Levinson v. Montgomery County

BISHOP, Judge. The Montgomery County Department of Environmental Protection (the “DEP”) issued a notice of zoning violation (the “Notice”) to Appellant, Lawrence M. Levinson, M.D. (“Dr. Levinson”). Dr. Levinson filed a notice of appeal with Appellee, the Montgomery County Board of Appeals (the “Board”).

The Board conducted an evidentiary hearing and affirmed the Notice. Dr. Levinson then filed an appeal to ³¹¹ the Circuit Court for Montgomery County. Appellee, Montgomery County (the “County”), filed a motion to intervene. The circuit court granted the County’s motion, and affirmed the decision of the Board.

Dr. Levinson filed a timely notice of appeal to this Court. Issues Appellant raises the following issues, which we restate as follows: I. Whether a zoning ordinance that prohibits a home health practitioner from selling prescribed remedial devices that are available from a commercial source, without establishing specific criteria and standards for granting special exceptions or allowing sales that are compatible with the general welfare of the community as permitted uses, or both, is illegal, arbitrary, and capricious?

II

Whether a zoning ordinance that prohibits a home health practitioner from selling prescribed remedial devices that are available from a commercial source, without establishing specific criteria and standards for granting special exceptions or allowing sales that are compatible with the general welfare of the community as permitted uses, or both, deprives physicians of due process of law and equal protection of the laws, as guaranteed by the United States Constitution and the Maryland Declaration of Rights?

III

Whether Dr. Levinson acquired a vested right to sell commercially available eyeglasses?

IV

Whether the DEP is prevented, under the doctrine of equitable estoppel, from enforcing the Notice? Facts The facts of this case are essentially undisputed. Dr. Levinson, an ophthalmologist, has maintained a private practice in Potomac, Maryland since 1975. Around 1981, Dr. Levinson added to his office an optical dispensary from ³¹² which eyeglasses were sold.

The office was located in the Sovran Bank Building in Potomac Village. Sometime in 1990, however, Dr. Levinson moved his ophthalmology practice, including the optical dispensary, to the basement of his single-family residence in Potomac. Although the property is zoned “RE-2” (residential, one-family), the Montgomery County Code, § 59-A-6.1 (1984, as amended), permits a home health practitioner to maintain a professional office within his or her home, subject to certain requirements and restrictions. Before moving his practice, Dr. Levinson submitted two building permit applications to the DEP.

In the first application, dated November 22, 1989, he requested a permit to alter the existing structure for use as a basement professional office. In the second application, dated January 19, 1990, he requested a permit to construct a professional office. The applications were accompanied by floor plans, which indicated an area for an “Optical Shop.” The DEP approved the applications on January 25 and 30, 1990, respectively. On January 29, 1990, Dr. Levinson submitted an application for a “Use and Occupancy Certificate,” on which he listed as the proposed use: “PROFESSIONAL OPHTHALMOLOGY OFFICE DISPENSING GLASSES + CONTACT LENSES” (emphasis in original).

The DEP approved the application and, on March 13, 1990, issued the certificate. The certificate specified the use as “Professional Office for resident of dwelling — Ophthalmology.” In August 1990, the West Montgomery County Citizens Association (the “Association”) sent a letter of complaint to the DEP. The Association alleged that Dr. Levinson was selling, in his home, commercially available eyeglasses in violation of a County zoning ordinance. Section 59-A-6.1(c)(6) of the Montgomery County Code provides: “The sale of goods on the premises is prohibited, except for medication prescribed by the health practitioner or a prescribed remedial device that cannot be obtained from a commercial source ” (emphasis added).

In response to the complaint, Mark Moran (“Moran”), a County zoning inspector, visited Dr. Levinson’s home, and confirmed the Associa ³¹³ tion’s allegation. In a subsequent conversation with Moran, Dr. Levinson admitted that the eyeglasses he sold were available at commercial establishments. At the hearing, Dr. Levinson testified that, to the best of his knowledge, all eyeglasses are commercially available. Dr. Levinson gave his patients the option of purchasing glasses at his shop, or elsewhere.

