Remes v. Montgomery County

CATHELL, Judge. In this case, David H. Remes, petitioner, owner of a home located in Silver Spring, seeks to establish whether directly-adjacent property, which formerly was owned by Jonathan C. Duffie, and was later transferred by Mr. Duffie to Design-Tech Builders, Inc. (“Design-Tech”), respondent, is deemed to have merged for zoning purposes under the common-law ⁵⁶ principles described in Friends of the Ridge v. Baltimore Gas & Elec. Go., 352 Md. 645 , 724 A.2d 34 (1999). Under the circumstances of this case, the Court is called upon to determine if Design-Tech was properly granted a building permit by the Montgomery County Division of Permitting Services (“DPS”) and whether the Montgomery County Board of Appeals (“the Board” or “the County”), respondent, properly interpreted the relevant provisions of the Montgomery County Code, Subdivision Regulations, and Zoning Ordinance in respect to the issuance of a building permit.

Our review shall address the following questions: 1. Did the Montgomery County Board of Appeals correctly rule that two contiguous lots had not undergone a zoning merger and a building permit for one of the lots was, therefore, properly issued? 2. Did the Montgomery County Board of Appeals correctly find that a single-family dwelling proposed to be built on one lot did not exceed the height requirements of the Montgomery County Zoning Ordinance? 1 We hold that the Board of Appeals incorrectly failed to find that Lot 11 and Lot 12 had merged for zoning purposes. Because we hold that there occurred a zoning merger of Lot 11 and Lot 12 notwithstanding the provisions of Montgomery County Code § 50-8, it is unnecessary to reach a determination whether the Board properly approved a cellar as a non-counting story in calculating the permissible height of the applicant’s proposed single-family dwelling. 2 ⁵⁷ I. Facts and Procedural History This case involves property in the Woodside Park neighborhood of Silver Spring, Maryland, consisting of several parcels created by a 1945 subdivision and located in an R-60 zone which allows single-family detached residential homes.

The primary parcels at issue, as originally laid out in the subdivision, are Lot 12, a corner lot with access both to Noyes Drive toward the north and to Fairview Road toward the east, acquired by husband and wife, Ralph J. Duffie and Violette P. Duffie (“elder Duffies”) in 1951 on which they constructed their home, and its westerly adjacent neighboring lot, Lot 11, acquired by the elder Duffies in 1954. A semi-circular driveway serving the home on Lot 12 was constructed by the Duffies over and through both Lot 11 and Lot 12. A Montgomery County Department of Permitting Services permit card, found among DPS’ records, indicates that a building permit was also issued in June 1959 to the elder Duffies, for construction of a swimming pool 3 on Lot 11 as an accessory use to their home on Lot 12, and a building permit was issued to the Duffies in October 1963, presumably for the construction of an addition to the Lot 12 home. At the time of its original construction around 1951, the Lot 12 home had the required seven-foot 4 side yard setback and twenty-foot rear yard setback.

The 1963 addition extended thirteen feet into the twenty-foot rear setback. This construction changed the ⁵⁸ side and rear yards of Lot 12, resulting in encroachments into the setback requirements on the Lot 11 side of the house. Following the deaths of Violette Duffie in 1988 and Ralph Duffie in 1999, their son, Jonathan C. Duffie, (“Mr. Duffie”), as Personal Representative of the latter’s estate, deeded the property to himself. This “Personal Representative’s Deed,” dated August 31, 2001, describes the subject property, in relevant part, as follows: “Lot numbered eleven (11) and twelve (12) of a resubdivision of original Lot numbered two (2) in Block lettered ‘A-2’ of the subdivision known as ‘Woodside Park’, as per plat of said resubdivision recorded in Plat Book 26, folio 1614, in the Land Records of Montgomery County, Maryland. “The improvements thereon being known as 8920 Fair-view Road.” Apparently, up until the 2003 request to separate Lot 11 and Lot 12 for tax assessment purposes, both lots had been assessed as one lot under the single address of 8920 Fairview Road.

