Gough v. Board of Zoning Appeals

Moore, J., delivered the opinion of the Court. In August 1972 the Zoning Inspector for Calvert County formally notified appellants that the automobile junkyard on their twenty-five acre tract in Lusby and a recently acquired 1959 mobile home were in violation of the comprehensive zoning regulations which had become ⁶⁹⁹ effective on June 29, 1967. They contested this determination by an appeal to the Board of Appeals for Calvert County to which they also applied, in the alternative, for a variance permitting the continuation of the junkyard and the utilization of the mobile home. The three-member board unanimously denied the appeal and the application for the variance.

The Circuit Court for Calvert County (Bowen, J.) in a memorandum opinion and order affirmed the Board’s ruling. On this appeal Mr. and Mrs. Gough seek a reversal on the ground that the Board of Appeals failed to make findings of fact relevant to critical issues raised with respect to the operation of the junkyard and for the further reason that the provision of the County Zoning Ordinance requiring termination of certain non-conforming uses within a two-year period, is unconstitutional. While we consider that the Board, as a matter of sound administrative practice, should have spelled out its finding in greater detail, we find no fundamental error; nor do we perceive that the claim of unconstitutionality can be sustained. I Most of the operative facts are undisputed.

Appellants acquired their property in 1936. The land is in an “A-l” (agriculture) district and has substantial frontage on State Route #4. Until shortly before the hearing before the Board Mr. Gough was employed full-time away from the property and it was not used for any agricultural purpose. In the late 50’s, the acreage came to be used for the storage of discarded automobiles and other vehicles.

After a time, Mr. Gough engaged part-time in the sale of parts from these vehicles. He employed no personnel, permitting the customers to remove the parts themselves. In 1972 the gross proceeds came to approximately $500.00. There were two permanent buildings on the property — one in which the appellants have resided with their 13 year old grandson and the other, a shed, used for storing parts.

At the time of the hearing before the Board of Appeals in February, 1973, Mr. Gough ⁷⁰⁰ testified that he had “more recently” stored some parts in the dwelling. Under questioning by the Zoning Inspector about the storage of parts he stated: “Q. When did you start keeping parts in your dwelling? A. Well, a right good while ago, I’ve been keeping things in it. Q. Well, can you be more specific?

A. Oh, I’d say two years. Q. How about the shed? How long have you been keeping parts in the shed? A. They have been in there a good while.

I guess about three years.” The above testimony becomes crucial because junkyards are not permitted uses in any of the nine districts established by the Calvert County Zoning Ordinance and because of the following termination clause pertaining to non-conforming uses set forth in § 19.02 of the Ordinance: 1 “Any non-conforming use which is conducted primarily on open land and does not utilize any permanent building or structure shall be discontinued within two [2] years from the date of enactment of this Ordinance.” (Emphasis added.) Thus, appellants’ junkyard would have to be discontinued as of June 29, 1969 (two years after the effective date of the Ordinance) unless, when the Ordinance was enacted in 1967, any permanent building or structure was being utilized. Mr. Gough’s testimony, uncontradicted at the hearing from other sources, placed the use of the shed for storage of parts in about 1970 and the use of the dwelling for that purpose in 1971. The relevant portion of the Board’s opinion is as follows: ⁷⁰¹ «* * * Zoning Ordinance contemplated that all junkyards might be continued in operation for a limited time after the ordinance took effect but that with a certain exception, all such operations be discontinued on or before the date of June 29,1969. “Mr. Gough’s operation involves a very large number of discarded vehicles which have been placed on his property for many years. The Board concludes that at the time of the zoning inspector’s letter, Mr. Gough was in violation of the ordinance and subject to prosecution in the criminal courts. 2 Accordingly, his appeal from the action of the zoning inspector is hereby dismissed. “He asks for a variance to permit him to operate the junkyard for some reasonable period of time; however, to do so would involve authorizing a use clearly prohibited by a zoning ordinance and we do not consider that we have the authority to make this type of variance.

In fact, it seems to be specifically prohibited by the ordinance. * * It is apparent that the Board made no express finding either that the junk operation was conducted primarily on open land or that no permanent building or structure had been used in connection therewith at the time in question. The result, appellants maintain, is that the Circuit Court was required “to speculate as to what facts the Board relied upon in reaching its decision” and to make what amounted to an independent evaluation of the facts. In decrying the absence of an express finding by the Board on the issue of appellants’ use of a permanent building at the time of the enactment, appellants point to a problem, substantial enough in the circumstances of other cases, but transparent upon the facts presented here. Anderson, ⁷⁰² American Law of Zoning, § 16.41, states succinctly the reasons why express findings should be made by administrative agencies: “Given express findings, the court can determine whether the findings are supported by substantial evidence, and whether the findings warrant the decision of the board.

