Friends of the Ridge v. Baltimore Gas & Electric Co.

CATHELL, Judge. In this case, Pamela and Carl Folio and Friends of the Ridge et al, petitioners, appeal the affirmance by the Court of Special Appeals 1 of the decision of the Circuit Court for Baltimore County, which upheld the granting of a variance from side yard setback requirements to Baltimore Gas and Electric Company, respondent. Petitioners present three issues for our review, which we rearrange: [1] , Whether the Court of Special Appeals’ preference given to utility companies in this zoning case conflicts with this Court’s decision in Kahl vs. Consolidated Gas and Electric, 191 Md. 249 [ 60 A.2d 754 ] (1949[1948])[.] [2] . Whether in the absence of statutory authority, an electric utility company’s status, vel non, as a utility, may be used to justify a zoning variance, generally, and the prerequisite of “uniqueness” specifically[.] 3.

Whether the evidence relied on by the Court of Special Appeals in the instant case was sufficient to support a variance, both as to the uniqueness and practical difficulty, and whether its decision conflicts with the Court of Special Appeals’ decision in Cromwell vs. Ward, 102 Md.App. 691 [ 651 A.2d 424 ] (1995)[.] ⁶⁴⁸ We shall not directly address the questions presented. 2 We shall direct that this case be remanded to the Baltimore County Board of Appeals (Board) with instructions to enter an-order that no variance was needed in the case sub judice. 3 Under the ordinance at issue here, and indeed in most ordinances of which we are aware, unless the ordinance’s language specifically and clearly prohibits it, an owner of contiguous parcels of real property, such as respondent, is free to combine them into larger and fewer parcels without violating the zoning code. In this case we are concerned only with the zoning ordinance. We first shall recite the facts and conclude by furnishing the reasons for holding that no variance was necessary in the present case. FACTS Respondent, at all times pertinent to the case at bar has operated a facility called the “Ivy Hill Substation,” which is situated on one of the parcels it owns near the intersection of Falls and Ridge Roads in Baltimore County, Maryland.

The site, and all of the relevant surrounding area, is zoned RC-5. Under that classification, public utility facilities are permitted ⁶⁴⁹ as special exceptions if they comply with the requirements of the Baltimore County zoning ordinance. Respondent, anticipating a need for additional capacity in the region, proposed to increase the capacity at the Ivy Hill Substation. In order to do so, respondent was required to apply for a special exception to operate an enlarged facility.

Respondent applied for and obtained a special exception. In their petition for certiorari, petitioners did not challenge the granting of the special exception. Accordingly, the granting of the special exception is no longer at issue. The new, enlarged substation was planned to extend onto a contiguous parcel from the original site of the existing substation.

The original substation was situated on a 0.4 acre parcel. Subsequently, respondents acquired an adjacent 1.5 acre parcel and, during the proceedings at the administrative level, acquired another 0.9 acre adjoining parcel. The record reflects that all three parcels are contiguous with each other. Petitioners assert in their brief that because the parcels never were “legally combined,” the Baltimore County ordinance required respondent to obtain a variance to use the three parcels as one parcel.

Respondent asserts that it since has caused the three lots to be combined by a resubdivision. Petitioner alleges that this was done improperly. If, in fact, it was done improperly, that is a matter for another day. 4 We are concerned here only with the applicability of the zoning ⁶⁵⁰ ordinance’s variance provisions and not Baltimore County subdivision regulations. RESOLUTION We again note that in this case we are concerned only with the issue of the variance.

The primary concern of the Board, however, was the simultaneously considered special exception request. The grant of that special exception is not before us. The Board originally found that the variance provisions, section 307.1, did not apply to respondent’s request. The Board, for reasons we shall discuss, was correct in that finding. 5 Nonetheless, apparently assuming it was required to address the variance issue because respondent filed a petition requesting a variance, the Board granted the petition.

Because no variance was required, we direct the Court of Special Appeals to remand this matter to the circuit court for it to remand to the Board. The Board shall render a finding, consistent with its initial finding, that no variance is required for respondent to utilize the entire parcel for its proposal, so long as setback requirements are met from the exterior property lines of respondent’s combined parcel. DISCUSSION Zoning ordinances, including Baltimore County’s ordinances, do not create lots. Zoning does not create parcels of ⁶⁵¹ real property.

What zoning ordinances normally do, with respect to residential districts, is establish dimensional minimums, such as minimal lot, parcel or tract size, yard sizes (the distance between buildings and property lines), and the height of structures. In addition, such ordinances specify the number of residential units that may be placed upon the area of a tract or parcel (density), ancillary requirements such as parking mínimums, bathroom mínimums, and square footage mínimums of buildings. Additionally, zoning ordinances can, to some extent, regulate uses of property, as distinct from dimensional requirements. 6 Baltimore County’s ordinance, like most zoning ordinances, does not define lots to include only lots delineated on plats in approved subdivisions. Section 101 defines “corner lot,” “lot depth,” “through lot” and then defines “interior lot” simply as “[a] lot other than a corner or through lot.” It generically defines “lot of record,” as “[a] parcel of land with boundaries ⁶⁵² as recorded in the land records of Baltimore County on the same date as the effective date of the zoning regulation which governs the use, subdivision or other condition thereof.” Id.

