Relay Improvement Ass'n v. Sycamore Realty Co.

DAVIS, Judge. This is an appeal from a judgment in the Circuit Court for Baltimore County affirming a decision by the Baltimore County Board of Appeals (CBA) in favor of appellee Sycamore Realty Co., Inc. (Sycamore). In 1993, Sycamore sought permission to construct 198 townhouse units on a 24-acre site in Baltimore County. The plan did not comply with the density requirements of the property’s then-existing zoning classification.

Nonetheless, the County Review Group (CRG) approved the plan. Sycamore’s development plan was opposed by the Relay Improvement Association (Relay) (a neighborhood association), the People’s Counsel for Baltimore County, and several neighboring residents—all of whom are parties to the instant appeal. The CBA approved the plan, and the circuit court affirmed. Both the CBA and the circuit court relied on the theory of zoning estoppel.

Appellants present four issues for our consideration. We renumber those issues, and restate items three and four as follows: ⁷⁰⁶ I. Maryland should not adopt the doctrine of zoning estoppel, or should exercise extreme caution.

II

A County Review Group proceeding for review of development is not the proper forum to consider zoning estoppel, nor is the County Board of Appeals.

III

The CBA and the circuit court erred, as a matter of law, in setting forth the elements of zoning estoppel.

IV

The CBA and the circuit court erred in applying the doctrine of zoning estoppel to the facts of this case. FACTS Hilltop Place is a 24.37-acre parcel of land located in southwest Baltimore County. The land is adjacent to the Relay neighborhood, an older, historic community that coalesced around a railroad facility dating from the mid-nineteenth century. The community includes both newer sections and older Victorian homes.

According to an evaluation performed by County planning officials, there is a shortage of park land and recreational sites in the area. Hilltop Place- is possibly the last undeveloped parcel of land near Relay that might be used for such purposes. The property is currently owned by appellee Sycamore Realty Co., Inc. When Sycamore first acquired Hilltop Place in 1974, the land was zoned for residential use. The majority of the site (18.21 acres) was zoned at a density of 10.5 residential units per acre (DR 10.5).

The remaining 6.16 acres was zoned at a density of 5.5 units per acre (DR 5.5). In the process of preparing the County’s 1990 master plan, the Office of Planning and Zoning reviewed the zoning classifications for Hilltop Place. William Hughey, a community planner, concluded that the property was a “zoning anomaly,” and that the DR 10.5 zoning was inconsistent with the density in nearby residential neighborhoods, which ranged from 3.5 to 5.5 units per acre. Hughey discussed the matter with a County Council member whose district included Hilltop Place.

Under a February 1990 amendment to the master plan, the Council designated the property as a potential park and ⁷⁰⁷ recreation site. Nonetheless, no change was made to the zoning. An appraisal of the site, completed at the County’s request in June 1990, noted that the “highest and best use” of the parcel would be development in accord with the existing zoning. On December 4,1990, Sycamore filed a plan for the development of Hilltop Place.

The plan took advantage of the DR 10.5 zoning and provided for construction of a 220-unit townhouse complex. While reviewing Sycamore’s proposed development, planning officials noticed that it conflicted with the master plan. The matter was referred to the Department of Recreation and Parks, and the Department recommended that the County acquire the property. In January of 1991, the Division of Real Estate in the County’s Office of Law was asked to begin negotiations with Sycamore.

On March 22, 1991, the County offered Sycamore $560,000, the amount identified by the County’s appraiser as the fair market value of the property. Sycamore rejected that offer and asserted that the County’s appraisal was flawed. 1 At various points in time, Sycamore asserted that the property was worth at least three to four million dollars, or as much as eight million dollars. As part of the acquisition effort, the County Council placed the property under public reservation on July 1, 1991. Section 26-66 of the Baltimore County Code provides, in part, that property may be reserved for public use for a period not to exceed eighteen months.

Baltimore County Code (B.C.C.) § 26—66(b) & (c) (1988). During the reservation period, “no building or other structure shall be erected on the land so reserved,” and the property is exempt from all county and ⁷⁰⁸ local taxes and other public assessments. B.C.C. § 26—66(e) & (f). The code requires that the County acquire the property or initiate condemnation proceedings during the reservation period.

In the event that the County fails to do so, the planning board “shall record” a release of the reservation in the County land records within fifteen days after the reservation period ends. B.C.C. § 26-66(g) (emphasis added). When a property is released without either acquisition or condemnation, the County is liable for any actual damages sustained by the property owner as a result of the reservation. B.C.C. § 26-66(h).

