Pemberton v. Montgomery County

Digges, J., delivered the opinion of the Court. After visiting and revisiting various administrative and judicial tribunals for almost six years, 1 the instant case has ³⁶⁵ at last arrived in this Court for what we trust will be its final resolution. What is before us in this matter is an appeal from an order of the Circuit Court for Montgomery County (Mitchell, J.) which affirmed, in favor of Montgomery County and the Exxon Corporation, 2 the appellees, over the objection of Mrs. Oakland H. Pemberton, the appellant, the decision of the County Board of Appeals for Montgomery County to permit, under a special exception, the operation of a gasoline station. We will affirm that order.

Although on the surface deceptively calm, it is in the period which preceded this stormy and prolonged sparring before the Board and the circuit court that the seeds of this dispute were sown. Specifically, this tale, for the purpose of resolving the issue in this case, begins in August of 1968 at which time Exxon agreed to buy a parcel of land situated in Brookmont, Montgomery County, Maryland. A condition of the consummation of that purchase — obtention of a special exception from the Montgomery County Board of Appeals enabling Exxon to erect and operate a filling station on that site, 6100-6104 MacArthur Boulevard — was realized on 20 August 1968. The opinion of the Board adopted as its resolution granting that special exception, later amended, 3 ³⁶⁶ “permitted] the construction and operation of an automobile filling station,” provided several preconditions were met.

In addition to these enumerated preconditions, the special exception contained a notation that Exxon had to comply with the time limitation dictate of Montgomery County Code (1955) § 111-32 (c). 4 That section, whose application forms the vortex of this litigation, provides: “A decision of the board or the director permitting the erection or alteration of a building shall be valid for a period of twelve months, during which time a building permit for such erection or alteration must be obtained and the erection or alteration started. No decision of the board permitting the use of a building or land shall be valid for a period longer than twelve months, unless such use is established within such period; provided, that where such use is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a building permit for such erection or alteration is obtained and the erection or alteration started within, such period, and such erection or alteration completed and the permitted use established within a reasonable time thereafter.” Having received this administrative green - light on 20 August 1968, Exxon promptly put its project into gear: plot plan and construction drawings for the service station were prepared; test borings were made; sewer service was established; and two old frame buildings on the property ³⁶⁷ were razed, their foundations unearthed and the debris removed. However, it was not until 19 August 1969, one day before the end of the twelve-month period stretching from the original granting of the special exception, that, all on the same day, Exxon: obtained a building permit for the construction of a retaining wall; dug a trench with a backhoe on the southeast side of the property; and then, after installing horizontal steel rods for support, poured five to six yards of concrete into the excavation for footings. It has been the appellant’s contention, from the time of her initial participation in this matter in October of 1969 until now, that Exxon should not be permitted to use the property for a service station since the special exception issued to that company expired because: (i) Exxon did not “obtain a permit for the construction of a gasoline filling station within twelve months after the grant of a special exception”; (ii) “the construction of a footing for a retaining wall” was not “sufficient to satisfy the requirement of section 111-32 (c) . . . that erection under a special exception be started within the twelve months following the grant of that exception”; and (iii) even if, in the normal case, obtaining the retaining wall permit and beginning work on the wall would satisfy the commencement requirement, “Exxon’s work on August 19, 1969 was not a bona fide attempt to begin construction of a footing for a retaining wall.” 5 Since these three questions, which are either clearly factual or at least mixed questions of law and fact, have been answered at the administrative level prior to this matter reaching the courts, our function, as was also true of the circuit court, is not to substitute our assessment of the facts for those of the Board as they relate to these issues, but merely to evaluate whether the evidence before the Board was “fairly debatable” such that a reasoning mind could reasonably have reached ³⁶⁸ the same result as did the administrative agency upon a fair consideration of the factual picture painted by the entire record before that body.

