S.E.W Friel v. Triangle Oil Co.

ALPERT, Judge. Appellant, S.E.W. Friel (“Friel”) is endeavoring to protect a food cannery it operates on land adjacent to property upon which the Triangle Oil Co. (“Triangle”) seeks to locate an oil storage facility. The Circuit Court for Queen Anne’s County affirmed the County Board of Appeals' decision approving the issuance of a permit to Triangle, and Friel noted this appeal. Friel presents three questions for our consideration: I. Was the Circuit Court correct in declaring the temporary zoning moratorium, void ab initio because it constituted a taking in violation of the Fifth Amendment to the United States Constitution?

II

Was the moratorium void because it was stated to be effective less than ten days after the adoption hearing, in contravention of Code Article 66B, Section 4.04(a)?

III

Did the Planning Commission and the Board of Appeals fail to independently review the project as ⁹⁹ to surrounding use compatibility and safety as required by the Site Plan Requirements and Review Procedure? FACTS Effective July 16, 1986, Queen Anne’s County adopted a temporary zoning moratorium, called an “Overall Moratorium,” to be in effect while the County completed a revised Comprehensive Plan and Zoning Ordinance (“Plan”). Various environmental factors necessitated the enactment of a new zoning plan. The moratorium was to expire on the earlier of December 31, 1986 or the adoption of the revised Plan, but was later extended to April 14, 1987.

Triangle applied for and was granted an exemption from the moratorium by Resolution No. 44, dated September 8, 1986. The exemption allowed Triangle to file for the permits required to develop an oil storage facility on an 8.5 acre parcel of land on Starr-Grange Hall Road. As grounds for the exemption, the Resolution stated: (1) the development would result in the relocation of an existing facility and would alleviate an existing potential health threat; (2) Triangle had been involved in obtaining permits for this property for over a year prior to the adoption of the moratorium; and (8) the proposed facility would not create additional sewage and was not inconsistent with the proposed Plan. After obtaining the exemption, Triangle applied for and received, over Friel’s objections, site plan approval and ultimately a building permit.

Friel appealed to the Board of Appeals of Queen Anne’s County, which made three findings: (1) Friel, as a third-party non-applicant, has no right of appeal from the Planning Commission’s approval of the Site Plan, but does have standing to appeal the grant of a building permit; (2) the Board of Appeals has no jurisdiction to review the grant of an exemption by the County Commissioners; and (3) inasmuch as the various State agencies, ¹⁰⁰ upon whose expertise the Zoning Board relies, had given their approval to the technical aspects of the safety of Triangle’s proposal, and because the proposed use is permitted by the land’s “M-2" zoning, the Board of Appeals has no authority to deny Triangle’s application on the basis of Friel’s allegation of “incompatibility.” The appeals board, therefore, affirmed the issuance of Triangle’s permit. Friel then appealed to the Circuit Court for Queen Anne’s County. In a Memorandum Opinion and Order dated August 20, 1987, the court agreed with the Board of Appeals and upheld the issuance of the permit. The court also held that the grant of an exemption from the moratorium by the County Commissioners to Triangle was unnecessary because the Overall Moratorium was void ab initio as an unconstitutional taking of property without just compensation.

In response to a Rule 2-534 motion by Friel, on October 27, 1987 the trial court issued a supplemental Memorandum Opinion and Order. This Order addressed Friel’s contention that Triangle’s exemption was ineffective because no publication or public hearing preceded approval of the exemption. The court agreed with Friel that proper notice and hearing had not been given before the exemption was granted. Moreover, the court found that there was no evidence that the County Commissioners complied with the procedure dictated by the moratorium which permits amendments by the County Commissioners that are “based upon the advise [sic] of the Queen Anne’s County Planning Commission and the Planning Director as to the progress in the development of the proposed Master Plan and development regulations.” The court also noted another ground for voiding the moratorium.

The Maryland Code, art. 66B § 4.04 (1988 Repl.Vol.) provides, in part: (a) Authority of local legislative body; public hear ing.—The local legislative body shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, estab ¹⁰¹ lished, and enforced, and from time to time amended, supplemented, modified, or repealed. However, a regulation, restriction, or boundary may not become effective until 10 days after at least 1 public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. The court found non-compliance with this provision of the Code, and explained: Unfortunately, the Overall Moratorium, which can certainly be classified as a “restriction” and also an “amendment,” “supplement” or “modification” to the original Comprehensive Zoning Ordinance as amended to that point in time, was adopted July 15, 1986 to be effective from July 16, 1986. This was less than 10 days after the public hearing held on July 8, 1986 and in contravention of the last mentioned statutory requirement.

The court stated, It can be concluded from these findings that the Court disagrees with the contention of Triangle that the adoption of the Overall Moratorium and Resolution No. 44 are not subject to the procedures prescribed in Code Article 66B and the [Queen Anne’s County Comprehensive Zoning] Ordinance. Nevertheless, these findings did not affect the court’s ruling on Triangle’s behalf on the ground that the Overall Moratorium was unconstitutional and invalid. I. Constitutionality of the Overall Moratorium In its first argument, appellant contends that the moratorium was imposed for the public good, was temporary (lasting less than nine months), and, therefore, did not constitute a “taking” of private property without just compensation. In Ungar v. State, 63 Md.App. 472 , 492 A.2d 1336 (1985), US. cert. denied, 475 U.S. 1066 , 106 S.Ct. 1379 , 89 L.Ed.2d 604 (1986), this court was presented with a challenge to a sewer moratorium.

