Miller v. Forty West Builders, Inc.

BISHOP, Judge. Carol Miller and the members of the Rollingwood Improvement Association appeal the decision of the Circuit Court for Baltimore County which affirmed, on appeal, approval by the Board of Appeals (the Board) of a plan of development for the Rollingbrook subdivision. Md.Ann. Code art. 25A § 5(U) (1981); Charter of Baltimore County § 604 (Baltimore County Code 1978); 1 see also Charter ³²⁴ Section 602(a) (1983 Cum.Supp.). (Powers of board; appeals from orders relating to zoning).

FACTS Appellants reside in the community adjacent to the unimproved tract of land upon which appellee, Forty West Builders, Inc., proposes a development consisting of seven individual single-family homes, and twelve row homes. Appellee intends to build the individual homes directly next to appellants existing community of individual, single-family homes, and between that existing community and the proposed row homes. Road access to the new development would be through the existing community. Although Frederick Road, a state maintained roadway, borders on a portion of the proposed subdivision, access from the proposed subdivision to Frederick Road is not possible because of the adverse position of the State Highway Administration.

Sewage would be handled by the nearby pumping station which is presently operating over its capacity. Appellee’s proposed subdivision plan was reviewed under the Development Regulations of Baltimore County, Baltimore County Code (B.C.C.) § 22-37 et seq. (1983 Cum. Supp.), which require, subject to certain exceptions not at issue here, an “approved plan ... for all development and a plat ... for any subdivision.” B.C.C. § 22-53 (1983 Cum.

Supp.). Development includes “subdivision” which is defined as: The division of property into two (2) or more lots, or the combination of lots, parcels, tracts, or other units of property previously divided, for the purpose, whether immediate or future, of sale, rental or building development. B.C.C. § 22-39 (1983 Cum.Supp.). On August 5, 1982, at a public meeting attended by representatives of appellants, appellee and several govern ³²⁵ mental agencies, the County Review Group (C.R.G.) 2 approved appellee’s plan.

B.C.C. § 22-58 (1983 Cum.Supp.) Pursuant to B.C.C. § 22-61 (1983 Cum.Supp.), appellants challenged this decision before the Board, which affirmed the decision. Appellants then appealed the Board’s decision to the circuit court pursuant to § 604 of the Charter of Baltimore County (1978). The circuit court affirmed the Board’s decision. Appellants now contend that: I. The Board was arbitrary and capricious in approving the plan which fails to provide for the required buffer strip between the proposed development and the existing adjacent community; II.

The Board erred by not remanding the plan to the Planning Board as required by B.C.C. § 22-59 (1983 Cum. Supp.) because a dispute exists regarding the location of roads, and also because the plan involves a cluster subdivision; and III. The C.R.G. was arbitrary and capricious in approving the plan because the proposed development poses health, safety, and welfare dangers to the existing community. Standard of Review This case arises from the C.R.G.’s approval of appellee’s subdivision plan and is, therefore, subject to the standard of review outlined in B.C.C. § 22-61(c) (1983 Cum.

Supp.) regarding appeals to the Board: The final action on a plan shall be presumed correct and the person aggrieved shall have the burden of persuasion to show that such action was arbitrary or capricious, procured by fraud, or otherwise illegal. ³²⁶ See Charter of Baltimore County § 604 (1978) (on appeal, the circuit court “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.”). This is in accord with the standard of review established by case law regarding zoning actions. See e.g. Klein v. Colonial Pipeline Co., 55 Md.App. 324, 337 , 462 A.2d 546 , cert. denied, 297 Md. 418 (1983).

Appellants’ contention, that this standard conflicts with the Baltimore County Charter Section 603 which requires de novo hearings before the Board, ignores the plain language of the section that “[a]ll hearings held by the board shall be heard de novo unless otherwise provided by legislative act of the County Council____” (emphasis added). There is also no merit to appellants’ contention that there is no reasonable basis for applying the standard because the C.R.G. is not required to maintain a record. B.C.C. § 22-58 (1983 Cum.Supp.) requires the C.R.G. to “summarize the action taken, in writing, as a permanent part of the plan file.... ” The record of the C.R.G.’s approval of appellee’s plan summarizing what transpired at the meeting, setting out the issues raised, the resolution of conflicts and the action taken, provides sufficient material against which the standard may be applied. Discussion Because the tract of land at issue is a part of a Density Residential zone which lies within 300 feet of a dwelling, other than an apartment building, it is subject to certain use restrictions as a “residential transition area” Baltimore County Zoning Regulations (B.C.Z.R.) § lBOl.l-B.l.a.l(a) (1981, 1982 Rev.).