In the present case, the County made only a token effort to acquire Hilltop Place during the reservation period. No formal offers were extended, and the County did not initiate condemnation proceedings. In November of 1991, the County informally suggested a partial acquisition, but Sycamore did not respond. Despite the fact that the reservation period ended on September 14, 1992, the County did not release the property until November 19, 1992—nearly two months after it was required to do so.

Wfiiile County officials in the Office of Law and the Department of Recreation were attempting to acquire Hilltop Place, the wheels of County government were slowly turning elsewhere. In August of 1991, the County began preparation of a comprehensive rezoning map. At that time, both planning officials and Relay recommended that Hilltop Place be down-zoned to DR 5.5. On October 15, 1992, the County Council adopted the comprehensive rezoning.

The new zoning classification for Hilltop Place took effect in December of 1992—less than one month after the property was released from reservation. 2 Under the DR 5.5 zoning, only 132 townhouse units could be constructed on the site. ⁷⁰⁹ Despite the downzoning of Hilltop Place, Sycamore persisted in efforts to gain approval for its original proposal. Following a public meeting on July 8, 1993, the County Review Group (CRG) 3 approved Sycamore’s plan for a 198-unit townhouse development. The number of units was reduced from 220 to 198 because of newly-enacted forest conservation restrictions. See Md.Code Ann., Nat.

Res. § 5-1601 et seq. (Supp.1994). In approving the plan, the CRG relied on a letter from Arnold Jablon, Director of Zoning Administration, to appellant Louisa Vanderbeek, a neighboring resident. The letter stated, in part: It is obvious that the change in zoning ... in concert with the county’s decision that it did not have the money to purchase the property, makes the county vulnerable to extensive damages.

The county believes that if the reservation prevents the property owner from recording a plat, the length of time to do so is extended by the period of time that the reservation was in place. Clearly, the law does not permit the utilization of Section 26-66, BCC, by the county to stay potential development in order that the zoning can be decreased without the need to buy [the property]. ⁷¹⁰ Appellants argued, to no avail, that Sycamore had no vested rights, and that the CRG was required to apply the current DR 5.5 zoning. Appellants thereafter noted an appeal from the CRG’s decision to the County Board of Appeals (CBA). Sycamore filed a cross-appeal, in which it argued that its right to proceed with the development was not restricted by the time limitations stated in Jablon’s letter.

The CBA conducted two days of evidentiary hearings in August and November of 1993. The witnesses offered by Sycamore included Frederick Chadsey, IV, an expert in site planning and engineering, who supervised the preparation of Sycamore’s development plan. Based on his experience with numerous projects in Baltimore County, Chadsey estimated that it takes three months or less to.take a typical project from filing through CRG approval. With regard to the proposed Hilltop Place development, Chadsey estimated that approximately twelve months would have been required to take the project “from the original submittal of the plan to the time of construction.” Chadsey also stated that Sycamore directed him to cease working on the plans for development of Hilltop Place in April 1991, and that he did not resume work until May of 1992.

In his words, Sycamore “didn’t want us to spend money on it if the county was going to purchase it.” Shirley Murphy, head of the Real Estate Division in the County’s Office of Law, testified that her office began working on the proposed acquisition of Hilltop Place in early or late 1989. Murphy acknowledged that the County made no further offers after the County’s initial offer was rejected. On December 11, 1991, Murphy received a memorandum directing her to put the project on hold. The memo stated: “Shirley, do not pursue this matter unless you hear from me.

Holding pattern for now.” According to Murphy, she could not remember if she was aware, at that time, that the property was going to be downzoned during the comprehensive rezoning process. ⁷¹¹ Wayne Harman, the County’s Director of Recreation and Parks since January 1991, testified that the County made no additional offers because “our fiscal world was beginning to crumble.” During the 1991 legislative session, the County lost six million dollars in state funds scheduled for allocation through Program Open Space. As Harman explained, the Program Open Space money was “the kingpin, the linchpin, if you will” of the County’s potential for the acquisition of new recreational sites. Despite the fact that the County’s financial situation “was changing almost daily,” Harman testified that the County had sufficient funds available to purchase Hilltop Place at a price “considerably” higher than $560,000. When asked why the County did not remove the reservation earlier, Harman explained: Our position was that for the price we were willing pursuers.

We have been in negotiations in the past where offers had been rejected, and two weeks later offers were accepted. So it would have been foolish for us to have forfeited the—what little opportunity we would have had should there have been a reconsideration. John Markley, the County’s supervising capital budget analyst, testified that $110,000 was allocated toward the acquisition of Hilltop Place in the County’s 1991 capital budget. Most of that amount ($100,000) was slated to come from Project Open Space Funds.