He neither advertised that he sold eyeglasses, nor filled other doctors’ prescriptions. The County Council adopted Section 59-A-6.1 on January 16, 1990 as part of a series of text amendments aimed at “minimizing the adverse impacts of non-residential uses in one-family residential zones and removing certain distinctions between types of occupations which no longer appeared to be valid.” On February 5, 1990, the effective date of the text amendments, § 59-A-6.1(c)(6) replaced a similar provision contained in § 59-A-2.1, which provided in pertinent part: Office, professional, residential: Rooms and/or buildings used for office purposes by not more than one (1) member of any recognized profession ...; provided, that such use shall be incidental to and subordinate to residential use and not one involving a commercial enterprise. Such use shall preclude manufacturing or sale of any hardware product, except those remedial devices which are prescribed as a direct result of the specific service rendered on the premises and which devices cannot be obtained by the client from any commercial establishment. (Emphasis added).

In October 1990, the DEP requested that the County Attorney provide an interpretation of § 59-A-6.1(c)(6). Moran testified that because the home occupation provisions of the zoning code were changed, the DEP wanted to confirm that, under the new text amendments, the sale of commercially available eyeglasses was prohibited. After receiving a memorandum from the County Attorney’s office, which concluded that the sale of commercially available prescribed remedial devices by home health practitioners ³¹⁴ was prohibited by the zoning ordinance, Moran issued the Notice directing Dr. Levinson, inter alia, to “[c]ease sale of prescribed remedial devices on the premises that may be obtained from a commercial source.” Dr. Levinson filed a notice of appeal to the Board. After an evidentiary hearing on August 14 and September 11, 1991, the Board affirmed the Notice and found that there was a “facial violation of an unambiguous ordinance.” The Board determined that the doctrines of vested rights and equitable estoppel were inapplicable, but declined to pass on the constitutionality of the ordinance.

Dr. Levinson filed an appeal to the Circuit Court for Montgomery County. After hearing the arguments of counsel, the court affirmed the decision of the Board. The Court feels that although this is perhaps a close case, it is fair for the County to undertake to exclude commercial enterprise from a residential zone in general, and specifically when it does allow home offices, which really are of a commercial nature in a residential area. It can also restrict the extent of that practice, and whether it is the number of people that can visit, or the number of parking spaces or signs, or the kinds of products that can be sold from the premises.

Those are all reasonably related to the health and welfare that the Council is mandated to try and promote. So, despite the interest, and there are obviously some issues that are going to be debated further on by perhaps other kinds of practitioners about just what the scope of this ordinance is, but for purposes of this specific case, I don’t find that [Dr. Levinson’s] positions are well taken. Also, the court found, at least implicitly, that the doctrines of vested rights and equitable estoppel did not prevent the DEP from enforcing the Notice against Dr. Levinson. Additional facts will be included, as necessary.

Standard of Review Article 25A, § 5(U) of the Annotated Code of Maryland (1990) provides in pertinent part: ³¹⁵ Any person aggrieved by the decision of the board [of appeals] and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. (Emphasis added). Generally, the determination of an administrative agency, such as the Board in the case sub judice, is entitled to great deference. Nevertheless, “[t]he Board’s decision may be set aside as not in accordance with law if it is arbitrary, illegal or capricious.” Art Wood Enters, v. Wiseburg Community Assoc., Inc., 88 Md.App. 723, 727 , 596 A.2d 712 (1991), cert, denied, 325 Md. 397 , 601 A.2d 130 (1992).

A decision of the Board is arbitrary, illegal, or capricious when it is not “supported by substantial evidence on the record taken as a whole.” Mortimer v. Howard Research & Dev. Corp., 83 Md.App. 432, 441 , 575 A.2d 750 , cert, denied, 321 Md. 164 , 582 A.2d 499 (1990). Furthermore, “[w]here ... the [Board]’s decision is based on an erroneous conclusion of law, ... [t]he reviewing court ... may substitute its judgment for that of the [Board]....” Mayor of Ocean City v. Purnell-Jarvis, Ltd., 86 Md.App. 390, 402 , 586 A.2d 816 (1991). “[T]he role of this court is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review.” Mortimer, 83 Md.App. at 442 , 575 A.2d 750 . We shall also consider whether the circuit court’s conclusion of law regarding the constitutionality of § 59-A-6.1(c)(6) was correct, because that question was considered there for the first time.