Among the restrictions in effect when the C.R.G. considered appellee’s plan was B.C.Z.R. § 1B01.-1-B.l.b.3(b) (1981): A buffer area shall be provided between any new use and any abutting residential lot line that is in a residential transition area and that exists at the time the proposed ³²⁷ use is to be established. The buffer area may not be less than 50 feet in width if the front or side of any building faces the lot line, or 75 feet in width if the rear of any building faces the lot line or the new use is a parking lot. 3 In addition, B.C.Z.R. § 1B01-B.l.b.5 (1981) provided that (a) The purpose of the buffer area requirement is to provide a method of screening a proposed residential transition use from any existing dwelling or lot in a residential transition area. In order to accomplish that purpose, the buffer area shall consist of vegetation or woodland, at least 70% of which shall be evergreen trees of a minimum height of 6 feet, and 10% of which shall be shrubs of a minimum spread of 15 inches. The buffer area shall contain one tree or shrub for each 3 feet of the boundary of the buffer area.

(b) No other uses are permitted within the buffer area, except walkways, site landscaping, and other similar site amenities. (c) If a portion of the requirement can be met with existing vegetation or woodland, the existing vegetation or woodland may be supplemented in a manner acceptable to the Planning Board, the Zoning Commissioner, or the Board of Appeals, as the case may be. 4 Finally, B.C.Z.R. § lBOl.l-B.l.c (1981) provided that the “buffer area” requirements do not apply to: 1. A proposed dwelling to be placed in a residential transition area containing existing dwellings of the same ³²⁸ type, or, if two or more types of dwellings exist, a proposed dwelling of the same type as the existing dwelling with the fewest number of dwelling units. Such dwellings shall be governed by the applicable laws, zoning regulations and policies otherwise applicable.

As used herein, a “dwelling of the same type” means a dwelling which has the same or a lesser number of dwelling units and party walls as the existing dwelling units. 2. Public utility uses (except public utility service centers and storage yards). Such uses shall be governed by the provisions of sections 411, 502 and such other applicable sections of these regulations. 3. Notwithstanding the provisions of Section 104, the reconstruction of an existing church, community building, or other structure devoted to civic, social, recreational, fraternal, or educational activity which is destroyed by fire or other casualty.

However, such reconstruction may not increase the size of ground floor area of the structure or alter the location or use of the structure. 4. Shoreline fishing and shellfish facilities. Such uses shall be governed by the provisions of Section 500.4 and subparagraphs 1A01.2.C.9, 1A02.2B.10, 1A04.2.B.7, and 1B01.1C.7A of these regulations. 5 Bill No. 109, 1982, which took effect on August 26, 1982, made the first numbered paragraph above, “dwelling of the same type,” subject to B.C.Z.R. § 1B01.1-Bl.b.3.(d) (1981, 1982 Rev.) which was added by the same bill and which provided, in pertinent part, that the buffer zone requirement, B.C.Z.R. § 1B01.1-B.l.b.3.(b), is not affected by the placement of a dwelling or dwellings of the same type between the new use and the residential lot line or off-site dwelling or lot, if any portion of the tract proposed to be developed includes a proposed use which is dissimilar to the existing dwellings in the resi ³²⁹ dential transition area. In such cases, the buffer area shall be provided between the new use and the dissimilar use.

Twenty-one days before the effective date of Bill 109, 1982, the C.R.G. applied the pre-amended restrictions, as interpreted by Zoning Commissioner Hammond, and approved appellee’s plan which appellants contend did not provide for a “buffer area.” Zoning Commissioner Hammond in a letter to the Director of the Office of Planning and Zoning concluded that the plan satisfied the regulations because the seven individual homes provide the same screening effect of dissimilar uses as the other uses which are expected from the “buffer area” requirement. The restrictions, as amended by Bill No. 109, 1982, were in effect when the Board considered the plan on appeal. The Board concluded, however, that the pre-amended restrictions applied and affirmed the C.R.G.’s determination that appellee’s plan satisfied the “buffer area” requirements of the pre-amended regulations. I. Appellants’ contention regarding the buffer area requirement presents two questions: A. Whether approval of appellee’s plan is subject to the restrictions as amended by Bill No. 109, 1982, which took effect after the C.R.G. approved the plan but before the Board considered it on appeal; and if not, B. Whether the plan satisfied the “similar type of dwelling” exception to the “buffer area” requirements of the pre-amended regulations.

A. Maryland consistently has followed the rule that “an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence----” “[A] change in the law after a deci ³³⁰ sion below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent____ The rule has been applied in zoning cases. Yorkdale v. Powell, 237 Md. 121, 124 , 205 A.2d 269 (1964) (citations omitted). Appellee did not acquire vested or substantive rights by obtaining C.R.G. approval of the subdivision plan. In Yorkdale , the Court stated that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below. 237 Md. at 126 , 205 A.2d 269 .