The 1991 budget also indicated that $406,000 would be allocated toward the “Relay Community Park” during 1992. According to Markley, the County received substantially less state money through Project Open Space in 1992. The County’s 1992 capital budget stated that the “total estimated cost” of Relay Community Park was $816,000. Markley testified that $776,000 of that total was budgeted for site acquisition and right-of-way, and that $731,000 of the necessary funds were expected to come from Project Open Space.

Nonetheless, the County’s 1992 budget allocated no funds toward the acquisition of Hilltop Place. Instead, the 1992 budget indicated that $406,000 would be allocated during 1993, and that no ⁷¹² additional funds would be allocated during fiscal years 1994 through 1997. The 1992 budget also stated that the “balance to complete” the project was $300,000. The budget did not indicate when those funds would be allocated, nor did it identify the source of those funds.

Markley and Harman both testified that the County could, if necessary, transfer funds from other projects. Because all efforts at acquisition ended with the release of the property in November of 1992, the 1993 budget did not allocate funds toward the acquisition and development of the park. The witnesses offered by appellants included Ronald Shaeffer, a superintendent working with land acquisition in the Department of Recreation and Parks. Shaeffer testified that he consulted with the County Attorney regarding potential damages in the event that the County reserved Hilltop Place but did not acquire the property.

He also testified that his department did. not rule out the acquisition of the property until June or July of 1992, when only a few months remained on the reservation period. On February 16, 1993, the CBA issued a ten-page written opinion. After reviewing the testimony presented at the hearing, the CBA found as follows: The testimony and evidence shows that when the County placed the property in reservation on July 1, 1991, it knew the property was slated to be downzoned to DR 5.5.... When the County requested the reservation, it knew it was going to request that the property be downzoned during the next comprehensive rezoning.

The testimony of Wayne Harman indicates that he knew almost immediately after becoming Director of Recreation and Parks that his department was going to have severe budget constraints due to cutbacks in both State and County funding. By December 31, 1991, when the County put the acquisition on hold, County officials undoubtedly knew the County didn’t have the funds to acquire the property even at the appraised price of $560,000, which had already been reject ⁷¹³ ed by Sycamore. Nevertheless, the County failed to release the property for almost a year, until November 19, 1992. Whatever the reasons for the County’s stalling the release of the reservation, the result was that the downzoning had taken place and the Developer had insufficient time to begin construction and vest an interest in the pre-existing zoning.

The CBA stated that the County’s conduct “bordered upon being arbitrary and capricious,” and concluded that the County engaged in “administrative negligence” by failing to release the reservation when it had no reasonable expectation of purchasing the property. The CBA further concluded that there was a causal relationship between the County’s conduct and Sycamore’s failure to vest its rights in the DR 10.5 zoning: If the County had released the reservation in December, 1991, when it was clear that it did not have funds to acquire the property, Sycamore would reasonably have had time to obtain CRG approval and begin construction prior to the downzoning, thus vesting its interest in the property. With regard to Sycamore’s cross-appeal, the CBA concluded (1) that the Jablon letter did not constitute an appealable decision or order, and (2) that the CRG did not adopt the eighteen-month time limitation suggested in the Jablon letter. Instead, the CRG’s decision stated that approval would expire on July 8, 1996, three years from the date of the decision.

Consequently, the CBA concluded that Sycamore’s cross-appeal was moot. Sycamore’s cross-appeal is not at issue here. The circuit court affirmed the CBA’s decision, and appellants noted the present appeal. LEGAL ANALYSIS As a general rule, judicial review of an administrative decision is narrow, and the same standard applies in both this court and the circuit court.

On appeal, we must determine whether the CBA’s decision is “in accordance with the law or whether it is arbitrary, illegal, and capricious.” Moseman v. County Council, 99 Md.App. 258, 262 , 636 A.2d 499 , cert. denied, 335 Md. 229 , 643 A.2d 383 (1994). A reviewing ⁷¹⁴ court may not overturn an agency’s factual findings or its application of law to facts if the agency’s decision is supported by substantial evidence. 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).

Substantial evidence means more than a “scintilla of evidence,” such that a reasonable person could come to more than one conclusion. Moseman, 99 Md.App. at 262-63 , 636 A.2d 499 (citing Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969)); Montgomery County v. Greater Colesville Citizens’ Ass’n, 70 Md.App. 374, 382 , 521 A.2d 770 (1987). In such a situation, the issue is considered to be “fairly debatable,” and the reviewing court may not substitute its judgment for that of the agency. When reviewing issues of law, on the other hand, the standard of review is expansive, and we may reach our own conclusions without deference to the agency’s opinion.

