Kirsch v. Prince George's County

KARWACKI, Judge. In this case, we are asked whether the Prince George’s County “mini-dorm” zoning ordinance codified within Subtitle 27 of the Prince George’s County Code (1991), regulating the rental of residential property to three or more students pursuing higher education, deprives such students of equal protection of the law by discriminating against a class of persons in violation of the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights. I. Prince George’s County derives its zoning authority from the Regional District Act, Maryland Code (1957, 1986 Repl. Vol.), Art. 28, § 8-101.

That section designates the county councils of Montgomery and Prince George’s Counties “as the district council for that portion of the regional district lying within each county, respectively.” § 8-101(a). The section further provides: “(b) Grant of zoning power.—(1) Each district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate, in the portion ⁹² of the regional district lying within its county, (i) the location, height, bulk, and size of buildings, other structures, and units therein, building lines, minimum frontages, depths and areas of lots, and percentages of lots which may be occupied; (ii) the size of lots, yards, courts, and other open spaces; (in) the erection of temporary stands and structures; (iv) the density and distribution of population; (v) the location and uses of buildings and structures and units therein for trade, industry, residence, recreation, agriculture, public activities, and other purposes; and (vi) the uses of land, including surface, subsurface, and air rights therein, for building, trade, industry, residence, recreation, agriculture, forestry, or other purposes.” The Prince George’s County “mini-dorm” ordinance was introduced in the County Council of Prince George’s County, sitting as the District Council, as Zoning Ordinance Bill Number CB-152-1989 on October 31,1989, was enacted into law on November 28, 1989, and took effect on July 1, 1990. The ordinance’s preamble states: “AN ORDINANCE concerning Mini-Dormitories FOR the purpose of defining a mini-dormitory; establishing criteria for regulating this use; allowing it as a permitted use or by Special Exception in certain zones, subject to certain criteria; prohibiting the Board of Appeals from granting certain variances for mini-dormitories; prohibiting the Planning Board from approving departures from the required number of parking spaces for mini-dormitories; and requiring all existing uses to be in conformance with these regulations by July 1, 1991.” These legislative goals were achieved by amending the County’s zoning ordinance at §§ 27-107.1, 27-229(b), 27-441(b)(6), 27—515(b)(7), 27-547(b)(7), 27-568 and 27-588(c) and adding §§ 27-249.1, 27-374.1, 27-445.7, 27-532.2, and 27-548.1.2. The ordinance defines a “mini-dormitory” as: ⁹³ “An off-campus residence, located in a building that is, or was originally constructed as a one-family, two-family, or three-family dwelling which houses at least three (3), but not more than five (5), individuals, all or part of whom are unrelated to one another by blood, adoption or marriage and who are registered full-time or part-time students at an institution of higher learning.” § 27-107.1(a) (150.1) (emphasis added).

Mini-dormitories are permitted uses in all of the “specific residential zones” in the County, except for R-10A Zone (Multifamily High Density Residential-Efficiency); in all of the “comprehensive design zones” except for the “Employment and Institutional Area”; and in the “mixed use zones,” provided the facilities satisfy certain requirements: “(1) The property shall be maintained in accordance with all applicable provisions of the County Code; (2) Rooms used for sleeping purposes shall have not less than seventy (70) square feet per resident; (3) All parking spaces shall be provided on-site [at the ratio of one space for each resident]. (4) Parking spaces provided solely for, and on the same lot with the mini-dormitory may be located behind the other (the front space may be used as access to the rear space); (5) The number of driveway entrances authorized shall not exceed one (1) driveway entrance per lot or per street on which the subject lot has frontage (i.e., a corner lot), unless such driveway entrances were in existence on November 28, 1989; (6) The use shall not alter the single-family residential character or appearance of the premises; (7) The maximum percentage of lot coverage for a mini-dormitory shall be the same as that for the dwelling type that was originally constructed on the lot; and (8) The maximum percentage of lot coverage may only be increased by the District Council in the form of a variance granted in connection with the approval of a Special Exception.” ⁹⁴ The ordinance specifically prohibits the Board of Zoning Appeals from granting a variance to the requirements. § 27-229(b)(26). Further, departures from the required number of parking spaces may not be approved by the Planning Board and a reduction in the required number of spaces must have approval of the County Council, sitting as the District Council, “in the form of a variance granted in connection with the approval of a Special Exception.” § 27-588(c)(2). A “mini-dormitory” is permitted only after obtaining a Use and Occupancy Permit certifying the residence as an acceptable “mini-dormitory” or by receiving special exception from the District Council.