More important even is that the use of the swimming pool on subdivision Lot 11 was initially described as an accessory structure to the house on Lot 12, and remained in that status at least through the 2001 reassessment. Accordingly, at least in 1959, the relevant governmental officials considered the swimming pool on Lot 11 as an accessory use to the structure on Lot 12. At that time the Montgomery County Zoning Ordinance defined accessory use as “a use of a building, lot, or portion thereof, which is customarily incidental and subordinate to the principal use of the main building or lot.” See Montgomery County Zoning Ordinance (1958) § 107-2, Definitions. In 1960, and since, the definition was changed to read “building lot, or portion thereof.” Even after the 1960 amendment, which deleted the comma between building and lot, the relevant governmental officials continued to treat the swimming pool as an accessory use to the home on Lot 12. ⁵⁹ On December 10, 2002, DPS, the agency, one of whose functions is to determine whether a proposed development complies with the zoning ordinance, 5 issued to Design-Tech Builders, Inc., respondent, a building permit for construction of a single-family dwelling on Lot 11, Block A-2, Woodside Park, 1102 Noyes Drive, Silver Spring.

At that time Design-Tech was not the owner of the lot. On January 8, 2003, petitioner noted an “Appeal Charging Error in Administrative Action or Determination” to respondent Montgomery County Board of Appeals asserting that DPS had issued erroneously a building permit for 1102 Noyes Drive/8920 Fairview Road for the following reasons: “1. The permit authorizes construction of a second building on a single lot, in violation of Code § 59-A-5.2. 2. The permit authorizes construction of a building that violates the building height limitation of Code § 59-C-1.327(a), in that (a) the height is greater than 35' when measured along the average elevation of the front of the building; and (b) the height exceeds 2/6 stories, in that the lowest level is a basement (and therefore a story), not a cellar, as those terms are defined in the Code, § 59-A-2.1.” Mr. Duffie executed a deed dated January 15, 2003, to convey Lot 11 to Design-Tech and this transfer was recorded in the Land Records of Montgomery County on January 30, 2003.

Design-Tech intended to build on the property a single-family dwelling, similar to that which it had constructed on at least thirteen other lots in the locality. Following this transfer, the respondents requested that the Maryland Department of Assessments and Taxation reassess the parcel as two separate lots. The lots had been assessed and billed as a single account since at least 1974. The Department then requested that Mr. Duffie and Design-Tech provide appropri ⁶⁰ ate information in order that Lot 11 could be assessed separately.

Petitioner (and his wife) filed a Complaint for Declaratory and Injunctive Relief in the Circuit Court for Montgomery County on January 29, 2008, seeking to declare Lot 11 and Lot 12 merged and seeking also to rescind the sale of Lot 11 from Mr. Duffie to Design-Tech, and enjoin any further sale of Lot 11. This declaratory judgment action was stayed during the pendency of the administrative appeal before the Board of Appeals. The Board of Appeals held hearings on Mr. Remes’ appeal of DPS’ issuance of a building permit, in which Design-Tech intervened, on February 26 and March 5, 2003. After hearing the testimony of several witnesses, the Board issued a written opinion on May 29, 2003, denying the administrative appeal and concluding that Lot 11 and Lot 12 had not merged.

In its conclusions of law, the Board of Appeals stated, inter alia: “Lot 11 is a properly recorded lot, which is independent of Lot 12. [Petitioner] argues that Lots 11 and 12 merged into one lot, while DPS and Design-Tech argue that Lots 11 and 12 were complementary but independent lots. The Board agrees with DPS and Design-Tech. Although [petitioner] did establish that the Duffies may have intended to treat Lots 11 and 12 as one single lot, the Board does not agree that their intentions are determinative of the issue.” [Alterations added.] The Board then quoted extensively from Design-Tech’s Memorandum of Law: “ ‘Montgomery County has codified the procedures for the formal combination, assembly or other “merger” of already recorded lots (or unrecorded parcels) in Chapter 50 of the Montgomery County Code. The procedure culminates with the recordation of a new plat describing the newly created, “merged” lots to effectuate any assembly.

Lot 11, as shown on the permit plans, is a recorded lot pursuant to a plat recorded in 1945 in Plat Book 26 at Plat Number 1614. Since that time, no additional subdivision or resubdivision ⁶¹ procedures were initiated and no new plat was recorded; therefore, Lot 11 remains a valid subdivided, individual lot with the ability to support a building permit and related residential structure.’ “The Board also believes that [petitioner’s] reliance on Friends of the Ridge v. Balt. Gas & Elec. Company, 352 Md. 645 , 724 A.2d 34 (1999) is misplaced.

