Anne Arundel County v. Maragousis

Singley, J., delivered the opinion of the Court. In 1964, Steve Maragousis and Maria Maragousis, his wife (the Maragousises) purchased, for $25,000.00, an unimproved tract containing 3.191 acres in the First Assessment District of Anne Arundel County (the County). At the time the Maragousises bought the property, about one acre, abutting the southwest quadrant of the intersection of Maryland Routes 2 and 214, was zoned Heavy Commercial; the remainder, Agricultural. In a comprehensive rezoning of the First District by Bill 88-71 adopted by the County Council on 30 December 1971, the Maragousises’ property was reclassified as Deferred Development District.

The Maragousises, believing themselves aggrieved by the action of the County Council, sought declaratory relief in the Circuit Court for Anne Arundel County. 1 From a decree declaring §§ 13-320 through 13-320.4 of Article VI of the County’s zoning regulations unconstitutional as applied to the Maragousises’ property, the County has appealed. Anne Arundel County Code (1967, as supplemented) Art. VI, § 13-320, described the underlying purpose of the Deferred Development District classification: “Deferred development districts shall allow for orderly development in accordance with the general development plan by preventing premature piecemeal development that is non-comprehensive in nature, and is detrimental to the economic viability of the county. Said districts shall allow for (a) the continuance of ex ¹³³ isting uses in areas where increased development should be deferred, (b) areas which are essentially rural in character, and (c) areas which, although designed for development in the general development plan, lack the essential public services for comprehensive development and are in need of more detailed study.” This was followed by §§ 13-320.1 through 13-320.4 which contain an enumeration of permitted uses, including those permitted by special exception, and area and setback requirements: “Section 13-320.1. Uses permitted.

(a) The following uses shall be permitted in DD—Deferred Development Districts : (1) Auction establishments (temporary uses only). (2) Farming. (3) Single family detached residences. (4) Public recreational structures and uses.

(5) Temporary stables. (6) Temporary stands for sale of produce raised on the premises. (b) All uses proposed for areas having a water table of less than five feet (5') below surface must be approved by the Anne Arundel County Health Department. “Section 13-320.2. Special exceptions.

(a) The following special exceptions shall be permitted in DD—Deferred Development Districts: (1) Amusement enterprises not including any permanent structures. ¹³⁴ (2) Outdoor drive-in theatres. (3) Public utilities and uses. (4) Sand and gravel operations. (b) The following uses shall be permitted as special exceptions in Deferred Development Districts only in accordance with the conditions hereinafter set forth (in addition to other provisions of this heading and article XI of this Subtitle) . . . .” * * * [There follow provisions, which have been omitted, respecting the granting of special exceptions for planned development of tracts of 100 acres or more for residential or industrial purposes and for planned commercial complexes of from 10 to 25 acres.] “Section 13-320.3.

Area requirements. Each principal structure together with its accessory structures and uses shall be located on a lot having a net area of not less than five (5) acres. Not more than five percent (5%) of the net area of any lot shall be covered by the principal structure, accessory structures and uses. “Section 13-320.4. Setback requirements.

No structure shall be located less than fifty feet (50') from a lot line . . . .” What disturbed the chancellor was the five-acre minimum lot requirement of § 13-302.3. He found, and we agree, that a literal reading of this section would deprive the owner of a three-acre parcel of any reasonable use of his property, 2 which amounts to an unconstitutional taking without compensation, Spaid v. Board of County Comm’rs, 259 Md. 369, 387-88 , 269 A. 2d 797 ¹³⁵ (1970); Poe v. Baltimore City, 241 Md. 303, 306-07 , 216 A. 2d 707 (1966); Mayor and Council of Rockville v. Cotler, 230 Md. 335, 340 , 187 A. 2d 94 (1963); Frankel v. City of Baltimore, 223 Md. 97, 103-04 , 162 A. 2d 447 (1960), and see Kracke v. Weinberg, 197 Md. 339, 347 , 79 A. 2d 387 (1951). However, after the case had been tried below, and after this appeal had been entered, § 13-320.1 and § 13-320.3 were amended by Bill 159-72, which by its terms, took effect on 12 January 1973, four days before the case came before us. As amended, § 13-320.1 now reads: “(a) The following uses shall be permitted in DD—Deferred Development Districts: (1) Auction establishments (temporary uses only).

(2) All uses set forth in Section 13-303.1 of this Subtitle.” Section 13-320.3 was expanded by the addition of a new Subsection (b) : “(a) Each principal structure together with its accessory structures and uses shall be located on a lot having a net area of not less than five (5) acres. Not more than five percent (5%) of the net area of any lot shall be covered by the principal structure, accessory structures and uses. “(b) Notwithstanding the minimum lot requirements of this heading, a residential dwelling may be constructed on any separate parcel of property legally recorded prior to the effective date of this Subtitle, provided all other requirements of this Subtitle are met.” The uses permitted by § 13-303.1, incorporated by reference, are those permitted in R A Districts: ¹³⁶ “Sec. 13-303.1. Uses permitted. (a) The following uses shall be permitted in RA—Agricultural Residential Districts: (1) Accessory buildings and uses.

(2) Animal husbandry. (3) [Repealed] (4) Churches and ancillary uses (minimum site of two (2) acres). (5) Cluster development, in accordance with the provisions of sections 13-307 through 13-307.7, inclusive. (6) Dairies.

(7) Dwellings, one-family detached. (8) Farm tenant houses. (9) Farming. (10) Fish and game hatcheries.

(11) Forestry. (12) Fur farming (not less than fifty feet (50') from any lot line). (13) Golf courses. (13A) Home occupations.

(14) Nursery farms (greenhouses). (15) Off-street parking, in accordance with the provisions of article VIII. (16) Private camps, for seasonal residence only. (17) Public parks, playgrounds, and other recreational areas.

(18) Roadside stands (temporary seasonal structures selling only the produce grown on the premises). (19) Sale of Christmas trees (between December 5 and December 25). (20) Signs, in accordance with the provisions of article IX. (21) Swimming pools, community.

(22) Swimming pools, private, in accordance with the provisions of section