Columbia Road Citizens’ Ass’n v. Montgomery County, 98 Md.App. 695, 698 , 635 A.2d 30 (1994). As the Court of Appeals explained in United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984), a reviewing court may not uphold an agency order unless it can be sustained on the agency’s factual findings and for the reasons stated by the agency. Accordingly, the CBA’s decision here must be supported on the facts that were found by the CBA and stated in the CBA’s opinion. Where the agency’s factual findings are inadequate, the necessary facts may not be supplied by the parties, and neither we nor the circuit court will scour the record in search of evidence to support the agency’s conclusion.

See Ocean Hideaway Condo. Ass’n v. Boardwalk Plaza Venture, 68 Md.App. 650, 661-62 , 515 A.2d 485 (1986). I Under Maryland law, a landowner whose property is downzoned has no vested right in the prior zoning classification unless the landowner, relying on a valid permit, makes a substantial beginning in actual construction. Prince George’s County v. Sunrise Development, 330 Md. 297, 307-13 , 623 ⁷¹⁵ A.2d 1296 (1993); Board of County Comm’rs v. Pritchard, 312 Md. 522 , 540 A.2d 1139 (1988); O’Donnell v. Bassler, 289 Md. 501 , 425 A.2d 1003 (1981); Mayor of Baltimore v. Crane, 277 Md. 198 , 352 A.2d 786 (1976); Steuart Petroleum v. Board of County Comm’rs, 276 Md. 435 , 347 A.2d 854 (1975); County Council v. District Land Corp., 274 Md. 691 , 337 A.2d 712 (1975).

See also Offen v. County Council for Prince George’s County, 96 Md.App. 526 , 625 A.2d 424 (1993), rev’d, 334 Md. 499 , 639 A.2d 1070 (1994). The courts of other states have noted, however, that the strict application of the vested rights rule may sometimes be unreasonable and unjust. In Offen, 96 Md.App. at 531-32 , 625 A.2d 424 , a landowner’s attempt to develop his property was stymied by the County’s arbitrary and deliberate refusal to issue an essential sewer permit, despite a court order directing the County to do so. We held that “especially egregious actions of public officials in stalling the issuance of permits in order to eliminate development by downzoning may create a zoning estoppel as to particular properties.” Id. at 577 , 625 A.2d 424 .

As Judge Cathell explained: In arriving at our resolution, we are particularly aware that Maryland has adopted the strict test as to vesting, ie., actual substantial construction. As we perceive that standard, it appears to be sufficiently rigid to protect the planning process generally. That rigidity, as we have seen from the cases, can impose heavy burdens on property owners who are unable to progress to actual construction by the date of the downzoning even under a normal application of the zoning process. We perceive that extra burdens, such as those alleged in the case at bar, imposed on a property specific basis, are discriminatory; when imposed by officials to take further advantage of the already strict vesting rule, they may be arbitrary and capricious.

Id. at 573-74 , 625 A.2d 424 . The Court of Appeals reversed our decision for reasons of subject matter jurisdiction rather than substance. The issue of zoning estoppel had not been raised or decided below, and the Court held that we were barred from raising the issue ⁷¹⁶ nostra sponte. Offen, 334 Md. at 508-10 , 639 A.2d 1070 .

The Court also concluded that the issue could not be raised in a direct challenge to a county’s comprehensive rezoning efforts. The Court said: Aside from the practical difficulties of applying a doctrine which has been neither briefed, argued, nor adopted in this jurisdiction, the trial court on remand would be instructed to apply a doctrine that is beyond the proper scope of review of an administrative action. The instant case remains one of narrow scope; this action simply challenges the validity of the District Council’s adoption of the SMA. In contrast, the crux of the zoning estoppel theory as explained by the Court of Special Appeals rests in a challenge to collateral proceedings ... that allegedly frustrated Offen’s ability to obtain a building permit and thereby vest his rights in the commercial zoning of his property.

These issues may be valid, and they may perhaps be raised and considered in a different type of proceeding, but they are not properly raised here. Id. at 510-11 , 639 A.2d 1070 . The case before us does not suffer from those procedural difficulties. Sycamore does not contest the validity of the comprehensive rezoning.

Rather, it asserts that the application of the new zoning to Hilltop Place is barred by the doctrine of zoning estoppel. The issue was both raised and decided during collateral proceedings; specifically, during administrative review of Sycamore’s proposed development plan. The issue of zoning estoppel was briefed and argued by the parties, and was carefully considered in both the County Board of Appeals and the circuit court. Once again, we hold that the doctrine of zoning estoppel is applicable in Maryland.

