Rockville Fuel and Feed Co. v. City of Gaithersburg

Barnes, J., delivered the opinion of the Court. In Rockville Fuel and Feed Co. v. Board of Appeals of Gaithersburg, 257 Md. 183 , 262 A. 2d 499 (1970), we decided that under the applicable zoning ordinance of the City of Gaithersburg, the appellant in the present case, ¹¹⁹ Rockville Fuel and Feed Company, Inc. (Rockville Fuel or Plaintiff), was entitled to have its application for a special exception to construct and operate a concrete batching plant on its 3.6069 acre tract of land in Gaithersburg located in an 1-2 zone (Heavy Industrial), there being no sufficient evidence before the Board of Appeals to justify the denial by it of the application. After our decision, the Mayor and Council of Gaithersburg enacted a text amendment to the Gaithersburg zoning ordinance which removed the “concrete or cement products manufacture” use as a permitted use in the 1-2 zone and placed that use in the prohibited uses in that zone. Rock-ville Fuel, having been denied a permit to proceed with the construction and operation of its proposed concrete batching plant because of the provisions of the text amendment, filed a suit in equity for declaratory relief and an injunction seeking a declaration of its right “to construct and use the proposed concrete batching plant as set forth in Special Exception Case A-113 and that, as ancillary relief, the Court enter an injunction in this proceeding enjoining the City, its agents, servants and employees from interfering with Plaintiff in his [sic] pursuit of a building permit and subsequent construction and use of the proposed plant, in accordance with the Special Exception granted to the Plaintiff in case No. A-113.” The new suit was heard before the Circuit Court for Montgomery County (Levine, J.) on October 14, 1971.

Substantially all of the relevant facts were the subject of a stipulation by counsel for the parties and legal memoranda were submitted by them. Judge Levine filed a well-considered and helpful opinion on December 22, 1971, with an order declaring, inter alia, “that the denial of a site plan and building permit for the construction of a concrete mixing plant was not illegal.” From this order, Rockville Fuel took a timely appeal to this Court. Judge Levine has stated the facts of the present case so well in his opinion that we shall use his statement of the facts in this opinion. Judge Levine stated: “Rockville Fuel is the owner of a 3.6069 acre ¹²⁰ tract of land within the City of Gaithersburg located on the site of the old Thomas cannery on Chestnut Street adjacent to what is known as the Federline Apartments; however, the site is probably better known for its position at one of the principal entrances to the agricultural grounds, scene of the annual county fair.

At all relevant times the property has been zoned 1-2 (heavy industrial) as defined by the Gaithersburg Zoning Ordinance. Similarly, the most recent master plan of zoning adopted by Gaithersburg on February 4, 1970, recommends that the subject property be used for commercial-industrial purposes. “The property was purchased by the Plaintiff in March, 1967, at a cost of $375,000, for the exclusive purpose of building the concrete plant. On March 25, 1968, the Plaintiff filed an application for a special exception pursuant to the zoning ordinance which then included such plants as one of the permitted uses in the 1-2 zone. The Board of Appeals for the City of Gaithersburg on December 10, 1968, denied the request for the special exception.

From that decision, an appeal was taken to this Court which affirmed the denial. Thereafter, the decision of this Court was appealed to the Court of Appeals of Maryland which on March 4, 1970, filed its opinion reversing this Court and remanding the case for further proceedings in accordance with its opinion. Rockville Fuel and Feed v. Board of Appeals, supra. The Court of Appeals held that the application for the special exception had been wrongfully denied and that the Board should grant the application upon remand on such conditions and safeguards as might then be appropriate under the existing ordinance and the evidence adduced before it. “At their next meeting following the decision ¹²¹ of the Court of Appeals held on March 16, 1970, the Mayor and Council of Gaithersburg adopted a resolution instructing the City Manager to file a zoning text amendment, the sole purpose of which was the deletion of ready-mix concrete plants as a permitted use in the 1-2 zone and their inclusion as a prohibited use.

