Donak v. Montgomery County

Henderson, J., delivered the opinion of the Court. The appellee, Montgomery County, filed a bill of complaint ¹⁰⁷ for a mandatory injunction against the appellant, as the owner of a seven acre tract of land in the County on which she conducted a wood-cutting and wood-selling business. It alleged that the operation was in violation of the applicable zoning regulations; that the manner of operation constituted a public nuisance, by reason of the carrying into the premises of timber which was cut up by power driven machinery, the storage and burning of branches, stumps and trash, resulting in excessive noise, smoke and litter; that the operation was that of a junk yard, lumber yard or sanitary dump, and unlicensed as such. After an extended hearing the Chancellor issued a permanent injunction requiring the defendant to remove all trash and waste materials from the premises, except such cord wood or stumps as may be the product of cutting timber presently on the property; and a permanent injunction against using the property for the cutting or storing of cord wood, except cord wood cut from trees currently growing upon the land.

He also enjoined the burning and dumping of waste materials, or any other activity causing an excessive amount of smoke and noise. The appeal is from that decree. The appellant raises a number of questions. She contends that the Chancellor erred in finding that the use of the property was in violation of the zoning regulations, because the evidence established a non-conforming use; that he erred in finding that a public nuisance existed and that the property was used as a junk yard, lumber yard or dump.

She further contends that the appellee could not invoke the court’s aid in the abatement of the alleged nuisance, because it did not first exhaust its administrative remedies; that the County has no authority to bring a suit for the abatement of a nuisance, in the absence of a local ordinance so providing, and in the absence of allegations of special damage; and that Chapter 100, Montgomery County Code (1955 Ed.), known as the “Garbage, Rubbish and Weeds” ordinance, is invalid and unconstitutional, as an improper delegation of legislative power to an administrative agency, and because it was adopted without a public hearing. Section 107-47 of the Montgomery County Code (1955 Ed.), provides: “Nonconforming uses. Any building, struc ¹⁰⁸ ture or use lawfully existing at the time of adoption of this chapter, or lawfully existing at the time this chapter is subsequently amended, may be continued, even though such building, structure or use does not conform to the regulations of the use district or zone in which it is located; * * This section also provides that a non-conforming use of land shall not be extended in any way. The first zoning ordinance in Montgomery County was passed on March 6, 1928.

It is conceded that that is the crucial date. Section 107-2(88) defines non-conforming use as “A use of a building or of land lawfully existing at the time this or previous ordinances became effective and which does not conform with the use regulations of the district in which it is located.” See also Montgomery County Code (1950 Ed.), Sec. 176-10, providing that “In that portion of the District which lies within the former Maryland-Washington Metropolitan District, a lawful non-conforming use which existed prior to March 6, 1928, may continue * * * limited, however, to the particular use already existing in each case; * * * .” This section provided that upon discontinuance for one year the right should terminate. Under the present ordinance the time is cut to one month. It seems to be conceded that the appellant’s property is in the Maryland-Washington Regional District and in the Suburban District.

It was zoned residential from the beginning, and is now located in an R-60 Zone, in which a use of the kind in question is forbidden, except as a nonconforming use. Nor can there be any question but that the County has a right to invoke the court’s aid to enjoin a violation of the zoning regulations, if any. Montgomery County Code (1955 Ed.), Secs. 107-46 and 73-26. Cf.

Code