Discussion I & II Montgomery County “enjoys no inherent power to zone or rezone, and may exercise zoning power only to the ³¹⁶ extent and in the manner directed by the State Legislature.” West Montgomery County Citizens Assoc. v. Maryland-Nat’l Capital Park & Planning Comm’n, 309 Md. 183, 186 , 522 A.2d 1328 (1987). The Regional District Act authorizes the County Council, sitting as district council, to “adopt and amend the text of the zoning ordinance ... [in order] to regulate ... the location and uses of buildings and structures and units therein for trade, industry, residence, recreation, agriculture, public activities, and other purposes ____” Md.Ann.Code art. 28, § 8-101(b)(l) (1990). Section 8-101(b)(l) requires, at least implicitly, that the County Council carry out its delegated zoning powers for the “protection and promotion of the health, safety, morals, comfort, and welfare of the inhabitants of the [County].” See id. § 7-110. In deference to this legislative mandate, the County Council declared that: The zoning regulations set out in this chapter for that portion of the Maryland-Washington Regional District in the county are hereby adopted for the purpose of protecting and promoting the health, safety, morals, comfort and welfare of the present and future inhabitants of the district____ Montgomery County Code, § 59-A-l.l (1984, as amended).

Dr. Levinson first contends that the prohibition of the sale of commercially available prescribed remedial devices under § 59-A-6.1(c)(6) does not bear a substantial relation to the protection and promotion of the health, safety, morals, and general welfare of the County’s inhabitants. He argues that there is no reason for the County to assume that the sale of eyeglasses will have an adverse impact on the community, and therefore, the County’s decision to ban the sale, in advance, was arbitrary, discriminatory, and not rationally related to a lawful objective. Dr. Levinson points to the fact that § 59-A-6.1(c)(3) already limits the vehicle traffic to and from his office; thus, selling eyeglasses to existing patients would not increase traffic, parking, or other problems. Dr. Levinson also argues that the County could provide for special exceptions, thereby allowing the ³¹⁷ Board to decide, on a case-by-case basis, whether such prohibition is necessary.

Further, Dr. Levinson compares § 59-A-6.1(c)(6) to § 59-A-6.1(b)(4), a similar provision that applies to all home occupations other than the home health practitioner. Section 59-A-6.1(b)(4) provides in pertinent part: The sale of goods on the premises is prohibited, except for: (A) The products of dressmaking, hand-weaving, block-printing, the making of jewelry, pottery or musical instruments by hand, or similar arts or handicrafts performed by a resident of the dwelling____ He argues that there are no facts or valid reasons to justify the distinctions made by the Council between selling jewelry and selling eyeglasses, or between seeing a patient and selling prescribed eyeglasses to that patient. Dr. Levinson further contends that § 59-A-6.1(c)(6) denies him due process of law. He suggests that the ordinance creates an “irrebuttable presumption” by unconditionally and permanently banning all sales of remedial devices that are available from a commercial source, without giving him procedural due process, i.e., an opportunity to obtain a special exception, or to present facts to establish that the sale of eyeglasses is consistent with the legislative purpose.

He argues that the ordinance has no standards or criteria for granting a special exception or allowing the sale as an incidental or related use. He again points to the fact that § 59-A-6.1(c)(3) limits the amount of vehicle traffic to and from his office, yet he is nevertheless prohibited from selling commercially available prescribed remedial devices, and asserts that, without a meaningful opportunity to show that there is no impact, and without standards to guide the DEP in enforcing the regulation, an unconstitutional deprivation of a property right results. Dr. Levinson also argues that he has been denied equal protection of the laws because he is prohibited from selling eyeglasses while those in other home occupations can sell jewelry and handbags. He contends that the County offers ³¹⁸ no justification for its distinctions, and therefore, the County has failed to provide the rational basis needed to justify unequal treatment.

Although Dr. Levinson attacks both the validity and constitutionality of § 59-A-6.1(c)(6), the former is essentially a component of the latter. Put another way, the validity of the ordinance as a proper exercise of the County’s delegated police power hinges on whether it violates notions of substantive or procedural due process, or equal protection of the laws, under either Article 24 of the Maryland Declaration of Rights or the Fourteenth Amendment to the United States Constitution. Because many of Dr. Levinson’s contentions are interrelated, or based on the same or similar standard of review, or both, we shall address them together. First, we shall consider whether § 59-A-6.1(c)(6) offends notions of substantive due process under either Article 24 or the Fourteenth Amendment.