Because it is clear that appellants, the trial court, and the CBA have misconstrued our decision in Offen, we shall take this opportunity to clarify what we mean by “zoning estoppel.” In part II, infra, we explain that the issue of zoning estoppel is a legal defense rather than an equitable remedy, and may be adjudicated during administrative proceedings. In part III, ⁷¹⁷ we discuss the elements of zoning estoppel, and explain the relationship between zoning estoppel and the vested rights rule. In part IV, we apply the doctrine of zoning estoppel to the facts of this dispute, and hold that the CBA erred. Both the CBA and the circuit court incorrectly stated the pertinent legal principles.

Moreover, the CBA’s conclusion that a zoning estoppel existed is not supported by substantial evidence. II As a threshold matter, appellants contend that neither the County Review Group nor the County Board of Appeals had lawful authority to adjudicate the issue of zoning estoppel. Appellants advance two distinct arguments in support of that premise. First, they contend that the issue of zoning estoppel involves an equitable remedy, which may be granted only by a court of equity.

Second, they contend that the CRG and the CBA are both “creatures of statute” with no authority other than those powers expressly granted by the County charter and code. See, e.g., 4 Robert M. Anderson, American Law of Zoning § 22.02, at 6 (3d ed. 1986) (explaining that a zoning board of adjustment has “limited powers,” and that the board’s jurisdiction “is described and limited by the zoning enabling acts and local ordinances and charters”). Appellants rely, in part, on the following language contained in the Baltimore County Code: In addition to compliance with these development regulations, all development shall comply with all other applicable laws, rules, or regulations of the county. B.C.C. § 26-180 (emphasis added).

Other sections of the County’s development regulations contain similar language. See B.C.C. § 26-166(a) (“All development of land must conform to the master plan including adopted community plans and these regulations.”); B.C.C. § 26-206(b) (stating that a hearing officer “shall grant approval of a development plan that complies with these development regulations” and other applicable policies and regulations). In Miller v. Forty West Builders, 62 Md.App. 320, 333 , 489 A.2d 76 (1985), we noted ⁷¹⁸ that approval of a development plan “will necessarily entail review of and compliance with the applicable zoning regulations.” Thus, “where a preliminary plat indicates on its face that it is violative of zoning ordinances,” an administrative decision to deny approval of the plat will be sustained. Id. at 334 , 489 A.2d 76 (quoting 1 Yokley, Zoning Law and Practice § 17-10 (1979)).

See also 4 Anderson § 23-21, 25.21 at 333 (“it seems clear that plats should not be approved which violate existing zoning regulations”). At the outset, we reject appellants’ assertion that the present case is controlled by Offen, 334 Md. at 510 , 639 A.2d 1070 , wherein the Court of Appeals stated that the issue of zoning estoppel “is beyond the proper scope of review of an administrative action.” The administrative decision at issue in Offen was the district council’s decision to adopt a comprehensive rezoning plan. The Court of Appeals recognized that “appellate review of comprehensive rezoning is limited in scope,” id. at 507, 639 A.2d 1070 , and concluded that the zoning estoppel issue could not be used to challenge the validity of the rezoning amendment. Id. at 511 , 639 A.2d 1070 .

As we noted above, the Court concluded that the issue “may perhaps be raised” in a collateral proceeding. Id. That observation is consistent with the Court’s earlier decision in Crane, 277 Md. at 210 , 352 A.2d 786 , wherein the Court held that a landowner had acquired a vested contractual right to develop a particular site, and that the City was estopped from applying a comprehensive rezoning ordinance to the property at issue. In Crane , as in the case at hand, the estoppel issue was raised in collateral proceedings.

See Crane, 277 Md. at 204 , 352 A.2d 786 (explaining that the planning commission disapproved preliminary development plans, and that the Cranes filed suit seeking a writ of mandamus and damages). The procedural challenge posed by appellants in the present case suffers from a fundamental error: appellants have misconstrued the nature of zoning estoppel. Historically, the doctrine of equitable estoppel has been treated as a legal defense based upon equitable principles, rather than a form of ⁷¹⁹ equitable relief. 4 Accordingly, the Court of Appeals has consistently concluded that the existence of an equitable estoppel is a question of fact, to be determined by the trier of fact. See Travelers Indemnity Co. v. Nationwide Construction Corp., 244 Md. 401, 414-15 , 224 A.2d 285 (1966) (“We have repeatedly stated that whether or not an equitable estoppel exists is a question of fact to be determined in each case.”).

