Richmond Corp. v. Board of County Commissioners

Barnes, J., delivered the opinion of the Court. The appellee, the Board of County Commissioners for Prince George’s County, sitting as a District Council (District Council), denied the applications of The Richmond Corporation, appellant, for special exceptions (a) for a gasoline filling station in a C-l (local commercial) zone and (b) for an automobile parking compound in an R-R (rural residential) zone on a tract of land bounded in part by Riggs Road, Powder Mill Road, Metzerott Road and Adelphi Road in Prince George’s County. The Circuit Court for Prince George’s County (Meloy, J.) sustained the District Council’s action and from the order of that court affirming the action of the District Council, the present appeal was timely taken. The subject property consists of approximately eight acres of land.

The northerly and westerly boundaries front on both Powder Mill Road and Riggs Road for an approximate distance of 1050 feet, divided .almost evenly between the frontage on the two roads which curve into each other along the subject property. On the northeast, the property is bounded by Adelphi Road for an approximate distance of 120 feet; on the south, by Metzerott Road for an approximate distance of 690 feet; and, on the east, for an approximate distance of 615 feet by properties not owned by Richmond. Approximately one-half of the subject property (the northerly half) is zoned C-l for commercial use and is presently improved with a drug store, á High’s store and a “7-11” store. Several other commercial buildings are proposed for construction.

The southerly half of the subject property is zoned R-R. Richmond assembled the whole tract by the purchase of ²⁴⁷ six separate parcels of land. It purchased the land zoned C-l in March of 1961, and two other parcels during that year. It acquired one parcel in May 1963 and the last parcel on June 24, 1966, completing the assembling of the land on that date. Its investment in the subject property was approximately $400,000.00.

Subsequent to the completion of the assembling of the land in 1966, Richmond filed an application (No. A-5314) to change the then existing residentially zoned land to the C-2 zone. The District Council had a hearing on this application on November 23, 1966, took testimony and continued the hearing to a later date. The hearing was resumed on January 18, 1967, and the matter was taken under advisement by the District Council. The District Council denied this application on May 16,1967.

After this action on May 16,1967, by the District Council, Richmond had its development plans redrawn and renegotiated its leases for the shopping center to be constructed. These plans were drawn in order to use the land zoned R-R as a parking lot in connection with the proposed shopping center to be erected on the land zoned C-l, which at that time was a permitted use of R-R land under the Prince George’s County Zoning Ordinance. On October 3, 1967, however, an ordinance was duly passed which required that a special exception be obtained in order to use residentially zoned land adjacent to land zoned commercial as a parking compound. Thereafter, on October 24, 1967, Richmond prepared four applications for special exceptions as follows: Zoning number Zoning of application classification Proposed use No. 1648 C-l Automobile Filling Station No. 1649 C-l Theater No. 1650 R-R Automobile Parking Compound Dry Cleaning Plant — Retail No. 1651 C-l ²⁴⁸ These applications were received by the District Council on November 20, 1967.

The subject property was inspected by the zoning inspector of the County’s Department of Inspections and Permits on December 4, 1967, and the Department reported to the District Council on December 8, 1967. It recommended favorable consideration of Application No. 1648 (for the filling station), upon certain stipulations. In regard to Application No. 1650 (for the automobile parking compound) it stated that unless the three special exceptions requested by Richmond were granted “there would be no apparent need for the parking compound.” If there were approval of the special exception for the parking compound, the Department recommended submission to the Maryland-National Capital Park and Planning Commission (Planning Commission) within 30 days for approval, plans for the erection of a fence, planting of adequate shrubbery or screen planting, etc. ,. ■ On January 12, 1968, the Planning Commission reported to the District Council in regard to all four applications which it had considered as a group. The report stated in relevant part: “Although the automobile filling station is proposed to be located on the same commercially zoned parcel, its site plan and eventual development does not depend upon the remainder of the proposed commercial shopping center.

As a result, the Planning Board voted to recommend the approval of the automobile filling station in accordance with Section 28.317 of the Prince George’s County Zoning Ordinance, subject to the submission of a satisfactory site plan. “We discussed at considerable length the implications of the proposed use of a large tract of land zoned for residential use for commercial parking in conjunction with the proposed shopping center. The site plan, as submitted, indicates the dependence of the proposed shopping ²⁴⁹ center upon the residential land for parking. The Planning Board, after the discussion, voted to recommend the denial of the Automobile Parking Compound citing the following reasons: “1. The application is not in accordance with Section 28.2(a), (b), of the Prince George’s County Zoning Ordinance, which refers to the General Provisions for Special Exceptions. “2.

