Sheetz, Inc. v. Frederick City Planning Commission

FISCHER, Judge. Appellants, Sheetz, Inc., Deane Savage, and Barbara Rogers (Sheetz), appeal from an order of the Circuit Court for Frederick County. The Frederick City Planning Commission (Planning Commission) held a public meeting on March 14, 1994, and denied Sheetz’s proposed site plan for the construe ⁵³³ tion of a convenience store with six gas pumps. Sheetz appealed to the circuit court, which heard arguments on the merits and then affirmed the Planning Commission’s decision.

Sheetz presents the following issues for our review, which we have reworded for clarity: I. Whether the Planning Commission violated Section 6.08 of the Frederick City Zoning Ordinance by failing to provide Sheetz an opportunity to make “reasonable changes” to the proposed site plan.

II

Whether the Planning Commission violated Maryland and Federal Constitutional law by failing to provide specific findings and reasons to support its determination.

III

Whether the Planning Commission usurped the legislative function by prohibiting the applicants from using their property for a convenience store, when such use has already been legislatively determined to be compatible under the B-3 zoning category.

IV

Whether the Planning Commission’s decision to deny the permissible B-3 use without compensation constitutes an unconstitutional taking. V. Whether the Planning Commission’s denial of the site plan application was arbitrary and capricious. FACTS Sheetz owns a 7.71 acre parcel of property located at the southeast corner of Rosemont Avenue and Shookstown Road in Frederick, Maryland. The Frederick City Board of Aider-men (the city’s legislative body), which has the authority to establish zoning districts, zoned the Sheetz parcel B-3, 1 General Commercial in 1986.

Section 3.03(3) of the Frederick City Zoning Ordinance 2 (Zoning Ordinance) states: ⁵³⁴ General Commercial, B-3. The B-3 district is intended to provide areas for major retail, service and other business activities that will serve the general commercial needs of the community at large. Special care must be taken in development review to minimize the impacts of the high-traffic and other potentially disruptive activities. Furthermore, • Section 4.02(3)(6) states that accepted commercial uses for a B-3 site include that of a convenience store and gas station.

Sheetz applied to the Planning Commission in 1993 for final site plan approval of its plan to build a convenience store with six gas pumps on 1.3 ± acres of the Sheetz parcel. Sheetz supplied the Frederick City Planning Department and other state agencies with the site plan, supporting documents, and a traffic study. All required state and local agencies received, reviewed, and commented on the Sheetz site plan. On March 14, 1994, the Planning Commission held a public meeting 3 for final review of the Sheetz site plan.

The Zoning Administrator spoke first and testified about the city staffs concerns with the site plan, which included existing and potential problems with traffic and safety. An assistant city engineer and the City Attorney testified next and briefly described the timing of future improvements to Rosemont Avenue. The engineer testified that improvements to Rosemont Avenue would alleviate some of the traffic problems at the Shookstown intersection. ⁵³⁵ Sheetz called three witnesses: an engineer, a traffic expert, and a representative of Sheetz, Inc. The engineer testified that he believed the Sheetz plan satisfied the Zoning Ordinance. The traffic expert gave the Planning Commission an updated traffic study and concluded that the Sheetz plan would not present a traffic safety hazard.

The Planning Commission heard all the testimony, including numerous outbursts from the public gathered at the meeting. Each Planning Commissioner stated his or her own difficulties with and reasons for rejecting the Sheetz plan. Their closing statements ranged from legitimate safety concerns to personal value judgments not established in 6.07(2). 4 MR. HUDSON: I don’t want you to get too excited when I say this but my impression is that even if we offer a continuance and we get some additional information, that we’re still going to come up with basically the same kind of feeling among the members of the Commission and that is that No. 1, we understand that each of us owns a piece of property and wants to develop it to its highest and best use.

