Board of County Commissioners v. Racine

Menchine, J., delivered the opinion of the Court. Elwood Racine, (Racine) was the owner of a mobile home subdivision, known as Mansion Heights, in Cecil County, Maryland. The subdivision consisted of 7 lots of about one half acre each as shown on a duly approved plat, recorded among the plat records of the Circuit Court for Cecil County in March, 1967, in Plat Book W.A.S. No. 2, folio 77. The seven lots were laid out on the north and south sides of Mansion Drive.

Mansion Drive entered the development from Route 272. The tract was within the “Highway Commercial Zone C-2.” On July 26, 1973 Racine filed an application for a zoning and sanitary permit with the zoning department for the use of lot 2 in the mobile home subdivision for a mobile home without a permanent foundation. The zoning officer denied it. Racine’s appeal to the Cecil County Board of Appeals (Board) also resulted in a denial of the requested permit.

Racine’s appeal to the Circuit Court produced reversal of the Board’s decision. An appeal to this Court by the Board of County Commissioners of Cecil County and by other aggrieved persons followed. For reasons hereafter stated, we conclude that use of lot 2 of Mansion Heights for a mobile home without a permanent foundation in a mobile home subdivision is an authorized ⁴³⁷ use of land within the C-2 zoning. We find this conclusion not dispositive of the litigation however, because of the contention by appellants that a doctrine akin to res judicata, arising from an earlier, identical decision by the Board in prior litigation, bars Racine’s requested use.

The Interpretation of the Ordinance The Cecil County zoning ordinance essentially is of the cumulative type, with quite limited exceptions. Otherwise stated, such uses as were authorized in residential zone R-3 generally continued to be authorized uses in local commercial zone C-l and such uses as were authorized in the latter generally continued to be authorized uses in highway commercial zone C-2. The pertinent portions of zone R-3, zone C-l and zone C-2 (together with the pertinent limiting exceptions applying in C-l and C-2 zones) read as follows: “Subsection 3. Residential Zone R-3 (High-Density) This zone is residential in character, but permits the wide variety of dwelling types suitable to urban living. a.

The following uses are permitted: 1) all uses permitted in Residential Zone R-2 (Medium-Density); 2) multiple dwellings; 3) apartment hotels; 4) fraternity or sorority houses; 5) boarding houses and rooming houses; 6) mobile home subdivisions; * * * ” “Subsection 7. Local Commercial Zone C-l This zone is meant to provide for the daily shopping and business needs of nearby residences, and contains those retail, service, and office uses which serve primarily the local population, a. The following uses are permitted: ⁴³⁸ 1) all uses permitted in the Residential Zone R-3 (High Density) but not special exceptions permitted therein; * * * 11 “Subsection 8. Highway Commercial Zone C-2 This zone contains uses catering to highway travelers and also uses which serve the shopping and business needs of the local and regional population. a.

The following uses are permitted: 1) all uses permitted in Local Commercial Zone C-l, except dwellings; * * * ” 1 To recapitulate, mobile home subdivisions are specifically authorized in the R-3 zone; continue to be authorized by blanket authorization in zone C-l; and continue to be authorized by blanket authorization in zone C-2, unless such use is prohibited by the limiting words in Section 5, subsection 8 a (1), supra. Section 18 of the Cecil County zoning ordinance provides the following pertinent definitions: “Dwelling, One-Family — A detached residence on a permanent foundation designed for or occupied by one family only. Dwelling, Two-Family — A residence on a permanent foundation designed for or occupied by two families only, with separate housekeeping and cooking facilities for each. Dwelling, Multiple-Family — A residence on a permanent foundation designed for or occupied by three or more families, with separate housekeeping and cooking facilities for each. 1 2 ⁴³⁹ Dwelling Unit — A group of rooms located, within a building and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating purposes. 3 Mobile Home — A movable or portable residence at least 34 feet in liveable length built on a chassis connected to utilities and designed without a permanent foundation for year-round living. 4 Mobile Home Camp — Any plot of ground which two or more mobile homes may be placed temporarily for not more than six (6) months of any year.

