Arundel Corp. v. County Commissioners

RODOWSKY, Judge. The Board of Zoning Appeals of Carroll County (the Board) dismissed without hearing the petitioners’ applications for conditional uses. The Board held that the content of the applications was governed by an amendment to the zoning ordinance that was enacted after the applications had been filed. We shall hold that applying the amendment in that retrospective fashion was error.

The Carroll County Zoning Ordinance (the Ordinance) identifies “extractive operations” for special treatment. Prior to February 24, 1988, § 20.14 of the Ordinance defined extractive operations as “[t]he extracting or mining of sand, gravel, limestone, soapstone, or building stone.” In an agricultural district extractive-type industries are permitted only as conditional uses. Such uses require Board authorization, subject to the requirements of § 14.4 of the Ordinance. See § 6.8(f).

Prior to February 24, 1988, Ordinance § 14, Division IV set forth certain general regulations for extractive operations and processing, but it estab ⁵⁰⁶ lished no special requirement for the information which was to accompany an application for a conditional use for extractive operations. At that time instructions in the Board form of March 1983, “Application for Hearing,” listed information to be presented, apparently with applications for hearings of any type. 1 On February 24, 1988, the petitioners, The Arundel Corporation and Tidewater Quarries, Inc. (collectively, Arundel), filed with the Board two applications for hearing for conditional uses for extractive-type industries. One application related to approximately 265 acres and the other, titled “Amended Application for Hearing,” related to an approximately 125 acre site. While these applications were pending, but prior to hearing thereon, the respondent, County Commissioners of Carroll County, Maryland (the County), enacted Ordinance No. T-75 which, inter alia, added a new § 14.43 to the Zoning Ordinance.

In outline, new § 14.43 provided as follows: “DOCUMENTATION TO ACCOMPANY A PETITION FOR AN ‘AE’ DESIGNATION. A Petition for an ‘AE’ designation shall be accompanied by: (a) A detailed site development plan____ (b) A copy of all necessary State permits or letters of certification from each State agency that it ... is prepared to issue its permit____ (c) A comprehensive hydrogeologic study____ (d) The approved land reclamation and restoration plan required by State law. (e) A map of the proposed truck haul routes____ (f) A noise analysis____ ⁵⁰⁷ (g) A description of dust control measures to be employed on site. (h) Hours of operation.

(i) A description of environmental impacts and planned mitigation measures. (j) Any additional information as may be required by the Planning Commission or the County Commissioners.” The effective date provision of T-75 reads in relevant part: “This ordinance shall become effective immediately. ... If this ordinance is not filed or published it shall be effective in any event.” Ordinance T-75 was adopted at a public meeting on March 28, and executed by the County Commissioners on March 31. Notice of adoption was published on May 2, and the ordinance was filed with the Clerk of the Circuit Court for Carroll County on May 31, 1988.

In this case the circuit court held that Ordinance T-75 became effective March 28, 1988. We shall assume, without deciding, that that is the effective date. 2 On May 5 a representative of the Board attempted to return the Arundel applications to its counsel, but counsel refused to accept them. Then, on June 10, 1988, the Board wrote to counsel for Arundel, stating in relevant part: “Ordinance T-75, adopted and effective March 28, 1988, governs ... the Board in processing the applications for public hearings. The amendment provides no exception for processing, for public hearing, applications filed before the effective date. “As neither application complies with the provisions of Article 6, Section 6.3(f) and Article 14, Division IV, Section 14.43 of the zoning ordinance, the Board is without ⁵⁰⁸ jurisdiction to: (1) process the applications for public hearing, and (2) hold the public hearings.” Then, by letter of June 24, 1988, the Board advised Arundel’s counsel that the June 10 letter “constitutes the Board’s official and final decision in this matter.” Arundel noted an administrative appeal under Md.Code (1957, 1988 Repl.Vol.), Art. 66B, § 4.08, and the County intervened.

In its legal memoranda to the circuit court Arundel argued three points in addition to unlawful retrospective application of Ordinance T-75: (1) that T-75’s subject matter was preempted by state statutes dealing with natural resources; (2) that Ordinance T-75 undertook to regulate beyond the County’s zoning power; and (3) that Ordinance T-75 was void for vagueness. The circuit court ruled that new § 14.43 of the Ordinance contained “substantial alterations of then-existing zoning law, significantly increasing the burden on [Arundel].” This the circuit court viewed to be “basically unfair” when retroactively applied. That court reversed the order of the Board “refusing to process two Applications ... for a Conditional Use to permit quarrying and extractive-type industries in Carroll County’s Agricultural District.” The cases were remanded to the Board “with instruction that it consider the Applications in accordance with the relevant provisions of the County Zoning Ordinance in effect on February 24, 1988.” The circuit court did not consider the additional issues which Arundel had raised. The County appealed to the Court of Special Appeals.

Arundel cross-appealed, arguing preemption, an exceeding of zoning power, and vagueness. The Court of Special Appeals held “that Ordinance T-75 does not affect matters or rights of substance. It is a change in the Zoning Ordinance affecting procedure only, and, as such, may be applied to pending actions.” County Comm’rs of Carroll County v. Arundel Corp., 82 Md.App. 418, 426 , 571 A.2d 1270, 1274 (1990). ⁵⁰⁹ Alternatively, the Court of Special Appeals held that a prospective application of T-75, pursuant to Washington Suburban Sanitary Comm’n v. Riverdale Heights Volunteer Fire Co., 308 Md. 556 , 520 A.2d 1319 (1987), would produce the same result. Pointing out that no decision had been made whether the conditional uses would be granted, the intermediate appellate court said that “when it first came time to render a decision, the existing law was Ordinance T-75.

Such law must be applied.” 82 Md.App. at 427 , 571 A.2d at 1274 . As a further, alternative holding, the court said that even if there were a retroactive application of Ordinance T-75, it “would not be ‘basically unfair’ as proscribed in T & R Joint Ventures v. Office, Planning & Zoning, [ 47 Md.App. 395 , 424 A.2d 384 (1980) ].” 82 Md. App. at 427 , 571 A.2d at 1274 . The Court of Special Appeals remanded the cases to the circuit court to decide the validity of Ordinance T-75 “in light of the preemption, vagueness and due process challenges argued by [Arundel].” 82 Md.App. at 428 , 571 A.2d at 1275 . We granted Arundel’s petition for certiorari.

In its brief to this Court, Arundel, in addition to contending that the Board illegally applied Ordinance T-75 retrospectively, argues the preemption, exceeding zoning power, and vagueness issues. I The order of the Board from which this administrative appeal was noted dismissed Arundel’s applications because they did not comply with new § 14.43 of the Ordinance. The Board’s articulated reasons for its decision do not suggest that the applications for hearing failed to comply with the law in effect when the applications were filed. Ordinance T-75, adopted March 28, 1988, more than one month after the applications were filed, plainly states that it “shall become effective immediately.” Its text contains no language attempting to give Ordinance T-75 a ⁵¹⁰ retrospective application to the content of applications previously filed. “As a general rule, statutes are presumed