Howard Research & Development Corp. v. Howard County

Couch, J., delivered the opinion of the Court. ⁵⁰⁰ The Board of County Commissioners of Howard County, in May, 1965, amended the Howard County Zoning Regulations by adopting Section 17 which provided for the creation, organization and regulation of a floating zone known as a New Town (NT) District. 1 This new section of the zoning regulations provided that the beneficial owner of any tract of land in Howard County meeting the requirements of Section 17.012 2 (NT District must contain total area of at least 2,500 contiguous acres) may petition the Board of County Commissioners to designate the property an NT District. A Preliminary Development Plan 3 (PDP) must accompany the petition. Howard Research and Development Corporation (HRD) ⁵⁰¹ submitted such a petition accompanied by a PDP for the placement of approximately 13,600 acres of land in what was to be known as the Columbia New Town District (Columbia). The petition and the PDP for Columbia were approved by the Board of County Commissioners in August of 1965.

Following the approval of the PDP, HRD had the choice, under the zoning regulations, of either developing the entire NT District or developing the NT District in separate geographical segments. HRD chose the latter, more manageable course. The process of developing phases of the PDP involves submission of a Final Development Plan (FDP) for each geographical segment (phase) to the Planning Commission for its review and approval. In November, 1968, a county charter was adopted by the citizens of Howard County.

In that charter, the Planning Board was designated to succeed the Planning Commission with regard to matters involving New Town Districts. A Zoning Board was also created and, pursuant to the Zoning Enabling Act, Howard County Code §§ 16.200-210, the Zoning Board, in October, 1977, adopted the 1977 Zoning Regulations. § 119 of the new regulations, governing NT Districts and particularly Columbia, is virtually identical to § 17 of the 1961 Zoning Regulations. The specific controversy in this case focuses upon Phase 36 of the Final Development Plan which was approved by the Planning Commission in April, 1968. Phase 36 involves approximately 139 acres of land located in a section of the Oakland Ridge Industrial Park in the Columbia New Town District.

Approximately 57 acres (collectively, the "Base Parcel”) of Phase 36 were designated for development and given the land-use designation of "Employment Center — Industrial Area.” Having obtained the approval of the Planning Commission, the FDP Phase 36 map and accompanying "criteria” 4 were recorded among the Land Records of Howard County. The problem presented here deals with the specific ⁵⁰² implementation of the Final Development Plan — Phase 36. The FDP Phase 36 criteria provides as follows: "F. Permitted Uses — Section 17.031 D (of 1977 Zoning Regulations) B. Commercial uses ancillary to, or compatible with, permitted industrial uses are permitted including, but not limited to, all of the following: d. Gasoline service station.” Under Paragraph 6.A. of the FDP criteria — Phase 36, "All structures constructed upon lots included within this phase shall be constructed in accordance with a site development plan approved by the Howard County Planning Commission.” In accordance with the Phase 36 criteria, BP Oil, Inc. (BP), appellant and contract purchaser of approximately 1.297 acres, designated as lot 79 in Oakland Ridge Industrial Park, petitioned the Planning Board for the approval of a site development plan which proposed the installation of a gasoline service station on the lot.

As noted previously, a gasoline service station is categorized as a permitted use by the Phase 36 criteria. No other gas station had been built on the Phase 36 parcel and BP apparently believed that such a use was permitted as of right and that the imprimatur of the Planning Board, without the requirement of a formal public hearing, was all that was necessary to proceed with development of the lot. The Planning Board felt otherwise. The Howard County Planning Board, pursuant to § 119 C. 15 of the 1977 Zoning Regulations 5 and the Board’s own Final Development Plan Criteria Policy, 6 concluded that a determination "in the ⁵⁰³ nature of’ a special exception decision had to be made by the Planning Board relative to the proposed location of BP’s gasoline service station, because the use had not been assigned to a specified parcel under the recorded FDP Phase 36 criteria.

The Planning Board conducted the proceedings as upon a petition for special exception which requires a public hearing, notice, presentation of evidence and the issuance of a decision and order. The previously referenced policy of the Board required the Board to apply the standards of § 122 F.16 of the Zoning Regulations, which provides for special exceptions for gasoline stations, to BP’s application. The Board held a public hearing on the petition on July 31, August 23, and September 20, 1978 at which appellees, the Concerned Citizens for the Columbia Concept (Protestants) appeared to protest the placement of the gas station on property bordering their residential area. Using the standards delineated in § 122 F.16 for the grant of a special exception, the Planning Board granted BP’s application.

The protestants, uncertain of the route an appeal must take from the Planning Board, filed appeals to both the Circuit Court for Howard County and the Board of Appeals of Howard County. These proceedings are now pending and, although they precipitated the instant case, they are not directly involved here. The protestants’ appeals raised various original and appellate jurisdictional questions involving the administration of the NT District which cast obstacles in the path of the commencement of construction of the gas station. Accordingly, appellant BP filed the present ⁵⁰⁴ declaratory judgment action in the Circuit Court for Howard County.