In Ridge, the Court of Appeals held that for zoning purposes, adjacent lots held by the same owner could merge by operation of law as a result of the intentions and actions of the owner. But Judge Catthel [sic] stated unequivocally in Ridge that subdivision is not zoning, that zoning ordinances do not create lots, and that the construction of structures over more than one parcel would not affect lot lines. He stated first: ‘We have often held that subdivision is not zoning.’ Ridge, at 648, n. 4, 724 A.2d 34 . He later states: ‘Zoning ordinances ... do not create lots (emphasis in original).’ Ridge, at 651, 724 A.2d 34 .

He finally states: ‘... the construction of structures extending over more than one parcel or lot would not, in our view, affect the boundary lines (or lot lines) of the two parcels. They remain in place until a deed of conveyance or a new subdivision ... is created.’ Ridge, at 661, 724 A.2d 34 . “Unlike Ridge, this is not a zoning variance case, it is a building permit case. The only issue for permit purposes is whether the lot was a properly recorded lot which met the development standards of the zone.[ 6 ] Lot 11 is a properly ⁶² recorded lot, and no plat has ever identified the ‘merger’ of Lots 11 and 12 into a third larger lot. Therefore, based upon the subdivision plat recorded in the land records of this County, we believe that Lot 11 is a properly recorded independent lot.” [Alteration added.] [Bolding original.] [Footnote added.] The Board of Appeals declined Mr. Remes’ request for reconsideration of its decision.

On June 27, 2008, petitioner filed a petition for judicial review in the Circuit Court for Montgomery County of the Board of Appeals’ decision. The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (“MNCPPC”), in its capacity as the general oversight body for the physical development of the Capital region, sought to intervene as an additional respondent in this judicial review and the Circuit Court granted this request on December 17, 2003. Following a March 22, 2004, hearing, the Circuit Court issued an order on April 5, 2004, affirming the Board of Appeals’ decision. On May 6, 2004, petitioner noted an appeal to the Court of Special Appeals.

Before the intermediate appellate court could hear the case, this Court, on its own initiative, issued a writ of certiorari. Remes v. Montgomery County, 384 Md. 581 , 865 A.2d 589 (2005). ⁶³ II. Discussion Much of the debate in the instant case arises from an issue this Court raised, but did not have need to address, in our Friends of the Ridge opinion. Specifically, we there surmised: “An owner of contiguous parcels who erects a structure in what would ordinarily be a setback of one of the individual parcels might, under this doctrine, although we, do not now decide it, also cause a combination of lots thus restricting the future alienability of the unbuilt upon parcel because the conveyance of that parcel would cause the property upon which the structure is built to be in violation of the ordinance.

Such an owner would also risk being forced to bring that parcel into conformity by removing the structure from the setback.” 352 Md. at 658 n. 11, 724 A.2d at 41 n. 11 (emphasis added). While petitioner operates under the belief that Lot 11 and Lot 12 have merged for zoning purposes, the respondents, and specifically Montgomery County, in oral argument, succinctly summarized their position as follows: “Montgomery County asks the Court not to extend the Ridge doctrine in situations where a developer has borrowed open space from an adjacent lot to satisfy setback requirements on the lot being developed. Ridge, in footnote eleven, leaves that issue for another day, and I guess this is the day.” 7 A. Zoning Merger Petitioner grounds his argument that Lot 11 and Lot 12 have “functionally” merged for zoning purposes pursuant to our decision in Friends of the Ridge v. Baltimore Gas & Elec. ⁶⁴ Co., 352 Md. 645 , 724 A.2d 34 (1999), wherein we recognized the existence of the doctrine of zoning merger in Maryland. We described zoning merger to be the merger for zoning purposes of two or more lots held in common ownership where one lot is used in service to one or more of the other common lots solely to meet zoning requirements.

Petitioner argues that Ridge is an equitable doctrine that seeks to prevent lots from being broken up in such a way that would create zoning violations. In Ridge, respondent Baltimore Gas and Electric Company (“BG&E”) sought to increase the capacity of its electric substation. In order to effectuate this expansion, BG&E acquired additional parcels of land contiguous with the parcel on which the existing substation was located and BG&E attempted to create a new resubdivision. It was argued that its attempt to create a formal resubdivision was inadequate.

We did not address that particular controversy, resolving the case on the assumption that no proper formal resubdivision had occurred. BG&E sought and was granted a public utility special exception to operate a larger capacity substation. BG&E also applied for a variance from the side yard setback requirements. In considering BG&E’s request, the Baltimore County Board of Appeals determined that the variance criteria of the Baltimore County Zoning Ordinance did not apply.

