Feinberg v. Southland Corp.

Barnes, J., delivered the opinion of the Court. This appeal from the Circuit Court for Baltimore County, in equity (Menchine, J.), presents two questions: whether the lower court erred (1) in finding that the commercial development of a parcel of land on Greenwood Road in Baltimore County was permitted under a “saving clause” in the new zoning regulations, by virtue of a preliminary development plan approved on March 15, 1971, by the then Director of Planning and Zoning prior to March 81, 1971, the effective date of the new regulations; and, (2) in finding that certain side yard setbacks were not required even though the preliminary development plan showed an intent to subdivide the subject property between two owners. The appellants, Raymond Feinberg, et al., were plaintiffs below and are property owners near the subject property. After the preliminary development plan was approved, the appellants filed a bill of complaint for declaratory relief and for a permanent injunction against the owners of the subject property and Baltimore County, the appellees in this appeal.

Judge Menchine, after tak ¹⁴³ ing testimony and hearing argument, passed an order on May 9, 1972, dismissing the bill of complaint and requiring the plaintiffs to pay the costs. The plaintiffs filed a timely appeal from that order. We have concluded that the chancellor committed no reversible error and we will affirm that order. The Southland Corporation, a Texas Corporation (Southland), owned a tract of land consisting of .455 acres of the subject property designated as Lot 1 on the preliminary development plat (the plat), hereinafter mentioned; and Murray Wolman and Herbert Kishter, co-partners, trading as American Communities Company (Wolman-Kishter), owned a tract of land consisting of .810 acres of the subject property designated as Lot 2 on the plat.

These two tracts carried the M.L. zoning classification prior to the county-wide comprehensive rezoning effective March 31, 1971. Prior to the comprehensive rezoning, Section 253.1 of the Baltimore County Zoning Ordinance authorized “nonresidential uses permitted and as limited in BR zone,” with certain exceptions not pertinent to the present case. Under the provisions of Council Bill No. 100 (1970), all BR uses were prohibited except to the extent of an amendment to Section 103.1 of the zoning ordinance, providing as follows: “Provided further, however, that the use and development of land in M.L. zones shall not be affected by the foregoing provision, but development is permitted in accordance with any preliminary development plan approved by the Office of Planning and Zoning before the effective date of this further proviso, even though such development may be counter to then-current regulations for M.L. zones, if, on the fifth anniversary of such effective date, construction either is completed or is substantially commenced and diligently being pursued to completion; otherwise, the regulations generally in ef ¹⁴⁴ feet at the time such use or development is to be established shall control.” (Emphasis supplied) In the title to the ordinance amending Section 103.1, the legislative purpose was declared to be: “. . . to provide for the application of light manufacturing zoning regulations to areas covered by previously submitted sub-division plans.” (Emphasis supplied) It thus appears that the proposed use of the subject property for BR purposes was prohibited by the new comprehensive zoning ordinance unless Southland and Wolman-Kishter acquired rights under the saving clause of the amendment to Section 103.1. They successfully contended below that they had acquired such rights by virtue of the approval on March 15, 1972, of a preliminary plan showing the proposed Greenwood Shopping Centre.

In addition to other statements and data, the preliminary plan bears the following approval: “PLANS APPROVED OFFICE OF PLANNING & ZONING BY (s) G. E. Gavrelis DATE 3/15/71 GRANDFATHERED FOR COMMERCIAL USE /SECT. 103.1 OF Z.R.” The preliminary plan was prepared by James S. Spamer & Associates, Engineers and Surveyors, and is dated March 13, 1971. Lot 1 indicates northerly and southerly lines 60 feet long with a width of between 40 and 46 feet. It is marked “7/Eleven.” The west side of Lot 1 adjoins Lot 2. The easterly boundary line of Lot 2 is 46 feet long, the westerly boundary line is 50 feet long and the northerly and southerly boundary lines are 145 feet long.