The Board and the Circuit Court determined, however, that the County Council did not intend Bill No. 109, 1982 to apply in cases like the one sub judice where the plans satisfied the pre-amended regulations and were submitted for approval prior to June 30,1982. Specifically, they relied upon the language of the bill that its restrictions regarding residential transition areas “do not apply to ... [a]ny zoning petition prepared in accordance with ... [the pre-amended provisions] and filed prior to June 30, 1982.” B.C.Z.R. § lB01.l-B.Lc.il (1981, 1982 Rev.). Appellants argue that submitting subdivision plans for approval does not constitute the filing of a “zoning petition,” a term which is not defined by the Code, zoning regulations, or any Maryland case. Rather, the argument continues, zoning and subdivision control are separate and distinct functions, governed by different articles of the Code, Title 22, articles III and IV, respectively. “Zoning petition,” appellants conclude, refers only to petitions for ³³¹ reclassification, special exemption, or variance under the zoning article.

See B.C.C. §§ 22-26, 2-58.1 (1983 Cum. Supp.). The cardinal rule of statutory interpretation is to determine the intent of the legislature and to do this a court looks first to the language of the statute. Ryder Truck Lines v. Kennedy, 296 Md. 528, 535 [ 463 A.2d 850 ] (1983).

If that language is ambiguous or unclear, a court must use other tools to discover the legislative intent or purpose. 296 Md. at 536 [ 463 A.2d 850 ]. Public Service Commission v. Baltimore Gas & Electric, 60 Md.App. 495, 508 , 483 A.2d 796 (1984). The phrase “zoning petition” is not clear and unambiguous. The County Council did not define those words and as the arguments in this case demonstrate, it could be interpreted very narrowly, as appellants contend, or more broadly, as appellee responds.

We have found the phrase used only one other time in the zoning regulations, in B.C.Z.R. § 500.7, which indicates that the term should be interpreted more broadly than appellants suggest: With respect to any zoning petition other than a petition for a special exception, variance, or reclassification, the Zoning Commissioner shall schedule a public hearing for a date not less than 30 days after the petition is accepted for filing. The word petition is used several times in the regulations with reference to various applications thereunder. See e.g. B.C.Z.R. §§ 500.2, 500.7 (1981).

Accordingly, we will examine this language within the context of the zoning regulations taken as a whole, and the purposes of those provisions. “In its ordinary sense a petition is a written request to a board for action on some matter therein laid before it.” McKillop v. County Bd. of Ed. of Sanborn County, 78 ³³² S.D. 587, 105 N.W.2d 671, 675 (1960). 6 See generally Black’s Law Dictionary (5th ed. 1979) at p. 1031 which defines petition as A written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favor, privilege, or license. There is no real dispute that submitting subdivision plans to the C.R.G. for approval pursuant to the Development Regulations for Baltimore County constitutes a petition. The controversy here focuses on the use of the word “zoning” and the distinction between zoning and subdivision control. The Court of Appeals has defined zoning, and in doing so has also recognized the distinction between planning and zoning.

See e.g. Board v. Stephans, 286 Md. 384, 388-90 , 408 A.2d 1017 (1979); Board of County Comm’rs. v. Gaster, 285 Md. 233, 246-47 , 401 A.2d 666 (1979); Wash. Co. Taxpayers Ass’n v. Board, 269 Md. 454, 455-56 , 306 A.2d 539 (1973). In Gaster, the Court stated that some confusion exists relative to the terms planning and zoning, which are not synonymous.

Zoning is concerned with the use of property but planning is broader in its concept. 1 E. Yokley, Zoning Law and Practice § 1-2 (4th ed. 1978) comments: ³³³ Expressing the matter in another way, let us say that zoning is almost exclusively concerned with use regulation, whereas planning is a broader term and indicates the development of a community not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience and welfare as may be properly embraced within the police power. [Id. at 4.] There are three integral parts of adequate land planning, the master plan, zoning, and subdivision regulations. 285 Md. at 246 , 401 A.2d 666 . Although this case arose within the context of approval of a subdivision plan, under the Development Review and Approval Process Division of the Development Regulations of Baltimore County, B.C.C. § 22-53 et seq., Article IV, Division 2 (1983 Cum.Supp.), it also involves zoning. Accordingly, we hold that the term “zoning petition” was intended to be broad enough to include subdivision plans submitted to the C.R.G. for approval. Approval by the C.R.G. will necessarily entail review of and compliance with the applicable zoning regulations.

B.C.C. § 22-55(10)