Scrimgeour v. Fox Harbor, LLC

²³² BATTAGLIA, J. This case involves a zoning dispute between Appellant, Robert Scrimgeour, an adjoining landowner to a 166-acre property in Talbot County (“Property”) presently owned by Fox Harbor, LLC, 1 Appellee, and concerns a zoning officer’s issuance of a certificate to build a structure with 42,835 square feet of floor area on the Property. 2 The structure was intended to house equine activities. Mr. Scrimgeour challenged the issuance of this permit before the Talbot County Board of Appeals, arguing primarily that the size of the structure was too large to be “accessory to” a residential or agricultural use of the property. After a three-day hearing in March and April of 2007, the Talbot County Board of Appeals upheld the issuance of the building permit, as either a permissible accessory residential or accessory agricultural structure under the then existing local zoning ordinance. Mr. Scrimgeour sought judicial review in the Circuit Court for Talbot County, which affirmed the Talbot County Board of Appeals’ decision.

Mr. Scrimgeour then noted an appeal to the Court of Special Appeals, and we granted certiorari prior to any proceedings before the intermediate appellate court to consider the following question: Did the trial court err as a matter of law by affirming the Talbot County Board of Appeals’ decision that the structure proposed by the Appellee is properly characterized as either ²³³ an Accessory Residential or Accessory Agricultural use or structure pursuant to the Talbot County Zoning Code? Scrimgeour v. Smith, 406 Md. 744 , 962 A.2d 371 (2008). After certiorari was granted, but before oral argument, the Talbot County Council adopted Bill 1162, which among other things, repealed the County’s Zoning Code in its entirety and enacted new land use provisions entitled “Zoning, Subdivision and Land Development,” which became effective on June 13, 2009, five days after oral argument. At oral argument, counsel for both parties alerted the Court to the impending, material changes in the code, including new zoning districts, 3 updated definitions of “accessory structure,” 4 “accessory use,” 5 and “stable,” 6 and an updated Table of Uses, specifical ²³⁴ ly related to “Agricultural Uses and Structures, Accessory.” 7 We asked the parties to submit supplemental briefs concerning the applicability of the code changes with regard to the question before us.

Because Layton v. Howard County Board of Appeals, 399 Md. 36 , 922 A.2d 576 (2007) applies here regarding the retrospective effect of substantive changes in relevant statutory law that take place during the course of litigation in a land use or zoning matter (a holding apparently not disputed by the parties), we elect not to address the substantive question raised in this case and instead will remand this case to Talbot County for the administrative body’s consideration and determination of the effect of the new code on the dispute. The pertinent history concerning the building permit and Board of Appeals’ findings and conclusions are set forth in the written opinion in this matter of Circuit Court for Talbot County Judge Sidney S. Campen, Jr., issued on June 5, 2008, as follows: By way of background, on November 3, 2005, the property owners, Mr. and Mrs. Smith, filed an application for a building permit to construct a “Riding Arena (Phase I)” with a footprint of 20,000 square feet on their waterfront property consisting of 165.857 acres at 5289 Ferry Neck Road, Royal Oak (the subject “property”). The application was assigned Permit No. 05-918. It was approved in the normal course and a building permit was issued by the County Office of Permits and Inspections on November 10, 2005.

On September 29, 2006, Mrs. Smith filed another application for a building permit for “Completion of Horse Stable” with a neiv footprint of 42,835 square feet. The ²³⁵ application was assigned Permit No. 06-852, and was approved and issued by the County on November 17, 2006. That permit is the subject of this appeal. Pending the issuance of Permit No. 06-852, however, the Planning Officer for Talbot County, George Kinney, sensing opposition and potential litigation from the surrounding neighbors, decided to take the matter before the Talbot County Planning Commission for “thoughts and feedback” on whether the proposed structure would be agricultural.

Following two public hearings, the Planning Commission concluded that the equestrian facility proposed by Mr. and Mrs. Smith would “fit under” the accessory use to an agricultural operation or a residential accessory structure, and recommended approval of the building permit. The Permit (06-852) issued by the Planning Officer for completion of the horse stable contained conditions, inter alia, expressly prohibiting use for commercial purposes with a stipulation that it must be a “private use facility only.” A timely administrative appeal to the Board of Appeals was noted by the Petitioner, Robert Scrimgeour, on December 12, 2006, citing six allegations of error on the part of the Planning Officer in the approval of Zoning Certificate No. 06-852. The matter was designated as Appeal No. 1451 and scheduled for hearings commencing March 12, 2007. PreHearing Statements with exhibits were submitted on behalf of the Petitioner, Mr. Scrimgeour, Talbot County and Mr. and Mrs. Smith.