Appellant HRD, the developer of the Columbia NT District, intervened. BP’s petition for a declaratory judgment requested the Circuit Court to declare (1) that the Board of Appeals of Howard County has no jurisdiction or authority to entertain an appeal from a decision of the Planning Board granting BP permission to erect a gasoline station in a NT District, (2) that the Planning Board has no authority to grant special exceptions under the zoning regulations applicable to the NT District, (3) that the action of the Planning Board in approving BP’s site development plan was valid, and (4) in the alternative, if it were found that the Planning Board had the authority to grant a permit for the service station as a special exception in the NT District, that its action in approving the site development plan and granting a special exception was valid. A "counterclaim” was filed by the "Concerned Citizens for the Columbia Concept” and several of its individual members in which they requested several things, the most important of which was that the Circuit Court declare that (1) the Planning Board’s approval was illegal, and (2) that they have a right to appeal to the Board of Appeals from the decision of the Planning Board. After a hearing on the various issues the circuit court issued, in November, 1979, its Memorandum Opinion and Decree and declared the following: "(1) That § 119 C.15. of the Zoning Regulations of Howard County is invalid, and therefore the Planning Board [note 5, supra] of Howard County had no authority to grant to the Petitioner, BP Oil, Inc. a special exception for a gasoline service station on Lot 79 in Oakland Ridge Industrial Park, as shown on Phase 36 of the Final Development Plan for the New Town of Columbia, recorded in Plat Book 14, Folio 64.

(2) That since the Planning Board of Howard County had no authority to grant said special ■exception, no appeal to the Board of Appeals of ⁵⁰⁵ Howard County lies from the decision and order of the Planning Board purporting to grant said special exception in Planning Board Case No. 123. (3) That original jurisdiction to permit said special exception lies in the Board of Appeals of Howard County. (4) That the gasoline service station for which a permit was sought by the Petitioner, BP Oil, Inc., falls within the definition of an Automobile Gasoline Service Station as set out in § 104 A. 11 . of the Zoning Regulations of Howard County,...” HRD petitioned for a rehearing, which was granted. A second Memorandum and Order denying HRD’s motion to revise the earlier decree was issued in February, 1980.

The February, 1980 Order reinstated the November, 1979 Order. Thus our review shall center upon the November, 1979 Memorandum and Decree. Appellants, HRD and BP, raise the following issues with respect to the circuit court’s disposition of the petition for declaratory judgment: "I. Under the Howard County Zoning Regulations, are there uses in New Town Districts which are to be treated as Special Exception uses requiring the approval of the Howard County Board of Appeals before they may be installed in a New Town District?

II

Does the Howard County Board of Appeals have the authority and jurisdiction to hear appeals from decisions of the Howard County Planning Board involving the final development plan process in a New Town District?

III

Does BP Oil, Inc. have a 'vested right’ to construct a gasoline service station on the property?” I As shall be seen the question of whether there are special ⁵⁰⁶ exceptions in a New Town zoning district is determinative of the jurisdictional issue raised in appellants’ second argument. On the one hand, if special exceptions are contemplated by the NT zoning regulations, then original jurisdiction rests with the Howard County Board of Appeals, Howard County Code § 16.301 (1977). If there are no special exceptions then original jurisdiction for the approval of BP’s site development plan rests with the Planning Board. The course of appeal from the Planning Board also presents a problem but we will chart it when we arrive at that point.

Our answer to appellants’ first question is quite simple. There are no special exceptions in a New Town zoning district as established in the 1961 and 1977 versions of the Howard County Zoning Regulations. Our conclusion that there are no special exceptions 7 in a NT District derives from a reading of the New Town zoning regulations in their entirety, Pumphrey v. County Comm’rs. of Anne Arundel County, 212 Md. 536 , 130 A.2d 297 (1957), which is the better source for divining legislative intent as opposed to reference to any one part of the zoning regulations. See Mazor v. State Department of Correction, 279 Md. 355 , 369 A.2d 82 (1977).

While we are mindful of the admonishment that no section of a statute should be rendered surplusage, we do not believe that § 119 C.15, having reference to all "matters which may be deemed to be in the nature of variances and special exceptions,” plays a part in the submission to the Planning Board for their approval of BP’s site development plan. Preliminarily we note that FDP Phase 36 endured rigorous oversight before finding its way into the land records of Howard County. The proposed use for the land was first submitted under the 1961 regulations as a preliminary development plan to the Planning Commission and then to the County Commissioners who rezoned the area to a New Town District. The PDP under the provisions of § 17.021 c (1961) was required to show the general location of both residential and employment uses.

Under § 17.023 the ⁵⁰⁷ County Commissioners were required to hold a public hearing on the PDP and examine the PDP in detail. Following the approval of the PDP all prior existing zoning controls over property within the NT District which were inconsistent with the PDP ceased. Howard County Zoning Regulations, § 119 B.6.c. (1977).

