Antwerpen v. Baltimore County

SALMON, Judge. This is a zoning case. The property affected by the zoning consists of approximately 2.5 acres zoned B.M. (Business Major) and is located on the northwest corner of the intersection of Brenbrook Drive and Church Lane in the Randallstown area of Baltimore County.

It is improved with a large automobile dealership building. Adjoining the building is an outdoor sales area. The property is owned by Jack Antwerpen and Antbren, LLC (hereafter “Antwerpen”). ¹⁹⁶ The selling of used automobiles is the business of 3636 LLC, D/B/A Prestige Imports (“Prestige”). Antwerpen’s goal is to move Prestige’s used-car operation lawfully onto the subject property.

In preparing for the move, Antwerpen learned that the Baltimore County zoning office took the position that a used-automobile dealership was not permitted in the B.M. zone. Antwerpen took a contrary position, and on August 2, 2001, Antwerpen filed a petition for special hearing with the Baltimore County Department of Permits and Development Management. . The request for a “Special Hearing” was made pursuant to Section 500.7 of the zoning regulations of Baltimore County. Antwerpen asked for a determination of whether it was permissible in a B.M. zone to use the land for “[t]he sale of used automobiles as a principal use in an automobile sales room and adjoining outdoor sales area.... ” At the time the petition for special hearing was filed, Baltimore County Zoning Regulation (BCZR) Section 233.2 provided that the following was a permitted use in a B.M. zone: Automobile sales room and adjoining outdoor sales area, provided that dismantled or junk cars unfit for operation on the highways shall not be stored outdoors.

In the B.R. (Business Roadside) zone, which allows more intense uses than the B.M. zone, one can operate “a used automobile vehicle outdoor sales area, separated from a sales agency building,” only if a special exception is granted. See Section 236.4 of the BCZR. 1 Reading Sections 233.2 and 236.4 in tandem, the Baltimore County zoning office had, for a number of years prior to Antwerpen’s petition for a special hearing, taken the position that Section 233.2 permitted sales of new but not used automobiles in a B.M. zone. ¹⁹⁷ The Baltimore County Zoning Commissioner’s policy manual, which is authorized by Section 26-135 of the BCZR, permits the director of the zoning office to promulgate rules and policies as a guide to the application of zoning regulations. The policy manual includes a chart of permissible uses in various zones.

That chart indicates that the use of property in a B.M. zone for used car sales is prohibited. On September 4, 2001, the Baltimore County Council passed Bill 71-01. The purpose of that bill was to make it clear “that new car sales are permitted as of right in the B.M. zone but that used-car outdoor sales areas were permitted in the B.M. zone only by special exceptions as part of a commercial planned unit development [‘PUD’]____” Bill 71-01 was to take effect on October 19, 2001. The explanatory note accompanying Bill 71-01 reads as follows: Bill 71-01 proposes to amend the Zoning Regulations in order to clarify the types of automobile sales facilities permitted in the business zones of the County.

Under current law, new automobile sales rooms are permitted in the BM (Business, Major) zones of the County as a matter of right, while used car sales are permitted by special exception in the BR (Business, Roadside) zones of the County. A recent decision by the County Board of Appeals has caused some confusion in this area. The Board has recently held that since there is no definition of the term “automobile sales room” in the Zoning Regulations, both new and used car facilities are permitted as a matter of right in the BM zones. Bill 71-01 proposes to amend Section 233.2 of the Zoning Regulations (uses permitted by right in the BM zones of the County) by clarifying that new automobile sales facilities are permitted as a matter of right in the BM zones of the County.

The bill also amends Section 440.4.C. in order to permit a used motor vehicle outdoor sales area (currently permitted by special exception only in the BR zones) in the BM zones ¹⁹⁸ by special exception if it is part of a commercial planned unit development (PUD-C). On September 11, 2001, which was exactly one week after Bill 71-01 was enacted, a hearing was held before Deputy Zoning Commissioner Timothy M. Kotroco to consider Antwerpen’s request for hearing. The fact that the Baltimore County Council had passed Bill 71-01 was not brought to the deputy zoning commissioner’s attention at the hearing. This lapse was possibly due to the absence of any opponents to Antwerpen’s request.