Dept. of Nat. Res. v. Linchester, 274 Md. 211 , 334 A. 2d 514 (1975); American Oil Co. v. Bd. of Appeals, 270 Md. 301 , 310 A. 2d 796 (1973); Shapiro v. Montgomery Co. Council, 269 Md. 380 , 306 A. 2d 253 (1973); Insurance Comm’r v. Nat’l Bureau, 248 Md. 292 , 236 A. 2d 282 (1967); Agneslane, Inc. v. Lucas, 247 Md. 612 , 233 A. 2d 757 (1967). Utilizing this standard we now evaluate the appellant’s three contentions. (i) It is the appellant’s first contention that the building permit obtained on 19 August 1969 to construct a retaining wall did not comply with section 111-32 (c) because “that ordinance states explicitly that a permit for such erection must be obtained [and] clearly ‘such erection’ must refer back to the language ‘where such use is dependent upon the erection . . . of a building,’ and the permit must therefore be the permit for the erection of the building in question [and not one merely for a retaining wall].” But, by way of answering this assertion, “a building permit” does not necessarily translate into a permit only for a building as such.

Indeed, if a “building permit” for a swimming pool project, for instance, were required, the needed permit could be for the pool itself and not necessarily for a bathhouse building being erected nearby. And so, in this case, a “building permit” allowing commencement of a service station project can be a permit for the construction of a portion of that project such as the foundation or retaining wall and it is therefore not limited, as the appellant insists, to a permit for the erection of a building; a gasoline station is, after all, probably more vitally comprised of the pumps and the underground storage tanks. Furthermore, in the Board’s view, “the retaining wall was an indispensable part of the support of the gasoline station building made necessary because the site slopes sharply to the rear of the lot,” and, therefore, the retaining wall permit was part and parcel of the permit for building the station, it ³⁶⁹ being inextricably connected to that erection. The Board reasoned: “Since every building must begin with a foundation, common sense indicates that obtaining a permit to begin where one must begin, i.e., with a foundation, is sufficient to satisfy the requirements of Section 111-32.

The applicant [(Exxon)] would have had to start construction with the foundation regardless of the kind of building permit first obtained. A foundation permit is a building permit, since it is sufficient to allow the start of construction under the provisions of the code and under the practices of the office of Building Inspector and the construction industry.” This finding by the Board, as to the existence of a construction permit within the requisite twelve-month period, is based upon a foundation of evidence which is at least “fairly debatable,” and, therefore, we cannot disturb it. (ii) The appellant’s next argument is that the work which was performed before and on 19 August 1969 was not a sufficient construction effort to be considered commencement of the station for purposes of satisfying the requirement of section 111-32 (c). In support of this, Mrs. Pemberton asserts that the work which Exxon had accomplished by that date was merely preliminary and preparatory to actual construction of the service station and was thus not sufficient to qualify as the commencement of work on that project.

In making this statement she relies on two of this Court’s previous decisions which may be characterized as “commencement cases”: People’s Counsel v. Pub. Serv. Comm’n, 259 Md. 409 , 270 A. 2d 105 (1970); Ross v. Montgomery County, 252 Md. 497 , 250 A. 2d 635 (1969). Neither of these cases can, however, give the appellant solace, as they are readily distinguishable on their facts from this action.

The standard for determining ³⁷⁰ commencement of construction (the development of which originated with Kelly v. Rosenstock, 45 Md. 389 (1876)), utilized by this Court in both People’s Counsel and Ross , was laconically expressed by Judge Horney for this Court, in Rupp v. Earl H. Cline & Sons, 230 Md. 573 , 188 A. 2d 146 (1963), as follows: “before there can be the commencement of a building [or another project] . . . there must be (i) a manifest commencement of some work or labor on the ground which every one can readily see and recognize as the commencement [of the undertaking] . . . and (ii) the work done must have been begun with the intention and purpose then formed to continue the work until the completion of the building [or other endeavor].” Id. at 578 . In People’s Counsel , a case involving the construction of the Calvert Cliffs Nuclear Power Plant located on the Chesapeake Bay in Calvert County, this Court concluded, applying the first prong of the Rupp test, that the work performed on the project prior to enactment of Article 78, § 54A of the Maryland Code (1957, 1965 Repl. Vol., 1968 Cum. Supp.) — extensive excavation preparatory to the building