Leet v. Montgomery County

Finan, J., delivered the opinion of the Court. In this appeal we are presented with the question of whether Montgomery County (appellee) may legally require a property owner (appellant) to remove at his own expense, pursuant to the terms of local ordinances, abandoned automobiles dumped on his property by trespassers, against his will and without his knowledge. Harry M. Leet (Leet), the appellant, owns two dairy farms in Montgomery County, one containing 162 acres, known as “Conclusion,” located on Old Baltimore Road and the other known as “Rich Meadow,” consisting of 244 acres, located on Hoyles Mill Road. Both tracts are zoned RR (Rural Residential).

In his statement of facts Leet admits that there were approximately 30 abandoned automobiles, all stripped of any useful equipment or material, together with a substantial amount of broken glass and rubbish dumped on the farms in question. On the “Conclusion” tract the accumulation extended from ⁶⁰⁸ the public right of way onto the property for a distance of approximately 50 feet and on the “Rich Meadow” tract for a distance of about 200 feet. The County filed two bills in equity, one pertaining to each tract, as authorized by Section 87-21 of the Montgomery County Code (1965 ed.) 1 2seeking a mandatory injunction, requiring the property owner to abate the condition, alleging that the continued presence of the abandoned automobiles and other trash on the premises violated: (1) Section 111-7 of the County Zoning Ordinance, Montgomery County Code, Vol. 3, Chapter 111, p. 1993 et seq. (1965 ed.) as such a use is not permitted in an RR zone; and (2) Sections 87-4, 87-5 and 87-16(a) of Chapter 87 of the Montgomery County Code.

The aforementioned sections all pertain to the unlawful accumulation of rubbish on private property. In this context abandoned motor vehicles are included as rubbish. The two equity suits were consolidated and after an evidentiary hearing and argument by counsel the chancellor issued a mandatory injunction in each case requiring the property owner to remove “all accumulations of rubbish, trash and refuse,” which included the abandoned automobiles. It is from these orders that the property owner appeals.

Among the findings of fact made by the court below were: that approximately five years ago the property owner notified the County Police Department that trespassers were depositing refuse on his land to which the police replied that they could do nothing unless he supplied them with the motor vehicle license numbers of the trespassers; that in the past the property owner had removed refuse from his property at his own expense; that the present accumulation of refuse on the property in question had continued for over a year; that the County gave proper notice to the property owner to remove the abandoned vehicles, trash and refuse, but that he had refused; that the property owner unlawfully ⁶⁰⁹ permitted the accumulation to remain and that the presence of the trash and refuse constitutes a nuisance. In considering the finding of facts of the chancellor we would add that the record shows that the property owner had on each of two occasions spent over $100 to have abandoned vehicles, which had been dumped on his property by trespassers, removed. There was also evidence that he had made an effort to ascertain the identity of the guilty parties but to no avail. In connection with the latter it should be noted that both farms cover substantial acreage making it extremely difficult to exercise surveillance, particularly during hours of darkness.

The record further reveals that Leet had made significant efforts to find people dealing in junk to tow the vehicles away for salvage, or for a reasonable charge, but without success. He also inquired of local service station operators who advertised a towing service about towing them away but no one knew as to where they could be taken for final disposition. In a letter to the County Attorney, Leet recited the fact that the County at one time notified him that it was going to remove the vehicles and charge him for the expense incurred; however, there was no follow-up on this by the County. This letter to the County Attorney, which was filed as an exhibit, further complained that he had paid the County $14.00 to remove two abandoned vehicles dumped by trespassers on a third farm which he owned and that the County had taken no action to accomplish this.

Before discussing the contention of the parties on the merits of the case, it should be noted that a reading of all the various ordinances involved, presents nothing that directly spells out the responsibility of a property owner for rubbish deposited on his property, without his knowledge and against his will by trespassers, unless we view such a situation as coming within the purview of the language of Section 111-7 of the Zoning Ordinance which establishes permissible “uses,” of which the accumulation of rubbish or junk in an RR District is not one. However, it takes a rather strained construction of this ⁶¹⁰ section to apply it to the property owner in this case, as he was not responsible for bringing the dumped vehicles onto his property. It would appear that the use that was thus being made of the property was by trespassers and not by the property owner or one privy with him. Again, the various sections of Chapter 87 of the County Code which deal with “Garbage and Refuse” appear to apply to volitional acts of, or acquiescence by, the property owner.

In Section 87-4 the operative words are, “establish, operate and maintain” a place of disposal for rubbish; in Section 87-5 the words are, “dispose, dump, deposit or leave” rubbish; and Section 87-16 (a) makes it unlawful for the property owner to “store” any refuse, etc. In any event it is difficult to perceive a fair application of these sections to the property owner in the present case. Indeed, the County espouses the philosophy that the onus of maintaining private property free and clear of all rubbish, as provided by the various ordinances, is one of the burdens incident to the ownership of private property in present day society, regardless as to how the unwanted accumulation may have gotten there. We may have agreed with this conclusion were we only concerned here with the usual random accumulation of trash and litter thoughtlessly thrown away by passers-by. However, under the facts of this case, we are dealing with a problem which differs to such a degree from that which we have just described, that it presents a different face.

Here the weight and bulk of the abandoned objects, namely motor vehicles, renders their removal so costly, and their ultimate disposition so difficult, that it is beyond the reasonable capacity of the property owner to rectify the situation without experiencing a financial hardship. We would further add that this is a problem indigenous to a society on wheels. 2 ⁶¹¹ Understandably, the property owner contends that placing on him the expense of the removing of the abandoned vehicles over which abandonment he had no control, is requiring him, as an individual citizen, to contribute to the public good in a manner which constitutes the taking of his property without just compensation or due process of law in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, Article 23 of the Declaration of Rights and Article III, § 40 of the Constitution of Maryland. Although the action taken by the County and the ensuing mandatory injunction issued by the lower court were directed toward the accumulation of rubbish in general, the facts of this case make it manifest that the controversy centers around the disposal of abandoned motor vehicles. There is every reason to believe that had the issue been one solely of rubbish, in the nature of broken glass, old mattresses and things of that kind, found on the property, that Leet would have disposed of these without protest.

The County meticulously traces its authority to enact the various ordinances involved, citing that it is a “Home Rule,” “Charter” government county, established pursuant to Article 11 A of the Constitution of Maryland, enjoying all of the express powers granted to it by Article 11 A, § 3 of the Constitution of Maryland and Article 25 A, § 5 of the Maryland Code (1966 Repl. Yol.). It also bottoms its authority on Chapter 780 of the Acts of 1959 (the Regional District Act) which is the enabling zoning legislation applicable to Montgomery County. The County has well documented its argument in this respect and we do not question its general conclusions, but as a matter of relevance we do not see how the authority to pass the various ordinances, heretofore referred to, is challenged in this appeal.

We are, however, of the opinion that the effort to apply these ordinances to the facts of the instant case does violence to the constitutional rights of the property owner. We have no question but that the County would have ⁶¹² properly been entitled to injunctive relief had the property owner used the property for the accumulation of rubbish or had suffered, permitted or consented to the accumulating and dumping of rubbish on his property. It must not be supposed that had the accumulation of rubbish in this case, although dumped upon the property by trespassers, constituted an immediate threat to the health or safety of the surrounding residents, the County would not have been entitled to