(emphasis added). The term “lots” as used in ordinances generally means parcels or tracts of land. In other words, when setbacks in respective districts are established, they generally apply to all tracts, parcels or pieces of land within the district, as indicated in the Baltimore County ordinance’s definition of “setback.” See id. Generally, and in Baltimore County, the title or purpose clauses of zoning ordinances express concern with undersized parcels or lots, not with parcels that exceed the minimum dimensional requirements of the ordinances.

The ordinance at issue here, in section 1A04.1(A)(1), which deals with Resource Conservation Zones (in the case sub judice, an “R.C.5” (Rural-Residential Zone)), states in its “legislative findings” clause: It is found that: c. In some cases lot sizes aré inadequate to assure long-term adequacy of on-lot sewer and water systems; d. That unless measures are implemented to assure more rational growth patterns, including adequate lot size, undue financial hardships will be placed on Baltimore County and the life, safety and general welfare of the citizens of the county will be adversely affected. [Emphasis added.] The “purpose” clause provides, in relevant part: B. Purpose. The R.C.5 zoning classification is established, pursuant to the legislative findings above, in order to: 4.

Provide a minimum lot size which is sufficient to provide adequate area for the proper functioning of on- ⁶⁵³ lot sewer and water systems.[ 7 ] Id. (emphasis added). Efforts throughout the country, including Baltimore County, have been to restrict undersize parcels, not oversized parcels. These efforts have resulted in the creation and evolution in zoning of the doctrine of merger, which, in zoning cases, generally prohibits the use of individual substandard parcels if contiguous parcels have been, at any relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard. 8 In other words, if several contiguous parcels, each of which do not comply with present zoning, are in single ownership and, as combined, the single parcel is usable without violating zoning provisions, one of the separate, nonconforming parcels may not then or thereafter be considered nonconforming, nor may a variance be granted for that separate parcel.

Some cases discuss automatic merger, but most require that the intent of the owner to merge the parcels be expressed, though little evidence of that intent is required. As far as we can discern, the zoning doctrine of lot merger has never been applied in any jurisdiction to limit the creation of parcels that exceed minimum dimensional requirements; merger has been applied only to prohibit the later creation of undersized parcels. This, perhaps, is due to the general lack of objection to large parcels. 9 A discussion, however, of how the doctrine of merger applies conversely to the present case may help emphasize that, in the context described above, merger occurs without the need for official subdivision or conveyancing. It is accepted automati ⁶⁵⁴ cally in some jurisdictions or, most often, with minimum proof of the owner’s intent in other jurisdictions and always without the necessity of official action.

We see no reason why a doctrine that seeks to prevent the proliferation or use of nonconforming, undersized lots by holding that they have been combined or merged into a larger parcel should not, as far as zoning is concerned, be applied properly to permit the creation, through the combining by use of a larger parcel from already conforming smaller parcels, without the necessity of official action or conveyancing. One of the seminal cases discussing the doctrine of merger with respect to zoning is the New Jersey case of Loechner v. Campoli 49 N.J. 504 , 231 A.2d 553 (1967). In 1936, Mrs. Loechner and her late husband acquired lots numbered 186 through 188 on a surveyor’s map or plat. Each lot was twenty-five feet wide by one hundred feet in depth.

Prior to 1952, the Loechners erected a single house on the three lots. In 1952, Rudolph Loechner acquired two adjoining lots, numbered 189 and 190. These new lots remained vacant. When Rudolph Loechner died, he devised lots 189 and 190 to his wife.

Accordingly, upon his death, his wife owned all five lots, 186 through 190, and the house that had been erected on lots 186,187, and 188. Mrs. Loechner subsequently contracted to sell lots 189 and 190 to Anthony Villani. Villani applied for a variance to build on his two lots, neglecting to mention that he had purchased the lots from an owner who had owned all five lots at one time. Although he obtained a variance, he was denied a building permit on grounds that subdivision approval was required because the five lots, when in common ownership, had merged into one parcel and the subsequent off-conveyance of the two lots to Villani was, in fact, a resubdivision of moré parcels from a lesser number of parcels (one tract composed of the five lots).' Mrs. Loechner took the position that resubdivison was unnecessary because all five lots were shown on the map or plat when she and her husband acquired the lots.