That doesn’t mean that if a shooting gallery was an acceptable use on this site that I would—and you passed all the requirements ... that I would think it would be a use that I would want to approve. One (1) of the things that you’ve indicated is that you anticipate a level of use on this site of about three thousand (3,000) vehicles a day---- [I]f you ran that over the full twenty-four (24) hour period, you were having someone go in and out once every half second or half minute,.... And I know it doesn’t work that way.... You can count the traffic till you’re blue in the face and I accept what has been presented by Mr. Lewis [appellant’s traffic expert] as being accurate.... [T]his kind of a use at this particular location would be something that I would be ⁵³⁶ in favor of denying until such time as the entire traffic picture is clarified, until such time as the improvements would be made out on Rosemont Avenue extended beyond Military Road---- [I]f I had the five (5) lanes of traffic today, if I had the left turn lane, if I had the right in, right only turn on this site, I would still feel that the number of vehicles ... for this kind of usage would severely impact the safety of that particular area ...

I’ve been out there and witnessed this area many different times of the day and evening,---- But I have witnessed that and I do know that there is a problem out there. There is a problem that relates itself also to pedestrian safety, although I don’t expect a hundred (100) people will run across the street from the area north of Rosemont to get to Sheetz or any other activity there. This becomes a dangerous place to have pedestrian activity____ [W]hile I truly understand that the City ... zoned this land B-3, I do believe that somewhere in the category of what is permitted for this Commission to do is to consider, even though there are permitted uses indicated on our chart showing that a gas station, a convenience store is a permitted use in the B-3,1 think that someone, some judge somewhere might think that we should be responsible enough to look at a particular situation and decide that this doesn’t look quite right to me, it doesn’t look like something that I would like to stand up and say would be the right kind of a usage at this time. So I’m telling you I would recommend denial based on the information that has been given to us by the Police Department and based on indication that has been given to us from the neighborhood, the people who are effected, based on their own intelligence and based on the traffic situation that is there, that this would compound an already bad situation.

MR. WILLIAMS: I agree with that. I’d be perfectly willing to go through the—the stress of sitting through another meeting. I feel that the applicant may have a desire for extension, continuance, and that might make sense if the things that have been proposed would make a ⁵³⁷ substantial difference.

My feeling is that what we’re dealing with here is a safety situation.... I think that even with the improvements that are shown ... the improvements are not adequate to do what is being proposed and those improvements would not be sufficient to remove the barrier that has been proposed. It’s conceivable that if further improvements were made to the east, that might be sufficient to reconsider.... The property is zoned B-3 and the owner has a right to make some reasonable use out of it.... [B]ut what is being proposed is very substantial and I think very dangerous and I’m opposed to it.

MR. HALL: The same thing applies with me ... I think our responsibility is to the people who are sitting out there.... [A]t one point in time, you have to say that’s enough. As far as I’m concerned, this is enough.

MS. MURPHY: Well, I’m going to have to agree with my colleagues ... I think that this particular use for this property is too intense. I think that it has a detrimental effect on the residential neighborhood across the street---These are older homes and these people have worked very hard to protect their residential neighborhood.

There are plenty of other permitted uses in B-3 and I think that the owner can find something that is not as intense.... But my biggest concern is what this is going to do to the residential neighborhood in front of the property and behind it ... so, I’m against it. CHAIRMAN SUMMERS: We all seem to agree up here but all of you should remember that the property is zoned B-3. [Emphasis added.] In the face of these critiques, Commissioner Hudson asked if Sheetz would like a continuance in order to “massage this [the submission] one time” and return for another attempt at getting approval. 5 Though the record reflects as substantively ⁵³⁸ “inaudible” how Mr. Severn, Sheetz’ attorney, responded to this query, Mr. Hudson next made a motion for denial. The substance of his motion was: In light of that, I’ll make a motion for denial.