This action was taken under circumstances which would reasonably permit an inference that but for the outcome of the case before the Court of Appeals, no such resolution would have been proposed. This follows not only from the timing, which was hardly coincidental, but also from the minutes of that meeting and the court testimony of James W. Hane, a member of both the City Council and the Board of Appeals at the time of the resolution. “On the following day, the City Manager, acting pursuant to the aforesaid resolution, caused an application for a zoning text amendment to be filed that had as its sole purpose the elimination of ready-mix concrete plants as permitted uses in the 1-2 zone, and their inclusion in the list of prohibited uses. “On March 25, 1970, the Plaintiff filed a site-development plan application in accordance with the requirements of the zoning ordinance. This application required the approval of the City Planning Commission prior to the issuance of a building permit. Pursuant to the mandate of the Court of Appeals issued on April 3, 1970, the Board of Appeals on April 9, 1970, adopted a resolution granting the Plaintiff’s application for a special exception.

On April 15, 1970, the Planning Commission conducted a public hearing on the zoning text amendment which was proposed for the purpose of deleting ready-mix concrete plants. At that same meeting, the Planning Commission also considered Plaintiff’s ap ¹²² plication for the site-development plan and gave it preliminary approval. On May 1, 1970, the Plaintiff attempted to file an application for a building permit to construct the proposed batching plant, but said application was refused because final site-plan approval had not been obtained. “On May 4, 1970, the Mayor and Council conducted a public hearing on the proposed zoning text amendment. The City Planning Director was the only witness in favor of it and counsel for the Plaintiff was the only witness who testified in opposition thereto.

Immediately following the hearing, a pre-prepared resolution granting the application was produced which was adopted. Immediately upon its adoption, it was declared to be an emergency measure, thereby causing it to take effect immediately upon approval by the Mayor rather than twenty days thereafter. 1 In an exchange which took place at that time, it was revealed that no pre-prepared resolution denying the text amendment had been produced or made available; and in response to a request from Plaintiff’s counsel, no specific reason for the emergency was given. On May 5, 1970, the Mayor approved the ordinance granting the zoning text amendment. “On May 6, 1970, the Planning Commission conducted a public hearing on the Plaintiff’s site-plan application and disapproved the plan on the basis of the action taken on the preceding day by the Mayor in approving the zoning text amendment to the ordinance. Following preliminary approval given to the site-plan application on April 15, 1970, the Plaintiff had filed amended plans that complied with the re ¹²³ quests of the Planning Commission made on April 15, and hence the amended plans were ready for final approval at the meeting of May 6.

As a consequence of the Mayor’s approval of the zoning text amendment to the ordinance, concrete mixing plants have not been permitted in the City of Gaithersburg since May 5, 1970. “On May 19, 1970, the Plaintiff filed a timely appeal from the disapproval of the site plan with the Board of Appeals, alleging inter alia that it was arbitrary, capricious, unlawful and unconstitutional. No action has ever been taken on that appeal nor has a building permit ever been issued to the Plaintiff. “The Plaintiff asserts three basic contentions: (1) that Rockville Fuel had by reason of the Court of Appeals decision acquired a vested right to ‘operate a concrete batching plant’ which cannot be defeated by the adoption of the amendment to the ordinance; (2) that the ordinance amendment is unconstitutional as applied to the Plaintiff, in that it was not general legislation, but was aimed solely at Rockville Fuel, and that by being applied retrospectively to the Plaintiff, denied it due process and equal protection of the law in violation of the Fourteenth Amendment to the Federal Constitution; and (3) that Gaithersburg was estopped from taking any action denying to the Plaintiff the right to operate the concrete mixing plant.” Rockville Fuel makes the same three contentions before us as it made before the lower court and we will consider them in the order indicated. (1) Rockville Fuel earnestly argued below and before us that the amendatory ordinance cannot constitutionally impair its “vested right” to construct and to operate a ¹²⁴ concrete batching plant resulting from our decision in Rockville Fuel v. Board of Appeals, supra. Unfortunately for it, our prior decisions and those of our predecessors indicate that Rockville Fuel has no such “vested right.” In The Richmond Corporation v. Board of County Commissioners for Prince George’s County, 254 Md. 244 , 255 A. 2d 398 (1969), we reviewed the Maryland and the general law in regard to “vested rights” in an existing zoning use and stated: “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 devoted to that use.” ( 254 Md. at 255-56 , 255 A. 2d at 404 .) It is clear that even the obtention of a building permit in furtherance of a then permitted zoning use does not create a “vested right” constitutionally insulated against a change in the zoning ordinance forbidding the particular use.