The Supreme Court of New Jersey noted that “[t]he acquisition of title by plaintiff to Lots 189 and 190 which were ⁶⁵⁵ contiguous to Lots 186-188 created one parcel or tract of land consisting of five separate lots.” Id. at 508 , 231 A.2d at 555 . Explaining that a state statute defined subdivision as “division of a lot, tract, or parcel of land into two or more lots,” id. at 509 , 231 A.2d at 555 , the court discussed the meaning of the word “lot” in that context, noting that it retained its traditional meaning as a parcel or tract of land: The word “lot” as used in the Subdivision Act must be read in context with the words “tract or parcel of land” in order to ascertain its meaning. Consistent with recognized principles of statutory construction “lot” takes its meaning from the other two words with which it is associated. Martell v. Lane, 22 N.J. 110 , 123 A.2d 541 (1956); Salz v. State House Commission, 18 N.J. 106 , 112 A.2d 716 (1955); State v. Murzda, 116 N.J.L. 219 , 183 A. 305 (E. & A.1936); 2 Sutherland, Statutory Construction § 4908 (3d ed. 1443).

Thus considered “lot” is synonymous with “tract or parcel.” The phrase “lot, tract or parcel of land” has traditionally been used to connote any portion or piece of realty. N.J.S.A. 40:55—1.2 contemplates supervision of the division of a large tract or parcel of land into two or more smaller tracts or parcels. The Subdivision Act is not concerned with the manner in which land is described for conveyancing purposes but rather with what use is made thereof. Id. at 510-11, 231 A.2d at 556-57 .

Much the same can be said for zoning. Zoning is concerned with dimensions and uses of land or structures, not with any particular description “lot,” “parcel,” or “tract” applicable to or necessary for conveyancing. Conveyancing is a separate area of law involving the transfer of property between buyers and sellers that generally is not directly connected with government regulations and restrictions on the use of property through the zoning power. In zoning, the term lot normally is generic and used interchangeably to describe parcels, tracts, pieces or sections of land. 10 ⁶⁵⁶ After Loechner , the doctrine of merger continued to evolve.

It was described more concisely in Somol v. Board of Adjustment, 277 N.J.Super. 220, 228 , 649 A.2d 422, 426 (1994): “[Sjeparate undersized but contiguous lots fronting on the same street in single ownership ordinarily merge into one lot and conveyance of a portion will require subdivision and variance approval.” (Emphasis added.) As is evident, the doctrine is designed to limit the creation of undersized parcels by presuming that merger can occur when contiguous lots exist in common ownership. As we have indicated, some jurisdictions presume merger automatically; in most jurisdictions, however, there must be some evidence of the owner’s intent to merge. In the present case, respondent asserts a right to combine the contiguous parcels and to use them as a single parcel. Therefore, to the extent the doctrine is held to apply in this State under these converse circumstances, the existence of merger is admitted in the case sub judice.

In Iannucci v. Zoning Board of Appeals, 25 Conn.App. 85 , 592 A.2d 970 (1991), the applicant submitted a variance application to reposition a house entirely on one lot. At the time of the application, the house was built on two lots, with the attached porch on one lot and the main body of the house on the other. The purpose of the variance was to allow the property owner to build a new house on the vacated lot. The zoning body denied the variance, finding that “ “when a portion of the dwelling on lot two was constructed over the property line, lots one and two were effectively combined.’ ” Id. at 87 , 592 A.2d at 971 .

The Connecticut Appellate Court held: Contiguous land owned by the same person does not necessarily constitute a single lot. A merger can occur, ⁶⁵⁷ however, if the owner of contiguous parcels of land intends to form one tract. The owner’s intent “may be inferred from his conduct with respect to the land and the use which he makes of it.” Intent is an inference of fact and “is not reviewable unless it was one which the trier could not reasonably make.” ... [B]oth lots were purchased by the plaintiffs parents. A portion of the dwelling was later constructed over the property line....

It was reasonable for the [administrative agency] to infer that the actions of the plaintiffs parents effectively merged the lots. Once these lots were merged, they could not thereafter be redivided into two separate lots [without complying with the subdivision process]. The plaintiffs assertion that the lots remain separate because they appear separately on the original subdivision plan is not persuasive. A reference to multiple lots “from a map filed in the land records does not compel a finding of an absence of merger....

Such a conclusion conflicts with the basic proposition that in a determination of the factual issue of merger, the intent of the property owners must be ascertained and that no single factor is dispositive.” Id. at 89-90 , 592 A.2d at 972-73 (citations omitted) (some quotations marks omitted). In Appeal of Gregor, 156 Pa. Commw. 418, 423-24 , 627 A.2d 308, 310-11 (1993), the Pennsylvania Commonwealth Court said: Under the doctrine of merger of estate[s] in land, a lesser estate is merged into a greater estate whenever both estates meet in the same person. This doctrine has no application, however, to zoning law and the construction of a zoning ordinance where, as here, the term “merger” is used to describe the effect of a zoning ordinance on lots held in common ownership and is related to the issue of the physical merger of adjoining lots.... ...

The burden is placed upon the party who asserts a physical merger to establish the landowner’s intent to integrate the