ability of an administrative agency to reconsider a quasi-judicial decision.

The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "MCPB"), first approved a preliminary plan for a subdivision in Montgomery County's Agricultural Reserve, then reconsidered its decision and denied the proposed plan, and then reconsidered its denial and ultimately approved the application. Appellants, individual property owners and various organizations, argued that the MCPB violated its own Rules of Procedure and the McKinney test in granting the second reconsideration and approving the proposed subdivision.

An administrative agency may grant reconsideration pursuant to a statute or regulation. In the absence of such express authority, an agency has the inherent power to reconsider its decision in the event of fraud, surprise, mistake or inadvertence. Miles v. McKinney, 174 Md. 551, 199 A.2d 502 (1938). In this case, MCPB regulations provided that the agency may reconsider upon "a clear showing that the [agency] did not conform to relevant law or its rules of procedure." Accordingly, when the MCPB accepted the argument of the property owner that the denial of the application was not in accordance with the development standards of the applicable zone, it had a valid ground to grant reconsideration. Neither the fact that the membership of the MCPB had changed nor the fact that one member had reversed his own views made the reconsideration decision an impermissible change of mind.

The opinion is available in PDF.

Purich v. Draper Properties, Inc. (Ct. of Appeals)

Filed December 7, 2006--Opinion by Judge Dale Cathell.
Dissenting Opinion by Judge Glenn Harrell, in which Judges Irma Raker and Clayton Greene, Jr., join.

In Montgomery County, once a special exception is obtained for a particular use of a property and the property is thereafter utilized for that use, a prior nonconforming use that is identical to that for which the special exception is granted is terminated or the six month period of abandonment begins to run. §59-G-4.14 of the Montgomery County Zoning Ordinance. Once the special exception is granted the use becomes "permitted" and, if not sooner terminated, after six months the nonconforming use is abandoned and may not be revived unless additional relief is granted under other provisions of the Zoning Ordinance, i.e., variances, etc.

The full opinion is available in WordPerfect and PDF.