Mobile Home Park — Any plot of ground of at least four (4) acres upon which a minimum of five mobile home spaces are located. Mobile Home Subdivision — A mobile home park, except that lots and streets must conform to subdivision regulations for single-family dwellings.” The Board of Appeals had denied Racine’s application. In doing so it had in substance adopted the interpretation of the ordinance as expressed in a decision by a predecessor board on December 6, 1967 upon an identical application by Racine for permits as to other lots in the same subdivision. That board in rejecting the earlier application had said, inter alia: “In perusing sub-section 8 a (1) which permits, as aforesaid, ‘All uses permitted in local commercial zone C-l, except dwellings’, the Board notes that in Local Commercial Zone C-l all uses are permitted in the Residential Zone R-3 (high density) but not special exceptions permitted therein.

Residential Zone R-3, permits, as a matter of right, certain uses among which are mobile home subdivisions. ⁴⁴⁰ “Fundamentally, in the final analysis, the Board feels that the legislative intent rather than any technical niceties written into the Ordinance should govern the interpretation of the section in question. Thus in view of the very plain and obvious purposes for which the Highway Commercial Zone C-2 is designed, it does not appear to the Board that it will be consistent with these purposes to permit the location of a permanant residential development therein, be the same ‘dwellings’, or ‘residences’, or ‘mobile homes’. “That the Board has the authority to interpret the Ordinance is amply supported by the Provisions of Section 9, Paragraph 1 when read in conjunction with the provisions of Section 8, Paragraph 2. It is therefore the opinion of the Board that the decision of the Zoning Inspector granting the permits to locate the mobile homes as aforesaid be reversed and the applicant be required to remove said mobile homes within thirty (30) days of this Opinion.” The sections referred to in the last quoted paragraph of the Board’s 1967 decision read as follows: “SECTION 8. BOARD OF APPEALS: PROCEDURE * * * 2.

Hearings; Appeals; Notice — Appeals to the Board of Appeals concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer or bureau of the governing body of the county affected by any decision of the zoning inspector. Such appeals shall be taken within a reasonable time of such decision, not to exceed 10 days, by filing with the zoning inspector and with the Board of Appeals a notice of appeal specifying the grounds thereof. The zoning inspector shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken. ⁴⁴¹ ‘The Board of Appeals shall fix a reasonable time for the hearing of appeals, give public notice thereto as well as due notice to the parties in interest, and hold the public hearing within forty-five (45) days from the date of the decision of the Zoning Inspector. At least fifteen (15) days notice of the time and place of such hearing shall be published in a paper of general circulation in the County.

At the hearing any party may appear in person or by agent or attorney. The Board shall then decide the appeal within fifteen (15) days from the time of hearing.” “SECTION 9. THE BOARD OF APPEALS: POWERS AND DUTIES The Board of Appeals shall have the following powers and duties: 1. Administrative Review. — To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the zoning inspector in the enforcement of this ordinance.” In reversing the Board, the Circuit Court for Cecil County in the course of its written opinion said: “While both a mobile home and a dwelling may be resided in and used as a residence, the distinguishing feature between them is the permanency by which they are attached to the land; if it has a permanent foundation, it is a dwelling; if not, it is a mobile home.

Dwellings, that is, structures with permanent foundations, are not permitted in a C-2 Zone; mobile homes, so called because they are without a permanent foundation and are readily moveable, are permitted in such a zone. Once a mobile home is placed on a permanent foundation, it would lose its character as a mobile ⁴⁴² home and become a dwelling as defined in the Zoning Ordinance. Therefore, mobile homes are permitted in a C-2 Zone.” We agree that a mobile home in a mobile home subdivision is an authorized use in a C-2 zone. The language of the ordinance, supra, is not susceptible of an interpretation that it was intended to exclude mobile home subdivisions from within the C-2 zone.