In response to the Ridge petitioners’ concerns with the propriety of BG&E’s lot consolidation, we stated that, as to Ridge, “[w]e are concerned here only with the applicability of the zoning ordinance’s variance provisions and not Baltimore County subdivision regulations.” Id. at 649-50 , 724 A.2d at 36 . 8 We sustained the Board of Appeals’ conclusion, reasoning that there was no need for BG&E to obtain a variance from the zoning regulations 9 because BG&E’s intended use of its three ⁶⁵ contiguous parcels as one parcel effectively overcame the conditions triggering the need for a variance. Thus, BG&E was permitted to use the entire parcel for its substation expansion, provided that its proposal met the setback requirements as measured from the exterior property lines of the combined parcel. Specifically, this Court held, “unless the ordinance’s language specifically and clearly prohibits it, an owner of contiguous parcels of real property ... is free to combine them into larger and fewer parcels without violating the zoning code.” Id. at 648 , 724 A.2d at 35-36 . 10 In reaching our resolution, we examined the mechanisms triggering the doctrine of zoning merger in other jurisdictions and observed that merger had been applied to “prohibit[ ] the use of individual substandard parcels if contiguous parcels have been, at any relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard.” Id. at 653 , 724 A.2d at 38 . We also stated: “We see no reason why a doctrine that seeks to prevent the proliferation or use of nonconforming, undersized lots by holding that they have been combined or merged into a larger parcel should not, as far as zoning is concerned, be applied properly to permit the creation, through the combining by use of a larger parcel from already conforming smaller parcels, without the necessity of official action or conveyancing.” Id. at 654 , 724 A.2d at 38 (emphasis added).

The facts of the instant case, as one may suppose, present issues somewhat differently than the facts in Ridge. In Ridge, BG&E, as the “developer,” sought a conclusion that its three lots had merged for zoning purposes so that it might possess a land assemblage of sufficient size, with sufficient setbacks to allow it to enlarge its electricity substation. In ⁶⁶ the case at bar, respondents seek the conclusion that Lot 11 and Lot 12 have not merged, for varying reasons including that informal lot consolidation, according to respondents, is not available other then by formal plat submission in Montgomery County and so that Mr. Duffie might sell Lot 11 to Design-Tech, the “developer,” who seeks to build a single-family dwelling on this piece of land. 11 We indicated in Ridge that merger may be derived from the common owner’s intent, as evidenced by “integrat[ing] or utilizing] the contiguous lots in the service of a single structure or project....” Id. at 658 , 724 A.2d at 40 (alterations added). Intent is to be derived from the facts.

Id. at 659 , 724 A.2d at 41 ; see also Rouse-Fairwood Devel. Ltd. Partnership v. Supervisor of Assessments for Prince George’s County, 138 Md.App. 589, 630 , 773 A.2d 535, 559 (2001); Iannucci v. Zoning Bd. of Appeals, 25 Conn.App. 85, 87 , 592 A.2d 970, 971 (1991) (stating that intent of the owner “may be inferred from his conduct with respect to the land and the use which he makes of it”). In reviewing scenarios from varying jurisdictions, we noted that “[sjome cases discuss automatic merger, but most require that the intent of the owner to merge the parcels be expressed, though little evidence of that intent is required.” Ridge, 352 Md. at 653 , 724 A.2d at 38 . Petitioner contends that, in applying Ridge to the instant case, Lot 11 and Lot 12 remain separate for subdivision purposes, but are combined for zoning purposes.

This is, indeed, a correct articulation of the thrust of zoning merger: zoning merger does not cause a nullification of any subdivision that has previously occurred. It merely consolidates lots insofar as the determination of what can be constructed upon that land, or what uses can be made of it, bearing in mind the requirement that one must comply with zoning requirements including area, setback, etc. “For title purposes, the platted lot lines may remain, but by operation of law a single parcel ⁶⁷ emerges for zoning purposes.” Ridge, 352 Md. at 658 , 724 A.2d at 34 . Respondents urge that merger in Montgomery County may arise only from a formal replatting. Thus, according to the respondents, other indicia of merger such as common ownership, contiguous parcels, use of one or more lots in service of another, offer no evidentiary import and are of little moment in Montgomery County.