The reasons for denial are that there are a number indicated a total number of possible three thousand (3,000) trips which would relate to an intensive use of the property and that—that would mean, perhaps, one (1) vehicle every thirty (30) seconds or more that would enter the property and in high traffic periods, it would be much worse. I deny this on the basis of this particular development would have a negative impact on the neighborhood. I believe that the safety of the traffic traveling west and east on Rosemont and the safety of the traffic traveling north on Shookstown Road in particular make this a particularly serious traffic hazard. I believe that the recommendation from the City Attorney that we may be exacerbating—I hate that word—we might be making the situation a lot worse—let’s call it like Americans—we would be making the traffic situation a lot worse than it currently is and we already know it’s in—it’s a serious problem from the reports that we have from the Police Department that this might present the City with a possible problem of litigation from increasing traffic in an already dangerous area.

I believe that the planned public improvements from Military Road west are not in place, cannot give relief to this particular heavy increase of traffic within the next year. I believe that the acquisition of the property from—on Rosemont Avenue from Military Road east towards Biggs is currently not developed to an extent where we really know where we will be in the next year or two (2) and that become a—a—an unknown of sorts that we ⁵³⁹ can’t rely on at this particular moment. The other indications are that the traffic study, and I have checked with you on this, Cathy, my impression is that, Cathy, that the traffic study still would need to be revised at this point to reflect some of the requests from the City Engineer and the staff’s point of view. Would that be correct?

And one (1) more comment, this also reflects some of the comments that were in the memorandum regarding this from the Frederick County Department of Public Works where they indicated that, in summary, aside from the capacity issues, if it were a County application, this division would recommend you deny access to Rosemont Avenue from the safety standpoint, not that we have to agree with the County but no comment was made on that an this was a comment from another source, which I want us to be aware that we have had and I don’t know whether I have anything else. You want me to include anything else, Mike? The motion for denial was unanimously approved. Pursuant to Section 6.10, Sheetz appealed to the Circuit Court for Frederick County.

In a written opinion, the circuit court affirmed the Planning Commission’s decision. It held that the Planning Commission: (1) did not violate Section 6.08(2); (2) did not usurp a legislative function by rejecting the Sheetz site plan; (3) did not unconstitutionally take Sheetz’ property without just compensation; (4) provided sufficient findings of fact, and (5) did not rule in an arbitrary and capricious manner. A timely appeal was filed with this Court. DISCUSSION I. Sheetz argues that the Planning Commission failed to follow Section 6.08(2) of the Zoning Ordinance by not providing Sheetz with “reasonable changes” for its site plan before the Planning Commission rejected its proposal.

Section 6.08 provides, in pertinent part: ⁵⁴⁰ (1) The Planning Commission shall review those applications for site plan approval described in Section 6.06(1) at a public meeting. All interested persons shall have the right to appear and speak concerning the application. (2) The Commission shall require any reasonable changes to the proposed site plan which it considers necessary to comply with the requirements of this Ordinance and assure compliance with criteria of Section 6.07(2). If these changes are not made, the Commission shall deny the application.

We are left with the question of whether Section 6.08(2) is proactive or reactive in nature. If the provision is proactive, the Planning Commission must suggest “reasonable changes” to the applicant before rejecting any proposal. If the provision is reactive, the Planning Commission has no affirmative duty to propose “reasonable changes” to help an applicant bring a site plan within what it perceives are the requirements of the Zoning Ordinance. 6 We believe that Section 6.08(2) is a proactive provision, in that it places on the Planning Commission the ultimate responsibility to determine the necessary requirements to render a proposed site plan acceptable under the Zoning Ordinance and then to inform the applicant of such required changes. Under this approach, the Planning Commission has an affirmative obligation in shaping the proposed site plan.

Interpreting Section 6.08(2) otherwise would render this subsection of the Zoning Ordinance meaningless and inconsistent with basic concepts of zoning law and common sense. Cf. First United Methodist Church of Hyattsville v. U.S. Gypsum ⁵⁴¹ Co., 882 F.2d 862 (4th Cir.1989), cert. denied, 493 U.S. 1070 , 110 S.Ct. 1113 , 107 L.Ed.2d 1020 (1990) (stating that the most fundamental guide to statutory construction is common sense). The Zoning Ordinance establishes the rules for interpreting its terms.