To conclude that there was a legislative intent to prohibit all residential uses in the C-2 zone would require complete rejection as meaningless verbiage of the cumulative phrases authorizing “all uses permitted in the Residential Zone R-3” (High Density) (appearing in the C-l section of the Ordinance) and “all uses permitted in Local Commercial Zone C-l” (appearing in the C-2 section of the ordinance). An analogous suggestion was rejected by the Court of Appeals of Maryland in Clarke v. County Commissioners, 270 Md. 343 , 311 A. 2d 417 , wherein it was said at 348 [420]: “Although Article 6 includes several principal permitted and conditional uses which one would normally expect to find in the agricultural zone, the legislative intent to limit the district to agricultural uses cannot be found in the body of that Article. As we peruse the permitted and conditional uses, we observe a number of them, apart from subsection (d), that negate any intent to restrict the zone to agricultural pursuits such as farming.” (Footnote omitted.) We find nothing in Sections 8 or 9 that would prevent application to this ordinance of the legal principle that: “In the absence of a specific provision to the contrary in the zoning ordinance, the law generally is that zoning districts having less restricted uses permit the uses of the more restricted use districts.” Martin and Burch v. Annapolis, 248 Md. 551, 560 , 237 A. 2d 728, 732-33 . ⁴⁴³ Without hesitancy we declare that the December 9, 1967 decision of the Board was the product of an erroneous interpretation and application of the zoning ordinance and thus was arbitrary and capricious in a legal sense. An appeal to the Circuit Court from that 1967 decision had been dismissed as not timely taken.

Thus there never has been a judicial determination of the issue before us. Although it is plain that the Board in its present decision in substance adopted the earlier and, we think, erroneous interpretation of its predecessor, it chose.also to rely upon a doctrine akin to that of res judicata to buttress its decision. The Board’s decision in the subject case had declared, inter alia: “On the 6th Day of December, 1967, this Board filed an opinion denying the similar request by the Applicant on the grounds that permanent residential development could not be construed as being permitted within the Highway Commercial C-2 Zone. The evidence submitted by the Applicant at the present hearing has shown no change of condition or circumstances which would justify the Board in altering its initial opinion. “This holding of the Board is further reinforced by the decision of the Maryland Court of Appeals in Whittle vs. Board of Zoning Appeals, 211 Md. 36 , which held that the Board may reconsider a previous decision only if a change in circumstances is clearly indicated.

For the Board to alter its opinion on the evidence provided would, under the Doctrine of Whittle, be clearly arbitruary [sic] and caprecious [sic].” We shall, accordingly, address ourselves to the question whether the order of December 6, 1967 is entitled to such finality between the parties as to cause Racine’s present claim of right to be barred. The Effect of the 1967 Decision Appellants urge that the 1967 decision of the Board ⁴⁴⁴ operates to bar Racine’s right in subsequent litigation to contest it. In the subject case it is uncontroverted that the issue presented is identical; the parties are identical. The sole question for our decision is the issue whether final decision by the Cecil County Board of Appeals on December 6, 1967 prevents subsequent litigation upon the identical subject by Racine under a doctrine akin to res judicata.

We have pointed out that an appeal from that decision had been dismissed as not timely filed. Thus there was no decision by a court upon the merits of the controversy. At one point in time, such a circumstance would have prevented application of the doctrine of res judicata. In Knox v. Baltimore, 180 Md. 88 , 23 A. 2d 15 , it was firmly stated at 93 [17]: “The Board of Zoning Appeals not being a court of competent jurisdiction or judicial tribunal, it cannot be held that the resolution passed by that Board on February 28, 1939, was res judicata as to whether appellant had a non-conforming use in the lot in question.” Continued viability of Knox, supra, was left in doubt by Whittle v. Board of Zoning Appeals, 211 Md. 36 , 125 A. 2d 41 , the case relied upon by the Board as controlling its 1973 decision.

Whittle is not, of course, a precise authority for the reason that the earlier decision of the Board of Zoning Appeals in that case had been affirmed on appeal by the Circuit Court for Baltimore County. This circumstance was stressed in Whittle when it was said at 45 [46]: “In the instant case we have, of course, a prior court determination and the question of res judicata is directly involved.” Whittle did, however, declare at 45 [46]: “The general rule, where the question has arisen, seems to be that after the lapse of such time as may be specified by the ordinance, a zoning appeals ⁴⁴⁵ board may consider and act upon a new application for a special permit previously denied, but that it may properly grant such a permit only if there has been a substantial change in conditions. This rule seems to rest not strictly on the doctrine of res judicata, but upon the proposition that it would be arbitrary for the