Arundel Corporation v. Board of Zoning Appeals of Howard County

Marbury, J., delivered the opinion of the Court. Appellant, Arundel Corporation, appealed from two adverse lower court rulings, Nos. 230 September Term, 1967 and 305 September Term, 1968, which appeals have been consolidated for argument in this Court since they involve the same subject matter. The first appeal is from an order of the Howard County Circuit Court (Mayfield, J.) dated June 26, 1967, sustaining a demurrer to the appellant’s bill of com ⁸⁰ plaint, without leave to amend. The bill sought to enjoin a hearing by the Howard County Board of Zoning Appeals (Board) on whether a quarry owned ánd operated by Arundel Corporation and Nello L. Teer Co., as contract operators, was a valid non-conforming use.

In support of its bill appellant alleged that certain mixed questions of law and fact were involved in determination of this issue and that the Board was without authority either by statute or zoning regulations to decide such questions. The chancellor sustained the demurrer of appellees, Board of Zoning Appeals of Howard County, Herbert W. Smull, Zoning Commissioner, and Percy W. Filby and Vera R. Filby, his wife, although he ruled on the issues presented, namely res judicata and estoppel in pais. As a result of this decision, a hearing was in fact held before the Board on August 30, 1967. The determination of the Board was that Arundel Corporation was illegally operating the quarry in violation of the zoning regulations of Howard County.

The determination was affirmed by the Circuit Court for Howard County (Evans, J.) on September 25, 1968, and forms the basis for appellant’s second appeal. In view of the fact that the hearing sought to be enjoined in the first appeal was actually held on August 30, 1967, it is argued by the appellees that at this stage the question is moot. We agree. Whatever the authority of the Board, appellant has had its contentions of res judicata and estoppel in pais ruled on by two separate circuit court judges who were entirely competent to consider these questions, and both judges have determined these issues adversely to appellant.

Appellant’s contention that appellees’ motion to dismiss for mootness under Maryland Rule 835 b 8 is not timely filed within the time limited in Rule 836 c is of no avail, considering this Court’s decision in Agnoli v. Powers, Assignees, 235 Md. 289 , 201 A. 2d 487 (1964), and recently applied in Horst v. Kraft, 247 Md. 455 , 231 A. 2d 674 (1967) and State v. Sheridan, 248 Md. 320 , 236 A. 2d 18 (1967), holding that failure to file a motion to dismiss within the time speci ⁸¹ fied within Rule 836 does not preclude making a similar motion in the appellees’ brief, as is the situation here. For this reason the appeal in No. 230 (1967) will be dismissed because the question involved has become moot. Appellant’s second appeal involves a complex factual situation, but fortunately the essential facts are not in dispute. On July 27, 1948, comprehensive zoning regulations were adopted by the County Commissioners of Howard County.

These regulations divided the county into three use districts, Residential, Commercial A and Commercial B. Arundel’s land in question was included in the zoning map adopted and zoned Residential. No mention was made of quarries in these regulations. In 1953 appellant determined its land contained large deposits of high grade stone and explored the possibility of operating a quarry. As the result of an exchange of letters between Arundel and the zoning commissioner, quarrying operations were commenced in 1953 near Savage, Maryland, and have continued until this time.

On January 12, 1954, new comprehensive zoning regulations were adopted by the County Commissioners for Howard County and the 1948 regulations repealed. The 1954 regulations explicitly permitted stone quarries in any zone after approval by the newly established Board of Zoning Appeals (Sec. 12 A-3). Arundel never sought nor received such approval. From time to time various persons questioned the validity of the operation of a quarry in this residential zone.

Such inquiries culminated finally, after public notice and a hearing, in a decision by the Board on November 15, 1967, holding that such use was illegal, and affirmance of this decision by the Circuit Court for Howard County (Evans, J.), whence this appeal was taken. Arundel complains that the 1948 regulations absolutely prohibiting it from enjoying the highest and best use of its land work an unconstitutional deprivation of property. In support of this proposition they cite Hadacheck v. Sebastian, 239 U. S. 394 (1915); Village of Terrace Park v. Errett, 12 F. 2d 240 (6th Cir. 1926); Ex ⁸² parte Kelso, 147 Cal. 609 , 82 P. 241 (1905). All of these cases relied on by the appellant involved situations where the uses prohibited were in existence at the time the zoning regulations were adopted, and were in effect valid non-conforming uses.

Appellant contends before us that its use of the land is a valid non-conforming use within the meaning of the 1954 regulations because it is undisputed that the quarry actually existed and was in operation prior to the adoption of the 1954 regulations. These regulations provide in Section 13 A: “Any use which now legally exists and does not comply with the regulations of the district in which it is situated shall be known as a nonconforming use. Such use shall be confined to that part of a building or the extent of land actually used at the time of the passage of these regulations, except as hereinafter provided.” (Emphasis added.) Appellant argues that the 1948 regulations nowhere mention stone quarries. They are neither permitted uses nor special exceptions in any of the three zoning classifications.

Appellant concedes, that Paragraph 5A of the 1948 regulations empowers the zoning commissioner, after public notice and hearing, to permit any use of land in a district zoned Commercial B which does not adversely affect the public health, safety, morals, or general welfare, but it says this paragraph is of no assistance to it because its land from 1948 until the present