See also Eastern Shore Warehousing, Inc. v. Wallis, 87 Md.App. 141, 149 , 589 A.2d 497 cert. denied, 324 Md. 325 , 597 A.2d 422 (1991) (holding that the evidence was not legally sufficient to submit the issue of equitable estoppel to a jury); Zimmerman v. Summers, 24 Md.App. 100, 118-23 , 330 A.2d 722 (1975). Compare Mattingly v. Mattingly, 92 Md.App. 248, 250 , 607 A.2d 575 (1992) (“Because the issues presented and remedies requested here are purely equitable,” the trial court erred in submitting the case to a jury.). The existence of a zoning estoppel is likewise a question of fact rather than a form of equitable relief. See Offen, 96 Md.App. at 577-78 , 625 A.2d 424 .

The essence of equity jurisprudence is the exercise of judicial discretion, culminating in a writ of mandamus or other injunctive relief. See McKeever v. Washington Heights Realty Corp., 183 Md. 216, 223 , 37 A.2d 305 (1944); Solvuca v. Ryan & Reilly Co., 131 Md. 265, 282 , 101 A. 710 (1917). By contrast, the adjudication of a zoning estoppel issue involves a fairly straightforward application of law to facts. Despite the fact that “administrative boards and officials are arms and instrumentalities of the Legislature,” Dal Maso v. County Comm’rs., 182 Md. 200 , 205-06, 34 A.2d 464 (1943), it is firmly established that agencies may adjudicate legal dis ⁷²⁰ putes. 5 See, e.g., 4 Anderson, § 22.02, at 7 (“The powers of a board of adjustment are adjudicatory.”).

Under Article 4 of the Maryland constitution, the judicial power of this State is vested in certain enumerated courts, and “such intermediate courts of appeal as the General Assembly may create by law....” Const, of Md., art. IV, § 1. Accordingly, the Court of Appeals has concluded that the Legislature may not vest administrative bodies “with any judicial authority.” Dal Maso, 182 Md. at 206 , 34 A.2d 464 . Nonetheless, an agency may make factual determinations.

It may also apply the pertinent law to those facts. The agency’s exercise of those functions “does not alone vest [the agency] with judicial power in the constitutional sense.” Attorney General v. Johnson, 282 Md. 274, 284 , 385 A.2d 57 (1978). To conclude otherwise would be to embrace “the erroneous notion that all adjudication is judicial.” Id. (quoting Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356 , 66 A.2d 726, 730 (1949)).

In Ocean City Board of Supervisors v. Gisriel, 102 Md.App. 136, 148 , 648 A.2d 1091 (1994) cert. granted, 337 Md. 641 , 655 A.2d 400 (1995), we recently noted that a “quasi-judicial” adjudication by an agency represents a discharge of the agency’s executive duties, rather than an exercise of judicial power. As with other adjudications by an administrative body, both the County Review Group and the County Board of Appeals may adjudicate the zoning estoppel issue, but neither body has any independent power to enforce the result. It is indisputably the case that the County Board of Appeals had lawful authority to entertain an appeal from the ⁷²¹ CRG’s approval of Sycamore’s development plans. See Md. Ann.Code art. 25A, § 5(U) (1994 Repl.Vol.) (permitting counties to establish a County Board of Appeals with jurisdiction over matters relating to zoning, including the issuance or denial of any permit “or other form of permission”); Baltimore County Charter § 602(b) (enumerating the powers of the Baltimore County Board of Appeals, which include “Appeals From Orders Relating to Zoning”).

As the Court of Appeals noted in O’Donnell, 289 Md. at 508 , 425 A.2d 1003 , “[a]n appellate court must apply the law in effect at the time a case is decided, 'provided that its application does not affect intervening vested rights.” (Emphasis added). The same standard applies to proceedings in the County Board of Appeals. See Sunrise Dev., 330 Md. at 299-300 , 623 A.2d 1296 . 6 Notwithstanding the language of the Baltimore County Code, we see no reason why that principle should not be applied to the CRG’s final approval of the plan at issue here. Indeed, the County code requires that the CRG review the development in accord with all “applicable” county law.

Where vested rights or a zoning estoppel has been found, the prior zoning regulations are, in effect, the “applicable” county law, if only with regard to the subject property. As we explain below, our narrow version of the zoning estoppel doctrine may best be understood as a “bad faith” exception to the vested rights rule. Because the CRG and the CBA had proper authority to consider the vested rights rule, it follows that they could also consider the issue of zoning estoppel. On a related point, appellants contend that the authority of the CBA was limited by the damage provision contained in the County code, and that an action for actual damages was Sycamore’s sole remedy for any damages “sustained ... by reason of the public reservation.” B.C.C. § 26-66(h).