Section 2.01 states, in part: The following rules of construction apply to the text of these regulations: (3) The words shall and will are always mandatory.... (13) Throughout these Regulations, all words, other than the terms specifically defined above and below, have the meaning inferred from their context in these Regulations or the ordinary accepted definitions, as defined in the current edition of Webster’s Ninth New Collegiate Dictionary. Section 1.06 requires that “the terms of this Ordinance shall be applied to promote the intent as found in Section 1.03.” 7 In the Zoning Ordinance, words are given their ordinary meanings in a way that furthers the Zoning Ordinance’s purposes. This comports with Maryland law that states that words in statutes will be accorded their ordinary meanings where the words are unambiguous and consistent with the statute’s apparent purpose.

Ayres v. Townsend, 324 Md. 666, 672 , 598 A.2d 470 (1991). Statutory language, however, must be read so as to advance the legislative policy behind the explicit language used. Baltimore County Coalition Against Unfair Taxes v. Baltimore County, 321 Md. 184, 203 , 582 A.2d 510 (1990). The proactive nature of Section 6.08(2) hinges on the two sentences that make up the section.

These sentences cannot be read independently as if they were in a vacuum. Instead, Section 6.08(2) needs to be read as a whole and in the context ⁵⁴² of Section 6 of the Zoning Ordinance to gauge its proper meaning. See Vest v. Giant Food Stores, Inc., 329 Md. 461, 466-67 , 620 A.2d 340 (1993) (stating that in determining the meaning of a statutory provision, the statute must be examined as a whole). The key term in the first sentence is the word “require.” Webster’s Ninth New Collegiate dictionary defines “require” as: la: to claim or ask for by right and authority ... 2 a: to call for as suitable or appropriate b: to demand as necessary or essential: have a compelling need for 3: to impose a compulsion or command on: COMPEL.

Webster’s Ninth New Collegiate Dictionary 1002 (1985) (emphasis added). The term “shall” makes it mandatory that the Planning Commission ascertain and require any reasonable changes that might bring a submission into compliance with the criteria of the Ordinance. The second sentence of 6.08(2) helps flesh out the affirmative duty described in the first sentence. Section 6.08(2) provides, “If these [reasonable] changes are not made, the [Planning] Commission shall deny the application.” The second sentence of 6.08(2) serves no purpose unless the Planning Commission has a duty to identify and propose “any reasonable changes.” The applicant, however, cannot know what “reasonable changes” need to be incorporated unless the Planning Commission gives it specific guidance.

Under the reactive approach, the applicant would be required to guess what “reasonable changes” were necessary to gain approval. The site plan review process, as it was apparently intended to operate in the City of Frederick if the City’s view prevailed, would have applicants coming back numerous times, proposing changes, and hoping it had captured in its resubmission what the Planning Commission expected to hear. An orderly process should not require an applicant to come back time and time again attempting to gain approval of a site plan only to have the Planning Commission reject the plan without telling the applicant how to satisfy the Zoning Ordi ⁵⁴³ nance. 8 A random approach that requires applicants to guess what changes are required is not consistent with the legislative intent of the Zoning Ordinance or even common sense. See State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731 (1993) (stating that to determine a statute’s meaning you need to look beyond the language, consider its purpose, and thus reach an interpretation that is compatible with common sense).

Under the reactive approach, the Planning Commission could deny an otherwise approvable site plan by simply not informing the applicant of what “reasonable changes” need to be incorporated to achieve approval. Thus, the reactive approach would result in granting the Planning Commission impermissively wide discretion to reject site plans. Such wide discretion runs counter to the power reserved for the Board of Aldermen in