Miller v. Pinto

MURPHY, Chief Judge. The question presented is whether the Kent County Board of Appeals possesses the requisite statutory authority to make an original determination as to whether the existing use of certain property violates the Kent County Zoning Ordinance. I. The parties to this appeal are neighbors whose common property line is also a boundary between zoning districts. Since the mid-1950s, Robert C. Miller has owned and resided at property located in an R-l Single Family Residential ³⁹⁹ zoning district in the first election district of Kent County.

In September 1982, Thomas R. Pinto and Jeanette L. Pinto purchased adjacent property located in a C-l General Commercial zoning district. At all times relevant to this case, the Pintos’ property was leased to TRP, Inc., a corporation owned by the Pintos. In their Agreed Statement of Facts, the parties characterize TRP’s use of the property as “a trucking business.” Before purchasing their property, the Pintos applied to the Kent County Zoning Administrator for approval of the use TRP intended to make of the property. By letter dated August 20, 1982, the Zoning Administrator, after detailing TRP’s proposed use of the property, expressly approved the use as conforming with the applicable provisions of the Zoning Ordinance.

The Pintos placed a notice of the Zoning Administrator’s decision in a single edition of a local weekly newspaper. Miller asserts that, by early 1983, the noise, diesel fumes, and dust generated by TRP’s activities on the property had become objectionable to him and to other of TRP’s neighbors. In April 1983, Miller filed an application for a hearing before the Board of Appeals, seeking review of the Zoning Administrator’s August 1982 letter. The matter was placed on the Board’s docket as Appeal No. 360.

On June 6, 1983, the Board granted Miller leave to amend his application within 30 days to correct a defect the nature of which is not disclosed in the record. Although the record also fails to disclose whether an amended application was ever filed, Appeal No. 360 was not further pursued by Miller and was ultimately dismissed by the Board of Appeals. On March 5, 1984, Miller filed a second application with the Board of Appeals. In this application, which was docketed as Appeal No. 388, Miller requested that the Board make an independent, original determination of the legality of TRP’s use of the property; assess appropriate sanctions against the Pintos and TRP for any violations of the Zoning Ordinance; and review the Zoning Administrator’s decision ⁴⁰⁰ in his August 1982 letter that TRP’s activities conformed with the applicable provisions of the Zoning Ordinance.

The Pintos and TRP filed an objection alleging that the Board of Appeals lacked statutory authority to grant the relief requested by Miller. In an opinion dated May 30, 1984, the Board of Appeals declined to review the Zoning Administrator’s August 1982 letter, observing that, “[c]learly, the Appeal period has long since run for any alleged error on [the Zoning Administrator’s] part to be reviewed.” The Board also acknowledged that it lacked statutory authority to impose sanctions against violators of the Zoning Ordinance. The Board proceeded, however, to conduct evidentiary hearings to determine the nature of TRP’s use of the property. During the hearings, the Board heard extensive testimony regarding the nature and intensity of TRP’s activities, and reviewed photographs of the property and the surrounding neighborhood.

Based upon the evidence introduced at these hearings, the Board determined that “[t]he present use of the subject property by Mr. Pinto is not such as is compatible within a C-l zoning district.” The Board further found that “T.R.P.’s operation is tantamount to a ‘truck and transfer terminal’, said use being a specifically enumerated permitted use in an LI-2 District (see Section 9.2 of the Ordinance).” In light of these findings, the Board concluded that “the use of the subject property ... [violated] the Kent County Zoning Ordinance.” The Pintos and TRP appealed to the Circuit Court for Kent County. The circuit court (Rasin, J.) concluded that the Board had based its authority on either paragraph 4 or 5 of Article 13, § 3, of the Zoning Ordinance. Observing that it viewed Maryland Code (1957, 1983 Repl.Vol.) Art. 66B, § 4.07(d), as the sole source of Kent County’s authority to enact zoning ordinances, the court held paragraphs 4 and 5 invalid as exceeding the authority granted by Article 66B, § 4.07(d), of the Code. The court therefore reversed ⁴⁰¹ the Board of Appeals’ determination as having been issued without statutory authority.

Miller appealed to the Court of Special Appeals and we issued a writ of certiorari on our own motion, before consideration of the case by the intermediate appellate court, to consider the important issue raised in the case.

II

The powers of a board of appeals in a code home rule county, such as Kent County, 1 are derived ultimately from two sources within the Maryland Code: § 4.07(d) of Article 66B, which is part of the enabling legislation for zoning and planning regulation in nonchartered counties; 2 and § 18 of Article 25B, which is part of the general enabling legislation for code counties. Section 4.07(d) of Article 66B provides authority for a board of appeals “(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto. (2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinances. (3) To authorize upon appeal in specific cases a variance from the terms of the ordinance.” Section 13 of Article 25B incorporates by reference certain powers enumerated in § 5 of Article 25A, including those in § 5(U).

Section 5(U) provides authority for a board of appeals to render a decision ⁴⁰² “on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the [local legislative body], as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; and the assessment of any special benefit tax____” That the General Assembly intended to provide boards of appeal in code counties with the powers authorized by § 13 of Article 25B in addition to those authorized by § 4.07(d) of Article 66B is, we think, manifest. Section 13 of Article 25B expressly states that the powers it authorizes “are in addition to any powers any county may now have under any public general or local law applicable to the county.” Since § 4.07(d) of Article 66B antedates § 13 of Article 25B by 34 years, the quoted language from § 13 clearly mandates that the powers authorized in both statutory provisions are available to boards of appeal in code counties. 3 The Pintos maintain that “Kent County by its actions has obviously opted to appoint its Board of Appeals (Board of Zoning Appeals) under Article 66B, Section 4.07, and is thus subject to its constraints.” The Pintos, however, do not specify what actions by Kent County constitute this claimed election of Article 66B, § 4.07, in lieu of Article 25B, § 13. In any event, there is nothing before us to ⁴⁰³ demonstrate that Kent County has precluded itself in some way from invoking powers authorized by the General Assembly under Article 25B. Of course, a county need not avail itself of all the powers enumerated in these two public general laws, but its decision to forego certain powers in no way affects the applicability of the state enabling legislation. 4 The Pintos also suggest that, because § 4.07(b) of Article 66B contains a provision setting the salaries of the members of the Kent County Board of Appeals, the General Assembly must have intended that only § 4.07(d) of Article 66B, and not § 13 of Article 25B, apply to Kent County.

We do not think the inclusion of this provision in Article 66B warrants such an inference. A far more probative guide to legislative purpose is the express mandate in § 13 of Article 25B, quoted previously, that the powers there authorized are in addition to those provided code counties by other statutes. Neither Article 66B nor 25B grants power directly to a county board of appeals. Rather, these articles authorize ⁴⁰⁴ the local legislative body