The ordinance further provides that nonconforming structures being used as mini-dorms must be certified and “may only continue subject to the requirements of this Section and to any other applicable requirements of [the code].” § 27-249.1(a). In that section, the ordinance continues: “(b) The purpose of this Section is to prevent or control detrimental effects upon neighboring properties, such as illegal parking and saturation of available parking by residents of mini-dormitories, litter, and noise. (c) All certified nonconforming mini-dormitories shall meet the following requirements: (1) The use shall not alter the single-family residential character or appearance of the premises; and (2) The property shall be maintained in accordance with all applicable provisions of the County Code.” The ordinance provides additional requirements for specific special exceptions at § 27-374.1: (a) A mini-dormitory may be permitted, subject to the following: (1) The application shall be accompanied by a statement which sets forth an acceptable maintenance plan; (2) The site plan shall include the number, type, and location of exterior trash receptacles; (3) Rooms used for sleeping purposes shall have not less than seventy (70) square feet per resident; ⁹⁵ (4) All required parking spaces shall be provided on-site, except as follows: (A) The required number of parking spaces may be reduced on-site by one (1) space if on-street parking is allowed in front of the subject lot; or (B) The required number of parking spaces may be provided off-site if: (i) The mini-dormitory is located within five hundred (500) feet of an existing parking lot; (ii) The owner of the mini-dormitory has written permission from the parking lot owner for the residents of the mini-dormitory to use the parking lot; and (iii) The existing parking lot has sufficient surplus parking spaces available to provide the number of spaces required; (5) Parking spaces provided solely for, and on the same lot with, the mini-dormitory may be located one behind the other (the front space may be used as access to the rear space); (6) The number of driveway entrances authorized shall not exceed one (1) driveway entrance per building lot or per street on which the subject lot has frontage (i.e., a corner lot) unless such driveway entrances were in existence on November 28, 1989; (7) The use shall not alter the single-family residential character or appearance of the premises; (8) The maximum percentage of lot coverage for a mini-dormitory shall be the same as that for the dwelling type that was originally constructed on the lot; and (9) The maximum percentage of lot coverage may only be increased by the District Council in the form of a variance granted in connection with the approval of a Special Exception.” On July 3, 1990, Donald P. Kirsch and Martha Kaye Dunn, individual owners of residential property they wish to rent to persons including students, and Stephanie Stockman and Dan ⁹⁶ iel Cones, both students at the University of Maryland residing off campus in housing subject to the ordinance, (“the petitioners”), filed suit in the Circuit Court for Prince George’s County, seeking declaratory relief from the ordinance. On motion of the plaintiffs, the circuit court issued an interlocutory injunction on February 14, 1991, enjoining the County from enforcing the ordinance pending final disposition.

Cross-motions for summary judgment were filed, and on August 1, 1991, the circuit court granted the County’s motion. That judgment was affirmed by Court of Special Appeals. Kirsch v. Prince George’s County, 92 Md.App. 719 , 610 A.2d 343 (1992). We granted the plaintiffs’ petition for a writ of certiorari and shall reverse the judgment of the intermediate appellate court.