On September 18, 2001, the deputy zoning commissioner filed a four-page “finding of fact and conclusion of law” in which he resolved the issue raised in the request for hearing. He said, in material part, as follows: Historically, the Zoning Office (the Department of Permits and Development Management {DPDM}), has always construed ... section [233.2] to be limited to only new vehicles. That construction is based on a use designated in Section 236.4 of the B.C.Z.R., which defines the special exceptions permitted in the B.R. zones. Therein, a designated use is “a used motor vehicle outdoor area, separated from a sales agency building.” Since this use is identified in the B.C.Z.R., the Zoning Office has opined that, when these two uses are considered in conjunction with one another, that the use designated in Section 233.2 (i.e.[,] automobile sales room and adjoining outdoor sales area ... ) is for new cars, only.

The reasoning is that because the use defined in Section 2364 designated used vehicles, the absence of such language in Section 233.2 must mean that the vehicles to be sold are new. To say the least, this interpretation endorsed by DPDM is strained. Not only does the use designated in Section 233.2 not utilize either the words “new” or “used,” but the uses described in Sections 233.2 and 236.4 above are clearly different. That is, certain restrictions on the use described in Section 236.4 relate only to an outdoor lot, without a ¹⁹⁹ building, whereas the use defined in Section 233.2 clearly requires some structure.

Complicating the issue is the definition of “service garage,” as set out in Section 101 of the B.C.Z.R. The language therein defines that use as “a garage, other than a residential garage, where motor driven vehicles are stored, equipped for operation, repaired or kept for remuneration, hire or sale.” ([Ejmphasis added[.]) Thus, sale of motor driven vehicles is a primary component of the service garage use. Service garages are permitted by right in the B.M. zone. In my judgment, the proper approach is to consider each petition on a case by case basis. In reviewing the record of this case, it is my judgment that the proposed use should be permitted.

(Emphasis added.) The Office of People’s Counsel for Baltimore County filed, on September 28, 2001, a notice of appeal from the ruling by the deputy commissioner. Also on September 28, 2001, the State of Maryland issued a license to Prestige to sell used automobiles on the subject property. Twelve days later, on October 10, 2001, Prestige began using the subject property for the sale of used cars. 2 While the matter was pending before the Board of Appeals (“the Board”), the People’s Counsel filed a motion to dismiss Antwerpen’s petition for special hearing. The People’s Counsel pointed out that (1) Antwerpen’s appeal to the Board was de novo; (2) Bill 71-01 allowed used-car sales in a B.M. zone “only by a special exception and under [the] Planned Unit Development — Commercial (PUD-C)” zone; (3) Bill 71-01 ²⁰⁰ became effective on October 19, 2001; (4) Antwerpen had obtained no special exception; and (5) under principles set forth in Powell v. Calvert County, 368 Md. 400 , 795 A.2d 96 (2002), the Board was required to apply the law as it presently stands.

Penultimately, movant asserted that applying that current law, Antwerpen had no right to operate a used-ear lot on the subject property without a special exception and therefore the request for special hearing should be dismissed. At the hearing before the Board, counsel for Antwerpen argued: (1) at the time the petition for' hearing was filed, operating a used-car lot in a B.M. zone was legal; (2) in the request for a special hearing, Antwerpen simply wanted the deputy zoning commissioner to confirm the fact that he had a right to operate the used-car lot in the B.M. zone; and (3) at the time Bill 71-01 went into effect, Antwerpen had already established a nonconforming use. Counsel for Antwerpen summarized his argument as follows: What we were doing in this particular case was permitted as of right in a B.M. zone, and therefore, when the amendment [Bill 71-01] kicked in in this case, all it changed was it turned us from being a conforming use under the then-present zoning regulations to a non-conforming use under the present zoning regulations.... In other words, Antwerpen contended that it had vested rights to continue using the property for used-car sales as of October 19, 2001, the effective date of the statute.

In its opinion, the Board said, in pertinent part: In support of its position, [Antwerpen] cite[s], among other cases, a case decided by this Board In The Matter Of The Application of G.C. & R.L., Ltd., Case No. 99-324-SPH, in which this Board held that a used car operation was allowed in a B.M. zone since the language of the [then] current legislation did not appear to restrict the automobile dealership to a new car operation. That case was appealed by People’s Counsel to the Circuit Court for Baltimore County in Civil Action No. 3-C-00-3846. The [c]ourt returned the case to the Board for clarification. The Board ²⁰¹ affirmed its earlier decision on March 25, 2001, and the case is back before the [cjircuit [c]ourt.