They are incorrect. The respondents read this Court’s decision in Ridge as narrowly focused on the realm of zoning, and to this effect, Montgomery County insists that “the Court limited its ruling to the zoning requirements and did not address the subdivision perspective of creating lots.” The respondents’ assertion illustrates a point, that we emphasized in Ridge, and that bears repeating: zoning merger is not a resubdivision. When zoning merger occurs, the lots remain divided. Thus, zoning merger, in effect, is an adjustment of zoning requirements.

It has no effect on subdivision. Title examiners regularly consider aspects of zoning when examining titles in order to be able to indicate to purchasers the uses that can be made of a property. Those uses have no effect on subdivision regulation. One must comply with both zoning and subdivision requirements.

In the present case, the applicant cannot meet zoning requirements because of the doctrine of zoning merger and thus, while Lot 11 may be sold, it cannot be used, absent zoning variances or other zoning relief, if any. Simply because an applicant submits documents articulating plan specifications, engineering details, and a plot diagram showing details of the building to be erected 12 does not ⁶⁸ remove the fact that the instant lot may be part of some larger zoning configuration — a configuration that arose through a common owner’s use of the property, if not through schematics. Each case must be examined on its own. In the case at bar, there is ample evidence to conclude the elder Duffies intended to use their Lot 11 and Lot 12 as one property for zoning purposes: the pool on Lot 11 violates (or violated) the prescribed setbacks from the street and from Lot 12, unless it was dedicated for zoning purposes to Lot 12, and from the time of its creation was thus an accessory use to the structure or use of Lot 12; the additions to the house on Lot 12 encroach upon that lot’s setbacks; the circular driveway traverses both Lot 11 and Lot 12; until very recently the lots were assessed for tax purposes as a single parcel; and the subsequent personal representative’s deed conveying Lot 11 and Lot 12 to Mr. Duffie described a single lot comprised of two lots, in that it reads “Lot numbered eleven (11) and twelve (12).” 13 Thus, petitioner maintains that the building permit for the construction of a single-family dwelling on Lot 11 was issued in error and its issuance violates the current relevant provisions of the Montgomery County Zoning Ordinance, which prohibit a second single-family dwelling on a single lot, as follows: “§ 59-A-5.2.

Buildings to be located on lots. ⁶⁹ Every building hereafter erected shall be located on a lot, as herein defined; and, except as provided in this chapter, there shall be not more than one single-family dwelling on one lot. § 59-A-5.3. Yards and open spaces generally. No building shall be erected, nor shall any existing building be altered, enlarged, moved or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner not in conformity with the yard, lot, area and building location regulations hereinafter designated for the zone in which such building or open space is located, except as otherwise specifically provided. No yard or other open space provided about any building for the purpose of complying with the provisions of this chapter shall be considered as a yard or open space for any other building; and no yard or other open space of a building on one lot shall be considered as a yard or open space for a building on any other lot.” 14 ⁷⁰ B. Montgomery County’s Zoning Ordinance and Subdivision Regulations Montgomery County is somewhat unique in the source and exercise of its municipal authority to regulate the use of land.

As this Court explained in Pan American Health Organ. v. Montgomery County, 338 Md. 214 , 657 A.2d 1163 (1995): “Montgomery County is a charter county under the Home Rule Amendment. See Md. Const. art. XI-A. Section 5 of Maryland Code (1957, [2001] Repl. Vol., []) Article 25A, known as the Express Powers Act, enumerates the powers that are granted to and conferred upon any county that forms a charter under the provisions of the Home Rule Amendment.

Montgomery County’s zoning power, however, derives exclusively from the Regional District Act [enacted by Chapter 448, Acts of 1927]____ [Amended] in 1939 and currently codified in Article 28 of the Maryland Code, creates the Regional District, which now encompasses all of Montgomery County and most of Prince George’s County. Maryland Code (1957, [1997] Repl. Vol., [2001] Cum. Supp.) Art. 28, § 7-103. ⁷¹ The Regional District Act establishes two mechanisms for land use planning.

The first mechanism is through zoning. Under the Regional District Act, the county councils of Montgomery and Prince George’s Counties each serve as ‘the district council for that portion of the regional district lying within [the] county.’ Art. 28, § 8-101(a). Each district council ‘may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text.’ Id. § 8-101(b)(2). Thus, the Montgomery County Council has been designated as the District Council and has broad authority to adopt and amend the text of the zoning ordinance to regulate ‘the location and uses of buildings and structures.’ Art. 28, § 8-101(b)(2)(v).