We ⁷²² disagree. In the absence of express language to the contrary, a statutory damage remedy does not preclude other common-law claims for relief, including an assertion that a zoning estoppel existed. Ill We think it essential to explain that we use the term “zoning estoppel” more narrowly than the courts of most states. Under the “black-letter” definition of “zoning estoppel,” a local government will be estopped from asserting its zoning powers over a subject property when the property owner, (1) relying in good faith, (2) on some act or omission of the government, (3) has made such a substantial change in position or incurred such extensive expenses that it would be manifestly unjust to permit the government to destroy the rights of the property owner by subsequent regulation.

David G. Heeter, Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes, 1971 Urban L.Ann. 63, 66. Heeter’s articulation of the zoning estoppel principle has been widely endorsed by courts and commentators alike. See Arden H. & Daren H. Rathkopf, 4 The Law of Zoning and Planning § 45.04, at 45-44 (1991); Patrick J. Rohan, 7 Zoning and Land Use Controls § 52.08[4], at 52-88 (1995); Robert M. Rhodes & Cathy M. Sellers, Vested Rights: Establishing Predictability in a Changing Regulatory System, 20 Stetson L.Rev. 475, 478 (1991); Lynn Ackerman, Searching for a Standard for Regulatory Takings Based on Investment-Backed Expectations: A Survey of State Court Decisions in the Vested Rights and Zoning Estoppel Areas, 36 Emory L.J. 1219 , 1261-64 (1987); Richard B. Cunningham & David H. Kremer, Vested Rights,. Estoppel, and the Land Development Process, 29 Hastings L.J. 625 , 649 (1978).

See also Offen, 334 Md. at 505 n. 4, 639 A.2d 1070 (explaining the doctrine of zoning estoppel by paraphrasing Heeter’s definition). Although Maryland has never endorsed Heeter’s broad, black-letter version of zoning estoppel, the Court of Appeals has applied a similar principle in cases involving equitable estoppel against a government ⁷²³ entity. See Inlet Associates v. Assateague House, 313 Md. 413, 434-36 , 545 A.2d 1296 (1988) (explaining that municipal estoppel may be found where a party has “changed his [or her] position for the worse” in good faith reliance on actions undertaken by government officials, provided that those actions are within the scope of their lawful authority). See also Permanent Financial Corp. v. Montgomery Cty., 308 Md. 239 , 518 A.2d 123 (1986); City of Hagerstown v. Long Meadow Shopping Center, 264 Md. 481 , 287 A.2d 242 (1972); Town of Berwyn Heights v. Rogers, 228 Md. 271 , 179 A.2d 712 (1962); Lipsitz v. Parr, 164 Md. 222 , 164 A. 743 (1933); 3 J. Pomeroy, Equity Jurisprudence § 804 (5th ed. 1941) (discussing the general principle of equitable estoppel).

On rare occasions, the Court of Appeals has applied the doctrine of equitable estoppel in the context of zoning matters. In Crane, 277 Md. at 207 , 352 A.2d 786 , for example, the Court of Appeals concluded that the city was “estopped from attempting to enforce” a 1971 zoning ordinance because of the Cranes’ “substantial change in position.” We think it essential to note, however, that the Court’s decision was based on principles of contract rather than property. 7 See Crane, 277 Md. at 210 , 352 A.2d 786 (explaining that “[t]his case should not be confused with those in which a property owner contends that he has a vested right in an existing zoning classification”). In Permanent Financial, 308 Md. at 239 , 518 A.2d 123 , Montgomery County issued a permit for construction of a building that violated certain height restrictions. After four floors had been built to a height of forty-three feet, the County obtained a stop work order.

The Court of Appeals ⁷²⁴ held that the County was estopped from requiring the developer to remove the fourth floor. The Court stressed, however, that the decision to issue the permit was consistent with the County’s long-standing practice, and was based on a reasonable, good-faith interpretation of an ambiguous provision in the County’s building code. Id. at 250-52 , 518 A.2d 123 . Although the Court framed the issue as one of estoppel, the facts are consistent, in most respects, with the vested rights rule.