The application implies the circumvention of the zoning and land use pattern by effectuating the enlargement of 3.3 ± acres of commercially zoned land to over 8 acres of commercial use in reality. “3. Commercial traffic from this center should be oriented to Riggs and Adelphi Roads, as proposed on the Master Plan, not Metzerott Road. “4. This application is in direct conflict with the decision of the District Council concerning a commercial zoning request (Zoning Map Amendment Petition A-5314) which was denied on May 16,1967. “As a result of the dependence of the automobile parking compound and the overall site development plan of the proposed center, the Special Exception Applications for the Retail Dry Cleaning Store and Plant and the Theatre are not recommended as submitted. The Planning Board voted instead to recommend that these applications have their site plans revised to incorporate all parking requirements within the commercially zoned land at which time, and only then, be considered in accordance with Sections 28.3221 and 28.339 respectfully [sic] of the Prince George’s County Zoning Ordinance.” All four applications came before the District Council on January 17, 1968, were consolidated for hearing and after a hearing, all of the applications were denied.

At the hearing, a representative of Safeway Food ²⁵⁰ Stores testified for Richmond that Safeway had negotiated a lease with Richmond for 22,500 square feet of building space in a portion of the northern one-half of the subject property zoned C-l; that a study of the area made by Safeway indicated that within a one mile trading area the population was just under 12,000 persons as of 1967 and was estimated to be 15,000 in another three years; that the lease was contingent upon approval of the plans and specifications including those for the parking compound; and, that if the parking compound were unavailable, Safeway, would not be interested in going forward with the lease. Various expert witnesses testified for Richmond in regard to the suitability of the subject property for commercial development and the need for such development in view of the growth of population in the area. They testified that it was necessary to provide parking for the contemplated commercial construction and that, with the straightening of Adelphi Road there was a good traffic pattern. A representative of the Texaco Oil Company testified that the proposed gas station would not generate any other traffic patterns than those presently existing; that there was no service station within three miles from the subject property going north on Riggs Road and in the other direction, there were no service stations within a mile and one-half; that going west on Metzerott Road there was no service station until one reached New Hampshire Avenue over two miles away; and, that going northeast or southwest on Adelphi Road there were no service stations.

He also testified that within a mile of the site for the proposed service station there were 15,000 people and there was a need for a service station at the site. A number of neighboring property owners testified in opposition to the application. They pointed out the adverse effect on the existing difficult traffic situation, the annoyance that would result from the proposed theater, the depreciation in the value of their properties and the adverse impact the proposed commercial uses would have ²⁵¹ upon the one-family dwellings in the neighborhood. They testified that there are three churches in the immediate neighborhood, a Friends’ Meeting House, a Seventh Day Adventist Church and a large Roman Catholic Church, high school and Convent.

Mother Cora testified that the value of the church, high school and convent was approximately $1,000,000 and that the complex would be injured by the increased traffic as well as by the commercialization of the area. The Adelphi Community Association voted unanimously to oppose the applications for the parking compound and for the service station. At the conclusion of the hearing, Commissioner Brooke moved that all four applications be rejected. He stated: “I move that Applications Numbers 1648, 1649, 1650, and 1651 of the Richmond Corporation, requesting special exceptions for an automobile filling station, a theater, an automobile parking compound, and a dry cleaning store-plant (retail), be denied, because of the traffic hazards and conditions that their approval would create.

It would tend to make this parking compound of a commercial nature and one which would face directly into the single-family homes of the neighborhood, having a tendency to destroy their value as well as their usefulness, and that the amount of commercial land that is already there can be used aptly by the owner, who knew full well when he bought it how much it was and what it could be used for; further, that the granting of the special exceptions would tend to destroy a neighborhood that is completely built up with nice homes. Also, that the roads could not be used in the manner which is customary with shopping centers, because Riggs Road is a neighborhood road now and will continue to be so because of the agreement this County has with the State Roads Commission in regard to its rehabilitation. ²⁵² “ (Vice Chairman Francois) I second the motion. In respect to the filling station, we should add that because of the traffic problem involved, we do' not agree with the favorable recommendation of the Park and Planning Commission. “(Commissioner Brooke) I accept that amendment to my motion.” The motion passed unanimously; Commissioner Aluisi not being present, did not vote. The appeal to the Circuit Court was taken only in regard to the denial of Applications No. 1648 (automobile filling station), No. 1650 (automobile parking compound) and No. 1651 (dry cleaning plant-retail).

The denial of Application No. 1649 (theater) was not appealed and therefore was abandoned. As we have indicated, the trial court affirmed the order of the District Council on Applications Nos. 1648, 1650 and 1651 and filed a written opinion giving its reasons for its conclusions. The trial court’s ruling on Application No. 1651 (dry cleaning plant-retail) was not mentioned' in Richmond’s brief or at the argument, so that the denial of this application is also abandoned by the appellant. Harmon v. State Roads Commission, 242 Md. 24, 28-32 , 217 A. 2d 513, 515-17 (1966); Bishop v. Board of County Commissioners of Prince George’s County, 230 Md. 494, 500 , 187 A. 2d 851, 854 (1963).

Only the denial of the filling station and parking compound applications are before us on this appeal. Richmond makes two contentions before us: 1. The trial court erred in not holding that Richmond had a vested right in the use of the proposed parking compound. 2. The trial court erred in not holding that the denial of the special exceptions for the proposed parking compound and the proposed service station was unreasonable, arbitrary and capricious.