Ross v. Montgomery County, 252 Md. 497 , 250 A. 2d 635 (1969). In Ross , in which the landowner had a building permit to construct a then permitted apartment hotel and had poured one footing for the building in an attempt to retain the building permit, but later filled in the excavation, we held that the landowners had acquired no “vested right” protecting the proposed use against a subsequent amendment to the applicable zoning ordinance and stated: “ ‘It is idle to say that the issuance of the building permit created a vested right that would render inoperative the Zoning Regulations * * ( 252 Md. at 505 , 250 A. 2d at 640 .) ¹²⁵ We cited with approval and followed the prior decisions of this Court in Board of County Commissioners of Anne Arundel County v. Snyder, 186 Md. 342 , 46 A. 2d 689 (1946) and Mayor and City Council of Baltimore v. Shapiro, 187 Md. 623 , 51 A. 2d 273 (1947) and also quoted, with approval, from 2 Rathkopf, The Law of Zoning and Planning (3rd ed.) Ch. 57, § 3, at 57-6 to 57-7, as follows: * * The majority rule, which can be synthesized from the multitudinous decisions in this area, may be stated as follows: A landowner will be held to have acquired a vested right to continue the construction of a building or structure and to initiate and continue a use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations. * * *’ ” ( 252 Md. at 506 , 250 A. 2d at 640 .) In Malmar Associates v. Board of County Commissioners for Prince George's County, 260 Md. 292 , 272 A. 2d 6 (1971), the landowner had planned the construction of an apartment project in three sections. One section had been completed when the zoning ordinance was amended to require a special exception to permit the number of two and three bedroom apartments in any apartment building to exceed certain percentages. The owner obtained such a special exception for the second section.

When the zoning text amendment was adopted, the owner had expended $118,542.20 for surveys, soil tests, architectural designs and engineering work on the third section for which 442 bedrooms were proposed. The text amendment reduced that number to 367 without a special exception. The special exception was denied and the owner contended that its investment gave it a vested ¹²⁶ right to a permit for an apartment building containing 442 bedrooms. In sustaining the validity and effectiveness of the text amendment as it applied to the third section, we cited with approval and followed Richmond, supra.

See Ross, supra; Mandel v. Board of County Commissioners, 238 Md. 208 , 208 A. 2d 710 (1965) ; and, Shapiro and Snyder , both supra. We also quoted with approval from 2 Rathkopf, The Law of Zoning and Planning (3rd ed.) Ch. 57, § 1, at 57-2 to 57-4, as follows: “It is generally held that neither the filing of an application for a building permit nor the issuance of a building permit, although valid and issued in conformity with the provisions of the zoning ordinance, alone confers any rights in the applicant or permittee as against a change in the zoning ordinance which imposes further limitations upon the use or structure proposed. As a matter of dicta, some courts have stated that the amendment of the ordinance constitutes, ipso facto, a revocation of any permit for a use or structure prohibited by the amendment. “Where the landowner has done nothing subsequent to obtaining the permit, he is usually held to be bound by any change in the zoning ordinance even if its effect is to nullify the permit.” ( 260 Md. at 309 , 272 A. 2d at 15 .) In the instant case, although the special exception was granted as required by our mandate in Rockville Fuel v. Board of Appeals, supra, no permit was ever obtained by Rockville Fuel and, of course, no construction was begun. The authorities cited clearly indicate that Rockville Fuel had obtained no “vested right” to construct and operate a concrete batching plant on its Gaithersburg land.

Rockville Fuel seeks to distinguish the prior Maryland cases already mentioned on the ground that its right to have the special exception granted had been de ¹²⁷ termined by this Court and this determination gave it a “vested right” to construct and operate the proposed concrete batching plant. This contention is, in our opinion, without merit. Our prior decision determined that the Board of Appeals should grant the special exception with appropriate conditions under the law then existing and this the Board of Appeals did as required by the mandate. No “vested right” was conferred upon Rockville Fuel by this action.

Such a “vested right” could only result when a lawful permit was