II

A. Section I of the Fourteenth Amendment of the United States Constitution provides in part: “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Article 24 of the Declaration of Rights provides: “That no man ought to be taken or imprisoned or dis-seized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Although the Maryland Constitution does not contain an express equal protection clause, we have long held that equal protection is implicitly guaranteed by the due process provision found in Article 24 of the Declaration of Rights. See Murphy v. Edmonds, 325 Md. 342, 353 , 601 A.2d 102, 107 (1992); Hargrove v. Board of Trustees, 310 Md. 406, 416 , 529 A.2d 1372, 1377 (1987), cert. denied, 484 U.S. 1027 , 108 S.Ct. 753 , 98 L.Ed.2d 766 (1988); United Wire v. State Deposit Ins. Fund, 307 Md. 148, 157 , 512 A.2d 1047, 1052 (1986); Ennis v. ⁹⁷ State, 306 Md. 579, 591 , 510 A.2d 573, 579 (1986); State v. Wyand, 304 Md. 721, 726 , 501 A.2d 43, 46 (1985), cert. denied, 475 U.S. 1095 , 106 S.Ct. 1492 , 89 L.Ed.2d 893 (1986); Loveday v. State, 296 Md. 226, 241 , 462 A.2d 58, 65 (1983); Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 640 , 458 A.2d 758, 768, 780-81 (1983); Lawrence v. State, 295 Md. 557, 559-60 , 457 A.2d 1127, 1128 (1983); Attorney General v. Waldron, 289 Md. 683, 704-05 , 426 A.2d 929, 940-41 (1981); Board of Supervisors of Elections v. Goodsell, 284 Md. 279 , 293 n. 7, 396 A.2d 1033 , 1044 n. 7 (1979); Governor v. Exxon Corp., 279 Md. 410 , 438 n. 8, 370 A.2d 1102 , 1118 n. 8 (1977), aff'd 437 U.S. 117 , 98 S.Ct. 2207 , 57 L.Ed.2d 91 (1978); Bruce v. Director, Chesapeake Bay Affairs, 261 Md. 585, 600 , 276 A.2d 200, 208 (1971). We have generally relied on opinions of the United States Supreme Court for interpretation of: “Those portions of the Maryland Constitution and Declaration of Rights [which] afford protection to its citizens against unreasonable or arbitrary discrimination in like manner and to the same extent as the Fourteenth Amendment of the Federal Constitution.” United States Mortgage Company v. Matthews, 167 Md. 383, 395 , 173 A. 903, 909 , rev’d on other grounds, 293 U.S. 232 , 55 S.Ct. 168 , 79 L.Ed. 299 (1934).

See also Murphy, supra, at 354 , 601 A.2d at 108 ; Hornbeck, supra, at 640 , 458 A.2d at 780-81 ; Waldron, supra, at 704 , 426 A.2d at 940—41; Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052, 1056 (1980); Bureau of Mines v. George’s Creek Coal & Land Co., 272 Md. 143, 156 , 321 A.2d 748, 755 (1974); Allied American Co. v. Comm’r, 219 Md. 607, 615-16 , 150 A.2d 421, 426-27 (1959). Nevertheless, we have recognized that the two provisions are independent of one another, and a violation of one is not necessarily a violation of the other. See Hornbeck, supra, at 640 , 458 A.2d at 781 ; Waldron, supra, at 704-05 , 426 A.2d at 941 . In Murphy v. Edmonds, supra, we revisited the standards under which legislative classifications are judged in equal ⁹⁸ protection cases.

Speaking for the Court, Judge Eldridge wrote: “In most instances when a governmental classification is attacked on equal protection grounds, the classification is reviewed under the so-called ‘rational basis’ test. Generally under that test, a court ‘will not overturn’ the classification ‘unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [governmental] actions were irrational.’ A statutory classification reviewed under the rational basis standard enjoys a strong presumption of constitutionality and will be invalidated only if the classification is clearly arbitrary. “Where, however, a statutory classification burdens a ‘suspect class’ or impinges upon a ‘fundamental right,’ the classification is subject to strict scrutiny. Such statutes will be upheld under the equal protection guarantees only if it is shown that ‘they are suitably tailored to serve a compelling state interest.’ “Finally, there are classifications which have been subjected to a higher degree of scrutiny than the traditional and deferential rational basis test, but which have not been deemed to involve suspect classes or fundamental rights and thus have not been subjected to the strict scrutiny test. Included among these have been classifications based on gender, discrimination against illegitimate children under some circumstances, a classification between children of legal residents and children of illegal aliens with regard to a free public education, and a classification under which certain persons were denied the right to practice for compensation the profession which they were qualified and licensed.” Id. at 355-357 , 601 A.2d at 108-09 (citations omitted).

In recent years, the Supreme Court has declined to extend heightened scrutiny review to additional legislative classifications. Instead, the Court has on several occasions held that notwithstanding the traditional deference accorded legislative acts certain legislative classifications failed rational basis scru ⁹⁹ tiny because the classification adopted did not further the express purpose of the statute. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985), the Supreme Court invalidated a city ordinance requiring an annual special use permit for particular group homes, including homes occupied by mentally retarded citizens. The Court stated: “The lesson of [Massachusetts Board of Retirement v.] Murgia [ 427 U.S. 307 , 96 S.Ct. 2562 , 49 L.Ed.2d 520 (1976) ] is that where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.

In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.” Id. 473 U.S. at 441-42 , 105 S.Ct. at 3255 , 87 L.Ed.2d at 321 . Nevertheless, Justice White, speaking for the Court, continued: “Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. This standard, we believe, affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner.