Under the latter, the validity of a zoning ordinance that does not involve a fundamental right or suspect classification generally is said to be determined by the so-called "minimum rationality” test. Under this test, the objective of a given piece of legislation is usually conceded to be valid, and the focus of inquiry is instead on whether the means adopted are reasonably calculated to achieve that objective — a criterion which is satisfied by any conceivable, rational basis in fact or logic linking regulation with its intended objective or purpose. 1 Arden H. and Daren A. Rathkopf, The Law of Zoning and Planning § 3.04[4] (1992) (footnotes omitted). Many state courts, however, have “indicated a much greater willingness than their federal counterparts to find that as a matter of due process a zoning restriction is arbitrary and unreasonable.” Id. § 3.04[5]. Accordingly, [sjtate courts, either explicitly or implicitly, tend to hold that due process requires some "real and substantial relationship” to a legitimate public purpose for regulation to be valid.

While in theory this due process standard is ³¹⁹ similar to the “minimum rationality” test, in its actual application state courts may give less deference to legislative judgment and hold invalid zoning restrictions only tangentially related to the public welfare or found to be unduly oppressive, fundamentally unfair, or overinclusive or underinclusive in their impact. Id. In Goldman v. Crowther, 147 Md. 282, 293 , 128 A. 50 (1925), an early case in which the Court of Appeals undertook to review the validity of a Baltimore City zoning ordinance, the Court recognized that Maryland “courts have uniformly held that the police power is not unlimited, but that wherever it is invoked in aid of any purpose or legislation, such purpose or legislation must bear some definite and tangible relation to the health, comfort, morals, welfare, or safety of the public ...” (emphasis added). The Court also noted that “any exercise of the [police] power which interferes with some right protected by the letter of the Constitution must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Id. at 295 , 128 A. 50 (emphasis added).

In Mayor of Pocomoke City v. Standard Oil Co., 162 Md. 368, 376-77 , 159 A. 902 (1932), the Court of Appeals, in sustaining an ordinance that prohibited any filling station within a specified congested area, said that where a subordinate agency of the state, such as a municipal corporation, acts directly in such exercise of the police power, “the only limitation upon its right to exercise the power is that it must act impartially, that any interference by it with the unrestricted use of private property must be reasonably necessary to the public welfare, and consistent with the prohibitions of the Constitution” (emphasis added). The Court then recited several “settled” principles applicable to consideration of the validity of legislative and governmental acts imposing building and use restrictions upon real property ...: (1) That restrictions imposed by the State or some agency of the State upon the use of private property cannot be ³²⁰ justified under the police power unless they are reasonably necessary for the adequate protection of the public welfare, safety, health, comfort, or morals; (2) that whether such restrictions are reasonable in fact is a judicial question; (3) that when imposed by competent legislative authority the burden of proof in any such inquiry is upon him who challenges their validity; and (4), when they are reasonably necessary for the adequate protection of the public welfare, safety, health, morals, or comfort, such restrictions will be regarded as a valid exercise of the police power unless they contravene some express constitutional prohibition. Id. at 379-80 , 159 A. 902 (emphasis added) (citations omitted). Furthermore, in City of Baltimore v. Cohn, 204 Md. 523, 530 , 105 A.2d 482 (1954), the Court explained that the governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of the use of his land is not unlimited, and such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.

Legislative bodies have no authority, under the guise of the police power, to impose unreasonable and unnecessary restrictions on the use of private property in pursuit of useful activities. (Emphasis added); see also Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66 , 254 A.2d 700 (1969) (“The broad test of the validity of a comprehensive rezoning is whether it bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare, and such zoning enjoys a strong presumption of validity and correctness” (emphasis added).). [4_6] Viewing the standards espoused in Goldman, Standard Oil Co., and Cohn together, we conclude that Maryland courts employ, like many other states, a heightened level of scrutiny — something over and above the “minimum rationality” test required under the federal constitution. Although almost any zoning ordinance could be said ³²¹ to be rationally related to a legitimate governmental interest, but see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985), the “substantial relationship” test is not so yielding. Despite the heightened level of review, § 59-A-6.1(c)(6) is presumed to be constitutional.

