Hofmeister v. Frank Realty Co.

Moylan, J., delivered the opinion of the Court. If the imprecise use of language plagues the law generally, it falls upon the head of the zoning law with peculiar vengeance. The root problem giving rise to the present appeal was the failure of the lawmaking authorities of Baltimore County to distinguish cleanly between the Genus “Special Exceptions” and the Species “Special Exceptions.” The phrase was used in one critical context, at least, with a broad, generic meaning; the same phrase was used on other occasions with a more limited and specific meaning; the lawmaking authority never pinpointed which meaning it had in mind on a particular occasion nor did it even seem aware .of the potential semantic problem lurking within its linguistic imprecision. Although the problem before us for resolution is exclusively one of law, the factual background must be set.

The appellee, Frank Realty Company (Frank), owns Overlea ⁶⁹³ Hall, which is a catering establishment in Baltimore County. It is located on Belair Road, a major thoroughfare in a business district. Overlea Hall does not have its own parking lot, but it is situated next to a Union Trust Bank, which does. The customers of Overlea Hall park either on the bank lot or on the surrounding streets.

In 1970, 1972 and 1973, Frank acquired three properties, adjacent to and in the rear of Overlea Hall, forming one integrated tract and having frontage on two side streets. On the tract, Frank desired to build a parking lot for 84 vehicles. Pursuant to the Baltimore County Zoning Regulations (1975 Ed.l (BCZR), Overlea Hall was zoned Business Local (BL) in a Commercial Community Core (CCC) District. Catering is a use permitted in such a zone.

The land on which the parking lot was to be built, however, was zoned Residential. 1 Off-street parking is not a use permitted as of right in a residential zone, but is a permitted use if a Special Use Permit is applied for and issued pursuant to § 409.4 of the BCZR. Over the protestations of the appellants, who are residents of the affected area, the Baltimore County Zoning Commissioner on June 4, 1974, granted Frank a Special Use Permit for off-street parking in a residential zone. 2 Appellants, joined by the Baltimore County Deputy People’s Counsel, 3 appealed to the County Board of Appeals, who, on ⁶⁹⁴ July 29, 1975, upheld the grant. 4 The County Board of Appeals found that the requirements of § 409.4 and of § 502.1 5 of the BCZR had been satisfied and held that the Zoning Commissioner had the power to issue Special Use Permits. From that ruling, an appeal was taken to the Baltimore County Circuit Court. In that court, Judge John Grason Turnbull upheld the decision of the County Board of Appeals.

That decision of Judge Turnbull has now been appealed to us. 6 The appellants do not contend that the action of the County Board of Appeals was “arbitrary and capricious” or lacked factual support. The sufficiency of the evidence on the merits of whether Frank had satisfied the pertinent requirements was not seriously disputed. The key issue presented by the appellants is that of whether the Zoning Commissioner and the County Board of Appeals possessed the delegated authority to grant such Use Permits at all. In question is the general authority and not the merits of this individual exercise of authority.

Before addressing its merits, we will state the argument as posed by the appellants. They contend that a “Special Permit” (or Use Permit) and a “Special Exception” are distinct legal phenomena. In this regard, they find arguable support in the words of the Court of Appeals in Marek v. Board of Appeals, 218 Md. 351, 357 , 146 A. 2d 875 , to the effect that a request for an off-street parking permit “is not a request for a Special Exception.” They further contend that prior to 1960, the Baltimore County Commissioners and their successors, the Baltimore County Council, explicitly delegated to the Zoning Commissioner of Baltimore County the power to issue both “Special Permits” and “Special Exceptions.” The final premise in the argument is that a major change was made in this grant of authority by Bill ⁶⁹⁵ No. 80, enacted by the County Council in 1960. That bill explicitly repealed § 34-11 of the Baltimore County Code (1958 Ed.) which had delegated certain powers (including the power to issue Special Permits) to the Zoning Commissioner, and replaced it with § 22-23 which provided in pertinent part: “Authority of zoning commissioner to provide for special exceptions and variances.

Subject to the appropriate principles, standards, rules, conditions and safeguards as set forth in the zoning regulations, the zoning commissioner may.. . make special exceptions to the zoning regulations in harmony with their general purpose and intent...” The appellants argue strenuously that “No mention was made of any other authority being vested in the Zoning Commissioner...” and “More important is the fact that the term and authority to issue a ‘special permit’ was deleted altogether.” It is their position that in the repealing and reenacting of the grant of authority to the Zoning Commissioner that occurred in 1960, the Zoning Commissioner was stripped of all power to issue Special Use Permits. The problem is clear-cut. The grant of authority, by its terms, authorizes “Special Exceptions” but not “Use Permits.” Thus, if a “Use Permit” is a variety of “Special Exception” within the contemplation of § 22-23, then the authority to issue such a “Use Permit” has been delegated to the Zoning Commissioner and the present decision will be affirmed. If, on the other hand, a “Use Permit” does not fit under the umbrella of “Special Exception,” the authority to issue such “Use Permit” has not been delegated to the Zoning Commissioner and the decision must be reversed.

