Kent County Planning Inspector v. Abel

Finan, J., delivered the opinion of the Court. Appellee Eva C. F. Abel, respondent below, owns a tract of land at the confluence of the Sassafras River and Swantown Creek in Kent County, Maryland. Since 1956, appellee Eva C. F. Abel and her son, appellee C. Robert Abel, respondent below, trading as Galena Boat Yard, have operated a boat yard, marina and boat repair, service and storage business on the land in question. Prior to the commencement of the construction work, the operation included 11 large and 30 small slips in addition to the boat yard.

The new construction is in contemplation of an additional 30' large slips. Pursuant to the Kent County Zoning Ordinance, adopted April 17, 1962, the property was zoned commercial. Under the “C” or commercial zoning classification a marina or boat livery station is a permitted use, Art. X, § 6, Kent Co. Zon. Ord.; however, such marinas or boat livery stations may not include “boat repair yards, marine railways, warehouses and like uses unless five hundred (500) feet from any ‘R’ District.” Art. X, § 6, supra.

Since appellees’ land is located within 500 feet of a “R” district, their operation constituted a non-conforming use; this was admitted in appellees’ pleadings. On May 20, 1963, appellee Eva C. F. Abel applied to the Kent County Planning Commission for a building permit to erect a bulkhead and covered slips on the subject property at an estimated cost of $20,000; the permit was issued on June ³⁹⁸ 5, 1963. Prior to the obtaining of the permit from the Planning Commission, the appellee had obtained authorization for the improvements from the corps of Engineers of the United States Army, which specifically stated “nor does it [United States authorization] obviate the necessity of obtaining State assent to the work authorized.” According to the testimony of appellee Robert Abel, work pursuant to the permit was commenced in 1963. On November 29, 1965, the president, of the Kent County .Planning Commission sent appellee Robert Abel a letter informing him that his project was in violation of the zoning ordinance •and that an application for this work had to be filed within 10 ■days with the Kent County Board of Appeals.

The letter also ■advised appellee to stop work immediately. A second letter was sent to appellee by the president on December 9, 1965. This letter acknowledged the fact that a permit was issued by the Commission on June 5, 1963, but informed appellee that the “permit was good for a period of twelve months and if not used 'within that time an application for extension (sic) must be submitted.” The letter further advised appellee to stop work until a new permit has been issued. Appellee Robert Abel testified ■that he did not make an application to the Board of Appeals because he already had a permit and that he was not going to ;pay the fifteen dollar application fee.

On January 21, 1966, appellant-complainant below, Kent 'County Planning Inspector, pursuant to Art. XVIII, Kent Co. ■Zon. Ord. (as amended Sept. 24, 1963) filed a bill of complaint in the Circuit Court for Kent County, praying that the appellees be enjoined from proceeding with the construction of the improvements on their property. The bill alleged that the per•mit granted by the Planning Commission on June 5, 1963, was issued in violation of the Zoning Ordinance.

Appellant’s allegation that appellees’ permit was void is based on the premise that since appellees are operating a non-conforming use, the Kent County Board of Appeals pursuant to Art. IV, § 4.02 of the Zoning Ordinance, and not the Planning Commission, has the sole power to authorize enlargement, extension or alteration of the existing non-conforming use in conformity with the limited ■provisions in the zoning ordinance. A hearing was held on March 24 and 25, 1966. Appellant tes ³⁹⁹ tified that he visited the property in the early part of 1965 and found no bulkhead erected at that time. Appellant further testified that he visited the property twice in 1966.

In January of 1966, he observed earth being moved to where the bulkhead was to be built and during a visit approximately six weeks prior to the hearing he noted that a portion of the bulkhead had been constructed. F. Alexander Clement, a contiguous property owner, testified that in 1966 appellees built “200 and some odd feet” of bulkhead and piling extending into the river “115 to 120 feet.” Appellee Robert Abel testified that in 1963 work on a retainer wall had been started and in 1964 timbers for the bulkhead were hauled to the property. At the time of the hearing, 120 feet of bulkhead parallel to the shoreline had been completed and an additional 160' feet of piles had been driven. Appellees had spent for the work done pursuant to the permit of June 5, 1963, up until the date of the filing of the bill of complaint, a total of $13,276.