See Lucky Stores, Inc. v. Board of Appeals, 270 Md. 513, 526 , 312 A.2d 758 (1973). “[T]he burden is upon [Dr. Levinson] to establish clearly that it is unconstitutional.” Id.; see Standard Oil Co., 162 Md. at 380 , 159 A. 902 . We conclude that Dr. Levinson has failed to meet this burden. Section 59-A-6.1(c)(6) is substantially related to the promotion and protection of the community’s health, safety, comfort, morals, and general welfare. It is a reasonable and necessary means to an end — the preservation of the residential nature of a residentially zoned district, and the provision of adequate fire protection.

We explain. “That the right to hold, enjoy and use property is not absolute but subject to the police power of the State is axiomatic____” Goldman, 147 Md. at 302 , 128 A. 50 . It goes without saying that “[a]ll zoning ordinances permit accessory uses in residential districts____” 2 Robert M. Anderson, American Law of Zoning § 13.02 (3d ed. 1986). The County’s zoning ordinance explicitly permits the operation of home occupations in general, and offices for home health practitioners in particular. Nevertheless, “zoning ordinances today that allow [such] accessory uses often impose specific restrictions....” 2 Rathkopf, supra, § 23.-04[2].

The County’s ordinance is no exception. These varied limitations upon home occupations and the conditions under which they may be maintained have a common denominator in their purpose to minimize the impact of home occupations upon their immediate neighbors. They represent a political compromise between the purpose of zoning to remove incompatible commercial use from residential districts, and the social necessity of ³²² permitting some of the traditional home occupations to continue. Anderson, supra, § 13.02.

Zoning ordinances which permit home occupations commonly discourage the operation of a store, or the sale of merchandise. Some prohibit the keeping of a stock in trade. Others outlaw the sale of any commodity. A lesser restriction, which emphasizes the aesthetic aspects of a commercial activity in a residential neighborhood, provides that “no display of products shall be visible from the street and only articles made on the premises may be sold on the premises.” Id. § 13.24 (quoting Charlotte, North Carolina, Zoning Ordinance § 23-32.1(h) (1973)) (footnotes omitted).

In the case sub judice, Dr. Levinson argues that he should be permitted to conduct what is essentially a commercial enterprise. Although any home occupation is necessarily commercial in nature, the County Council has presumably engaged in a careful balancing process in order to determine which accessory uses should be permitted and what restrictions need be imposed. See Schultz v. Pritts, 291 Md. 1, 21 , 432 A.2d 1319 (1981). A fundamental purpose of zoning, justified because of its reasonable relationship to the promotion of the public welfare, health and safety, is the preservation of the character of a neighborhood by excluding new uses and structures prejudicial to the restricted character of the area____ Zoning regulations which preserve neighborhood characteristics stabilize the value of property, promote the permanency of desirable home surroundings and add to the happiness and comfort of citizens. 8 Eugene McQuillin, The Law of Municipal Corporations § 25.24 (3d ed. rev. vol. 1991) (footnotes omitted).

Indeed, in Village of Belle Terre v. Boraas, 416 U.S. 1, 9 , 94 S.Ct. 1536, 1541 , 39 L.Ed.2d 797 (1974), Mr. Justice Douglas noted: ³²³ A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one____ The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clear air make the area a sanctuary for people. Dr. Levinson argues that the restriction contained in § 59-A-6.1(c)(6) is unreasonable and not substantially related to any valid purpose because, in his particular case, the sale of eyeglasses to existing patients would not increase traffic in the area, create parking problems, or bring about other evils that zoning laws are designed to prevent.

Dr. Levinson also contends that the restriction in § 59-A-6.1(c)(3) is sufficient to prevent the residential quality of the neighborhood from deteriorating. Section 59-A-6.1(c)(3) provides: The home health practitioner(s) may be allowed to treat more than one patient or client at a time, provided that this does not result in more than 5 vehicle trips containing not more than 10 patients arriving or departing at the same appointment time. “It is recognized that although a zoning ordinance is not invalid per se, yet when the provisions of such an ordinance come to be applied to particular premises, it may be found to be clearly arbitrary and unreasonable.” Cohn, 204 Md. at 530 , 105 A.2d 482 . Such is not the case here, however. Legislatures are frequently called upon to draw lines when determining which restrictions on accessory uses are necessary to promote the community’s general welfare.

See generally McBriety v. Mayor of Baltimore, 219 Md. 223, 235 , 148 A.2d 408 (1959). This Court will only interfere with this purely legislative function when the line is drawn unreasonably. By allowing home occupations generally, and the