The appellee urges that a “Use Permit” is a “Special Exception”; the appellants urge that it is not. We conclude that the question is not so simple and clear-cut. A “Use Permit” both is and is not a “Special ⁶⁹⁶ Exception,” depending upon which meaning of “Special Exception” the legislative authors of the phrase had in mind upon the particular occasion when they used it. A “Use Permit” is within the generic meaning of “Special Exception”; it may not be within the specific meaning of “Special Exception.” The question, therefore, becomes that of whether the Baltimore County Council, when it delegated to the Zoning Commissioner the power to make “Special Exceptions,” intended to use the phrase in its broad and generic sense or in its narrower and more specific sense.

Having stated the issue, we seek the path to its resolution through the legislative and linguistic tangle of the Baltimore County zoning experience. We begin with a broad principle of zoning law not parochial to Baltimore County but universal to the zoning cosmos. Within each zone created, there are primary and designated uses available as a matter of right with no permission needing to be sought from any zoning authority. There are other uses proscribed by law and, therefore, beyond the pale, absent a zoning reclassification.

Between the two poles is a borderland wherein certain uses are not prohibited by law but neither are they absolutely permitted as a matter of unconditioned right. Generally speaking, they are privileges which must be sought from and authorized by some administrative agency (a zoning commissioner, a zoning board, etc.), which possesses the authority to condition the grant of permission, influenced by a number of relevant social considerations. The uses of the property in issue are permitted uses, generally compatible with the zone but not at every or any location therein or without certain restrictions or conditions being imposed. This determination of compatibility and this imposing of conditions is vested in an appropriate administrative authority.

In describing this broad phenomenon, the vocabulary has been far from uniform but the law has recognized that the same principle is afoot even when the labels may vary. 82 Am.Jur.2d, Zoning and Planning, XIII. C. “Special Permits or Exceptions,” § 281 “Generally; terminology,” ⁶⁹⁷ speaks of both the general phenomenon and its fluctuating vocabulary at 827-828: “.. . A ‘special permit’ or ‘special exception’ designates a species of administrative permission which allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves. Some zoning laws or ordinances use the term ‘conditional use permit,’ ‘special exception permit,’ or ‘special use permit’ to refer to this type of administrative permission.

In one jurisdiction, the term ‘waiver use approval’ has been used. But regardless of which of the foregoing terms is used, the nature of the administrative permission and of the use permitted is, viewed broadly and substantively, the same, since each involves a use which is permitted rather than proscribed by the zoning regulations. In the words of the Supreme Court of Connecticut, ‘the terms “special exception” and “special permit” hold the same legal impact and can be used interchangeably.’ . . . The function of a special permit is to bring some flexibility to the rigid restrictions of a zoning ordinance while at the same time controlling troublesome or somewhat incompatible uses by establishing, in advance, standards which admit the use only under certain conditions or circumstances.” 3 Anderson, American Law of Zoning, § 15.01, speaks to the same effect, at 84: “The ‘special exception,’ the ‘special permit,’ and the use permitted subject to administrative approval, are qualitatively the same.

Each involves a use which is permitted rather than proscribed by the zoning regulations. Each is allowed only upon approval of a board of adjustment or other administrative body.. .. And in each case, the ⁶⁹⁸ board is guided and its power limited by hearing requirements and standards.” 2 Rathkopf, The Law of Zoning and Planning, Ch. 54, § 1, n. 1, uses both the terms “special exception use” and “special exception permit” but claims that both are misnomers. He suggests that a more accurate description would be “conditional use permit” because “... no ‘exception’ is made to the provisions of the ordinance in permitting such use; the permit granted is for a use specifically provided for in the ordinance in the case in which conditions, legislatively prescribed, are also found.” Although frustratingly the vocabulary varies from county to county and although the ultimate arbiter of intended meaning is the local legislative user of the contested words, the Court of Appeals in Rockville Fuel & Feed Co. v. Board of Appeals, 257 Md. 183, 187-188 , 262 A. 2d 499 , recognized generally that “conditional use” and “special exception” are synonymous terms.