It is marked: “7,000° of Retail Stores.” In the preliminary plan, the front yard setback was 105 feet from the residential zone boundary measured from the center of Greenwood Road but was only 75 feet ¹⁴⁵ from the edge of the right of way abutting the residential boundary at Greenwood Road. Mr. Gavrelis and James E. Dyer—the then Director of Planning and Deputy Zoning Commissioner of Baltimore County, respectively—in an affidavit of February 4, 1972 (which was introduced into evidence below and considered by the chancellor), indicated that reliance was placed on the provisions of Section 255.2 of the zoning regulations for the approval of a 75-foot front yard, but that a closer review of the applicable zoning regulations indicated that Section 253.6—stating in part to the effect that within 100 feet of any residential zone boundary or right of way of any street abutting such a boundary there should only be permitted passenger automobile accessory parking and those uses permitted in the M.L. zone, as limited by Section 241—required a front yard setback of 100 feet from the edge of the right of way abutting the residential zone boundary at Greenwood Road. Accordingly, the setbacks were adjusted on a final plat approved on April 8, 1971. On May 6, 1971, Southland received approval from the County to construct a retail food store on Lot 1.

The neighboring property owners, appellants here, filed their bill of complaint on June 25, 1971, against Southland, Wolman & Kishter, and the County, praying for declaratory and injunctive relief. After answers were filed, the defendants moved for summary judgment in their favor supported by an affidavit of Mr. Gavrelis, dated December 2, 1971. A true copy of the preliminary plan was attached as an exhibit to the affidavit of December 2. The affidavit provided, in part: “. . . approval of this plan was granted by (the Office of Planning and Zoning] on March 15, 1971, prior to the effective date of Bill 100, (1970 Session, Baltimore County Council).

At the time of said approval retail stores were a permitted use in the ML Zone, and a change in permitted uses by Bill 100 did not affect the ¹⁴⁶ Greenwood Shopping Centre site since the plan had been approved prior to the changes effected by Bill 100. “That the development plan submitted for Greenwood Shopping Centre, as shown on the attached plat, shows that the contemplated use for the whole parcel is for retail stores arranged in two contiguous and adjoining buildings. At the time the plat was approved (March 15, 1971) the entire tract of 1.23 acres was owned by the developers of Greenwood Shopping Centre and the set-backs required by pertinent sections of the Zoning Regulations would be measured from the two side walls of the entire planned structure, and these set-backs were in conformity with the Regulations. The plan did indicate an intent to divide the tract into two lots, but under these circumstances this Office has consistently interpreted and applied the Zoning Regulations to not require set-backs from a future property line when the proposal indicates a common scheme to develop the tract as a unit with common entrances, parking areas, walkways, etc. A later division of ownership does not require different set-backs where the parties adhere to the approved plan of development. “In my opinion, as Director of the Office of Planning and Zoning, the development of the Greenwood Shopping Centre in conformity with the plan shown on the plat attached hereto would not be contrary to the Zoning Regulations of Baltimore County.” The plaintiffs below called two employees from the County’s Office of Planning and Zoning, who testified in direct contradiction to the statements in Mr. Gavrelis’ affidavit in regard to side yards. They stated, in effect, that the practice in the Office of Planning and Zoning was ¹⁴⁷ to consider that the lack of side yards between construction on Lots 1 and 2 was a violation of the zoning regulations.

Judge Menchine filed a carefully written opinion on May 9, 1972, indicating that the approval upon the preliminary development plan of March 15, 1971, was sufficient to bring the subject property and its proposed commercial use within the saving clause. He was also of the opinion that the front yard setback, erroneously calculated on that plan, was “merely an engineering error” later corrected on the final plan and, further, that the indication of divided ownership of Lots 1 and 2 on the preliminary plan was not a basis for requiring any side yard setbacks between Lots 1 and 2. The order of May 9, 1972, denying the relief prayed for in the bill of complaint and dismissing the bill of complaint, was then entered. (1) The appellants earnestly contend that inasmuch as the front yard setback in the preliminary plan approved March 15, 1971, did not conform to the zoning regulations (75 feet vs. 100 feet), the preliminary plan was invalid and only the final plan approved on April 8, 1971, (after the effective date of the new zoning ordinance prohibiting the proposed use unless it was within the purview of the saving clause) was the lawful plan which could effectively be approved by the Office of Planning and Zoning.

Hence, they say, the