The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives— such as ‘a bare ... desire to harm a politically unpopular group,’—are not legitimate state interests. Beyond that, the mentally retarded, like others, have and retain their ¹⁰⁰ substantive constitutional rights in addition to the right to be treated equally by the law.” Id. at 446-47 , 105 S.Ct. at 3257-58 , 87 L.Ed.2d at 324 (citations omitted). Passing on the issue of the zoning ordinance’s validity, Justice White opined: “The constitutional issue is clearly posed.

The city does not require a special use permit in a R-3 zone for apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged (other than for the insane or feebleminded or alcoholics or drug addicts), private clubs or fraternal orders, and other specified uses. It does, however, insist on a special permit for the Featherston home, and it does so, as the District Court found, because it would be a facility for the mentally retarded. May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted? “It is true, as already pointed out, that the mentally retarded as a group are indeed different from others not sharing their misfortune, and in this respect they may be different from others who would occupy other facilities that would be permitted in an R-3 zone without a special permit. But this difference is largely irrelevant unless the Featherston home and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not.

Because in our view the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city’s legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case.” Id. at 447-48 , 105 S.Ct. at 3258 , 87 L.Ed.2d at 325 . In Hooper v. Bernalillo County Assessor, 472 U.S. 612 , 105 S.Ct. 2862 , 86 L.Ed.2d 487 (1985), a qualified Vietnam veteran and his wife who established residency in New Mexico in 1981 ¹⁰¹ applied for a tax exemption in 1983 under a New Mexico statute exempting from the State’s property tax $2000 of the assessed value of property of honorably discharged veterans who had served on active duty during the Vietnam War for at least 90 continuous days. The exemption was limited to those veterans who resided in New Mexico before May 8,1976. The exemption was denied.

The couple challenged the statute as denying them equal protection of the law. In applying the rational basis standard to strike down the statute, the Court noted that “if the statutory scheme cannot pass even the minimum rationality test, our inquiry ends.” Id. at 618 , 105 S.Ct. at 2866, 86 L.Ed.2d at 493 . The Court went on to hold: “Even assuming that the State may legitimately grant benefits on the basis of a coincidence between military service and past residence, the New Mexico statute’s distinction between resident veterans is not rationally related to the State’s asserted legislative goal. The statute is not written to require any connection between the veteran’s prior residence and military service.

Indeed, the veteran who resided in New Mexico as an infant long ago would immediately qualify for the exemption upon settling in the State at any time in the future regardless of where he resided before, during, or after military service.” Id. at 621-22 , 105 S.Ct. at 2868, 86 L.Ed.2d at 493 . In Williams v. Vermont, 472 U.S. 14 , 105 S.Ct. 2465 , 86 L.Ed.2d 11 (1985), the Court invalidated an automobile registration tax scheme which exempted cars purchased in Vermont where a sales tax had been paid. The scheme also provided a credit against the registration tax for the value of a sales tax paid on a vehicle purchased in another state by persons residing in Vermont at the time of purchase where the foreign state reciprocated in like fashion for Vermont residents. The statute was challenged by persons who bought and registered cars outside of Vermont prior to becoming Vermont residents.

In discussing the applicable standard of review, the Court stated that “[a]n exemption such as that challenged here ‘will be sustained if the legislature could have reasonably concluded that the challenged classification would ¹⁰² promote a legitimate state purpose.’ ” Id. at 22-3 , 105 S.Ct. at 2471, 86 L.Ed.2d at 19 (citation omitted). In voiding the statute, the Court concluded: “In the present case, residence at the time of purchase is a wholly arbitrary basis on which to distinguish among present Vermont registrants—at least among those who used their cars elsewhere before coming to Vermont. Having registered a car in Vermont they are similarly situated for all relevant purposes. Each is a Vermont resident, using a car in Vermont, with an equal obligation to pay for the maintenance and improvement of Vermont’s roads.

The purposes of the statute would be identically served, and with an identical burden, by taxing each. The distinction between them bears no relation to the statutory purpose.” Id. at 23-24, 105 S.Ct. at 2472, 86 L.Ed.2d at 19-20. In Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 , 105 S.Ct. 1676 , 84 L.Ed.2d 751 (1985), the Court struck down an Alabama statute that imposed a lower gross premiums tax on domestic insurance companies than charged to out-of-state insurance companies with a provision allowing the foreign firms to lower, but not