In that case we explained: ¹⁰² “A regulation which prohibits a beneficial use of private property constitutes a fair exercise of the police power if the public interest generally requires it and the regulation is reasonably necessary to achieve the public goal without being unduly oppressive upon individuals.” Md.-Nat’l Cap. P. & P. Comm’n v. Chadwick, [ 286 Md. 1 ] at page 9, 405 A.2d 241 [1979], Edgewood Nursing Home v. Maxwell, 282 Md. 422 , 384 A.2d 748 (1978), Smoke Rise, Inc. v. Washington Suburban San. Com’n, [ 400 F.Supp. 1369 (D.Md.1975)]. Ungar, 63 Md.App. at 481-82 , 492 A.2d 1336 .

The Overall Moratorium at issue was adopted “in the public interest to protect the health, safety and general welfare of the citizens of Queen Anne's County.” A stated purpose was to avoid a flux of “speculative and poorly thought out development proposals prepared specifically to avoid the intent” of the new land use regulations that were being prepared. The moratorium did not affect the development of single-family homes that had received approval, or the development of multi-family and commercial structures that had received final site plan approval. Initially, the moratorium was to last less than six months; it was, however, extended and was in effect for almost nine months. Nevertheless, the trial court held the moratorium unconstitutional.

The trial court relied upon the recent Supreme Court decision, First English Evangelical Lutheran Church v. County of Los Angeles, — U.S. —, — , 107 S.Ct. 2378, 2388 , 96 L.Ed.2d 250 (1987), which held that “temporary” takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. The trial court reasoned: Because the Overall Moratorium did not provide for the payment of just compensation, it was unconstitutional as ¹⁰³ applied to Triangle’s property and was thus of no effect. ... Although Triangle is not seeking compensation for even a 6 month’s “taking”, it can certainly seek relief by way of a declaration of invalidity as to its site plan application. We disagree with the trial court’s analysis and conclusion.

As the California Court of Appeals explained in Guinnane v. City and County of San Francisco, 197 Cal.App.3d 862 , 241 Cal.Rptr. 787 (1987): Although the Supreme Court has determined that a temporary regulatory taking is compensable, there is nothing in First English which changes the rule that “taking” must occur before compensation may be claimed. In First English, the court assumed a taking had occurred. On the appeal from the trial court’s order striking a portion of the complaint, the lower court and the Supreme Court accepted as true the allegation that the county’s ordinance denied the landowner all use of the property. Thus, the court framed the issue before it as “whether abandonment by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land.” (First English, supra, 482 U.S. at p. — [ 96 L.Ed.2d at p. 265 , 107 S.Ct. at p. 2387 ], italics added.) The court remanded the matter for further proceedings on whether a regulatory taking had actually occurred: “whether the ordinance at issue actually denied appellant all use of its property or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State’s authority to enact safety regulations.” (Id., at p. —— [ 96 L.Ed.2d at p. 262 , 107 S.Ct. at pp. 2384-2385].) Id. at 868, 241 Cal.Rptr. at 790 .

In the case at bar, we need not decide whether there was a compensable “taking” within the meaning of First English because Triangle did not and does not seek compen ¹⁰⁴ sation. Moreover, even if we assume arguendo that a “taking” did occur, we would not hold the moratorium void. The Fifth Amendment does not prohibit the taking of private property; it merely makes compensation a condition of the exercise of that power. See First English, 107 S.Ct. at 2385 .

It behooves us at this point to stress again that we do not now decide whether First English is applicable to a temporary moratorium as occurred here. The Supreme Court specifically limited its holding to the facts before it; it did “not deal with the quite different questions that would arise iii the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like.” First English, 107 S.ct. at 2389. As the Guinnane court reasoned, Although the United States Supreme Court in First English has now overruled the California Supreme Court’s Agins decision on another point [see Agins v. Tiburon, 447 U.S. 255 , 100 S.Ct. 2138 , 65 L.Ed.2d 106 (1980) ], there is nothing in First English which alters the established principle that the interim burden imposed on a landowner during the government’s decisionmaking process, absent unreasonable delay, does not constitute a taking____ We therefore discern from Agins and First English that the temporary suspension of land use which occurs during the normal governmental decisionmaking process does not constitute a taking. Accordingly, the interim delay which occurred herein while the city studied the possible acquisition of plaintiff’s property as an open space area did not constitute a compensable taking.

Guinnane, 197 Cal.App.3d at 869-70 , 241 Cal.Rptr. 787 . In the case sub judice, we hold that the moratorium was constitutional.

II

Effective Date of the Moratorium Friel also assigns error to the trial court’s holding that the moratorium was void because of its effective date. ¹⁰⁵ The moratorium went into effect on July 16, 1986, eight days after a public hearing was held thereon. Article 66B, § 4.04(a) of the Maryland Code requires a minimum ten-day period between the