Laque v. State

Brune, C. J., delivered the opinion of the Court. On August 2nd, 1954, five separate warrants were issued by a trial magistrate of Anne Arundel County for the arrest of the appellant on charges that on each of five different dates (April 13, April 22, May 11, July 2 and July 29, all in 1954) at premises on Belle Grove Road, in that County, he “did unlawfully operate a junk and/or salvage yard in violation of Section IV-C-l(d) of the Zoning Ordinance of Anne Arundel County.” In each case the appellant prayed a jury trial, the case was transferred to the Circuit Court for Anne Arundel County and the appellant was found guilty by the jury in each case. In one case he was sentenced to a fine of $25 and costs and to six months in jail, the jail sentence to be suspended upon payment of the fine and costs, and the appellant was placed on probation. In three of the other cases he was fined $25 and costs, and in the fourth he was fined $100 and costs.

Before the cases went to trial before the jury the appellant filed a motion to dismiss, which was denied, in ²⁴⁷ which he asserted that he was not a proper party defendant, that the “ordinance and/or statute under which he has been charged” violated the Constitutions of the United States and of Maryland and specifically asserted that “it” deprived him of property without due process of law, denied him the equal protection of the laws and operated against him as an ex post facto law. He further asserted that the statute and ordinance are too vague and indefinite to be valid, that the “exercise and application of the ordinance and/or statute” violated his constitutional rights and privileges, that the application of the “ordinance and/or statute” constituted an abuse of the power and discretion vested in the persons enforcing the “ordinance and/or statute” and that the charges were so vague and indefinite as to make it impossible for the accused to be informed of the charges against him and thereby prevented him from properly making a defense thereto. Turning back to the terms of the warrant we note that the defendant is charged with operating “a junk and/or salvage yard in violation of Section IV-C-l(d) of the Zoning Ordinance of Anne Arundel County.” The testimony shows that part of the appellant’s property is zoned “heavy commercial,” part as “agricultural” and a small part as “cottage residential.” The Zoning Ordinance does not permit a junk or salvage yard to be located in any area zoned under any of these classifications unless either (1) such a “lawful non-conforming use” existed on the effective date of the Ordinance, July 1, 1952 (See Section I-D), or (2) in the case of property zoned as “heavy commercial” and meeting certain other requirements, a “special exception” allowing such use is granted by the Board of Appeals. (See Section IV-CKd).

Section IV-C-l(d) reads as follows: “C — Powers of the Board of Appeals are as follows: 1. The Board shall have the power to hear and decide, in accordance with the provisions of this Ordinance, requests for special ex ²⁴⁸ ceptions or for interpretation of the zoning map or for decisions upon other special questions upon which the Board is authorized to pass. The special exceptions are as follows: (d) Junk or Salvage yards. The following minimum standards shall be met by each application for any special exceptions above listed: # * ❖ (d) For Junk or Salvage Yards such a use may be authorized: 1.

Only in a heavy commercial or industrial zone. 2. Where the yard itself be invisible from and at least three hundred (300) feet, distant from any state or county highway. 3. Where the general welfare, in the judgment of the Board of Appeals, will not be injured by proximity to populated areas or other circumstances.” The prohibitions against junk yards in areas zoned as “agricultural,” “cottage type residential,” and “heavy commercial” are contained in Section II A 1 (b) (1), Section II B 2 a (2) (1) and Section II E 1 (b) (1),. respectively. The provisions of Section IV-C deal with the powers of the Board of Appeals and sub-division 1 (d) thereof deals only with limitations on the power of the Board to grant “special exceptions” for the use of property as a junk yard or salvage yard.

The charge in the warrants has been treated by the appellant, and also by the State, as sufficient to set forth an offense. The appellant’s brief states that “In this case, Appellant was being prosecuted criminally under the penalty section of the ordinance which makes it a misdemeanor to operate a salvage or junk yard without approval by the Zoning Board.” Grammatically, the charge in the warrants is open to serious criticism since the appellant obviously could not, ²⁴⁹ by operating a junk yard, violate provisions of the ordinance defining or limiting the powers of the Board to grant a permit or “special exception” to operate one. However, the elliptical form in which the charge is stated does not appear to have misled the appellant, as is indicated by his construction of the warrants, as stated in his brief; and he has not raised either in the trial court or in this Court any objections to the warrant on the grammatical grounds which we have noted. Had they been raised in the trial court it appears that the charges could have been corrected by amendment of the warrants at any time before final judgment under Code (1951), Article 52, Section 20.

The case was tried upon the meaning of the charges as stated in the appellant’s brief; and so construed, they do state an offense under the Zoning Ordinance. This construction, we think, is sustainable, though the matter has presented considerable difficulty, and this form of expressing a charge is one which is certainly not to be recommended. * There are two different bases upon which the sanction of the Board of Appeals might be obtained for the operation of a junk yard or salvage yard. One is that of a lawful non-conforming use; the other is a “special exception.” Section I-D of the Zoning Ordinance provides that “A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue; * * That date was July 1, 1952. The appellant argues that this is the controlling date, but his argument overlooks the definition of a “lawful non-conforming use.” This is set forth in Section I-B ( an) as “Any lawful use existing prior to the initial passage of the zoning ordinance and contrary to the zoning restrictions of said ordinance.” The date of “the initial passage of the zoning ordinance” was apparently December 2nd, 1947.

Under the amended ordinance adopted July 1, 1952, it was necessary for the appellant to obtain a “certificate ²⁵⁰ of occupancy” for the use of the property as a junk or storage yard in order to continue such use. See Section I-C 2(b). To obtain such a certificate, proof would be required of the non-conforming use on December 2nd, 1947, and of its non-abandonment for a period of as much as a year thereafter. The appellant sought such a certificate and the Board of Appeals held a hearing on his application, as a result of which it found that the alleged non-conforming use was not established and accordingly on December 4th, 1953, denied the application.

The applicant then appealed to the Circuit Court for Anne Arundel County, and the action of the Board of Appeals was affirmed .by the Court on March 11th, 1954. The other possible form of approval which might be obtained for the operation of a junk or salvage yard is a “special exception.” Such an exception is not permissible under the terms of the Zoning Ordinance unless the property in question is zoned as “heavy commercial” or “industrial” and then is permissible only if the yard is “invisible from and at least three hundred (300) feet distant from any state or county highway.” The final clause of Section IV-C-1 (d), paragraph (3), requires as an additional condition for the issuance of a special exception permit that, in the judgment of the Board of Appeals, the general welfare “will not be injured by proximity to populated areas or other circumstances.” It is this last clause against which the appellant directs most of his attacks based upon constitutional grounds. The record of the Board of Appeals hearing which was introduced in evidence shows that about a year before Mr. Laque’s unsuccessful effort to establish a non-conforming use he had made an unsuccessful effort to obtain from the Board of Appeals a “special exception” to use his property for the salvage of automobile parts. There is nothing to indicate that he took any appeal from this adverse ruling of the Board.

It was thus established that the appellant had neither a certificate of occupancy showing a non-conforming use nor a “special exception” permit to operate a junk or ²⁵¹ salvage yard. Hence his operations, if they amounted to the maintenance or operation of such a yard, were in violation of the ordinance and neither of the possible exceptions was available to him. He testified