The second mechanism is known as the mandatory referral process. Under the Regional District Act, the Maryland-National Capital Park and Planning Commission (‘MNCPPC’) is empowered to adopt ‘a general plan for the physical development of the [Regional] District.’ 1939 Maryland Laws ch. 714, § 4, at 1489 (codified as amended at Art. 28, § 7-108). Section 7-112 of Article 28 (the ‘mandatory referral provision’) provides that proposals for certain public projects shall be referred to the M-NCPPC for nonbinding review.” Pan American Health, 338 Md. at 217-18 , 657 A.2d at 1164-65 (footnote omitted) (some alterations added) (some citations omitted). Thus, Montgomery County’s zoning authority arises from the Regional District Act, and is regulated by the provisions of the Montgomery County Code.

The respondents offer two primary objections to Mr. Remes’ contention that Lot 11 and Lot 12 have merged. First, the respondents urge that lot merger, by any method other than formal plat submission, is unavailable according to the Montgomery County Code. 15 Second, the respondents ⁷² maintain that merger is intended to combine substandard, undersized, or nonconforming lots, 16 not to rectify setback encroachments and, because at no time have Lot 11 and Lot 12 been deemed substandard according to any of the iterations of Montgomery County’s Zoning Ordinance development standards, 17 the issue before this Court, according to the respondents, thus, is not one of merger, but rather a question of whether the Montgomery County Department of Permitting Services properly issued a building permit for Lot 11. As a corollary to the latter argument, the County notes that County law, dating back at least to the mid 1950’s “has prohibited the use of an adjoining lot to satisfy zoning setback require ⁷³ ments.... ” Thus, even if the elder Duffies might have imagined that Lot 11 would “absorb” the setback deficiencies by their Lot 11 pool and Lot 12 home additions, the setback requirements delineated in Montgomery County’s zoning ordinance prohibit such adjacent lot encumbrance and Lot 11 never actually fulfilled this role in service of Lot 12. What respondents fail to acknowledge is that the zoning merger that occurred in this case forestalled the creation of a non-conformity on Lot 12.

Without the use of Lot 11 as accessory to Lot 12, the uses of both lots would have violated the zoning ordinance. Mr. Remes urges that Ridge mandates that the owner of Lot 11 and Lot 12 make a choice: either formally combine the parcels so as to enable Lot 11 to satisfy the appropriate setbacks for the structure on Lot 12, or cure the setback deficiencies on Lot 12 and then subdivide the merged Lot 11 and Lot 12. Thus, petitioner argues that the fact that neither Lot 11 nor Lot 12 have ever been deemed undersized is relevant only to the issue of remedy; it has no bearing on whether these are merger-eligible lots. He is correct.

Petitioner further maintains that the Ridge doctrine applies without regard to the positive law of a municipality, ie., what affirmative steps the local subdivision regulations might require in order to recognize a formal zoning merger of lots, because the underlying policy of Ridge seeks to protect zoning requirements, requirements which are separate and apart from subdivision regulations. Again he is correct. As we explained in Ridge, zoning differs from planning; the latter of which embodies the requirements of subdivision. We stated: “Zoning does not create parcels of real property.

What zoning ordinances normally do, with respect to residential districts, is establish dimensional mínimums, such as minimal lot, parcel or tract size, yard sizes (the distance between buildings and property lines), and the height of structures. In addition, such ordinances specify the number of residential units that may be placed upon the area of a tract or ⁷⁴ parcel (density), ancillary requirements such as parking mínimums, bathroom mínimums, and square footage mínimums of buildings. Additionally, zoning ordinances can, to some extent, regulate uses of property, as distinct from dimensional requirements.” Id. at 650-651, 724 A.2d at 37 . Effectively, zoning dictates what one can build on, or how one may use his property while subdivision or planning determines how the land is divided.