On cross-examination Abel testified that bulkhead construction began in 1965, but that filling-in operations began in 1963 and continued through 1964. Questioning by the chancellor elicited testimony from Abel that after December 9, 1965, the date of the Board’s second letter to appellee, work continued to the extent that 35 feet of retaining wall was erected extending into the Sassafras River, 120 feet of bulkhead constructed parallel to the shoreline and 160 feet of piling driven. Abel explained that he continued work after December 9, 1965, in order to comply with an “ultimatum” of the Army Engineers. The lower court in its opinion stated, “the Doctrine of Equitable Estoppel should apply in this case * * Its rationale being, “I do think it applies because the Defendant, a property owner, started to do something under an invalid permit after having consulted the agency which ordinarily would have been the agency to consult.” We do not agree with the theory of the law expressed by the learned chancellor as applied to the facts of this case.

The correct principle of law to be applied to a situation such as presented by the instant case was set forth by Judge Prescott (later Chief Judge) in Berwyn Heights v. Rogers, 228 Md. 271, 179 A. 2d 712 (1962), a case wherein the property owner (defendant) had received building permits from the building ⁴⁰⁰ inspectors of both the Town of Berwyn Heights (complainant) and Prince George’s County. Construction of a dwelling house on a corner lot in violation of side-yard restrictions was well advanced when the injunctive relief was sought. Judge Prescott cited numerous decisions of this Court, supporting the views expressed in his opinion and stated at pp. 279-80: “Finally, the appellee claims, without the citation of authority, that the appellant is estopped from prosecuting the suit by the fact that it and the county issued him building permits, and he has expended substantial amounts of money in partially constructing the dwelling. Some authorities hold that the principle of estoppel does not apply against a city, but the majority rule is to the effect that the doctrine of estoppel in pais is applied to municipal, as well as to private, corporations and individuals, at least where the acts of its officers are within the scope of their authority and justice and right require that the public be estopped.

Rose v. Baltimore, 51 Md. 256 ; Camden Sewer Co. v. Salisbury, 162 Md. 454, 461 , 160 A. 4 ; 9 McQuillin, Municipal Corporations (3rd ed.), § 27.56; 3 Dillon, Municipal Corporations (5th ed.), page 1893 ; Anno., 1 A.L.R. 2d 338 ; cf. Gontrum v. City of Baltimore, 182 Md. 370 , 35 A. 2d 128 . And it has been held that municipalities may be estopped by reason of the issuance of permits. The authorities are collected in 2 Metzenbaum, Law of Zoning, (2nd ed.), beginning at page 1188. However, the cases and text-writers very generally state that a municipality is not estopped to set up the illegality of a permit.

Lipsitz v. Parr, 164 Md. 222 , 164 A. 743 ; 2 Metzenbaum, op. cit., pp. 1143-1146, 1191, 1192 ; 1 Metzenbaum, op. cit., pp. 163-171, 256-259, 466, 590, 591 ; 8 McQuillin, op. cit., § 25.153 ; Vogt v. Borough of Port Vue, 85 A. 2d 688 (Pa. Super.) ; Adler v. Department of Parks & Public Property, 89 A. 2d 704 (N. J. Super.). And the issuance of an illegal permit creates no “vested rights” in the permittee. 2 Metzenbaum op. cit., pp. 1185, 1186, 1193-1195 ; 8 McQuillin, op. cit., § 25.153; Colonial ⁴⁰¹ Beacon Oil Co., Inc. v. Finn, 283 N. Y. S. 384 ; Vogt v. Borough of Port Vue, supra ; cf. Lipsitz v. Parr, supra. We have held above that the permits issued to the appellee were in violation of the zoning ordinance; consequently they were unlawful and did not estop the appellant from prosecuting this suit.” Lipsitz v. Parr, 164 Md. 222 , 164 A. 743 (1933), involved the issuance of a building permit authorizing the applicant to construct an ice house in a zone where such a building was specifically prohibited by law.

The applicant set up the defense of estoppel against the city’s efforts to obtain an injunction to enjoin the work. This Court, speaking through Judge Parke, said at pp. 227-28; “A permit thus issued without the official power to grant does not, under any principle of estoppel, prevent the permit from being unlawful nor from being denounced by the municipality because of its illegality. In the issuance of permits