In our opinion the trial court did not err in either regard and its order of August 23, 1968, shall be affirmed. ²⁵³ (1) In its argument in support of its contention that it had a vested right to use the R-R zoned land as a parking compound, Richmond points out that prior to October 3, 1967, when the zoning law was amended to require a special exception, it had a lawful right to use that land as a parking compound in connection with its adjacent commercially zoned property. Richmond claims that it relied upon the right to this use by expending large amounts of money in assembling the tract. Further relying on this right, after its application to rezone the land to C-2 had been denied on May 16, 1967, Richmond proceeded to change its position in a material and expensive way by preparing plans, leases, and specifications for the erection of a shopping center on the C-l land, with the adjacent R-R land to be used for the permitted parking purposes. It also argues that, but for the delay by the District Council in deciding the zoning case in Application No. A-5314 for the C-2 zoning (approximately six months), Richmond would have perfected its plans and would have had its building permit prior to the enactment of the new ordinance on October 3, 1967, and that if the application for the special exceptions for a parking compound should be denied by the District Council, Richmond could not build the shopping center.

Chief Judge Hammond, for the Court, aptly stated in the recently decided case of Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59 , 254 A. 2d 700 : “A property owner has no vested right in the continuance of the zoning status of his or neighboring property, merely the right to rely on the rule that a change will not be made unless it is required for the public good. Wakefield v. Kraft, 202 Md. 136, 144 .” In Mayor and City Council of Baltimore v. Shapiro, 187 Md. 623 , 51 A. 2d 273 (1947), the land owners had acquired a property on Frederick Avenue in Baltimore ²⁵⁴ City consisting of approximately 141/2 acres, unimproved except for four buildings fronting on Frederick Avenue on April 28, 1941, for the purpose of using the unim-' proved portion of the tract for the sale of used cars, used parts and for the dismantling of used cars. The tract at that time was in a second commercial use district in which the proposed use was allowed. On June 18, 1941, the owners applied for a permit for the use mentioned and obtained a permit for that use on July 2, 1941.

Except for casual and sporadic activity, the tract was not used for the purpose mentioned in the permit prior to December 12, 1941, when the Baltimore City Zoning Ordinance was amended to prohibit “automobile dismantling, salvaging or wrecking yard, and yard for the dismantling and salvaging of automobile parts.” The Board of Municipal and Zoning Appeals sustained the Zoning Commissioner who revoked the permit, but this decision of the Board was reversed by the Baltimore City Court which held that the permit of July 2, 1941, was “valid and subsisting.” In reversing the order of the Baltimore City Court and reinstating the order of the Board holding that the permit was invalid and properly revoked, Judge (later Chief Judge) Henderson, for the Court, stated: “As against this evidence, residents testified that no cars were ever dismantled on the lot. While this negative evidence is not entitled to much weight (Heath v. Mayor and City Council of Baltimore, 187 Md. 296 , 49 A. 2d 799, 803 ), it shows that the activity failed to meet the test of being ‘known in the neighborhood.’ Accepting the evidence produced by the appellees at its face value, the activity appears to have been merely preliminary or casual. Neither the existence of a plan (Chayt v. Board of Zoning Appeals, supra) nor the purchase of property and the expenditure of money for grading (Knox v. Mayor and City Council of Baltimore, supra; Board of Com’rs of Anne Arundel County v. ²⁵⁵ Snyder, 186 Md. 342 , 46 A. 2d 689, 692 ) are sufficient to show that the business was established or existing. The mere issuance of a permit, where the permittee has not commenced the work or incurred substantial expense on the faith of it, does not create a vested right, or estop the municipal authorities from revoking it.

Board of Com’rs of Anne Arundel County v. Snyder, supra; Geneva Inv. Co. v. St. Louis, 8 Cir., 87 F. 2d 83 , certiorari denied 301 U. S. 692 , 57 S. Ct. 795 , 81 L. Ed. 1348 ; Brett v. Building Commissioner of Brookline, 250 Mass. 73 , 145 N. E. 269 ; and see Note, 138 A.L.R. 500 , and cases there cited. After the adoption of the amendment, the issuance of a new permit, for a non-conforming use, would be nugatory and void. Lipsitz v. Parr, 164 Md. 222 , 164 A. 743 .” (187 Md. at 634-35, 51 A. 2d at 279 .) In our opinion the Shapiro case is dispositive of the first contention of Richmond.

In Shapiro , the land owners had not only purchased the tract for the express purpose of engaging in a permitted use under the provisions of the existing zoning law, but they had actually applied for and received a permit to engage in that permitted use some five months prior to the amendment of the zoning ordinance prohibiting the use. In the present case, no permit was applied for and no permit was issued. Nothing was done on the land involved in this case which would give notice to the neighborhood that a parking use was, or would be, made. In Maryland it is established that in order to obtain a “vested right” in the existing zoning use which will be constitutionally protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must (1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is being de ²⁵⁶ voted to