If no findings are made, and if the court elects not to remand, its clumsy alternative is to read the record, speculate upon the portions which probably were believed by the board, guess at the conclusions drawn from credited portions, construct a basis for decision, and try to determine whether a decision thus arrived at should be sustained. In the process, the court is required to do much that is assigned to the board, and the latter becomes a relatively inefficient instrument for the construction of a record.” (Emphasis added.) The Court of Appeals in recent years has shown increasing impatience with the failure of administrative boards, whether or not required by statute, to accompany their decisions by specific findings of fact. 3 In this term alone the Court has on three occasions called attention to this recurrent problem. Turner v. Hammond, 270 Md. 41 , 310 A. 2d 543 (1973); Valenzia v. Zoning Board of Howard County, 270 Md. 478 , 312 A. 2d 277 (1973); Hooper v. Mayor and City Council of Gaithersburg, 270 Md. 628 , 313 A. 2d 491 (1974). In Baker v. Board of Trustees, 269 Md. 740 , 309 A. 2d 768 (1973) Judge Singley, writing for the Court, went so far as to say (p. 747): ⁷⁰³ “As long ago as Adams v. Board of Trustees, 215 Md. 188, 195 , 137 A. 2d 1 51, 155 (1957), we reversed, as not supported by the evidence, an action taken by the Board without a finding of fact, or an assignment of reasons for the result reached. ...

To be certain that the teaching of Adams is not again overlooked, we propose to remand, for appropriate findings of fact, any case which hereafter reaches us in the posture of this one. “This is no more than a recognition of the fundamental right of a party to be apprised of the facts relied upon by the agency, [citation omitted] and, even in the absence of a statutory provision, is frequently required by a court as an aid to judicial review [citations omitted].” In Baker the Court did not remand, however, noting that: “Only the circumstance that the record before us makes it clear that the Board could have reasonably reached the result that it did . . . saves this case from a similar fate.” Similarly, in Hooper, supra, the Court recalled its admonition in Baker but said: “We shall not, however . . . remand this case to the Mayor and Council for a finding of facts. To do so would be futile. It is clear that the only possible finding would be that there is a complete lack of any evidence of a substantial change in the character of the neighborhood.” ⁷⁰⁴ And in Valenzia the Court concluded: “The action of the Zoning Board here might be said to be on the ragged edge but, in the circumstances, we do not think anything would be gained by remanding the case for further consideration.” So, here, while clearly the better practice would have been for the Board to make express findings, the mere surmise that Mr. Gough might have erred in his recollection of when he began storing parts in the buildings is not opposing evidence sufficient to warrant a remand for an explicit finding by the Board as between conflicting versions of fact. Not only could the Board “have reasonably reached the result that it did,” but on the testimony before it, it is hard to see how it could have reached a contrary result.

Clearly the Board was not required to make an express finding as to the reliability of Mr. Gough’s memory, and the facts to which he testified, uncontradicted from other sources, permitted only one conclusion. A finding that appellants’ junkyard operation was conducted primarily on open land and did not utilize a permanent building or structure at the time of the enactment of the zoning ordinance was implicit in the Board’s determination that it did not qualify as an exception to the requirement of termination and was, therefore, in violation of the ordinance. II Appellants next contend that “Article 19, Section 19.02 A.l of the Calvert County Zoning Ordinance which requires that certain unspecified non-conforming uses be terminated within a two-year period without providing any compensation” is not “a true amortization statute” and “is confiscatory and unconstitutional, both generally and as applied to them.” In particular they claim it “contains a completely arbitrary classification on its face” in providing for the termination of “no specific use or category of uses in any specific [use] district.” The constitutionality of zoning ordinances “amortizing” non-conforming uses by compelling their termination after a reasonable and appropriate specified time is firmly ⁷⁰⁵ established in Maryland, 4 5 and appellants, recognizing this, raise no such broad challenge to the ordinance. Nor do they question the general validity of such ordinances that single out junkyards for elimination/ conceding indeed that “had the Ordinance required the termination of all junkyards in [for example] A-l Districts by June 29, 1969, the Goughs would have no grounds to assail its constitutionality.” Instead they argue that there is “no clear basis