In effect, the Court merely recognized a narrow exception to the general requirement that a developer’s rights may not be vested in the absence of a valid permit. Notwithstanding the decisions in Crane or Permanent Financial , the Court of Appeals has neither endorsed nor rejected the black-letter version of zoning estoppel. Offen, 334 Md. at 505 -06 n. 4, 639 A.2d 1070 . As Permanent Financial suggests, the vested rights rule and the doctrine of zoning estoppel are frequently confused, and “courts seem to reach the same results when applying these defenses to identical fact situations.” See Heeter, supra, 1971 Urban L.Ann. at 64-66.

See also 4 Rathkopf & Rathkopf, supra, § 45.04, at 45-44; 7 Rohan, supra, § 52.08[4], at 52-90; Offen, 96 Md.App. at 569 n. 23, 625 A.2d 424 . 8 Heeter explained the difference as follows: The defense of estoppel is derived from equity, but the defense of vested rights reflects principles of common and constitutional law. Similarly, their elements are different. Estoppel focuses upon whether it would be inequitable to ⁷²⁵ allow the government to repudiate its prior conduct; vested rights upon whether the owner acquired real property rights which cannot be taken away by government regulation. Heeter, supra, 1971 Urban L.Ann. at 64-66.

Another commentator has suggested that the doctrine of zoning estoppel “is really a more flexible test that emphasizes principles of equity, rather than specific points in time that trigger vesting.” Ackerman, supra, 36 Emory L.J. at 1256. The nature and extent of the confusion may be illustrated by juxtaposing Heeter’s definition of zoning estoppel against the Maryland rule of vested rights. In Sunrise Dev., 330 Md. at 297 , 623 A.2d 1296 , the Court of Appeals explained that [gjenerally, in order to obtain a vested right in an existing zoning use ... an owner must initially obtain a valid permit. Additionally, in reliance upon the valid permit, the owner must make a substantial beginning in construction and in committing the land to the permitted use before the change in zoning has occurred.

Id. at 307 , 623 A.2d 1296 (quoting O’Donnell v. Bassler, 289 Md. 501, 508 , 425 A.2d 1003 (1981)) (emphasis added). The parallels between zoning estoppel, municipal estoppel and the vested rights rule are obvious: each requires that a party incur a substantial change in circumstances, based on good faith reliance on some government act or omission. In Maryland, our strict version of the vested rights rule severely narrows those requirements. The rule provides, in effect, that a landowner may rely on nothing other than a properly-issued permit, and that a substantial change in circumstances will not be found unless the landowner begins actual, above-ground construction.

In other jurisdictions, the contrast between vested rights and Heeter’s definition of zoning estoppel is less distinct. Many states, for example, do not require actual construction. Thus, a landowner who incurs “substantial” or “considerable” expenses in good-faith reliance on certain government actions acquires a vested right to existing zoning and may complete ⁷²⁶ the project notwithstanding subsequent changes in the zoning regulations. See, e.g., Town of Paradise Valley v. Gulf Leisure Corp., 27 Ariz.App. 600 , 557 P.2d 532, 540 (1976) (reliance on valid permit); Pioneer Trust and Savings Bank v. County of Cook, 71 Ill.2d 510 , 17 Ill.Dec. 831, 836-37 , 377 N.E.2d 21, 26-27 (1978) (reliance on probability that a permit will be issued); Life of the Land, Inc. v. City Council of Honolulu, 60 Haw. 446 , 592 P.2d 26, 35-36 (1979) (reliance on official “assurances” that project complied with zoning regulations”).

Compare Washington Suburban Sanitary Comm’n v. TKU Assocs., 281 Md. 1, 23 , 376 A.2d 505 (1977) (“merely to allege large expenditures without actual construction on the site cannot vest zoning rights”); Steuart Petroleum, 276 Md. at 444 , 347 A.2d 854 ; Ross v. Montgomery County, 252 Md. 497 , 250 A.2d 635 (1969). In Georgia, a landowner has a vested right to develop his or her property pursuant to a validly-issued permit, “notwithstanding the fact that there has been no substantial expenditure of funds in reliance upon the building permit.” WMM Properties, Inc. v. Cobb County, 255 Ga. 436 , 339 S.E.2d 252, 254 (1986). In other states, a landowner acquires a vested right to proceed under existing zoning regulations when a proper application for a building permit has been filed. See Smith v. Winhall Planning Comm’n, 140 Vt. 178 , 436 A.2d 760, 761 (1981); Allenbach v. City of Tukwila, 101 Wash.2d 193 , 676 P.2d 473, 474-75 (1984) (en banc).

Compare County Comm’rs v. Arundel Corp., 82 Md.App. 418, 428 , 571 A.2d 1270 (1990), vacated on other grounds, 323 Md. 504 , 594 A.2d 95 (1991) (holding that an application for a building permit does not