It is entirely possible that subdivision regulations are utilized to create separate lots while, at the same time, zoning principles establish limitations on the uses of lots, limitations that can extend across lot lines. The respondents vigorously exhort that zoning merger “by operation of law,” see Ridge, 352 Md. at 658 , 724 A.2d at 40 , is unavailable in Montgomery County. In arguing that Ridge is inapposite, the County states that “[u]nlike Baltimore County, Montgomery County law clearly prohibits subdivision by intent, requiring instead that a property owner submit a plat for recording in the land records to combine or divide land.” The County points to the language of current Montgomery County Code § 50-8, found in the chapter governing subdivision of land, which provides as follows: “§ 50-8. [ ]-Filing and approval of plats. Whenever any subdivision or resubdivision of land is proposed to be made within the district, and before any contract for the sale of or any offer to sell such subdivision is made, or before any development or construction of any building takes place within a subdivision or any part thereof, the subdivider thereof or his agent shall file, in accordance with procedure prescribed in this chapter, a plat of the proposed subdivision with the board for its approval and the approved record plat shall be recorded in the land records of the county, except as provided in section 50-9 [exceptions to platting requirements].” [Alterations added.] Montgomery County further contends that given its “long history of imposing exacting requirements for subdivision, which includes requirements for combining or dividing parcels, ⁷⁵ the doctrine of merger stands diametrically opposed to the clear dictates of County law.” According to the County, then, the owner’s intent — and presumably the owner’s actual use— plays no part in a finding of merger (or resubdivision) unless there has been a formal adjudication by the County’s land use regulatory authority.

In a related argument Design-Tech suggests that the elder Mr. Duffie could not have intended to merge the lots when the common law of this State did not formally recognize zoning merger until such time as the filing of Ridge on February 11, 1999. Specifically, Design-Tech states in a footnote: “Even if this Court were to extend Ridge in favor of [petitioner’s] position in this case, it would be inappropriate to give such a ruling a retroactive application to cover the actions taken by the owner of Lot 11 and Lot 12 in the 1950’s and 1960’s. See, e.g. Julian v. Christopher, 320 Md. 1,10-11 , 575 A.2d 735, 739-40 (1990); Kelley v. R.G. Indus., Inc., 304 Md. 124, 140 , 497 A.2d 1143, 1150-51 (1985) (changes to common law are generally restricted to prospective application).” [Alteration added.] In essence, Design-Tech seems to be arguing that zoning merger, since it is based, in part, on the owner’s intent, must run with the person, and not with the land; alternatively, Design-Tech may be arguing for zoning merger to come into Montgomery County, but only after Design-Tech buys Lot 11 and builds its house, i.e., prospectively.

The facts indicate that the elder Mr. Duffie died on August 16, 1999, and Mr. Duffie (the son) did not convey Lot 11 and Lot 12 to himself until August 31, 2001. There is no indication that, in those intervening two years, there were any changes on Lot 11 or Lot 12 that altered or ameliorated the encroachments or that removed one lot from the service of the other. Thus, technically, there was a period, after Ridge, and before the elder Mr. Duffie’s death, during which the elder Mr. Duffie held both lots. Also, for two years following his death the lots were not yet deeded (by personal representative’s deed) to Mr. Duffie (the son).

During those two years, the ⁷⁶ encroachments (ie., the use of Lot 11 in service of the needed Lot 12 setbacks) remained. In addition, the cases cited by Design-Tech do not support the position of prospective application of the common law. Julian v. Christopher, 320 Md. 1, 10-11 , 575 A.2d 735, 739-40 (1990), was a case dealing with contractual restrictions on the alienability of leasehold interests in which this Court stated: “In appropriate cases, courts may ‘in the interest of justice’ give their decisions only prospective effect. Contracts are drafted based on what the law is; to upset such transactions even for the purpose of improving the law could be grossly unfair.

Overruling prospectively is particularly appropriate when we are dealing with decisions involving contract law. The courts must protect an individual’s right to rely on existing law when contracting. Ordinarily decisions which change the common law apply prospectively, as well as to the litigants before the court.” Design-Tech also cited this Court’s opinion in Kelley v. R.G. Indus., Inc., 304 Md. 124, 161 , 497 A.2d 1143, 1161-62 (1985) (a products liability case prompting changes to Maryland common law tort principles in respect to gun manufacturers’ offering of “Saturday Night Specials”). We stated: “One final matter warrants discussion, namely the effective date of the modification in Maryland common law tort principles which is set forth in Part III of this opinion.

Ordinarily in a case such as this, which changes common law principles applicable to civil actions sounding in tort, we would apply the change to the case before us and prospectively to all such causes of action accruing after the date of the case before us.” Kelley, 304 Md. at 161 , 497 A.2d at 1161-62 (citation omitted). In Kelley , this Court determined