Prince George's County v. E. L. Gardner, Inc.

Liss, J., delivered the opinion of the Court. This is an appeal by Prince George’s County, appellant, from a final order of the Circuit Court for Prince George’s County (Blackwell, J.) reversing and remanding a decision of the County Council of Prince George’s County sitting as the District Council for the Maryland-Washington Regional District in Prince George’s County. The case arose out of an application by the appellee, E. L. Gardner, Inc. (Gardner) for the grant of a special exception for the erection and use of a sand and gravel wet processing facility on property owned by Gardner, which Gardner has been operating as a non-conforming mining operation under the Prince George’s County Zoning Ordinance. The appeal was filed in the Circuit Court for Prince George’s County from a decision of the District Council denying the special exception.

The appeal to the Circuit Court was brought pursuant to Article 66D, Section 8-106 (e) of the Annotated Code of Maryland (1957, 1979 Repl. Vol.) and is governed by the provisions of Subtitle B, Chapter 1100, of the Maryland Rules of Procedure. See County Council v. Carl M. Freeman Associates, Inc., 281 Md. 70 , 376 A.2d 860 (1977). Appellee Gardner is in the business of preparing ready mix concrete.

Gardner manufactures its product in Clinton, Maryland but mines sand and gravel from its surface mines in Brandywine. Thé sand and gravel operation in Brandywine is located on the property involved in this case. Gardner applied for a special exception in order to transfer the wet processing of sand and gravel from Clinton to Brandywine. Such a special exception is allowed under the Prince George’s Code, Division 36, Section 27-558.1 which is titled, "Sand and/or gravel wet processing.” ⁴⁷³ The subject property, consisting of approximately 449 acres, is located one half mile east of Brandywine Road, Maryland Route 381, to the north of Keys Road.

The site is unequally divided on a north-south axis by a Pepeo right of way for power transmission lines. Approximately 330 acres lie to the west of the right of way and 120 acres to the east. Gardner proposed to place the wet processing facility in the smaller eastern section. The entire 449 plus or minus acre tract which is located in an O-S (open space) zone has been certified by Prince George’s County as a non-conforming use for the removal of sand and gravel.

Gardner extracts these materials pursuant to a surface mining permit issued by the State of Maryland. The appellee had been engaged in mining the site prior to its first being zoned in December of 1966, and has continued to do so since the adoption of the original zoning scheme. Gardner, in seeking its special exception, filed its application pursuant to the procedures set forth in Section 27-490, et seq., of the County Code. Prior to the date the application was brought to the District Council for its consideration, the Gardner application was submitted for a three step administrative review.

In chronological order, the administrative review was as follows: 1. Review and report by the Technical Staff of the Planning Board which was then submitted to the Planning Board along with the staffs recommendation, Section 27-491.2 of the County Code; 2. The Planning Board while not required to hear the matter or make recommendations did so pursuant to the procedures followed for a Zoning Map Amendment, Sections 27-581 and 27-585 of the County Code. In this case the Planning Board adopted its Technical Staffs recommendation as per Section 27-581 (b); 3.

The Zoning Hearing Examiner scheduled and conducted a public hearing on the application as per Sections 27-491 and 27-493, and then made a recommendation as per Section 27-565. ⁴⁷⁴ Upon submission of the administrative reports and recommendations to the District Council, the Council had before it the question of whether to grant or deny the application for a special exception under the standards and guidelines set forth in Sections 27-501 and 27-558.1 of the County Code. The District Council denied the application, and on appeal to the Circuit Court the presiding judge reversed the District Council and remanded the' case to the Council with instructions that the special exception be granted subject to the imposition by the Council of reasonable conditions to implement the use of the property. It is from that order that this appeal has been brought by Prince George’s County. The issues to be decided by the appeal are as follows: I. Whether the approval by the zoning authority of a separate special exception use authorized by the applicable zoning ordinance where a parcel of land is the subject of a lawful non-conforming use constitutes either an expansion or ¿n enlargement of that non-conforming use?

II

Whether the denial of a special exception by the District Council amounts to an arbitrary, capricious and illegal act where an applicant for the special exception establishes by clear and convincing evidence that the proposed use complies with the prescribed standards and requirements of the applicable zoning ordinance?

III

Whether the issue before the administrative body as to the granting or denial of the special exception was "fairly-debatable”? I. and II. The appellee in its application for a special exception sought authorization to conduct a sand and gravel wet processing operation on the subject property. The proposed use is in harmony with the purposes and intent of the Prince George’s County Zoning Ordinance in that sand and gravel wet processing has been legislatively predetermined to be a ⁴⁷⁵ legitimate use of land in the O-S category subject to the requirements of applicable special exception provisions.

The Court of Appeals in Rockville Fuel & Feed Co. v. Board of Appeals, 257 Md. 183 , 262 A.2d 499 (1970), set out the duty of an administrative agency in the consideration of an application for a special exception when it said: In Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 [ 96 A.2d 261 (1953)1 we went to some pains to stress that the special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses which the legislative body has determined can, prima facie, properly be allowed in a specified use district, absent any fact or circumstance in a particular case which would change this presumptive finding. We said: "The duties given the Board are to judge whether the neighboring properties and the general neighborhood would be adversely affected, and whether the use, in the particular case, is in harmony with the general purpose and intent of the zoning plan.” [ 257 Md. at 188 .1 The appellant contends that the proposed use of the appellee’s property in this case is an expansion, extension or enlargement of an existing non-conforming use and is, therefore, contrary to the purposes and requirements of the zoning ordinance. Appellee, on the other hand, urges that the special exception which it seeks in this case makes irrelevant the question whether the activity proposed is an extension, expansion or enlargement of the existing non-conforming use. The facts are not in dispute: appellee’s property has been certified as a lawful non-conforming use under the provisions of the Prince George’s County Zoning Ordinance; appellee has the ongoing unrestricted legal right to extract sand and gravel from the entirety of its property as reflected in its use and occupancy permit as well as the zoning ⁴⁷⁶ ordinance; appellant’s property contains extensive deposits of sand and gravel which the appellee is currently mining and plans to continue to mine until the subject deposits are exhausted.

We are aware that while judicial decisions are firm in the protection of vested rights, the courts and legislatures are wedded to the public policy decisions which have prompted the limitation of non-conforming uses and have generated plans.for the elimination of non-conforming uses. See 1 Anderson, American Law of Zoning Section 6.07 (1976,1979 Cum. Supp.) A distinction is to be drawn between the enlargement or extension of non-conforming uses and an intensification of such lawful uses. An increase in floor space either arising from an addition to an existing building or in a separate building; an increase in the area of a lot used for non-conforming uses; or a change in business methods or the provision of new accessory facilities with the resulting extension of the use involved have all been held to be proposals for the enlargement of a non-conforming use.

Conversely, an increase in the volume of an existing business is usually referred to as an intensification rather than an enlargement and such an