Following the second hearing on March 19, 2007, at which time testimony was concluded, counsel submitted closing arguments in writing in the form of Post Hearing and Closing Memoranda. On April 16, 2007, the Board reconvened to deliberate and concluded that the Petitioner had failed to “carry his burden of proof” and unanimously denied the Appeal. On May 7, 2007, the Board issued its written Decision denying the Petitioner’s appeal thereby affirming the decision of the Planning Officer in the issuance of Permit No. 06-852. On May 30, 2007, the Petitioner timely filed the subject Petition for Judicial Review of the Decision. ²³⁶ (emphasis in original) (footnotes and internal citations omitted).

The Board of Appeals made the following findings of fact and conclusions of law when it was confronted by the dispute: While opinions and conclusions varied, there were few, if any, disputes concerning the material facts that were presented to the Board through witnesses or documents. Our findings of fact based on the evidence presented to us are as follows. The Subject Property consists of approximately 165.8 acres. The Property is zoned a combination of Rural Agricultural Conservation district-RAC (non-critical area only) and Rural Conservation district-RC (critical area only).

It is one of the larger agriculturally zoned parcels of land in Talbot County. The predominant use of the Property is agricultural. A majority of the Property has been actively crop farmed for many years. Although some acreage may have been left fallow in the past year, this is consistent with agricultural practices and does not persuade us that the Property’s predominant use is no longer agricultural.

The Property is also assessed as in agricultural use. Mrs. Smith maintains her primary residence on the Property- With regard to the project proposed by Ms. Smith, while she may have contemplated a different use at an earlier point in time, her intention is to use the structure as a facility for caring for “rescue” horses. Essentially, Mrs. Smith wants to operate a foster care home for unwanted horses. Although the facility will not be commercial in the sense that Mrs. Smith will not be conducting this activity for financial gain, operation of the facility will be a full time, non-paying responsibility for her.

The size of the proposed facility is approximately 42,835 square feet. The vast majority of the facility will be devoted to stalls to accommodate twenty eight (28) horses and an indoor riding and exercise area. We note that the Appellant expressed concern that there may be a second floor viewing area of approximately 1300 square feet. We do not believe that inclusion of a viewing area that encom ²³⁷ passes approximately three percent (3%) of the facility transforms the structure into a building primarily intended for spectator viewing.

The Applicant also expressed concern that one iteration of the Owner’s plans submitted to the Planning Office included sixty (60) parking spaces. We accept Mrs. Smith’s testimony that she will include approximately twenty (20) parking spaces which seems an appropriate number for the non-commercial activities she intends for the structure. We conclude that the Project constitutes a permissible agricultural use pursuant to the Talbot County Zoning Ordinance (the “Zoning Ordinance”). Section 190-14 of the Talbot County Code defines “agriculture,” in pertinent part, as follows: “All methods of ... management of livestock ....

This includes ... the activities of feeding, housing, and maintaining of animals such as ... horses.... ” Pursuant to Section 190-19.B. of the Zoning Ordinance, the General Table of Land Use Regulations is illustrative, not all inclusive. As directed by this section of the Zoning Ordinance, like the Planning Director, we interpret the uses listed under Accessory Agricultural Uses and Structures, page 190: All of the Zoning Ordinance, liberally to include the project proposed by Mrs. Smith. We also note that the Planning Officer, after obtaining a recommendation from the Planning Commission, specifically determined that the use proposed by Mrs. Smith would have similar impacts to the uses listed under Accessory Agricultural Uses and Structures. See Section 190-19.C. of the Zoning Ordinance.

Stated more simply, “agriculture” includes feeding, housing and maintaining horses. Based upon the evidence we conclude that the primary purpose for the Project proposed by Mrs. Smith is precisely that, to feed, house and care for horses which include training and exercise for the horses. In the event that Mrs. Smith is successful and her care for the horses progresses beyond mere feeding and exercise to successful hunter-jumper dressage or other skilled horsing activities, and/or if girl scouts or other groups of children are sufficiently interested that sporadic private group visits ²³⁸ are arranged, this facility will nevertheless constitute an