The PDP then became the controlling blueprint for the NT District but actual development could not begin until the FDP gained approval from the Planning Commission. Chief among the Planning Commission’s considerations in the FDP approval process was the "impact of the proposed commercial and industrial uses on the residential uses within the NT District or adjacent thereto.” § 17.034 D (1961). Nowhere in this development process for a NT District is there mentioned a special exception. In fact, the major thrust of the New Town regulations seems to be to achieve a compatible mix of uses with a good deal of flexibility built into the development scheme which is overseen by both the Planning Commission (presently the Planning Board) and the County Commissioners (who have been replaced in the NT scheme by the Zoning Board).

Section 119 A. 10 of the 1977 Regulations provides: "Anything in other sections of these Regulations to the contrary notwithstanding, there shall be no restrictions upon the use of, or on the erection of buildings and structures on, land within an NT District other than such as are provided in the various subsections of this Section or in such other Sections of these Regulations as are expressly stated to be applicable by the various provisions of this Section.” If a gasoline service station is a special exception in an NT District it clearly must be found in the NT regulations or by express reference to other sections of the Howard County Zoning Regulations. Section 122 which governs special exceptions, and specifically gasoline service stations as special exceptions, is mentioned once in the NT regulations: "All intended uses which by Section 122 of these ⁵⁰⁸ Regulations are permitted, with specific approval, only in residential districts, or in some residential districts and some non-residential districts, may be included in the Final Development Plan, either in the residential areas or Employment Centers shown on the Preliminary Development Plan. All intended uses which by Section 122 of these Regulations are permitted, with specific approval, only in non-residential districts, shall be included in areas marked Employment Centers on the Preliminary Development Plan.” § 119 B.2, Howard County Zoning Regulations (1977). This section does not import the entirety of § 122 into the NT zoning regulations.

It merely provides that those uses which are listed as special exceptions in § 122 and permitted in either residential or non-residential areas under the regulations applicable to other than NT Districts shall be included either in the residential or Employment Centers shown on the PDP. A gasoline service station is one of those uses to which § 119 B.2. refers and was appropriately placed by the PDP in an employment center which is now FDP Phase 36. From these regulations it is evident that those uses which are considered special exceptions meriting strict control by the provisions of § 122 have been afforded the same modicum of controls by virtue of the NT development process which requires careful oversight for all uses which may be placed in the NT District. Of course, the real culprit which has created vast amounts of confusion in the administration of and regulation of the Columbia New Town District by the Planning Board is § 119 C.15 which states that "The Planning Board shall have jurisdiction to make decisions and determinations with respect to all matters which may be deemed to be in the nature of variances and special exceptions.” We have searched the NT regulations for some inkling as to whát the phrase "in the nature of special exceptions and variances” could possibly refer and have concluded that the phrase does not require the interpretation that the trial court placed ⁵⁰⁹ upon it.

The trial court arrived at its conclusion that BP’s application amounted to an application for a special exception by the following reasoning: "Section 119A. 10. states, in part, that: 'Anything in other sections of these Regulations to the contrary notwithstanding, there shall be no restrictions upon the use of, or on the erection of buildings and structures on, land within a NT District other than such as are provided in the various subsections of this Section or in such other Sections of these Regulations as are expressly stated to be applicable by the various provisions of this section.’ Section 119 A.8. provides that: 'Subject to the more restrictive provisions of § 119Cld relating to specific uses, all provisions of these Regulations relating in B-l, B-2, SC and M-l Districts (except those restrictions relating to minimum lot size, height limitations, parking requirements, front, side and rear yard areas, set back provisions and coverage requirements, and to controls afforded by the Final Development Plan set forth herein being substituted therefor) shall apply to those areas in the NT District designated on the approved Final Development Plan for uses corresponding to those permitted in the aforesaid districts.’ The parenthetical portion of the last regulation quoted is grammatically incomprehensible but any interpretation of it, by recourse to § 17.017 of the prior zoning regulations or otherwise, would not seem to affect the conclusion that uses permitted in the B-l, B-2 and M-l Districts are subject to the restrictions elsewhere in the Regulations applied to them, except as to minimum lot size, etc. Section 122 F. of the Regulations provides that 'The Board of Appeals may grant Special Exception uses in the specified [underscoring supplied] districts in accordance with the following minimum criteria:... .....16. Gasoline Service Stations: 'A Special ⁵¹⁰ Exception may be granted in the B-2, S-C, M-l, M-2 and ID Districts for gasoline service stations.....’. This Court does not construe the provisions of § 119 B.2. to mean that, since uses permitted with specific approval by Section 122 are to be included in specified areas on the Preliminary Development Plan, such uses, by virtue of being included, are thereby permitted as a matter of right. The language used indicates where such uses are to be located, just as Section 122 indicates where such uses are to be located.

The purpose of the Section appears to be to supplement or amplify the provisions of § 119 A.9, which provides that the New Town District must provide a certain percentage of B-l, B-2, SC and M-l uses. The uses permitted with specific approval in those districts are not listed under the sections of the regulations defining those districts and specifying the uses permitted therein as a matter of right. Absent the provisions of § 119 B.2, there could be some question as to whether uses permitted with specific approval under § 122 are allowed in the New Town District. The interpretation placed on the language in § 119 B.2. appears to be supported by the language of § 119 C.15 and 16.

Since