Petitioners contend that they never sought a special exception but only a declaration by the [d]eputy [zjoning [cjommissioner that what they were proposing to do was in conformance with the law. They contend that as long as the Zoning Commissioner was right, that is, that the operation of a used automobile facility was in conformity with the zoning regulations as of the time that the use began, Antwerpen’s use is permissible, even after the amendment to the zoning regulations, because it became a lawful nonconforming use. They cite Mayor and City Council of Baltimore v. Dembo, Inc., 123 Md.App. 527, 531 [, 719 A.2d 1007 ] [ (1998) ], and Lone v. Montgomery County, 85 Md. App. 477, 496 [, 584 A.2d 142 ] (1991). These cases stand for the proposition that “a lawful nonconforming use is established if a property owner can demonstrate that before and at the time of the adoption of the zoning ordinance, he was using his land in a then-lawful manner for a use which by later legislation became non-permitted.” Decision ...

While the Board did interpret § 233.2 of the BCZR to allow the operation of a used car dealership in a B.M. zone in the G.D. & R.L. case (Case No. 99-324-SPH), that decision was contrary to a long-standing interpretation of [c]ounty agencies. In addition, the decision was appealed by People’s Counsel to the Circuit Court for Baltimore County and said appeal is still pending; therefore, the decision cannot be interpreted as being the law in effect at the time that the [petitioners sought clarification before the Zoning Commissioner. It is the Board’s understanding that the building at 36 Brenbrook Drive is still unoccupied, and therefore the [p]etitioners cannot claim a nonconform ²⁰² ing use since no utilization has been made of the building at this time for used car sales. However, even if the used car operation had been begun at the property, the Board would still find that the [petitioners acted at their own risk, and that, because of the pending appeal, they had no vested right in the operation of a used car dealership at that site.

The Board relies on the decision of Judge Cathell in the Powell case (supra) and finds that the new law effective October 19, 2001, in which the Council amended § 233.3 and § 440.4, is controlling. The appeal of Deputy Zoning Commissioner Kotroco’s decision by the People’s Counsel brought the matter before the Board in a de novo posture. His ruling could not be effective pending the decision by this Board. (Emphasis added.) There was no support in the record for the Board’s “understanding” that Antwerpen’s building at 36 Brenbrook Drive (the subject property) was “still unoccupied.” Moreover, the People’s Counsel, in his argument to the Board, never even suggested that Antwerpen had not operated a used-car lot on the premises between the time of the deputy zoning commissioner’s decision and October 19, 2001, the effective date of Bill 71-01.

Antwerpen filed, in the Circuit Court for Baltimore County, a petition for judicial review of the Board’s decision. The circuit court affirmed the Board’s decision to grant People’s Counsel’s motion to dismiss. It did so on the basis that (1) Antwerpen had failed to show a nonconforming use and (2) therefore, because a reviewing court must apply the law in effect at the time of its decision, Antwerpen had no right to use the land in question for used-car sales at any time after October 19, 2001. This timely appeal followed.

II

ANALYSIS Antwerpen first argues that the circuit court erred when it affirmed the Board’s grant of the motion to dismiss on ²⁰³ the grounds that Antwerpen was not operating an automobile dealership on the subject property prior to October 19, 2001. In support of that argument, Antwerpen points out that the Board “ruled only on People’s Counsel’s motion to dismiss,” and therefore there was “never any evidence heard by the [Board] at the hearing on the motion to dismiss.” Appellants also point out, accurately, that their counsel clearly proffered to the Board that a used-car dealership was being operated on the subject property prior to the effective date of Bill 71-01. We agree with Antwerpen that this case should not have been dismissed on the grounds that Antwerpen never utilized the property for used-car sales before October 19, 2001. Prior to listening to argument by counsel at the hearing, the Board made it clear that it would consider only legal issues, i.e., those issues raised by the People’s Counsel in its motion to dismiss.

And, as mentioned supra, People’s Counsel argued that the case should be dismissed for two intertwined reasons, viz: (1) Antwerpen has no vested right to use the property for used-car sales because the deputy zoning commissioner’s ruling was never final inasmuch as it was the subject of a de novo appeal, and (2) the Board was required to apply the provisions of Bill No. 71-01, which was the law that was in effect at the time the Board