In a 1954 decision arising out of Baltimore County, Oursler v. Board of Zoning Appeals of Baltimore County, 204 Md. 397 , 104 A. 2d 568 , the Court of Appeals did use the terms “permit” and “exception” interchangeably. Although, to be sure, dealing with zoning regulations and, therefore, with vocabulary emanating from Prince George’s County rather than from Baltimore County, the Court of Appeals in Cadem v. Nanna, 243 Md. 536, 543 , 221 A. 2d 703 , defined the phrase “Special Exception” in terms of the broad and general phenomenon herein being discussed: “The words ‘special exception’ are well known in zoning law. They refer to a grant by the zoning administrative body pursuant to the existing provisions of the zoning law and subject to certain guides and standards, of a special use permitted under the provisions of the existing zoning law.” See also Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287, 96 A. 2d 261 . Cadem v. Nanna cited as authority the ⁶⁹⁹ New Jersey decision of Tullo v. Township of Millburn, 54 N.J. Super. 483 , 149 A. 2d 620, 624-625 , which explained: “The term [‘special exception’] might well be said to be a misnomer. ‘Special uses’ or ‘special use permits’ would be more accurate.

The theory is that certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community and its citizenry or substantial segments of it, are entirely appropriate and not essentially incompatible with the basic uses in any zone. .., but not at every or any location therein or without restrictions or conditions being imposed.... If the board finds compliance with the standard or requisites set forth in the ordinance, the right to the exception exists, subject to such specific safeguarding conditions as the agency may impose . . . .” Thus, the broad phenomenon does have, here as elsewhere, many labels. Whether the label employed on a particular occasion happens to be “special permit,” “conditional use,” “special use,” “use permit,” or “special exception,” the type of relief described is the same. This broad phenomenon is what we shall refer to as the genus.

Generally speaking, the name “Special Exceptions” refers to this genus. What remains to be seen is how the name “Special Exceptions” came to take on a more limited and specific meaning in the zoning experience of Baltimore County. As we shall see, however, that additional and narrower meaning was not in lieu of, but rather in addition to, the broader and more general meaning, which continued to enjoy a separate vitality of its own. The process of evolution or differentiation, linguistically as well as biologically, is easy to understand.

The genus initially was a simple and undifferentiated life form (or zoning phenomenon). Over the years, however, certain specific instances of the more general phenomenon were recognized as having some unique identifying char ⁷⁰⁰ acteristics, some unique problems, and some unique guidelines of their own. As these ascertainable instances of the more general phenomenon were singled out for separate handling, they came to be identified as distinct species within the broader genus. This was particularly true of that instance of “Special Exceptions” which came to be known as the “Use Permit” for off-street parking in a residential zone.

Zoning regulations were first adopted by the County Commissioners of Baltimore County on January 2, 1945, pursuant to a special enabling act, aopted by the Maryland Legislature in the Acts of 1941, Ch. 247. The County Commissioners were authorized to appoint a Zoning Commissioner and a Board of Zoning Appeals to hear and determine issues raised pursuant to the regulations. Among his other powers, the Zoning Commissioner was empowered to make Special Exceptions and to issue Special Permits within appropriate guidelines. The Code of Public Local Laws of Baltimore County (1948), Title 23, § 367 established § XIII of the Zoning Regulations, entitled “Powers Relative to Special Exceptions and Special Permits.” That § XIII of the Zoning Regulations and Restrictions for Baltimore County (Doing Ed., 1948), indicated the still-loose interchangeability of the terms “special exception” and “special permit,” on the one hand, but also began the process of differentiation between them, on the other hand.

Although the term “special exception” is contained in the title, the text of the section nowhere employs it but uses only the term “special permit.” Indeed, § XIII’s preamble provides that “. .. such uses may be permitted only upon a special permit granted by the zoning commissioner, subject to appeal...” It appears that the Special Permit authorized the Special Use, the total effect of which could be described as a Special Exception. In terms of the beginning of differentiation, subsection A treats generally the special permits that shall be required for a list of designated uses in a residential zone. It does not include off-street parking. It is rather in a separate section, subsection C, that off-street parking receives its separate treatment: “In any residential ⁷⁰¹ zone a special permit shall be required for use of land for automobile parking, subject to the following regulations.” The process of differentiation went further in 1955 when the Baltimore County Commissioners excised from the old § XIII the provisions dealing with off-street parking in a residential zone and housed them in § 409.4 of the Baltimore County Zoning Regulations.

Several other conditional uses or “Special Exceptions,” which also had taken on distinct identities and involved distinct guidelines and regulations, were also lodged in Art. 4 of the BCZR which was entitled “Special Regulations.” The remainder of the “Special Exceptions,” which were not singled out for special handling, were treated in § 502, called “Special Exceptions.” (It would have been preferable, of course, if § 502 had been entitled “Other Special Exceptions.”) 7 The differentiation proceeded further when § 500, listing the powers of the Zoning Commissioner, listed his power to issue a use permit (such as for off-street parking) in subsection 500.4, but then listed his power to deal with “Special Exceptions” under § 502 in a separate subsection, 500.2. We may thus perceive, as other conditional uses begin to take on separate identities and branch off from the main